Monday, May 21, 2012

Suicide as Constructive Trust

Is suicide unethical? Viewed narrowly, suicide ends the suffering of the person who chooses to die, but also imposes suffering on those who loved or depended on that person and had an expectation that he or she would continue to live. Suicide does seem to cause serious harm to those left behind. Death from other causes (the inevitable conclusion of a life that doesn't end by suicide) causes suffering to them as well, but can't be blamed on the dying person. In fact, death from other causes is often seen as a harm to the dying person; even if death is sudden and not painful, the dying person's hopes and expectations for future life are thwarted.

In a sense, then, suicide is an involuntary transfer of well-being from those who love the suicidal person to the suicidal person himself. Involuntary transfers (in certain circumstances, called "theft") are broadly proscribed as unethical. In economic terms, involuntary transfers are suspect because there is little assurance that the transaction benefits both parties on net.

However, there are some circumstances in which the law, as well as economics, favors involuntary transfers: when the involuntary transfer is necessary to right a wrong. One circumstance in which this happens is quasi-contract (also known as unjustified enrichment); when someone receives a benefit at another's expense and it would be unjust to let him keep it without paying, the law makes him pay, even though he didn't agree to pay for it. My perennial example in my contract law class is that your neighbor has ordered a pool to be built behind his house while he's on vacation. The contractors mistake his address for yours and begin building a pool in your back yard; you say nothing, but happily watch the contractors build the pool. When they're done and ask for payment, you say, "nice of you to build a pool there, but I didn't order one!" You'd likely be legally required to pay for the reasonable value of the (un-ordered) pool, because allowing you to keep it without paying would be unjust, especially since you could have easily stopped the process of building.

Another circumstance in which involuntary transfer is legally favored is the constructive trust. When a wrongdoer illegally acquires the property of another (such as through theft), the wrongdoer is said not to acquire legal ownership of the property; instead, he holds it "in trust" for the rightful owner. This is called a constructive trust, and it is a legal fiction that recognizes that an involuntary transfer at some point might be necessary to right a past involuntary transfer. Constructive trust may even affect holders of stolen property who were not themselves the thieves, if they benefitted from the thief's crime.

Suicide, then, is the involuntary transfer of ill-gotten gains. The person who wishes to die was robbed of utility by being born; he is taking back his own neutral "negative bliss" state from those who robbed him of it and their transferees. Even though one's friends and relatives other than lineal acestors did nothing to cause one's birth, they have in essence benefitted from a wrong, to the extent that creating a suffering person is a wrong against that person.

Similarly, transferees of a swindler can be expected to repay the swindler's victims to the extent of their benefit, even though the transferees themselves weren't the thieves.

Ultimately, involuntary transfers (such as thefts and births) may be best prevented by a policy that allows involuntary transfers away from beneficiaries of these original involuntary transfers.

16 comments:

  1. "The contractors mistake his address for yours and begin building a pool in your back yard; you say nothing, but happily watch the contractors build the pool."

    I'd say this is simply implied consent to the transaction. Imagine you come home from vacation, and an independent contractor took the liberty to build a pool in your back yard while you weren't there. And then they charge you for it.

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    1. Yes - the implied consent angle is one way to get to justification. Same thing for people treated in an ER who were unconscious when they came in. Since allegedly a reasonable person would want to be rescued and treated even though he couldn't consent, consent is implied and he's still gotta pay for treatment.

      Which is an interesting example to consider vis-a-vis the suicide thing! Advance directives from people who want to die are hard to get enforced; the assumption is everyone wants lifesaving treatment . It shows how much the desires of the many are enforced against the dissenting few.

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    2. Well, I think the specific aspect of watching happily as the contractors build the pool implies consent. You know that they build it and they know that you know that they build it. That is, in effect, a form of consent.

      This is not the case for the unconscious person entering an ER. In contrast to the depiction of CPR in fiction, where it works almost like resurrection magic, CPR in reality has smaller survival probabilities and higher suffering probabilities than people realize. I personally am against forcing it onto unconscious people who didn't give advance directives. This also counters Caplan's argument that bringing a child into existence is like performing first aid on an unconscious person, and that this suffices for legitimacy. I would not consent to re-incarnation if it were real and optional, and I would not consent to CPR if I were found unconsciously. Unfortunately, people don't exactly get a say in the matter.

      In all fairness, however, there may be hypotheticals where an unconscious person could be so clearly benefited by non-consensual bodily interactions that I would perform them and argue for legal acceptance. (Not CPR or surgery though)

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  2. But there are also cases where the suicidal person himself has willingly accepted the dependence and/or love. It would then be difficult to argue that the benefit that they represent (and that is taken away by his death) does not rightfully belong to the bereaved.

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    1. Still people end friendships, romances, marriages etc. all the time. The social network may disapprove, but it is generally seen as a rightful decision to withdraw consent later.

      In my first relationship, we both pledged we will be together forever and never lose touch etc. Decades later, we're no longer even exchanging mail. This is seen as a legitimate development, and the government does not bust down doors or impose on the practical means of the decision etc. You don't see people on TV blaming car manufacturers that their brother drove away and moved out unexpectedly. You do see such interviews with suicide kit manufacturers, not to mention the insult of involuntary hospitalization.

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    2. Ok, good point. So it probably is legit to take your love away from them. But only because you simply cannot own love etc. at all. Not because they had something that they had no right to have in the first place, like in Sister Y's stolen-goods-metaphor.

      But maybe dependencies like children, even adopted ones, are a different matter. You cannot just take back the promise to care for them, can you? And society will come after you if you try, at least for the money. Which is ok, I think.

      How suicide-assistance is handled in our society is busllshit, of course, I guess we have a consensus there ;-)

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    3. Even I don't think parents have a right to commit suicide in most cases. <3

      And I've considered the voluntary isolation thing - in my own life, I feel the need to be open with my close friends about the fact that I'm not here to stay, so at least they have the option to avoid getting attached to me. I don't know if that's the right course of action, but it's what I do. Mostly, they either feel the same way (not super-committed to living out their full natural life span) or empathize enough that they don't feel the probably-limited time with me is a burden. Or they just don't believe me. Who knows?

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    4. "not super-committed to living out their full natural life span"

      Such a splendid euphemism :-)

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    5. "Still people end friendships, romances, marriages etc. all the time. The social network may disapprove, but it is generally seen as a rightful decision to withdraw consent later."

      Yes, this is intensely painful, but people do it all the times for their own reasons.

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  3. I think your solution to this problem sounds a lot more elegant than mine - I just went with a hypothetical situation then flipped it upside down to argue for a right to choose whether one lives or dies, irregardless of suffering around oneself.

    "they have in essence benefitted from a wrong, to the extent that creating a suffering person is a wrong against that person. "

    I found that part almost disturbing, though it is undeniably as far as I'm concerned, right. A lot of pessimistic truths in the world are pretty disturbing though, especially the first one a child hears - "One day you will die". Great post anyway, in case I start going on about nothing here I'll cut this short.

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  4. "And I've considered the voluntary isolation thing - in my own life, I feel the need to be open with my close friends about the fact that I'm not here to stay, so at least they have the option to avoid getting attached to me."

    Me too.

    I've found most of them simply disbelieve me though, and in the future, don't like me to talk about it. But I figure all I can do is tell them, and once I've done that, I've done my bit.

    I've told my father and mother and sister too. They don't all "accept" it, but I've told them.

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    1. Not all though.

      Some of the best understand, even provide me (the only good) reason to stay: human connectedness.

      But I tend to destroy human connections sooner or later: it's a gift.

      So --- so much for that.

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  5. This (the general ethical question, not the game-theoretic analysis) is relevant to your later post on self-deceit. The grief that accompanies suicide above and beyond news of other deaths presumably stems from (1) learning that the suicide was in such pain, and (2) guilt that one allowed them to allow them to remain in such pain. If we treat well-being as preference satisfaction rather than purely hedonic, it would seem to be that the potential suicide is already involuntarily harming the potential mourners. (Of course vividness concerns may lead one closer to a traditional conclusion here. Of course for the game-theoretic reasons you mention maybe we should be more vividly aware of the downside risks to others in creating them, even at the cost of such grief.)

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    1. That is interesting. I wonder how much of the grief/tragedy of suicide is, in fact, related to the revelation that the person was suffering? Anecdotally, it seems that the suicides of people known to their families as suffering for long periods (I'm thinking of Brad Delp and David Foster Wallace) don't seem to cause as much grief or blame when they die as those who have suffered in secret.

      It's hard to escape the conclusion that our suffering harms those who love us.

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    2. I'm suffering a lot, and have talked about it with family and friends so they know.

      When I kill myself, hopefully it won't hurt them as much because I talked about it. One more argument in favor of legalization.

      However, my suffering hurt them undoubtedly while I lived, too, which it wouldn't have, I guess, if I kept it secret.

      Then I'd have suffered more, in silence.

      However you look at it, suffering sucks.

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  6. Yes, that seems to be the sort of thing agnostic was complaining about.

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