Some Light on Double Effect

Some Light on Double Effect Author(s): James G. Hanink Source: Analysis, Vol. 35, No. 5 (Apr., 1975), pp. 147-151 Published by: Oxford University Press on behalf of The Analysis Committee Stable URL: http://www.jstor.org/stable/3327597 . Accessed: 20/01/2015 19:23 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. . Oxford University Press and The Analysis Committee are collaborating with JSTOR to digitize, preserve and extend access to Analysis. http://www.jstor.org This content downloaded from 157.242.56.93 on Tue, 20 Jan 2015 19:23:20 PM All use subject to JSTOR Terms and Conditions WHO'SAT FAULT? 147 ful provocation. I suggest that the tendency to mistake innocent behaviour for provocativebehaviouris a part of what it is to be an envious person. Certaindefects of characterare 'extra-punitive';that is, people who have suchfaultsaretoo readyto blameothersfor theirown troubles. Faults of pride, such as envy, are paradigmsof such defects. They are faults in partbecausethey are dispositionsto hold othersat fault without just cause. Universityof SouthernCalifornia H. ? JOHN DREHER 1975 SOME LIGHT ON DOUBLE EFFECTI By JAMES G. HANINK philosophershold (i) that it is always wrong intentionallyto SOME kill a human whateverthe and that thereare being, consequences, (z) absolute humanrights, i.e., categoricallyexceptionlessrights. Two such rights may be the passive and negative rights not to be the victim of intentionalkilling and not to be tortured.I hope these philosophersare correct. But whateverone's hopes, there are classicconflict cases that seem to mock exceptionlessmoral principles and absolute rights. Defenders of such principlesand rights sometimes try to deal with these hard cases by invoking a principle of double effect. The core of this principle, hereafterthe PDE, is fairly clear. One may sometimes blamelesslyperform an act having both a good and a bad effectif the latteris merely a foreseen but unintended consequence of one's act. The moral significance of the distinctionbetween intention and foresight is crucialto the PDE. Still, I am not nearly so clear about the PDE as I would like to be, especiallygiven the philosophicalbig game I am after. To get at least a bit more clear,I want to examinetwo recent contributionsto the debate over the PDE. They are Mr. Geddes' 'On the Intrinsic Wrongness of Killing Innocent People' (ANALYSIS 33.3, PP. 93-7) and Mr. Duff's 'IntentionallyKilling the Innocent' (ANALYSIS 34.1, pp. 16-19). I hope to show that the PDE is not so problematicalas they make it, though it is not without its obscurity. Geddes' contentionis that crushingthe skull of a foetus to remove it from its mother and so to save her is not an intentionalkilling. While the 1 My positiondrawson GermainGrisez's'Towarda ConsistentNaturalLaw Ethics of Killing', TheAmerican Journalof Jurisprudence 15 (1970). This content downloaded from 157.242.56.93 on Tue, 20 Jan 2015 19:23:20 PM All use subject to JSTOR Terms and Conditions 148 ANALYSIS foetus' death is certain and certainly foreseen, it is not intended. The obstetrician neither aims for it nor requires it as a means to what is aimed for. Indeed, if somehow the foetus lived, he would rejoice. But if there is in this case no intentional killing, neither is there a violation of the principle never intentionally to kill a human being. Nor is there an infringement of the right not to be the victim of intentional killing. This is crucial. If we suppose that failing a craniotomy both mother and infant will die and that allowing this is folly, it is essential to construe the operation as Geddes does. For if the operation, on the other hand, is taken to be an intentional killing, one must give up the principle and at least one of the absolute rights one might hope to save. Fortunately, I think Geddes' construal of the operation is tenable, though not everything he associates with the PDE is. For he asserts that 'a person may not be held responsible for the unintended evil consequences of his good actions' (p. 95). As it stands this is too strong. Suppose A, a merchant, quite intentionally sells a gun to B. Selling his wares is surely legitimate. But if A foresees B's criminal use of the gun, we would at least sometimes hold A morally responsible for the admittedly unintended evil consequence of his action. If this verdict is correct, it suggests that Geddes' view of the PDE is inadequate or incompletely given. Still, I think his application of the PDE to the craniotomy case is tenable, and I want to look at Duff's argument that it is not. The argument is a reductio.It maintains that if we buy Geddes' application of the PDE, we will be stuck with sophistical solutions to other moral dilemmas. Duff mentions five hard cases. I want to review each to see if we really do get stuck. First we have the Dudley and Stephens case.' Lost at sea on a raft, they eat their cabin boy to avoid starvation. Duff thinks the sophistical solution is to maintain that they might eat the lad 'as a necessary means to the saving of three lives' (p. 17). After all, his foreseen and certain death was neither their end nor a means to it. Surely as it stands this is sophistical. But why? Because the PDE, however we finally clarify it, would not allow A and B to kill C and then eat him to save themselves. This would not be a case of performing a single legitimate act with both a good and a bad effect. The killing and the eating would be separateacts. The latter but not the former could have the good effect aimed at. The killing cannot but be construed as a means to an end and hence inescapably within the agents' intention. Does this mean that A and B might eat C alive? This would be a single act with both good and bad effects! At the risk of being thought depraved, I suppose there are some scenarios where one would be justified in doing this, if one ate sparingly. C mightbe kept alive until help came. But the Dudley and Stephens case offers no such scenario. For the unique 1 Cf. R. v. Dudley and Stephens; (1884) 14 Q.B.D. 273. This content downloaded from 157.242.56.93 on Tue, 20 Jan 2015 19:23:20 PM All use subject to JSTOR Terms and Conditions SOME LIGHT ON DOUBLE EFFECT 149 terror the cabin boy would sufferknowing his fate seems great enough to rule out this course of action. There is an injury here, a torturing, quite apartfrom the killing, that is as much an evil as the killing itself. No comparableterror, I think, would face the crew risking natural death together. Nor, of course, would a foetus experiencesuch terror. If only becauseof this one might invoke the PDE for a craniotomybut not for Dudley and Stephens. Duff's second case is that of the spelunceantrappedin the mouth of a flooding cave and thus blocking the only exit for his equally trapped fellows. The supposedly sophistical solution is to 'blow him free with explosives', with the certain upshot of his death. (Duff offers a more colourful act description.)Of course the death would be no part of the agents' intention. Now one might be uneasy with this solution simply because one wonders why the explorersthink the explosive would free the exit and not cover it over entirely.But pressingthis isn't playingfair. One might, I suppose,rely once more on the terrorfactor,but this seems doubtful here, especiallyif the trappedspeluncean'shead is outside the cave. InsteadI had better swallow the bitter pill. I think the PDE does allow for 'setting the explosive'. Blowing the man free does not, intuitively, seem wrong to me. If the PDE could not be used here, I would be more concernedthan I am to find that it can be. I think it just might dissolve the moral dilemma the case presents. It hardly removes the anguish anyone would experiencefaced with the alternatives.But why should it? The third case is another medical one. A doctor removes a man's heart and liver and lungs to give three others lifesaving transplants. This is all quite legitimate, says the sophist. The doctor foresees that the first man will certainlydie. But his death is not intended nor is it requiredas a means to what is. This "solution"is certainlysophistical. But does it reflecta correct applicationof the PDE? No. For the PDE hardly allows A to assault B and thentransplantB's organs to save C, D and E. Again, this is no case of performinga single legitimateact with both a good and a bad effect. The assault itself is illegitimateand, too, it is quite separatefrom the subsequenttransplantoperations.So it does not seem that we get stuck with a sophisticalsolution to this problem case after all. The fourth case, as Duff handles it, also involves misapplying the PDE. Here a well meaning S.S. man assists in gassing thousandswhile aiming to save others and get news of the Final Solution to the Allies. This, too, supposedlyturnsout to be legitimate,since he does not intend but only foresees the thousands of deaths he helps bring about. But again the PDE does not allow A to gas B and a thousand others so that later A, barring the interference of evil men, might save C and even a million others. This is no case of performing a single legitimate act with This content downloaded from 157.242.56.93 on Tue, 20 Jan 2015 19:23:20 PM All use subject to JSTOR Terms and Conditions 15 ANALYSIS both a good and a bad effect. The gassing, itself illegitimate, is quite separate from future rescues and revelations, however welcome their consequences.Once again it seems that the PDE can be appliedmuch as Geddes does without leading to sophistryin other cases. The last case, the execution of a scapegoatto stay an enemy attack, is equallyunjustifiable.The nationalleadercannot say he decapitatesthe scapegoatto satisfythe enemy,thus sparinghis people, without intending the scapegoat'sdeath. For the decapitatingis one act, the sparingof his people another. Indeed the latter requiresthe agency of the enemy! He cannotinvoke the PDE, for the case at hand is not one in which a single act has both a good and a bad effect.Moreover, there is a strong case to be made that a decapitatingjust is a killing. Duff threatensus with is not My conclusion, then, is that the reductio so threateningafter all. But I can appreciatewhy he thinks otherwise. Geddes never gives anything like a full account of what the PDE is. Following Anscombe he says that its essence is 'to distinguishbetween the intended and the merely foreseen consequences of a voluntary action' (p. 94). Quite. But it is nonetheless only sometimes that one may blamelesslydo an act having both a good and a bad effectwhen the latteris a foreseenbut not intended consequenceof that act. To get any clearerat all about the PDE we must say whenone can so act. I suggest that at least the following conditions must first be met. Specifying these conditions does not make the PDE crystalclear, but it's a start. (i) The act must not be wrong anyway, quite apart from its bad effect. (2) One must intend only its good effect. (3) One cannot act so that the bad effect is a means to the good. (4) The act's good effect must be proportionateto its bad effect. One might invoke the PDE in the speluncean case because all four conditionsare met. In the Dudley and Stephenscase, (3) is not met if the lad is first killed. If eaten alive (4) is not met. In the transplant,S.S. man and scapegoatcases, (3), if not (i), is not met. It is clear that (3) does a good deal of work for me. Still, it is not the only operative condition. It is (4), for example,that rules out selling a gun for a criminal'suse. Yet mightn't (3) work againstGeddes' applicationof the PDE, too? Isn't the foetus' death a means to saving the mother's life? Well, it certainlyisn't a chosen means. Moreover,since its deathis only an effect of the doctor's 'wresting it from its mother'it is not itself an action. If one assumes,as I do, that it is firstand foremost acts that are the objects of moralassessment,the 'means'to which (3) refersshouldbe understood This content downloaded from 157.242.56.93 on Tue, 20 Jan 2015 19:23:20 PM All use subject to JSTOR Terms and Conditions SOME LIGHT ON DOUBLE EFFECT 151 as itself an act. Evil means are perforceevil acts. Killing the cabin boy, itself a distinct act, would count as a means. So would assaultingone's patient, gassing Jews or decapitatinga scapegoat. Thus I do not think (3) is so strong as to rule out the craniotomy;it is strong enough, though, to keep the sophist in line. I hope, to be sure, that both the PDE and especially condition (3) will seem less problematicalas philosophers develop more sophisticatedtheories of act individuation. Duff is quite right to insist that thereare 'logical limits on what I can include in, or leave out of, my descriptionsof my intentional actions' (p. I8). One cannot,for example,leave out the meansthrough which one achieves one's aim. This is just why (3) is crucial.But I doubt whether (3), as I see it, would satisfyDuff. Somewhattentativelyhe suggests that one logically intends the upshot of an act whenever it is not 'an intelligible humanpossibility' (p. 19) that the upshot notfollow one's act. The foreseen effect of a craniotomy, the baby's death, seems inescapable. Were it not to happen, we would rejoice. But this is not an intelligible human possibility, though neither is it a logical impossibility. I have some sympathyfor Duff's suggestion. But I think it is suspect. A pair of cases may show why. Suppose A, in the midst of battle, hurls himself on a grenadeto save B, C and D. It is not an intelligiblehuman possibility, in Duff's sense, to imagine A's surviving. But I would not say he intentionallyor wrongly killed himself. Ratherone act, 'hurling himself on a grenade', has a double effect. Only the good effect is intended, although the bad is foreseen. One can justify this deed with the PDE. Consider, on the other hand, the case of A who has his heart, lungs and liver removed to save B, C and D. I am inclined to call this intentional and wrongful suicide. I can account for such very different intuitions about these cases by pointing out that in the second case the operationand the subsequenttransplantsare separateacts. The former, if construedas a killing, cannot but be seen as a meansto a good. Hence it cannot be justified by invoking the PDE, for it fails to meet (3). If someone distinguishesbetweenthe operationand its killing effect,indeed a fine distinction,one still can'tuse the PDE to justifythe operation.For that act has itself no good effectproportionateto its bad effect.The good effectsawaitotheracts, the subsequenttransplants,and even rely on other agents. Thus (4) is not met. The fact that in both the case of the hero and that of the suicide the agent's survival is not an intelligible human possibility does not seem crucialto moral assessment. StateUniversity Michigan ? JAMESG. HANINK This content downloaded from 157.242.56.93 on Tue, 20 Jan 2015 19:23:20 PM All use subject to JSTOR Terms and Conditions 1975