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12/24/2006

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DDude

It is hard to believe what I am reading here. Take the example of someone coming up to you and kicking the crap out of you until you die. What right do they have to do so? None; obviously. Why? Because it is wrongful harm to you. Society agrees and legislates accordingly.

What about if someone purposefully runs into you with their car killing them? Same result, the conduct is criminal.

Now what about if someone were to play russian roulette with you as the target? Same result, the conduct is criminal. Why? Because the roulette player has exposed you to wrongful harm without your consent (the harm being risk of death). Society has wisely decided that the russian roulette player has no right to put you at risk without your consent.

Now what about driving while intoxicated? Society has decided that driving while intoxicated is risky (the statistics presented above, controlled tests, and common sense all confirm this finding by legislatures and parliaments everwhere). As such, driving drunk inflicts the wrongful harm of risk of death upon you.

As for comments about driving while on cellphones, some jurisdictions have started to legislate against cell phones for drivers. Careless driving is always a crime (people are charged regularly with not paying attention to the road, reading while driving, etc.).

If you disagree with the legislative finding that driving with a BAC over 0.008 increases the risk of accidents, I challenge you to come up with a better measure that can be substitued into the law.

If you agree that there is some risk but feel that I should have to incur this risk, I challenge you to explain why.

Bernard Yomtov

DDude,

Let me try to anticipate the answer to your question. My apologies to all if I err.

Suppose you get in your car, perfectly sober, and drive in a sensible way to the grocery store. You have still imposed some small risk on others. You might have a moment of inattention, or a mechanical failure, that causes an accident. Your very presence on the road, by increasing traffic, somewhat increases the chance of an accident.

Nonetheless you are allowed to impose this risk on others. Why? I suspect the argument is that the utility you gain far exceeds the expected value of any damage you may cause. Thus driving to the grocery is "efficient." Similarly, it is possible to argue, though I don't agree, that driving drunk may produce enough utility for the driver to outweigh the costs imposed on others, and hence it should be allowed on efficiency grounds.

Now I happen to think this argument has a number of serious problems, some of which you suggest. How then do I justify letting you drive to the grocery? I'm not sure, but I'd start by saying that there is an element of agreement here. I'm prepared to bear the risk you impose on me in exchange for you bearing the same risk when I go to the store. I'm not a moral or political philosopher, and haven't thought all that through, but it seems to make some sense as a starting point.

Anonymous

I've read about breathalyzer type devices that may be installed on a vehicle to disable the ignition if the driver's BAC is over a preset limit.

What if such a device were configured instead to disable the driver's-side seatbelt and airbag?

Jack

Bernard; You're doing about as well as any other philosophers and what you're unearthing is our social contract wherein we agree as a democratic society on some of our priorities and trade-offs between risks and benefits. Driving has a plethora of such trade-offs with speed limits etc and we still don't get it right as tailgating is surely cause of huge numbers of accidents but seems to go completely unaddressed.

Here, a judge/lawyer and something of a Friedmanesque "free market" economist have a go at it by trying to monetize the value of life and apply economic principles as a help to defining appropriate policy.

The numbers, I think we all agree? of at least $250 billion per year $825/capita for all traffic fatalities or the 40% ?? attributed to alky related deaths confirm that we've not yet "got it right". Given that the costs of DUI vastly outweigh any commercial losses we'd agree? that getting it close to zero is the ideal.

There is, aloose in our nation which locks people up at five times the rate of the nations we compare ourselves to, for double and longer sentences and have the death penalty in half of our states, a theory that just hammering "them" harder will be our salvation. Despite these policies we kill each other with guns at five and even ten times the rate of the "civilized" nations and have higher crime rates. Of interest perhaps, is that 75% of those locked up are functionally illiterate in a country where the literacy rate for others is upwards of 90%.

Still, it looks as though Posner & Co favor more "hammer" of lock-ups and heftier fines, despite the fact of those much below median income having no means of paying even the existing fines and locking up being the most expensive of means of changing behavior.

I posted a bit on Sweden & Norway that seem to have begun much earlier and have come close to "getting it right" on the "response to" thread. But, we'll probably have to wait awhile before any of our politicos will come forward with .05 much less the .02 of those nations but we'd do well to draw from what Sweden and Norway have done and implement those measures that seem most rewarding in terms of enforcement costs vs percentage drop in accidents and fatalities. Like EVERY other area the US is woefully behind on thoughtful democratic debate making public policy decisions.

Anonymous, according to data from DUI's pulled from wrecks 76% weren't bothering with seatbelts anyway. Even in these callous devil-take-the-hindmost days you do understand that if the DUI himself dies in the ensuing crash, even in a single car accident it's not a victimless crime as a family is left to fend for itself, or a 20 year old that society has invested $100,000 in educating is lost before contributing anything?

It brings up an interesting point though, as it seems most fatalities are when the DUI is .1 or above and that not wearing seat belts would increase the odds of an accident becoming a fatality. It's looking as though getting to 99% seatbelt use is at least as important as getting DUI down. Jack

DDude

Bernard,

My argument does not depend on utility, it depends on the concept of "wrongful harm" - a principle even a libertarian can agree with. Driving to the grocerty store inflicts harm (i.e. risk) upon others but it is not wrongful (unless I have departed from the standard of care of a reasonable person).

Why is this so? Because the actions of the driver who went to the grocery store were not wrongful and the actions of the drunk driver were.

How do I define wrongful? Something that is unreasonable or without colour of right. The drunk driver had no right to subject me to the risk of driving drunk but the careful grocery driver had every right to drive to the store.

Both drivers may be committing wrongful actions by harming the enviornment, but it is far less clear. At this point, you might say my theory is not black-and-white, and you would be correct. Morality should not depend on the law or community standards but it is the guide we have; when trying to show that a criminal rule (such as the prohibition against drunk driving) is moral when the community has said otherwise, the burden is higher than a utilitarian balancing of utility (Bentham was wrong in my view).

-D

Bernard Yomtov

DDude,

I don't think we have much disagreement. I was trying to explore why drunk driving is wrongful and driving to the grocery isn't.

My argument is not based on utility either, at least not carefully calculated economic utility. Instead it's based on, as Jack said, a sort of social contract idea. I'll let you put me at risk for your convenience if you will let me put you similarly at risk for mine. Of course utility considerations will enter into our decisions to make this agreement, but that's different than the pure calculation utilitarian approach.

On what do base the "wrongfulness" of some activity such as drunk driving?

CH

Seems unfair that if somebody hits me while I'm buzzed then I'm at fault. I'm fine if they want to double the penalty for doing something wrong, and being drunk. But driving well after a few drinks shouldnt be penalized. Driving under the influence, my record is spotless. Sober driving I've had some accidents/tickets.

Jack

CH: "Seems unfair that if somebody hits me while I'm buzzed then I'm at fault."

I'm not sure that it the typical case. Say that you were rear-ended; I'm sure that the tail-gater would be ticketed and be the cause of the accident but that were you "buzzed" the stats would show an alcohol related, and were you tested (I don't think it requires even probably cause as driving while "buzzed" is inherently illegal) you should pay the penalty for DWI or DUI. BTW, I just found out that OK for example has two laws, DUI is for over .08 and though they seem not to prosecute aggressively over .02 is DWI.

Cheers! and hopes that your DWI record remains "spotless" as even the first "spot" can be a doozy! Could pay cab fare for life with enough left over for a week's vacation. Jack

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