Anyone who’s been to law school is familiar with the Trolley Problem, usually taught in Torts, as a thought exercise useful in understanding how and why the law makes distinctions between the moral choices people make, in either imposing or excusing liability for harm.
The basic plot is simple, setting forth two scenarios (skip this if you know it already):
Scenario 1. A trolley car is out of control in the trainyard, barreling down the track with no way to stop it; there are three workmen on the track who can’t see or hear it in time to avoid being hit and killed by it. The driver (either on board or watching from a control tower), who is not at fault for the trolley going runaway, can throw a switch and divert the trolley car onto a side track, where one workman is working. The driver throws the switch, the trolley car hits and kills the workman on the side track, and the other three workmen are saved.
Scenario 2. A medical doctor has three terminal patients in his ward, each of whom needs a different organ transplant and will not survive the night without one. A perfectly-healthy patient, his only appointment of the day, walks into his office for a regular checkup. Without the patient’s consent, during the examination the doctor anesthetizes the patient, removes the organs that the terminal patients need and performs the transplants, saving their lives as the healthy patient dies.
OK. So, it’s meant to be patently obvious to any right-thinking person that (a.) the railman did the right thing, and (b.) the doctor committed a crime, a reprehensible, indefensible and utterly horrifying one at that; he should go to prison for the rest of his life while the railman gets a commendation from the mayor. But if we set aside mere, intuitive morality and ask ourselves to explain, through objective organizing principles, why the law should treat the doctor differently from the railman, the scenarios actually become harder to distinguish.
Each of the primary actors made the same moral choice — sacrificing one life to save three — for the same reason, and produced the same result. Each actor consciously and deliberately chose to kill the victim. Each actor was faced with the same choice: act, i.e., do something, and kill one person; or forbear, i.e., do nothing, and allow three to die. There was no way to save all four in either scenario, and the primary actor himself was never in any danger. The lone workman on the side track didn’t volunteer or consent to being sacrificed to save the other three, and the doctor didn’t cause the three terminal patients’ illnesses.
I could go on and on. The fact is these scenarios are actually very hard to differentiate; most people who try to solve the problem end up fixating on the particulars (or plausibility) of the fact scenarios, adding facts or adjusting them (usually making it possible to save all four, like Cadet Kirk saved the Kobayashi Maru) in order to create distinctions, which really isn’t the point. And this isn’t just a hypothetical, abstract thought exercise; the solution has real-world implications, as the law has to not only account for both of these scenarios but also objectively justify the different legal outcomes for the railman and the doctor.
The best solution that I’ve heard, read, or been able to come up with, [SPOILER ALERT], has to do not so much with the morality of the two primary actors, or the victims’ consent to put themselves in harm’s way, but in the kinds of ways that society as a whole wants (and doesn’t want) people to willingly put themselves in harm’s way. The idea that, given the choice between saving one life and saving three where we can’t save all four we should always save the three instead of the one — the most obvious moral justification — is clearly not good enough; the doctor’s act was clearly neither moral nor justifiable, the railman’s was. Why? Basically, because we want people to be healthy and safe, but we also want people to do dangerous jobs that the public needs; we want people to go to the doctor because we want a healthy population, and we also want people to go work on the railroad because we want a functional public-transportation system. So, we want people to willingly go work in the railyard knowing they might get killed by a runaway trolley car, but we don’t want people to not go to the doctor because they’re afraid they might get carved up for body parts. Railroad workers should have to take that risk; patients shouldn’t.
Of course, whatever the solution is, here’s what it’s not: That the scenarios are equivalent, and that anyone who thinks either actor deserves a different legal fate than the other — who doesn’t think the railman is just as bad as the doctor — is a hypocrite.
George Will’s bombardment of Both Sides bullshit on Friday night’s Real Time has got me thinking about false equivalence again. You can read the prior diary for my full take on that, but basically the purported conservative intellectual giant complains inter alia about “presidents of both parties” ”mak[ing] war without Congress,” “impos[ing] taxes and rewrit[ing] immigration law, all on their own.” Even if and to the extent it’s true that Democratic presidents — and let’s be generous and say within Will’s adult lifetime, viz., going back to JFK — have done each of these things, are their actions really equivalent to, e.g., the invasion of Iraq, the Drumpfenführer’s trade war*, and the Muslim ban?
[* — Which Democratic president “imposed taxes … all on [his] own”? ]
The Trolley Problem is illustrative here, albeit in a different way from its actual purpose. The Trolley Problem doesn’t present a false equivalence, indeed quite the opposite; it presents two scenarios that we instinctively intuit are not equivalent and then challenges us to meaningfully differentiate them by making us realize that they are, in nearly every important way, the same; i.e., it’s their similarity, not their disparity, that’s supposed to make us uncomfortable and rethink our knee-jerk reactions. Indeed, the Trolley Problem’s two scenarios are far more similar in nature and less distinguishable than, say, Bush’s Iraq War and Obama’s intervention in Libya, or the Muslim ban and DACA. Yet people respond to the Trolley Problem by thinking that one actor is clearly blameworthy and the other clearly is not, whereas the aforementioned real-world scenarios tell us that Both Sides® Are Just As Bad™.
In some respects, the Trolley Problem practically destroys the whole concept of false equivalence, and in others, it’s the ultimate false equivalence. Again, each actor made the exact same moral choice for the exact same reason with the exact same result — yet only one of them committed a crime, which is almost impossible to dispute. If the railman’s and the doctor’s actions and motives are not equivalent, then what two things possibly could be? What makes false equivalence so frustrating is not so much that two things that aren’t the same are almost never equivalent; it’s that the differences between them are, in almost every case, so monumentally important. And that’s really the point of the Trolley Problem; the fact that the primary actors both made the same choice for the same reason with the same outcome in similar circumstances, is not important at all to our ultimate understanding, evaluation and judgment of their actions.
Recently I’ve come up with my own metaphor to describe Both Siderism and false equivalence, which is: One party uses shovels to plant trees, the other uses shovels to bash people’s brains in; the Both Siderist take on that is, “Both sides use shovels.”
Well, yes, both sides do use shovels. But what could possibly be the point or purpose of pointing that out?
Tuesday, Jun 18, 2019 · 11:49:21 AM +00:00 · GrafZeppelin127
I probably could have predicted this, and it’s been pointed out in the comments, but it really is remarkable how any mention of the Trolley Problem leads to a protracted discussion and debate of the Trolley Problem itself instead of the subject that the problem is meant to illustrate, in this case false equivalence and Both Siderism.