with ANDREW GOODE, Mellor Olsson Lawyers
A recent Financial Review article by Cass Sunstein discussed moral intuition and the concept of utilitarianism.
Utilitarianism, when applied to potential decisions, involves the government of the day making decisions that it considers are for the good of the many, usually at the expense of some. The more utilitarian the approach of government, the greater the likely adverse impact on some of the citizens.
The article gave some well-known examples to test how utilitarian you are. Perhaps we should ask the politicians to take this test before they are elected.
The first test is described as the ‘Trolley Problem’. You are standing up by the side of a railway track next to a lever. You see a runaway trolley racing down the track as the brakes have failed.
Five people are tied to the track; they will be killed unless you do something. If you pull the lever, the train will be diverted onto a side track. The problem is that there is a person tied to the side track, and if you pull the switch that one person will be killed. Should you pull the switch?
Another test involves the ‘Footbridge Problem’. You are standing on a footbridge overlooking a railway track and you see a runaway train hurtling towards five people tied to the track. They will be killed unless you can do something. There is a very large man next to you on the footbridge, and the only way to stop the trolley is to push him over the footbridge and on to the track, killing him to save five people. Should you push him?
Certainly, if you had a lawyer standing next to you and asked his/her advice, from a legal point of view, they would probably recommend you take neither action. Certainly, in the second example, on the footbridge, you will have committed murder, notwithstanding that you may have saved five people. While I am not a criminal lawyer, I expect the same would apply in the first example.
However, you are meant to ignore the strictly legal scenario in deciding what you would do from a utilitarian point of view. Interestingly, it was suggested that some people are more likely to push the man off the footbridge if he had a fancier name. If his name was Chatsworth Osborne Jnr he may have less chance of survival.
It begs the question, of course, of who would be pushed off the footbridge if the choice was between a lawyer and a doctor? I am not sure I want to know readers’ responses to that question!
A good example of a politician taking a utilitarian approach was President Harry Truman in World War II. President Truman could use the atom bomb, end World War II swiftly, but kill tens of thousands of innocent people, or wage war via a land and sea attack on Japan, which would certainly have increased American (and Australian) casualties and prolonged the war. Adopting a utilitarian approach, particularly from an American standpoint, he dropped the bombs.
While we need politicians with a utilitarian streak to make tough decisions, the aim is to elect leaders who ensure the impact is lessened as much as reasonably possible, and citizens are fairly compensated for any losses.
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