WEBVTT 00:01.580 --> 00:06.030 Prof: So in Monday's lecture we let something slip by 00:06.033 --> 00:10.643 all of us without comment that we probably should not have let 00:10.638 --> 00:13.378 slip by, and it's something I want to 00:13.382 --> 00:14.392 focus on today. 00:14.390 --> 00:17.650 That is when we spelled out Mill's harm principle I said, 00:17.650 --> 00:20.910 "Is everybody sure they know what it means?" 00:20.910 --> 00:23.210 Never mind whether you agree with it or not, 00:23.210 --> 00:26.090 but whether you're sure that you understand what he is 00:26.087 --> 00:29.297 saying, and we all agreed that at least 00:29.302 --> 00:30.512 it was clear. 00:30.510 --> 00:33.630 In fact, though, it's ambiguous, 00:33.629 --> 00:39.469 and the highlighted phrase is the ambiguity I want to focus 00:39.465 --> 00:40.165 on. 00:40.170 --> 00:45.360 At the end of that long paragraph I read you when Mill 00:45.357 --> 00:48.597 is saying, "If you think something's 00:48.601 --> 00:51.951 bad for somebody or that they shouldn't do it," 00:51.952 --> 00:55.832 remember I gave you an example of going to law school when I 00:55.830 --> 00:58.130 don't think it's good for you. 00:58.130 --> 01:02.090 Mill says, "Those may be good reasons for remonstrating 01:02.085 --> 01:03.855 with him, or reasoning with him, 01:03.859 --> 01:05.969 or persuading him, or entreating him, 01:05.974 --> 01:09.954 but not for compelling him or visiting him with any evil in 01:09.950 --> 01:12.350 case he decides to do otherwise. 01:12.349 --> 01:16.319 To justify that (I need to justify forcing somebody to do 01:16.317 --> 01:20.137 something or prohibiting somebody from doing something) 01:20.144 --> 01:24.114 the conduct from which it is desired to deter him must be 01:24.111 --> 01:28.011 calculated to produce evil to someone else." 01:28.010 --> 01:32.290 "Must be calculated to produce evil from someone 01:32.290 --> 01:33.360 else." 01:33.360 --> 01:37.980 And there are two issues raised by that phrase that I really 01:37.976 --> 01:42.276 want us to focus on with laser-like intensity in today's 01:42.280 --> 01:43.220 lecture. 01:43.220 --> 01:45.810 The one is signaled by the passive voice in it, 01:45.811 --> 01:47.671 "must be calculated." 01:47.670 --> 01:51.760 Well, that obviously puts on the table, who does the 01:51.757 --> 01:53.437 calculating, right? 01:53.440 --> 01:56.980 And secondly, what does it mean, 01:56.983 --> 01:58.473 calculated? 01:58.470 --> 02:03.440 It could mean calculated as in intended. 02:03.438 --> 02:05.848 "I didn't intend to harm you. 02:05.849 --> 02:09.079 There was no calculation to harm you when I got 02:09.079 --> 02:12.519 paralytically drunk behind the wheel of a car, 02:12.520 --> 02:15.720 and then I don't even remember putting the keys in the wheel 02:15.722 --> 02:16.702 and driving off. 02:16.699 --> 02:19.479 I didn't intend to harm you," right? 02:19.479 --> 02:25.809 Or is it a third party calculation? 02:25.810 --> 02:28.530 Again, then we get to the question, by whom? 02:28.530 --> 02:29.640 Who's going to decide? 02:29.639 --> 02:32.049 Who's going to do the calculating? 02:32.050 --> 02:34.710 So what does calculated actually mean, 02:34.706 --> 02:38.366 and who is it that's going to do the calculating? 02:38.370 --> 02:40.920 Those are the things we're going to zero in on today. 02:40.919 --> 02:45.219 And I thought the best way into it was to consider some 02:45.223 --> 02:46.103 examples. 02:46.098 --> 02:50.048 And one I left you with on Monday was, what about 02:50.054 --> 02:51.294 prostitution? 02:51.288 --> 02:55.388 This is what is sometimes referred to as a so-called 02:55.390 --> 02:56.920 victimless crime. 02:56.919 --> 03:02.489 After all, the transaction between a prostitute and a 03:02.485 --> 03:07.725 client is a Pareto superior transaction, right? 03:07.729 --> 03:10.949 It's a voluntary market transaction. 03:10.949 --> 03:16.139 They wouldn't do it if it didn't make both people better 03:16.143 --> 03:16.713 off. 03:16.710 --> 03:20.200 So should we just say from Mill's point of view, 03:20.197 --> 03:24.737 "There's no harm here; it truly is a victimless crime 03:24.740 --> 03:28.570 and we shouldn't make things criminal if they are 03:28.566 --> 03:30.156 victimless?" 03:30.158 --> 03:34.998 How many people think that makes sense? 03:35.000 --> 03:35.770 About half. 03:35.770 --> 03:37.630 Who thinks it doesn't make sense? 03:37.634 --> 03:38.164 Nobody? 03:38.160 --> 03:39.460 Yeah. Okay, so why? 03:39.460 --> 03:45.690 Why doesn't it make sense, somebody who thinks it doesn't 03:45.693 --> 03:47.143 make sense? 03:47.139 --> 03:50.499 Over here? 03:50.500 --> 03:53.410 Why were you thinking it didn't make sense? 03:53.410 --> 03:56.950 03:56.949 --> 04:00.619 Student: Even though it's victimless I think harming 04:00.622 --> 04:03.032 yourself has some sort of implications, 04:03.030 --> 04:03.790 I think. 04:03.788 --> 04:07.178 Prof: So it's the prostitute harming herself? 04:07.180 --> 04:08.520 Student: Sort of. 04:08.520 --> 04:11.120 I think there are some moral implications in there that must 04:11.116 --> 04:11.816 be dealt with. 04:11.818 --> 04:13.038 Prof: Like what? 04:13.042 --> 04:14.532 What kinds of implications? 04:14.530 --> 04:17.880 Student: Besides just harming--okay, 04:17.877 --> 04:21.147 let me take that back, harming yourself. 04:21.149 --> 04:24.759 It might harm society in the sense that it brings down 04:24.759 --> 04:27.279 society's moral standards, I guess. 04:27.278 --> 04:31.708 Prof: Okay, it might harm society. 04:31.709 --> 04:35.599 Mill's very clear that he wants to reject the idea that there 04:35.598 --> 04:39.498 are social rights, so he wouldn't accept that, 04:39.502 --> 04:44.122 but I don't think you should give up so quickly. 04:44.120 --> 04:47.370 Is there some other way of articulating what you have in 04:47.367 --> 04:49.667 mind there when you say harm society? 04:49.670 --> 04:50.760 What do you mean? 04:50.759 --> 04:55.369 If you unpack what does it mean when you say, 04:55.374 --> 04:58.004 "harm society?" 04:57.995 --> 04:59.565 It's tricky. 04:59.569 --> 05:01.809 Anyone else want to have a go? 05:01.814 --> 05:03.614 Yeah, right behind you. 05:03.610 --> 05:06.310 Student: I guess it poses a negative externality on 05:06.305 --> 05:07.555 society, and therefore... 05:07.560 --> 05:09.240 Prof: Okay, and what is the negative 05:09.240 --> 05:09.800 externality? 05:09.800 --> 05:11.810 Student: Well, I guess in the case of 05:11.810 --> 05:14.620 prostitution it could be the objectification of women in this 05:14.617 --> 05:15.037 case. 05:15.040 --> 05:18.200 Prof: Objectification of women, okay. 05:18.199 --> 05:24.199 How would we say that's a harm to society? 05:24.199 --> 05:28.159 Maybe it would be--again, Mill's going to reject the idea 05:28.158 --> 05:31.268 that society has a right not to be harmed. 05:31.269 --> 05:35.989 How can it play out in a way that doesn't involve making that 05:35.990 --> 05:37.880 claim that society...? 05:37.879 --> 05:41.479 Student: Well, I guess you could say it poses 05:41.482 --> 05:45.572 a negative externality on the individuals in the society by, 05:45.569 --> 05:46.539 I guess... 05:46.540 --> 05:47.550 Prof: On women. 05:47.550 --> 05:48.300 Student: Yeah. 05:48.300 --> 05:49.550 Prof: On women. 05:49.550 --> 05:51.940 It poses a negative externality on women. 05:51.940 --> 05:55.160 It reinforces the set of stereotypes and so on. 05:55.160 --> 06:00.220 Okay, so that might be one way in which prostitution causes 06:00.218 --> 06:00.828 harm. 06:00.829 --> 06:03.879 Any other ways? Yes, sir? 06:03.879 --> 06:06.669 Student: It could also be said that it has a negative 06:06.672 --> 06:09.002 externality because it undermines family values. 06:09.000 --> 06:12.380 Prof: It undermines family values. 06:12.379 --> 06:14.159 Student: Which would then, in turn, 06:14.163 --> 06:15.993 hurt children and the future generations. 06:15.990 --> 06:20.500 Prof: And that would, in turn, hurt children. 06:20.500 --> 06:21.120 Yeah? 06:21.120 --> 06:23.830 Student: Well, I think it's difficult also to 06:23.831 --> 06:26.861 disconnect prostitution from this sort of theoretical model 06:26.858 --> 06:29.048 from the actual model of prostitution. 06:29.050 --> 06:32.180 I think when we put pimps, and sexual slavery, 06:32.180 --> 06:35.270 and that sort of thing in the picture then the harm becomes 06:35.273 --> 06:38.263 far more real, and it's questionable whether 06:38.259 --> 06:41.419 people are voluntarily participating in these 06:41.416 --> 06:43.566 transactions to begin with. 06:43.569 --> 06:46.019 Prof: Okay, so if you're a really 06:46.016 --> 06:50.026 hardboiled Millian libertarian I think slavery's not an issue. 06:50.029 --> 06:54.329 Slaves are taken by force, but selling yourself into 06:54.329 --> 06:58.629 indentured servitude is not obviously something-- 06:58.629 --> 07:02.559 would Mill say you should be allowed to do that? 07:02.560 --> 07:06.130 07:06.129 --> 07:08.529 It's your choice. 07:08.528 --> 07:15.188 It's tricky because you're really giving up your autonomy. 07:15.189 --> 07:18.359 You'll see in politics, we confront later in the 07:18.355 --> 07:21.085 course, what do you do with an election 07:21.086 --> 07:24.356 where a party runs, as in Algeria in 1991 saying, 07:24.355 --> 07:27.975 "If elected we are going to abolish democracy," 07:27.976 --> 07:29.526 and they get elected. 07:29.528 --> 07:35.498 In that case the Algerian military stepped in. 07:35.500 --> 07:38.720 If somebody says, "I'm going to sell myself 07:38.723 --> 07:41.613 into servitude," it's a voluntary act, 07:41.605 --> 07:44.345 should we save them from themselves? 07:44.350 --> 07:50.520 That's a very tricky one, but let's set those ones aside. 07:50.519 --> 07:53.669 And I think there would be similar issues with suicide for 07:53.672 --> 07:54.062 Mill. 07:54.060 --> 07:57.780 Should you be allowed to stop people committing suicide? 07:57.779 --> 07:58.939 Those are very hard. 07:58.940 --> 08:02.770 I think they're separate, though, from these issues about 08:02.766 --> 08:05.156 what we're calling externalities. 08:05.160 --> 08:07.330 People are saying, "Of course there are 08:07.331 --> 08:09.051 harmful effects of prostitution. 08:09.050 --> 08:10.850 It harms women. 08:10.850 --> 08:15.570 It undermines certain kinds of moral codes. 08:15.569 --> 08:20.319 What would Mill say in response to that? 08:20.319 --> 08:23.359 Yeah? 08:23.360 --> 08:25.710 Student: Well, I think for Mill it really 08:25.706 --> 08:27.416 depends on the context of an act. 08:27.420 --> 08:30.440 So you can be drunk at home, but you can't be a policeman 08:30.444 --> 08:31.474 drunk on the job. 08:31.470 --> 08:35.090 So if we look at prostitution if you're working as a free 08:35.087 --> 08:36.857 agent, sure, you can engage in 08:36.855 --> 08:39.195 prostitution, but if you're a father and 08:39.195 --> 08:42.805 you're married then he should probably view that as something 08:42.807 --> 08:43.527 not okay. 08:43.529 --> 08:47.839 So it really matters for him what the context is of a certain 08:47.835 --> 08:48.835 transaction. 08:48.840 --> 08:51.550 Prof: Okay, I think that's right, 08:51.553 --> 08:55.383 and you could imagine a more refined version of the harm 08:55.379 --> 08:58.509 principle that tried to incorporate that. 08:58.509 --> 09:01.339 I gave the example last time; I think I said, 09:01.344 --> 09:05.244 "Mill would presumably be completely comfortable without 09:05.241 --> 09:08.881 outlawing drunk driving and punishing that activity, 09:08.879 --> 09:10.669 but not punishing drinking." 09:10.668 --> 09:14.668 So presumably the principle would be some version of 09:14.668 --> 09:19.218 "interfere with human conduct as little as possible to 09:19.216 --> 09:21.566 prevent harm," right? 09:21.570 --> 09:26.220 So it's killing a gnat with a sledgehammer to outlaw drinking 09:26.217 --> 09:29.237 just because some people drive drunk. 09:29.240 --> 09:30.660 I think that's fair enough. 09:30.658 --> 09:34.398 But I think some of the people who were saying allowing 09:34.399 --> 09:38.689 prostitution has bigger negative externalities wouldn't give up 09:38.692 --> 09:39.872 that quickly. 09:39.870 --> 09:43.870 Anyone who thinks we shouldn't give up that quickly, 09:43.871 --> 09:46.621 that there's something else here? 09:46.620 --> 09:50.110 09:50.110 --> 09:51.670 Nobody? 09:51.668 --> 09:55.718 Maybe they would give up that quickly. 09:55.720 --> 10:00.950 Okay, we'll leave that aside for a minute and come back to 10:00.951 --> 10:01.411 it. 10:01.408 --> 10:10.748 So if you're now bearing this in mind go back and reread On 10:10.746 --> 10:12.886 Liberty. 10:12.889 --> 10:17.209 I think what you'll come away with is it's actually quite 10:17.207 --> 10:20.367 confusing just what Mill means by harm. 10:20.370 --> 10:23.370 Because some harms, he wants to say, 10:23.370 --> 10:27.480 are trivial harms, so the harm you suffer through 10:27.484 --> 10:31.944 not getting a place in college in a competitive exam, 10:31.941 --> 10:32.971 right? 10:32.970 --> 10:36.440 He's not going to allow that harm ultimately to be 10:36.437 --> 10:37.427 dispositive. 10:37.428 --> 10:42.518 He's going to allow that to be outweighed by the benefits to 10:42.518 --> 10:45.708 society of competitive meritocracy. 10:45.710 --> 10:50.250 And remember our free trade discussion last time. 10:50.250 --> 10:54.160 So some harms are more significant than other harms and 10:54.162 --> 10:57.932 some harms are outweighed by utilitarian benefits. 10:57.928 --> 11:03.748 It seems like, some of the time, 11:03.753 --> 11:09.193 if Mill's saying, "Prohibition shouldn't be 11:09.187 --> 11:11.477 allowed," he's saying essentially, 11:11.480 --> 11:16.370 "Unless I intend to do you some harm. 11:16.370 --> 11:20.900 You might find it offensive that I sit around drinking all 11:20.899 --> 11:23.919 day, but it's none of your business. 11:23.918 --> 11:29.788 You might have family values which say that if there are 11:29.791 --> 11:35.551 people out there who are prostitutes, it undermines the 11:35.554 --> 11:36.734 family. 11:36.730 --> 11:39.030 That's your family value, thank you very much. 11:39.029 --> 11:41.349 It's not my family value," right? 11:41.350 --> 11:42.940 So you could take that view. 11:42.940 --> 11:45.520 And after all, if you think about the debate 11:45.515 --> 11:48.925 we've had in this country about gay marriage over the past 11:48.931 --> 11:51.861 decade or so, that's exactly the claim and 11:51.864 --> 11:53.524 the counterclaim, right? 11:53.519 --> 11:56.019 Some people say, "There's no reason in the 11:56.023 --> 11:59.563 world that gay people should be prevented from getting married. 11:59.558 --> 12:01.028 They're not hurting anybody else." 12:01.028 --> 12:04.598 And then people say, "Well, that undermines 12:04.596 --> 12:07.706 traditional family values," right? 12:07.710 --> 12:10.670 And the people who support gay marriage say, 12:10.667 --> 12:12.177 "Well, so what? 12:12.178 --> 12:14.268 Those are your traditional family values, 12:14.267 --> 12:16.617 but they're not our traditional family values, 12:16.615 --> 12:18.385 and why should yours...." 12:18.389 --> 12:20.459 This is, after all, what Mill says, 12:20.460 --> 12:22.530 the tyranny of majority opinion. 12:22.529 --> 12:25.339 So what? Right? 12:25.340 --> 12:29.140 This is supposed to protect individual freedom against it, 12:29.138 --> 12:32.538 so one person's traditional family values is another 12:32.537 --> 12:35.267 person's tyranny of majority opinion. 12:35.269 --> 12:37.229 How are you going to resolve that? 12:37.230 --> 12:41.390 What mechanisms does Mill have to resolve that? 12:41.389 --> 12:45.199 And I think you could read On Liberty 12:45.200 --> 12:50.330 with a fine-tooth comb and not come up with one, 12:50.327 --> 12:54.987 and so you could say, "Well, so much the worse 12:54.988 --> 12:56.198 for Mill. 12:56.200 --> 12:59.750 We thought we had this wonderful rights-utility 12:59.748 --> 13:03.758 synthesis where all good things would go together. 13:03.759 --> 13:05.899 We could respect individual freedoms, 13:05.899 --> 13:10.629 and promote social utilitarian efficiency based on science all 13:10.629 --> 13:15.379 at the same time, but actually it turns out to 13:15.379 --> 13:19.379 all be resting on a hill of sand, 13:19.379 --> 13:24.389 and the minute you walk on it you start sinking." 13:24.389 --> 13:29.399 And I think this is a good time to go back to the point I made 13:29.402 --> 13:34.172 to you right at the beginning of the course when I said you 13:34.168 --> 13:39.098 shouldn't be expecting the silver bullet in this course. 13:39.100 --> 13:43.620 You shouldn't be expecting to find the theory that answers all 13:43.620 --> 13:44.880 your questions. 13:44.879 --> 13:49.039 What instead you're going to find is particular insights that 13:49.037 --> 13:53.057 you can pick up and put into your bag of tricks and move on 13:53.056 --> 13:53.676 with. 13:53.678 --> 13:56.578 Because I think it is, at the end of the day, 13:56.580 --> 14:00.100 a good critique of Mill to say, "There is no single 14:00.095 --> 14:04.055 definition of harm and there's no good account of who makes the 14:04.057 --> 14:06.037 decisions about harm." 14:06.038 --> 14:10.308 And so to that extent his claim at the beginning of On 14:10.306 --> 14:14.566 Liberty that there's one simple principle and this is 14:14.572 --> 14:16.252 what it is, fails. 14:16.250 --> 14:19.400 Nonetheless, there are some important and 14:19.400 --> 14:24.210 enduring insights here that I think we're not going to want to 14:24.206 --> 14:25.306 let go of. 14:25.308 --> 14:31.538 One is, when you think about all of the ways human beings 14:31.543 --> 14:34.623 interact, and all of the things we do 14:34.621 --> 14:38.241 that cause us to have the possibility of bumping into one 14:38.235 --> 14:41.815 another, maybe it shouldn't be the case 14:41.821 --> 14:46.321 that there is a single definition of harm because 14:46.320 --> 14:51.940 different definitions of harm are relevant to different types 14:51.942 --> 14:53.632 of situation. 14:53.629 --> 14:58.099 This is a little like the point somebody here made that Mill 14:58.097 --> 15:00.897 would be interested in the context. 15:00.899 --> 15:09.629 If you think about physicians; we allow physicians to buy 15:09.625 --> 15:13.845 malpractice insurance in case they kill you by mistake when 15:13.854 --> 15:18.784 they're doing surgery, but we don't allow bank robbers 15:18.777 --> 15:24.927 to buy malpractice insurance so that if they kill you by mistake 15:24.931 --> 15:29.621 when they're robbing a bank they can get off. 15:29.620 --> 15:33.030 That tells you right there, there must be different 15:33.029 --> 15:37.259 conceptions of harm that operate in different circumstances. 15:37.259 --> 15:42.109 And indeed, if you want to start thinking about it a little 15:42.111 --> 15:45.791 bit more systematically, harm is treated very 15:45.793 --> 15:49.143 differently in different situations. 15:49.139 --> 15:52.789 Think about this continuum I've put up here. 15:52.788 --> 15:56.898 Some kinds of harm are completely excluded. 15:56.899 --> 16:00.869 You're not held responsible for them at all. 16:00.870 --> 16:04.310 If you have a death penalty and legal execution of people, 16:04.306 --> 16:06.956 of course you harm the person you execute. 16:06.960 --> 16:11.300 Certain kinds of wartime killing, of course you harm the 16:11.296 --> 16:14.446 person that you kill, but we allow it. 16:14.450 --> 16:19.980 We don't count it as a relevant harm. 16:19.980 --> 16:27.130 Then here, I'm going down this continuum, we say that the 16:27.131 --> 16:34.541 intention to kill is very important in the criminal law. 16:34.538 --> 16:38.968 Does anyone know what this term mens rea is in the 16:38.971 --> 16:40.161 criminal law? 16:40.158 --> 16:44.648 No reason you should, but somebody might. 16:44.649 --> 16:48.619 If you're charging somebody with a criminal offense the 16:48.615 --> 16:52.725 government has to prove beyond a reasonable doubt various 16:52.726 --> 16:56.876 elements of the crime, that the person did it, 16:56.879 --> 17:01.979 that in fact that the crime occurred and that there was 17:01.976 --> 17:05.466 something called mens rea, 17:05.470 --> 17:07.270 or criminal intent. 17:07.269 --> 17:10.019 "Guilty mind," that's what it means. 17:10.019 --> 17:15.109 And in the criminal law we make that one of the elements of the 17:15.112 --> 17:15.772 crime. 17:15.769 --> 17:20.309 That's why things like the insanity defense become so 17:20.309 --> 17:23.889 contentious because the person claims, 17:23.890 --> 17:28.460 "Well, because I didn't know what I was doing, 17:28.460 --> 17:29.980 I didn't have mens rea. 17:29.980 --> 17:31.940 My client didn't have mens rea. 17:31.940 --> 17:35.360 He didn't know what he was doing so he's not guilty by 17:35.355 --> 17:36.705 reason of insanity. 17:36.710 --> 17:39.330 He's not guilty," okay? 17:39.328 --> 17:43.388 Or if you think about--you might say, 17:43.390 --> 17:47.400 "Well, we do imprison people for vehicular homicide 17:47.396 --> 17:51.036 when they get drunk," and the person says, 17:51.038 --> 17:54.478 "But I didn't intend to kill them. 17:54.480 --> 17:57.080 I didn't know I was driving. 17:57.078 --> 17:58.718 How can you can you say I intended?" 17:58.720 --> 18:02.910 Interestingly there we come up with a doctrine in the legal 18:02.905 --> 18:06.005 system which we call constructive intent. 18:06.009 --> 18:08.699 And what is the doctrine of constructive intent? 18:08.700 --> 18:10.560 It's basically we say, "Well, 18:10.558 --> 18:15.098 any reasonable person would know that if drive down to a 18:15.101 --> 18:17.751 bar, and you have no way to get 18:17.753 --> 18:22.063 home, and you then drink ten beers you would be putting 18:22.060 --> 18:26.290 yourself in the position where could harm someone. 18:26.288 --> 18:29.408 So we're going to impute the intent to you even though you 18:29.410 --> 18:30.670 didn't have it." 18:30.670 --> 18:32.570 That's the doctrine of constructive intent. 18:32.568 --> 18:35.808 That's using exactly that kind of situation, 18:35.808 --> 18:40.628 so in the criminal law, to go back to Mill, 18:40.630 --> 18:43.820 we'd say "calculated to produce evil in someone 18:43.817 --> 18:44.627 else." 18:44.630 --> 18:51.670 It's got to be calculated by the person committing the harm, 18:51.673 --> 18:52.513 okay? 18:52.509 --> 18:55.139 So, why is that, you might say. 18:55.140 --> 19:00.940 Well, criminal actions are actions which bring moral 19:00.935 --> 19:03.545 opprobrium on people. 19:03.549 --> 19:04.899 We lock them up. 19:04.900 --> 19:08.710 They're really things we don't want people to do, 19:08.705 --> 19:12.905 and we want people to internalize the incentive not to 19:12.907 --> 19:13.857 do them. 19:13.858 --> 19:17.198 So it's about their intentional actions, and then we're 19:17.202 --> 19:19.372 punishing them for those actions. 19:19.368 --> 19:26.118 Therefore, when we put sanctions on them we want them 19:26.118 --> 19:32.608 to know that they could have behaved otherwise, 19:32.608 --> 19:36.278 and so we want the intent to be present, 19:36.279 --> 19:39.809 so constructive intent is sort of like intent, 19:39.809 --> 19:44.589 but not exactly. 19:44.589 --> 19:46.969 What about negligence? 19:46.970 --> 19:50.930 Negligence is even less like constructive intent. 19:50.930 --> 19:55.170 So negligence is the doctrine that let's suppose you live in a 19:55.165 --> 19:58.565 neighborhood where there are lots of children, 19:58.568 --> 20:03.318 small children, and you put in a swimming pool. 20:03.318 --> 20:10.138 And let's say the law requires that you fence in your swimming 20:10.144 --> 20:13.664 pool, but you leave the fence open, 20:13.662 --> 20:17.382 the gate open, and a child goes in and falls 20:17.377 --> 20:19.487 into your pool and drowns. 20:19.490 --> 20:23.010 The doctrine of negligence would say, 20:23.009 --> 20:26.549 "Well, yes of course you didn't intend that the child 20:26.548 --> 20:29.838 would drown, but you were negligent in 20:29.842 --> 20:33.932 leaving the gate open, so we're going to hold you 20:33.934 --> 20:35.274 responsible." 20:35.269 --> 20:37.769 So it's a little less than constructive intent. 20:37.769 --> 20:38.869 It's negligent. 20:38.868 --> 20:44.898 Any reasonable person would know that you shouldn't leave 20:44.904 --> 20:46.634 the gate open. 20:46.630 --> 20:47.830 So you were negligent. 20:47.828 --> 20:55.008 It's still a state of mind, but it's obviously not the same 20:55.005 --> 20:59.825 thing as intending to kill the child. 20:59.828 --> 21:03.008 And then we could go even further down the continuum and 21:03.005 --> 21:05.445 say, "There are some situations 21:05.451 --> 21:09.401 where we say, 'We don't care about your state 21:09.400 --> 21:14.270 of mind at all.'" So if an adult has sex with a 21:14.269 --> 21:17.899 14-year-old and walks in and says, 21:17.900 --> 21:21.070 "Well, Your Honor, she said she was 20, 21:21.069 --> 21:22.549 and I thought she was 20. 21:22.548 --> 21:27.258 She looked 20," and perhaps that's true. 21:27.259 --> 21:30.219 Perhaps all of those things were true, she said she was 20, 21:30.223 --> 21:32.323 I thought she was 20 and she looked 20. 21:32.318 --> 21:36.578 "We don't care," we say as a society. 21:36.579 --> 21:37.999 We don't care. 21:38.000 --> 21:41.250 That's the notion of statutory rape. 21:41.250 --> 21:44.450 It's sometimes called strict liability. 21:44.450 --> 21:46.950 We're going to hold you liable anyway. 21:46.950 --> 21:49.620 And why do we do that? 21:49.618 --> 21:54.808 Presumably to give people the incentive to make sure as to 21:54.807 --> 21:55.807 find out. 21:55.808 --> 21:59.078 So when we say, "If she was 14 it's 21:59.079 --> 22:02.769 statutory rape, or if he was 14 and she was 20 22:02.772 --> 22:05.542 it's statutory rape," there it is, 22:05.538 --> 22:06.338 too bad. 22:06.338 --> 22:12.708 We don't care what she said, and we don't care what you 22:12.714 --> 22:20.044 believed at the time because we want to ensure that people have 22:20.035 --> 22:25.815 the incentive to find it out correctly." 22:25.818 --> 22:29.088 Or we could think of Good Samaritan laws. 22:29.088 --> 22:32.588 This is the situation where you're walking along, 22:32.588 --> 22:35.558 and you see somebody drowning in a lake, 22:35.558 --> 22:38.078 and at very little cost to yourself, 22:38.078 --> 22:40.368 you could pull them out, but you say, 22:40.368 --> 22:43.908 "I'm late for class, never mind. 22:43.910 --> 22:47.370 I didn't push her in the lake." 22:47.368 --> 22:52.048 In many states we have good Samaritan laws, 22:52.048 --> 22:55.158 which if it really was at no trivial cost to yourself you 22:55.156 --> 22:59.396 could have done that, you can be prosecuted for 22:59.404 --> 23:04.894 failing to assist somebody in need of your help, 23:04.885 --> 23:05.815 okay? 23:05.818 --> 23:12.218 So that's obviously a very capacious definition of harm. 23:12.220 --> 23:17.050 I mean, after all, the fact that we're all sitting 23:17.046 --> 23:22.756 here rather than doing relief work in Haiti right now means 23:22.759 --> 23:27.389 presumably that some people are suffering, 23:27.390 --> 23:32.010 perhaps even dying as a result of our failure to go to Haiti 23:32.009 --> 23:32.949 right now. 23:32.950 --> 23:38.960 So once you go over this line into treating omissions to help 23:38.961 --> 23:43.571 as a form of harm, as we do with Good Samaritan 23:43.571 --> 23:47.081 laws, where will it end, right? 23:47.078 --> 23:51.518 So you can see from this that if you wanted one definition of 23:51.521 --> 23:55.741 harm to cover all situations that obviously isn't going to 23:55.742 --> 23:57.152 make any sense. 23:57.150 --> 24:00.690 Nonetheless, if you think about this 24:00.694 --> 24:06.774 continuum, where you fall on it has huge implications for how 24:06.771 --> 24:10.521 you're going to run your society. 24:10.519 --> 24:17.109 And more interestingly than that, I've given you a kind of 24:17.109 --> 24:22.199 static picture now, but these things actually 24:22.198 --> 24:23.468 change. 24:23.470 --> 24:28.690 Think about the drug thalidomide. 24:28.690 --> 24:30.840 Who knows what happened with thalidomide? 24:30.838 --> 24:32.568 Yeah, what happened with thalidomide? 24:32.569 --> 24:36.049 24:36.048 --> 24:37.798 Student: It came out in the late '50s. 24:37.798 --> 24:41.538 It was used to treat morning sickness and it turns out that 24:41.538 --> 24:45.338 the racemate of the drug causes teratoma in children born to 24:45.343 --> 24:47.023 women taking the drug. 24:47.019 --> 24:50.819 And so it was basically a failure of the drug industry to 24:50.819 --> 24:54.889 look into the effects of the different structures of drugs in 24:54.893 --> 24:55.643 humans. 24:55.640 --> 24:56.490 Prof: Correct. 24:56.490 --> 24:58.930 That's a very good summary. 24:58.930 --> 25:02.430 And what's interesting about thalidomide from our point of 25:02.425 --> 25:04.875 view is that in developing this drug, 25:04.880 --> 25:07.840 which was given for morning sickness, 25:07.838 --> 25:12.708 the pharmaceutical companies didn't cut any corners. 25:12.710 --> 25:18.210 They did all the clinical trails correctly. 25:18.210 --> 25:20.350 They got the FDA approvals. 25:20.349 --> 25:22.439 Everything was done by the book. 25:22.440 --> 25:30.480 Nothing illicit was done, and at that time the general 25:30.479 --> 25:38.519 standard in tort liability--who knows what tort means, 25:38.519 --> 25:40.339 t-o-r-t? 25:40.338 --> 25:42.578 Not t-o-r-t-e, we're not talking about 25:42.579 --> 25:43.609 chocolate cake. 25:43.609 --> 25:47.299 What's a tort? 25:47.299 --> 25:49.629 Nobody knows what a tort is? 25:49.630 --> 25:51.690 Tort just means harm, right? 25:51.690 --> 25:58.440 So the general standard for tort liability was negligence, 25:58.436 --> 26:01.866 and they weren't negligent. 26:01.869 --> 26:03.719 They did it by the book. 26:03.720 --> 26:07.970 They got all of the approvals. 26:07.970 --> 26:09.590 They got the clinical trials. 26:09.589 --> 26:12.589 The FDA approved the drug. 26:12.588 --> 26:18.058 And it's a famous case because it was an instrument by which 26:18.057 --> 26:22.597 the courts decided to say, "You know what? 26:22.599 --> 26:25.919 We don't care. 26:25.920 --> 26:27.240 We don't care." 26:27.240 --> 26:30.950 They moved from negligence to strict liability. 26:30.950 --> 26:34.210 "We don't care that you did it all right. 26:34.210 --> 26:38.690 The fact is, there are all of these children 26:38.689 --> 26:44.939 who were born with missing limbs, and you're going to pay. 26:44.940 --> 26:47.360 You, the drug companies, are going to pay. 26:47.358 --> 26:49.608 We're going to hold you strictly liable. 26:49.608 --> 26:53.518 We're going to treat it like (the example I gave before) 26:53.516 --> 26:55.146 statutory rape." 26:55.150 --> 26:57.090 Now, you might say, "Well, why? 26:57.089 --> 26:59.269 Why would you do that?" 26:59.269 --> 27:05.439 And interestingly the move in American tort law from 27:05.438 --> 27:11.558 negligence to strict liability, those of you who go on from 27:11.560 --> 27:16.180 here to the Yale Law School will learn all about it because the 27:16.180 --> 27:20.280 intellectual giant of the move from negligence to strict 27:20.278 --> 27:24.948 liability was Guido Calabresi, long time Dean of the Yale Law 27:24.952 --> 27:27.582 School, and now a Federal Judge on the 27:27.584 --> 27:28.674 Second Circuit. 27:28.670 --> 27:32.690 He wrote a book called The Costs of Accidents. 27:32.690 --> 27:36.930 And the main argument of The Costs of Accidents was--this 27:36.928 --> 27:39.348 was actually about auto accidents. 27:39.348 --> 27:47.538 It was essentially utilitarian in that Calabresi looked at what 27:47.538 --> 27:53.878 had already stated in New Jersey at that time. 27:53.880 --> 27:58.420 If people rear-end one another in cars you can say, 27:58.423 --> 28:02.333 "Well, who was negligent here?" 28:02.328 --> 28:05.028 Was it the driver in front, or was it the driver in the 28:05.028 --> 28:05.378 back? 28:05.380 --> 28:06.880 If it was the driver in the front, 28:06.880 --> 28:09.590 why, "Oh, well, he stopped too 28:09.586 --> 28:12.846 quickly," or something like that, 28:12.848 --> 28:14.848 or the driver at the back says, "Well, 28:14.848 --> 28:17.898 my brakes weren't working or the driver at the front's brake 28:17.903 --> 28:19.513 lights weren't working." 28:19.509 --> 28:22.199 You have an argument. 28:22.200 --> 28:24.580 And they have their lawyer, and you have your lawyer, 28:24.580 --> 28:26.870 and you duke it out, and somebody wins and somebody 28:26.871 --> 28:27.331 loses. 28:27.328 --> 28:29.858 New Jersey said, "It's not worth it. 28:29.859 --> 28:33.029 It's a waste of court time. 28:33.029 --> 28:35.309 It's a waste of everybody's time. 28:35.308 --> 28:40.868 So we're going to make the law which says, in a rear-ending 28:40.867 --> 28:46.137 situation, the driver at the back pays, always." 28:46.140 --> 28:48.300 Kind of rough justice, sometimes maybe the brake 28:48.303 --> 28:50.563 lights on the front car really weren't working. 28:50.559 --> 28:52.129 "We don't care. 28:52.130 --> 28:55.650 It's just not worth the State of New Jersey's time to invest 28:55.654 --> 28:59.124 the institutional resources and all the rest of it to allow 28:59.118 --> 29:01.268 people to litigate these things. 29:01.269 --> 29:02.969 It just costs too much. 29:02.970 --> 29:04.470 It's not worth it." 29:04.470 --> 29:08.710 So Guido Calabresi came up with a little algorithm in which he 29:08.712 --> 29:11.522 said, "The standard should be to 29:11.521 --> 29:15.301 minimize the cost of accidents plus the cost of their 29:15.298 --> 29:16.678 avoidance." 29:16.680 --> 29:20.650 So you figure out the cost of all the rear-ending, 29:20.651 --> 29:21.301 right? 29:21.298 --> 29:24.948 And then you figure out, well, if we allow people to sue 29:24.950 --> 29:28.270 what's the cost of avoiding accidents that way, 29:28.269 --> 29:32.009 whereas if we don't allow them to sue for negligence, 29:32.009 --> 29:33.529 what's the cost that way? 29:33.529 --> 29:34.529 It's cheaper. 29:34.529 --> 29:36.009 It's more efficient. 29:36.009 --> 29:38.669 And anyway, there are probably some good side benefits; 29:38.670 --> 29:42.710 it gives the person at the back the right incentive to keep a 29:42.705 --> 29:44.855 distance they can stop, right? 29:44.858 --> 29:47.798 So we make a utilitarian judgment. 29:47.798 --> 29:51.708 The game's not worth the candle for negligence. 29:51.710 --> 29:56.500 That's one defense of it. 29:56.500 --> 30:00.060 Coming back to the thalidomide, minimize the cost of accidents 30:00.057 --> 30:02.037 and the cost of their avoidance. 30:02.039 --> 30:04.589 What do we want as a society? 30:04.588 --> 30:08.478 We want the drug companies to have the incentive to go the 30:08.481 --> 30:12.441 extra mile to do even more research than they have to do as 30:12.442 --> 30:16.292 required by the FDA, to buy the insurance because 30:16.288 --> 30:19.038 perhaps they're the deepest pocket. 30:19.038 --> 30:23.658 They have the resources to do the research and to buy the 30:23.660 --> 30:24.650 insurance. 30:24.650 --> 30:28.740 If you're a pregnant woman thinking about taking a morning 30:28.744 --> 30:33.204 sickness pill or not taking it, you don't have the resources to 30:33.199 --> 30:34.779 do extra research. 30:34.779 --> 30:43.199 So we put the burden on the party who can most cheaply avoid 30:43.204 --> 30:43.924 it. 30:43.920 --> 30:46.590 Now, the drug companies are saying, "That's outrageous. 30:46.589 --> 30:47.969 It's totally outrageous. 30:47.970 --> 30:51.070 We didn't do anything wrong and you're punishing us." 30:51.069 --> 30:53.159 Strict liability. 30:53.160 --> 30:56.080 So we moved, and the example of thalidomide 30:56.082 --> 30:58.312 is just the tip of an iceberg. 30:58.308 --> 31:02.298 In the whole of tort law there's been this thirty or 31:02.300 --> 31:06.450 forty-year move from a negligence standard to a strict 31:06.449 --> 31:08.249 liability standard. 31:08.250 --> 31:12.430 And a fascinating intellectual debate between Calabresi, 31:12.430 --> 31:14.610 who's the champion of strict liability, 31:14.608 --> 31:17.398 and Richard Posner, who you probably have read some 31:17.396 --> 31:21.136 of his books, a Judge in the Chicago Circuit 31:21.144 --> 31:25.144 who defends negligence as more efficient. 31:25.140 --> 31:28.230 So it's a debate between utilitarians in that sense. 31:28.230 --> 31:32.500 And if we had more time I'd have you read some of that 31:32.503 --> 31:33.233 debate. 31:33.230 --> 31:39.000 You might be convinced at the end of it that Posner wins 31:38.998 --> 31:43.818 intellectually, but as a matter of the politics 31:43.823 --> 31:46.553 of it, Calabresi wins. 31:46.548 --> 31:52.078 That is to say American tort law has moved, 31:52.075 --> 31:58.125 since the 1950s, away from negligence to strict 31:58.127 --> 31:59.967 liability. 31:59.970 --> 32:03.750 Let's think of another example. 32:03.750 --> 32:09.470 In the 1950s in America, a husband could not be 32:09.472 --> 32:13.582 prosecuted for raping his wife. 32:13.579 --> 32:17.239 There was no such crime. 32:17.240 --> 32:20.560 There was, in other words, a conclusive common law 32:20.563 --> 32:23.483 presumption that there was no such crime. 32:23.480 --> 32:25.770 Now you might say, why? 32:25.769 --> 32:27.919 Well, there's a historical answer. 32:27.920 --> 32:33.440 It went back to the suspension of the legal identity of the 32:33.443 --> 32:35.733 woman during marriage. 32:35.730 --> 32:38.810 Essentially, it goes back to the old 32:38.807 --> 32:40.477 patriarchal laws. 32:40.480 --> 32:45.150 The daughter was more or less the father's property and then 32:45.153 --> 32:49.433 he gave his property to the son-in-law as the husband's 32:49.430 --> 32:50.460 property. 32:50.460 --> 32:54.920 So the woman didn't have a legal identity as a person 32:54.922 --> 32:58.362 during marriage, and this is why she lost 32:58.355 --> 33:01.355 control of her property, right? 33:01.358 --> 33:05.348 And that was restored, ultimately, by the Married 33:05.351 --> 33:09.681 Women's Property Acts that recreated women's property 33:09.675 --> 33:12.445 rights over, say, inherited wealth or 33:12.452 --> 33:13.422 whatever it was. 33:13.420 --> 33:16.840 It didn't automatically become her husband's property. 33:16.838 --> 33:22.208 But there was this hangover from the nineteenth century that 33:22.212 --> 33:26.222 a woman couldn't be raped by her husband, 33:26.220 --> 33:30.780 and not only rape but other things like assault. 33:30.778 --> 33:34.448 So in other words, you could walk up to a woman 33:34.453 --> 33:37.733 you were not married to on the street, 33:37.730 --> 33:41.040 and punch her in the face, and get arrested for that, 33:41.038 --> 33:45.458 and convicted of assault, but if you did it to your wife 33:45.461 --> 33:47.151 there was no crime. 33:47.150 --> 33:53.490 So then we have the women's movement. 33:53.490 --> 33:57.390 We have a lot of feminist pressure and organization, 33:57.390 --> 34:02.920 and so we now have gone to a world in which marital rape is a 34:02.923 --> 34:07.993 felony in about forty-five of the states and the federal 34:07.994 --> 34:09.014 system. 34:09.010 --> 34:12.140 So it's gone from having a conclusive common law 34:12.144 --> 34:15.394 presumption against it, to making it a felony, 34:15.393 --> 34:18.493 and all the other things have gone as well, 34:18.489 --> 34:22.009 so inter-spousal tort immunity is gone. 34:22.010 --> 34:25.870 You can be prosecuted for assaulting--in other words, 34:25.871 --> 34:30.251 marriage is no longer a bar to things that would be criminal 34:30.253 --> 34:31.743 actions outside. 34:31.739 --> 34:35.659 So we've had a huge change in the law there from one 34:35.664 --> 34:40.134 definition of what counts as a relevant harm to a different 34:40.128 --> 34:43.898 definition of what counts as a relevant harm. 34:43.900 --> 34:46.930 In the first case it was an argument about efficiency, 34:46.927 --> 34:49.267 and the second is a political movement. 34:49.268 --> 34:53.918 The women's movement had this enormous impact on the 34:53.920 --> 34:59.030 redefinition of what sorts of harms the state should take 34:59.027 --> 35:01.397 seriously in marriage. 35:01.400 --> 35:04.380 Let me give you a third example. 35:04.380 --> 35:10.190 35:10.190 --> 35:14.240 If you go into employment law, or housing law, 35:14.239 --> 35:22.259 or education, the American courts have, 35:22.260 --> 35:26.090 for many decades, at least since Brown versus 35:26.090 --> 35:30.970 Board of Education was handed down by a unanimous Supreme 35:30.965 --> 35:34.475 Court in 1954, they've been concerned with 35:34.480 --> 35:37.030 trying to get rid of discrimination. 35:37.030 --> 35:42.820 Discrimination's a kind of harm, right? 35:42.820 --> 35:48.240 So the question is; what do you have to show? 35:48.239 --> 35:52.499 What do you have to show to convince the court that you've 35:52.503 --> 35:55.573 been harmed and there should be remedy? 35:55.570 --> 35:57.410 What do you have to show? 35:57.409 --> 36:05.799 And during the Warren Court it was somewhat like strict 36:05.795 --> 36:07.655 liability. 36:07.659 --> 36:10.999 The Warren Court, Earl Warren was appointed by 36:10.998 --> 36:13.298 President Eisenhower in 1953. 36:13.300 --> 36:16.300 Eisenhower thought he was appointing a conservative 36:16.300 --> 36:18.760 Justice, but he turned out to be wrong. 36:18.760 --> 36:22.850 Earl Warren was, perhaps, the most liberal Chief 36:22.846 --> 36:25.886 Justice of the twentieth century. 36:25.889 --> 36:30.269 And the court, under his leadership, 36:30.269 --> 36:37.899 developed the idea that all you had to do was show there was a 36:37.904 --> 36:42.664 pattern of discriminatory effects. 36:42.659 --> 36:47.499 You didn't have to show that anybody intended to discriminate 36:47.498 --> 36:48.868 against anyone. 36:48.869 --> 36:52.589 So in the education area, separate but equal, 36:52.590 --> 36:55.890 the court said is inherently unequal. 36:55.889 --> 37:00.379 We're not saying that the White southerners are necessarily 37:00.375 --> 37:03.775 prejudiced against Blacks, many of them were, 37:03.777 --> 37:07.487 but we're not going to get to that question. 37:07.489 --> 37:13.139 We're just saying separate but equal is inherently impossible. 37:13.139 --> 37:14.119 It's an oxymoron. 37:14.119 --> 37:17.169 You can't have it, and we're saying that without 37:17.170 --> 37:21.200 reference to the intentions of school administrators or anybody 37:21.195 --> 37:21.775 else. 37:21.780 --> 37:29.070 In housing patterns you do these kinds of studies like Ian 37:29.070 --> 37:36.490 Ayres and the Yale Law School here is well known for having 37:36.487 --> 37:37.637 done. 37:37.639 --> 37:45.239 When people with exactly the same objective characteristics, 37:45.239 --> 37:48.239 same income, same employment history and so 37:48.237 --> 37:52.657 on going for a mortgage it turns out that African Americans are 37:52.661 --> 37:57.301 denied mortgages at a higher rate than non-African Americans. 37:57.300 --> 38:01.130 You don't have to show that that mortgage officer was a 38:01.126 --> 38:03.036 racist, or was intending. 38:03.039 --> 38:06.729 You produce the statistics, you show people with these 38:06.726 --> 38:10.896 objective characteristics who are African American get denied 38:10.900 --> 38:14.380 and those with the same characteristics who are not 38:14.378 --> 38:17.228 African Americans don't get denied. 38:17.230 --> 38:20.930 It's a patter of discriminatory effects. 38:20.929 --> 38:24.739 We don't have to get into something like mens rea 38:24.742 --> 38:29.042 or whatever is going on in the bank mortgage officer's head. 38:29.039 --> 38:33.089 So that was the standard also in employment discrimination and 38:33.092 --> 38:37.142 many other areas of the law of discrimination under the Warren 38:37.144 --> 38:37.814 Court. 38:37.809 --> 38:42.429 All you had to show was a pattern of discriminatory 38:42.434 --> 38:43.364 effects. 38:43.360 --> 38:47.530 But the Warren Court was gradually replaced first by the 38:47.534 --> 38:50.164 Burger Court, then the Rehnquist Court, 38:50.155 --> 38:53.975 and now the Roberts Court, and in that conservative 38:53.981 --> 39:00.081 evolution discrimination law has gone this way on the continuum. 39:00.079 --> 39:05.099 Now you can't get a remedy unless you can show the 39:05.101 --> 39:11.661 intention to discriminate on the part of some public official. 39:11.659 --> 39:17.049 So let's say in zoning ordinances, 39:17.050 --> 39:21.360 you've got to show that some public official actually tried 39:21.364 --> 39:25.614 to do the zoning in such a way as to exclude Blacks from a 39:25.605 --> 39:31.545 certain neighborhood, let's say, before you can get a 39:31.545 --> 39:32.575 remedy. 39:32.579 --> 39:34.969 So in employment, and housing, 39:34.974 --> 39:38.204 and education, and all of these areas of 39:38.195 --> 39:42.485 discrimination we've gone the other way as a society, 39:42.489 --> 39:43.479 right? 39:43.480 --> 39:48.890 We've gone from a very capacious standard which would 39:48.891 --> 39:54.411 allow a remedy just from the objective indicators, 39:54.409 --> 39:56.909 the patterns of discriminatory effects, 39:56.909 --> 40:00.899 now we treat it more like the criminal law. 40:00.900 --> 40:03.300 We say, "Unless you can show, 40:03.300 --> 40:08.780 you can establish in court that there was some particular person 40:08.775 --> 40:14.245 in that bank denying mortgages who intended to discriminate, 40:14.250 --> 40:15.960 no remedy." 40:15.960 --> 40:21.920 So it's much harder, of course, to get remedies. 40:21.920 --> 40:26.200 40:26.199 --> 40:28.779 So those are three examples. 40:28.780 --> 40:34.380 Those are three examples, the thalidomide, 40:34.380 --> 40:38.150 the marital rape, and the discrimination, 40:38.150 --> 40:43.650 where you can see that there's enormous flux in our society as 40:43.646 --> 40:46.886 to what counts as a relevant harm. 40:46.889 --> 40:51.629 And if we had time, I strongly suspect if we had 40:51.634 --> 40:57.694 time to have a debate in this room on those three topics it's 40:57.690 --> 41:03.950 not like we would all agree as to whether in discrimination law 41:03.949 --> 41:08.889 it should be patented as discriminatory effects or 41:08.894 --> 41:10.414 intent. 41:10.409 --> 41:13.819 We'd have differences of opinion about that that would 41:13.822 --> 41:17.302 stem from our assumptions about the appropriate role of 41:17.298 --> 41:20.698 government, how intrusive it should be and 41:20.697 --> 41:21.247 so on. 41:21.250 --> 41:26.200 Or probably there would be less disagreement today about the 41:26.195 --> 41:30.885 martial rape than there would have been in the 1950s, 41:30.889 --> 41:38.839 and I suspect intuitions would go all over the place about tort 41:38.844 --> 41:42.954 liability and the thalidomide. 41:42.949 --> 41:46.729 So what does that tell us? 41:46.730 --> 41:51.640 And this is the second reason I think it's really instructive to 41:51.644 --> 41:55.634 work through somebody like Mill even if, in the end, 41:55.625 --> 41:58.195 Mill doesn't have the answer. 41:58.199 --> 42:05.669 I think one of the lessons of this course, and you can see it 42:05.670 --> 42:12.400 here very dramatically, is that it is impossible to get 42:12.396 --> 42:16.626 rid of political disagreement. 42:16.630 --> 42:22.260 It is impossible to reduce political choices to scientific 42:22.255 --> 42:24.915 choices all the way down. 42:24.920 --> 42:29.060 Science can play important roles in making political 42:29.056 --> 42:32.836 choices, but it can't make them for us, 42:32.842 --> 42:38.532 so that one of the big goals of the Enlightenment to come up 42:38.532 --> 42:44.132 with scientific principles of politics is never going to be 42:44.125 --> 42:46.435 perfectly realized. 42:46.440 --> 42:49.280 That doesn't mean it can't be partially realized, 42:49.275 --> 42:52.105 but it's never going to be perfectly realized. 42:52.110 --> 42:55.530 You can't wring the politics out of politics. 42:55.530 --> 42:59.180 There's no way to do it. 42:59.179 --> 43:04.869 And so you will see when we come to read Marx and he talks 43:04.867 --> 43:08.757 about his utopian communist society, 43:08.760 --> 43:14.950 one of his one-liners is that, at the end of the day when we 43:14.952 --> 43:19.362 finally have the true communist utopia, 43:19.360 --> 43:23.610 "Politics will be replaced by administration," 43:23.610 --> 43:24.230 right? 43:24.230 --> 43:26.940 That's a bumper sticker for saying we're going to wring the 43:26.938 --> 43:28.198 politics out of politics. 43:28.199 --> 43:35.109 Bentham, looking for the right objective utilitarian calculus, 43:35.112 --> 43:36.022 right? 43:36.018 --> 43:39.948 Mill wants to say, "Well, once the harm's 43:39.949 --> 43:44.049 triggered we can do the cost-benefit analysis on 43:44.054 --> 43:46.854 scientific principles." 43:46.849 --> 43:48.299 We talked about that last time. 43:48.300 --> 43:50.450 Never works. 43:50.449 --> 43:52.679 It never works all the way down. 43:52.679 --> 43:56.159 It doesn't mean to say that scientific thinking can't 43:56.157 --> 44:00.707 condition our normative choices, but you go back and think 44:00.710 --> 44:05.840 through these three examples that I've just given you these 44:05.836 --> 44:09.546 are basically normative choices, right? 44:09.550 --> 44:13.420 In the 1950s when this issue about marital rape came up, 44:13.422 --> 44:17.722 a lot of things were said that are similar to what is said now 44:17.719 --> 44:19.339 about gay marriage. 44:19.340 --> 44:23.980 People said if the state starts prosecuting husbands we're going 44:23.978 --> 44:26.628 to destroy the traditional family. 44:26.630 --> 44:31.950 And people the women's movement said, "Great! 44:31.949 --> 44:35.249 We're going to destroy this traditional family because men 44:35.248 --> 44:37.388 shouldn't be allowed to rape women. 44:37.389 --> 44:39.579 At least in this respect we won it," right? 44:39.579 --> 44:44.999 So traditional values only takes you so far because the 44:44.998 --> 44:49.898 harm principle is by definition, a critical principle for 44:49.898 --> 44:52.388 looking at traditional values and saying, 44:52.389 --> 44:54.539 "How much should we cater to them, 44:54.539 --> 44:56.679 how much not," right? 44:56.679 --> 45:01.459 So these are political choices. 45:01.460 --> 45:07.430 The choice about thalidomide has huge distributive 45:07.431 --> 45:11.211 consequences, huge, enormous. 45:11.210 --> 45:14.300 You're going to say to pharmaceutical companies, 45:14.300 --> 45:17.930 "You're going to be liable from now on for the harmful 45:17.934 --> 45:21.574 effects of your drugs regardless of whether you got the FDA 45:21.568 --> 45:22.758 approval." 45:22.760 --> 45:29.300 It's a huge burden to put on them. 45:29.300 --> 45:31.330 Notice what we could say. 45:31.329 --> 45:34.409 We could say, "No, (as a famous 45:34.411 --> 45:39.871 libertarian Judge Learned Hand said) in society losses must lie 45:39.869 --> 45:42.159 where they fall." 45:42.159 --> 45:43.669 What does that mean? 45:43.670 --> 45:47.670 It basically means the women who had the thalidomide children 45:47.670 --> 45:51.470 and the children themselves must internalize the loss, 45:51.469 --> 45:55.609 or we could say, "We'll socialize the 45:55.606 --> 45:56.916 risk." 45:56.920 --> 46:02.450 We'll say, "In these kinds of situations when there was no 46:02.452 --> 46:06.472 wrongdoing in the sense of cutting corners; 46:06.469 --> 46:10.619 the government will bail them out." 46:10.619 --> 46:15.819 Just like we did after 9/11, we created this huge fund and 46:15.820 --> 46:20.840 paid compensation to the relatives of people who died in 46:20.838 --> 46:21.658 9/11. 46:21.659 --> 46:25.949 Many people die all the time in disasters where we don't do 46:25.954 --> 46:27.514 that, but we could. 46:27.510 --> 46:32.780 We could have massive social insurance for unexpected harms. 46:32.780 --> 46:38.350 So the choice to say, "Losses must lie where 46:38.349 --> 46:42.759 they fall," with Learned Hand, 46:42.760 --> 46:45.630 or that we should socialize it by saying, 46:45.630 --> 46:51.740 "Well, if you're born with a physical deformity, 46:51.739 --> 46:54.399 obviously it's through no fault of your own, 46:54.400 --> 46:57.270 but really you can't blame the manufacturer of thalidomide 46:57.266 --> 46:59.366 either, so the state will pick it up. 46:59.369 --> 47:00.869 We as a society will do it." 47:00.869 --> 47:02.419 That's a different choice. 47:02.420 --> 47:05.370 Or if you say, "No, we're going to make 47:05.371 --> 47:09.011 thalidomide--the manufacturer internalizes this," 47:09.010 --> 47:11.070 that's a different choice. 47:11.070 --> 47:14.200 My point here is it's always a choice. 47:14.199 --> 47:19.229 It's always a choice. 47:19.230 --> 47:22.240 We'll come to read a libertarian called Robert Nozick 47:22.239 --> 47:26.059 later in the course, and one of his one-liners is 47:26.061 --> 47:31.231 that, "The fundamental question of political theory is 47:31.226 --> 47:35.496 whether or not there should be a state." 47:35.500 --> 47:38.720 But we'll see that that's a bit like saying, 47:38.719 --> 47:43.559 "The fundamental question of dental theory is whether or 47:43.559 --> 47:48.239 not there should be teeth," because in fact everything 47:48.237 --> 47:50.817 involves collective choices. 47:50.820 --> 47:54.480 Even the collective choice to let the loss lie where it falls, 47:54.480 --> 47:56.700 that is itself a collective choice. 47:56.699 --> 47:59.769 So you can't wring the politics out of politics. 47:59.768 --> 48:03.718 And at least one goal of the Enlightenment, 48:03.719 --> 48:06.489 we're going to see, there's this idea of replacing 48:06.487 --> 48:09.897 politics with science, or in Marx's formulation, 48:09.896 --> 48:13.726 of politics being displaced by administration, 48:13.730 --> 48:16.390 can never be perfectly realized. 48:16.389 --> 48:20.989 And that's an important insight we get from thinking about 48:20.990 --> 48:24.220 trying to apply Mill's harm principle. 48:24.219 --> 48:26.739 Okay, see you on Monday. 48:26.739 --> 48:31.999