Doing and Allowing

This special issue of the Journal of Medicine and Philosophy focuses on unintended intrauterine death (UID) and preterm delivery (both phenomena that are commonly—and unhelpfully—referred to as “miscarriage,” “spontaneous abortion,” and “early pregnancy loss”). In this essay, I do two things. First, I outline contributors’ arguments. Most contributors directly respond to “inconsistency arguments,” which purport to show that abortion opponents are unjustified in their comparative treatment of abortion and UID. Contributors to this issue show that such arguments often rely on (...) a grossly oversimplified picture of abortion opponents’ views. Furthermore, contributions in this issue weigh in on issues regarding UID with theoretical import and therapeutic implication beyond the inconsistency argument debate. These papers can be mined for principles that better inform us about anembryonic pregnancies (i.e., nonviable pregnancies in which a gestational sac exists but no embryonic pole can be seen via transvaginal ultrasound), UID-prevention research, the law concerning UID (especially post-Dobbs), policies for handling embryonic remains, and moral psychology as it relates to UID, emotion, and empathy. In each case, conceptual philosophical analysis might bring about therapeutic benefits for those affected by UID. Philosophers, therefore, are in position not only to provide clarity—careful analysis and discussion of UID and related phenomena—but are also in position to genuinely help people affected by UID. (shrink)

Kopeikin (forthcoming a, forthcoming b) and Rachels’ (1975) bare-difference cases elicit the intuition that killing is no different than letting die. Hill’s (2018) bare-difference cases elicit the intuition that killing is worse than letting die. At least one of the intuitions must be mistaken. This calls for an error theory. Hill has an error theory for the intuition elicited by the Kopeikin/Rachels’ cases. Kopeikin and Rachels have an error theory for the intuition elicited by Hill’s cases. A natural thought is (...) that we are at an impasse. There is no plausible basis for preferring one error theory to the other. I argue that this natural thought is mistaken. Not all error theories are equal. Preliminary considerations favor Hill’s error theory and disfavor the Kopeikin/Rachels error theory. But preliminary considerations are not decisive. The way forward in the bare-difference debate is not to evaluate intuitions. The intuitions are in. What is left to do now is evaluate the comparative status of the Hill and the Kopeikin/Rachels error theories. (shrink)

Suppose A is wrongfully attempting to kill you, thereby forfeiting his right not to be harmed proportionately in self-defense. Even if it were proportionate to blow off A's arms and legs to stop his attack, this would be impermissible if you could stop his attack by blowing off just one of his arms. Blowing off his arms and legs violates the necessity condition on imposing harm. Jonathan Quong argues that violating the necessity condition consists in violating a right to be (...) rescued: blowing off four of A’s limbs in proportionate self-defense rather than blowing off one of A’s limbs in proportionate self-defense fails to costlessly rescue three of A's limbs. In response, we present cases which intuitively show that violating the necessity constraint involves the violation of a right that is more stringent than a right to be rescued. (shrink)

Consider three cases: -/- Turn: A trolley is about to kill five innocent strangers. You can turn the trolley onto me, saving the five and killing me. -/- Hurl: A trolley is about to kill five innocent strangers. You can hurl me at the trolley, saving the five and paralyzing me. -/- TurnHurl: A trolley is about to kill five innocent strangers. You can turn the trolley onto me, saving the five and killing me. You can instead hurl me at (...) the trolley, saving the five and paralyzing me. -/- Most find the following four claims intuitively plausible: -/- (1) It is permissible to turn the trolley onto me in Turn. (2) It is impermissible to hurl me at the trolley in Hurl. (3) It is impermissible to turn the trolley onto me in TurnHurl. (4) It is permissible to hurl me at the trolley in TurnHurl. -/- But how does turning go from permissible to impermissible, and hurling from impermissible to permissible, when both alternatives are available? I argue that such “secondary permissibility” claims are explained by contrastive consent. Even if I do not consent to being harmed, it is likely I’ll consent to being hurled at the trolley rather than being turned onto. (shrink)

Many people hold the constraint against doing harm, the view that the reason against doing harm is stronger than the reason against merely allowing harm, everything else being equal. Mogensen and MacAskill (2021) have recently argued that when considering indirect long-term consequences of our everyday behavior, the constraint against doing harm faces a problem: it has the absurd implication that we should do as little as possible in our lives. In this paper, I explore the view that, for behavior that (...) does not increase anyone’s ex ante risk of suffering harm, the reason against doing harm is not stronger than the reason against merely allowing harm, everything else being equal. I argue that this view is plausible, show how it solves the paralysis problem, and defend it against objections. (shrink)

Analyses of factual causation face perennial problems, including preemption, overdetermination, and omissions. Arguably, the thorniest, are cases of omissive overdetermination, involving two independent omissions, each sufficient for the harm, and neither, independently, making a difference. A famous example is Saunders, where pedestrian was hit by a driver of a rental car who never pressed on the (unbeknownst to the driver) defective (and, negligently, never inspected) brakes. Causal intuitions in such cases are messy, reflected in disagreement about which omission mattered. What (...) these analyses mistakenly take for granted, is that at issue is the 'efficacy' of each omission. I argue, on the contrary, the puzzle of omissive overdetermination favors taking the act/omission distinction seriously. Factual causation, properly understood precludes omissions (i.e. omissions are not causal). Of course, the law also attaches liability to omissions, but this works differently from liability for real causes (e.g. omissions have a duty requirement, they also respond differentially to difference-making considerations). The manner in which liability attaches for omissions differs from that of straightforward causal liability, and is entirely dependent on the underlying causal structure. Attention to that structure (e.g. that the driver's hitting the pedestrian with his car is what actually caused the injury) sheds light on which omissions matter (e.g. driver's failure to press on the brakes) and why (because that failure removes a defense the driver would have to liability for the accident he caused). Other cases, where the parties' connection is entirely omissive (e.g. two physicians fail to detect independently lethal conditions), come out differently (tracking moralized elements). The analysis offered makes better sense of both why omissive determination cases are puzzling and how to resolve them. (shrink)

Accounts of moral responsibility commonly focus on responsibility for actions and their consequences. But we can be responsible as well for omitting to act or refraining from acting, and for consequences of these. And since omitting and refraining are not in every case performing an action, an account of responsibility for actions will not apply straightforwardly to these cases. This paper advances proposals concerning responsibility for omitting, refraining, and their consequences. Providing such an account is complicated by the fact that (...) cases of omitting or refraining are quite varied. (shrink)

Sometimes one can prevent harm only by contravening rights. If the harm one can prevent is great enough, compared to the stringency of the opposing rights, then one has a lesser-evil justification to contravene the rights. Non-consequentialist orthodoxy holds that, most of the time, lesser-evil justifications add to agents’ permissible options without taking any away. Helen Frowe rejects this view. She claims that, almost always, agents must act on their lesser-evil justifications. Our primary task is to refute Frowe’s flagship argument. (...) Secondarily, it is to sketch a positive case for nonconsequentialist orthodoxy. (shrink)

Deontologists believe that it is wrong to violate a right even if this will prevent a greater number of violations of the same right. This leads to the paradox of deontology: If respecting everyone’s rights is equally important, why should we not minimize the number of rights violations? One possible answer is agent-based. This answer points out that you should not violate rights even if this will prevent someone else’s violations. In this paper, I defend a relational agent-based justification that (...) focuses on the relation in which the agent stands to her would-be victims. I argue that this justification can avoid two key objections levelled against agent-based justifications: It can explain why we are not permitted to minimize our own rights violations, and the justification avoids the charge of being excessively self-concerned. (shrink)

Many people think that the moral reason against doing harm is stronger than the moral reason against allowing harm. What should these people think about doing and allowing good? I address this question by distinguishing two ways of understanding the doing/allowing distinction. The agency view implies that the moral reason for doing good is stronger than the moral reason for allowing good. The imposition view implies that the moral reason against preventing good is stronger than the moral reason against failing (...) to do good. I defend the imposition view and explore its implications for the comparative strength of harm-based and benefit-based reasons. (shrink)

I argue that the scope of rational framing effects may be broader than Bermúdez assumes. Even in many “canonical experiments,” the explanation of the judgment reversals or shifts may refer to reasons, including moral ones. Referring to the Asian disease paradigm (ADP), I describe how non-consequentialist reasons related to fairness and the distinction between doing and allowing may help explain and justify the typical pattern of choices in the cases like ADP.

In this book chapter I argue that contrary to what is said by Paul Guyer in Kant (Routledge, 2006) Kant's moral philosophy prohibits the bystander from throwing the switch to divert the runaway trolley to a side track with an innocent person on it in order to save more people who are in the path of the trolley in the "Trolley Problem" case made famous by Judith Jarvis Thomson (1976; 1985). Furthermore, Thomson herself (2008) came to agree that it would (...) be wrong to throw the switch, just as it is wrong to push the person off the bridge to stop the trolley (1976; 1985). In changing her mind about this case, Thomson came to agree with Kant as well as with Philippa Foot (1967) who argued in her original paper that a negative duty not to harm one healthy patient outweighed a positive duty to give aid to five other patients by transplanting the healthy person's organs. (shrink)

Recent work by Ingmar Persson and Jason Hanna has posed an interesting new challenge for deontologists: How can they account for so-called cases of letting oneself do harm? In this article, I argue that cases of letting oneself do harm are structurally similar to real-world cases such as climate change, and that deontologists need an account of the moral status of these cases to provide moral guidance in real-world cases. I then explore different ways in which deontologists can solve this (...) challenge and argue that the most promising way to conceive of cases of letting oneself do harm is as nonstandard cases of allowing harm, supplemented with an additional argument for the moral relevance of one's own agency. The upshot is that cases of letting oneself do harm are both more theoretically challenging and practically important than has been acknowledged. (shrink)

As attention, in philosophy, is mainly discussed in the philosophy of mind, its ethical aspects have remained relatively unexplored. One notable exception is Iris Murdoch. Another philosopher, Maur...

El autor recobra las fuentes originales del llamado Dilema del Tranvía pues considera que existe confusión sobre quién es el autor original. Sostiene que no es Phillipa Foot como suele citarse comúnmente, ni siquiera Judith Thomson, sino que sus raíces son más lejanas y se encuentran en dos juristas alemanes: Hans Welzel y, aún antes, Karl Engisch. Propone que la solución al dilema está dada desde el Derecho positivo y no en especulaciones consecuencialistas. ABSTRACT The author recovers the original sources (...) of the so-called Trolley Dilemma because he considers that there is confusion about who the original author is. He argues that it is not Phillipa Foot as it is commonly cited, not even Judith Thomson, but that its roots are more distant and are found in two German jurists: Hans Welzel and, even earlier, Karl Engisch. Proposes that the solution to the dilemma is given from the positive law and not in consequentialist speculations. (shrink)

Elinor Mason draws on ethics and responsibility theory to present a pluralistic view of both wrongness and blameworthiness. Mason argues that our moral concepts, rightness and wrongness, must be connected to our responsibility concepts. But the connection is not simple. She identifies three different ways to be blameworthy, corresponding to different ways of acting wrongly. The paradigmatic way to be blameworthy is to act subjectively wrongly. Mason argues for an account of subjective obligation that is connected to the notion of (...) trying - to act rightly is try to do well by morality, to act wrongly (and to be blameworthy) is to fail to try hard enough. Trying involves understanding morality, those who do not grasp morality are in a different category. So agents might also be blameworthy for being oriented away from what really matters. In that case, agents are blameworthy in a different sense, the detached sense. Finally, we can become blameworthy by taking responsibility in cases where our agency is ambiguous. In the final section, Mason gives us an account of taking responsibility and agues that that is an important art of our responsibility practices. (shrink)

In Responding to Global Poverty: Harm, Responsibility, and Agency, Christian Barry and Gerhard Øverland address the two types of argument that have dominated discussion of the responsibilities of the affluent to respond to global poverty. The second type of argument appeals to ‘contribution-based responsibilities’: the affluent have a duty to do something about the plight of the global poor because they have contributed to that plight. Barry and Øverland rightly recognize that to assess contribution-based responsibility for global poverty, we need (...) to understand what it is for an agent to contribute to harm rather than merely failing to prevent it. Barry and Øverland argue that we should replace the traditional bipartite distinction doing and allowing with a bipartite distinction between doing, allowing and enabling. I argue that their discussion represents a significant contribution to this debate. However, more detail on their key ideas of ‘relevant action’ and ‘complete causal process’ is needed. Moreover, in cases involving the removal of barriers, the non-need based claims of those involved matter. (shrink)

Helen Frowe has recently objected to Michael Tooley’s famous Moral Symmetry Principle, which is meant to show that in themselves killing and letting die are morally equivalent. I argue that her objection is not compelling but a more compelling objection is available. Specifically, Tooley’s rebuttal of a proposed counter-example to his Moral Symmetry Principle has two problematic implications. First, it undercuts the very principle itself. If we reject the proposed counter-example, then any instance of the Moral Symmetry Principle will actually (...) demonstrate the moral in-equivalence of killing and letting die. Second, it commits us to the view, which Tooley wishes to avoid, that we are just as obligated to refrain from doing wrong as we are to prevent others from doing the same. I conclude with a brief discussion of a more general concern regarding Tooley’s basic strategy. My focus here is quite narrow. My claims, if plausible, only show that the Moral Symmetry Principle is unsound and thus cannot serve as a basis for the view that killing and letting die are morally equivalent. (shrink)

According to the Standard View, a doctor who withdraws life-sustaining treatment does not kill the patient but rather allows the patient to die—an important distinction, according to some. I argue that killing can be understood in either of two ways, and given the relevant understanding, the Standard View is insulated from typical criticisms. I conclude by noting several problems for the Standard View that remain to be fully addressed.

Many philosophers, psychologists, and medical practitioners believe that killing is no worse than letting die on the basis of James Rachels's Bare-Difference Argument. I show that his argument is unsound. In particular, a premise of the argument is that his examples are as similar as is consistent with one being a case of killing and the other being a case of letting die. However, the subject who lets die has both the ability to kill and the ability to let die (...) while the subject who kills lacks the ability to let die. Modifying the latter example so that the killer has both abilities yields a pair of cases with morally different acts. The hypothesis that killing is worse than letting die is the best explanation of this difference. (shrink)

Failures are sometimes, but not always, causally relevant to events. For instance, the failure of the sprinkler was causally relevant to the house fire. However, the failure of the dam upstream to break (thus inundating the house with water) was not. Similarly, failures to prevent harms are sometimes, but not always, morally wrong. For instance, failing to save a nearby drowning child is morally wrong. Yet, you are also in some sense “allowing” someone on another continent to drown right now, (...) and this seems permissible. Here, I argue that these two issues are connected. Roughly, I argue that it is prima facie morally wrong to fail to prevent a particular harm if and only if one’s omission is causally relevant to that harm’s occurrence. The result is that, contrary to what Peter Singer claims, failing to donate to famine relief is not morally equivalent to failing to rescue a drowning child in a shallow pond. (shrink)

In a recent article, Xiaofei Liu seeks to defend, from the standpoint of consequentialism, the Doctrine of Doing and Allowing: DDA. While there are various conceptions of DDA, Liu understands it as the view that it is more difficult to justify doing harm than allowing harm. Liu argues that a typical harm doing involves the production of one more evil and one less good than a typical harm allowing. Thus, prima facie, it takes a greater amount of good to justify (...) doing a certain harm than it does to justify allowing that same harm. In this reply, I argue that Liu fails to show, from within a consequentialist framework, that there is an asymmetry between the evils produced by doing and allowing harm. I conclude with some brief remarks on what may establish such an asymmetry. (shrink)

It is a commonplace that there are limits to the ways we can permissibly treat people, even in the service of good ends. For example, we may not steal someone’s wallet, even if we plan to donate the contents to famine relief, or break a promise to help a colleague move, even if we encounter someone else on the way whose need is somewhat more urgent. In other words, we should observe certain constraints against mistreating people, where a constraint is (...) a moral principle that we should not violate, even when that is the only way to prevent further, similar violations or other, greater evils. But, despite its intuitive appeal, the view that there are constraints has drawn considerable criticism, and attempts to provide a rationale for constraints have been, at best, substantially incomplete. In this paper, I develop a novel rationale for constraints that fills important gaps left by views in the literature. The account helps make sense of constraints by identifying a morally significant relation that we bear to people when, and only when, we observe certain constraints against mistreating them. Put roughly, observing these constraints is a condition for being worthy of a form of trust that I call civic trust, and being worthy of such trust is an essential part of living with others in the sort of harmony that characterizes morally permissible interaction. By focusing, in ways other accounts do not, on the role that observing constraints plays in our psychological lives, this approach not only makes the structure of constraints more intelligible, but also helps us better appreciate the force of our reason to observe constraints, and better understand the kind of moral community to which we should aspire. (shrink)

Many philosophers display relaxed scepticism about the Doctrine of Doing and Allowing and the Doctrine of Double Effect, suspecting, without great alarm, that one or both of these Doctrines is indefensible. This relaxed scepticism is misplaced. Anyone who aims to endorse a theory of right action with Nonconsequentialist implications should accept both the DDA and the DDE. First, even to state a Nonconsequentialist theory requires drawing a distinction between respecting and promoting values. This cannot be done without accepting some deontological (...) distinction. Second, if someone is going to accept any deontological distinction she should accept either the DDE or the DDA or some replacement. Finally, anyone who accepts either the DDE or the DDA should accept both doctrines or a replacement of each. Unless both Doctrines can be defended or given a defensible replacement, any Nonconsequentialist is in trouble. (shrink)

This book explores the nature of moral responsibilities of affluent individuals in the developed world, addressing global poverty and arguments that philosophers have offered for having these responsibilities. The first type of argument grounds responsibilities in the ability to avert serious suffering by taking on some cost. The second argument seeks to ground responsibilities in the fact that the affluent are contributing to such poverty. The authors criticise many of the claims advanced by those who seek to ground stringent responsibilities (...) to the poor by invoking these two types of arguments. It does not follow from this that the affluent are meeting responsibilities to the poor. The book argues that while people are not ordinarily required to make large sacrifices in assisting others in severe need, they are required to incur moderate costs to do so. If the affluent fail consistently to meet standards, this fact can substantially increase the costs they are required to bear in order to address it. (shrink)

It is widely believed to be permissible for a physician to discontinue any treatment upon the request of a competent patient. Many also believe it is never permissible for a physician to intentionally kill a patient. I argue that the prospect of deactivating a patient’s artificial heart presents us with a dilemma: either the first belief just mentioned is false or the second one is. Whichever horn of the dilemma we choose has significant implications for contemporary medical ethics.

Common sense has that killing someone amounts to causing the death of someone. This makes killing a physical, biological, or, at best, metaphysical issue, and, as a consequence, the ethics of killing can be dealt with independently of the non-ethical issue of who the killer is. However, in this paper, we show that this is not the case. A physical/biological definition of death plus a metaphysical definition of causation does not exhaust the meaning of killing. Rather, the notion of killing (...) per se generally presumes a notion of default, which often involves ethical considerations. (shrink)

Through critical examination of three main contemporary approaches to describing moral responsibility, this book illustrates why philosophers must take into account the relationship between retrospective moral responsibility and desert of praise or blame. The author advances the moral attitude account, whereby desert of praise and blame depends on the agent’s moral attitudes in response to moral reasons, and retrospective moral responsibility results from expressions of those attitudes in overt behavior.

Past work has demonstrated that people’s moral judgments can influence their judgments in a number of domains that might seem to involve straightforward matters of fact, including judgments about freedom, causation, the doing/allowing distinction, and intentional action. The present studies explore whether the effect of morality in these four domains can be explained by changes in the relevance of alternative possibilities. More precisely, we propose that moral judgment influences the degree to which people regard certain alternative possibilities as relevant, which (...) in turn impacts intuitions about freedom, causation, doing/allowing, and intentional action. Employing the stimuli used in previous research, Studies 1a, 2a, 3a, and 4a show that the relevance of alternatives is influenced by moral judgments and mediates the impact of morality on non-moral judgments. Studies 1b, 2b, 3b, and 4b then provide direct empirical evidence for the link between the relevance of alternatives and judgments in these four domains by manipulating (rather than measuring) the relevance of alternative possibilities. Lastly, Study 5 demonstrates that the critical mechanism is not whether alternative possibilities are considered, but whether they are regarded as relevant. These studies support a unified framework for understanding the impact of morality across these very different kinds of judgments. (shrink)

Fiona Woollard presents an original defence of the Doctrine of Doing and Allowing, according to which doing harm seems much harder to justify than merely allowing harm. She argues that the Doctrine is best understood as a principle that protects us from harmful imposition, and offers a moderate account of our obligations to offer aid to others.

Philosophical theories of agency have focused primarily on actions and activities. But, besides acting, we often omit to do or refrain from doing certain things. How is this aspect of our agency to be conceived? This book offers a comprehensive account of omitting and refraining, addressing issues ranging from the nature of agency and moral responsibility to the metaphysics of absences and causation. Topics addressed include the role of intention in intentional omission, the connection between negligence and omission, the distinction (...) between doing and allowing, and the distinction in law between act and omission. (shrink)

From Morality to the End of Reason is an ambitious book. Ingmar Persson tackles key issues from across the spectrum of ethical theory and beyond: the nature of rights, self-ownership, killing and letting die, the doctrine of double effect, collective action, freedom and moral responsibility, the nature and ground of practical and epistemic reasons. His conclusions on these wide-ranging issues are woven into an overarching view of morality and rationality.

I defend the Doctrine of Doing and Allowing: the claim that doing harm is harder to justify than merely allowing harm. A thing does not genuinely belong to a person unless he has special authority over it. The Doctrine of Doing and Allowing protects us against harmful imposition – against the actions or needs of another intruding on what is ours. This protection is necessary for something to genuinely belong to a person. The opponent of the Doctrine must claim that (...) nothing genuinely belongs to a person, even his own body. (shrink)

According to the Doctrine of Doing and Allowing, the distinction between doing and allowing harm is morally significant. Doing harm is harder to justify than merely allowing harm. This paper is the first of a two paper critical overview of the literature on the Doctrine of Doing and Allowing. In this paper, I consider the analysis of the distinction between doing and allowing harm. I explore some of the most prominent attempts to analyse this distinction:. Philippa Foot’s sequence account, Warren (...) Quinn’s action/ inaction account, and counterfactual test accounts put forward by Shelly Kagan and Jonathan Bennett. I also discuss Jeff McMahan’s account of the removal of barriers to harm. I argue that analysis of the distinction has often been made more difficult by two mistaken assumption: (1) the assumption that when an agent does or allows harm his behaviour makes the difference to whether or not the harm occurs (2) the assumption that the distinction between doing and allowing and the distinction between action and inaction are interchangeable. I suggest that Foot’s account is the most promising account of the doing/allowing distinction, but that it requires further development. (shrink)

According to the Doctrine of Doing and Allowing, the distinction between doing and allowing harm is morally significant. Doing harm is harder to justify than merely allowing harm. This paper is the second of a two paper critical overview of the literature on the Doctrine of Doing and Allowing. In this paper, I consider the moral status of the distinction between doing and allowing harm. I look at objections to the doctrine such as James’ Rachels’ Wicked Uncle Case and Jonathan (...) Bennett’s argument that any acceptable analysis of the distinction leaves it implausible that the distinction is morally relevant. I consider putative defences of the Doctrine from Philippa Foot and Warren Quinn. I argue that neither Foot not Quinn provides a satisfactory justification of the Doctrine of Doing and Allowing, but that the idea of self-ownership discussed by Quinn can be developed to provide a justification of the doctrine. (shrink)

The distinction between action and omission is of interest in both theoretical and practical philosophy. We use this distinction daily in our descriptions of behaviour and appeal to it in moral judgements. However, the very nature of the act/omission distinction is as yet unclear. Jonathan Bennett’s account of the distinction in terms of positive and negative facts is one of the most promising attempts to give an analysis of the ontological distinction between action and omission. According to Bennett’s account, an (...) upshot is the result of an agent’s action if and only if the relevant fact about her conduct is positive. A proposition about an agent’s conduct is positive if and only if most possible movements of the agent would not have made that proposition true. However, Bennett’s account will fail unless it is possible to make sense of claims about ‘most possible movements of the agent’. We need a way of comparing the size of subsets of the behaviour space (the set of possible movements). I argue that Bennett’s own method of comparison is unsatisfactory. I present an alternative method of comparing subsets of the behaviour space. (shrink)

Warren Quinn and Philippa Foot have given versions of the Doctrine of Doing and Allowing justifying a moral distinction between doing something to bring about harm, and doing nothing to prevent harm. They argue that it is justified to allow one person to die so that one can save a larger number of people, but not to kill one person to achieve the same purpose. In this chapter, I show that the examples typically used to support the DDA do not (...) in fact do so. Contrary to the deontological ethics supported by the DDA, I argue that it can be justified to minimize harm by killing a smaller number of people, in preference to letting a greater number die. But unlike for the consequentialist, my position is that the distinction between killing and letting die does have moral significance. I shall examine what other non-consequentialist considerations, besides the appeal to positive and negative rights, could account for the distinction; and suggest a middle position between the deontological and consequentialist approaches to the ethics of killing. (shrink)

For over a century now, American scholars (among others) have been debating the merits of “bad Samaritan” laws — laws punishing people for failing to attempt easy and safe rescues. Unfortunately, the opponents of bad Samaritan laws have mostly prevailed. In the United States, the “no-duty-to-rescue” rule dominates. Only four states have passed bad Samaritan laws, and these laws impose only the most minimal punishment — either sub-$500 fines or short-term imprisonment. -/- This Article argues that every state should criminalize (...) bad Samaritanism. There are three main reasons. First, criminalization is required by the supreme value that we place on protecting human life, a value that motivates laws against both homicide and manslaughter. Second, criminalization is recommended by the “proportionality principle” — i.e., the principle that a law’s level of punishment should be directly proportional to the moral severity of the offense. Third, criminalization would yield a number of significant benefits, including helping to minimize needless deaths and injuries and providing society with an institutional outlet for its outrage against bad Samaritans. -/- Still, many objections have been leveled against bad Samaritan laws. This Article will argue that while some of these objections — for example, the objections involving foundational criminal law principles such as the actus-reus requirement, the harm principle, and causation — are all easily refuted, five other objections are not. These five objections involve pragmatic considerations such as the difficulties with obtaining evidence against bad Samaritans and psychological considerations such as people’s understandable reasons for not wanting to “get involved.” This Article will then put these five objections into reflective equilibrium with the moral arguments for bad Samaritan laws and conclude that while bad Samaritanism should indeed be criminalized, the punishment that convicted bad Samaritans receive should be mild — certainly milder than the level of punishment recommended by the “proportionality principle.” The corollary of this conclusion is that the criminal law should sometimes abandon the proportionality principle. (shrink)

Attempts to defend the moral significance of the distinction between doing and allowing harm directly have left many unconvinced. I give an indirect defence of the moral significance of the distinction between doing and allowing, focusing on the agent's duty to reason in a way that is responsive to possible harmful effects of their behaviour. Due to our cognitive limitations, we cannot be expected to take all harmful consequences of our behaviour into account. We are required to be responsive to (...) harmful consequences that have some feature that makes it easy for us to become aware of them. I show that, under Jonathan Bennett's analysis of the doing/allowing distinction, harm that is incidentally done has such a feature, which is not shared by harm that is incidentally allowed. Any plausible analysis of the doing/allowing distinction will entail a similar asymmetry. It follows that, prima facie, an agent who incidentally does harm has violated a moral requirement (the deliberative requirement) which an agent who incidentally allows harm has not violated. 1. (shrink)

This Note offers a normative critique of cost-benefit analysis, one informed by deontological moral theory, in the context of the debate over whether tort litigation or a non-tort approach is the appropriate response to mass harm. The first Part argues that the difference between lay and expert intuitions about risk and harm often reflects a difference in normative judgments about the existing facts, rather than a difference in belief about what facts exist, which makes the lay intuitions more defensible. The (...) second Part considers how tort has dealt with this divergence between lay and expert perspectives. It also evaluates how tort's approach has differed from that of public law approaches to accident law, such as legislative compensation and risk regulation by administrative agencies. Ultimately, tort's ability to recognize the value of lay intuitions supports retaining the tort perspective as part of our societal arsenal of responses to risk and harm. This ability can also support a pro-tort perspective in two practical debates in the arena of tort law: that over preemption of tort law by administrative agency judgments, and that over access to tort recovery as part of a no-fault system. (shrink)

The doctrine (or principle) of double effect is often invoked to explain the permissibility of an action that causes a serious harm, such as the death of a human being, as a side effect of promoting some good end. According to the principle of double effect, sometimes it is permissible to cause a harm as a side effect (or “double effect”) of bringing about a good result even though it would not be permissible to cause such a harm as a (...) means to bringing about the same good end. Does the principle of double effect play the important explanatory role that has been claimed for it? To consider this question, one must be careful to clarify just what the principle is supposed to explain. Three misinterpretations of the principle’s force or range of application are common. 1. To ensure that Double Effect is not misunderstood as principle issuing a blanket permission on causing any unintended harm that yields a benefit, applications must require that the agent seek to minimize the harm involved. 2. Since it is widely accepted that it is wrong to aim to produce harm to someone as an end, to rule this out is not part of double effect’s distinctive content. 3. Harms that were produced regretfully and only for the sake of producing a good end may be prohibited by double effect because they were brought about as part of the agent’s means to realizing the good end. (shrink)

Frankfurt-type examples seem to show that agents can be morally responsible for their actions and omissions even if they could not have done otherwise. Fischer and Ravizza's influential account of moral responsibility is largely based on such examples. I examine a problem with their account of responsibility in cases where we fail to act. The solution to this problem has a surprising and far reaching implication concerning the construction of successful Frankfurt-type examples. I argue that the role of the counterfactual (...) intervener in such examples can only be filled by a rational agent. (shrink)

In 'Doing and Allowing', Samuel Scheffler argues that if a person sees herself as subject to norms of individual moral responsibility, then the content of her first-order substantive norms of individual moral responsibility must attribute greater responsibility to what one does than to what one could, but fails, to prevent. This paper is about how a morally responsible agent could deny the doctrine of doing and allowing, why an environmentalist should, and what this means for environmental ethical theory.

It is generally thought that ought implies can. If this maxim is correct, then my inability to do otherwise entails that I cannot be blamed for failing to do otherwise. In this article, however, I use Harry Frankfurt’s famous argument against the "Principle of Alternative Possibilities" (PAP) to show that the maxim is actually false, that I can be blamed for failing to do otherwise even in situations where I could not have done otherwise. In these situations, I do not (...) act otherwise not because I cannot act otherwise but because I choose not to act otherwise.None. (shrink)

The paper outlines and explores a possible strategy for defending both the action/omission distinction (AOD) and the principle of double effect (PDE). The strategy is to argue that there are degrees of actionhood, and that we are in general less responsible for what has a lower degree of actionhood, because of that lower degree. Moreover, what we omit generally has a lower degree of actionhood than what we actively do, and what we do under known-but-not-intended descriptions generally has a lower (...) degree of actionhood than what we do under known-and-intended descriptions. Therefore, we are in general less responsible for what we omit than for what we do—which is just what AOD says. And we are in general less responsible for what we do under known-but-not-intended descriptions than for what we do under known-and-intended descriptions—which is just what PDE says. (shrink)

To what extent can philosophical thought experiments reveal norms? Some ethicists have argued that certain thought experiments reveal that people draw a morally significant distinction between "doing" and "allowing". I examine one such thought experiment in detail and argue that the intuitions it elicits can be explained by "prospect theory", a psychological theory about the way people reason. The extent to which such alternative explanations of the results of thought experiments in philosophy are generally available is an empirical question.

The Principle of Agency says that if it would be good for a state of affairs to occur “naturally”, then it is permissible to take action to bring it about. This contradicts the views of some bioethicists, who object to euthanasia, in vitro fertilization, and cloning, even though they acknowledge that the states of affairs produced are good. But the principle, or some form of it, seems inescapable. The opposite view — that we may not, by our action, reproduce “natural” (...) goods — may owe its appeal to an implicitly religious view of nature. (shrink)