Consequentialist Laws

In the realm of ethical theory and political philosophy, there has been a great deal of debate between deontological and consequentialist conceptions of justice. Practically speaking, however, the positive law is consequentialist in its application.

Consider the following two scenarios.

Scenario 1: A man operates a motor vehicle while intoxicated. As he is driving home he collides with and kills a pedestrian.

Scenario 2: A man operates a motor vehicle while intoxicated. He arrives home safely without incident.

The deontologist views the man in each scenario as equally deserving of moral blame. In both scenarios the man's excessive drinking was irresponsible and in both scenarios he failed in his duty to his fellow community members by his decision to operate a motor vehicle while in an intoxicated state. The man’s disregard for his moral duty in scenario 1 is identical to his disregard in scenario 2. The consequences are not relevant to a deontological assessment of moral culpability. In either case the man has failed in his duty of care in exactly the same way and has adopted the same degree of recklessness towards the safety and security of others he might harm.

The law, however, views these two scenarios very differently. The man in the first scenario will go to prison, while the man in the second scenario will be immune to the law, since it is only through the consequences of his recklessness that the punitive provisions of the law can operate. Even if the man in the second scenario is pulled over by the police prior to any harm caused, his sentence will be less severe than if his actions had resulted in a reckless homicide.

Ethicists may argue that moral blameworthiness is properly apportioned on the basis of failure to fulfil certain duties, rather than any consequential outcomes, but the fact of the matter is that the law presently apportions blame upon profoundly consequentialist principles.

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