Pricelessness and Life: An Essay for Guido Calabresi
This paper - written for a conference celebrating "The Costs of Accidents," three and half decades after its publication - pays tribute to Calabresi's remarkable exploration of the deepest, most disturbing and most difficult problem in the law of accidents. Throughout his long and distinguished career, Guido Calabresi has insisted that a tragic conflict of irreconcilable values lies at the heart of our law of accidents. We are profoundly committed both to "the ideal that life is a pearl beyond price" and to the practice of valuing people's lives in market terms - to the practice of pricing life. We know "that not every safety measure is worth paying for and that some accidents - however horrible - are 'worth having.' We therefore place a price on life, implicitly or explicitly, and rightly so. We must trade lives off against other goods - goods as mundane as mere convenience. And because we cannot abide this harsh truth, we avert our eyes from the real terms on which we "accidentally" deal out death.
"Pricelessness and Life" argues that our predicament is deep and difficult, but not tragic. We are not faced with a conflict of irreconcilable values, neither of which can be given up. We must indeed trade safety (and with it life) against other goods, but the criteria that we use to make those trades need not be market ones. The tragic predicament of accident law as Calabresi describes it is defined by a conflict between a moral absolute and a practice modeled on market rationality. When we conceptualize "the decision for accidents" in market terms, we conceive of human life as a good that is commensurable with innumerable other goods at some ratio of exchange. Market terms of trade, however, are neither inevitable nor universal in our law. Lives must indeed be exchanged for other goods, but these exchanges need not - and often are not - be made in accordance with the precepts of market rationality.
Indeed, our own law of accidents encompasses norms that prescribe especially stringent precaution - more than efficient precaution - against "significant" risks of accidental death. These norms require that the risks of some activities be reduced either to the greatest extent "feasible," or to the point where the activity can be called "safe." "Feasible" and "safe" precaution embrace nonmarket criteria for trading life against other goods and embody a moral value different from the value of efficiency embraced by the market. The market embodies the idea of efficiency, and efficiency in turn expresses an idea of the general welfare. Efficiency is concerned with the relationship between the aggregate benefits and the aggregate costs of an arrangement. An arrangement is efficient when it maximizes benefits and minimizes costs - when it maximizes the size of the pie. The pie itself -the value being maximized - is human well-being or welfare, as expressed by persons' subjective preferences and as measured by the metric of money. Goods are measured by their contribution to human welfare and everything - from life to convenience - is fungible at some ratio of exchange. Efficient precaution thus licenses sacrificing the lives of some for the convenience of others, if the some are few enough and the others plentiful enough. When the some are few enough and the others plentiful enough, sacrificing the lives of some maximizes value.
Feasible and safe precaution are animated by the competing value of interpersonal fairness. They flow from the proposition that the burdens and benefits of risky activities must be justifiable to those who are burdened by those activities. Feasible and safe precaution take safety to be an especially important good - a precondition of a decent life. They insist that it is unfair to put anyone's urgent interest in undevastated life at significant peril for the sake of trivial gains to others. It is fair to put lives in significant danger only when something comparably valuable stands to be gained, either by those whose lives are endangered or by others. Feasible and safe precaution reject the idea that the price system is the proper measure of precaution when significant risks to life are at stake. They express the "pricelessness" of life not by demanding - absurdly - that no tradeoffs involving life are ever acceptable, but by rejecting the market model of justified precaution and insisting that lives be imperiled only for the sake of comparably valuable goods, and so only on terms that could be justified to those whose lives are ultimately lost. When we trade lives on these terms, the accidental deaths that we inflict are cause for grief and regret, but they are not the scene of a collective tragedy.
Gregory C. Keating, Pricelessness and Life: An Essay for Guido Calabresi, 64 Md. L. Rev. 159 (2005).