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Volume 3 Number 3 January 21, 2005 |
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When good rules go bad Does the fact that some innocent people are punished
argue against rule-based morality? What do we do when we encounter rules that don't seem to make any sense? Do we make exceptions, or do we follow the rule and simply live with the seemingly unfortunate results, secure in the knowledge that the overall results will bring about the greatest amount of good? Reader Andy Cook raised this issue in an online discussion, telling the story of a friend who ran afoul of what can best be termed as a "zero tolerance law" about driving under the influence and, although innocent, is now paying the price. Even though he wasn't driving, and had decided to sleep in the car, because the key was in the ignition, the friend was considered to be "driving." This rule apparently was enacted to deal with those cases in which a guilty person turned the car off before the police arrived. Andy followed up in a subsequent post and asked the following: "So, if I understand you correctly, the idea would be that, assuming that the rule is reasonably defined, and does produce the greatest good over all cases, then it is expected to simply live with the unfortunate exceptions. "I'm not meaning to challenge the rightness of that, just want to feed it back to see if I have it right. "It is very tempting to want to justify case-by-case exceptions, and to say that it would be proper to ignore a rule when it doesn't make sense. "But, then (it seems to me), you don't have a rule at all, and everything is ultimately case-by-case, leading to inefficiency/ineffectiveness, which is the reason for the rule to begin with. "Personally knowing about specific unfortunate exceptions can be distressing, but I think you're saying that if you are going to be a rule utilitarian, that you mourn the exceptions (to what ever degree), and reap satisfaction with the over all good." My answer, "You've pretty much got it," was short and, I admit, bordered on flippant, but that pretty much is how rule-based behavior works. If you start making exceptions to every rule, then it's not long before you're in chaos. However, it's more complicated than that. Andy touched on something in his first sentence, when he said "assuming that the rule is reasonably defined, and does produce the greatest good over all cases." Those are pretty big assumptions, and really bring up to separate issues. My experience has been that rules, especially those of the type encountered by Andy's friend, are usually made to benefit the rule-maker. The rule-makers don't want the hassle of deciding difficult cases, so they make one-size-fits-all rules. That way they don't have to think or work too hard in enforcing them. And like one-size-fits-all clothes, such rules are too wide in some cases and too narrow in others. Consequently, we find many rules -- and the rule that snagged Andy's friend may be one of them -- are clumsily written, and end up punishing innocent people along with the guilty. So, it's really necessary to first determine whether the rule is "reasonably defined." Too often, it's not. From a rule utilitarian point of view, the way to tell whether the rule is, in fact, reasonably defined is to see whether it brings about the greatest amount of good in the population for which the rule has been set. However, one of the key issues in utilitarianism is how we define "good." Utilitarians have been arguing about this for decades, so I don't propose to answer the question here, but in the very limited case that this driver's experience brings up, we can address a central question: How much relative value do we assign to protecting the innocent as opposed to punishing the guilty. Does punishing every guilty person bring about the greater good, or is that greater good accomplished by trying to ensure that no innocent person is wrongly punished? If our rule is weighted to the side of protecting the innocent, then we will see some guilty people escape punishment. Is that a good? If we weight it in favor of making sure every guilty person is punished, then we will see innocent people swept up in the rigid enforcement of the rule. Is that a good? There is no perfect rule that will punish all the guilty and protect all the innocent. If you look back to the US Constitution, that quaint document that used to govern the country, you'll see that when it was written its goal was to protect the rights of the innocent, even if it meant a few -- or maybe many -- guilty people would escape. The provisions against unreasonable search and seizure, self-incrimination, government spying on citizens, double jeopardy were all meant to favor the innocent, as were such things as guarantees of speedy trials, the right to face your accusers, and so on. So, at the time the Constitution was written, by people who had first-hand knowledge of different approaches, the feeling was that the greater good of the country was served by weighting the rules in favor of the innocent. Over the last few decades -- I'm not sure how far it goes back -- we've seen a gradual change and in the last few years, a more abrupt one. We seem to have become more punitive in our group thinking, and many now see punishing every guilty person as a greater good, outweighing the protection of the innocent. We've seen a succession of developments such as mandatory sentencing, which takes discretion out of the hands of judges, meaning that people like Andy's friend suffer along with the guilty. We've seen zero-tolerance rules that result in what everyone agrees are ridiculous outcomes. Yet, just like the weather, everyone talks about them, but no one does anything about them. When I was teaching college classes in the '90s, I could count on at least one student each semester delivering herself (I taught mostly women) of the opinion that we were too soft on criminals, the student would parrot the AM talk-radio babble that "criminals have too many rights." In a way, it was a good thing, mostly because it gave me the opportunity to explain to them that it wasn't "criminals" who had the rights, but "accused criminals," and that were they or any member of their family wrongfully accused of a crime, they would be extremely glad for those rights they were now suggesting be thrown out. Since 2001, when "everything changed," or so we're told, we've seen a more headlong rush, with many of the Constitutional protections for the innocent brusquely swept aside, until they seem no longer operative. So, we seem to have come to place where we assign greater good to punishment than to justice. One politician a few years ago, arguing in favor of the ritual killing of criminals by the state, said as much. I can't remember who he was, but I remember his argument clearly. We need to make sure we kill all these people, he said, and if a bunch of innocent people are killed as well, we're just going to have to learn to live with that. The bottom line is that I don't think the concept of rule utilitarianism is faulty. I still think it's reasonable to try to live by a set of rules, which overall bring about a greater amount of good -- even if they don't work in every case. The key issues are whether the rule is properly constructed -- many aren't -- and whether we agree on what it is that brings about the greater amount of good. If you think that the greater good comes from ensuring the rights of innocent people then your rules would reflect that, and some guilty people might slip through the loopholes. If, on the other hand, you place a greater emphasis on capturing and punishing every guilty person, no matter what, then innocent people will suffer. The question is whether -- like the unnamed politician I mentioned above -- you're willing to live with that. Are you willing to live with the idea of innocent people being punished in pursuit of the goal of capturing and punishing every guilty person. If not, then where do we set the balance. Would you be so willing to let a guilty person go free if you or a family members were the victim of the crime. If you are willing to live with it, are you still willing to do so if you or a family member is the innocent who is being wrongly punished? You can discuss it in the ongoing discussion on "Are we overethicized?" |
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© Copyright 2005 Carlton Vogt |