Arbitrariness as an Ethical Criticism

Written by Ben Davies

We recently saw a legal challenge to the current UK law that compels fertility clinics to destroy frozen eggs after a decade. According to campaigners, the ten-year limit may have had a rationale when it was instituted, but advances in freezing technology have rendered the limit “arbitrary”. Appeals to arbitrariness often form the basis of moral and political criticisms of policy. Still, we need to be careful in relying on appeals to arbitrariness; it is not clear that arbitrariness is always a moral ‘deal-breaker’.

On the face of it, it seems clear why arbitrary policies are ethically unacceptable. To be arbitrary is to lack basis in good reasons. An appeal against arbitrariness is an appeal to consistency, to the principle that like cases should be treated alike. Arbitrariness may therefore seem to cut against the very root of fairness.

However, there are at least two ways a policy’s arbitrariness is not a knock-down argument for scrapping or changing it. The first of these is when a policy is in fact based on arbitrary grounds, but where there are good alternative grounds for it. Consider, for instance, the furore around a decade ago over the firing of government health advisor David Nutt. Nutt was sacked for contradicting government guidelines over drug safety. Nutt publicly appealed to the idea of arbitrariness in his criticism of government policy. In particular, he said, it was arbitrary to support the continued legality of alcohol and tobacco while opposing the legalisation of less harmful drugs such as cannabis, LSD and ecstasy.

It was certainly worrying for the government to sack an advisor simply for disagreeing with them. And Nutt was right to say that government policy should be based on evidence, and probably wasn’t. So, government policy was arbitrary. But he was wrong to imply that because alcohol is more harmful than LSD, it is essentially arbitrary and thus wrong to keep the former legal while criminalising the other.

The reason is that this arbitrariness is ingrained in society. What we want to know when facing the question of whether to legalise or criminalise a particular drug is not only how it compares to other legal and illegal drugs, but how much good or harm will come from changing its legal status. It is possible, then, that although alcohol is worse than ecstasy, we should keep alcohol legal and ecstasy illegal because:

• criminalising alcohol would be more dangerous than keeping it legal, and
• legalising ecstasy would be more dangerous than keeping it illegal.[1]

That the existing legal framework is arbitrary is therefore relevant but not decisive, because that arbitrariness may have given rise to settled expectations that are also relevant (e.g. the expectation of being able to drink alcohol freely). While this argument appeals to consequences, I should note that it’s not supposed to be a purely consequentialist argument. For instance, the fact that an ultimately arbitrary distinction is ingrained in society is not a good argument for keeping it when it involves denial of basic rights.

Here’s the other way a policy can be arbitrary and yet justified. A particular limit (e.g. a speed limit of 20mph outside schools; or an age limit of 18 to vote) can be arbitrary in the sense that any particular limit would be arbitrary, and yet a limit is still required. In this case, the question of whether something is arbitrary is comparison-sensitive. If we ask why the speed limit should be 20mph rather than 100, we can give good reason. But if we ask why it should be 20 rather than 21 or 19, the answer looks less clear. Similarly, we can explain why we should allow people to vote at 18 rather than 5, but may struggle when presented with articulate, intelligent and politically motivated 16-year-olds to say why the limit should not be dropped. Nonetheless, it seems plausible that in both cases we do need some limit. And any limit that attempts to cover a general population will either face exceptions (dropping the voting age to 16 will face some intelligent, articulate 15-year-olds), or be open to symmetrical challenges (just as there is no reason to prefer 20mph to 19mph, so too is there no reason to prefer 19 to 20).

These cases come in two kinds. One is where an easy-to-measure feature tracks, to some degree, a feature that is far more difficult to get a handle on. Age tracks emotional maturity, politically-relevant knowledge and independence, but it does so very imperfectly (some teenagers outdo some adults on all of these). The other is where we have good reason for preferring something in a particular range, but not for preferring any individual within that range. It really is best to have a speed limit of around 20 near schools, but it really does seem impossible to justify 20 precisely.

Faced with such cases, we have three choices. We can scrap the limit altogether as unavoidably arbitrary. In the first kind of case, we can attempt to impose limits based on non-arbitrary features (e.g. replacing a voting age with epistocracy, where voting rights are based on knowledge and intelligence). Or we can accept that while an arbitrary limit is imperfect, it’s the best we’ll get. Like the drugs debate, this latter view requires attention to the pragmatic consequences of adopting any particular policy. For instance, if the idea of epistocracy looks less attractive than moderate arbitrariness (and I think it looks much, much less attractive), we will need to accept that our voting limit is always going to exclude some people unfairly. Nonetheless, we might think that a particular age limit (not necessarily 18) will do the best available job of excluding as few people as possible, without opening us up to a mass of uninformed, clueless voters (as might be the case if we simply dropped an age limit altogether.

These cases point to a further feature that’s required for arbitrariness to be justified (the first being that basic rights are not violated or denied). It is that the area in which an arbitrary limit is in place is something that requires a limit, and that no better criteria for a limit are available.

Strikingly, these three features map onto the case being made against the ten-year storage limit. Campaigners have argued that the limit is not only arbitrary, but arbitrary in a way that violates the right to a family life. And while the individual bringing the challenge accepts the need for a limit of some kind, she argues that this should be in line with the age at which most fertility clinics would not accept patients in any case: 55. Such a limit might itself be arbitrary, if some of those over 55 could have children. But importantly, it might be less arbitrary than the status quo.

[1] Of course, these claims may be false. It may be safer to legalise ecstasy. But the truth of this claim has nothing to do with a comparison with alcohol.