d. Risky Situations of Relative Urgency

Still many are made nervous by the thought of a "price" on life. It is difficult to get rid of the impression that "putting a price" on life somehow misses the more fundamental point that life is "beyond price." Faced with the imminent death of persons whose actual (non-statistical) lives are in danger, we respond as if we believed that life was sacred and not just another commodity. We have an extraordinary determination to engage in the rescue of individuals whose lives we know to be in danger, a determination that is apparent in efforts to save a small child caught in a well, miners trapped in some passageway far beneath the surface of the earth, or passengers lost at sea. In these cases people are willing to go to almost any lengths, without much concern for "cost," to save the lives of those at risk.

Imagine that we are faced with the business of determining policy in the long term for, let us say, mining safety. We might very possibly conclude that "in some cases, for the price of a rescue, we could save a much larger expected number of lives through various safety measures."27 From the perspective of cost-benefit analysis, "fewest lives would be lost if the entire budget is spent on prevention of accidents and on easy rescues, and no heroic or extraordinary rescues are attempted in case of disaster."28 But now imagine that we adopt such a policy. Any attempt at heroic rescue of miners will divert resources away from the installation of safety equipment that will save more lives in the long run. But what would it be like to stand by while several miners are lost who might otherwise have been saved but at a cost that has been calculated to be not worth the price?

Here the prescriptions of cost-benefit analysis diverge from what we urgently feel is the right thing to do. "Put a price" on life and include that "price" along with other costs and benefits in a total risk cost-benefit package and surely a result will emerge - even if the price on human life is set very high - that on some occasions at least the rescue of a person stranded at sea or buried in a mine will be "so expensive as not to be worth its cost."29Yet we appear to be willing to accept a considerable amount of inefficiency or cost-ineffectiveness in pursuit of what we believe is more important: saving the lives of those who are immediately at risk. Why not then include in a cost-benefit analysis, not only lives saved and lost, but also some measure of the psychological effects and mental disturbances that persons are likely to experience as a result of being barred from attempts at heroic rescue? There are at least three objections to be made to this proposal.

First, the significance to oneself of being the kind of person who cares enough in situations of extreme urgency is not the sort of thing that can be captured by the narrowly economic values employed by cost-benefit analysis. To do so the method would have to expand its conception of value. Second, being the kind of a person who comes to the rescue of someone in distress tends to be experienced as part of what makes life itself worth living, as valuable for its own sake, apart from what good it may produce. Whatever value assigned to it by cost-benefit analysis, there will always be something more of value, i.e., the intrinsic worth of being this kind of person, that the analysis fails to capture. Finally, when we respond to others in situations of distress, we do so without too much thought about how else we might spend our time. We respond sympathetically and spontaneously. Stepping back to make these decisions by cost-benefit analysis may endanger these more or less spontaneous acts of human fellowship, "may profane things that must be held sacred," as Alan Gibbard has suggested, "things that, because of who we are, we must hold sacred if our lives are to be deeply rewarding."30

No doubt there are some policy analysts who may simply wish to dismiss our feelings of urgency in cases of heroic rescue as another example of our unsophisticated judgments about risks. On this view we should neither be surprised nor overly concerned that the analysis points one way and our feelings another: "there is nothing about risk cost-benefit analysis, even in an idealized version, that guarantees the humane result."31 We should expect it to deviate "from moral judgments in which we place great confidence,"32and in those situations where it does, we should be open to reforming or replacing our moral judgments, which are in any event hopelessly confused, with the prescriptions of the analysis.

But anyone who wishes to defend cost-benefit analysis as a reliable guide to policy concerning risks with an argument based on the idea of hypothetical consent cannot simply dismiss cases of heroic rescue as one more example of the failings of common sense. Indeed, Leonard and Zeckhauser look for ways to accommodate our feelings of urgency, acknowledging that "some social values will never fit in a cost-benefit framework and will have to be treated as "additional considerations" in coming to a final decision."33 But since they offer no principled way of how to bring in our feelings of urgency, their solution is inadequately ad hoc. If some values cannot be handled by the cost-benfit criterion itself but are still to be given some weight as "additional considerations," the method begins to look less and less like a neutral procedure that can be applied more or less automatically. Leonard and Zeckhauser seek to console potential critics who worry that cost-benefit analysis is liable to be open to abuse with the thought that "its ultimate grounding in analytic disciplines affords some protection."34 But to the extent that some social values have to be taken into account on an ad hoc basis, such grounding affords that much less protection.

e. Risks and Rights

Individual rights make up another area with which cost-benefit analysis is ill-equipped to deal. There are, of course, many decisions we make where rights play no role at all. But in the arena of risks to life, health and safety this is not so: rights play a very critical role indeed.

Rights constitute what might be called a minimal respect for persons and constrain persons from treating others in certain ways. Rights do not allow trade-offs. They cannot be brought together into one single homogeneous total. Each person's rights count separately and have their own independent moral value. My rights are, therefore, incommensurable with your rights; each placing limits on the actions of the other.35

Imagine that we are faced with the task of developing a national policy concerning secondhand cigarette smoke in enclosed public spaces. If we think of the effects on smoker and non-smoker alike, there are a clear set of costs and benefits on both sides. There is the irritation from the tobacco smoke felt by the non-smoker as well as the discomfort and frustration experienced by the smoker who is asked to refrain from smoking. If we assume that a link between lung cancer and secondhand smoke has been established, there will be costs associated with the longer term health effects to both the smoker and non-smoker.36 In an enclosed space, such as the cabin of a commercial airline, it may not be easy for a non-smoker to escape the effects of secondhand smoke. Recently smoking has been banned by several commercial airlines on short-term flights. It is possible to imagine that some calculation of costs and benefits went into these decisions: the time and savings from no longer having to maintain separate sections for smoker and non-smoker is set against the minimal discomfort the habitual smoker will have to endure on a short flight. For transcontinental flights it may be believed that the costs of discomfort to smokers are too great to be outweighed by other benefits.

But now we live in a culture that takes rights seriously, in particular rights to persons and property. If a person is in an enclosed space from which she cannot easily walk away, the tobacco smoke she experiences from someone else's cigarette is not only a cost, but a violation of her right not to be harmed without her consent. As Peter Railton has put it: "each time I send some of my tobacco smoke your way, you suffer some small physical change, not for the better."37 On a rights-based view, each person's rights set up a boundary across which others are not permitted to go. And although the change that a person suffers from the tobacco smoke imposed upon him may be very small, on a rights-based view what matters is "whether or not a boundary was crossed, not the magnitude of the consequences: shoplifters have been prosecuted for stealing a pack of chewing gum."38 Of course, smokers can claim that they have rights too and they do, only each person's rights are brought up short when they bump up against the boundaries of somebody else's rights. Smokers are free to smoke so long as they respect the boundaries of others. They are free to smoke in the confines of their own room. In an enclosed public space, the smoker's right to smoke stops, like the right to swing one's arm, at the tip of somebody else's nose.39

A public policy based on rights will mean either outright prohibition of smoking in enclosed public spaces or the provision of segregated smoker and non-smoker sections where this is feasible. The provision of smoker sections would appear to balance rights against the discomfort to non-smokers of being asked not to smoke and has the look of a cost-benefit solution. But it is important to recognize that the rights of non-smokers set the bounds within which different strategies of how to implement a policy that observes those rights might be entertained. Rights are not "additional considerations" to be taken into account in some ad hoc manner as a supplement to maximizing total benefit. Rights enter into the making of policy at the foundational level, as it were, and other considerations such as the comfort of smokers can only be entertained after the rights of non-smokers have been taken into account.

Workplace air pollution presents similar problems to the risks of secondhand smoke only here there are obvious benefits to be gained from the polluting activity. There is great incentive, no doubt, to keep production costs as low as possible. Nonetheless there appears to be general agreement that "workplace air pollution violates workers' rights."40 Current public policy reflected in the Occupational Safety and Health Act is rights-based: permissible exposure levels for any toxic substance must ensure that "no employee will suffer material impairment of health or functional capacity."41

However if we extend a rights-based solution into other areas, such as outdoor air pollution, most risk-imposing activities would have to be prohibited. The extremity of rights-based public policies concerning risks to safety and health have inclined some policy analysts to disregard rights considerations altogether. Since cost-benefit analysis is unsuited to handle these sorts of considerations anyway, such an inclination may be more self-serving than considered. Nonetheless it is true: rights leave little room for balancing or compromise and perhaps in the arena of outdoor air pollution we arrive at the limits of their usefulness in setting policy concerning risk. But if rights place an unusually strict limit on the levels of risk to which citizens may justifiably be exposed, it is also true that risks to which people are exposed are permissible if it can be shown that the bearers of those risks have given their consent. Only consent can turn a potential violation of a right into a permissible act: "Consent, as it were, opens up boundaries so that a border-crossing is no longer a moral offense."42 For this reason it makes sense to reconsider the role actual consent might play in the legitimation of risky activity.43

IV. Bringing Consent Back In

Because of the moral appeal of the notion of consent, proponents of cost-benefit analysis have tried to seek a justification for the technique in a form of consent, albeit hypothetical. On this interpretation it is legitimate to impose risks on people without their actual consent so long as the benefits are sufficiently great, so long as the benefits of so doing outweigh the benefits of alternative courses of action. Risk-impositions proposed by the analysis are justifed because reasonable people prefer alternatives where benefits exceed costs and so would choose the same outcomes as the analysis recommends if they could go through the process themselves. But this defense of the technique only works if the costs and benefits that are the input of the analysis are appropriate and comprehensive. Since they are neither, a defense of cost-benefit analysis as a form of consent does not succeed.

Cost-benefit analysis cannot yield the same result as indivdual consent because it fails to respect fully the distinctiveness of people's responses to risks, or to do justice to the morally significant ways risks can be distributed, or to give proper weight to the importance we attach to human life in situations of felt urgency. It fails to capture things of great value to us, such as our concern for autonomy and rights, or captures them in a way that does not reflect the special significance they have for us. For these reasons we should not be persuaded to allow cost-benefit analysis to determine public policy, to do, as it were, our talking for us. What we need are not improved analytic techniques or more finely tuned ways of calculating costs and benefits, but greater opportunities for participation by those affected by public policies concerning risks in the decision-making process.

That process is, of course, a political process and some policy analysts despair of our ever coming to any sort of decision, let alone reasonable ones, by that means. "An unfettered political process," Leonard and Zeckhauser fear, "provides no guarantee that it will seek efficiency or pay attention to the general welfare. It also . . . may not take advantage of the best available information."44 Cost-benefit analysis may not be "perfect," they admit, but even so "we should be able to anticipate better outcomes than we would achieve by 'muddling through.'"45

But "muddling through" may be the only just way to make public choices involving risk because these decisions raise questions of equity to which cost-benefit analysis is blind and about which it is has nothing to tell us. The issues of equity raised by decisions which impose risks on some to the benefit of others, can only be settled in a dialogue among those who are likely to be affected or through their representatives, and perhaps not even settled then. Leonard and Zeckhauser point out that the political process sometimes leads to stalemate,46 and "that's true, too,"47 but we should not then turn to a method that is not equipped to make such decisions in the first place; we should look for ways to unblock the impasse, for better ways to talk with each other, to negotiate and find a compromise.

Our responses to risks presuppose divergent interests and ideals that cost-benefit analysis neither accomodates nor grasps. These divergent interests and ideals are best dealt with by a pluralist approach, not merged into one homogeneous total as they are under cost-benefit analysis.48 A democratic political process works in an essentially pluralist manner and is designed to handle, however messily, the divergent interests and ideals of different people. It is also important to recognize that we do not only want a method that will help us to "anticipate better outcomes," we want a method that achieves its outcomes in appropriate and fair ways.  "It would not do, for example," as Douglas MacLean has observed, "to replace trial by jury or democratic elections with technocratic analytic decision-making techniques, even if these techniques...would achieve better results."49 And it will not do because the legitimacy of the outcome in these cases depends in part on the openness and fairness of the process.

But if people are to become more involved in making public policy decisions concerning risks to life, health and safety, how are we to respond to the psychological studies which show that we are such poor judges of probabilities and that our judgments about risks are frequently "irrational, if not perverse?"50 Two responses at least are worth stressing:

One is that we should make every effort to educate citizens to be better at probabilistic reasoning, and to supply them with relevant information in terms they can understand. If statistical information is required, we should make it more understandable by removing as much of the jargon as possible. We might have reason to hope that over time people will become better at making probabilistic decisions, but given the tenacity of people's inability to assess probabilities, on the job training is not likely to do the trick. Our susceptibility to framing effects might be partially overcome by being careful to frame options in a number of different ways, although a good many framing effects might be given alternative explanations (see below). It may even be wise to hire those very researchers, who study the systematic biases to which we are prone, to serve as counselors in the decision-making process and to share their knowledge to help citizens or their representatives resist some of the more obvious distortions to which they may be inclined but which they may otherwise fail to notice.51

A second possible response is to point out that the findings of the risk perception studies only succeed in showing that people are irrational in their attitudes towards risk by assuming a fairly narrow conception of rationality. Some of our presumed irrationalities and inconsistencies can be explained in other ways, such that on a broader view of the findings our actual choices turn out to be quite reasonable after all. For example, the studies show that "loss aversion" is quite pervasive, but is it irrational? "If your acquaintances, your boss, or your constituents," Douglas MacLean has suggested, "are more likely to hold you responsible for the losses that result from your risky decisions than for the lost opportunities that result from choosing to avoid risks, then choosing to avoid a loss rather than maximize the expected outcome would seem to be an eminently prudent strategy."52

Specific to the conception of rationality presupposed by the psychological studies is the neglect of autonomy. The control people believe they have over risks has sometimes been offered to explain the apparently irrational preference many people show for driving rather than flying. But people are not only concerned about the chance of dying, but about "what life is like while they are living it."53 We may indeed underestimate our chances of survival in those situations where we believe we have some degree of control over the risks we bear, but we also can be seen to value that control. As most of us know too well: "Trade-offs between quality and quantity of life are made all the time in personal decisions about health and safety: Mark Twain told that he could add five years to his life by giving up smoking and drinking, reportedly quipped that five years without smoking and drinking weren't worth living."54

Re-describing an option can lead people to reverse their preferences as the research of Tversky and Kahneman shows. But a number of these preference reversals are also open to alternative explanations, suggesting that there may be more to our ways of thinking and reasoning than is to be found in a conception of instrumental rationality:

A suburban homeowner, let us call him George, is willing to pay his neighbor's son $8 (but no more) to mow his lawn, but refuses to mow his neighbor's (same-sized) lawn for $20. On a narrow economic view of rationality George is not behaving rationally, since he should treat foregone income on a par with out-of-pocket expenses. But now imagine that we re-describe the latter option: George's neighbor will contribute $20 to charity if George will mow his lawn. If George elects to mow his neighbor's lawn, we have induced a preference reversal.55

But for George's decision to mow or not to mow to reveal an inconsistency in his preferences, it is necessary to assume that "mowing his neighbor's lawn for charity," re-describes essentially the same option as the one he was given initially.56 Indeed all cases of preference reversal require the assumption that re-framing does not alter the substantive content of the option. But this is a considerable assumption. Is "mowing for charity" substantively equivalent to "mowing for money?" If George elects to mow his neighbor's lawn under this new description, has he acted irrationally or does his decision reflect a different approach altogether?57 Perhaps, George does not see himself as the sort of person who would do that sort of thing: "he simply does not think of himself as the kind of person who mows other people's lawns for money."58 To do so conflicts with his self-image.

We are not only ends-oriented, but ideal-oriented. We do not just care about where we end up, we care about the kind of people we have to become in order to end up one place or another."Mowing someone else's lawn for charity" is not the same as "mowing someone else's lawn for money." It is a different sort of activity entirely.

Something along these lines helps to explain the apparent irrationality of acts of heroic rescue. When the life of an identifiable individual is in imminent danger and there is some chance of saving that person, however remote, to stand idly by disturbs our sense of self. There is not only value in lives saved; there is value in being the kind of person who will go to heroic lengths to rescue others. To stand idly by may make it difficult for a person to live with himself afterwards, not only because he must live with a death, but because he must live with the sort of person he has become by his failure to rescue. To stand by is not only costly, it is dehumanizing.59

V. The Role and Limits of Consent in Justifying Risk Decisions

Although I am convinced that a consent-based approach is the only fair and appropriate way to justify risky activity, the approach is not without its problems and a number of points stand in need of closer attention and fuller discussion than I have room for here. I would, however, like to mention in closing a few points that will, I believe, require greater clarification, if a consent-based approach is to work.

First, it should perhaps by now be obvious that our minimal first principle cannot hold in the form it was originally stated. If we require actual consent to each and every risk of harm that is imposed, much of what we do in the course of our daily lives will have to be ruled out, since it will be impossible to obtain that consent. Some have argued that many of the risks to which we are exposed are too trivial or at least are not sufficiently important to require consent. Thus, it has been claimed, for instance that "you are not morally required to obtain the permission of everyone who might be in the path of your car should it go out of control on your way to the post office....Nor must you ask the consent of your neighbor before you...make a fire in the wood stove, although the risks to them of fire is increased somewhat."60 But we shall need some way of distinguishing the trivial cases that do not require consent from the nontrivial ones. What's to distinguish, for instance, the (supposedly) trivial case of driving to the post office from the following example: "Jones has a bad case of the flu. When she breathes, the flu virus gets circulated through the ventilation system of the apartment building where she lives. Among the other inhabitants of the building are a number of elderly people in rather [poor] health. By staying in her apartment and breathing, Jones imposes a nontrivial risk of death on them, for the mortality rate of elderly people in [poor] health who contact this kind of flu is, we may suppose, far from negligible."61 The difficulty, of course, is not just that it is not easy to come up with a set of criteria that will pick out the right cases, but that it is far from clear that some of the so called "ordinary" cases are all that trivial.

Second, once we eliminate the trivial cases, if indeed there are such cases, it remains obvious that we shall not be able to obtain the actual consent of persons in most cases of risk-imposition. Many risks, such as the risks imposed on people from the operation of coal-burning and nuclear power plants, involve externalities and public goods. In these cases risk-imposing decisions will be centralized and public policy will partly determine the levels of risk to which people are exposed by setting standards for, say, the venting of radioactivity by nuclear power plants or the release of toxins into the atmosphere by chemical factories. The model of doctor-patient, where a doctor seeks the prior consent of a patient before, say, imposing risks of operating on his left lung, cannot serve as a paradigm for most risk decisions. If cost-benefit analysis is not the answer, we shall need to be clearer about the ways and means people can participate in public decisions that impose risks on them.

For consent to play a legitimating role in the making of these risk-decisions, it clearly cannot come into play only in the final stages of the decision-making process. Potential risk-bearers will have to be involved at every stage of the process, in formulating, implementing, and adopting public policy. This, in turn, will surely require that present opportunities for participation in decision-making be enlarged, and in some situations imaginatively created. Along these lines in the area of workplace pollution, Mark McCarthy has urged that "workers need more than the exit vote of leaving a job with intolerable risks,"62 that they need to be more involved in the decisions by which those risks are controlled. He has suggested not only the creation of labor-management health and safety committees to help to enforce federal standards and to address unregulated workplace hazards but the incorporation of health and safety concerns in the collective bargaining process. He also makes the recommendation that there be greater participation by the affected parties, i.e., representatives of the industries and workers involved, in the drafting of regulations at the federal level.63

Third, in the course of improving opportunities for greater participation, we also need to become clearer about what forms of participation make for morally acceptable decisions. Given the moral pedigree of consent, some have been tempted to attribute its legitimating power to consent in all its many different forms and varieties. Thus, for example, some believe that merely by consenting to work in a factory where one knows in advance that there are airborne hazards, a worker thereby gives his consent to the risks he will bear, or that by purchasing a home near a nuclear power plant, one consents to the risks to which one is exposed in the likelihood of a nuclear accident. No doubt for this sort of tacit consent to be meaningful it must be true that one has had an opportunity to choose among a set of alternatives that are viable and risk-free and that one was really fully informed about potential risks. But even if these conditions are met, it is unlikely that consenting to work at a factory where one knows there are risks constitutes consent to those risks. Judith Thomson has argued,64 persuasively I believe, that in consenting to walk through a park late at night that one knows to be unsafe, one does not thereby consent to being mugged, if that should turn out to happen. In thinking of ways to bring consent back into the process of justifying risky activities, we need to be clear about what counts and what does not count as "consenting to a risk."65

Finally, it is also necessary to acknowledge that in looking for ways for potential risk-bearers to participate more fully in the decision-making process, we may be calling on skills and habits of minds with which citizens have little experience or experience of the wrong kind. Needless to say, our present political institutions and regulatory practices seem to encourage citizens to adopt an adversarial posture. In negotiations interested parties often see themselves in a trial-like process, inclined to assert their positions in the most extreme ways; they may be neither capable or open to arriving at a consensus on public policy concerning risk. No doubt there is some truth to the charge that we live in an adversary culture.66

Insofar as it makes sense to speak this way about us at all, a vision of citizenship as largely a defensive strategy and chiefly, or first and foremost, a matter of rights designed to protect the citizen from all too powerful governors can be traced back to the founding of the Republic. For a consent-based approach to the problem of risk-impositions to work in the ways that I have outlined this vision of citizenship may itself have to undergo transformation. And many of us may have to learn a new set of civic virtues if there is to be any hope of our arriving at a consensus on some of the more pressing public policy questions concerning risks to our health and safety.

Notes