Let me present you with a problem I have found quite fruitful to contemplate, both because I find it intrinsically interesting and because it seems to carry a larger lesson. It is the problem of voluntary torture.
Imagine the following proposal by a wild-eyed legislator for making our criminal justice system more efficient. “The point of punishment is pain,” he explains.”Obviously. Without pain, we don’t get deterrence and we don’t get retribution. But prison happens to be a very expensive pain delivery system. There is a much cheaper one which for some reason we haven’t really adequately considered. Instead of making a prisoner’s life moderately painful for a prolonged period of time, which is what prison does, why not just make it intensely painful for a very short period of time: a lot of pain, but for a short duration—that should give us as much retribution and deterrence as before but at a fraction of the cost.”
Seeing the astonished expression on your face, he adds, “And before you dismiss me as being stuck in the middle ages, let me point out that this is not what we had back then. This is Voluntary Torture, with the emphasis on voluntary. No one gets tortured unless he asks to be and unless we have made sure that he is really competent to give his assent. And if he ever wants to back out, of course he can. In other words, everyone is free to serve his regular prison term, but if instead he wants to opt for voluntary torture, we’ll let them.”
Noticing your continuing puzzlement, he elaborates further: “You might wonder why any prisoner would want to opt for torture instead of prison. But of course that only depends on our making the torture option just a smidgeon more attractive than the prison sentence. To be sure, doing so detracts a little from retribution and deterrence, but only a little. If we do things right, most prisoners will flock to voluntary torture the way a paralyzed person would to a medical procedure that promised to enable him to walk.”
I view the deal the legislator is suggesting we offer each prisoner as the quintessential win-win transaction. Everyone is better off. The prisoners (though only marginally so, to be sure) and society at large which now has to pay only a fraction of what it used to have to pay for deterrence and retribution.
Nevertheless, like most other people, I would not for a moment contemplate seriously adopting the legislator’s proposal. The question is why?
The reason I find the voluntary torture problem interesting to think about is that teaches a larger lesson about consent. We have here a case in which none of the standard or even the not so standard reasons for disapproving of a win-win arrangement between several parties are applicable. It is not a case involving force or fraud or incompetence or bad effects on third parties, those being the standard reasons for invalidating a mutually beneficial bargain. Nor is it a case in which paternalism (“we know better than the prisoner what’s good for him”), commodification (“some things just can’t be sold”) or exploitation (“there just isn’t any equality of bargaining power here”)can really be invoked to explain why we disapprove of the bargain.
Now the law prohibits a wide range of mutually beneficial transactions—from surrogacy contracts, to organ sales, prostitution, indentured servitude, Russian roulette, gambling, to name just some of the most familiar ones—and we feel perennially uneasy about whether it really should, at least if the parties know what they are doing, and there is no force or fraud involved. Invoking paternalism, commodification or exploitation as reasons for doing so leaves many people cold.
The voluntary torture example suggests that some other as yet unidentified reason must be at work here to explain why we disapprove of certain win-win transactions. And perhaps that reason will turn out to be the true reason why the law bans the win-win transactions we are more familiar with, like organ sales and such.
But what could that reason be? For that the reader must await tomorrow’s post, or if he is so inclined, take a peak at Why the Law Is So Perverse.