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Intentions and Permissibility: A Confusion of Moral Categories?

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Notes

  1. Intentions might be derivatively relevant to permissibility. The fact that one intends so and so might supervene on a more basic morally relevant fact, or be grounded on it, or indicate its occurrence (see for instance T. M. Scanlon, Moral Dimensions (Cambridge, MA: Harvard University Press, 2008), chaps. 1–2.). The debate in question is only about the non-derivative or fundamental relevance of intentions. In what follows, when saying that intentions are relevant (or that they are not) I shall have in mind only non-derivative relevance, unless otherwise noted.

  2. See John Stuart Mill, Utilitarianism, ed. Roger Crisp (Oxford: Oxford University Press, 1998), p. 65, n. 2; G. E. Moore, Ethics (Oxford: Oxford University Press, 2005), pp. 95–98; Jonathan Bennett, “Morality and Consequences” in Sterling M. McMurrin, ed., The Tanner Lectures on Human Values, vol. 2, lect. 3 (Salt Lake City: University of Utah Press, 1980), pp. 97–98; James Rachels, The End of Life (Oxford: Oxford University Press, 1986), pp. 93–95; Judith Jarvis Thomson, “Self-Defense”, Philosophy and Public Affairs, vol. 20, no. 4 (1991): 295–296 and “Physician Assisted Suicide: Two Moral Arguments”, Ethics, vol. 109, no. 3 (1999): 517; Alastair Norcross, “Intending and Foreseeing Death: Potholes on the Road to Hell”, Southwest Philosophy Review, vol. 15, no. 1 (1991): 121–122; David McCarthy, “Intending Harm, Foreseeing Harm, and Failures of the Will”, Noûs, vol. 36, no. 4 (2002): 622–642, David Enoch, “Intending, Foreseeing, and the State”, Legal Theory, vol. 13, no. 2 (2007): 81; Scanlon, op. cit, pp. 20–36, 52–56.

  3. As defined here, the OFC presupposes the disjunction that bad intentions, such as the intention to harm, matter to character assessment or that they matter to the blameworthiness of actions. Whether these are just different sides of the same coin is an open question. Bennett (op. cit, p. 99 and The Act Itself (Oxford: Oxford University Press, 1995), pp. 221–224) argues that, although intending harm as an end is often sufficient to display a bad character and a blameworthy action, intending harm as a means is sufficient for neither. Scanlon (op. cit, p. 21, pp. 26–28) agrees about the former, adding that intending harm as a means shows a defect in one’s deliberation about considerations at stake, and, thus, might sometimes be relevant to blameworthiness. Which of these views, if any, is correct will turn on the best theories of character and blameworthiness and on the best explanation of what makes a bad intention a wrong per se. Since these are complex questions which need not be addressed here, I formulated the OFC to cover all possibilities.

  4. See Matthew Hanser, “Permissibility and Practical Inference”, Philosophy and Public Affairs, vol. 115, no. 3 (2005): 443–470; Jeff McMahan, “Intention, Permissibility, Terrorism, and War”, Philosophical Perspectives, vol. 23, no. 1 (2009): 345–372; Victor Tadros, The Ends of Harm (New York: Oxford University Press, 2011), chap. 7; Niko Kolodny, “Scanlon’s Investigation: The Relevance of Intent to Permissibility”, Analytic Philosophy, vol. 52, no. 2 (2011): 100–123; S. Matthew Liao, “Intentions and Moral Permissibility: The Case of Acting Permissibly with Bad Intentions”, Law and Philosophy, vol. 31, no. 6 (2012): 703–724; Ralph Wegdwood, “Scanlon on Double Effect”, Philosophy and Phenomenological Research, vol. 83, no. 4 (2011), pp. 464–472, and “Defending Double Effect”, Ratio, vol. 24, no. 2 (2011): 384–401.

  5. McMahan (op. cit.) and Tadros (op. cit.) do not mention the OFC as an independent objection. Kolodny (op. cit, pp. 102–103) outlines it but does not discuss it in any detail. Hanser (op. cit, pp. 454–456), Wedgwood (“Scanlon on Double Effect”, pp. 470–471), and Liao (op. cit, pp. 719–721) call attention to it but their diagnoses of its errors are scarce and, in my opinion, unconvincing.

  6. Historically, most of these cases were used to support the Doctrine of Double Effect (DDE), according to which it is permissible to bring about harm in pursuit of a good provided that the harm is proportional to the good and that it is not intended, as a means or as an end, but merely foreseen. (For more about the DDE see for instance Joseph Boyle, “Toward Understanding the Principle of Double Effect”, Ethics, vol. 90, no. 4 (1980): 527–538; Thomas A. Cavanaugh, Double Effect Reasoning (New York: Oxford University Press, 2006)). The inductive strategy is often directed against the DDE but its conclusion is universal, as the DDE is not the only principle which specifies how intentions affect permissibility. If the OFC succeeds against the DDE, I shall take it to succeed against any such principle.

  7. Scanlon, op. cit, p. 14.

  8. Scanlon, op. cit, p. 25.

  9. Scanlon, op. cit, p. 32.

  10. Thomson, “Self-Defense”, p. 296.

  11. Whatever I say about this example applies to the other structurally similar pairs which I do not discuss for the reasons of space, e.g. terminal sedation in order to alleviate the patient’s pain/in order to kill him (see for example Thomson, “Physician Assisted Suicide”), redirecting the trolley in order to save the five/in order to kill the one (see for example F. M. Kamm, Intricate Ethics (Oxford: Oxford University Press, 2007), pp. 131–132), etc. The opinions of some of the authors I refer to later on are actually about these cases.

  12. It is bad in the minimal sense: its propositional content is an event we all can agree is bad. It might also be bad if it sprang from a bad motive, such as hatred or revenge (as the term ‘sadistic bomber’ would suggest). However, we should be careful to keep the things equal and not to bring motives into the picture (the debate about their relevance to permissibility, for the most part, follows this one).

  13. See Tadros op. cit, 156–157; Wedgwood, “Scanlon on Double Effect”, pp. 468–469, “Defending Double Effect”, pp. 388–391; Liao, op. cit, 716. Surely, this need not imply that the sadistic bomber must not drop the bombs whatever the consequences but only that he has a fairly strong reason against dropping them. For the intention to kill non-combatants to be able to render otherwise permissible bombing impermissible (rather than just more wrong but nonetheless permissible), that reason must sometimes outweigh or exclude the reasons in favor of bombing. But it need not do it as a matter of necessity.

  14. See Bennett, The Act Itself, p. 218; Thomson, “Self-Defense”, pp. 297–298, “Physician Assisted Suicide”, pp. 515–516; F. M. Kamm, “Failures of Just War Theory: Terror, Harm and Justice”, Ethics, vol. 114, no. 4 (2004): 658–662 and “Terrorism and Intending Evil”, Philosophy and Public Affairs, vol. 36, no. 2 (2008): 168–169: Scanlon, op. cit, p. 20, 31. Some of these authors leave open the possibility that the bomber who intends to harm non-combatants as a means to a bad end and harms them as a means to it, for example kills them in order to demoralize the enemy (commonly called the terror bomber), acts impermissibly. But again, this need not be due to his intention but other considerations, such as the death of non-combatants not being a proper military advantage (see Scanlon, op. cit, pp. 28–29). These alternative explanations are not without controversy but we can leave them aside here.

  15. See for example Liao, op. cit, pp. 716; See also Steven Sverdlik, Motive and Rightness (New York: Oxford University Press, 2011), pp. 15–16.

  16. See Thomas Nagel, The View from Nowhere (Oxford: Oxford University Press, 1986), p. 181; Wedgwood, “Defending Double Effect”, pp. 392–393, 397.

  17. See Warren Quinn, “Actions, Intentions, and Consequences: The Doctrine of Double Effect”, Philosophy and Public Affairs, vol. 18, no. 4 (1989): 334–351; Cavanaugh, op. cit, pp. 147–158; Tadros, op. cit, 130.

  18. See McMahan, op. cit, 357–8; William FitzPatrick, “Intention, Permissibility, and Double Effect”, in Mark Timmons, ed., Oxford Studies in Normative Ethics, vol. 2 (Oxford: Oxford University Press, 2012), pp. 103–104.

  19. In the online survey I conducted, majority of subjects reported the intuition that the sadistic bomber’s action is impermissible (72.00%, χ2 [1, N = 50] = 5.086, p < 0.001, two-tailed). I repeated the survey, this time telling another group of subjects to pay attention not to confuse character evaluation and blameworthiness with permissibility. The results differed but not excessively (54.00%, χ2 [1, N = 50] = 0.16, p < 0.001, two-tailed). Since I used convenience sampling, the results are not conclusive but they are at least indicative of the non-peripheral nature of the belief that intentions are relevant to permissibility. At best, the confusion of moral categories accounts for the intuition of some but not all people. (Future surveys should also examine whether, and to what extent, intuitions about such cases are influenced by the existing rules of international humanitarian law.)

    A similar result is reached by qualitative research. A recent study brings in-depth interviews with eighteen Australian palliative care specialists, most of who are not religious. It reports a wide agreement that administering lethal drugs, when the conditions of terminal illness conclusively favor doing it, is morally permissible only with the intention to relieve a patient’s anguish (see Charles Douglas, Ian Kerridge, and Rachel Ankeny, “Narratives of ‘Terminal Sedation’, and the Importance of the Intention-Foresight Distinction in Palliative Care Practice”, Bioethics, vol. 27, no. 1 (2013): 1–11.).

  20. See Fiery Cushman, “The Psychological Origins of the Doctrine of Double Effect” Criminal Law and Philosophy, vol. 10, no. 4 (2016): 763–776.

  21. See Selim Berker, “The Normative Insignificance of Neuroscience”, Philosophy and Public Affairs, vol. 37, no. 4 (2009): 320.

  22. Moreover, I am skeptical of these psychological studies because of the way they handle the relevant concepts. For example, some studies confuse two senses in which an action can be intentional: a broader sense, meaning that an action is knowingly performed, and a narrower one, meaning that it is intended, thereby interpreting the relevance of their subjects’s replies about the former for the relevance about the latter (See Joshua Knobe, “Intentional Action and Side Effects in Ordinary Language” Analysis, vol. 63, no. 279 (2003): 190–194; Fiery Cushman and Liane Young, “Patterns of Moral Judgment Derive from Nonmoral Psychological Representations”, Cognitive Science, vol. 35, no. 6 (2011): 1052–1075.). I cannot elaborate on these mistakes here but I would not be surprised if a comprehensive analysis of such studies’s conceptual assumptions showed that the defenders have nothing to worry about.

  23. An exception is Shelly Kagan, The Limits of Morality (Oxford: Oxford University Press, 1989), pp. 177–182. But since Kagan does not appeal to the OFC in any form discussed here, I leave his criticism aside.

  24. Kamm, “Terrorism and Intending Evil”, p. 168. See also Rachels, op. cit, p. 92.

  25. See Thomson, “Self-Defense”, p. 293; Scanlon, op. cit, pp. 19–20, 30.

  26. Thomson, “Self-Defense”, p. 293; see also her “Physician Assisted Suicide”, pp. 514–515.

  27. See for instance Kolodny, op. cit, p. 119.

  28. See Thomson, “Self-Defense”, pp. 297–298, “Physician Assisted Suicide”, pp. 514–6; Bennett, The Act Itself, p. 218; Enoch, op. cit, p. 81; Scanlon, op. cit, pp. 20, 31. See also Alison McIntyre, “Doing Away with Double Effect”, Ethics, vol. 111, no. 2 (2001): 225–226; Howard Nye, “Objective Double Effect and the Avoidance of Narcissism”, in Mark Timmons, ed., Oxford Studies in Normative Ethics, vol. 3 (Oxford: Oxford University Press, 2013), p. 271–2.

  29. According to one of them, intentions cannot be relevant to permissibility because, if that were the case, some actions which should be encouraged would not be permissible because of being done with bad intentions and it cannot be permissible to encourage impermissible actions (see Thomson, “Physician Assisted Suicide”, p. 516). It has been also argued that it is impossible to act for some reason rather than another, so it cannot be morally required, permissible, or impermissible to do so (see Scanlon, op. cit, pp. 57–62). I find both arguments inconclusive but I cannot argue against them here.

  30. Thomson, op. cit, pp. 294–295 (italics are in original).

  31. See Thomson, op. cit, p. 295.

  32. See for example Wedgwood, “Scanlon on Double Effect”, p. 471.

  33. Wedgwood (op. cit, p. 471) denies that this is possible. He claims that no act-type of the form X-ing-with-a-bad-intention can be blameworthy if it is permissible because a permissible act-type of that form shows that the intention is actually innocent. However, I do not see why one and the same bad intention cannot stand in different relations to different moral categories: crucially affecting some and being irrelevant to others. Even if its defects are, as it were, inherited by the act-type whose part it constitutes, that need not make the act-type impermissible. I see no reason to think that there is a conceptual entailment from the badness of that act-type to its impermissibility.

  34. See Scanlon, op. cit, p. 22. By a moral principle Scanlon understands a general moral requirement specifying which considerations decisively count in favor or against an action.

  35. See Scanlon, What We Owe to Each Other (Cambridge, MA: Harvard University Press), pp. 33–34, “Intention and Permissibility”, Proceedings of the Aristotelian Society, suppl. vol. 74, no. 1 (2000): 301–317, Moral Dimensions, p. 10; see also Bennett, op. cit, p. 194. It is easy to conflate the deliberative and the critical uses with some similar distinctions. Scanlon himself used to claim that the two uses can be distinguished in virtue of their temporality. The deliberative use, Scanlon wrote, is prospective whereas the critical one is retrospective (see Scanlon, “Intention and Permissibility”, p. 307; see also Jussi Suikkanen, “Intentions, Blame, and Contractualism”, Jurisprudence, vol. 2, no. 2 (2011): 562). But it is certainly possible for the deliberative use to be retrospective. We can ask whether one would have been permitted to act as one did. Likewise, the distinction does not correspond to that between the first-person and the third-person evaluative perspectives (see Scanlon, Moral Dimensions, p. 218, n. 9; see also Kolodny, op. cit, pp. 102–103). Both questions can be asked from both standpoints. We can ask ‘May I act?’ as well as ‘May she act?’ Similarly, we can ask ‘What does/did she take as reasons for acting?’ as well as ‘What are/were my reasons for acting?’.

  36. I use ‘taking as/believing to be a reason’ and ‘operative reason’ interchangeably.

  37. See Scanlon, Moral Dimensions, pp. 52–56.

  38. See Scanlon, op. cit, p. 27.

  39. See Scanlon, op. cit, p. 52.

  40. Operative reasons are often motivating reasons to act. According to Scanlon, they are the sole source of moral motivation. See Scanlon, What We Owe to Each Other, pp. 33–41.

  41. See Scanlon, Moral Dimensions, p. 7.

  42. Scanlon, op. cit, p. 23.

  43. For a similar suggestion see Ulrike Heuer, “Intentions, Permissibility and the Reasons for Which We Act”, in Gregory Pavlakos and Veronica Rodriguez-Blanco, eds., Reasons and Intentions in Law and Practical Agency (Cambridge: Cambridge University Press, 2015), pp. 29–30. Heuer also claims that normative reasons to act for a reason are exclusionary. I do not think that they need to be. They can weigh against other considerations. Besides, that such normative reasons are based on operative reasons is not yet to say that the latter fundamentally determine the permissibility of actions. Scanlon (op. cit, pp. 39–40) admits that intentions are sometimes derivatively relevant to permissibility. So he might agree that normative reasons to act for a reason exist when operative reasons are not fundamental. But even then Scanlon has to give up on his OFC because its second premise denies the possibility of normative reasons to act for a reason regardless of what grounds them. For if one concurs that they are possible, why could not they, in principle, non-derivatively determine the permissibility of actions? Scanlon cannot have his cake and eat it too.

  44. See Scanlon, op. cit, pp. 57–62.

  45. In a nutshell, my main worry is with the conditional that if direct control over forming beliefs is impossible, it is impossible to choose one’s reason for action and, therefore, to be permitted or forbidden to act for them. The truth of the antecedent seems irrelevant for the truth of the consequent – even if it is impossible to believe at will, we usually have the ability to reflect on our beliefs, which suffices to make it true that we can believe otherwise and act for a different reason than the one we would act for. I argue for this claim and show other problems with this argument in “Intentions, Permissibility, and Choice (unpublished manuscript)”.

Acknowledgements

For written comments on or discussions about earlier versions of this paper I am grateful to Selim Berker, Ulrike Heuer, Frances Kamm, János Kis, Ivan Milić, Edi Pavlović, Simon Rippon, Tim Scanlon, Victor Tadros, and to an anonymous reviewer of this journal.

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    Anton Markoč

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Markoč, A. Intentions and Permissibility: A Confusion of Moral Categories?. J Value Inquiry 51, 577–591 (2017). https://doi.org/10.1007/s10790-017-9596-7

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