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The Closeness Problem and the Doctrine of Double Effect: A Way Forward

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Abstract

A major challenge to the Doctrine of Double Effect (DDE) is the concern that an agent’s intention can be identified in such a fine-grained way as to eliminate an intention to harm from a putative example of an intended harm, and yet, the resulting case appears to be a case of impermissibility. This is the so-called “closeness problem.” Many people believe that one can address the closeness problem by adopting Warren Quinn’s version of the DDE, call it DDE*, which distinguishes between harmful direct agency and harmful indirect agency. In this paper, I first argue that Quinn’s DDE* is just as vulnerable to the closeness problem as the DDE is. Second, some might think that what we should therefore do is give up on intentions altogether and move towards some kind of non-state-of-mind, victim-based deontology. I shall argue against this move and explain why intentions are indispensable to an adequate nonconsequentialist theory. Finally, I shall propose a new way of answering the closeness problem.

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Notes

  1. Many have cited a passage from Aquinas as the origin of the DDE (Thomas Aquinas, Summa Theologiae, II, ii, q. 64, a. 7).

  2. See Frances Myra Kamm, Intricate Ethics: Rights, Responsibilities, and Permissible Harm (New York: Oxford University Press, 2007), p. 93, for this formulation.

  3. Kamm, Intricate Ethics, p. 138.

  4. Classic papers on this topic include Philippa Foot, ‘The Problem of Abortion and the Doctrine of Double Effect', Oxford Review, 5 (1967), 5–15.; H.L.A. Hart, ‘Intention and Punishment', Punishment and Responsibility (Oxford: Clarendon Press, 1968).; Warren Quinn, 'Actions, Intentions, and Consequences: The Doctrine of Double Effect', Philosophy and Public Affairs, 18/4 (1989), 334–351.; Jonathan Bennett, The Act Itself (Oxford: Clarendon Press, 1995).

  5. Bennett, The Act Itself, op. cit.

  6. See, e.g., William J. Fitzpatrick, ‘The Intend/Foresee Distinction and the Problem of ‘‘Closeness’’', Philosophical Studies, 128 (2006), 585–617; Alison Hills, 'Intentions, Foreseen Consequences and the Doctrine of Double Effect', Philosophical Studies, 133 (2007), 257–283; Neil Francis Delaney, 'Two Cheers for “Closeness”: Terror, Targeting and Double Effect', Philosophical Studies, 137 (3) (2008).

  7. See, e.g., Dana Kay Nelkin and Samuel C. Rickless, ‘So Close, Yet So Far: Why Solutions to the Closeness Problem for the Doctrine of Double Effect Fall Short', Nous, (2013), 1–34.

  8. See, e.g., Delaney, ‘Two Cheers for “Closeness”,’ op. cit.; FitzPatrick, ‘The Intend/Foresee Distinction,’ op. cit.; Ralph Wedgwood, 'Defending Double Effect', Ratio, 24 (2011), 384–401.

  9. Nelkin and Rickless, ‘So Close, Yet So Far,’ offer a comprehensive discussion of this strategy.

  10. Quinn, ‘Actions, Intentions, and Consequences,’ op. cit.

  11. See, e.g., Nelkin and Rickless, ‘So Close, Yet So Far,’ op. cit.

  12. Kamm, Intricate Ethics, Chapter 4.

  13. Kamm, Intricate Ethics, p. 103. Note that the Party Case is not a perfect analog to the various cases discussed below. A more analogous case is Kamm’s Party Case II: we would not have a party unless this produced feelings of indebtedness leading to cleaning-up efforts by some of our guests because the party itself will not continue on long enough to be a success unless a mess is not allowed to accumulate during it (Kamm, Intricate Ethics, p. 96). I take it Kamm thinks that Party Case is a more straightforward and intuitive way of introducing the because/in-order-to distinction than Party Case II.

  14. See also S. Matthew Liao, ‘The Loop Case and Kamm’s Doctrine of Triple Effect', Philosophical Studies, 146 (2009), 223–231.

  15. Liao, The Loop Case and Kamm’s Doctrine of Triple Effect, op. cit.

  16. Judith Jarvis Thomson, ‘The Trolley Problem', The Yale Law Journal, 94 (1985), 1395–1415. It might be worthwhile stipulating that if the five were not present, the trolley would not go around and hit the one, but would carry on harmlessly down the track.

  17. Kamm, Intricate Ethics, op. cit.

  18. Liao, The Loop Case and Kamm’s Doctrine of Triple Effect, op. cit.

  19. I question this in Liao, The Loop Case and Kamm’s Doctrine of Triple Effect, op. cit.

  20. There are other reasons to be skeptical of our intuitions about Loop. See, e.g., S. Matthew Liao, et al., ‘Putting the Trolley in Order: Experimental Philosophy and the Loop Case', Philosophical Psychology, 25 (5) (2011), 661–671. See also Michael Otsuka, 'Double Effect, Triple Effect and the Trolley Problem: Squaring the Circle in Looping Cases', Utilitas, 20 (1) (2008), 92–110.

  21. For the distinction between fundamentally determining the permissibility of an act and derivatively doing so, see, e.g., T.M. Scanlon, Moral Dimensions: Permissibility, Meaning, Blame (Cambridge, MA: Belknap Press, 2008).

  22. Kamm, Intricate Ethics, Chapter 5.

  23. Alec Walen, ‘Transcending the Means Principle', Law and Philosophy, 33 (2014), 427–464. Independently, Gerhard Øverland has put forward a very similar theory called the theory of moral obstacles, according to which moral obstacles are “people who come to be in circumstances—no matter how innocently and non-responsibly—that will result in either these people being harmed by the defending party’s defensive actions, or the defending party being harmed by the initial threat if she abstains from using her defensive means in order not to harm them (means she otherwise could have used without harming anyone), or everyone being harmed in some measure when the defending party partly restrains her defensive actions” (Gerhard Øverland, 'Moral Obstacles: An Alternative to the Doctrine of Double Effect', Ethics, 124 (3) (2014), 481–506, p. 483). For a critique of Øverland’s theory, which we believe applies mutatis mutandis to Walen’s theory, see S. Matthew Liao and Christian Barry, ‘Is the Theory of Moral Obstacles a Plausible Alternative to the Doctrine of Double Effect?', (manuscript).

  24. Of course, advocates of the DDE/DDE* may say that intentions can play other roles even in such cases. To see this, consider:

    Enemy One to Five: A runaway trolley is headed toward one innocent person who is on the track and who will be killed unless something is done. Frank can push a button, which will redirect the trolley onto a second track, saving the one. However, on this second track are five innocent bystanders, who will be killed if the trolley is turned onto this track. Frank intends to kill the five because they are his enemies.

    In this case, Frank intends to kill the five because the five are his enemies. Given this, even if both One to Five and Enemy One to Five are cases of impermissibility, Frank’s action would be worse than Emile’s in light of Frank’s intention. If so, this suggests that sometimes even when intentions do not determine the permissibility of an act, they can still play other roles such as making an act better or worse.

  25. S. Matthew Liao, ‘Intentions and Moral Permissibility: The Case of Acting Permissibly with Bad Intentions', Law and Philosophy, 31 (6) (2012), 703–724.

  26. S. Matthew Liao, ‘Kamm’s Causal Structure Theory of Nonconsequentialism and the Modal Condition: A Critique', (manuscript). Liao and Barry, ‘Is the Theory of Moral Obstacles a Plausible Alternative to the Doctrine of Double Effect?', op. cit.

  27. Liao, ‘Intentions and Moral Permissibility,’ op. cit.

  28. Liao, ‘Intentions and Moral Permissibility,’ op. cit.

  29. I would like to thank David Wasserman, Ralf Bader, Daniel Khokhar, Collin O’Neil, Alec Walen, Fiona Woollard, Christian Barry, Dana Nelkin, Jeff McMahan, Jonathan Quong, Victor Tadros, Chelsea Rosenthal, Michael Moore, Larry Alexander, Doug Husak, and participants at the Workshop on the Means Principle, the Doctrine of Double Effect and Related Deontological Principles, and their Application to Criminal Law at Rutgers University, for very helpful comments on earlier version of this paper.

References

  • Aquinas, Thomas (2006), Summa Theologiae (Cambridge: Cambridge University Press).

  • Bennett, Jonathan (1995), The Act Itself (Oxford: Clarendon Press).

  • Delaney, Neil Francis (2008), ‘Two Cheers for “Closeness”: Terror, Targeting and Double Effect’, Philosophical Studies, 137 (3).

  • FitzPatrick, William J. (2006), ‘The Intend/Foresee Distinction and the Problem of ‘‘Closeness’’’, Philosophical Studies, 128, 585–617.

  • Foot, Philippa (1967), ‘The Problem of Abortion and the Doctrine of Double Effect’, Oxford Review, 5, 5–15.

  • Hart, H.L.A. (1968), ‘Intention and Punishment’, Punishment and Responsibility (Oxford: Clarendon Press).

  • Hills, Alison (2007), ‘Intentions, Foreseen Consequences and the Doctrine of Double Effect’, Philosophical Studies, 133, 257–283.

  • Kamm, Frances Myra (2007), Intricate Ethics: Rights, Responsibilities, and Permissible Harm (New York: Oxford University Press).

  • Liao, S. Matthew (manuscript), ‘Kamm’s Causal Structure Theory of Nonconsequentialism and the Modal Condition: A Critique’.

  • Liao, S. Matthew and Barry, Christian (manuscript), ‘Is the Theory of Moral Obstacles a Plausible Alternative to the Doctrine of Double Effect?’.

  • Liao, S. Matthew (2012), ‘Intentions and Moral Permissibility: The Case of Acting Permissibly with Bad Intentions’, Law and Philosophy, 31 (6), 703–724.

  • Liao, S. Matthew, Wiegmann, Alex, Alexander, Joshua, and Vong, Gerard (2011), ‘Putting the Trolley in Order: Experimental Philosophy and the Loop Case’, Philosophical Psychology, 25 (5), 661–671.

  • Liao, S. Matthew (2009), ‘The Loop Case and Kamm’s Doctrine of Triple Effect’, Philosophical Studies, 146, 223–231.

  • Nelkin, Dana Kay and Rickless, Samuel C. (2013), ‘So Close, Yet So Far: Why Solutions to the Closeness Problem for the Doctrine of Double Effect Fall Short’, Nous, 1–34.

  • Otsuka, Michael (2008), ‘Double Effect, Triple Effect and the Trolley Problem: Squaring the Circle in Looping Cases’, Utilitas, 20 (1), 92–110.

  • Øverland, Gerhard (2014), ‘Moral Obstacles: An Alternative to the Doctrine of Double Effect’, Ethics, 124 (3), 481–506.

  • Quinn, Warren (1989), ‘Actions, Intentions, and Consequences: The Doctrine of Double Effect’, Philosophy and Public Affairs, 18 (4), 334–351.

  • Scanlon, T.M. (2008), Moral Dimensions: Permissibility, Meaning, Blame (Cambridge, MA: Belknap Press).

  • Thomson, Judith Jarvis (1985), ‘The Trolley Problem’, The Yale Law Journal, 94, 1395–1415.

  • Walen, Alec (2014), ‘Transcending the Means Principle’, Law and Philosophy, 33, 427–464.

  • Wedgwood, Ralph (2011), ‘Defending Double Effect’, Ratio, 24, 384–401.

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    S. Matthew Liao

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Liao, S.M. The Closeness Problem and the Doctrine of Double Effect: A Way Forward. Criminal Law, Philosophy 10, 849–863 (2016). https://doi.org/10.1007/s11572-014-9344-z

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