So, the main point of this discussion we've been going through here is, is to, to think about maybe recalibrating our expectations. And, you know, political philosophers tend to work with abstract categories, but sometimes it's, it's better to get down to a lower altitude, to see that, well maybe it's not a failure of Mill, that he doesn't give a definition of harm that fits all circumstances, because there's so many different types of circumstances. And we really would want to treat, physicians differently from murderers, and we really do want to have it a standard that prevents young people from being sexually exploited, that we wouldn't want to apply to other sorts of settings, and so on. And so, you could say, it's not so much a failure of Mill, to, that he hasn't given us any one single definition of harm, but just a recognition of the complexity of life. I think that's true in as so far as it goes, but I want now to make a second point, which is that what I've done with you so far, is a very static kind of picture, in that we just went through these different examples, and we talked about how they differ, and why they might differ. But, the next thing you should pay attention to, is that the, these things actually change over time. So what counts as a harm, will be different in one country, from another, but even in the same country over time. So consider the case of, of rear-ending cars, you know? I mentioned this I think, briefly before. But so, the notion here is if somebody drives their car into the back of another person's car it used to be the case that there then was an argument about who was at fault, who was negligent? And of course, the driver behind which say you stop too quickly, and the driver in the front would say, you were following too closely. And, you know, if you they couldn't settle it, they would have to go to court, and have witnesses, and bring in people, and have, you know, people arguing about whether the brakes were working correctly, and so on. Whether the, the stop lights on the front car were, were not in good working order, and so on. Finally, in the state of New Jersey, as it turned out, it ha, it happened first. The, the legislation said, you know what, this is not worth it. What we're going to do, is we're going to move to the doctrine of strict liability here. What we're going to say is, that any time there's a rear-ending situation, the driver at the back pays, end of story. You can't go to court, can't argue about it, the driver at the back pays, finished. Why? Well, because, it's just not worth tying up courts, and judges, and all the costs of that, over rear ending, and furthermore, when you, when you think about it, it's better to put the owners of the car at the back, because the car, car at the back is the one that's in a position, to see how close they're following, and to increase the gap and to take the appropriate caution. So, of course there's going to be some rough justice, some of the time, but you know what? At the end of the day, it's a better way to go. And so, we've had in a lot of products liability kinds of situations, and things like this, we were not really talking about the morality of good and evil, we've been moving from negligence to strict liability. And there's been a a very interesting philosophical debate about this, between two, two legal giants. One is Guido Calabresi, sometime Dean of the Yale Law School. And the other is Richard Posner. Sometime professor at the University of Chicago Law School. Both who are now federal judges, by the way. And Posner, is the author of a book called The Economics of Justice. And Calabresi is a book, is the author of a book called The Costs of Accidents. Posner is a defender of the old negligence standard, and Calabresi is a defender of this idea of strict liability. So, when you do ne, negligence, as we've seen, the question is who was at fault? Whereas with strict liability, you get into this interesting utilitarian calculus, that Calabresi advocates, building on New Jersey rear ending kind of logic. He says, what you should really think about, when we try to decide what the test should be, is minimizing the costs of accidents, plus the cost of their avoidance. So, it's his little equation there. Is, you, you figure out that on average, the cost of the accident, on average the cost of avoiding the accident. And then you want to minimize the sum of those two costs. And that's what, strict liability will say you, that's where you put the liability. Okay, so if you think about, you know a drug that might cause harm to people if the clinical trials are not done properly, or even if they are done properly. You might say, well we're going to put it on the pharmaceutical firm, regardless. For instance in the case of Thalidomide, which was this drug for pregnant women, for morning sickness, which turned out to produce deformities in the children who were born. actually, there was no failure there in the drug trials at all. But we, we just said that the pharmaceutical firm's going to pay. Okay? And why? Because you want to give them the incentive to do the extra research, to go the extra mile, and so on. So that, this is the debate between negligence and strict liability. And when it's negligence, you really have the market system, and the common law, deciding how to allocate the externalities, who's going to pay for the harm. Whereas with strict liability, the government does it because they have to make laws about which, which source of thing is going to be covered by strict liability, and which are not. And so, this has been one of the most interesting debates about harm, that's gone on in American politics and law, over the last three decades. And interestingly, in the I'd say in the academy, it was sort of fought to a stand still. You couldn't say Calabresi or Posner won a decisive victory, in the philosophical arguments, but in the real world Calabresi won. So, much more of the real world is governed by strict liability, and much less of the real world is governed by negligence today, in America than was the case, 30 years ago. So strict liability, in that sense, is, is sort of sweeping through a lot of American law. An interesting phenomenon, but really is something that's still alive. It changes you know, it's changing over time as we speak. Let's talk about another case. It used to be, in the 1950s, it used to be the case, that a husband could not be prosecuted for raping his wife. You might be shocked by that today. It's less than half a century ago, in the 1950s and early 60s. This went back to the old doctrine, that the legal identity of a woman, is suspended during marriage, she ceases to be a legal person. This is why women couldn't own property until the, until the, this was undone by the Married Women's Property Acts. to, to get rid of this notion that the woman didn't, couldn't do things a legal person could do. And the, so the thought was, well, if she's not a legal person, she couldn't be raped. And so, not only wasn't only rape, rape was the worst of it but you couldn't be prosecuted for assaulting your wife. In other words, if you walked up to a, a woman on the street and punched her, you could be a, you could be arrested and charged with assault, but if you, if you did the same thing to your spouse at home, you were protected by the law, because she wasn't a legal person. And you, the same thing applied to civil liability. There was something called interspousal tort immunity. You, you could do things to your spouse, that you couldn't do to anybody else. And of course, then we had three decades of the Women's Movement, raising consciousness about this, and militating to get it changed. And today, marital rape is a felony in every state in the union, and in the federal system. Things like interspousal tort immunity have been done away with. And so, there's been a huge change in how this whole manner has been treated. Again, so we've, we've gone from excluding it entirely to treating it like a criminal offense. Just one more example of this, before we move on. Think about racial discrimination. During the 19 60s, during the height of the Warren court, in the United States, which was one of the most liberal Supreme Courts in American history if not the most liberal. The, the standard for getting a remedy for racial discrimination, was sort of like strict liability, in that, if you came in and showed that there were patterns of housing which worked to the systematic disadvantage of minority groups, you could get a remedy. You could get the court to order changes. That has changed radically, in the last 30 years. And now, you would have to show something much more like criminal intent, you would have to show, that there was the intention on the part of some public official to discriminate. You'd have to go and find housing deeds, where they had written into the deed this, these properties cannot be sold to black people, or some such thing. You'd have to find the smoking gun. So, it's obviously much harder to get a remedy. So I think as you can see from these examples of decriminalizing and then recriminalizing things, that these definitions change over time, in all kinds of ways, and they're greatly affected by political currents. By who, what sort of ideas gain sway in the society, and what sorts of things people are going to be held responsible for. And that has a very important implication for us, and for the larger theme of this course, because the, the take, takeaway point here, is you can't wring the politics out of politics. You can't get to this point, that many enlightenment thinkers aspire to get to, of having a neutral, scientific theory, of what to do in politics. You can't find a scientific answer to the question of whether say in racial discrimination, we should use the intent to discriminate, or a pattern of discriminatory effects, as the standard. That is a political and moral choice. As is the choice of about marital rape, it's, it's, was a political and moral choice there. And so the, the notation that we're ever going to re, sort of replace politics, or get beyond politics, and have technical answers to these questions, is one of the enlightenment aspirations that we're going to see has at a minimum, has to be chastened a lot. It's much harder, to get back to get to that point.
