Here is another example I have found interesting in its own right but also helpful in thinking about consent. It is an admittedly completely artificial case of triage.
Al’s favorite hobby is the piano. One day he has a traffic accident. As he is pulled from the rubble he notices that the dexterity of one of his fingers is somehow impaired. He is greatly worried, and goes to an emergency room, where he finds exactly one physician in attendance. It quickly turns out that time here is of the essence, if Al’s finger is to be restored to its former piano-playing level. Luckily there is no other patient competing for the doctor’s attention.
But as the doctor is about to treat Al, something unfortunate happens. For just then Bea is brought in, who has suffered a serious injury to one of her legs, which will turn into paralysis unless immediately taken care of. Loss of one’s leg being a bigger problem than a slight loss in digital dexterity, the doctor of course immediately turns from Al to Bea.
And then something else very strange happens. Al notices that he has suffered another injury he and the doctor have overlooked so far—an injury which, if not taken care of immediately, will cause him to lose the use of both his legs. By virtue of this fact, he of course immediately regains the doctor’s attention.
Then things get even stranger. For Al asks the doctor to please ignore his legs for the time being and just focus on making sure his finger is fully restored. At first the doctor refuses. “How can I possibly justify not dealing with Bea’s more serious leg injury for the sake of dealing with your overly intense concern about your finger.” “Never mind,” says Al, “Bea is not going to be treated, no matter what. If you don’t treat my finger, you will have to treat my legs. So Bea is truly out of the running. She is not going to get priority. And given that you are committed to treating me, wouldn’t you do better if you did what I preferred, which is to have my finger rather than my legs treated first? Isn’t that a win-win transaction?”
The doctor now has to choose among three alternatives: Treating Al’s hands first, treating Bea’s leg first, or treating Al’s two leg injury first. Each of these seems for different reasons unacceptable.
How can he treat Al’s finger when Bea’s more serious leg injury needs attention? How can he treat Bea’s leg injury when Al’s far more serious leg injury isn’t getting treated? How can he treat Al’s leg injury when Al clamors to have his finger treated instead? We are in a sort of cycle.
How is it to be broken? At least one plausible way of breaking it, my own guess is that it is the most plausible, is to not let Al opt for getting his finger treated. He retains his priority over Bea only if he has is leg injury treated, not otherwise. But that means that we are rejecting a win-win transaction. For that is what the doctor’s treating Al’s finger rather than his legs surely is.
But why exactly is that?
Why exactly shouldn’t the doctor accommodate Al’s preferences? The reason, in brief, is that Al has a strong claim on the doctor’s attention for his serious injury and a much weaker claim for his less serious injury. That’s a common phenomenon—having a strong claim to something we care less about as compared to something else we care more about but have a less strong claim to. (We may value what belongs to someone else more than we value something that belongs to us, to pick the most rudimentary illustration.)
If the doctor were to attend to what Al has a strong preference but a weak claim to—treat his finger—Bea would rightly be able to protest: “What, for the sake of a mere finger, I am to lose the use of my leg.”
A parallel example might help to clarify what is going on here. Suppose a friend asked you for help with some dental treatment he can’t afford. Since he is your friend, you feel impelled to help him.
But then he changes his mind and insists that he would get much more out of using that money on a cruise. Now you will balk. Not necessarily because you don’t believe him, but because he has less of claim on your help if it is for the sake of a cruise than for the sake of medical treatment. The mere fact that it would be a win-win transaction if he let him have the money for the cruise rather than the medical treatment won’t necessarily lead you to acquiesce in his request.
In other words, where claims are involved, we run into problems with consent.
Now let’s see how this might help with voluntary torture. Once again picture Al in the emergency room with his two-leg injury, but no finger injury this time around. And there is also Bea, with her one leg injury. But now let us add an important new twist. Let us suppose that Al is a prisoner to whom the state offers the option of escaping his life sentence if he agrees to have his two legs chopped off without anesthesia. This is something he can only do if he still has two legs to sacrifice.
You can see the difficulty: Bea will immediately protest “How can I be expected to sacrifice my leg to enable this criminal to slightly improve his position, even if that means that the state gets to save the cost of housing him?” If we want to be able to answer her satisfactorily, we might well feel compelled to say: He can’t. He gets treated because he has a greater claim to getting his two legs restored than you have to getting your one leg restored. But that means it would certainly be extremely disturbing if we then allowed him to devalue that sacrifice by putting his legs on the chopping block in exchange for some other benefit to which he has a lesser claim, like a shorter prison sentence.
Although this example may seem very context-specific, there is a more general point lurking here which can be put like this: When the law—or a doctor in a triage situation—recognizes a claim, it implicitly puts a value, or price, on something.
When the law declares that a doctor may give priority to a leg injury over a finger injury, or that a driver may impose a great danger on others if he is driving at breakneck speed to get his leg treated, but not if he is doing so to get his finger treated, or that a person being attacked can use deadly force to protect against a permanent injury to his legs, but not to protect against slight damage to his finger, then the law is putting an implicit price on legs as compared to fingers.
When the owner of the leg, or the finger, then tries to enter into a transaction in which a finger is treated as of greater value than a leg, we get inconsistency and cycling. Which is something the law is uncomfortable with. Hence it tries to ban those transactions.
I will be back one more time, on Monday, with a “terminal” post in which I try to respond to at least some of the very interesting comments and reactions I have gotten.