Crime

In a utilitarian society, you are a criminal when you cause damage or alarm.
Actions are judged based on consequences.
I’m driving and stop for a woman, she crosses by my car and the guy next to me kills her.
You can’t calculate the consequences of your action. You could kill someone without even knowing it. You
can’t know where your action is going.
When you commit an action, you can damage or alarm. When I kill someone, I cause damage on him, but I also
cause damage on his family. They all suffer from action. So, damage can be direct or indirect.
If there is a running serial killer in the neighborhood and nobody caught him yet, this causes alarm.
An alarm is when an action is making people anxious.
Bentham:
Primary mischief: Mischief that is assignable to a person (Harm: You really kill the guy)
Secondary mischief: Mischief that is un-assignable to a particular individual and extends to the whole
community (ex. Alarm and danger)
In utilitarianism (preventive justice), you could be “innocent” and considered a criminal.
They are considered guilty because the consequence of the sentence would be a disaster.
Shapiro classifies the different degrees of harm as follow:

 Excluded intention:
o a man killing in a state of madness
o (Moved from excluded intention to strict liability) Thalmonide case: A pharmaceutical company
sold a medicine that enhanced pregnancy. They did all the legal work and tests. Motives and
intentions are good. After 15 years, they discovered that the medicine they were selling was
causing limb damage. They should be judged guilty and fined. You would be paranoid all the
time if companies were not judged guilty in such cases. If you say they pass all the tests and the
people buying the medicine are responsible for any damage, then THIS CAUSES ALARM.
However, if the law fully responsibilizes pharmaceutical companies, all other companies will
take care and try not to make mistakes.

 Intention: calculated by the person, killing for money

 Constructed intention: hurting someone un-intentionally but in a state of built irresponsibility, like
drinking and driving
 Negligence:
o Leaving the fence open around the pool that end up causing a child to drown
o (Moved from negligence to strict liability) Accidents from the rear: the back or the front driver
could be guilty, but it was too costly to determine who. The judge ruled out that whatever
happens, the guy in the back is always guilty. Now, the back drivers will be careful. They will
 keep distance. The law has an active import on how people behave. It prevents accidents by
keeping distance and driving more carefully.

 Strict liability: sex with a fourteen year old that looked and claimed being twenty is condemned
because the adult must verify the age of his partner.
Preventive approach: making a law induces people to behave in such a case.
Back then, the law allow husbands and wives to beat each other because they are one person, one juridical
entity according to the law. Beating your wife was considered an excluded intention. If you’re married, you lose
juridical persona. In the 70s, beating your wife became an intentional crime. You will be punished. Things back
then were different.
An action’s consequence should not be understood on the particular level. Thinking on a particular case only is
called Act-Utilitarianism. Thinking on the level of universality is called Rule-Utilitarianism.
 Market
We start with principle of happiness. What does it really mean?  Happiness as an end in itself. (Freedom,
Love, Truth). To do what you want for the sake of wanting it and loving it. If I am happy and independent, I
won’t lie or cheat… In an oppressive society you’re not allowed to say the truth, you’ll end up circulating bad
ideas that don’t cause happiness.
Preventive justice fits best in utilitarian society because society benefits and gets something back, unlike
vindictive justice.
How do you determine crime?  Harm and Pain (Danger and Alarm)
Crime is an action, when turned into law, it will generate danger and alarm.
A family of five people need 5 organs. A guy with a broken finger can save them, so 1 life for 5 lives. But he
can choose not to, because it’s his right. Life is right.
Bentham speaks about danger and alarm.
Forms of punishment: preventive and vindictive punishment.
In preventive, crime is a liability
The function of the law is to prevent and
Restrictive laws: You shouldn’t…
How do we justify them?
If we do it, others will do it. If we take an apple, others can take apples too.
Why I shouldn’t I do that?  But what if everyone did that? It would be a disaster  Law of Generalization
If an action is bad because when we generalize, it would lead to a disaster, can any action be good now? In this
case, we can’t do anything, literally.
If everyone plans lettuce, it will be very bad. Same for saying the truth.
There’s something wrong with the form of reasoning
Therefore, generalization can’t be the ground of the law
The form of the law is to be general (applicable for all), but its ground is not (not used for justification)
You make a law by distribution and prevention  In order to pacify a situation
You have the right to pick apples on the ground or at the reach of your hand, it won’t be a big deal for the owner
of the apple trees.  We distribute the goods and diffuse the problem. Because it’s rational (can be accepted by
everyone), it’s general. Rational means that even if anyone can pick apples, not everyone will. (No direct import
on behavior) But if we make taxes optional, no one will pay them  direct import on behavior
The law also can help shape your behavior (prevent and favor some actions), for example, there are laws that
encourage making babies (no taxes, schools etc…)
Affirmative action/measures: not everyone is favored in same way (UCLA: white person gets 85 but is not in
white people list while black person gets to black people list by getting 70)
In MIT, they mentioned that race and gender can be considered as criteria, but not seats.
Point system instead of quota system (41 mins)
More fair system
In utilitarianism, a law is a tool is create happiness.
Capitalism (Corporation) vs Free Market:
Corporation means so big that you eat everyone else
Free market each one does his thing and we compete. It is in conformity with happiness. Gives us opportunity
to do what we want. (46 mins)
Free market would generate best products at best prices according to Friedman.
Should we make distributive laws that forbid monopoly? Yes since monopoly destroys the free market which is
in conformity with the principle of happiness.
Problem of implementing the law
Bentham wrote a book called Panoptism and invented the Panopticon which is the best way to implement the
utilitarian system.
If people are aware that they can be seen, they self-behave and repress themselves. If the street is dark, people
will be tempted.
Bentham dreamt about a prison which is a circular building with partitions/cells.
You put windows at back of each room and you put a prisoner in each cell.
You only need one guardian. If shuttles are placed in the watchtower in a way that we can’t really see if there is
someone in the tower, we can have no guards. Prisoners will discipline themselves.
The principle of omnipresence. Make people believe that authorities are everywhere by organizing space.
We have center of inspection and all people around feel that they are being watched.
Conflict between discipline and freedom.
Mill says we have to colonize other population
US have strong disciplinary side (CIA, police, surveillance etc..) AND freedom, creativity …
In the name of freedom, some people claim monopoly (free market vs freedom)
This where the principle of happiness intervenes. (Even though you are a genius and want to monopolize the
market because you are better than everyone, you shouldn’t prevent others from doing/producing software
Sometimes vs justice (let the best win, others want distributive justice)
If you pay students to read, you corrupt them. Money replaces values  Corruption
Helping friends for money  Highest values are destroyed ex Amity
Philip Morris ??????
 Ethics
You can’t have taxation in a free market because it goes against freedom of enterprise, private property,
freedom of possession (as much money as he want as long as he didn’t get it by monopoly).
You have to let competition do its work and produce best prices and quality.
Anti-trust laws are laws that say you don’t have right to monopolize the market
Power of government (made up of legislation/parliament, executive/ministers, medias/journalists, and juridical
power) shouldn’t be in one hand. Best law divides them to keep control and democracy.
Ethical people are outlaws because they don’t abide by the law. Out of your own initiatives, you decide to do
good things (can be against law).
Ethics is a domain of imperfect obligations.
A perfect obligation is when you have a specific criminal and victim (Killer and dead person)
We can put people in jail (direct)
There is harm but no specific killer and victim ex Africa: problem of famine
People are dying but who is responsible?
We can’t punish certain people (indirect)
In this case, we can’t solve it in justice or the market (we can’t have taxation), we use ethics.
We can have philanthropy/altruism/assistance instead of taxes. Out of your own initiative, you distribute your
own money.
Altruism fits well within system. We can’t blame them that they are criminals because some people are starving
in another place. We can’t make law to force people to give us their money. The only exit is philanthropy.
Contribute for a bigger cause. It brings pleasure for the person who is helping.
Transcendent cause/ you feel part of a bigger scheme or project
You acquire a bigger self so you become happier.
Who should you assist? What is charity? What are needs?
In utilitarianism, a need is avoiding pain. Evil is when someone suffers. Suffering is the only opposite of
happiness. Fundraising for people who are blind but not for someone who likes to surf.
We suffer same way but don’t enjoy ourselves same way.
We can’t kill animals just for fun, we kill as much as we need, but we should repopulate them.
Humans, dolphins, monkeys, and whales have symbolic language so they are not replaceable.
They communicate and have personal lives.
Other animals and chemicals are replaceable. Biological data shows that we are alive at 18 weeks. But we don’t
talk, so they are replaceable and we can abort them. We are only killing life, similar to killing fish. We start
speaking at 2 years. A baby is not yet a person, so he is not yet free.
Singer says fetus can be killed. Fetuses are like cats. Other say that life should be cherished. He argues that a
life is not sacred.
Life is lived life. If it’s pleasant, it’s valuable.
What is right in utilitarianism? Right is simply vengeance. I can take my own life if I want to.
Mercy deals with suffering, death, and killing
Mercy will administer death for those whose lives become unbearable
Assistance/philanthropy is feeling the pain of the poor/miserable
What happens if no one wants to be a philanthropist?
Civil disobedience  Protest (Action when you don’t have resources anymore)
You can burn yourself to show that you’re not a human anymore and that your life has no more value
Gandhi made marche of the salt in order to make salt. It was illegal and he did it in front of everyone.
In Liberia, women threatened to undress their selves if they don’t make laws against rape. It’s a force of
degradation. We don’t feel women anymore. You force authorities of doing something under pressure. A
marche helps to get people and supporters.
Another strategy is manifestation ex “You stink” movement
It usually works when the thing they’re fighting for is already prepared publicly and ready to go. The people
know about what they are manifesting. It is already published and people are aware
Monkeywrenching ex putting steel inside trees so that when people who cut trees come, it explodes in your
face. They don’t know which are wrenched. Activism is when an authority doesn’t listen, so you take a
confrontational action. Ex government wants to build a dam in a place that destroys the ecosystem, so people sit
in that place and refuse to move. It is called blockage.