Tuesday, November 14, 2006

Legal Ethical Dilemas IV - Keeping the Indifferent Indifferent

Another common problem, which is interwoven with the radical politicization of life and government, is the tendency for people to paint everything in either totally gray terms or totally black and white terms. Some people claim that there is no such thing as good and evil and they want to make everything gray. I cannot agree with them. But it is also a mistake to claim that every public policy issue is really a question of good and evil. There are advocates out there who are more than willing to assume that the cause of no fault car insurance is a moral issue: those who disagree with them are evil and those who agree with them are on the side of the angels.

Public policy would be a lot easier if everything really was clearly dictated by the moral law. But it isn’t. Many issues in government are not purely matters of morality, but rather matters of how moral principles can effectively be vindicated by public policies. There are usually costs and benefits or risks and hopes for every policy alternative. The real question is often not weather a policy is right or wrong or good or evil, but whether it will effectively protect human life or effectively protect property, or effectively promote a sense of community. Policies almost always have both good and bad effects. The law of unintended consequences is one of the most inescapable laws of human existence. Even though we want our policies to purely achieve good ends, they often do not. Even good policies bear certain costs.

Law is full of examples of policies that have both positive and negative effects or costs and benefits. For one example, our statutes of limitations. A statute of limitations bars claims at a certain period in time. We will not go into the complex issues of when statutes of limitations are told or in effect put on hold and when they run. But generally one must file a civil complaint for some injury or breach of contract prior to the time the deadline established by some statute of limitations. Short statutes of limitations such as a year to eighteen months have the advantage that they encourage people to file claims while the witnesses are still around and easy to find. The witnesses still remember things when a short period of time has gone by. The documents that are necessary for the case will probably be available since they will not have been lost or destroyed and everybody will be able to plan their insurance and savings needs for risks because they will know that it is unlikely that cases will be filed against them after the short statutes is run. There are several disadvantages to the short statute of limitations. First, it catches some people unawares. There are always procrastinators. People wait to file their claim until it is finally too late. Also, sometimes you don’t really know you have a claim or if you wouldn’t think you have one, you’re not sure if you really need to file a lawsuit. Occasionally insurance companies will toy with people until the statute of limitations is run. In addition, a short statute of limitations prevents people from engaging in rightful negotiations beyond a certain point. A single year is not very much time to resolve a complicated dispute that involves that involves contradictory evidence. In addition, many people do not have any idea of what their stable medical condition will be like following an accident within a single year. Often they won’t know whether they’re going to be in pain for life or whether they’re going to get better and be pain free during the time that goes by in a short statute of limitations. So you can see that both sides have advantages and disadvantages. When choosing a statute of limitations it isn’t really a choice between good and evil, it’s a choice between what kind of problems you’re prepared to deal with as a society and which kinds of problems you would like to avoid. And after you pass one, you will always be tempted to make equitable exceptions when the difficult circumstances arise. A certain number of exceptions are reasonable and will do justice in specific cases. But you can’t make an exception out of every circumstance or eventually the exceptions will swallow up the rule.

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