Knowledge And Decisions

Where certain general rights involve virtually universal desire — such as the desire not to be murdered — incorporating it into specific law eliminates the transactions costs of pointlessly litigating anew each time the net harm of the individual act, in a common-law approach without any explicit law against murder. Making price fixing illegal per se similarly spares courts repeated reruns of introductory economics in antitrust cases. It may seem like a strange and weak justification for enacting basic rights into law that this will save a little court time. Such laws, however, transmit virtually unanimous knowledge — not only about the abhorrence of the crime but about the determination to act against its perpetrators. No such information either exists, or would need to be transmitted if it did, in cases involving voluntary transactions. If it were somehow impossible to kill anyone except with his own voluntary cooperation, the case for laws against murder would be much weaker than it is, and there might be something to be said for litigating each episode from scratch to determine what harm had been done.

Even laws against murder are subject to diminishing returns, and ultimately negative returns. A terminally ill patient who has permanently lost consciousness may be kept organically “alive” for months or years after his brain is dead, as insurance against a murder or manslaughter charge against the doctor or hospital authorities. Other terminally ill patients whose only consciousness is of overwhelming pain may have their agony artificially prolonged for the same reason, even though drugs are available to relieve this pain — with the side effect of shortening their “life.” The economic ruin of a patient’s family or the suffering of the patient himself are the implicit “premium” paid for this “insurance” policy against homicide charges. It is an external cost to the decision-making medical authorities, and so does not constrain their behavior. Disproportionate as the costs and benefits might be in any individual case — the costs to the patient and his family being so much more than the benefits to the doctor — the larger social question is how many people would take on the care of terminally ill patients (or patients who might become terminally ill) if it meant facing daily prospects of homicide charges from more humane medical procedures?

The tragedy is implicit in the categorical nature of laws in general, and homicide laws in particular. The legal system is still wrestling with the problem of trying to introduce some incrementalism into this area — for example, with individual court orders to disconnect life saving equipment from terminally comatose patients, essentially dead people whose organs and medical bills are being prolonged. But the psychic and legal costs of obtaining such court orders make them practically unavailable to many people. The point here is not to “blame” anyone. Quite the contrary. This situation is a tragedy in the classic sense of a humanly unavoidable devastation. It may even be that there is no real “solution” that would not open the way to the deliberate sacrifice of other sick people for their estates, their organs, or to simply be rid of an inconvenience.

The law against murder has been used as an illustration of the diminishing returns to laws and policies in general, precisely because it is one of the most universal of all laws, occurring in the most diverse social and legal systems and enduring through the ages. There is no distracting side issue of the desirability of the goal. Diminishing returns and negative returns to such an essential law are a sobering indication of the limits of any law or policy — and of the limits of knowledge, on which decisions depend. Even if, at a given juncture, it is obvious to the patient, his family, and the doctor that suffering should not be artificially and pointlessly prolonged, the transmission of that knowledge in categorically articulated terms documentable to third parties is what determines whether the murder laws will apply.²⁵ In general, diminishing returns and the limits (costs) of knowledge inhibit the application of all laws and policies, however obvious or desirable their goals might seem.

Where the basic general rights involved are rights against the government — as in the Bill of Rights — saving transactions costs is no small consideration, given the gross disproportion between the resources of the government and those of a private individual. Putting the burden of proof on the government likewise saves transactions costs. Without such rights and with no burden of proof difference, each person would have to litigate against general government arguments as to his harmfulness until his money ran out and then plead no contest. Saving transactions costs is saving the rights themselves from meaninglessness.

TIME