Utilitarianism can help make good laws

HS 2016.6.7

Utilitarianism: Making Good Laws

Here’s a question to ponder: What is the relationship between morals and laws? Are laws merely legislated morality, as some claim? Consider this: Murder is both immoral and illegal, gossip is immoral but not illegal, driving on the left side of the road is illegal but not (inherently) immoral, and eating angel food cake is neither immoral nor illegal. Thus what is moral and what is legal seem to be somewhat independent of each other – one does not necessarily determine the other.   How then do we - should we - determine our laws?  Utilitarianism is a good place to start.  

Utilitarianism is the philosophical position that one should make choices so as to bring about the greatest good or wellbeing.  However, when enacting legislation there is often a tension between two goods.  For example, some states require motorcyclists to wear helmets, others don’t. Why?  Some consider freedom for the cyclist to be paramount.  Others are more concerned that the public not be burdened caring for an injured cyclist.

Notice that there is no formula for weighing the options. It’s a judgment call, and people will judge differently depending on their respective value systems.  All we can do is prevail upon the rational judgments and the empathy of others.

This past summer this principle was applied to same-sex marriage by the Supreme Court.   On the one side it was argued that folks should have the liberty to live in a state-sanctioned, life-long committed relationship with a person they love. For most people, that makes for good living. On the other hand, it was argued that the presence of such unions would be harmful to the greater society.  These were weighed in the balance, and lacking evidence for harmful effects to society, the Supreme Court chose for individual liberty.

Let’s now apply the principle to two current issues.

The State of Michigan and a couple southern states allowed for minors convicted of murder – some as young as 16 years old – to be sentenced to life in prison with no possibility of parole.  Realizing that time in prison provides opportunity for reflection and maturity, the Supreme Court struck down the no-possibility-of-parole as cruel and unusual punishment.  The justices ruled that after serving a suitable sentence of punishment, the convicted should be given the opportunity to demonstrate that they have been rehabilitated.

However, Michigan Attorney General Schuette has yet to comply with the ruling. Why?  Mr. Shuette doesn’t want the victim’s family to be subjected to the trauma of having the case revisited and the murderer (or accomplice) released.   How might utilitarianism shed light? We are bidden to ask:  Is it worse to keep a repentant and rehabilitated 45 year old in prison the rest of his life - perhaps another 40 years - at a cost of $30-40,000/year, or worse to put the victim’s family through the distress of having the offender released?  There is no formula; what do you think?

The second example to consider is the recent controversy concerning which public restroom transgendered individuals should use.  North Carolina’s answer is that persons use restrooms based on their sex at birth. The other extreme is that transgendered individuals, some of whom have a fluid gender which can change day to day, use whichever restroom matches their present gender identity. 

How might utilitarianism provide a compromise?  The North Carolina policy needlessly harms those who have had a physical change without increasing the welfare of any. Thus a utilitarian approach would allow those who have had a sex change operation the freedom to use the restroom that accommodates their new anatomy.

But it may also eschew the position proposed by the Obama administration. Why?

When the benefit to the minority is substantially greater than the cost to the majority (as is the case with same-sex marriage, e.g.), then the majority may need to bend to allow for the welfare of the minority.  But in the restroom situation, the cost to majority and minority is the same; either way, some are going to feel uncomfortable.  Therefore, the minority (transgendered folk) should not be granted the opportunity to feel comfortable if doing so denies that same thing to the majority.  The way to maximize the good (or minimize the discomfort) is to (regrettably) require transgendered folk to use the restroom that matches their outward appearance, or perhaps to use a single-person restroom.

As these examples illustrate, utilitarianism applied with reason and empathy can lead to compromise and commonsense laws.