Abstract
I focus on the question as to what rationale could possibly underlie the doctrine of double effect (DDE) or related principles. I first briefly review the correct critiques of the claim that people who intend some evil as a means to a good must be “guided by evil,” and that this is allegedly always wrong. I then argue that Quinn’s claim that violations of the DDE express certain negative attitudes of the agent and that agents violating the DDE must make an additional morally problematic presumption regarding their victims is mistaken. Tadros claims that an agent violating the means principle must force his victims to adopt his goals. I demonstrate that the difference Tadros tries to construe between an agent inflicting intended harm and an agent inflicting merely foreseen harm is non-existent. Sarch’s official rationale for the DDE also fails to distinguish harming as a means from side-effect harming, and reformulations of his rationale that suggest themselves run into severe problems. Walen’s defense of the means principle in terms of the “restricting claims principle” and Øverland’s appeal to “moral obstacles” are susceptible to counter-examples and appear to be question-begging. Recently, Walen has offered a revised formulation of his Restricting Claims Principle, claiming that it overcomes counter-examples and explains the means principle. I will argue that it contradicts the means principle and does not overcome the counter-examples. Thus I conclude that so far we are still left without a reasonable rationale for the DDE or related principles.
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Notes
On occasion a defender of the DDE or the means principle admits that there might be no deeper rationale available. See Ramakrishnan (2016, esp. at 165).
Nagel (1980, 132).
Bennett (1998, 224).
Nelkin and Rickless (2015, 403). Sarch (2017a, 460) thinks that these two problems can be overcome if one uses the DDE not for assessments of permissibility but for assessments of the degree of culpability. He realizes that this is a rather restricted understanding of the DDE (ibid., 460–461). My concern throughout this paper is with permissibility—and that is how the DDE has been traditionally understood and intended. Moreover, Sarch’s account actually fails even if only applied to culpability, as we will see below.
A related “rationale” might be Wedgwood’s (2011, 392–393). He claims that someone who acts intending certain outcomes is more “agentially involved” in the “intentional dimension” than someone who acts foreseeing certain outcomes, and that the more agential involvement an act (with bad effects) contains the worse the act is. Obviously, however, this does not explain anything but only combines a mere relabeling of the intending/foreseeing distinction with a mere claim that one is worse than the other.
Quinn (1989, 343–344).
Ibid., 348–349. Nelkin and Rickless (2014, 131–133) attribute to Quinn a “Kantian approach,” which Quinn, allegedly, defends in an “dependent rights version” while they prefer an “independent rights version.” This difference need not concern us—more important is that this attribution of the Kantian rationale to Quinn is problematic (as is their own invocation of the Kantian rationale as an explanation). They quote Quinn (1989, 350) referring to Kant and saying that “[p]eople have a strong prima facie right not to be sacrificed in strategic roles over which they have no say.” Yet, Quinn (1989, 350, n. 25) recognizes that people will—including and perhaps especially on Kant’s view—also have a strong prima facie right not to be sacrificed collaterally without having a say on that. The question is why one is worse than the other—and to explain that Quinn evokes the “additional distinctive attitude,” not Kant.
Compare Bennett (1998, 220–221).
Quinn (1989, 349).
I have encountered here the somewhat mysterious objection that this observation of mine is “non-responsive” since Quinn recognizes that the death of the civilians is involuntary in both cases and he allegedly merely says that it would be voluntary if they cooperated with the bomber. In reply, first, recognizing something is not quite sufficient—one should also draw the logical conclusions; and second, yes, it would be voluntary if they cooperated with the bomber, but that is so in both cases (not shooting down the bomber would be a case of cooperation—which, as I pointed out in the main text, is evidently something Quinn does not recognize), and it therefore does not establish any difference between the cases.
Tadros (2015, 68).
Ibid.
Ibid., 68–69.
Ibid., 67.
Ibid., 66.
Ibid., 66–67.
Ibid., 67.
Ibid.
Ibid.
Ibid.
Tadros (2011, 211).
Ibid., 203.
Tadros (2015, 73).
Steinhoff (2014).
I am, obviously, not against appealing to intuitions as such; I am merely against appealing to intuitions that are produced in methodologically inapt ways.
Could Tadros simply refuse to “count” this as an instance of using as a means? Well, if pointing a sensor at a barcode in order to activate something amounts to using the barcode as a means—and it certainly does, at least in ordinary language—then pointing a sensor at a person to activate something likewise amounts to using the person as a means. Unless Tadros gives a technical definition of “using as a means” (and he has not), we are justified in taking him to be using the term as it is used in ordinary language.
Tadros (2015, 57).
Sarch (2017a, 458–461).
Ibid., 462.
Ibid., 478.
Ibid., 463.
Sarch rightly points out that some crimes are legally defined with reference to intent or purpose. However, all the examples he gives (ibid., 456) are examples where without purpose there is no crime at all—which certainly does not correspond to the situation in the Alan/Bobby case—and where it seems to be rather clear that if there is a moral failure with intent in these cases, then there is also a moral failure with knowledge (consider, for instance, his example of falsely incriminating another). In other words, it would appear that in these cases—unlike in cases involving killing or otherwise physically hurting people—law does not even make the attempt to track morality but seems to be guided by other, perhaps pragmatic or evidentiary, concerns. That, in my view, severely undermines the probative value of these cases for our moral intuitions.
Ibid., 465.
Ibid., 466.
Ibid.
Ibid., 464. Sarch affirmatively quotes here Schroeder (2007, 113).
I have encountered the objection that from the fact that Alan thinks that he has a reason to burn down the house it does not logically follow that he thinks that he has a reason to promote harm. Well, that is true. However, unless Alan is demented (and I thought we were talking about rational actors), he will know to burn down the house in the example is to promote harm, but then he cannot think that he has a reason to burn down the house without also thinking that he has a reason to promote harm.
Sarch (2017a, 465).
This is also how Bennett would analyze the situation (1981, 101, point 2).
To be sure, Sarch claims that if you do A with a commitment to a certain harm, then you also feel “some motivational pressure to affirmatively promote” the harm (2017a, 455). As I have already explained, however, both Bobby and Alan feel motivational pressure to affirmatively promote the harm—they will not get paid unless the harm ensues. They feel no motivational pressure, however, to celebrate the harm in itself.
Ibid., 472–473. Sarch (2017b) further elaborates on this.
Sarch (2017a, 466).
Ibid., 467.
Walen (2014, 433).
Øverland (2014, 491).
Ibid., 486.
Ibid., 484.
Ibid., 485.
Walen (2014, 446). It should be noted that Walen does not believe in permissible rights-infringements—he takes rights to be absolute. That is, to respect A’s claim not to be killed as a right implies for Walen that one must not and will not kill A. See ibid., 440, n. 27.
Øverland (2014, 483–484).
Walen (2014, 438).
Ibid. See also “Giving Rise to Cost,” 117–118.
Ibid., 118.
Øverland (2014, 498).
Walen calls Bridge “Massive Man.”
Walen (2014, 457).
Ibid.
Ibid., 457–458.
Walen (2016, 226).
Ibid., 222–225.
Ibid., 214.
Ibid., 225.
Ibid.
Ibid., 222.
Ibid., 243.
Ibid., 223. Of course, the side-track man in the original counter-example could not argue that the turning of the trolley is only permissible because of his presence, but he could still argue that it would not be possible without his presence. So it would appear that the original counter-example cannot be handled by Walen’s revision either: the side-track man is still used as a tool, and it is unclear—at least to me—why the “toolkit baseline freedom” of the agent should include the option of diverting trolleys to tracks where people without whom the turning of the trolley would not have been possible to begin with will be killed by them.
Walen (2016, 240).
Ibid.
Ibid.
Ibid., 214. This is Walen’s definition of the revised RCP.
Ibid., 240–241.
Ibid., 241.
Ibid.
Walen relies on the same methodologically inadequate examples—in particular Trolley and Bridge—that are also preferred by virtually all other defenders of the DDE, the means principle, or related principles (Sarch being the noteworthy exception—but his example does not elicit, at least not from Western jurisdictions, a response supporting the DDE). I have already explained that such examples prove nothing; see the last three paragraphs of Sect. 4. See also note 77.
I did not make the attempt here to discuss every idea that has been suggested, but only some prominent and at least intelligible ones. Kamm (2008, 145–146 and 162–167), for instance, seeks to “explain” some of her deontological principles by an appeal to terms like “subordination” and “substitution.” Some authors have criticized her distinction, which presupposes that they find it intelligible. I myself have to admit that I agree with Nye (2014, 449–450), who deems the distinction to be obscure. In any case, it is neither possible to discuss every suggestion in one article nor necessary in order to show that the “rationales” provided for the DDE tend to be unsatisfactory.
The other usual suspects, like Hysterectomy/Craniotomy or Tactical Bomber/Terror Bomber, do not fare better. For a critique of the latter, see Di Nucci (2014, 177–187). For a recent general complaint about confounding factors in the typical hypotheticals employed by defenders of the DDE see also Cushman (2016).
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Acknowledgements
The research presented in this paper is supported by a grant from the Research Grants Council of the Hong Kong Special Administrative Region, China (Project No. HKU 17612817). I am very grateful for this support. I also thank an anonymous reviewer for very useful comments.
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Steinhoff, U. Wild Goose Chase: Still No Rationales for the Doctrine of Double Effect and Related Principles. Criminal Law, Philosophy 13, 1–25 (2019). https://doi.org/10.1007/s11572-018-9456-y
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DOI: https://doi.org/10.1007/s11572-018-9456-y