HARM BY MICHAEL RABENBERG JOURNAL OF ETHICS & SOCIAL PHILOSOPHY VOL. 8, NO. 3 | JANUARY 2015 URL: WWW.JESP.ORG COPYRIGHT © MICHAEL RABENBERG 2015 JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg Harm Michael Rabenberg N RECENT YEARS, PHILOSOPHERS HAVE PROPOSED a variety of accounts of the nature of harm. In this paper, I consider several of these accounts and argue that they are unsuccessful. I then make a modest case for a different view. 1. Desiderata and Method Ben Bradley proposes seven desiderata for theories of harm.1 Five of the items on Bradley's list seem unobjectionable: extensional adequacy (an account must "fit the data," i.e., it must not entail that there is no harm in a given situation when there evidently is, or that there is harm in a given situation when there evidently is not), ontological neutrality (an account must "allow for different sorts of beings" – not just, say, healthy adult humans – both to cause harm and to be the subjects of harms), amorality (an account should not presuppose that "harming is morally wrong"), unity (an account should not merely be an accurate list of things that are harms but "should explain what all harms have in common by locating a common core to harm"), and axiological neutrality (an account must not presuppose "any substantive theory of well-being"). I presuppose the legitimacy of these five desiderata throughout this paper, though they can be taken too seriously. For example, it would be a bad idea to take the extensional adequacy desideratum to rule out any talk of sui generis harms, or to take the unity desideratum to entail that statements of necessary and sufficient conditions on someone's being harmed that are not analyses of someone's being harmed are of no greater theoretical value than are mere comprehensive lists of particular ways in which people can be harmed. (Both of these points will resurface in Section 7.) In general, desiderata, these included, should be treated as guidelines, not as constraints. The remaining two items on Bradley's list – or possible interpretations of them – make me slightly more nervous than the other five: prudential importance (an account should entail that "harm is something worth caring about 1 Bradley (2012: 394-96). Bradley explicitly denies that he means his list to be complete (396); he means it only as a starting point. More precisely, Bradley presents his list as a list of desiderata for accounts of what he calls "extrinsic, overall harm" (394). An event is an extrinsic harm just in case it is "harmful because of [its] effects," and an event is an overall harm just in case "taking into account all the event's harmful and beneficial features, the event is on balance harmful" (392, 393). But I think Bradley's list serves just as well as a list of desiderata for accounts of what he calls "intrinsic harms," i.e., events that are themselves harms, and for accounts of what he calls "pro tanto harms," i.e., events that have "some harmful feature[s]" (ibid.). Furthermore, I think it very plausible that what Bradley picks out with the expression "intrinsic, pro tanto harm" is what we ordinarily pick out with the expression "harm." Hence in what follows I shall treat Bradley's list as a list of desiderata for theories of harm. I JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 2 in prudential deliberation") and normative importance (an account should entail that "harm is the sort of thing it makes sense for there to be deontological restrictions about").2 If Bradley means the prudential importance desideratum merely to tell against theories of harm that imply that things about which it would make no sense at all to care in prudential deliberation can count as harms, then it seems plausible. However, if Bradley means it to tell against theories of harm that imply that things about which it would make little sense to care in prudential deliberation can count as harms, then it seems overly restrictive; so interpreted, it suggests that we ought to treat minor harms as non-harms. Similar considerations apply to the normative importance desideratum. If by "deontological restriction" against harming Bradley means "pro tanto moral reason" not to do harm, then the desideratum seems plausible. But if Bradley means something stronger than that, then we should probably reject the desideratum (not to mention wonder how it could be compatible with the amorality desideratum). But we can set aside these interpretive intricacies. Rather than presupposing any hefty relation between normativity (prudential or moral) and harm, I shall try throughout this paper to let cases speak for themselves – to imagine hypothetical situations; to form judgments as to whether or not anyone is harmed in them independently of considerations as to whether or not anything imprudent or immoral happens in them; and to see which theories of harm cohere with my verdicts and which do not. Of course, my intuitions concerning when there is harm and when there is not are my intuitions, and other people will have different ones. However, I hope that even readers who think that I occasionally see harms where there are none, or that I occasionally fail to see harms where there are some, will at least gain something of theoretical value from the cases themselves. 2. Shiffrin and the Non-Comparative Account Seana Shiffrin is a prominent defender of non-comparativism about harm. She criticizes two comparative theories of harm: the "counterfactual view," according to which "one is harmed if and only if one is placed in a state in which one is worse off than one otherwise would have been," and the "historical view," according to which "one is harmed if and only if one is made worse off than one was before."3 Shiffrin holds that harm has nothing to do with 2 Bradley is by no means alone in positing something in the vicinity of the normative importance desideratum. Matthew Hanser and Seana Shiffrin, for example, both take it for granted that harm, whatever it is, must be of (great?) normative importance, though neither puts the point specifically in terms of "deontological restrictions." See Hanser (2008: 421) and Shiffrin (2012). I take it that they would affirm something like the prudential importance desideratum, too. 3 Shiffrin (2012: 366-76). Feinberg (1986) defends an influential version of the counterfactual view. For a more recent defense, see Klocksiem (2012). See also Parfit (1986: 374). Thomson defends a version of the historical view in her (1990: 261), but rejects it in her (2011) in favor JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 3 cross-world or cross-time comparisons. Instead, she defends a "will-oriented conception of harm," according to which a harm is a state or condition "sufficiently antithetical or foreign to one to occasion either a substantial clash or a severe gulf between it and one's will."4 Let us call such a state a "willusurping state." Shiffrin takes her non-comparative account to be incompatible with each of the comparative accounts to which she objects. But strictly speaking, it is not. Each of the comparative accounts is an account of what it is to be harmed.5 Shiffrin's non-comparativism is an account of what a harm is. And one could, in principle, hold that what it is to be harmed is a separate matter from what a harm is. Of course, it is natural to think that the two matters are not separate. Very plausibly, what it is for someone to be harmed just is for her to be the subject of a harm. Shiffrin's account therefore lends itself naturally to the following theory of what it is to be harmed, which is incompatible with each of the comparative accounts, and which Shiffrin presumably means to endorse: Shiffrin's Thesis. A is harmed =df A is the subject of a will-usurping state. What should we think of this? One odd consequence of Shiffrin's Thesis is that an entity without a will cannot be harmed. Yet although I doubt that mice have wills, I am sure that they can be harmed. Shiffrin briefly addresses this sort of worry. She acknowledges that there is an ordinary sense in which plants are harmed when damaged and insects are harmed when their antennae are torn. In these cases, she writes, "we point to an extended sort of damage or interruption of life function." Shiffrin says that she is unconcerned with this sort of harm and means instead "to try to isolate a core notion of harm to individuals that occupies a prominent place in normative theory" (2012: 359). But this is unclear. Does Shiffrin mean to say that "interruption of life function" does not occupy a prominent place in normative theory? This is surely false; moral philosophers are obsessed with killing, mutilation, and the like. Nor is interruption of life function an "extended" (Shiffrin's word) or non-focal case of harm; it is a paradigmatic harm. Does Shiffrin mean instead that interruption of life function of non-persons does not occupy a prominent place in normative theory? This too would be wrong. Although few people hold that plants have anything resembling rights or claims to our moral atten- of a version of the counterfactual view (see Section 5). It will be important in Section 3, but not now, to refine the counterfactual and historical views beyond Shiffrin's presentations of them. 4 Shiffrin (2012: 383, 388). See also Shiffrin (1999). 5 Actually, as Shiffrin presents them, they are statements of necessary and sufficient conditions on someone's being harmed. But I assume that Shiffrin means the "if and only if" in each of her formulations of the comparative accounts to have the meaning of a "=df." JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 4 tion, many would say that non-human animals are worthy of our direct moral concern (even if they are worthy of less concern than our fellow persons). Maybe Shiffrin means only to suggest that there are distinctive kinds of harm of which persons alone can be subjects, and that her goal is to say what they are. This might be true, but it is not obvious why some special moral significance would attach to person-exclusive harms alone. Death is not merely normally thought to be a paradigmatic harm; it is normally thought to be the number-one harm, and it is not exclusive to persons. Another difficulty for Shiffrin's Thesis is that it seems possible even for a will-possessing entity to be harmed without her will's being interfered with. Suppose I break your arm while you are unconscious, and then return it to its original state. I harm you in performing my first act (and I benefit you in performing my second), even though I do not interfere with your will in performing my first act.6 In response to this case, those who embrace a dispositional account of the will might say that I actually do cause you to occupy a will-usurping state in breaking your arm, for you would object to my act if you were in a position to do so.7 (I do not know whether Shiffrin defends dispositionalism about the will, but her view seems compatible with it.) Consider, then, cases of voluntary self-harm. Masochists are harmed as a result of their actions, despite being the subjects of states that even dispositionalists must say are in conformity with their wills. Or suppose Bob is severely depressed, and so has no volitions, dispositional or otherwise. If I break his arm, then I do not thereby cause him to occupy a will-usurping state – I cannot cause him to occupy a willusurping state – but I harm him.8 These cases show that being the subject of a will-usurping state is not a necessary condition for being harmed. But it seems that occupying a willusurping state is not a sufficient condition for being harmed, either. A parent may very well cause her child to occupy a will-usurping state by ordering her to stop playing in the mud, but she does not thereby cause her child to be harmed (or harm her). It is, admittedly, open to the defender of Shiffrin's 6 It is ironic that Shiffrin's Thesis seems to imply that I do not harm you in doing this; Shiffrin (2012: 364) offers as an example of an unjustifiable harmful act "nonconsensual arm-breaking surgery on a healthy patient" that will give the patient a great benefit. 7 Thanks to Frances Kamm for this point. 8 Defenders of Shiffrin's Thesis might argue that Bob lacks a will, and so conclude that harming Bob would at most be one of those "extended" harms that can be visited upon plants and non-human animals. But we have already found reasons to think that at least some of what Shiffrin calls "extended" harms are paradigmatic harms. So, if Shiffrin's Thesis implies that Bob's lacking a will entails his inability to be harmed in a central sense, then so much the worse for Shiffrin's Thesis. Furthermore, it seems that one can have a will while, like Bob, lacking volitions. But one's will can be interfered with, presumably, only if one has volitions. Indeed, it seems plausible that to interfere with someone's will just is to interfere with some of her volitions. Therefore, I find it natural to construe Bob's case as one in which a will-possessing entity (Bob) is harmed (by my act) but does not occupy a will-usurping state (because he lacks volitions). JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 5 Thesis to describe the case as follows: The parent justifiably causes the child to be harmed (by ordering her to stop playing in the mud) in order to prevent her from receiving future greater harms. But this would, to my thinking, be an awfully forced description. Someone attracted to non-comparativism about harm might respond to these objections by replacing Shiffrin's Thesis with an account that does not place exclusive emphasis on will-usurping states, such as: Expansive Non-Comparativism. A is harmed =df A is the subject of a bad state.9 In order to add detail to this idea, one might list the components of a person's well-being (e.g., friendship, intelligence, bodily health),10 assign to each an "acceptability threshold," and say that for one to be in a bad state is for one to fare worse with respect to some component of well-being X than X's acceptability threshold. One might refine this sort of approach by indexing acceptability thresholds to particular persons and components. It might be, for example, that my acceptability threshold for autonomy differs from yours. It might also be that my acceptability threshold for a given component of well-being is partly a contextual matter; perhaps my acceptability threshold for autonomy is a function of my stage in life, my projects, and so on.11 Furthermore, it might even be that the components of well-being themselves need to be indexed to particular persons. Perhaps the components of my well-being (not just their acceptability thresholds) differ from the components of your well-being. And so on. Expansive Non-Comparativism, combined with a plausible list of components of well-being, can handle the objections that I have raised to Shiffrin's Thesis. For one thing, will-lacking entities can occupy bad states, so Expansive Non-Comparativism allows that they can be harmed. In addition, if I break your arm while you are unconscious, then you thereby become poorly off with respect to bodily health, and so are harmed. Ditto for masochists and severely depressed persons. However, it seems that A can be harmed even if A is at no point in a bad state. Suppose a billionaire loses a thousand dollars. I think the billionaire is harmed, albeit not severely, even though she is extremely well off in all respects.12 Or suppose a genius suffers a brain injury and so is reduced to 9 Harman (2009) defends a view in the vicinity of Expansive Non-Comparativism. (The discrepancies between Harman's view and Expansive Non-Comparativism need not concern us.) 10 I mean these only as candidates. 11 In conversation, Thomas Scanlon has raised the possibility that a person is harmed at t just in case she is worse off in some respect than it would be normal (in some normative sense of the term) for her to be at t. I mean context-sensitive acceptability thresholds to cover this sort of idea (among others). 12 Shiffrin herself proposes the case, and holds that the billionaire is not harmed. I find this a strange verdict. Shiffrin imagines that the billionaire's loss of money is "accidental" (2012: 371-72). But suppose the billionaire's money had instead been stolen. I take it that the billionJOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 6 having merely average intelligence.13 The genius does not thereby become poorly off with respect to intelligence, but she is harmed. Admittedly, a defender of Shiffrin's Thesis might reply that the genius's will is presumably interfered with by her having normal intelligence. But we can imagine that the genius's brain injury has also given her average volitions, with the result that she does not occupy a will-usurping state. In such a case, the genius is nevertheless harmed (and not merely insofar as she suffers the bodily damage of a brain injury). We might call cases of this sort "worse-off-but-not-poorly-off cases."14 They show that it is not a necessary condition on being harmed that one occupy a bad state. Cases in which one becomes better off but not well off show that occupying a bad state is not a sufficient condition on being harmed, either. Suppose I am 10 units below my acceptability threshold for some component of my well-being X, and my doctor causes me to be 5 units below my acceptability threshold for X. Contrary to Expansive Non-Comparativism, it does not seem plausible to say that I am harmed after my doctor has finished working on me. Certainly it is not the case that my doctor harms me. In response to cases of this sort, Elizabeth Harman (2009: 148-49) concedes that one is harmed by the non-comparativist's lights in a better-off-but -not-well-off case, but argues that the benefactor who causes the beneficiary to be better off but not well off does not harm her. She thinks that what it is for B to harm A is for B to cause A to occupy a bad state, and that the benefactor in a better-off-but-not-well-off case does not cause the beneficiary to be in a new state (much less a bad new state), but causes the beneficiary not to be in a worse state. Thus Harman would deny that non-comparativism commits one to saying that my doctor harms me in the above case. aire would at least be harmed in that case. But to my thinking, the addition of theft to the equation would make the difference between the billionaire's being wronged and his not being wronged, but it would not make the difference between his being harmed and his not being harmed. So, I think we should say that the billionaire is harmed in the case of inadvertent loss, too. Perhaps underlying Shiffrin's judgment in the case is an intuition that a billionaire becomes no worse off at all as a result of losing a thousand dollars. This is surely not always right, but, even if it were always right, it would be open to persons other than noncomparativists (e.g., defenders of the historical view, defenders of the counterfactual view) to say that the billionaire is not harmed. Alternatively, Shiffrin's verdict may have an egalitarian conviction at its root. In opposition to the counterfactual and historical views, she says that "it seems troubling that a theory of harm would suggest that achieving equality through redistribution of undeserved goods will ... necessarily effect harm (merely by virtue of the losses or opportunity costs of the more fortunate)" (2012: 373, her emphasis). That Shiffrin finds this idea "troubling" stems, I assume, from her view that harm has a "moral priority" that makes it hard to justify in a way that "redistribution of undeserved goods" apparently is not. I am inclined, however, to say that egalitarian political systems, like all political systems, do indeed necessarily involve harms – it is just that they are (arguably) justifiable harms. 13 Hanser (2008: 432) proposes the case. 14 Hanser has an illuminating discussion of worse-off-but-not-poorly-off cases in his (2008: 431-33). JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 7 Although Harman's strikes me as the right description of some betteroff-but-not-well-off cases, I do not think that it captures all such cases. Consider the following case: Abracadabra. Your right arm was recently torn off, and I use my magic wand to give you a new right arm. However, my skills in sorcery are not perfect, and so your new arm is not perfect, either – it hurts whenever you raise it above your head, and it falls asleep frequently. I submit that, having received your new arm, you occupy a state that you did not occupy before (the state of having a mediocre right arm), that I caused you to occupy that state, that you are better off but not well off with respect to your overall bodily health as a result of my action, and that I have not harmed you. (Matters would have been different, though, had I given you a perfect right arm and later made it mediocre. In such a case, I would have benefited you and then have harmed you.) Harman, however, is committed to saying that I harm you in Abracadabra, for the new state that I cause you to occupy is, intuitively, a bad one, albeit one with which you will probably be pleased. This is implausible. Of course, Harman's account of what it is for B to harm A is separable from Expansive Non-Comparativism, which is only an account of what it is for A to be harmed. It is open to the defender of Expansive NonComparativism to deny that what it is for B to harm A is for B to cause A to be in a bad state, and thus to deny that I harm you in Abracadabra. But this will require the Expansive Non-Comparativist to deny that what it is for B to harm A is for B to cause A to be harmed, for the Expansive NonComparativist says that what it is for A to be harmed is for A to be in a bad state. This seems like a serious cost to me. It seems very plausible that B's harming A just is B's causing A to be harmed. But we can set aside these difficulties concerning harming and focus exclusively on being harmed. Better-off-but-not-well-off cases such as Abracadabra illuminate particularly well the fundamental problem with noncomparativism. Why does it sound so strange to say that you are harmed after receiving your new arm in Abracadabra? The reason, it seems, is that, pace the non-comparativist, determining whether or not A is harmed is not simply a matter of determining the goodness or badness of the states of which A is a subject. One must also determine something like how those states came about in order to tell whether or not A is harmed.15 Ordinary language corroborates this point. Intuitively, the expression "being harmed" is synonymous with the expression "getting harmed"; it picks out an event, not a state. When I say, "Bob was harmed on his way to the store," I mean that something happened to him on his way to the store; I do not merely mean that things were going a certain way for him on his way to the store. (In this respect, compare "Bob was sad on his way to the store.") 15 Perry emphasizes this point in his (2003: 1296-97). JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 8 I conclude that we ought to reject non-comparativism. 3. The Counterfactual View Let us turn to the counterfactual view. Here, once again, is Shiffrin's formulation of it (where the "if and only if" is presumably meant to mark an analysis): "one is harmed if and only if one is placed in a state in which one is worse off than one otherwise would have been." If we understand the "worse off" as synonymous with "worse off overall," then this formulation of the counterfactual view is inadequate. Suppose your entire left hand is paralyzed, and I cure it by giving you a drug that also paralyzes your right pinkie. You are better off overall for taking the drug, but you are worse off in some respect. The present interpretation of the counterfactual view entails that I do not harm you in giving you the drug. This seems wrong; intuitively, I benefit you greatly in giving you the drug, but I also harm you. Hence the "worse off" in Shiffrin's formulation of the counterfactual view ought to be replaced by "worse off in some respect," yielding (after substituting each instance of "one" with an instance of "A") this thesis: CV. A is harmed =df A is placed in a state in which A is worse off in some respect than A otherwise would have been.16 So stated, the counterfactual view delivers the right verdict in the case. The same goes for the historical view, which Shiffrin presents as the claim that "one is harmed if and only if one is made worse off than one was before." It would be better formulated as follows: HV. A is harmed =df A is made worse off in some respect than A was before. Now, even our improved formulation of the counterfactual view is ambiguous between at least two readings: CV1. A is harmed =df A is the subject of an event E that places A in a state S such that A would have been better off in some respect had it not been the case that E places A in S. CV2. A is harmed =df A is the subject of an event E such that A would have been better off in some respect had E not occurred. These two theses can come apart, for it might be that a given event E that places A in S could have failed to place A in S without failing to occur.17 16 It might be thought that the counterfactual view thus amended presupposes the truth of pluralism about well-being, and therefore runs contrary to the axiological neutrality desideratum. This is false. The counterfactual view thus amended in combination with the theses that (a) you are harmed in the case just described and that (b) you are made better off in the case just described entails pluralism about well-being. The counterfactual view thus amended does not on its own entail pluralism about well-being. JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 9 I think the analysans of CV1 more properly belongs in an account of what it is for an event to cause harm to A than in an account of what it is for A to be harmed, for I take it that what it is for E to place A in S is for E to cause A to be in S. Of course, CV1 could be rephrased not in terms of "placing" but in terms of (say) "entering" so as to be a candidate account of what it is for A to be harmed, as follows: CV1*. A is harmed =df A is the subject of an event E that is A's entering a state S such that A would have been better off in some respect had it not been the case that E is A's entering S. But CV1* collapses into CV2 unless we add the assumption that there exists an event E that occurs in two worlds W1 and W2 such that E is A's entering S in W1 and E is not A's entering S in W2. This assumption is implausible. Even if there is an event that causes one alteration in one world and another in another, it seems very unlikely that there is an event that is one alteration in one world and another in another. I propose, then, that we understand the counterfactual view simply as CV2, at least for now. In Section 7, we shall see that even CV2 is ambiguous among at least three readings, but it will not be necessary to iron out the differences among them until then. Parallel considerations apply once again to HV, our improved formulation of the historical view. Intuitively, for A to be "made" worse off in some respect than A was before is for A to be caused to undergo a descent with respect to some component of A's well-being. Hence HV seems more properly to be understood as a candidate account of what it is for A to be caused to be harmed than as a candidate account of what it is for A to be harmed, and we ought to replace it with this thesis: Historical View. A is harmed =df A undergoes a historical worsening, where "historical worsening" picks out a descent with respect to some component of one's well-being. I shall examine the historical view in Section 6. Let me add one final clarificatory point. I take it as obvious that a defender of CV2 will want to defend this thesis as well: (*) Event E is an instance of A's being harmed =df (a) A is the subject of E, and (b) A would have been better off in some respect if E had not occurred. To illustrate: If Bob is punched in the face and would have been better off in some respect if he had not been punched in the face, then the defender of CV2 will not only say that Bob is harmed but also that the event of Bob's being punched in the face is an instance of Bob's being harmed. Since CV2 and (*) so obviously go hand in hand, I shall for ease of exposition assume in what follows that a counterexample to (*) is also a counterexample to CV2. 17 Thanks to an anonymous referee for this point. JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 10 CV2 yields the correct verdicts in all of the cases considered in Section 2. It has no problem saying that non-persons can be harmed. An unconscious, masochistic, or severely depressed person who has bodily damage inflicted upon her (whether by another person, by herself, or by natural accident) would have been better off had the damage not been inflicted upon her, so by the lights of the counterfactual view, she is harmed. Someone who becomes worse off but not poorly off would have been better off otherwise, so she is harmed. And someone who becomes better off but not well off would not have been better off otherwise, so she is not harmed. However, CV2 also faces a notorious, and in my view fatal, difficulty: cases of preemptive harm.18 Consider the following case: Broken Arm. Jim breaks my arm, but if Jim had not broken my arm, then Joe would have torn it off at the exact same time. It appears that the defender of CV2 is committed to saying that the event of my arm's getting broken is not an instance of my being harmed in Broken Arm, for I am no worse off in any respect than I would have been had my arm not been broken. (Indeed, if the defender of CV2 also accepts a counterfactual account of being benefited, which would seem to be a natural complement to her view of harm, then she is committed to saying that I am benefited in Broken Arm.) But this is absurd. My arm's getting broken is an instance of my getting harmed in Broken Arm, even if I ought to be somewhat glad that I am harmed in Broken Arm as I am. We should reject CV2. 4. Thomson's Revised Counterfactual View Largely in response to cases of preemptive harm, Judith Thomson has proposed a "revised counterfactual account" of harming.19 Her account depends crucially on a notion of "preventing," which she not very helpfully "leave[s] to intuition" (2011: 447). Here is the account, in Thomson's words: Y harms A just in case A is in a state s such that: Y causes A to be in s, and for some state s*, (α) Y prevents A from being in s* by the same means by which Y causes A to be in s, and (β) A is worse off in a way for being in s than he would have been if he had been in s*.20 18 I borrow the expression from Hanser (2008: 434-37). Thomson (2011: 446-47), Bradley (2012: 397), and Shiffrin (2012: 367-68) also take cases of preemptive harm to undermine the counterfactual view. 19 Thomson (2011). Thomson also proposes a revised counterfactual account of suffering a harm, but we will not need to assess it. The account of suffering a harm depends on the account of harming, and we will see that the account of harming is incorrect. 20 Thomson (2011: 448). JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 11 (Translation: Y harms A just in case Y causes A to occupy a state that is worse in some respect than some other state that Y thereby prevents A from occupying.) Let us call this "Thomson's Thesis." Although Thomson's Thesis is not strictly speaking an account of what it is to be harmed, Thomson would presumably agree that Y's harming A entails A's being harmed. So, we can show that Thomson has an incorrect view of what it is to be harmed by producing a case in which Y intuitively does not harm A but in which Thomson's Thesis entails that Y harms A. But before we can do that, we must get clear on what Thomson means by "prevents." To my mind, to prevent A from occupying state S is, roughly, to make it the case that A does not enter S. It is not merely to make it the case that A does not occupy S. (Hence we distinguish between "preventing disease" and "curing disease.") Thomson does not appear to use the expression "prevents" as I do. For one thing, she says that she understands "prevents" as synonymous with "interferes" (2011: 447). But although I do not think that removing A from S is sufficient for preventing A from occupying S, I do think that removing A from S is sufficient for interfering with A's occupying S.21 For another thing, Thomson calls preventing and interfering "normative notions" (2011: 447). But cases of prevention exist that do not seem to me to be "normative" in any interesting sense. Suppose rock X is falling such that it will hit rock Y if it is not stopped. Smith throws rock Z at X, knocking X out of its Y-ward path. Smith's throwing Z prevents X from hitting Y, but I see nothing "normative" about his doing so.22 Happily, though, examining a case that Thomson proposes in order to bolster her account of harming will clarify her conception of preventing sufficiently for my purposes: Suppose villain C threw acid in A's eyes, to cause him to be blind. The acid began to affect A's eyes, but before it could complete the process of blinding A, bystander B intervened – he used a neutralizer on A's eyes, thereby causing A to be in a state short of blindness, namely "has dim vision." We must surely accept that each of C and B caused A to be in "has dim vision," and yet that C harmed A but B did not ... . C did not merely cause A to be in "has dim vision": he did so by throwing acid in A's eyes, and by doing that, he also prevented A from being in "has good vi- 21 To be sure, if I remove A from S at t in a way that makes it impossible for A to return to S for some period of time after t, then I thereby prevent A from occupying S during the post-t period of time in question. But I do not prevent A from occupying S at t. 22 Thomas Scanlon has suggested to me that there might be something normative about the notion of a normal course of events, and that Thomson might take it that to prevent something from happening is to interfere in some respect with a normal course of events. I agree that there is a normative sense of the expression "normal course of events," though it seems to me that a non-normative sense attaches to the expression as well. In the case just described, the course of events in which X hits Y seems "normal," but I maintain that there is nothing normative there. I further agree that this might be the right way to interpret Thomson. This, however, is an idiosyncratic use of the term "prevents." JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 12 sion." B also caused A to be in "has dim vision," but he did not prevent A from being in "has good vision."23 This passage strongly suggests that Thomson believes, unlike me, that making it the case that someone does not occupy S is a sufficient condition for preventing her from occupying S. For in Thomson's case, C removes A from the state of having good vision – C does not keep A from entering that state – and Thomson takes C thereby to prevent A from occupying that state. Now we can see why Thomson takes her account of harming to deal with cases of preemptive harm. Consider Broken Arm from Section 3. In breaking my arm, Jim prevents me – in Thomson's extended sense of the term – from occupying the state of having a perfectly healthy arm, for Jim removes me from that state. That "prevented" state is in a way superior to the state that Jim causes me to be in. So, Jim harms me. Notice that removing someone from a state is a historical notion. First the person is in the state, and then she is not. But as we have seen, defenders of the historical view say that to be harmed is to become worse off in some respect than before. And getting removed from a state, in the sense at issue in Thomson's account of harming, just is becoming worse off in some respect than before. First one is in the state of (say) having perfect vision, and then one is not. Thomson seems therefore to hold that one is prevented from occupying some state in her sense either if one undergoes a historical worsening of the sort of interest to defenders of the historical view or if one is prevented from occupying that state in the more ordinary sense of the term. More could be said and wondered about Thomson's revised counterfactual view, but we are now in a position to raise a fairly straightforward, and to my mind decisive, objection to it. Consider this case: Two Pills. You are dying, and I can give you one of two pills. Pill 1 will leave you paraplegic for the rest of your life, but you will be able to wiggle your left pinkie effortlessly. Pill 2 will cure you completely, except that it will be slightly painful for the rest of your life for you to wiggle your left pinkie. However, your left pinkie is currently totally paralyzed, so taking either pill will make you better off with respect to your left pinkie than you are now. At your request, I give you pill 2. Thomson's Thesis entails that I harm you in Two Pills, for in giving you pill 2, I cause you to occupy a state – the state of being unable painlessly to wiggle your left pinkie – that is in some way worse than a state that I thereby prevent you from occupying – the state of being able painlessly to wiggle your left pinkie. And since A's harming B is a sufficient condition for B's being harmed, Thomson's Thesis yields the verdict that you are harmed in Two Pills. And this is surely wrong. 23 Thomson (2011: 447-48). JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 13 What Two Pills brings out is that Thomson's revised counterfactual view must erroneously treat as harmed anyone who receives a benefit that is in some respect inferior to a benefit it prevents. For the sake of persuasiveness, I just presented a case in which the benefit received is obviously more desirable than what it prevents. But even many cases where a benefit received is less desirable than what is prevented do not strike me as cases in which one is harmed. Consider this case: Midwest Rivalry. My friend can give me one of two pills, the first of which will transform me into a Cubs player and the second of which will transform me into a Cardinals player. In becoming one I would thereby be prevented from becoming the other. Becoming either would be a pure improvement in all respects over my current condition, but becoming a Cardinals player would be a vastly greater one. I ask my friend to make me a Cubs player, and he does so. Contrary to Thomson's Thesis, my friend does not harm me in making me a Cubs player, and I am not harmed in becoming a Cubs player. True, it might be somewhat irrational for me to choose to be a Cubs player, for knowingly making suboptimal choices is arguably irrational. But even if this is the case, I do not think that my friend harms me; I merely irrationally choose to receive a pure benefit. Besides, we can purge Midwest Rivalry of considerations of rationality by imagining that I neither know nor have reason to believe that I am making a suboptimal choice. Maybe I believe on good evidence (heaven alone knows what that might be) that becoming a Cubs player would be better for me than becoming a Cardinals player. In that case, I would ignorantly, but rationally, choose to receive a suboptimal pure benefit. But I would not be harmed. Thomson's revised counterfactual view is false. 5. Hanser's Event-Based Account Matthew Hanser calls his account of suffering harm24 the "event-based account." According to it, for A to suffer harm just is for A to be the subject of a non-derivative harm or a derivative harm. A non-derivative harm to A is a loss by A of some quantity of some "basic good," such as vision or intelligence.25 24 Hanser says at the outset of his paper that to suffer harm "is simply to be its subject," leaving it open to what ontological category harm belongs (2008: 421). He later goes on to argue that harms are events, and thus that suffering harm is being the subject of a kind of event. 25 Hanser writes: "'Goods' are not states or conditions that it is good to be in. Rather, they are things that it is good to have" (2008: 440). I suspect, however, that Hanser's talk of basic goods could be translated into "state" talk without corruption of his view. Suppose I have some quantity Q of some basic good G. This means that I am in the state of having Q of G. I depart from this state if and only if I lose some or all of the G I have. I do not depart from this state if I gain some G, though in such a case I do come to occupy a new state (the state of having more than Q of G). (If I have three apples and acquire a fourth, I do not ipso facto depart from the state of having three apples.) It therefore seems that someone attracted to the event-based account could, if she wanted, say that a non-derivative harm is a departure JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 14 Non-derivative harms are also called "level-1 harms." A level-2 harm for A is A's being prevented from gaining some quantity of some basic good (i.e., being prevented from receiving a "level-1 benefit"), a level-3 harm is A's being prevented from being prevented from receiving a level-1 harm, and so on. All harms of levels greater than 1 are "derivative" harms. There is no limit in principle to how derivative a harm can be.26 It will no doubt appear that a non-derivative or level-1 harm is identical to a historical worsening of the sort of interest to defenders of the historical view. A level-1 harm is the loss of some quantity of some basic good. A historical worsening is a decrease in how well someone is faring with respect to some component of her well-being. And it is plausible that the basic goods are the components of well-being.27 from the state of having some quantity of some basic good, in addition to a loss of some quantity of some basic good. (Aside: I take it that Hanser is speaking imprecisely when he identifies basic goods with "things that it is good to have." It may be good to have a convertible, but I doubt Hanser would include convertibles among basic goods.) 26 Hanser (2008: 440-42). Predecessors of Hanser's non-derivative and derivative harms appear in his (1999a) and (1999b). 27 Ben Bradley (2012: 402-405) takes it that Hanser's basic goods are merely "extrinsic" goods – specifically, powers to acquire "intrinsic" goods. But the components of well-being, whatever they are, are intrinsic goods, not extrinsic goods (or not merely extrinsic goods – more on this below). So, Bradley's reading would have it that Hanser's non-derivative harms are not identical to historical worsenings. But Bradley's reading has among its background assumptions a hedonist view of intrinsic good with which I have little sympathy, and which I take it Hanser rejects. Bodily health, for example, is good in Bradley's eyes only if, and then only because, it furnishes us with pleasurable experiences. (Aside: If I am correctly understanding the evaluative relations between pleasures and non-pleasures that Bradley is positing, then it would be better to describe them in terms of "final" and "instrumental" good rather than in terms of "intrinsic" and "extrinsic" good. See Korsgaard [1983].) This view of bodily health seems mistaken to me; healthy unconscious people, in my view, are ceteris paribus better off than are unhealthy unconscious people. To deny this would require one either to deny that I harm an unconscious person by dramatically reducing her health or to hold that I harm an unconscious person by dramatically reducing her health but do so without having any sort of influence on her well-being. Neither option seems attractive. Nor does pleasure even seem to be a good candidate for an intrinsic good. Consider sadists. Very plausibly, it would be just plain better, both for the sadists themselves and from the point of view of the universe, for them not to derive sexual pleasure, or any pleasure at all, from the suffering of others. More plausible, in my estimation, is the Aristotelian view that pleasure takes the value of its object. Hence I think that it would be most charitable to refrain from interpreting Hanser as Bradley does. That said, an anonymous reviewer has drawn my attention to a sentence in Hanser that could be read as corroborating Bradley's view of Hanser's basic goods as merely extrinsically (or instrumentally?) good: "And 'basic' goods are, roughly speaking, those the possession of which makes possible the achievement of a wide variety of the potential components of a reasonably happy life" (2008: 440). It seems that Hanser commits himself in this passage to the claim that basic goods are extrinsically (instrumentally?) good relative to the (presumably intrinsic or final) good of a reasonably happy life. However, Hanser does not commit himself in this passage to the claim that basic goods are not intrinsically (finally?) good, for Hanser does not commit himself here or elsewhere to the claim that nothing is both intrinsically (finally?) and extrinsically (instrumentally?) good. Furthermore, Hanser JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 15 But Hanser denies this, or at any rate he is committed to doing so. "Not every decline in well-being involves the loss of a basic good," he writes (2008: 446). Why does Hanser say this? I suspect that Hanser does not identify basic goods with components of well-being, and so does not identify level1 harms with historical worsenings, in order to claim that death is not a historical worsening but is a level-1 harm. "I assume," he writes, "that when someone dies, he ceases to have any level of well-being. The state of being dead has no value for a person, whether positive, negative or neutral" (2008: 437). Elsewhere, he makes the same point: "The dead fare neither well nor badly. They fare neither better nor worse than they fared before they died, or than they would have fared had they not died when they did. They don't 'fare' at all" (2011: 463). However, Hanser also writes: "According to the event-based account, death is a harm because it consists in the loss of certain basic goods" (2008: 447). This remark implies that death is in Hanser's eyes a level1 or non-derivative harm. Hanser calls the goods supposedly lost in death the "'vital' powers" (2008: 443). Unless there is some kind of reality after death, Hanser's claim that the dead have no well-being is hard to deny (though it has been denied; more on that in Section 7).28 But then, Hanser's own thesis that death is loss of vital powers is equally hard to take seriously. Death is plainly not "loss of vital powers." If A can lose x, then A can exist without x. But it is obviously impossible (again, assuming the nonexistence of an afterlife) to exist without one's vital powers. One's vital powers are absolutely nothing like one's bicycle – one can no more be separated from them than one can be separated does not commit himself in this passage to the claim that basic goods are even partly extrinsically (instrumentally?) good relative to the intrinsic (final?) good of well-being, for Hanser does not commit himself here or elsewhere to the claim that well-being and a reasonably happy life are identical. Indeed, I think it would be odd if he thought this. A given reasonably happy life has among its components events (e.g., a trip with one's family to the Grand Canyon), for a life is an event (or a sequence of events). But it does not seem that the components of well-being, or of a particular person's well-being, include any events. Rather, it seems that the components of well-being are states – the sorts of things that persons can occupy at times. This is why it is possible for a person's well-being (or level of well-being) to change from one time to another. 28 Interestingly, a number of contemporary philosophers have affirmed the existence of secular quasi-afterlives. Feldman (2013; 1991) and Mackie (1999) argue that we can exist after our deaths as corpses. (We merely can exist after our deaths as corpses, say these writers, because some of us leave behind no corpses after death.) See Olson (2013) for a powerful critique of this view. In a somewhat similar vein, Palle Yourgrau (2000; 1987) distinguishes between existence and being and argues that the dead do not exist but are. Shiffrin (2012: 386) suggests (without elaboration, unfortunately) that "the boundaries of a person or her life may extend beyond her corporeal existence." Velleman (2012: 519) suggests that a dead person might have an "uninstantiated identity," which can be the subject of the "misfortune" of death. If only to engage as directly as possible with the extant philosophical literature on the harm of death, almost all of which presupposes that death is genuine permanent annihilation, I assume in this paper that no view of this sort is true. Indeed, my reader can take me to use the term "death" in what follows as a synonym for "permanent annihilation of a living thing." JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 16 from one's life. (We do of course talk of "loss of life," but this is surely metaphorical language. If A dies, then perhaps there is a serious sense in which the world loses A's life, but A does not lose A's life.) Hanser's apparent basis for claiming that death is a level-1 harm is therefore merely apparent. Consequently, Hanser has no reason to distinguish either between basic goods and components of well-being or between level-1 harms and historical worsenings. We should, then, side with appearances and identify basic goods and components of well-being, on the one hand, and level-1 harms and historical worsenings, on the other. Since level-1 harms are historical worsenings, a version of the eventbased account that recognized level-1 harms alone would be identical to the historical view. So, we might assess the relative merits of Hanser's eventbased account and the historical view by saying what we think about derivative harms. Recall that the lowest-level derivative harms (level-2 harms) are preventions of level-1 benefits. We saw in Section 4 that some preventions of level-1 benefits are not and do not involve harms; this was the lesson of Two Pills and Midwest Rivalry. Since the event-based account entails that all level2 harms are harms, Hanser's event-based account cannot be right. However, since the historical view entails that no level-2 harms are harms, the historical view yields the correct verdicts in those cases. But level-2 harms are not the only things that Hanser calls "derivative harms." What about level-3 harms? Consider the level-3 harm of being prevented from being prevented from having one's arm broken. The occurrence of this level-3 harm entails the occurrence of the level-1 harm on which it is parasitic, namely the harm of getting one's arm broken. We can generalize: A level-n derivative harm, where n is an odd number, entails the existence of a level-1 harm.29 In addition, a level-n derivative harm, where n is odd, entails the existence of a level-m harm for each odd number m between 1 and n. So, a level-5 harm entails the existence of a level-3 harm and a level-1 harm, a level-7 harm entails the existence of a level-5 harm, a level-3 harm, and a level-1 harm, and so on. This is a bit ironic. One of Hanser's objections to the historical and counterfactual views is that, as he construes them, they posit an "excessive multiplication of harms" (2008: 433-34). More importantly, this way of characterizing things just seems incorrect. In a case involving what Hanser would call a "derivative harm with an odd level number," we should instead say that the victim is the subject of only one harm – namely, a level-1 harm or historical worsening – because of a chain of preventions parasitic on it. Odd-level- 29 The "entails" could be parasitic on different metaphysical relations in different contexts. In some cases, the relation between the derivative harm and the level-1 harm may be a causal relation; in others, a grounding relation; in others, an enabling condition relation; and so on. JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 17 number derivative harms are not harms, but causes (or enabling conditions, or grounds, or ...) of harms.30 What about derivative harms with even level numbers? A level-2 harm is a prevention of a benefit, a level-4 harm is a prevention of a prevention of a prevention of a benefit, and so on. Again, a pattern emerges: A level-n derivative harm where n is even entails the existence of a level-m harm for every even number m from 2 to n. But here I think things are a bit different from the case of odd-level-number derivative harms. We said that an odd-levelnumber derivative harm is not a harm but entails the occurrence of a level-1 harm. But it seems to me more natural to say that a derivative level-n harm, where n is even, is itself a level-2 harm (no matter how big n is) than to say that a level-2 harm occurs because of the derivative harm. For me to prevent you from being prevented from being prevented from getting a candy bar (level-4 harm) is for me to prevent you from getting a candy bar (level-2 harm); it is not for me to do something that entails your being prevented from getting a candy bar (except in the trivial sense that the occurrence of any event entails its own occurrence). The "excessive multiplication of harms" charge, then, applies even more forcefully to even-level-number derivative harms than to odd-level-number derivative harms. Hanser would say that a person who suffers a level-100 harm is the subject of 50 harms, each parasitic on the one below it. It is more reasonable, I think, to say instead that such a person is the subject of one (convoluted) prevention of benefit, which may – depending on whether or not preventions of benefit can be harms – also be a harm. This exhausts Hanser's so-called derivative harms. To summarize: Oddlevel-number derivative harms are not harms, but are causes (or enabling conditions, or grounds, or ...) of historical worsenings, which really are harms. Even-level-number derivative harms are preventions of benefit. We have already seen that, in some cases of prevention of benefit, the person involved is not harmed. But are there any cases of prevention of benefit in which the person involved is harmed? I shall turn to that question in the next section, and evaluate the historical view in light of it. 6. The Historical View The historical view accommodates our intuitions in all of the cases considered so far.31 But consider this case: 30 Hanser writes: "An acceptable account of harm should be able to isolate harms from their causal antecedents" (2008: 433). I think an account of harm should be able to isolate harms from their enabling conditions, grounds, and so on, too. 31 All of the following suffer historical worsenings, and so are harmed by the lights of the historical view: non-human animals who have their life functions non-lethally interfered with; unconscious, masochistic, or severely depressed persons who suffer bodily damage; a person in a worse-off-but-not-poorly-off case; me in Broken Arm; and the subject of a Hanserian derivative level-n harm where n is odd. All of the following do not suffer historical JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 18 Sniffles. Bob is sick with a cold. He will get well today unless I increase the temperature in the room by a few degrees, for in so doing I will prevent the cold germs in his body from dying for another day. I do so. However, it is not the case that, as a result of my action, Bob's cold germs get stronger or that his cold gets worse.32 Intuitively, I harm Bob in Sniffles. But do I cause him to undergo a historical worsening? If not, then the historical view is false. Judith Thomson suggests that those who are prevented from becoming better off in some respect, like Bob in Sniffles, thereby undergo historical worsenings. She points out that, in being prevented from becoming better off in some respect, one undergoes a decrease in one's chances of becoming better off in some respect. And Thomson holds that a decrease in one's chances of becoming better off in some respect is itself a historical worsening.33 If this is right, then Bob undergoes a historical worsening in Sniffles, and the historical view can get the right verdict in it. I do not think that Thomson's proposal on behalf of the historical view is successful, for three reasons. First, most obviously, it would imply that anyone who is prevented from receiving a benefit is thereby harmed; but I have already denied this. Second, it seems possible to be maximally well off. A person who is maximally well off fares maximally well with respect to every component of her well-being. Such a person has a 0 percent chance of becoming better off in some respect. (If such a person had a chance greater than zero of becoming better off with respect to component of well-being X, then she would fare sub-maximally with respect to X, and so would not be maximally well off.) But this means that one's chance of becoming better off in some respect cannot be a component of one's well-being. For if it were a component of one's well-being, then a maximally well-off person would have a 100 percent chance of becoming better off in some respect. But if a decrease in one's chance of becoming better off in some respect were a historical worsening, then one's chance of becoming better off in some respect would be a component of one's level of well-being, for a historical worsening is a decrease in how well one fares with respect to a component of one's well-being. It follows that a decrease in one's chance of becoming better off in some respect is not a historical worsening. Third, components of well-being are desirable for their own sakes. This is because well-being is desirable for its own sake, and the components of well-being are constitutive of well-being, not conducive to it. But good chances of gaining benefits are not desirable for their own sakes; they are desirable for the sake of the benefits in question (which themselves might be desirable worsenings and so are not harmed by the lights of the historical view: a person in a better-off -but-not-well-off case such as Abracadabra; you in Two Pills; and me in Midwest Rivalry. 32 Thanks to Frances Kamm for this case. 33 Thomson (2011: 444-45). JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 19 only for the sake of other things). So, good chances of gaining benefits cannot be components of well-being. But they would have to be components of well-being in order for decreases in chances of gaining benefits to be historical worsenings. So, decreases in chances of gaining benefits are not historical worsenings. In sum, it appears that Bob does not undergo a historical worsening in Sniffles, despite being harmed in it. So much for the historical view. What about Sniffles distinguishes it from cases of non-harmful prevention of benefit, such as Two Pills and Midwest Rivalry? It cannot be the fact that consent is given in Two Pills and Midwest Rivalry but not in Sniffles; even if Bob had turned up the temperature himself, he would thereby have been harmed. The following case will help to bring out what I take to be the difference: Bodybuilder. Bob is in good health, and he has just taken the Schwarzenegger Pill. If the temperature in the room does not climb for the next minute, then the pill will transform Bob into a bodybuilder in astounding health. I turn up the temperature in the room by a couple of degrees, and as a result the Schwarzenegger Pill has no effect. Let us assume that the increase in health that Bob would have received from the Schwarzenegger Pill would have been even greater than the increase in health that Bob would have received in Sniffles had I not turned up the temperature (and that Bob receives the next day). Nevertheless, I do not think that I harm Bob with respect to his bodily health by turning up the temperature in Bodybuilder. I may well wrong him (if, say, the Schwarzenegger Pill legitimately belongs to him). Or if he becomes sad as a result of my action, then I harm him in hurting his feelings. But I do not harm him in the same respect that I harm Bob in Sniffles. At least part of the relevant difference between these cases seems to be that Bob would have received a benefit with respect to health from a position of poor health in Sniffles but would have received a benefit with respect to health from a position of good health in Bodybuilder. Roughly, it appears that one who is poorly off with respect to X and is prevented from receiving a benefit with respect to X is harmed, but one who is well off with respect to X and is prevented from receiving a benefit with respect to X is not harmed. Hence I harm Bob in Sniffles but not in Bodybuilder. Objection: Doesn't this explanation entail that I harm you in Two Pills? In causing you to gain a benefit with respect to the health of your left pinkie (getting the ability to wiggle it with slight pain), I prevent you from receiving a still greater benefit with respect to the health of your left pinkie (getting the ability to wiggle it effortlessly), and I do so when you are poorly off with respect to the health of your left pinkie (it is totally paralyzed). This is true, so we must refine the explanation. It is not sufficient for being harmed that one be prevented from receiving just any benefit with respect to X from a poor position with respect to X. One must also stay poorly JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 20 off with respect to X. If in Two Pills I had kept your left pinkie totally paralyzed, or had improved your left pinkie health infinitesimally with the result that you would have had to spend the rest of your life unable to wiggle your left pinkie except with great effort and pain, then I think that I would have thereby harmed you, albeit in a justifiable respect (given the enormous improvement that the rest of your bodily health would have thereby undergone). As things actually are in the case, though, I make it so that you are well off with respect to your pinkie health – wiggling it requires very little pain. This also explains why you are not harmed in Abracadabra from Section 2. Since, in making you better off with respect to bodily health, I do not prevent you from becoming still better off with respect to bodily health, you are not harmed in Abracadabra, even though you do not cease to be poorly off with respect to bodily health. Here, then, is the sufficient condition on being harmed that we are defending: Harmful Prevention. If A is prevented from receiving a benefit with respect to X and in being so prevented stays poorly off with respect to X, then A is harmed.34 Harmful Prevention highlights what I take to be a significant element of truth in non-comparativism about harm. Non-comparativists are wrong to say that one's non-comparative well-being with respect to X after undergoing a historical worsening with respect to X is relevant to whether or not one was harmed in undergoing the historical worsening; every historical worsening is a harmful event for the person who undergoes it.35 But non-comparativists are right to say that one's non-comparative well-being with respect to X after being prevented from receiving a benefit with respect to X is relevant to whether or not one was harmed in being so prevented. If, in being prevented from receiving a benefit with respect to X, I am left poorly off with respect to X, then I am harmed. A further point of clarification is in order. Consider this case: 34 I add the "in being so prevented" to make perspicuous that, according to Harmful Prevention, it is a sufficient condition for being harmed that one suffer a prevention of benefit with respect to X that itself leaves one poorly off with respect to X. Harmful Prevention is not the thesis that it is sufficient for being harmed that one independently meet the conditions of suffering a prevention of benefit with respect to X and staying poorly off with respect to X. 35 Perry (2003) disagrees. Harman (2009) agrees. Note that the fact that every historical worsening is a harm implies the falsity of what we might call contextualism about harm, according to which E is a harm for A just in case E is A's deviating for the worse in some respect from the course of events that it would be reasonable for A to expect to undergo, given the circumstances that A happens to occupy. Someone suffering from a terminal illness can only reasonably expect to undergo historical worsening after historical worsening (or perhaps one long historical worsening) until she dies. Yet the historical worsenings that such a person undergoes are harms. It might be, however, that the severity of a given harm is partly a matter of what it would be reasonable for its subject to expect. JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 21 Two Mediocre Pills. You are poorly off with respect to X. If I give you Pill A, then you will become better off but not well off with respect to X. If I give you Pill B, then you will become even better off but not well off with respect to X. If I give you Pill A, then you will be prevented from taking Pill B. It might be wondered whether Harmful Prevention's antecedent clause is fulfilled in Two Mediocre Pills if I give you Pill A, given that Pill B would also leave you poorly off. The answer is "yes." In taking Pill A, you would be prevented from receiving a benefit with respect to X (namely, the extra benefit that Pill B would have given you), and you would stay poorly off with respect to X. It does not matter that you would also have stayed poorly off had you taken Pill B; nor does it matter that, in taking Pill A, you would receive a benefit. This seems, to me at least, to be a welcome consequence. It does seem that I would harm you in Two Mediocre Pills if I were to give you Pill A, and that I would not harm you if I were to give you Pill B. Do cases other than those covered in Harmful Prevention exist in which one is harmed in being prevented from receiving a benefit? No. We have already said that cases in which one is not kept poorly off in being prevented from receiving a benefit are not cases in which one is harmed. These include cases in which one begins from a state of being poorly off and becomes neither well nor poorly off or well off, cases in which one begins from a state of being neither well nor poorly off, and cases in which one begins from a state of being well off. Together with cases in which one both begins and stays poorly off, these are all the possible cases of prevention of benefit. (See the table below.) Since cases of the sort mentioned in Harmful Prevention are the only cases of prevention of benefit in which the subject is harmed, we can call those cases "harmful preventions of benefit" for short.36 Begins Becomes or Stays Harmed? Poorly off Poorly off Yes Poorly off Neither well nor poorly off No Poorly off Well off No Neither well nor poorly off Neither well nor poorly off No Neither well nor poorly off Well off No Well off Well off No 7. A Modest Proposal Each of the theories of harm assessed in the preceding sections suffers from at least one serious defect. But our investigation has not had exclusively negative results. Rather, it has produced what appear to be two sufficient condi- 36 I mention the condition of being neither well nor poorly off to exhaust conceptual space. I do not think that it is possible to be neither well nor poorly off. Nevertheless, were it the case that one could be neither well nor poorly off, moving from a state of being poorly off to a state of being neither well nor poorly off would not be a species of staying poorly off. So, in being the subject of a prevention of benefit in which one goes from being poorly off to being neither well nor poorly off, one is not harmed. JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 22 tions for A's being harmed: A's being the subject of a historical worsening and A's being the subject of a harmful prevention of benefit.37 Might these be the only species of the genus? If so, then we can say: Answer. A is harmed if and only if: A is the subject of a historical worsening or A is the subject of a harmful prevention of benefit. Is Answer plausible? I shall spend the rest of this paper considering an objection to it. Because the topic with which the objection is concerned is so enormous, I have no hope of responding adequately to it here. I intend to give the objection the undivided attention it deserves in future work. Nevertheless, I think that I can go some way toward showing that the problem for Answer posed by the objection is not as serious as it might at first appear. Here is the objection: The defender of Answer cannot say that a person who dies is thereby harmed. Death is not a historical worsening; this was brought out in Section 5. Nor is death a harmful prevention of benefit, for death cannot leave one poorly off with respect to some component of one's well-being (or in any state, for that matter). But is death not the biggest harm there is? First, it bears noting that, with the possible exception of the counterfactual view (to which I shall turn below), none of the theories of harm considered thus far can accommodate the thesis that one who dies is harmed. Noncomparativism cannot say that one who dies is harmed, for one who dies at t is not in a bad state at t. (I assume that we do not exist at the moments of our deaths. At any rate, if we do exist at the moments of our deaths, then I see no barrier to calling death a historical worsening – a crash to axiological absolute zero, as it were – and thus to saying that Answer is compatible with the thesis that one who dies is thereby harmed after all.) Shiffrin herself is sensitive to this difficulty. It is the reason why, in addition to suggesting that we might exist after death, she says that death might be a "special case" (2012: 386). Thomson's revised counterfactual view cannot say that death is a harm; although there is a sense in which death prevents one from occupying some state, there is no state that it puts one in. This, I take it, is at least part of why Thomson raises the possibility that killing is a "unique kind of harming for which the usual requirements of harming do not hold"; I assume that Thomson would also say that death is a unique kind of harm for which the usual requirements do not hold (2011: 455). Hanser's event-based account will not do the trick, either. Death cannot be a non-derivative harm, and it is a derivative harm only in those cases in which it prevents one from receiving 37 Thus we cannot accept Bradley's recent suggestion that we "Let harm go the way of phlogiston" (2012: 411). Bradley may be right that moral theory can be done without any talk of harm. He may even be right that it ought to be done without any talk of harm. It does not follow that there is no such thing as harm. (Bradley himself might agree. But, if so, his remark is misleading. We deny that there is phlogiston. We do not merely think it useful to refrain from talking about phlogiston.) JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 23 a benefit. Hence, in response to Thomson's criticisms of his view, Hanser "grant[s] that death is a special case" (2011: 463). And the historical view cannot call death a harm, for (once again) death is not a historical worsening. So, even if the defender of Answer cannot call death a (non-sui generis) harm, she is hardly alone in this respect. This brings us to the counterfactual view. Can it accommodate the claim that one who dies is thereby harmed? It might seem that it can, for a number of philosophers defend accounts of the badness or harm of death that have a broadly counterfactual character. For example, Fred Feldman (1992; 1991), who holds that death is bad for the victim "eternally" (1991: 221), argues that the badness of A's death for A, when A's death is bad for A, consists in the fact that it makes the overall value of A's life lower than it would have been had A's death not occurred when it did. And Thomas Nagel (1970: 78) seems to have something similar in mind when he says that death is "timelessly" bad for the victim in virtue of the fact that it deprives the victim of goods that she otherwise would have had.38 It is worth pointing out that neither Feldman nor Nagel, to my finding at least, explicitly claims that death is a harm to the victim in virtue of the fact that it makes the victim's life worse overall than it otherwise would have been or in virtue of the fact that it deprives the victim of goods that she otherwise would have had. Each claims only that death is bad for the victim in the circumstances he specifies. So, it is strictly speaking open to the defender of Answer to accept either Feldman's or Nagel's view, for it is open to the defender of Answer to say that death can be bad for the victim, even very bad, without counting as a harm to the victim. However, John Broome (2013: 221) does explicitly claim that death can be a harm to the victim, and he appears to hold that we can determine whether a given death is a harm to its victim by the same means by which Feldman thinks we can determine whether it is bad for its victim: "To determine whether [death] harms you, we compare the goodness of the shorter life you have, taken as a whole, with the goodness of the longer life you would have had [if you had not died when you did], taken as a whole." In addition, like Nagel and Feldman, Broome holds that, when death is an evil for its victim, it is an evil for its victim not at any particular time (2013: 220). It is in this respect an evil quite unlike a broken arm or a headache. Here, then, is the counterfactual account of the harm of death that Broome seems to endorse and that has much in common with the views of the badness of death defended by Feldman and Nagel: Broome's Thesis. If A's death occurs at t and A's life would have been better overall had A's death not occurred at t, then A is harmed in dying at t but is harmed at no particular time in dying at t. 38 There might be subtle differences between Feldman's eternalness thesis and Nagel's timelessness thesis, but they are irrelevant to my present purposes. JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 24 Now, although Broome's Thesis is a counterfactual account of the harm of death, it remains to be seen whether Broome's Thesis is consistent with the counterfactual view of harm in general. If it is not, then we will not yet have good reason to believe that the counterfactual view fares better than Answer at accommodating the thesis that one who dies is thereby harmed. Recall the formulation of the counterfactual view from Section 3, which was labeled "CV2" at the time: CV2. A is harmed =df A is the subject of an event E such that A would have been better off in some respect had E not occurred. CV2 is ambiguous among at least three readings: CV2.1. A is harmed =df A is the subject of an event E such that A would have been better off in some respect at the time of E's occurrence had E not occurred. CV2.2. A is harmed =df A is the subject of an event E such that A would have been better off in some respect at some time had E not occurred. CV2.3. A is harmed =df A is the subject of an event E such that A would have been better off in some respect either at some time or at no particular time had E not occurred. Broome's Thesis is inconsistent with CV2.1. To bring this out, suppose Sue dies at t and would have lived a better life had she not died at t. Broome's Thesis entails that Sue is harmed in dying at t. However, CV2.1 entails that Sue is not harmed, for Sue would not have been better off in any respect at t had she not died at t than she actually is at t; Sue actually fares no way at all at t. Broome's Thesis also seems to be inconsistent with CV2.2. For, so long as we stipulate that there is no time t* such that Sue would have been better off in some respect at t* had Sue not died at t than Sue actually is at t*, CV2.2 also entails that Sue is not harmed. (In a bit, I shall consider two broadly counterfactual theories of the harm of death according to which this stipulation is illegitimate.) However, it might be thought that Broome's Thesis is consistent with CV2.3, given CV2.3's "at no particular time" language. But I do not think that even this is right. Return to the case of Sue. Is there any sense at all, timeless or otherwise, in which Sue would have been better off in some respect had Sue not died at t than she actually is? To be sure, if we identify the goodness of Sue's life with Sue's well-being, then we will get this result, for the goodness of Sue's life would have been greater than it actually is had Sue not died at t. But this would be a very controversial assumption. Well-being seems to be a property of persons, not of persons' lives. Alternatively, the proponent of Broome's Thesis might deny that the goodness of Sue's life and Sue's well-being are identical but hold that Sue nevertheless would have been better off in life for some (extended or nonextended) amount of time had it not been the case that Sue dies (or will die) JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 25 at t. This claim amounts to rejecting the above-mentioned stipulation relevant to the assessment of CV2.2, and renders Broome's Thesis consistent with CV2.2. But once this move is made, there seems to be little motivation to hold on to the thesis that Sue is harmed at no particular time, and thus there seems to be little motivation to preserve the letter of Broome's Thesis. It would be better, it seems, merely to say that Sue is harmed in life (and not just that she would have been better off in life had it not been the case that she dies at t), and that she is harmed in life partly in virtue of the obtaining of facts that are future relative to her, including the fact that her death will occur when it will. This view, according to which the harm of death is suffered in life, is called "priorism."39 It is an ingenious proposal, but I think it faces serious difficulties. For one thing, facts that are future relative to Sue include ones that will obtain during Sue's life (at least when Sue is not at the last moment of her existence), not just ones that will obtain after Sue's life. So, suppose Sue will inadvertently cut her finger slicing tomatoes tomorrow. Priorism seems to have the odd implication that Sue is worse off right now for the fact that she will cut her finger tomorrow than she would be were that future fact not to obtain. But it seems far more natural to say that, ceteris paribus, Sue's wellbeing is precisely what it would be were that future fact not to obtain, and that Sue's well-being will decrease when she cuts her finger.40 To be sure, the priorist could restrict the scope of her thesis, and say that the only future facts that contribute to a person's well-being are facts that will obtain at or after the moment of her death, but this restriction seems to me unacceptably ad hoc. Furthermore, priorists often say that the manner in which future facts (including facts about death) adversely influence present well-being is that they make it the case that certain of one's desires are not fulfilled. Example: Suppose Sue wants right now to write a novel when she is 40, but it is the case that she will die at 35. The idea is that Sue's desire is frustrated now by that future fact, and that her well-being is therefore influenced for the worse. However, this view would seem to imply that a person with no desires for the obtaining of future states of affairs could not be harmed in any way by death. For someone who really "lived in the moment" (e.g., a severe drug addict, an infant), death could not be a harm. I find this implausible. Or at 39 See Pitcher (1984); Feinberg (1984: 89-90); Bigelow, Campbell, and Pargetter (1990); Li (1999); Luper (2007; 2005: 339; 2004: 70). See also Parfit (1986: 495): "Suppose that my children's lives all go badly only after I am dead. My life turns out to have been a failure [italics mine], in one of the ways I cared about most." In addition, as I interpret him, the Philosopher at least gestures toward priorism: see Nicomachean Ethics, bk. 1, ch. 10; see Scott (2000) for discussion. 40 Bradley (2009: 87) raises this worry. JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 26 any rate, I find the claim that normal adult humans can be harmed by death but severe drug addicts and infants cannot be harmed by death implausible.41 All that being said, it seems that the defender of Answer could accept desire-satisfaction priorism if she wanted, for there seems to be no reason why the defender of Answer could not hold that the formation of a desire for the obtaining of a future state of affairs that in fact will not obtain is, or at least entails, a historical worsening and therefore is, or at least entails, a harm. But if this is so, then, although the defender of Answer cannot say that one who dies can, in suffering death, be the subject of a (non-sui generis) harm, she can say (with all priorists) that one who dies can be partly for that reason the subject of a harm. To return to the previous example: Suppose Sue forms a desire at 25 to write a great novel at 40, and suppose it is a fact that she will die at 35. If (as seems to be the case) the defender of Answer can hold that the formation of a desire for the obtaining of a future state of affairs that in fact will not obtain is or entails a historical worsening, then the defender of Answer can say that Sue is harmed partly in virtue of the fact that she will die at 35 (for it is partly in virtue of the fact that she will die at 35 that her desireformation is or entails a historical worsening), despite the fact that the defender of Answer cannot say that Sue is harmed when she actually dies (for when she actually dies she suffers neither a historical worsening nor a harmful prevention of benefit). Another broadly counterfactual theory of the badness of death is subsequentism, most famously endorsed by Ben Bradley. Simplifying slightly, Bradley holds that A's death is bad for A at every time t after A's death such that A's level of well-being would have been greater than zero at t had A not died when A did.42 Subsequentism about the harm of death might therefore be the thesis that A's death is a harm to A at every time t after A's death such that A's death is, according to subsequentism about the badness of death, bad for A at t. Like priorism, this thesis is consistent with CV2.2, for it holds that death is bad for the victim when it is bad for her at particular times. 41 According to Steven Luper's desire-based version of priorism, every harm that we "incur" that owes its existence to death and posthumous events is a harm that we incur in life, but there are harms that we do not incur for which death and posthumous events are responsible, such as the thwarting of desires that we would have formed and satisfied had we gone on living past when we did, and that are nevertheless harms for us (2009: 136). This version of priorism goes some way toward avoiding the present difficulty, for it could be that an infant or severe drug addict who will die at t would go on to form and satisfy desires were she to die after t. (Thanks to an anonymous referee for this point.) But of course we could just stipulate about some imagined infant or drug addict that she would not go on to form and satisfy desires were she to die after t. I still find it implausible that such an infant or drug addict cannot be harmed by death while normal adult humans can. 42 Bradley (2009; 2004). See Feit (2002) for a similar view. Although (unlike Feldman and Nagel) Bradley speaks frequently of the "harm" of death in his (2004), he (like Feldman and Nagel) explicitly formulates his view in both his (2004) and his (2009) as a view of the badness of death for the victim. And in his (2012), Bradley defends eliminativism about harm (see n. 37, above). It might be, then, that Bradley does not mean, or at any rate no longer means, to propose an account of the harm of death at all. JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 27 One obvious, though not terribly interesting, difficulty both for Bradley's own subsequentism and for subsequentism about harm is that it just seems odd to say that things can be bad for persons at times at which those persons are no more. Bradley (2004: 6-7) suggests that the oddness of this claim can be removed by denying presentism and affirming eternalism.43 Yet even if annihilated beings exist at times after their annihilations, as eternalism implies, it surely does not follow that anything can be bad for them at times after their annihilations. Furthermore, why think that A's death is bad for A at times after A's death at which A's well-being would have been greater than zero had she not died when she did? That is, where does the "zero" come from? The answer is that, on Bradley's view, a person who is dead at t has a level of well-being of zero at t (2009: 90, 98-111). Bradley's positive argument for this controversial claim does not strike me as persuasive. Bradley suggests that an agent – call her "Sue" again – ought to be indifferent, ceteris paribus, between the following two situations: F1. Sue dies at some future time t. F2. Sue dies at t + 10 years but has a level of well-being of zero in [t, t+10 years) (because, say, Sue is in a coma in that interval). Bradley suggests that the most plausible explanation of the fact that Sue ought to be indifferent between F1 and F2 is that, starting at t, her level of well-being in F1 and her level of well-being in F2 are identical. But if this is so, then an agent who is dead at a given time has a level of well-being of zero at that time (2009: 108). But even if Bradley is correct that Sue ought, ceteris paribus, to be indifferent between F1 and F2, it seems perfectly natural to say that this is because, ceteris paribus, Sue's life goes no better in F1 or in F2, either overall or from the time at which she contemplates F1 and F2 until the time at which she dies in F1 or F2. And this explanation is consistent with the thesis that the dead have no level of well-being. Hence Bradley's argument seems unsuccessful. Besides, if Bradley is correct that the dead have a level of wellbeing of zero, then it once again seems to me open to the defender of Answer to say that death is a historical worsening – a crash to axiological absolute zero, to reuse an expression – and thus to accommodate the claim that one who dies is thereby harmed. Now, fans of Broome's Thesis (or some view in its neighborhood) could reject each of the three formulations of the counterfactual view that I have canvassed thus far and instead endorse this thesis: CV3. A is harmed =df A is the subject of an event E such that A's life would have been better overall had E not occurred. 43 Though Bradley denies this in his (2009: 82, n. 18). Thanks to an anonymous reviewer for pointing this out to me. JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 28 CV3 is consistent with Broome's Thesis, and it certainly deserves to be called a version of the counterfactual view of harm. However, CV3 also admits of a number of apparent counterexamples (over and above cases of preemptive harm). For example, suppose I get mononucleosis, and spend several painful months in bed. But my time away from normal life teaches me a number of valuable moral lessons, and my life consequently ends up being better than it would have been had I not gotten mono. Call this "Mono Case." CV3 entails that I am not harmed in getting mono in Mono Case, and this is surely false.44 CV3 also entails that all preventions of benefit, including ones that I have hitherto classified as non-harmful (e.g., the ones discussed in Section 4), that result in a person's living a life worse overall than the one that she otherwise would have lived are harms. CV3 thus seems to yield false negatives and false positives, and does not seem to be a promising account of harm in general. Of course, those for whom accommodating the thesis that death can be a harm is the primary motivation for embracing CV3 will probably not be persuaded by any non-mortal counterexamples to CV3 to abandon their position unless those counterexamples are supplemented by an account of harm that both avoids the counterexamples in question and accommodates the thesis that death can be a harm. They will say that no theory that fails to accommodate the thesis that death can be a harm is worthy of our serious consideration. Let me close this paper by saying very briefly why I do not share this view. I think the reason why so many accounts of harm have a difficult time accommodating the thesis that death can be a harm is that it is very difficult to defend the thesis that we are the subjects of our own deaths. (Up to now, I have implicitly granted to the defender of the counterfactual view that we are the subjects of our own deaths, for I have implicitly granted that one who dies is thereby the subject of an event with such-and-such feature.) I suspect that Epicurus was sensitive to this difficulty when he posed his famous argument that death is "of no concern to us." Epicurus said that when we exist, death has not yet "come to us," but when death comes to us, we no longer exist.45 Assuming that Epicurus was using "comes to us" as a synonym for 44 An anonymous reviewer has suggested that the defender of CV3 could dismiss this counterexample by appealing to the distinction between pro tanto harm and overall harm (see n. 1, above), saying that I am pro tanto harmed but not overall harmed in Mono Case, and formulating CV3 as an account of overall harm rather than as an account of harm simpliciter. But of course "pro tanto harm" and "overall harm" are philosophical terms of art, unlike "harm." So, handling Mono Case in this way would be no more philosophically interesting than defending the justified-true-belief account of knowledge in the face of a Gettier case by distinguishing between JTB knowledge and overall knowledge, saying that a subject has JTB knowledge but lacks overall knowledge in a Gettier case, and formulating the justified-truebelief account of knowledge as an account of JTB knowledge rather than as an account of knowledge simpliciter. 45 Epicurus (1964). See also Levenbook (1984: 410), who says that death occurs "at the first moment at which [the victim] no longer exists." JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 29 "occurs," his insight seems to have been that we do not undergo our own deaths. Our deaths are nothing like changes that happen to us, like Hanser's "losses of vital powers."46 To say that they are would be to reify the dead in an unacceptable manner. But it is also a very natural thought that if someone cannot be a subject of x, then x cannot be a harm for her. At any rate, if death is a counterexample to this principle, then it does indeed seem to be the special case that Shiffrin, Thomson, and Hanser say it might be – the strangest harm there is. I am inclined, therefore, to think that the inability of a theory of harm to count death as a harm, or to say that one who dies is thereby harmed, is not a serious mark against it. We should be open both to the possibility that death is not a harm at all (but rather some other kind of evil) and to the possibility that death is a sui generis harm, one that even a plausible theory of harm in general will not be able to capture.47 Epicurus' insight about death also suggests an answer to the question of whether or not we can harm persons in creating them, and so to the nonidentity problem. Just as we do not undergo our own deaths, we do not undergo our own creations. To say that coming into existence is the sort of thing of which one can be a subject (like coming into Boston) is to reify the preexistent in an unacceptable manner. So, if we again assume that x cannot be a harm for A unless A can be a subject of x, then we are left with the conclusion that one cannot be harmed in being created – unless creation, too, is a special case, and thus the second-strangest harm there is (or tied for first).48 I suggest, then, that those who find something objectionable in the acts of procreators 46 In saying this I depart from Kamm (1993: 39-40), who holds that "Death involves bad things happening to a person, such as his destruction and deprivation of future goods." I would say only that dying involves, or can involve, bad things happening to a person. These bad things (e.g., corruption of vital processes, increase of fear of death) all count as harms by the lights of Answer. 47 Cards on the table: I think that we should, like Epicurus, be open to the possibility that death is not bad at all for the one who dies, though I cannot explore this radical possibility here. Epicurus has not been entirely without his recent fans; see Rosenbaum (1986) and Suits (2001). 48 Shiffrin (2012; 1999) and Harman (2009) argue that non-comparativism's ability to say that one can be harmed at the first moment of one's existence (since one can be in a bad state at the first moment of one's existence) is a mark in its favor. Unsurprisingly, I think it is a mark in its disfavor. Thomson (2011: 445-48) thinks that her revised counterfactual view of harming entails that we can harm persons in creating them, as well. But I do not see how. In creating someone, and so in causing her to be in the state that she occupies at the first moment of her existence, I do not thereby prevent her from occupying any state. But Thomson's account requires that I cause someone to be in a state and thereby prevent her from occupying some other, in-some-way-better state in order to count as harming her. In defense of her view (and in opposition to the historical view), Thomson imagines a case in which a gene specialist tampers with an egg and fertilizes it with the result that the created person has a genetic abnormality. As I read her, Thomson takes the act of tampering with the egg to be the act by which the specialist prevents the person from lacking the abnormality. But the person does not exist at the time when the specialist damages the egg. So, even if this act counts as an act of prevention, it is not also an act of causing someone to be in a state. JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 30 in non-identity scenarios ought to opt for an impersonal disvalue account that does not characterize immoral procreators as having harmed their children. Fully aware both of the incompleteness of my responses to the theories that I have entertained in this section and of the mortal virtues that certain counterfactual accounts of harm enjoy, I nevertheless think that we should take Answer seriously. But in taking Answer seriously, we are immediately confronted with an additional question. Presumably, even if Answer is true, being a way to be harmed is not a brute property that all and only historical worsenings and harmful preventions of benefit just happen to have. What is it about historical worsenings and harmful preventions of benefit that makes them the only two species of the genus (assuming they are the only two)? In figuring this out, we would be able to replace Answer, a statement of necessary and sufficient conditions on being harmed, with an analysis of being harmed. I suggest, then, that future inquiry into the nature of harm would benefit from an attempt to find some property that historical worsenings and harmful preventions of benefit alone share that would make sense of the claim that they are the only ways of being harmed.49 Michael Rabenberg Department of Philosophy Harvard University mrabenberg@fas.harvard.edu 49 I am primarily grateful to my advisor, Frances Kamm, for her extremely generous feedback on nearly all of this essay's many drafts. Whatever harms it may have sustained in the process of its completion were inflicted on it by me alone; the lion's share of the benefits it received were bestowed on it by her. Many thanks also to Thomas Scanlon for enormously helpful comments and conversation, and to three anonymous referees for excellent criticisms and advice. Finally, I am indebted to Javier Caride, Lauren Kopajtic, Paul Marcucilli, Peter NeCastro, Michael Shea, Zeynep Soysal, Will Tadros, Kate Vredenburgh and my fellow participants in the fall 2013 Harvard Moral and Political Philosophy Workshop for countless fruitful discussions of the topics with which this paper is concerned. JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 8, NO. 3 HARM Michael Rabenberg 31 References Bigelow, J., Campbell, J. and Pargetter, R. (1990) "Death and Well-Being," Pacific Philosophical Quarterly 71: 119-40. Bradley, B. (2012) "Doing Away with Harm," Philosophy and Phenomenological Research 2: 390412. ____ (2009) Well-Being & Death, Oxford: Clarendon Press. ____ (2004) "When Is Death Bad for the One Who Dies?" Noûs 38: 1-28. Broome, J. (2013) "The Badness of Death and the Goodness of Life," in B. Bradley, F. Feldman and J. Johansson, eds., The Oxford Handbook of Philosophy of Death, Oxford: University Press, pp. 218-33. 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