Abstract
Recently, Gerhard Øverland and Alec Walen have developed novel and interesting theories of nonconsequentialism. Unlike other nonconsequentialist theories such as the Doctrine of Double Effect (DDE), each of their theories denies that an agent’s mental states are (fundamentally) relevant for determining how stringent their moral reasons are against harming others. Instead, Øverland and Walen seek to distinguish morally between instances of harming in terms of the circumstances of the people who will be harmed, rather than in features of the agent doing the harming. In this paper, we argue that these theories yield counterintuitive verdicts across a broad range of cases that other nonconsequentialist theories (including the DDE) handle with relative ease. We also argue that Walen’s recent attempt to reformulate this type of theory so that it does not have such implications is unsuccessful.
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Notes
We’ll refer to this class of people simply as ‘innocents’ in what follows.
Not all accounts of the DDE formulate it in quite these terms. Quinn, for example, whose view we shall consider in various places below, draws the distinction in terms of what he calls harmful direct agency and harmful indirect agency (Warren Quinn, ‘Actions, Intentions, and Consequences: The Doctrine of Double Effect’, Philosophy and Public Affairs 18(4) (1989): pp. 334–351). For useful recent discussions of different accounts of the DDE, see Victor Tadros, ‘Wrongful Intentions without Closeness’, Philosophy and Public Affairs 43(1) (2015): pp. 52–74; and Dana Nelkin and Samuel Rickless, ‘Three Cheers for Double Effect’, Philosophy and Phenomenological Research 89(1) (2014): pp. 125–158.
See, e.g., Frances Myra Kamm, Intricate Ethics: Rights, Responsibilities, and Permissible Harm (New York: Oxford University Press, 2007), p. 93; T. M. Scanlon, Moral Dimensions: Permissibility, Meaning, Blame (Cambridge, MA: Belknap Press, 2008); Judith Jarvis Thomson, ‘Physician-Assisted Suicide: Two Moral Arguments’, Ethics 109 (1999): pp. 497–518.
Gerhard Øverland, ‘Moral Obstacles: An Alternative to the Doctrine of Double Effect’, Ethics 124(3) (2014): pp. 481–506.
Alec Walen, 'Transcending the Means Principle', Law and Philosophy 33 (2014): pp. 427–464. For other critiques of the relevance of intentions, see Jonathan Quong, The Morality of Defensive Force (New York: Oxford University Press, 2020); Larry Alexander and Kimberly Ferzan, Crime and Culpability: A Theory of Criminal Law (Cambridge: Cambridge University Press, 2009).
Personal correspondence. Walen acknowledges and responds to our initial objections in Alec Walen, 'The Restricting Claims Principle Revisited: Grounding the Means Principle on the Agent–Patient Divide’, Law and Philosophy 35(2) (2016): pp. 211–247.
Ibid.
Kamm, Intricate Ethics, Chapter 5.
For a helpful discussion of Kamm’s view, see Fiona Woollard, ‘Intricate Ethics and Inviolability: Frances Kamm's Nonconsequentialism’, Ratio 21(2) (2008): pp. 231–238.
Øverland, ‘Moral Obstacles’, p. 483.
Ibid., p. 486. He notes that there are other ways that agents can give rise to cost besides being a moral obstacle: for example, by doing harm or enabling it to occur, or by being a physical obstructor.
Ibid., p. 483.
Ibid., pp. 483–4.
We assume that the justifications that the agents have in trolley cases are of a lesser-evil sort – the question that theories like the TMO are trying to answer is: what can make lesser-evil justifications for killing some to save a larger number compelling in some cases but not in others? For discussion of lesser evil-justifications more generally, see Helen Frowe, ‘Lesser-Evil Justifications for Harming: Why We’re Required to Turn the Trolley’, The Philosophical Quarterly 68(272) (2018): pp. 460–480.
See, e.g., Kamm, Intricate Ethics; Scanlon, Moral Dimensions.
We are assuming that it is not the case that Mary can only kill Tom by aiming at Bob, but that both will be killed in any flame blast that is sufficient to kill Tom.
One might think that what explains the impermissibility of acting in Flamethrower 2 is that Bob is being used as a means, broadly understood, since he has a claim right to the space he occupies. However, this feature of Bob’s situation does not distinguish him from Andy’s in Flamethrower, since Andy too presumably has such a right to the space he occupies. For a discussion of the relevance to defensive rights of rights to occupy space, see Jonathan Quong, ‘Killing in Self-Defense’, Ethics 119 (2009): pp. 507–537.
Philippa Foot, ‘Killing and Letting Die’, in Moral Dilemmas: And Other Topics in Moral Philosophy (New York: Oxford University Press, 2002), Chapter 5.
S. Matthew Liao, ‘The Closeness Problem and the Doctrine of Double Effect: A Way Forward’, Criminal Law and Philosophy 10(4) (2016): pp. 849–863.
Quinn, ‘Actions, Intentions, and Consequences: The Doctrine of Double Effect’, pp. 298–301.
As Quinn writes, ‘The surprise in this is that we must bring the distinction between what is intended and merely foreseen into the DDA’ (ibid., p. 300). In this sense, the DDA contributes another agent-centered feature to Quinn’s view. We are grateful to a referee for helping us see this.
Ibid.
Ibid.
Kamm writes regarding Car Rescue: ‘going over the spot, which is a spot he already occupies, is something we must do, and so we must involve him given that he is there, which directly causes him harm’ (Kamm, Intricate Ethics, p. 147).
It might be thought that in Flamethrower 2, Bob is a physical obstructor rather than a moral obstacle. But this is incorrect. It is not true that Bob ‘must be removed for the person under threat to make effective use of her means of survival’ (Øverland, ‘Moral Obstacles’, p. 495). Nor can Bob be described as a ‘physical hindrance’ to her defensive action (ibid., p. 486). Mary can perfectly well use her flamethrower effectively while Bob is there; Bob will simply die as a result of her having done so. In any case, Øverland expresses skepticism that there are morally significant differences between obstructors and moral obstacles (ibid., p. 496). For more on obstructors, see Helen Frowe, ‘Threats, Bystanders and Obstructors’, Proceedings of the Aristotelian Society 108(3) (2008): pp. 365–372.
Judith Jarvis Thomson, ‘The Trolley Problem’, The Yale Law Journal 94 (1985): pp. 1395–1415; Kamm, Intricate Ethics, p. 14.
S. Matthew Liao, ‘Intentions and Moral Permissibility: The Case of Acting Permissibly with Bad Intentions’, Law and Philosophy 31(6) (2012): pp. 703–724.
See also S. Matthew Liao, ‘The Closeness Problem and the Doctrine of Double Effect: A Way Forward’, Criminal Law and Philosophy 10(4) (2016): pp. 849–863.
It is worth mentioning that other victim-centered theories, including Kamm’s causal structure theory, also cannot reach this verdict in Enemy Trolley.
This is evident when we consider Øverland’s more detailed presentation of the TMO: ‘When an innocent person A is under threat of harm and has a defensive action available to her (independent of the presence of other people), another innocent person B, who poses no threat or physical hindrance, is a moral obstacle if his presence has the consequence that either (i) B will be harmed (if A performs her available defensive action) or (ii) A will be harmed (if A completely restrains her defensive action), or (iii) both A and B will be harmed in some measure (if A partially restrains her defensive action)’ (Øverland, ‘Moral Obstacles’, p. 486).
It might be thought that on Quinn’s interpretation of the DDE, Abigail harms Joey opportunistically (that is, intentionally) in Standard Trolley 2, because she exploits his presence to do something she would not be able to do if he were not there, thereby foreseeably causing him harm. However, even if this is correct, it is worth pointing out that Abigail is not exploiting Joey’s presence in order to save the five. Given this, a case can be made, though Quinnians might disagree, that Abigail is harming Joey as a side effect when she redirects the trolley, which makes Abigail’s action permissible. Similar things can be said about Standard Trolley 3. See also Walen, ‘The Restricting Claims Principle Revisited’, p. 223. We thank an anonymous reviewer for this point.
Øverland, ‘Moral Obstacles’, p. 489.
Ibid., pp. 489–90.
For such a discussion, see S. Matthew Liao, ‘A Defense of Intuitions’, Philosophical Studies 140(2) (2008): pp. 247–262.
Walen, ‘The Restricting Claims Principle Revisited’, p. 246.
Ibid.
For an argument that it does not, see S. Matthew Liao, ‘Morality and Neuroscience: Past and Future’, in S. M. Liao (ed.), Moral Brains: The Neuroscience of Morality (New York: Oxford University Press, 2016), pp. 1–42.
Walen, ‘The Restricting Claims Principle Revisited’, p. 247.
Ibid., p. 218.
Ibid.
Ibid.
Ibid., pp. 222–8.
Ibid., p. 228.
Ibid.
Ibid., p. 229.
Walen, ‘Transcending the Means Principle’, p. 428.
Walen, ‘The Restricting Claims Principle Revisited’, p. 229.
Walen’s Massive Man case in his paper is equivalent to the Footbridge case.
Walen, ‘The Restricting Claims Principle Revisited’, p. 230.
Ibid., p. 231.
Ibid.
Ibid., p. 232.
Ibid., p. 221.
Ibid. See also Øverland, ‘Moral Obstacles’, p. 503.
Acknowledgements
Each author contributed equally to this project. Many thanks to Kim Ferzan, Fiona Woollard, Jeff McMahan, Daniel Khokhar, Sarah Gokhale and two anonymous referees of Law & Philosophy for helpful comments on earlier versions of this article, and to Gerhard Øverland and Alec Walen for illuminating discussions of their ideas. The financial support of the Australian Research Council is also gratefully acknowledged.
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Liao, S.M., Barry, C. A critique of some recent victim-centered theories of nonconsequentialism. Law and Philos 39, 503–526 (2020). https://doi.org/10.1007/s10982-020-09376-5
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DOI: https://doi.org/10.1007/s10982-020-09376-5