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Why the Law Is So Perverse
By LEO KATZ
THE UNIVERSITY OF CHICAGO PRESS Copyright © 2011 The University of Chicago
All right reserved.
Chapter One Things We Can't Consent To, Though No One Knows Why
Why Do We Forbid Voluntary Torture?
What is wrong with torturing a prisoner when he consents to it to shorten his sentence? This is the problem with which I began this book and to which I now want to return. Volenti non fit iniuria—consent cures the wrong—is a hallowed maxim of the law. But the prisoner's consent to torture does not cure the wrong. Why not?
To be sure, consent does not always cure the wrong. It does not do so when coercion or deception are involved or the consenting person is too incompetent to know what he is doing, or if what the consenting parties are up to affects others—third parties, as the law likes to call them—who never gave their consent. (If two people want to conduct a drag race on a public highway, that obviously that can't be up to just them.) These are long-standing, well-established, almost self-evident limitations on the validity of consent. It makes sense that consent doesn't work if the consenting person didn't "really" consent—which he did not do if he was coerced, deceived, incompetent, or, like the third-party bystander in a drag race, was never even asked. The ultimate reason for these limitations presumably is that consent is worth respecting only when it gives rise to a win-win transaction—the consenting parties benefit and others aren't injured—which isn't true when coercion, deception, incompetence, or risk to a third party are involved.
The problem is that our prisoner does not come within any of these well-established limitations on consent. He obviously is not deceived, incompetent, or consenting to something that might injure a third party. Is he being coerced? Yes, in the sense that he is being pressured by the situation, as it were, into volunteering for torture. But that's not really the kind of coercion that bothers us, because it is no different than being "coerced" into buying a car by the need to get around. No one is threatening to do something wrongful to him if he doesn't let himself be tortured. And so the question remains: what is wrong with letting him volunteer for torture?
Over the years, a number of more controversial suggestions have been made about when consent should not be allowed to cure a wrong. Could these help with our torture case? The least controversial of these suggestions is paternalism, which could be summed up as saying: "When someone is doing something harmful to himself, we are entitled to stop him whatever his ostensible wishes." Sometimes this is justified by saying that, although not actually deceived, he lacks the insight required to see that he is harming himself. Using drugs and playing Russian roulette often are put into this category. Sometimes paternalists take an even more radical stance: when someone is harming himself, they say, then even if he fully understands what he is doing, that is an inherent wrong we are entitled to stop. As one would expect, this more extreme kind of paternalism has fewer defenders than the first.
Does this help with our torture case? Not much. It is hard to argue that the prisoner is in any way lacking in insight when he makes such a deal. He seems to be making a perfectly enlightened choice. Is it possible to argue that it is simply wrong for someone to be tortured, regardless of how he feels about it? This kind of paternalism comes close to being argument by fiat. True, sometimes that might be enough. If someone were simply agreeing to have himself tortured for the masochistic pleasure it affords him, in other words, for the sake of a benefit most of us don't think a benefit at all, we might feel all right in saying, "This is an inherent wrong, however much you like it, and we won't let you do it." But in our torture case someone is making a choice we could easily see ourselves making: some torture in exchange for no imprisonment really might be a benefit (depending on the amounts involved of course); in fact it almost surely is. So how can we pronounce it to be inherently wrong?
Two more suggestions are worth considering, but before we do, there is something I ought to clarify. When I say that consent does or does not count, I am speaking quite loosely. So far that hasn't mattered, but it is about to. There are actually different ways in which consent can count, and sometimes one needs to distinguish between them. When I asked whether the prisoner's consent in my torture case counts, I was simply asking whether the person who tortures him would still be guilty of a wrong if he proceeded to torture him. But there is a related question one might ask. Suppose the prisoner says yes and we release him on condition that he come back a week later to receive his torture-punishment. The week passes, and when he comes back he says he has changed his mind. He would rather go back to jail than be tortured. Does his previous consent bind him? Can we force him to follow through? Can we ask him to pay damages for not following through? In other words, does his consent only count to cure the wrong, or does it also create a binding contract? Often we won't have to distinguish between these two ways of counting, but sometimes we will.
Let's consider, then, a further ground sometimes offered for disregarding consent. Some people have said that consent shouldn't count—it shouldn't cure and it shouldn't bind—if the consenting party is being exploited. What would be an example of that? Think about the survivors of a shipwreck who encounter a passing boat that is willing to take them on board, but only if they promise to give the rescuers all of their life savings. This is very much a win-win transaction. The survivors are neither coerced nor deceived nor incompetent; they are making a perfectly sensible decision to give up their wealth in return for their lives. Still, many people would condemn this bargain as exploitative, refuse to enforce it, and maybe even punish the rescuers for making it. What exactly makes the bargain exploitative? The most persuasive suggestion I have heard, offered by the philosopher Alan Wertheimer, is that the rescuers are charging more than the "market price" for the rescue. What Wertheimer means is that the rescuers are charging a higher price than they could charge if some other rescue ships had been in the vicinity as well. In other words, it is not wrong for the rescuers to charge something for the rescue; what makes it exploitative is that they are charging too much. They are taking advantage of their uniquely advantageous position in relation to the victims' uniquely vulnerable position. Unfortunately, it is hard to see this kind of exploitation in the situation of our prisoner: here there is no exploiter overcharging his victim. If anything, the "victim"—the prisoner— is being undercharged, since he is offered a punishment somewhat lighter than the one he deserved.
There is one last reason I should mention why consent is sometimes not given effect: the so-called commodification problem. Many people feel that certain things should never be bought or sold: kidneys, corneas, sex, and babies, for instance. Such things, they feel, just don't belong in the world of commerce. They can be given away but not traded. They shouldn't be treated as commodities. Legal scholar Margaret Radin explains why. Look at what would happen, she says, if childless couples could pay willing birth parents to give up their baby. "If a free-market baby industry were to come into being," she writes, "with all of its accompanying paraphernalia, how could any of us, even those who did not produce infants for sale, avoid measuring the dollar value of our children? How could our children avoid being preoccupied with measuring their own dollar value? This measurement makes our discourse about ourselves (when we are children) and about our children (when we are parents) like our discourse about cars." Her point is an interesting one, but it does not help with our torture case. There is no conventional buying or selling going on here of the kind that might make us think of prisoners as selling their bodies like a commodity.
Is voluntary torture perhaps sui generis—so singular and oddball as not to be worth worrying about? No, it is not sui generis. There are many more cases like it, as we shall see in the next section—cases where we strongly feel that consent should not count but that cannot be explained on the grounds of coercion, deception, incompetence, or effects on innocent third parties (like the unwitting bystanders of a drag race). Some—but not all—of these cases might conceivably be explained by invoking paternalism, exploitation, or "commodification," but it is time I admitted that I feel very wary of those. There is a reason these categories are so controversial. Whereas the idea that consent does not count when there is coercion, deception, etc., is firmly woven into our morality, intuitively compelling, and clearly reflected in our laws, the idea that consent shouldn't count on grounds of paternalism, exploitation, or commodification is much less firmly rooted or intuitively compelling. It is an idea that has a hard time standing up to the countervailing intuition that if two people want to do something and no one else is the worse for it, we should let them. To really feel satisfied that one understands why the selling of corneas, or babies, or sex tends to be disallowed, one would like to have it explained on the basis of principles that are as firmly rooted and as intuitively compelling as those about deception and coercion. Can that be done?
Before trying to solve this problem, let me show you that it really is worth solving—by giving you examples of some of the most important categories of cases we feel as puzzled about as the torture case.
Why Is There No Specific Enforcement of Most Promises?
Every year patients who need kidney transplants die because they cannot get one. That's ironic because kidneys are in such abundant supply. Nearly everyone of us is born with two of them, even though we could do perfectly well with just one. If only a few of us donated their redundant kidneys, the shortage would end. Maybe you don't believe me when I say our second kidney is redundant. You might think that if one of your kidneys fails it would be nice to have a spare. But that's not true, because most diseases that could ruin your kidneys would ruin both at once. To be sure, there is the small matter of having to undergo major surgery.
Suppose now that on seeing that voluntary kidney donations aren't going to be forthcoming in sufficient number, someone embarks on a new scheme to solve the problem. He announces the formation of a kidney club. Members of this club, he declares, are guaranteed a kidney if they should ever need one. Becoming a member requires only one thing: that you sign a contract stipulating that when any member of the club should need a kidney, you will participate in a "kidney lottery," by which the club will randomly select a member who must then donate one of his kidneys to his needy fellow club member—and that if you are selected, that is what you will do. Would you join such a club? I know I would. I am guaranteed that I will not die for lack of an available kidney. In return I run the small risk of having to donate one of my own, which will be onerous, but not inordinately so. And if you are rational, you will feel the same way.
Imagine next that my number is drawn: I am chosen as someone who has to donate one of his kidneys. At this point, however, I balk. I simply don't want to submit. Is there anything the club members can do? Can they get a court to order me to submit? Can they take matters into their own hands and force me at gunpoint to submit? The answer is that the law won't let them do any of those things. They might be able to sue me for monetary damages of some kind on the ground that I have breached a contract, but that is as far as the law will let them go. The court will not order "specific performance"—there will be no literal enforcement of the promise. But why? Is it because I did not explicitly say in advance that I can be forced to comply if I don't do so voluntarily? No, that doesn't matter. As the law stands, even if I had said so, I could not be forced. The result is of course that such clubs will probably not be formed. Yet everyone, myself included, would be eager for them to be formed, to sign up for them, and to agree to being forced to comply in case we should refuse to. What good reason could the law have for frustrating such a win-win transaction?
Indeed what makes the nonenforcement of the promise so very baffling, and important, is that the law proceeds this way not just in unusual cases like the kidney club but whenever someone promises to render some kind of personal service. A painter refusing to paint the portrait he promised or an actor refusing to act in the movie to which he committed will never be compelled to actually follow through, even though they said, when they first made their promises, that they fully expected to be compelled in case they should ever try to renege. But in fact all the law does, in case of reneging, is make them pay damages. Anything further is viewed as tantamount to enslavement—self-enslavement, to be sure, since the "slaves" here volunteered for the arrangement, but it is impermissible all the same. This of course suggests the further question, What exactly is wrong with self-enslavement, especially when it is temporary? Self-enslavement might sound exotic and unreal, but only because its real-life incarnations go by other names, like indentured servitude and debt peonage. The law no longer allows either of these, but if both parties desire them, then absent coercion, deception, etc., why not?
Why Do We Feel Uneasy about Tradable Emission Rights?
For some time now, many economists have touted a system of tradable emission rights as being a particularly desirable form of environmental regulation, better than the more traditional "command-and-control" approaches, whereby the government simply mandates specific emission devices and emission limits for every polluter. This new kind of licensing system—now actually in wide use, its best-known example being "carbon trading"—works roughly like this: The government decides on a certain tolerable maximum for emissions of a given type. It then allocates to each manufacturer a license to produce a certain amount of such emissions. Finally, it permits those licenses to be traded. This is regarded as an especially efficient form of environmental control because it gives each manufacturer an incentive to develop the most cost-effective, emission-reducing technologies and because it ensures that those who have the greatest need for such licenses are able to buy them from others who have less need for them. Nevertheless, this kind of market-based environmental regulation has remained very controversial. Despite having become quite common, it continues to produce great unease. Most of those who object, however, have had great trouble pinpointing exactly what they find so objectionable about it, since none of the traditional reasons for banning such sales seem to apply: no coercion, no deception, and no ill effects on third parties. Is there any defensible basis for the critics' unease?
Why Do We Prohibit Unorthodox Property Rights?
If I own some land and want to sell you a part of it, there are many different ways in which I might carve you a piece out of it. I might just draw a simple boundary around a part of the land and give that to you. That would be to divide the land physically. But I might also divide it up temporally—by giving it to one person up until a certain date and having it go back to me thereafter. (I am not talking about renting it out to someone for a certain period, with him being the tenant and me being the landlord, but actually letting him own it outright for the designated period—with all the rights and privileges of an owner, who is unbeholden to any landlord, because for the designated period he is the landlord.) There are yet more complicated ways of parceling out the land: I might sell you the land but prohibit you from using any of its lumber, keeping that right to myself. Or I might retain for myself the right to travel across the land whenever I need to. (People usually do this when it is the only way to gain access to some other nearby property they continue to own.) To understand how it is that property can be divided in these various often unorthodox ways, first-year law students are told to think of the owner as holding not merely one thing—his land—but actually a bundle of things, namely a set of rights with respect to that piece of land (the right to use it today, the right to use it tomorrow, the right to use its lumber, the right to exclude others, and so on) of which he can give away as large or small a subset as he chooses.
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