Morality and Medical Malpractice

One of the traditional thought experiments leveraged against utilitarianism goes as follows:

A surgeon has five patients, each with a different organ which has stopped working. Each is in need of having a working organ transplanted into them, and will die if they do not receive this. At this point, a person with a fully working body happens to enter the surgery. The surgeon could kill this person quickly and painlessly, and give each of the patients a working organ from this person's body. Thus, they would give up one life but would save five lives; utilitarianism implies that the surgeon must surely do this. But this course of action would be monstrous. Hence, utilitarianism is false.

Most utilitarians are not too keen to bite the bullet by admitting that this would be the moral course of action, and tend to argue that there are advantages to a system where you can see a doctor without risk of being murdered. Non-utilitarians would respond by stipulating that absolutely no-one finds out about the murder, so that this system of cooperation is not disturbed. I don't know the utilitarian response to that, but basically it all gets very messy and unclear.

I have a better response to this thought experiment.

Killing the healthy person is stupid! What you need to do is kill one of the people who is already dying, and give their organs to the other people who are dying. Select this person at random, so there's no disincentive to go into the surgery - it's a choice between going in and facing a one-in-five chance of dying, and staying out and being sure to die. Five people survive, one person dies, and no-one can complain that their rights are being ignored. Just tell the patients: "You're all going to die if you don't take part in this raffle, because your organ will give out completely and you won't get a transplant. If you take part, then you may end up being killed right now but providing someone else loses, you will get one of their organs and you will live." Far cleaner, with no need to unilaterally violate the rights of an innocent.

What are the rights of Children? Part Two

I previously discussed my opinions of some papers working towards answering this question; in this post, I intend to discuss a theory I have been developing, and discuss the very serious problems with its current state.

I start with the assumption that it is wrong for a child to be brought into life if they can be expected to have a life not worth living. Furthermore, this is not merely wrong but it is a violation of the child's rights. I integrate this assumption into a kind-of-Nozickian position and emerge that children should be treated in a way they would consent to in the hypothetical situation where they - or a rational agent representing them - and their parents signed a contract regarding how the child should be brought up.

As it stands at this, without working out what it implies, there are already several serious issues with the theory.

Enforcement

Some rights theorists have argued that having rights requires the ability to enforce them. I don't think I would necessarily go that far, but it is certainly fair to say that rights suffer in the absence of an enforcement mechanism. And, practically speaking, it is difficult to see how this theory would be enforced.

The starting point would be that, if a child's upbringing fails to meet whatever is decided to be just, then the child would have a right to sue their parents. There are problems with this, at least one of which I see no way of resolving.

Suppose the child is so badly mistreated that they die before reaching the age of emancipation. Then, presumably the right to sue the parents would return to the commons, and could be homesteaded by someone who prosecuted the parents. (This would not be much comfort to the child, but since no theory can raise the dead this is hardly a problem unique to my theory). But what if the homesteader of this right is a confederate of the parents, who does a deliberately bad job of prosecution? Even supposing this is solved, then suppose there is a competitive market of lawyers who will take up such cases. Suppose also that there is an inverse relationship T (between the time spent accumulating evidence before taking a case to court) and P (the probability of a successful prosecution, and hence a profit). If the right to take the case to court can only be homesteaded once, then clearly the market equilibrium is for cases to be homesteaded as soon as they appear and have a positive P.

This might be resolved by having an organisation which is automatically assumed to gain the right to prosecute a case, which might either prosecute cases itself or sell the rights on to lawyers for a fee. This might fund (for example) an orphanage. Such a system would be far from perfect, but does not seem completely unworkable.

The problem is actually greater when the child is still alive. Most people would be unwilling to sue their parents; even if the right to sue the parents were somehow homesteaded by one of our crusading lawyers, the case would be unlikely to succeed without the co-operation of the key witness. So parents would be able to get away with many abuses.


What does it even mean to "hypothetically consent"?

It is in many ways strange that one can be morally bound by a promise that one has not made. How does the fact that in a particular hypothetical scenario I would have agreed to take on a certain obligation bind me to it in the real world where I have not?

The best answer, so far as I can tell, is that it doesn't; rather, it is in one's best interests to act as though it is. Suppose that I would like to see a certain band live in concert, but am unwilling to pay the £50 it costs to buy a ticket - the most I would be willing to pay is £40. In order to prevent ticket touting, all tickets to see the band have the name of their owner printed on them and require proof of ID. An acquaintance of mine, B, has an opportunity to buy a ticket to see the band for £20, and so buys the ticket in my name. (B has no interest in seeing the band herself). While I would receive the ticket from B whether or not I paid her for it, if I wish B and other people I know to do similar things for me in the future then I would be well-advised to pay B at least the £20 it cost her to buy the ticket.

But this fails to solve the issue of exactly how much I should pay - it should be at least £20 and no more than £40, but could be anywhere in-between. In the scenario above we might well say £20 and call it quits (or alternatively £20 and either a box of chocolates, a bouquet of flowers or a bottle of wine) but suppose that rather than as a friendly gesture, B bought the ticket because this is how she made her living. Quite clearly, then, I would pay more than £20.

Taking this to the case of childrens' rights, it seems that children should have positive rights going beyond "a life worth living"; however, we have no idea how extensive these rights should be, except that they should not cause it to cease to be worthwhile to have children.


Parental influence on the child's values

As good liberal neutrals, we should not wish to assume that there is a particular, uniquely and universally justified measure for how well a child was raised. Rather, we should allow a different metric in every case, dependent largely upon what the child ends up developing as their conception of the good.

The problem here is that parents have a fantastic opportunity to essentially brainwash their children. A child could be brought up in a cult, and so long as the child continues to believe that the cult is virtuous and that being part of it is beneficial, it is hard to see how we can object.


Conclusion

A basic theory of children's rights based upon hypothetical consent runs into several problems, which all tend in the direction of allowing parents far too much license in the way they raise their children.

What are the rights of Children? Part One

This is (hopefully) the first in a series of posts discussing the raising of children from the perspective of political philosophy.

A topic in political theory which is particularly close to my heart is how children can and should be raised, and what claims they have on parents and on other agents. I recently attended my first academic conference, and while there I encountered three papers within this area.

The first paper, Is obligatory child support possible in a private law society? A contractual approach, by Lukasz Nicolaus Dominiak, was presented as part of a workshop on The Current State of Libertarian Political Philosophy. He was responding to the position set forth by Herman Hans Hoppe and by Murray Rothbard, which states that parents have no natural positive obligations towards their children any more than they do for any random person in the street, and therefore that mandatory child support represents unjust aggression towards the parent compelled to pay it. Lukasz argued that in a stateless, common-law society couples would sign contracts and that these contracts would specify child support to be paid in the event of a separation. He had what seems to me to be rather a confused argument that child support would be lower in such a society than it is in ours (the argument being that the current system of courts turns the parent with children into a monopoly. What, I wonder, does he see as the "product" being sold by this monopoly?) and some sound economic analysis to demonstrate various ways in which child support would vary from couple to couple.

My opinion, and I think that of everyone there (including Lukasz) was that, regardless of how accurate this was in a predictive sense, it relied on a set of moral premises one of which is completely unacceptable: Rothbard's account is far too permissive towards bad parents. According to Rothbard, if a child is left by its parents to starve, this is no violation of its rights; moreover, it would be impermissible for an outsider to violate the parents' property rights in order to rescue the child. Lukasz, I believe, thought that such behaviour by the parents (apart from being despicable, or course) would represent the abandonment of guardianship rights over the child, leaving another person free to homestead that right by taking the child in. My own preference would be to construct some account of how the child acquires positive rights against the parents, but this is proving problematic, as I will explain in my second post of this series.


I'm not certain I understood the main message of the second paper, Injustice and the Child's Perspective by Christina Schuees. It had references to Plato (bad) and to Miranda Fricker (good), and the most I got from it was the idea that children are the victims of various kind of injustice and are not in a position to do anything about it.


Finally, Gunter Graf and Gottfried Schweiger presented their work-in-progress Securing Justice for Children. Who is responsible for what? I liked this paper. It was clearly set out, which made it easy to tell where they were making howlers. There was at least one point in the conference when I felt like saying "OK, I understand your conclusion. Please could you provide an argument for it?" This was not one of them, for the simple reason that they were clear about this being a work in progress and the arguments not being fully worked out. One of the howlers was that, in the absence of arguments, they still had a conclusion (and one which sounded awfully like "We need world socialism!"); that said, it was an excellent demonstration of why all philosophy should be analytic philosophy and for that I thank them. I intend to refer to this paper in the third post in this sequence.

Unfunded Liabilities

Historically, governments - including liberal, democratic governments - have done some terrible things and committed horrible injustices. The victims of these injustices (or, in many cases, their descendants) clearly deserve compensation, so clearly the government should give them money.

Except the government doesn't have money of its own. The money it receives comes from taxpayers, and in most cases it is not at all clear that taxpayers can reasonably be expected to pay. I see two reasons why a taxpayer might have an obligation to contribute to compensation: first, that they are somehow morally responsible for the injustice, and second that they have (involuntarily) benefited from the injustice. (Actually, there is sort-of a third - that taxpayers have consented to the State, and that part of what they have consented to is paying for its cock-ups, but apart from the general implausibility of non-hypothetical consent based arguments this just seems like a very ad hoc argument. Moreover, if the State were actually committed to paying compensation for every single one of its historical injustices with a traceable victim or descendant of victims, then even ignoring administration costs this would be so expensive that I really can't see anyone consenting to paying the bill, even in light of all of the other supposed benefits of the State.)

Moral responsibility: where to begin? Well, first note that the average person has essentially no power over what their government does, due to a mixture of large population size and the actual power being held by civil servants, politicians and various other interests. Second, this does not help explain any duty to pay compensation for anything which happened before the taxpayer in question was able to vote. That said, we might be able to justify a policy of holding actual politicians responsible for their mistakes, and if necessary selling them into slavery into to pay for any injustices they have ordered.

As for benefiting from the injustices? It is rare to find a clear-cut case of this. The biggest injustices I can think of committed by governments which are, in some form, still around today include:

• Colonialism, in particular the slave trade and the scramble for Africa c.1870-1900
• Various wars
• Immigration restrictions
• Various measures by nanny states, moralising states and surveillance states (in which category I include racially and sexually motivated discriminatory measures such as Jim Crow laws and the widespread persecution of homosexuals and of various religious groups)

It seems unlikely that most Britons benefited from the slave trade. Certainly a minority did - embarrassingly perhaps, John Locke (he of the "natural rights") was among them - but the wealth of the First World is due to industrialisation, not slavery or colonialism. In fact, the one group who clearly have benefited are in fact the descendants of the people trafficked to the Americas. This doesn't make the initial injustice okay, but I would suggest we apply something like the Advantage Rule from football.

Wars do not tend to enrich the winning nation. There are thousands of people killed and injured, there are billions of productive man-hours foregone to soldiering and to armaments/materiel production.

Perhaps the majority of  the absolutely vast benefits from open borders would accrue to those allowed into richer countries, but it seems unlikely verging on completely implausible that none of them would accrue to the native population. I for one look forward to the day when all of my housework is done by cheap immigrant labour.

The final category of injustices which I have outlined tends to be perpetrated against the native population. Hence in many cases it would simply be a case of I-pay-the-government, the-government-gives-me-the-same-money-back-minus-administration-costs. But even if this weren't the case, who are the supposed beneficiaries? These kinds of measures are (at least officially) supposed to help the people they target.


So we're left with something of a quandary: there are many people deserving compensation, and no-one with an apparent duty to pay it (other than politicians, and from their own pockets rather than through taxation). This is an unpleasant situation, so to finish I'll quote David Henderson, talking about the late economist Walter Oi:

The second story begins with a phone call I received from Walter when I was a senior economist with President Reagan’s Council of Economic Advisers in the early 1980s. A government commission looking into the World War II imprisonment of all Japanese-Americans living on the West Coast had just come out with a report, and its recommendation was that each person imprisoned be compensated with a check for $20,000. Walter wanted me to get him a copy of the report.

When I had first met Walter, while interviewing at Rochester, I had followed my curiosity. I have learned that, contrary to what almost all my elders told me when I was growing up, people generally love to talk about themselves, even about sensitive issues, if you ask them with some sensitivity. I had asked Walter if he had been imprisoned as a child during the war. He had been. He reminisced talked about being taken prisoner by the U.S. government when he was 13 years old and, before being shipped inland, living with his family for the first few days in a horse stall at the Santa Anita race track in Los Angeles. He had some pretty strong feelings about his imprisonment. I told Walter I would get him the report and then asked, “So what do you think of the commission’s recommendation?”

“I’m against it,” he snapped. He then went on to tell me that yes, the Japanese Americans were treated unjustly, but that the best thing to do for Japanese Americans was to move on and not create a new government program.

A discussion of tacit consent to the state

Suppose you live in a moderately large community - perhaps around 10,000 people - with a smoothly functioning market economy but few trade links with the outside world. A rich person then pays every doctor in that community a large subsidy to treat every other patient in that community, on condition that they refuse to treat you.

It is in the interests of every individual doctor to accept the subsidy, since the extra income from the subsidy significantly exceeds the revenue they would get from having you on their books. The result is that it becomes uneconomic to treat you, since this would require a whole new doctor to be trained, and the subsidy is only available to people who will not treat you.

In this case, you would not necessarily end up going completely without treatment - there would probably be some level of medical training which it would be economic for someone to obtain this and then treat you. (That is, providing there is no occupational licensing). Still, it is obvious that this rich person's actions have made you worse off, and probably quite significantly. Yet from a natural rights perspective, it is hard to see how you could have any kind of a claim against them.

Aside from being a potential weak point of natural-rights based ethics, this has potential real-world significance. Peter Steinberger, amongst others, has argued that actively accepting benefits from the state implies consenting to it, and provides numerous examples of activities he sees as fulfilling this condition. In many cases this seems intuitive, but there is an obvious counterargument for the philosophical anarchist: that the state has actively prevented citizens from obtaining these benefits except through the state, and therefore when it provides them with there benefits it is merely compensating them, rather than actually making an implicit offer of contract. This is actually a surprisingly wide-ranging objection. The state will not allow me to go about enforcing vigilante justice, and will not allow anyone else to do it on my behalf, so when I call the police to bring to justice a man who has stolen from me, I am merely calling upon the state to do what it is obliged to do - I am in no way consenting to anything. The state does not ban private healthcare, but it regulates it to such an extent that it can hardly be seen to be respecting my rights or those of my prospective doctor, and so when I go to the NHS for medical advice I am merely exacting recompense rather than seeking benefits. Even if I claim unemployment benefits, it is unclear that I accept any duties since state measures like the minimum wage, national insurance, and income tax all violate my natural rights and make it harder for me to obtain work.

But what if the state did not restrict me from obtaining these services other than through itself? I can't think of any indisputable examples of this offhand, but a strong example is education, where there are essentially three options - state schooling, private education (which is similar to the situation described in the opening paragraphs of this post) and homeschooling. Does the fact that, by providing free schools and so making it uneconomic to run affordable private schools, the state obstructs my obtaining of private education, make using state education for one's children invalid as an expression of tacit consent? My suspicion is that it doesn't: in the classic example of invalid tacit consent ("I propose that we move next week's meeting to Tuesday. Anyone who objects to this, chop off your arm. Oh good, everyone agrees!") the objection is not that chopping off one's arm is costly or difficult (that said, how many businessmen do carry around knives ready to chop off their arms at a moment's notice?) but that one has a right to keep one's arms. If the statement had been "Any employee who objects, raise your arm. Also, if you do then you must move into a different, smaller office," then objecting would have been costly but would not have entailed unjust loss, and so the tacit consent would have been valid. So sending one's children to a state school (obviously, since they were a minor at the time, the question of whether an individual himself/herself went to a state school is irrelevant) could reasonably be described as consent to the state. Except for two problems which are a problem for basically any theory of tacit consent to the state.

The first could be overcome if there were greater awareness of political philosophy among the general public, but is currently an obstacle to, I believe, every existing state: for consent to be valid, at least one of these two conditions must be met:

1. There is intent to be bound to that consent.
2. All consenting parties may reasonably be expected to realise that their action entails consent.

Suppose you own a historic mansion, and are in the habit of giving guided tours around it. My joining such a tour does not of itself imply that I agree to pay you for it; however, if you have a notice by the door indicating that there will be a charge, then I may reasonably be expected to pay even if I would rather not.

If someone intends to be bound to obeying the state, then sending their kids to a state school is probably unnecessary to achieve this. Hence, it is the second condition which is more likely to be useful for demonstrating that people consent to the state. But I think it is fair to say that the vast majority of people do not realise that sending kids to school can entail consent, and given that it is not clearly stated anywhere that "sending your child to a school owned by Her Majesty's Government implies that you agree to obey the laws set down by Her Majesty's Government" this is rather a problem for the validity of tacit consent.

That problem is tough but not impossible to overcome. The real problem with tacit consent is very similar to the problem with benefit theory: the idea that the state can obtain consent by providing benefits presupposes that the state had a right to provide those benefits. This in turn presupposes that the state had a right to the resources with which it provided those benefits, which presupposes that the taxes with which it gained the resources had been consented to by the people of the nation. Thus there is an infinite regress unless you have a situation in which either the state legitimately held assets without acquiring them from an outside source, or the taxed population consented in advance of receiving benefits. But no-one seriously believes the state began as anything other than a local warlord, which rules out the first option, and no-one seriously believes in an explicit contract with explicit consent, either present or historical, as the second option requires. Therefore tacit consent cannot provide a basis for political obligation in any existing state.