A complement to: Financial Suicide: Lessons From Economic Demography
“…if large portions of your population suddenly emigrate, or suicide rates markedly increase, it might be time for a Plan B.”
Now, as a lawyer, I am of a more vindictive and backwards looking sort. When the proverbial substance hits the fan I want to know who to blame and why. Mellors points to a study in the British Medical Journal, which indicates that around one thousand people in England have committed suicide as a result of the recession, due to a combination of rising unemployment and the devaluation of savings. Intuitively, it is clear who is to blame: those that made the choices giving rise to the conditions that prompted these unfortunate individuals to end their lives. This is commonly assumed to be politicians (by imposing austerity measures) and bankers (by prioritising short term profit over sustainability).
Explaining how and in what way responsibility attaches is more exacting than simply levelling our condemnation. At the outset, let me say that I view the likelihood of a successful lawsuit being brought against either politicians or bankers as next to nil. Nonetheless, law provides analytical tools useful for considering moral responsibility, which is what I would like to address here.
In order to make meaningful inroads on this subject we will need to make two assumptions. We must take it as read that the financial crisis was a major contributing factor to the suicides in question. Lawyers have a term for this: ‘material contribution to risk’. What constitutes ‘material’ in these circumstances is always much debated but let us take temporary refuge in the vagueness of language and say that we assume a ‘substantial’ contribution, so that it would be eccentric to claim that the financial crisis was merely the icing on the cake. I think we can go ahead and make this assumption without too much concern however: the notion of suicide resulting from financial cataclysm is hardly novel. The second assumption we must make is that the choice to commit suicide was in every relevant respect a free choice. These individuals involved looked at their lives and decided that the pros were vastly outweighed by the cons.
Now, there are two common ways of abjuring responsibility for something one caused in the rather loose sense of a ‘material contribution’. The first is to attack the moral relevance of the contribution itself. “Well,” goes the argument, “I can’t be responsible for this disaster, because if I hadn’t acted in such a way, someone else surely would have done.” We can understand our interlocutor to be saying something along the following lines. The salient factor in establishing moral responsibility is not whether one merely adds to the likelihood of a particular outcome but rather that one would have been an essential and irreplaceable link in the causal chain that lead to that state of affairs. Lawyers call this the ‘but for’ test (that is, but for X there would have been no Y).
There is something intuitively appealing about such a position. Unfortunately, intuitive appeal is all it really has. Imagine the following example. Bob is standing before a firing squad. They all raise their guns and fire at exactly the same time. All the bullets hit him in the heart at exactly the same time, with the obvious consequence. In what way could the individual members of the firing squad be said to have been so unique to the cause of Bob’s death that were it not for them, it would not have occurred? There is no ‘but for’ here: remove any one and the result would be the same. Does that mean that none of them are morally responsible? This is often called a ‘false negative’ and is the logical result of fetishising this overly simplistic theory of responsibility.
Now imagine all but one of the firing squad has a blank round but none of them know which one. They are essentially all taking a knowing risk, say one in five, that they will be the one to actually kill the hapless Bob. Does this make those who in fact do not fire a live round less responsible for his death than those who do? In a straight forward causal sense it does, but we are concerned with their moral responsibility. The explanation for why we feel they ought to be responsible is actually quite simple. Bob has a right, good against the whole word (erga omnes if you want to be all pompous and legal) that he is not blasted to Kingdom Come. By taking the conscious risk that they will be the one to kill Bob, each member of the firing squad violates that basic right.
This tells us something important about our interlocutor’s first defence: it is morally irrelevant that someone else might have taken the same conscious risk as you. The fact is that you took it. The moral harm, that is the breach of the right, has already been done at that stage. So much for the first defence.
The second common defence to such a charge of moral responsibility goes something like this. “Well,” says our now slightly sheepish interlocutor, “Even if I took the risk that they might commit suicide, it was they who actually decided to do it. I surely cannot be held responsible for someone else’s choice!”
This is one example of a general claim about moral responsibility that distinguishes between ‘proximate’ and ‘ultimate’ causes (another set of terms beloved by lawyers). The ultimate cause of something is notoriously difficult to pin down. What is the ultimate cause of you reading this article? Is it the link you saw on another webpage or is it that you decided to surf the internet? Or is it, more remote still, the fact that you woke up this morning instead of passing away in your sleep? We can trace the causal links of events back through time to the point of absurdity, without being able to tell where the important link in the chain actually is.
Enter the proximate cause. We usually say that the proximate cause of something is the ‘causally significant’ event that directly preceded the state of affairs in question. So we might say that the proximate cause of the Titanic sinking was it hitting the iceberg. The difficulty of proximate cause as a means of determining moral responsibility is that deeming a particular action or inaction to be proximate is to thereby assume the moral significance of that cause. Didn’t the Titanic really sink because no one was keeping an effective lookout? Viewed in this light, the second defence of our interlocutor dissolves into the rather absurd tautology of, “I am not responsible for that suicide because I am not responsible.”
What the problem really boils down to is this: we have to choose what we deem morally significant in a particular chain of causes in terms of a judgment about the moral responsibility of the parties involved. In the end it comes back to our rights. Everyone has a right not to have their continued existence put in jeopardy by the careless and unthinking acts of others who should, quite frankly, have known better. (To doubt that politicians and bankers knew better would be to doubt that they understood economics or could read newspapers.) I am fortunate to have a friend who is something of a virtuoso on the piano. If he were to have a fit of rage and fling his Steinway from a third story window he would have clearly violated the rights of those walking below the window through his careless disregard. The reason we do not let people recover for the violation of rights alone is that the practice of law is about money and harm helps quantify that money. It also helps keep down the amount of lawsuits that get pumped through the system every year. But neither of these things speaks to whether or not there has been moral injury or moral responsibility.
Going back to our bankers and politicians we can see that neither defence is available to them. Assuming that they materially contributed to the risk of suicide and can be demonstrated to have shown reckless disregard for the wellbeing of others, they acted in such a way that violated those people’s rights. The fact that a conscious choice to commit suicide was involved in no way diminishes this. To demand that there only be one ‘bad guy’ here and this has to be the person actually committing suicide is hopelessly naïve and irresponsible. What stops both the risk taker and the victim of that risk being responsible for the result? Such a conclusion would not absolve either. Certainly it might make the relevant person less worthy of condemnation than a murderer but who in their right mind would think otherwise?
Having used legal ideas to demonstrate that holding bankers and politicians morally responsible is a basically defensible position, it might seem odd that I also believe that a successful lawsuit is highly unlikely. After all, foreseeable harm has clearly been suffered as a result of this risk taking. Unfortunately that is not all there is to it. Judges are generally quite hesitant about acknowledging that moral rights have legal effect if such recognition would be innovative. Furthermore, English law has a rather fuzzy concept called ‘remoteness’ that is often conflated (or simply confused) with foreseeability. Simply put, the idea is that if the harm suffered is too far down the causal chain from the wrongdoer then it will not be recoverable. I do not believe that either of these hurdles is particularly defensible but unfortunately they are just terms within which judges tend to think.
Before drawing this article to a close it is worth briefly noting another defence that might be raised, specifically on the part of employees. I say ‘briefly’ because I personally consider it beneath contempt. “But,” sweats our by now deflated interlocutor, “I was only doing as I was told.” Now I am the last one to claim that in this unstable economic market (oh the irony) job security is not important. I am reminded however of Article 33 of the Rome Statute of the International Criminal Court (a body, incidentally, which exists to ensure accountability for large scale wrong doing), which holds that whether or not a crime was committed under orders is irrelevant to the responsibility of the criminal. I am hardly advocating a prosecution before the ICC as a result of this stupid and pointless loss of life, but if that principle alone does not cause some to think before they blindly follow instructions then the problem runs far deeper than our economic system alone.