Thursday, June 5, 2008

Tort Law and the Harm of Death

A question related both to philanthropic antinatalism (especially what some see as its apocalyptic implications) and to suicide rights is the question of whether death is a harm to the person who dies. Objections to death being a harm to the deceased person are that nothing can be a harm unless it is perceived by the harmed person, and that, if there are non-conscious harms, it is difficult to assign the harm to a subject. Thomas Nagel, in his essay "Death," in Mortal Questions, grounds the special harm of death in the idea of deprivation: the subject is deprived (of future experiences), so to the extent that his life would have been worth continuing, he is harmed by death.

But even if death deprives a person of something, what harm is it to him, since he does not suffer by the deprivation? The case that Nagel finds convincing is that of an intelligent adult reduced, through traumatic brain injury, to the mental capacity of an infant. Surely, for Nagel, this person has been harmed, though he does not realize it or perceive it. Nagel, however, imagines this objection, which I imagine would be Jim's objection:
He does not mind his condition. It is in fact the same condition he was in at the age of three months, except that he is bigger. If we did not pity him then, why pity him now; in any case, who is there to pity? The intelligent adult has disappeared, and for a creature like the one before us, happiness consists in a full stomach and a dry diaper. [Prurient emphasis mine.]

Nagel, of course, does not find this objection persuasive. He sees the harm as occurring, not to the brain-damaged person, but to the healthy person prior to the injury, in having been reduced to such a state. In other words, Nagel is willing to assign harm backwards in time. But is this so strange?

For a long time, I had a hard time intuitively understanding sexual jealousy. It seemed to have about the same objective reality as the cultural tradition of celebrating birthdays or saying "bless you" when someone sneezes. And, as an irrational, ridiculous, harmful social construct, it deserved no respect, and existed only to be eradicated. However, I have since been convinced by evolutionary psychology data that sexual jealousy is very much real, in the sense that it is not "socially constructed" like birthdays, and causes people genuine anguish. Though it is not intuitive to me, it is only proper to recognize that other people feel harmed by it, rather than assume they are making it all up. (Incidentally, the violent sexual jealousy suffered by humans, coupled with the sexual exuberance that humans also display, seems to function as a very real limitation on human happiness, at least given our current biological make-up.)

If harm can never occur unless someone perceives it as a harm, then we must take the position that sexual infidelity does no harm to the cuckolded partner, even where monogamy is promised, unless it is discovered. This presents two problems. First, it conflicts with the widely-held intuition that sexual infidelity is a harm to the unaware partner. If you refuse to sleep with your friend's girl, you say, "I wouldn't do that to my buddy" - not "I wouldn't do that because it might get discovered." Second, and related to this, is that when a person discovers that he has been betrayed sexually, he does not date the harm to the discovery; he dates it, most certainly, to the incident of the infidelity. (He is not sad that he found out; given the infidelity, he will probably say he is glad to have found out. He is sad that the infidelity occurred.) In cases like this, at least, it is common to backwards-date harm; are we forbidden to do this with the harm of death simply because, given our conception of time, causality cannot actually move backwards?

I must say that I am not entirely convinced of the rightness of either position; the idea that harm can occur when there is no one to perceive it is intuitively strange to me, but the objections commonly offered do not leave my mind easy, either. (See O.H. Green's "Fear of Death," in Philosophy and Phenomenological Research, Vol. 43, No. 1, Sep. 1982, pp. 99-105, for a view on how death may be wrong (or "evil") without actually being a harm.) I am persuaded by the arguments, however, and by the obviously conflicting intuitions of others, to the point where I have severe doubts about the goodness of ending life where a person wishes to continue to live, as prescribed in the "apocalyptic imperative" case.

I want to digress briefly to point out that, in the above-mentioned essay, "Death," Nagel articulates both a pro-natalist position and the idea that not being born is not a misfortune (usually the more contentious half of the antinatalist asymmetry) in the same paragraph:

The fact that Beethoven had no children may have been a cause of regret to him, or a sad thing for the world, but it cannot be described as a misfortune for the children that he never had. All of us, I believe, are fortunate to have been born. But unless good and ill can be assigned to an embryo, or even to an unconnected pair of gametes, it cannot be said that not to be born is a misfortune.

But back to the harm of death. What I want to explain here is that American tort law, interestingly, accords with the view that death is not a harm to the person who dies, even when that person is killed by the wrongdoing of another!

When a person dies through the wrongful act of another, whether negligent, reckless, or intentional, there are two separate lawsuits ("causes of action," in legalspeak) that may be pursued. First is what is called the survival action. To call it a "survival action" means that the right to sue existed while the person was alive, and continues after his death. (If someone is legally wronged during his life, he does not lose the right to sue for a remedy if he dies; his estate retains the right to sue for wrongs committed against him during his life.) Second is the wrongful death action, created by statute, to give the relatives of a deceased person a remedy for being deprived of his company and support.

The reason I claim that tort law accords with the notion that death is not a harm to the dead person is that, in the survival action, the decedent may only recover for harm that he experienced during his life. He may recover, for instance, medical expensed incurred prior to death, and for pain and suffering experienced prior to his death. But he gets nothing for being deprived of his life. As the court in the O.J. Simpson civil appeal (Rufo v. Simpson, (2002) 86 Cal. App. 4th 573) noted, in very quick killings, the only "compensatory damages" available may be for the damage to the victim's clothing. (Punitive damages are available, interestingly, in the survival action for an intentional killing, even if compensatory damages are quite small; this accords with the strange idea proposed by O.H. Green that death may be evil, but not a harm!)

The harm of the death itself is recognized only in the wrongful death action - that is, as a harm to the survivors, not to the decedent himself. Interestingly, this is applied even where the survivors are suing a mental health practitioner for failing to prevent a suicide - the damage is recognized as harming the survivors, not the decedent. It is hard to square tort law's failure to recognize death as a harm to the decedent with the alacrity with which other areas of the law impede suicide.

Apparently Eliezer Yudkowsky thinks death is a harm, though he doesn't explain to whom, because "death events" create "negative utility." Negative utility to survivors? Potential dead people who might fear death? In any case, how can something create negative utility if the people whose utility is to be measured are all dead? Surely there's someone who'd be very happy to be alone in the world, happier than the average person currently alive. (Average utilitarianism suffers from some of the same problems as utilitarianism based on summing utility.)

[Quotation from poster]Unknown:

"Besides (in the usual single world): is Eliezer willing to kill off everyone except the happiest person, therefore raising the average?"

No. Because that creates Death events, which are very large negative utilities.

Sigh. Seriously, though, dude's brilliant and I'd like to know what his essential values are.

Edit: Eliezer points to an explanation of his views on happiness and value in his essay, "Not for the Sake of Happiness (Alone)."

5 comments:

  1. Hi, Curator! How do you do it? (feeling like a piker, here).

    Anyhow, I just wanted to say that I can't see a way of approaching this subject in a seriously objective fashion. If death seems like a harm, I guess it is; I think the only argument to be had lies in the definitions. For me, harm in the context of antinatalism exists exclusively in the experiential realm. To say that a person is harmed or deprived after death is achieved seems completely abstract to me, and is totally removed from my sensibilities. Again I ask, how can non-existence be deprived? Makes no sense to me, whatsoever.

    As far as sexual jealousy is concerned...well, yeah, it's real enough, I guess. And probably somewhat based in biological imperatives as well. But I dreamt of unicorns this morning, and those were also real thoughts, accompanied by brain function, bodily responses, et al.

    Concerning infidelity and the like, I think we've come back down into the experiential realm again. Emotional hurt, mostly. Part of the milieu of suffering that matters. And death as a process, but not at arrival. Seems like a huge difference to me.

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  2. Eliezer YudkowskyJune 5, 2008 at 2:20 PM

    Death is the end of the dreams and hopes of the person who just died. It is a harm to the person who existed before then; their desires have been frustrated.

    Bear in mind that, in my general philosophy, utility functions are about more than states of mind. See e.g. "Not for the Sake of Happiness (Alone)" on OB.

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  3. Ah - yes, it was presumptuous of me to assume I could glean your entire view from a single-line comment. I love your piece, and while I think we arrive at our views from different routes, they seem to accord well. (I ultimately come down on Nagel's side, though he's much cheerier than I am; I think there's value to actual freedom, for instance, not merely the appearance or feeling of freedom. People who are deluded into thinking they're free have been harmed if they actually value freedom.)

    Happiness is great, relief from suffering is great, but no one should have happiness or relief from suffering imposed on him, in violation of something else he might value - including continued life. (Just like no one should have other values imposed on him, if he prefers happiness and relief from suffering to those other things.)

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  4. Nice to meet you, Mr. Yudkowski. I read your piece, and would like to offer this analysis. You said...

    "I would be disturbed if people retreated into holodecks and fell in love with mindless wallpaper. I would be disturbed even if they weren't aware it was a holodeck, which is an important ethical issue if some agents can potentially transport people into holodecks and substitute zombies for their loved ones without their awareness. Again, the pills make it clearer: I'm not just concerned with my own awareness of the uncomfortable fact. I wouldn't put myself into a holodeck even if I could take a pill to forget the fact afterward. That's simply not where I'm trying to steer the future."

    And yet, it's theoretically possible that you are, right now, a member of an advanced technological society, but you've contracted an incurable illness. However, in cases such as yours, citizens are placed in a sort of stasis, but where brain function is sutained, then wired up to a virtual world where they continue living a virtual life; perhaps according to specific wishes, or perhaps randomly.

    So, here you are, living a virtual existence. Would you choose to opt out? Or would you simply be against creating another virtual reality INSIDE your virtual reality, for the same reasons stated? Can anybody say 'infinite regression?'

    I only posit this hypothetical to illustrate how existential concerns which venture beyond the experiential, can lose their cohesion when examined closely. Would recognition of your real existential status be the same as death to you, marked by the sudden deprivation of authenticity, or the shift in value assessments? Would you experience a devaluation of your dreams and hopes? Or would you adjust to the situation, as you came to realize that it was all about the experiential side after all?

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  5. Eliezer YudkowskyJune 5, 2008 at 11:53 PM

    I see very little distinction between a virtual rock and a real rock, but I see a major distinction between real people and fake people. If my mother is a zombie, I will consider myself deceived and harmed. As for rocks, I it's hard to imagine anything weirder for them to be made of than quantum physics, so in that sense, reality is already pretty different from appearances.

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