The Trolley Problem: More than a Numbers Game?
THE TROLLEY PROBLEM: MORE THAN A NUMBERS GAME?
First Year Postgraduate LLB Student, School of Law, University of the Witwatersrand
Developed by Philipa Foot and expanded on by Thomson, the so called ‘Trolley Problem’ has haunted inquiring minds, especially those of philosophers and jurists, for years. Since its first appearance this vexing scenario has produced a ‘trolleyology’ industry of complicated, new scenarios which test the limits of our moral intuitions and reasoning. However, this essay will focus on the revised classical version. In this version, a hypothetical train driver has to choose between taking either the first route, in which he would effectively kill five, fat, male prisoners, or the second route, in which he would kill one innocent, young girl. This case necessarily raises the question of what is the ‘right’, ‘just’ or morally correct thing to do, and what the connection is between morality and the law. There are various theories to justify either choice. However this paper will explore the consequentialist theory of Utilitarianism and its relation to morality in the form of justice. It is submitted that despite various objections made against Jeremy’s Bentham’s version of Utilitarianism, the refined version as posited by John Stuart Mill, and inadvertently endorsed by Dworkin, is a good attempt at incorporating notions of humanity and justice into the Utilitarian framework. It is further submitted that this framework can be used to argue that the train driver should choose to kill the one girl in order to save the five men.
Utilitarianism is a normative ethical theory that conditions the moral nature of an action upon the consequences of the action. The moral status of the consequence is measured according to the binary calculus of a cost-benefit analysis, namely, utility/disutility. This means that an action is morally justifiable if the consequence of the action has a positive utility; and thus benefits the greatest amount of people. Inversely, an action is morally unjustifiable if its consequence amounts to a greater cost than benefit to the greatest number of people (i.e. if the action results in disutility). The philosopher, Bentham, based this Principle of Utility on the belief that man is governed by ‘two sovereign masters, pain and pleasure’. Bentham developed an objective, scientific method for calculating the utility of an action in what is called his ‘felicific calculus’. This was a novel approach to quickly and efficiently make political, social and legal decisions that would provide the ‘greatest happiness for the greatest number’. Bentham’s aim was to reform the law from a system that benefitted the aristocracy to one that was in the best interests of the majority of the population. According to Bentham, each individual’s happiness or preferences count equally regardless of what they are, so that ‘the quantity of pleasure being equal, pushpin is as good as poetry’. On this approach, the desires of an innocent, little girl do not weigh more than that of a fat prisoner. Only numbers mattered to Bentham so it was always better to save more than less lives. This theory has egalitarian appeal and seems to promote a ‘tolerant spirit’ but it encounters problems which will be discussed further on.
Bentham was a positivist in that he believed that the validity of law was not necessarily linked to morality. Austin, another classical positivist, encapsulated this idea: ‘The existence of law is one thing; its merit or demerit another...A law which actually exists is a law, though we happen to dislike it’. The enquiry into what the law ‘is’, by identifying and describing the law, is conceptually distinct from the enquiry into what the law ‘ought to be’, by evaluating its morality and justice. Thus laws are not necessarily just or good by virtue of their existence. This is different to the natural law position which holds that unless laws pass certain moral tests, they are not legally valid or are inherently defective in some way. Bentham believed this separation between law and morality was important in order to be able to independently assess or ‘censor’ the morality and justice of the law. On Bentham’s view, a just law was one that satisfied the principle of utility, by maximising the happiness of the greatest number of people. Furthermore, Bentham holds that laws ought to meet this Utilitarian standard and those that fail to do so must be reformed. However, Bentham rejected the notion of inherent or natural rights of individuals. The only rights one has are ‘legal rights’, where one would suffer a sanction for failing to respect another’s right. In the absence of such legal sanction, claims of rights were ‘simple nonsense’. Bentham argued that those who put their own interests above the greater good were ‘selfish’.
Accordingly, it follows that the main objection to Benthamite Utilitarianism is that it fails to respect individual rights. Professor Sandel gives the example that if enough spectators filled the Colosseum in Ancient Rome to watch a bull devour a gladiator, the amount of happiness created for the Romans would outweigh the pain of the poor man. A related objection is that Utilitarianism fails to promote justice. McCloskey argues that according to Bentham, in order to pacify a vengeful mob, one should accuse even an innocent person if that will stop the violence. Intuitively, this seems unfair. Rawls is a vehement opponent of Benthamite Utilitarianism and emphasises the unique worth of each individual stating that ‘justice denies that the loss of freedom for some is made right by a greater good shared by others’. Rawls argues that Bentham’s Utilitarianism does not ‘take seriously the distinction between persons’. Under Benthamite Utilitarianism, by weighing the desires and preferences of all individuals in the hedonistic calculus for society in general, an impartial spectator trades-off the suffering of one person for the happiness of another person or people. However the only way to make sense of this compensation between different persons is to conflate ‘all persons into one through the imaginative acts of the impartial sympathetic spectator’. Rawls believes this is irrational and unjust and he thus rejects Utilitarianism, arguing that it could allow for an unequal distribution of resources which would prejudice the poor and the minority, as long as this is counterbalanced by the satisfaction of the majority.
Rawls also shares a similar anxiety with Dworkin about the types of preferences taken into the utility calculation. Rawls is concerned that Benthamite Utilitarianism does not assess the ‘source or quality’ of the desires, but only their ability to satisfy the total well-being. This would allow even discriminatory practices that bring pleasure to be included in the calculus. Dworkin also objects to this feature of Utilitarianism that fails to distinguish between ‘personal’ and ‘external’ preferences. Personal preferences relate to one’s desires for oneself. External preferences are desires we wish to impose on others, including moralistic and even racist ideas. Dworkin argues that if we include external preferences in the utility calculation, the racist’s ideas would count double as he has desires for himself and for others. This is inconsistent with the egalitarian premise of Benthamite Utilitarianism itself, that each person ‘counts for one’ and is also inconsistent with Dworkin’s belief in the ‘basic right to equal concern and respect’. It is interesting, however, that Galston argues that Dworkin unwittingly posits a refined version of Utilitarianism. Dworkin argues that ‘the concept of a political right...is a response to the philosophical defects of utilitarianism’. So Galston makes the extraordinary claim that ‘there would be no need for political rights were we capable of sorting personal from external preferences...the result would be restricted utilitarianism’. It would follow from this reasoning that Dworkin would in fact accept a version of Utilitarianism that excludes external preferences.
This refinement seems to endorse Mill’s version of Utilitarianism that aims to confront and solve the objections against Bentham’s version. Firstly, Mill alters the Benthamite calculus to introduce a qualitative distinction between desires. The ‘higher’ pleasures are those that involve our higher intellectual faculties and would be preferred by people who have been exposed to both higher and ‘lower’, base, animalistic pleasures and so would weigh more on the utilitarian scale. So if we introduced a Roman spectator to the joys of poetry and the pleasures of the Colosseum, Mill argues, perhaps too optimistically, that he would know that poetry provided more happiness than his sadistic pleasures. Mill also proposed that Utilitarianism should in fact require us to act according to certain rules, and not use the utility calculus for each individual act. These rules would maximise the general welfare, and we assess each act according to these rules. So we can avoid the mob justice objection by saying that in general we would promote the general welfare if we created the rule ‘do not convict the innocent’, as this would maintain society’s faith in the justice system.
Mill introduces the notion of justice into his modified utilitarian framework: ‘Justice is a name for certain moral requirements, which regarded collectively, stand higher in the scale of social utility and are therefore of more paramount obligation, than any others’.  He qualifies this, however, saying that ‘though particular cases may occur in which some other social duty is so important as to overrule any one of the general maxims of justice. Thus to save a life, it may not only be allowable but also a duty to steal the necessary food or medicine or to kidnap the only qualified medical practitioner.’ This scenario is what Hoag calls a conflict between a rule of justice and another moral rule. Hoag argues that Mill resolves this conflict by urging us to choose an act which is based on a rule, which maximises happiness. Thus Mill has been called ‘a sophisticated rule-utilitarian’. However, this is different to our trolley scenario, where we are not dealing with a life-threatening circumstance on the one hand and a mere right to property on the other, but the weighing up of one life against another. Mill is still a utilitarian, and would not allow the girl to count for more than one, and a prisoner to count for less. We are not informed whether these prisoners committed a mere traffic offence, or murder. There are many uncertainties, for example the prisoners may add considerable value to their families, and could contribute to society in the future, whilst the little girl may grow up to be a fraudster. Therefore to be fair we must limit ourselves to the number of lives and not the assumed value of the lives. This approach would also accord with Dworkin’s belief in ‘equal concern and respect’ for all persons’.
Mill advocated strongly that justice demands that all individuals be entitled to a minimum of freedom, and as such, all other individuals were necessarily limited from depriving anyone else of it. This included a limit on the state’s ability to impose a preferred way of life, even for the overall good, because it would reduce utility in the long-term. Mill passionately claims that by the state imposing a certain conception of the good on people through the law, ‘there will be no scope for spontaneity, originality...whatever is rich and diversified, will be crushed by the weight of custom’, which will be severely detrimental to society as a whole. Mill emphasises that in order to create the most welfare in society, and thus a just society, the state must not interfere with this essential liberty. Mill believes that the law must check others in the exercise of this freedom, and may even use force in order to prevent harm to another’s liberty.jwerhjkwehjfghjwefegfwefgwejhfhwe
Therefore, this paper demonstrates how Mill articulates the revolutionary idea that liberalism and utilitarianism are not mutually exclusive, and that it is possible to include a sense of justice into the utilitarian calculus. It is interesting to note that our Constitution already embodies this duality with the notion of rights that can be justifiably limited for the public good. Therefore in this ‘knotty’ case, it is submitted that in line with Utilitarian view, it is only fair and just to kill the one to save the five.
 Sinnott-Armstrong, Walter ‘Consequentialism’ in Edward N. Zalta (ed) The Stanford Encyclopedia of Philosophy available at http://plato.stanford.edu/entries/consequentialism/.
James & Stuart Rachels The Elements of Moral Philosophy 7ed (2011) 111.
 Costas Douzinas & Adam Gearey Critical Jurisprudence (2005) 153.
 David Edmonds Would You Kill the Fat Man? (2014) 71.
 Harvard University’s Justice Lectures with Michael Sandel, Episode 2 available at http://www.justiceharvard.org/2011/02/episode-two/#watch.
 Edmonds op cit note 4 at 73.
 Michael Sandel Liberalism and Its Critics (1984) 2.
 Denise Meyerson Jurisprudence (2011) 27.
 Robin West Normative Jurisprudence An Introduction (2011) 60.
 Meyerson op cit note 9 at 26.
 West op cit note 10 at 62.
 Meyerson op cit note 9 at 74.
 Ibid at 71.
 Edmonds op cit note 4 at 73.
 Meyerson op cit note 9 at 255.
 Sandel op cit note 8 at 2.
 Rachels op cit note 2 at 113.
 John Rawls ‘The right and the good contrasted’ in Michael Sandel (ed) Liberalism and its Critics (1984) 39.
 Ibid at 38.
 Rawls op cit note 20 at 38.
 Ibid at 41.
 Paul Yowell ‘Critical examination of Dworkin's Theory of Rights’ (2007) 52 American Journal of Jurisprudence 93 at 100.
 Yowell op cit note 24 at 101.
 Raymond Wacks Understanding Jurisprudence 3 ed (2012) 237.
 William A. Galston Justice and the Human Good (1980) 136.
 Sandel op cit note 6.
 Edmonds op cit note 4 at 78.
 J.S. Mill ‘On the connection between justice and utility’ in Alan Ryan (ed) Justice (1993) 71.
 Robert W. Hoag ‘Mill on conflicting moral obligations’ (1983) 43 Analysis 49 at 50.
 Hoag op cit note 32 at 53.
 Wacks op cit note 26 at 237.
 Isaiah Berlin ‘Two concepts of liberty’ in David Miller (ed) Liberty (1991) 39.
 Berlin op cit note 35 at 39.
 Brian Bix Jurisprudence Theory and Context 2 ed (1999) 145.
 Hoag op cit note 32 at 49.