Sunday, July 31, 2011
Recently I attended a conference at which one of the commenters disagreed intensely with the ideas in someone's presentation. The commenter at one point said something like this: ‘We are morally responsible for the consequences of our theories!' The comment was intended as a rebuke to the presenter, an admonition that his theory, and by implication he himself, were not morally serious because of his inadequate attention to the "consequences" of his ideas.
It is no great insight to observe that every theory or idea about the law has consequences, and it is certainly right to say that people who champion theories are remiss if they do not think about the consequences that might follow from them. Usually these points do not need stating: even avowedly non-consequentialist interpretive theories are often guided by the power of consequences. When one makes an argument for the broad protection of religious liberty, for example, it is important and worthwhile to reflect on the costs (likely and possible) of that position and to acknowledge those costs frankly. And when one argues for the converse, the obligation to think hard about losses and costs is the same. My own view is that this should be no less true for courts than for anyone else (though I recognize the difference between the rhetoric of a judicial opinion and the bases of judgment). But this is a straightforward way in which the criticism can be true (though not, in my opinion, in the specific case in which it was made).
But there is also a way in which the criticism is deceiving, uncharitable, and ultimately unconducive to the kind of self-critical assessment that it exhorts.
The trouble is that there are different ways to think about consequences: in act-utilitarian or rule-utilitarian terms; in other sorts of teleological terms (e.g., virtue ethics); in welfarist or non-welfarist terms; in systemic or institutional terms; in terms guided by an overarching commitment to a moral ideal; in economic terms; in more loosely pragmatic or historically-minded terms, and many, many more. Lobbing the charge that we are morally responsible for the consequences of our theories masks, harmfully, the extent to which there are multiple and often conflicting ways to think reasonably and rightly about which kinds of consequences are important.
Suppose you are convinced that certain consequences of a theory or policy will be harmful. There are many examples in law. You believe that the exclusionary rule will make it more likely that people will not be held responsible for wicked behavior. You believe that the priest-penitent evidentiary privilege will enable terrible crimes to go unpunished. You believe that the procedural obstacles to proving actual innocence after a criminal conviction will result in the incarceration or even execution of the innocent. And you are so consumed with these consequences that you lose sight of other sorts of benefits, measured through other sorts of consequentialist metrics, which the policy might advance. Worse still, because of your single-minded focus on the kinds of consequences that matter to you, you are motivated to minimize, marginalize, and even denigrate the benefits as measured by alternative consequentialist calculi.
The problem is not only the 'glass houses' issue -- that people who lob the charge of moral irresponsibility too easily may be so focused on, say, a short-term consequentialist concern that they would be particularly susceptible to miss that their own ideas would lead a society over the long term in an undesirable or dangerous direction. The deeper problem is that speaking in loose and facile terms about consequences and moral responsibility can blind a person to the reality that well-meaning and reasonable people think about consequences in widely disparate ways. "Consequences" is an umbrella concept containing all manner of conflicting conceptions.
For me, that suggests that one ought to be charitable toward people who advocate theories with which one disagrees, particularly when the issue is what the "consequences" of those theories might be. One ought also to be exceptionally circumspect about reminding them of their moral responsibilities, let alone chiding them for perceived failings on that score. I am new to this business but my early impression from the admirable, smart, committed, and thoughtful people that I have met is that most of them are trying in earnest to think through complex, layered, and often intractable problems incapable of any single easy resolution. My own eyesight is narrow, partial, blinkered, myopic, and as Milton had it, "light denied" -- but still, I hope, in bona fide.