Today we're going to continue talking about Mill and thereby finish up our discussion of utilitarianism that's concerned us these past few sessions. And if you'll recall, at the end of our last one, I asked you to think about two questions. The first is whether the harm principle is ambiguous and if so, how? And then secondly, is there a sense in which the harm principle is inherently conservative? And we're going to organize today's class around the discussion of these two questions. So, let's start with the question of the ambiguity in the harm principle. And I want to just come back to the original formulation of the harm principle, because we talked about it as something that wasn't difficult to understand. But think a little harder about this passage here. Where Mill says someone cannot rightfully be compelled to do or forbear because it will be better for him, because it will make him happier, because in the opinions of others, to do so would be wise or even right. Those are good reasons for remonstrating with him, reasoning with him, persuading him and treating him, but not for compelling him or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it's desired to deter him must be calculated to produce evil to someone else. I want to focus on that phrase, must be calculated to produce evil to someone else. What's ambiguous about that phrase. >> Well, what's ambiguous is how to calculate someone's intent. >> Okay good, you brought up again the subject of intent, which you mentioned last time. So I think that that actually gets to the ambiguity because calculated could mean intended. I calculate that I'm going to do something that's going to harm you. Or it could mean calculated by a third party. That whatever you intended we calculate that your action was harmful to somebody else, right? And so in that sense, it's not entirely clear whether Mill means intended or some third-party calculation. And if it's some third-party calculation, how is that actually going to be done and who's going to do it? So we want to spend some time focusing on those questions. And I think it's also important to say going into this, that we're not much helped when we look at the examples Mill discusses throughout the book. Because some of the examples do seem to refer to intent, particularly when he's referred talking about victimless crimes like the consumption of alcohol. But others in the applications we discussed last time such as the competitive examinations and the free trade, seem to be third-party calculations of harmful effects regardless of intentions. So you might say, well, this is a big problem for Mill. But I want to use it as an example of something we should look out for in many different theories that we're going to discuss. Because sometimes it's a mistake to expect a one fits all answer to a question, particularly a notion as expansive as that of harm. And in fact if you think about it for a little while, you'll see that we use many different understandings of the term harm in different walks of like. So let's just talk here now for a few minutes about some of the different ways in which we decide to hold people liable or not when they harm somebody else. So for instance I've put up a continuum here and we're going to work our way along the continuum and talk about some cases. One thing that should be obvious is that sometimes society not only allows harm, but actually inflicts harm and holds nobody culpable. So in countries that have the death penalty, such as the United States, the executioner without a question harms the person who's being executed. Or in fighting of a just war, a soldier unquestionably harms the person that is being killed in a battle. But those kinds of harms, we just put them beyond consideration. There are harms for which nobody held accountable. Now, you might say one shouldn't have a death penalty or one shouldn't fight wars of any kind ever. And that's certainly a debate one could have. But at least in most countries there's a recognition that there are certain extreme circumstances when harm is warranted. But let's talk about some other cases which in some ways are more interesting because they get it at the nuances of what's really at stake here. In some areas, going back to your instinct to reach for the notion of intent, we do say that intent is a critical component of finding somebody has committed a harm for which society should take some action. The most obvious and central area is in the criminal law. Generally speaking, if you're being prosecuted for a criminal offense. One of the things that the prosecutor has to prove to the satisfaction of the jury is what lawyers refer to as Mens Rea, which is Latin for having a guilty mind, criminal intent. And so for instance, when we think about murder, one of the things the prosecution has to prove is that you intended to commit the act of killing, right? So, and most of the criminal law revolves around this notion of a guilty mind. But not everything, consider the case of drunk driving. What would you think about drunk driving? >> Well, I would as colleagues if possible for a drunk person to intend anything if he's still drunk. >> If you're so drunk that you can't intend anything how can you be said to have had a guilty mind? That's exactly right. And so you might say, well, based on what I just said, that that person cannot be guilty of a criminal offense then. So the way the law handles that is with the notion of a constructive intent, we impute the intent. The thought here is, if you drive your car down to the bar and you drink two six packs of beer and you have no way to get home. We assume that even though by the time you get back behind the wheel you're paralytically drunk and you can't intend anything as you just said. We want to say your conduct was so reckless in going down to the bar, that we're going to impute the intent to you. We're going to behave as though you intended, so we still treat it as a criminal offense, right? And so there's some kinds of recklessness that are so extreme that we work with this doctrine of constructive intent. Now, when we talk about, we could come back to the subject of murder, and we make some similar kinds of distinctions there. Can you think of any? >> I can think of the difference between murder one and murder two. >> Okay, what's the difference between murder one and murder two? >> Premeditation. >> Premeditation. Okay, so again seems to revolve around constructive intent. Premeditated murder is the worst kind of murder. It's the murder where the person really plans to kill where as murder two is generally speaking not. It may be done in the heat of the moment. It may be, the results again of extremely reckless behavior. Say if you put in drinking to one side if you kill somebody in a car crash which is your fault, you didn't intend to kill them but you may well be held guilty for that killing in a criminal way. Again, with something like the doctrine of constructive intent. We say well, if people are going to be that reckless, we're going to treat them as though they intended it. Okay, but then lets think about some other cases. I've put up there the middle of this continuum the notion of negligence. And here it's somewhat weaker than a constructive intent. And that we say that there is a kind of, a standard of conduct to which we want to hold people, and if they fall below that they're being negligent. A standard of professional conduct or standards of professional care for physicians are a good example. So if you have surgery and the surgeon is distracted, and sews you up, and leaves the tweezers inside your stomach The surgeon is being negligent, right? He's not meeting the standard of conduct that's appropriate to the activity in question. Or I put there are also the notion of an attractive nuisance. This is a little different from a standard of conduct, but then again, it's sort of a reasonable person test. If you are living in a neighborhood with a lot of small children and you build a swimming pool. And all the swimming pools around in your neighborhood have fences around them and you don't put a fence around yours, and a toddler walks into your yard and falls in the pool and drowns. This is adoption of an attractive nuisance, and the thought here, again, is that reasonable person would know that where these toddlers are running around people's yards. It's an attractive nuisance, so-called, to have a swimming pool they might fall in. So you could be sued and held culpable under the doctrine of negligence. She was just negligent in creating this attractive nuisance for the toddler. Okay, so let's think though about some of the differences now among these cases. I mean, for one thing we allow physicians to buy medical malpractice insurance against the possibility that they leave their tweezers in somebody's stomach. But we don't let bank robbers and murderers buy bank robbing and murdering insurance, why not? >> Well, probably because when it comes to physicians their initial intent is to save lives and we do not- >> Physician is trying to save lives, what else might we say about it? Why don't we want bank robbers able to buy insurance against getting caught? >> You don't want them robbing banks in the first place. >> We don't want them robbing banks in the first place, exactly right. So when you think about the physician case, what we're really saying, obviously we want people to be physicians and we want them to do surgery. But we're really talking about what an economist would call an externality of that. We're really talking about when it goes wrong somehow, who's going to pay the cost, right? And so we say if you don't have insurance you pay the cost. But everybody is tired sometimes, everybody makes mistakes, and so it's okay to have malpractice insurance against the possibility. And of course, then your insurance company will discipline you because if you have too many claims your premiums will go up. So you better get a grip on your tweezers, and remember to check before you sew people up, right? But we don't want to throw people in jail for that, because we want people to be physicians and surgeons, okay? So that's why we, whereas with the things that like robbing banks and murdering people, we just don't want people to do it, period. So that's part of the difference, yeah. >> Yeah, because it would mean like giving them license to kill. >> Right, license to kill, we don't give licenses to kill, at least to anybody other than 007, that's right, yeah. >> [LAUGH] >> Yeah, exactly. >> But let's think about some other cases where we treat harm differently from anything we've talked about so far. This is the notion of strict liability. The notion of strict liabiltiy is that we're not going to get into the inquiry even. We're not even going to bother talking about who is at fault and why did something happen. We're just going to put the liability on somebody. So, if an overage of consent person, goes to bed with an underage of consent person, and this comes to light later, the overage person will be found guilty of statutory rape. And if he goes in there and says but your honor, she said she was 18 and she looked 18, in fact she looked 21 and I didn't know she was actually 15. It doesn't matter. Even if you're telling the truth, even if she really did look 21 and even if she did lie about her age, you're still going to be held accountable. So this is a case where we say we're going to put the responsibility on the person that we want to be sure will be careful to go the extra mile. As it were, to be sure that they haven't actually taken advantage of a young person who might be manipulable and so on. There's certain rough justice to that. Sometimes people do lie and sometimes a 15 year might be more manipulable than a 27 year old that goes to bed with a 15 year old. But we decide as a society it's better to embrace the doctrine of strict liability here all things considered. And I'll come back to that in a minute. But then right on the far end of the continuum, I put this notion of failure to stop somebody from being harmed. And a good example of this is so-called Good Samaritan Laws. Do you know what a Good Samaritan Law might be? >> Something that compels you to act in a socially acceptable way. Say for instance if you witness a crime taking place to do something about it. >> Okay, or even if there's not a crime, let's keep it simple. If you're walking down a street and there is somebody drowning in a lake nearby and you could save them at minimal cost to yourself, just by going out of your way and throwing them a rope. And you don't do it, there is some jurisdiction in which you could be prosecuted for that. So failure to help can sometimes actually be construed as a harm, right? So this would be one of the most minimal cases. And people sometimes say, well, if you go that far, the fact that we're sitting here in the studio means we're actually not helping somebody who might be starving to death and by upper right now, aren't we harming that person, right? So you can see that if you really take seriously this notion of failure to prevent a harm as actually counting as a harm. Then everything is potentially a harm, and so you would have to think about ways of discriminating among those things. And- You look troubled by that. >> Humanitarian intervention, does it fall then within that? >> Okay, humanitarian intervention that is a very good example. So in the last five years, partly as a response to what happened in Rwanda, the United Nations has adopted this doctrine of the responsibility to protect. And this says, as a doctrine, which says governments have a responsibility to protect their citizens from things like genocide. And if they don't, the international community can step in and then they're in procedures for that. But it's interesting that you bring that up. It doesn't address that this nuance that you get to. That is to allow you to intervene. But it doesn't say that if there's a genocide going on, you must intervene. So the United Nation hasn't quite gotten there, but they've moved a little further down the continuum, in that at least they're willing to authorize interventions, okay?
