Deontological Constraints in a Consequentialist World: A Comment on Law, Economics and Morality
University of San Diego School of Law
September 8, 2011
Jerusalem Review of Legal Studies, Forthcoming
San Diego Legal Studies Paper 11-071
Eyal Zamir and Barak Medina (Z & M) are deontologists. They believe in deontological constraints, that is, that there are some things that are wrong to do to people even if the consequences of doing so are on balance positive – indeed, even if the consequences are on balance the best that can be attained by any alternative act or policy. On the other hand, Z & M are not absolutists. If the consequences of not violating deontological constraints are sufficiently bad – if they exceed some threshold of “badness” – then violations of the deontological constraints are permissible. Z & M are thus “threshold deontologists.”
Threshold deontology is an attractive position because it presents us with the promise of being able to negotiate the strait between the Scylla of thoroughgoing consequentialism, and its willingness to sacrifice people in every conceivable way on the altar of improving aggregate welfare, and the Charybdis of absolutist deontology, and its “though the Heavens may fall” refusal to countenance any constraint violations. The question, however, is whether threshold deontology’s promise is capable of being redeemed. In a previous article, which Z & M take due note of, I raised some doubts about threshold deontology’s theoretical tenability. And although Z & M have devoted an entire book to threshold deontology and its applications, my doubts are unassuaged.
Keywords: deontology, threshold deontology, consequentialism
JEL Classification: K10
Date posted: September 10, 2011
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