Are Depraved Indifference Laws Wrong?

[David Sklansky]

"Philosophically speaking, I think the only important point is that harming someone for small gain isn't the same as preventing harm at small cost."

Which category is the act of voting for a governor who will kill some homeless by throwing them out on the street, because he will also save you eight dollars a year in taxes?

Does it matter if you originally planned not to vote until you heard about these two consequences of this candidate winning?

[chezlaw]

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"Philosophically speaking, I think the only important point is that harming someone for small gain isn't the same as preventing harm at small cost."

Which category is the act of voting for a governor who will kill some homeless by throwing them out on the street, because he will also save you eight dollars a year in taxes?



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Strangly put because throwing people on the street doesn't kill them, (that may be a nitpick). I think the idea behind your example is being harmed by the ending of an intervention to prevent harm. If I give a homeless person a bed for the night that's helping at small cost but doesn't mean I'm causing harm for small gain by not providing a bed for a further night. If there is an undersatnding that the arrangement is permenant then it would be different.

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Does it matter if you originally planned not to vote until you heard about these two consequences of this candidate winning?

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Its always expected consequences or intentions of actions that matter not outcomes. Edir: oops not what you asked - don't think it changes anything accept with regards to the other problem you've raised about the crudeness of the voting system.

chez

[soon2bepro]

Upon some more consideration, it finally struck me. It was an easy concept actually, but avoided me for some reason.

The law is supposed to forbid actions, not to enforce them. If you get into the terrain of enforcing actions, the system works even much worse than it already does, because it's even harder to judge a situation and an action.

In other words, they do more harm than good.

So no - no laws that enforce action of any kind.

About your question on the governor throwing homeless guys on the street, that is actually not an action per se, he's just enforcing the prohibition they're breaking. (not that I think the laws that say people can't sleep on public spaces make much sense or are easy to judge/enforce -aka is a little nap while relaxing at the beach/park ok?).
If he wants to go out of his way to provide food and shelter to them, that's different, but he's not actively murdering them.


While rationally speaking it's the same to cause someone's death through action for X gain or inaction to avoid X loss, it's much harder to judge the X loss, not to mention awareness of the situation, etc. And in the active murder situation, it really doesn't matter what your gain is -to the law- (which is far from rational), unless under very specific -rather ridiculous, but necessary- situations such as self-defense.

[KUJustin]

Laws enforce a lot of different actions. Think about it.

I'm still not convinced of the difference between letting someone die when he could easily be saved and killing him.

[soon2bepro]

Oh, they do, but they shouldn't. Especially not on specific situations where judgment is clearly going to be foggy.

Well as I said there is not difference rationally/mathematically speaking, but there is a big difference when considering enforceability.

If you start thinking about how they law should be in order to be "just", if you want to make a mathematically accurate and fair law, you'll need an ability to judge situations and states of mind far beyond our current capacity.

The simplest example is when a number of different people make roughly the same unlawful action, but one is unlucky enough to accidentally kill people in the process. He gets a much larger punishment than the others, simply because he was unlucky.

[Knockwurst]

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Is that true? In any case its a more interesting argument if the sacrifice is a tad less trivial. Something you would pay $10 to avoid.

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I think it depends on the state. In NY, you are guilty of second degree murder if you

"Recklessly engage in conduct which creates a grave risk of death to another person when he or she

1) engages in conduct which creates a grave and unjustifiable risk that another person's death will occur
2) And when he or she is aware of and consciously disregards that risk,
3) And when that grave and unjustifiable risk is of such nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation."

My example of the guy not wanting to get his life preserver wet would, I believe, clearly meet this standard. And if you substitute any ten dollar motivation for the dry life preserver motivation, you'll likely also be guilty of murder under this standard.

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I can tell you for a fact that New York and most other states don't have Good Samaritan laws. Also, second degree murder in NY state does not reach someone who fails to save the life of another even at no risk or little effort to themselves. Look at the elements, the would be samaritan through their own conduct has to put another at grave risk and has to be aware of that risk. No second degree murder in a samaritan case.

BTW, David not to nit pick, but calling Good Samaritan laws Depraved Indifference laws is like calling a gut shot straight an open-ended one. It's an improperly used term.

Back to your question. To me it seems like it's really an issue of an affirmative duty, where none existed before -- that's usually shunned by the law. Yes, a nuclear power plant may have a general affirmative duty to not to contaminate the surrounding area, but you can say the owners of the power plant put themselves in that position or duty of care by building the plant. Likewise if you put yourself in a position where you create a risk to others, then you have taken on that duty of care. I.e., if you go in a lake and pretend you're drowning and someone dives in to save you, but dies in the process, you will have taken on the duty or responsibility for that person's death in all likelihood. An interesting sidebar is where you engage in a high risk activity with no intention of someone coming to your aid, but in the process you seek assistance and someone dies trying to save you. Another interesting sidebar is attractive nuisances.

The bottom line is usually you have to do some act involving a foreseeable risk to have the duty of care for another individual.

This formulation avoids good samaritan rules for the reasons your question hints at. There would be a never ending measure of one's risk and one's ability to save another person, which in the end would be impossible to balance.

Good day.

ps -- mj, I can see how you would say that maybe the person with the life preserver has engaged in conduct (i.e. not assisting the drowning person) that puts someone at grave risk. But the law doesn't look at it that way (at least in NY), the person who is drowning is the person who engaged in the conduct that put themselves at grave risk.)

[BarryLyndon]

Locke comments on this and it's worth a look, since he bases his argument on pragmatic considerations relevant to a democratic government. My argument here doesn't have much to do with Locke's (I think):

In today's society, based on principal tenants of a democracy and the laws that stem from this, the answer should be "no." While the law does have inherent instances of morality in it, such instances deal with deterring people from taking actions that would adversely affect others. This in large part has to do with the "collective good," as if that law did not exist, anarchy/brutally physical class warfare could break out, and we all know what that means.

Laws, on the other hand, do not deal with forcing people to act affirmatively in order do something that most inherently decent people would do. The collective good is not at stake here.

One may argue that we pay taxes and thus, as we pay taxes for the greater good, we should serve our fellow man by helping if he he needs it. However, in the former case, paying taxes keeps the country as a whole running in several facets, contributes to the economy, and keeps each individual subservient to a collective body. Saving one life, based purely on a political/philosophical argument, does not.

Having said that, here are three different situations where this theory comes into play:

1. Saving a life where the risk of dying/serious injury is neglible/non-existent and the risk of minor injury appreciable (a scrape, a twisted joint): I believe in this instance depraved indifference laws should come into play as the line between an affirmative action and an act so callous that it is almost as if you committed the murder yourself becomes too thin.

2. Where the risk of serious injury is quite appreciable: shouldn't apply.

3. Where the risk of death is quite appreciable: shouldn't apply.

(2) and (3) shouldn't apply because the aforementioned line is by far more appreciable. Democratic countries (and other forms of govt.) in Western civilization have only asked for one to risk serious injury/death in protecting the collective good (war). This serves an important political consideration (I guess) because, without a "collective good," there could be a whole host of problems. So sacrifice and duty and all that good stuff is important, for you are not as important as the collective. However, an individual should have the freedom to value his one limb over the next individual's under a democratic regime.

[chezlaw]

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ps -- mj, I can see how you would say that maybe the person with the life preserver has engaged in conduct (i.e. not assisting the drowning person) that puts someone at grave risk. But the law doesn't look at it that way (at least in NY), the person who is drowning is the person who engaged in the conduct that put themselves at grave risk.)

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That's exactly right. Unless the person not thowing the lifejacket is something like a lifeguard then them existing hasn't in away way put the other person at risk.

The drowning person is no worse off than if the other person hadn't been there. Completely different to being murdered for a paltry gain.

chez

[bluesbassman]

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I am required to turn over a certain percentage of my income to the Government in the form of taxes.


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I regard coercive taxation as theft, and the laws enforcing it to be illegitimate and immoral.

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I may be required to give society a portion of my time, in the form of Jury Duty.

Society reserves the right to conscript me, force me to join the army and possibly die for my country.


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These laws constitute involuntary servitude and are therefore also illegitimate and immoral.

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So, as a theoretical matter, what's the difference in saying that Society can require me to act to save the live of another if the sacrifice is trivial.


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I agree with this. Philosophically, all of these laws initiate force and demand sacrifice. That is why I oppose taxation, forced jury duty, the draft, as well as "good samaritan" laws (among many other similar such laws).

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It seems to me that the only way to object is on practical grounds.


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No, you can object on philosophical grounds, provided you are consistent.

[James Boston]

You said don't nitpick, so I won't, but there are many factors that would have to be discussed for such a law to exist. That being said, even as a libertarian leaning person, I see nothing wrong with being held criminally negligent for not making a "trivial sacrifice" to save a life.