"On a Purported Error About the Doctrine of Double Effect:
A Response to W.R.P.Kaufman's Reply1"
(Philosophy 76, No. 296 (April 2001), 304-311)
by Sophie Botros, PhD
Kaufman's response to my "An error about the doctrine of double effect"2 made it clear that the error I had sought to identify, and which I had described as deep-seated, is even more so than I had realized. His response is, I will suggest, just one more testimony to the ingrained nature of this error.
It should first be noted that Kaufman attributes to me the very error about the Doctrine of Double Effect (DDE), that it has both a prohibitive and a justificatory function, which I cite as leading philosophers, such as Foot, Nagel and Mackie, into incoherencies in their application of the doctrine. Moreover his objection is not to my holding (as he mistakenly takes me to) that the DDE has these two roles, since it soon turns out to be his own view, but rather to my claiming (which again I do not) that the DDE is itself flawed because its justificatory role becomes unintelligible when combined with the (alleged) prohibitive one.
He even imputes to me an ulterior motive for this apparent opposition to the DDE: that I am an unrestrained utilitarian maximizer, frustrated by a doctrine whose chief function is to prohibit the intentional infliction of harm, however great the net overall benefit. But not only do I nowhere advocate an unrestricted - and repugnant - balancing of good against evil, I even state that the absolute prohibition on intentionally inflicting harm is the principal background assumption against which the DDE is formulated.
Before tackling Kaufman's response in more detail, I offer a summary of my critique of these philosophers' use of the DDE. This doctrine, which has traditionally been applied in the justification of actions with mixed effects has, as is well known, and as is explicitly stated by these writers, and Kaufman, four conditions which are jointly sufficient for permissibility. The first requires that the action be intrinsically good or at least morally neutral; the second, that only the good, and not the bad effect, be intended; the third, that the bad effect be not intended even as a means; and the fourth, that the unintended bad effect be proportionate to the intended good effect. Thus the bombing of a military target with foreseen but unintended loss of civilian lives, where this loss is however deemed to be proportionate to the good aimed at, would fulfil all four conditions, and hence be permitted under the DDE.
Foot, Nagel and Mackie are however primarily interested in the DDE as a source of condemnation of actions which, in involving the intentional infliction of harm, are deemed so intrinsically bad that they must not be performed whatever the consequences. Any action, or refusal to act, involving merely foreseen but unintended harm is then said to be permitted by the DDE. As Kaufman, in exemplifying this position, puts it (9):
In some cases (an action) will be permitted ('justified') i.e. where there is no evil intention and the evil is merely foreseen. In some cases the action will be prohibited, e.g. where the evil is being used as a means to an end.
Associated with this "prohibitive" (as I shall call it) conception of the DDE, we also typically find an enlargement of the range of conduct which the doctrine is claimed to justify. Thus though these writers continue to acknowledge that the doctrine permits us, as it has traditionally done, to bring about foreseen but unintended harms in the pursuit of a proportionately good end, they now also hold that it permits us to allow such harms as a consequence of our observance of an absolute prohibition, or as Kaufman puts it (8) "to do nothing...even when one knows that by doing a bad act one could have prevented a much greater harm". Frequently this second type of conduct is singled out as a paradigm case for justification under the DDE. Thus examples, such as Foot's, of the doctor who allows five sick patients to die rather than transplanting into them the vital organs of a sixth ("the transplanting example") come to occupy a more pivotal place in their discussions than such traditional examples as "the strategic bombing".
Now these philosophers, if they are prepared to acknowledge any difference at all between theirs and the traditional use of the DDE, would tell us that it is just a matter of emphasis. Thus they would say that though they tend to emphasize its role as an absolute prohibition on intrinsically bad actions, this in no way undermines or diminishes its traditional justificatory function in respect of intrinsically good or neutral actions with mixed effects. It was the aim of my paper to refute this claim by a consideration of their own examples.
"The transplanting" (which apart from "the strategic bombing" is the only example I shall mention here) is typically taken by these writers to illustrate how the DDE can be used to establish whether a given harm is prohibited or permitted. The doctor, they would say, is prohibited by the DDE from killing one individual even to save five since he would thereby be intending that individual's death. But he is permitted by the DDE to let the five die since he merely foresees but does not intend their deaths. But, as I observed, the absolute prohibition on murder is precisely one which forbids such an action whatever the consequences. It follows that the DDE's fourth condition - that of balancing intended good, against unintended bad, consequences - is here not merely superfluous, it cannot coherently be applied at all. A dilemma therefore confronts proponents of the prohibitive conception of the DDE. Given their acknowledgment of the necessity of all four of the doctrine's conditions, how can they use it in such a way that in their paradigmatic examples it already grants a permission before its full complement of conditions has been applied, and even though the fourth condition cannot coherently be applied at all?
This dilemma only arises provided that the doctor's refusal to act is in the first place thought to require a genuine moral justification. But even that, I pointed out, is doubtful. It might well be argued that for the doctor to let the five patients die is already sufficiently justified since saving them would involve transgressing the absolute prohibition on murder, and so no additional appeal to the DDE - or any other justificatory procedure - is necessary.
This latter objection cannot of course be brought against "the strategic bombing". For here there is no absolute prohibition which must be observed, and whose observance both unavoidably leads to, and might reasonably be claimed to justify the civilian deaths. On the contrary, these deaths, as foreseen consequences of bombing a military target, clearly require, if they are to be permitted at all, a moral justification.
Nevertheless the proponents of the prohibitive conception of the DDE must now face a different kind of dilemma from that with which "the transplanting" confronted them. In so far as the DDE's function is taken, as they take it, to be essentially just identifying those harms which, being intended, are absolutely prohibited, and those which, being merely foreseen but unintended, are permitted, the fourth condition seems largely irrelevant. That is to say, once it is established that the civilian deaths in "strategic bombing" are not sought as part of any deliberate plan, such as to demoralize the enemy but are, on the contrary, viewed even by the bombers themselves as tragic and pointless, their action would seem to count straightaway as permissible. When however it is also acknowledged - and it is surely difficult to avoid doing so in a deontological context - that no-one can be morally permitted to cause harm, even unintentionally, to an innocent person, if that harm is substantially disproportionate to the good aimed at, the fourth condition, in reflecting this important constraint, is not only relevant, but indispensible, to any permission accorded in "strategic bombing".
The unresolved tension between these two mutually exclusive assessments of the fourth condition's bearing upon this kind of example, reveals itself, I claimed, in a radically disjointed doctrine. The fourth condition, not being quite excised, becomes awkwardly peripheral, and the DDE's traditional role, to which this last condition is integral, though officially recognized by the inclusion of examples, such as "the strategic bombing", dwindles to an appendage of the supposed prohibitive function. Now Kaufman first expresses surprise (9-10) that I could have made the "elementary mistake" of claiming that the DDE's justificatory function is "separate", let alone "incompatible", with its prohibitive role. Apparently I should have realized that these two functions are just the two "sides" of the DDE, and so "inseparably linked". In support of this claim, he makes the remark I have already quoted linking harms that are permitted by the DDE with those that are foreseen but unintended, and harms that are prohibited with those that are intended. But my arguments were precisely designed to show that the DDE's prohibiting or permitting a harm cannot, without incurring the costs I described, be aligned in any simple way with the intention/foresight distinction. For Kaufman to insist that it can, and that the permission given by the DDE is just the other side of the coin of the (absolute) prohibition, and for no better reason than that "permission" and "prohibition", like "acquitting" and "convicting", are opposites, is just to reaffirm once more the prohibitive conception of the DDE.
Kaufman's apparent failure to recognize here that any attempted refutation must address my redundancy claim might suggest that this claim has escaped his notice. However in his next move (10) he shows himself to be not only aware of it but prepared to concede it. Indeed he gives the impression that he has himself all along appreciated that the fourth condition is, as he puts it, "something of an odd man out", an "odd further condition", and even goes so far as to pronounce, the DDE "perfectly intelligible without it".
He does not however attempt, as the only course then left open to him, to challenge my further claim that with an essentially defunct fourth condition, the DDE's traditional justificatory role is undermined. Instead he attempts to qualify his concession by suggesting that, though this "truncated version" of the DDE is generally "a reliable guide to permissible actions without its fourth condition coming into play", there is still one "problem" that the last condition is "designed to solve". This is to rule out the "morally monstrous" actions of an "Indifferent Evildoer", who for instance unconcernedly "maims passers by in order to fix his roof" or carelessly ploughs down pedestrians and cyclists just to "get to his destination on time".
Now it is surely quite inconceivable that any deontologist would so far entertain the possibility of these criminally negligent acts not being ruled out as to allow them on to even the first rung of the DDE's ladder. Kaufman however expects us to accept not merely this, but that the allegedly morally neutral intention with which they are performed will ensure that they slip uncensured as far as the fourth condition. Still more, he expects us to believe that they will then only be rejected because of their perpetrator's lack of a sense of proportion - which Kaufman calls the Indifferent Evildoer's tendency to "classic overkill".
However still more crucially, if we were willing, or able, to suspend our disbelief over this example, we should see that it tells against, rather than for, Kaufman and the writers he seeks to defend. This is because it confronts them, just as did "the strategic bombing", with two mutually exclusive and apparently equally valid ways of determining the permissibility of the action in question - one involving all four of the DDE's conditions, the other only the first three.
"The strategic bombing" however, as we described it, concerns an action whose intended good effects are proportionate to its unintended bad effects, and so turns out to be permissible whichever criterion is used. With the Indifferent Evildoer however, the unintended bad effects of his actions are, as Kaufman describes them, grossly disproportionate to the intended good ones. Thus these actions would seem to be permissible by the less-inclusive, but impermissible by the more inclusive, criterion. But the less-inclusive criterion, in only sifting the intended evils from the foreseen ones reflects a view of the DDE as mainly concerned to absolutely prohibit intrinsically bad actions and permit all the rest. The more-inclusive criterion however, involving all four of its conditions, represents the DDE as the kind of justificatory test for intrinsically good or neutral actions that we have claimed is its proper use. Kaufman's example thus (in so far as we can give it credence) makes even clearer, by showing how the two criteria can give conflicting results, how awkwardly unassimilated remains the DDE's justificatory function within an overall prohibitive framework.
Perhaps Kaufman has not foreseen this objection because he is unclear why he felt it necessary to invoke "the Indifferent Evildoer". My objection assumes, in keeping with the remarks that precede his introduction of this example, that he uses it to illustrate the one type of case where reference to the fourth condition, irrelevant in all other cases, is still required. However his subsequent remarks suggest that he actually holds, notwithstanding his earlier concession, that the fourth condition is relevant in all cases. Thus he now maintains (making no attempt in either statement to restrict the kind of action to which he is referring) that "even after an action has satisfied the first three conditions of the DDE it must still pass one more test" (14), and again that "If an action is otherwise permissible you must still examine whether the evil it causes is disproportionate" (16). It is tempting therefore to suppose that perhaps he takes "the Indifferent Evildoer" to illustrate no more than that with a "moral monster" of this sort we may need explicitly to apply the fourth condition, whereas with ordinary decent folk, who make up the vast majority, we can take its fulfilment for granted.
The remarks I have just quoted are associated with Kaufman's second attempt at refuting me, and here he belatedly, and despite his earlier apparent acceptance of my redundancy claim, now produces an argument against it. This argument, it soon becomes clear, turns upon a yet further misunderstanding of my position. According to him, I object to Foot's and others construal of the DDE because it entails that actions can be rejected as impermissible before they reach the fourth condition. But, Kaufman emphatically retorts - as though this really were a source of objection on my part - "of course the fourth condition is inapplicable to actions that are prohibited under the first three conditions" (16). If it were not, he cautions, continuing to address the fabricated objection, we would be allowing a wrong action to be reconsidered "in light of the greater good it may bring about". Thus he attempts to convict me of the "proportionalism" of "allowing a prohibited action to go forward just because it leads to the greater overall good", and so of being a rampant consequentialist.
But neither I, nor any rational person, not even a consequentialist buoyed up by wishful thinking, could seriously advocate such a nonsensical misuse of the DDE as is here attributed to me. How could anyone reasonably accept that the DDE's four conditions are only jointly sufficient for justifying an action unless they also recognized that failing to fulfil any one of them, even the first, entailed the action's summary rejection as prohibited?
Kaufman appears to have substituted this piece of "apparent illogic" (as he calls it, 16) for the claim I actually make. But my claim is that no genuine candidate for justification under the DDE can be accepted (not that it cannot be rejected), unless and until it has fulfilled all four conditions. It is this simple and (one would have thought) obvious truth that the writers I originally cited, and now Kaufman also, fail to face up to every time they speak of an action being permitted by the DDE in so far as it is not (absolutely) prohibited, yet continue to pay lip service to all four of the doctrine's conditions.
Despite its confusions, Kaufman's reply has been helpful in persuading me that I should have said more about just how the absolute prohibition against the intentional infliction of harm informs the DDE whilst still remaining in the background. The point is surely this: the DDE has its moorings in the deliberations of ordinary conscientious moral agents, seeking to do the right thing in specific types of conflict situation. But we can already expect such agents, just because they are decent, to subscribe in the abstract to the absolute prohibition. In practice however - and Mangan3 reminds us that the DDE is the most practical of all principles - it might be quite unclear to an individual whether, in performing a given action, he would be intending, or merely foreseeing, its bad effects.
I do not of course have in mind here Kaufman's "moral monster", whose actions, for the reasons I've indicated would be non-starters on the road to a moral justification. I am thinking rather of, to take just one example, the doctor who asks himself whether he might permissibly give morphine to relieve the agonizing pain of a terminally ill patient though he knows this is likely to shorten the patient's life by a few days. For this doctor, I would suggest, the second and third conditions of the DDE act as reminders that he must examine his motives carefully: could he perhaps be genuinely confused about why he is contemplating this course of action, or even self-deceived? Would the death of his patient really be an unwanted side-effect of pain relief, or a means, though he does not want to admit it to himself, of putting an end to unendurable suffering? None of this however entails that the crucial permission is given by the DDE as soon as it is established that the doctor does not intend the patient's death. Nor does it oblige us to bring the absolute prohibition in this way into the foreground.
It would also help writers to avoid this error if they would stop treating the DDE as the sole determinant of permissibility and impermissibility in a deontological morality. They would then not feel compelled to cram into the DDE more than the constraints of internal cohesion will allow. Here it is worth noting that Aquinas treats the question of whether homicide is ever permissible under eight separate heads, of which his consideration of an action with two effects, one intended and one merely foreseen (killing in self-defence) is only the seventh with, incidentally, culpable negligence as the eighth.
I have in the above tried to show how Kaufman, in the very attempt to counter my objections, has left the position he seeks to defend more exposed than ever. He thus does a disservice to those philosophers with whom he allies himself. Since, as I pointed out, their error has been enshrined in recent accounts of deontological moralities, where the DDE is invoked as the root-idea, it is perhaps of some importance that either a more plausible defence be found, or the error be generally acknowledged.
Of course I cannot address at equal length Kaufman's less central criticisms, all of which I reject. I would however point out that I did not claim, as Kaufman in a misquotation states that I do, to have myself "discovered an original use" (6) of the DDE in Aquinas's Summa Theologicae. I merely reported that the relevant passage "later came to be regarded as the original application of the DDE". That some oppose this view leaves, so far as I can see, the weight of scholarly opinion still firmly in its favour. But for this assessment I am indebted to Mangan's3 impeccable scholarly survey of the DDE's history and origins.
It is finally ironic that Kaufman is so concerned that the DDE should be treated as "a seamless whole", when I defended the traditional version which clearly has far more claim to be so described than the fractured and broken-backed version he, and so many others today, espouse.