At what cost mercy?

"Economic Analysis of Law" is a school of thought that weighs costs and benefits to decide what a legal rule should be.

It's controversial because it advocates that the foundation of law should not be morals and justice per se but costs and benefits. It's utilitarian.

One of the many problems with this way of thinking, my professor pointed out, is the question of distribution. Who should bear the cost of society being benefitted as a whole?

If building a highway that runs through your house will make commuting easier for the entire city, should you be made to sacrifice the cost of losing your house for the greater good of a city full of happier commuters?

My professor actually gave a starker example. He said, "What if torturing a child would increase the whole world's happiness?" Should we do it?

That knocked the breath out of me.

For the rest of class I could not concentrate on his lecture because I kept thinking about Christ. A child was tortured to increase the whole world's happiness.

Of course the professor's hypothetical was rhetorical. Of course we were supposed to all be aghast and see the folly in unequal distribution. Of course we all thought it was just plain wrong to torture a child, ever.

But I was enthralled by this: That a man lay down his most inalienable rights to benefit his enemies. That is unknown to the laws of men.