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MORAL
PHILOSOPHY
brill.nl/jmp
Abstract
According to the Principle of Double Effect (PDE), there are conditions under which it
would be morally justifiable to cause some harm as a foreseen side-effect of ones action
even though it would not be justifiable to form and execute the intention of causing the
same harm. If we take the kind of justification in question to be that of moral permissibility,
this principle correctly maps common intuitions about when it would be permissible to act
in certain ways. T.M. Scanlon argues that the PDE so interpreted is problematic, as it returns
implausible verdicts in other scenarios. Scanlon is unable to account for the common
pattern of moral reasoning that we employ in the relevant cases. I argue that we can account
for this pattern while avoiding implausible verdicts if we interpret the PDE as a principle
about when it is licit to inflict harm rather than when it is permissible to do so, and if we
connect the concept of the licit with that of the permissible in the right way.
Keywords
Aquinas, double effect, intention, moral permissibility, Scanlon
DOI 10.1163/174552412X625763
I think Scanlon is right that the version of the PDE he considers has
implausible consequences. But I believe his solution is also inadequate.
The reason is that it cannot account for the common pattern of moral reasoning we employ in the relevant cases. My goal in this paper is accordingly
to offer an alternative. Crucially, I think that the PDE can be formulated in
two distinct ways, either as a principle about when it is morally permissible
to bring about some harm or as a principle about when it is licit to do so.1
While the concept of the licit is no doubt closely related to that of the permissible, I will argue that they are not equivalent.
In Section I, I distinguish these two versions of the PDE and I say why it
is often taken as a principle about when it is permissible to bring about
some harm. In section II I outline Scanlons complaint about the PDE, his
diagnosis of where it goes wrong, and I explain why I find Scanlons positive
view unsatisfying. I then turn to developing my alternative. In section III
I argue for the possibility of a class of moral principles that state that an
action would be licit or illicit rather than permissible or impermissible.
This is important because I think the PDE is best understood as just such a
principle. Finally, in section IV I argue, following William FitzPatrick, that
what it is permissible to do is a function of what it is licit to do. I then show
how this fact provides for a better explanation of when it is permissible or
impermissible to act in the relevant cases than the one offered by Scanlon.
I
The PDE discriminates against cases in which a harmful effect is both
brought about and intended by the agent of the harm and in favor of cases
in which the harmful effect is foreseen but not intended.2 The principle is
usually traced back to Aquinas discussion of self-defense in the Summa
theologiae. According to Aquinas, there are severe restrictions on when
deliberate killing is morally justifiable and on who may carry out the task.
He claims (1) that it is illicit for a private person to kill anyone, and (2) it is
illicit for a public official, in his role as representative of the state, to kill an
1
I will sometimes simply use the term permissible instead of morally permissible,
leaving it implicit that the sort of permissibility at issue in this paper is moral
permissibility.
2
Cf. Warren Quinn, Actions, Intentions, and Consequences: The Doctrine of Double
Effect, in W. Quinn, Morality and Action (Cambridge: Cambridge University Press, 2003),
pp. 175-93, at p. 176.
180
innocent person.3 Nonetheless, he does appear to allow that in certain circumstances a private person may, in the course of self-defense, justifiably
bring about the death of an attacker as a side-effect of her intended action.4
On this interpretation, he teaches that while a person may not aim at the
death of an attacker either as an end or means, she may licitly perform an
act that results in the death of the attacker so long as she does not aim at it
and certain other conditions are met. These conditions are that the defenders own life is being threatened and that the defender does not do more
harm to the assailant than is necessary to repel the attack. Therefore, e.g., if
the only way for one to escape from an aggressor who poses a lethal threat
would be to cripple him, then one may do so, even if a predictable consequence of striking his legs is that he will die of the wounds.5
Aquinas focuses on a case in which one may justifiably kill another.
However, today the PDE is normally taken as a more general principle,
whose topic is the bringing about of seriously harmful effects.6 The first
modern statement of the PDE in this more general way was by Jean-Pierre
Gury. Gurys formulation of the PDE, slightly simplified, is as follows7:
Summa theologiae (hereafter ST) IIaIIae Q.64 a.3; Summa theologica of Saint Thomas
Aquinas, 5 vols, trans. by the Fathers of the English Dominican Province (New York, NY:
Benziger Brothers, 1947; reprint, Westminster, MD: Christian Classics, 1981). The term innocent person refers either to a member of ones own political community who has not broken the law or to a member of another political community who is not an enemy combatant
or member of an enemy military establishment.
4
ST IIaIIae, Q.64, a.7.
5
This interpretation of Aquinas on self-defense is not uncontroversial. He says that the
death of the attacker must be praeter intentionem. Controversy arises because it is unclear
whether he means to assert by this phrase that the defender may not aim at the death of the
attack only as her end, or that she may not aim at his death as either an end or a means. For
a commentary on the issue, see J.T. Mangan, An Historical Analysis of the Principle of
Double Effect, Theological Studies, 10 (1949), pp. 41-61, at pp. 44-9.
6
Though in this paper I will be focusing on cases that involve killing, as is customary in
discussions of the PDE.
7
Jean-Pierre Gury, Compendium theologiae moralis, 5th edition (Regensburg: Georgii
Josephi Manz, 1874), reproduced in Mangan, An Historical Analysis of the Principle of
Double Effect, pp. 60-1. I have simplified Gurys formulation by omitting a fourth condition
that he includes, which states that the good effect must not be produced by the bad one. As
T.A. Cavanaugh argues, this fourth condition is either redundant or misleading. If it is supposed to assert that one may not produce the bad effect as a means to the good one, then it
is already provided for by the second clause. On the other hand, if the condition asserts that
the bad effect cannot be even a partial though not intended cause of the good one, then it
would rule out some actions that proponents of the PDE usually think are morally justified
(Double-Effect Reasoning: Doing Good and Avoiding Evil [Oxford: Clarendon Press, 2006],
p. 30).
3
One may licitly perform an action A that one foresees will produce both a
good effect and a harmful one just in case
(1)A is not itself a morally bad type of action,
(2)one intends to cause only the good effect and not the harmful one, as either
an end or means,
(3)one acts for a proportionately grave reason.
The PDE is meant to put constraints on the way in which one may pursue worthy ends. It thus functions as a principle of non-consequentialist
moral reasoning, and this fact is important for clarifying two points in its
formulation. First, clause (1) presupposes that some types of action are
morally bad, at least under certain circumstances, and these would plausibly include acts such as theft, adultery, and lying. Second, while in clause
(3) proportionately grave reasons for acting may include the fact that the
total amount of harm that will be produced if one does A is less than it
would be if one does not, such reasons need not be exhausted by considerations about the amount of harm ones action will bring about. Other grave
reasons might include, e.g., that if one does A one will be able to save ones
own life or that of someone to whom one has special obligations. What
constitutes proportionately grave reasons for acting is not itself specified
by the PDE, and determining it requires some degree of sound moral
intelligence.
While Gury formulates the PDE as a principle specifying conditions
under which it would be licit to perform a certain sort of action, both contemporary defenders of the principle and its detractors often substitute his
talk of liceity with that of moral permissibility.8 While the concepts of the
licit and the permissible are no doubt closely related, I will argue in Section
III that they are not equivalent. In the meantime it is enough to note that
we can prima facie distinguish between two different versions of the PDE, a
liceity version and a permissibility one. When Scanlon discusses the
PDE, he always has in mind the permissibility version of it.
One reason why the PDE tends to be formulated in terms of permissibility may be that when so formulated it is able to explain directly the moral
intuitions that many people have about when it would be permissible to
act in certain pairs of cases. Some standard examples of these cases are as
follows:
E.g., Judith Jarvis Thomson, Self-Defense, Philosophy and Public Affairs 20, pp. 283-310,
and Physician-Assisted Suicide: Two Moral Arguments, Ethics 109, pp. 497-518, Cavanaugh,
Double-Effect Reasoning.
8
182
184
provide the patient with a barbiturate drip. The drip will ease his suffering but will also suppress his respiration, causing him to die.
What should you tell the administrator? If the permissibility version of the
PDE is correct, you also need to know about the intentions of the doctor
who would administer the barbiturate drip. If the doctor administering the
drip would do so intending only to relieve the patients suffering, her act
would be permissible. But if the doctor would intend to relieve the patients
pain by killing him, and would administer the drip in order to execute this
intention, her act would be impermissible. So you should tell the administrator it is only permissible to give the patient the drip if the hospital has a
doctor who would administer the drip with the first set of intentions.
Otherwise, it is impermissible. This consequence seems wrong, though.
Whether it is permissible to give the patient a barbiturate drip here should
turn only on the facts provided in the description of the case. Whether the
hospital happens to have a doctor on hand who would administer the drip
with a certain intention should not be relevant.
Scanlon provides another example with this same shape11:
(f)Prime minister: You are the prime minister of a country at war. The
commander of the air force wants to know whether it would be morally permissible for one of his pilots to bomb a certain enemy munitions plant. The plant is so situated that its destruction would inevitably
cause the death of a number of civilians, thereby undermining support
for the war among the enemy population.
Again, it would be strange to say that the operation could go through if it is
the intention of the bombing pilot merely to destroy the plant for the sake
of victory, but that it would have to be called off if he (also) intends to kill
the civilians.12
Why do these cases cause trouble for the permissibility version of the
PDE? According to it, whether or not an action is permissible or impermissible turns on the state of mind (the motive or intention) of the agent
who performs it. The motives and intentions with which an agent performs
an action in turn tell us something about the quality of her will, such as
11
T.M. Scanlon, Moral Dimensions: Permissibility, Meaning, Blame (Cambridge, MA:
Belknap Press of Harvard University Press, 2008), p. 20.
12
Cf. Thomson, Self-Defense, p. 292. Scanlon also thinks that the PDE leads to the
implausible result that one may not turn the trolley in Thomsons Loop variation of the
trolley problem (Moral Dimensions, p. 18). However, it is not at all clear to me that this verdict really is implausible. I therefore concentrate on counterexamples that are less likely to
be controversial.
whether it is virtuous or vicious. Now, we can define a category of act evaluation that evaluates actions by reference to the quality of the will of the
agent who performs them. We can say that one acts well just in case ones
action is a manifestation of a good will, and that one acts badly just in
case it manifests a bad will. But what cases such as Ethics committee and
Prime minister show is that evaluations of acts as permissible or impermissible evaluate them in a way that is independent of the quality of the will of
the agent of those acts. For example, whether a doctor who gives the suffering patient a barbiturate drip in Ethics committee acts permissibly does not
hang on whether she does so out of a virtuous motive. We can suppose that
a doctor who gives the patient the drip with the intention of killing him
acts badly, but this just shows that one can perform a permissible act for a
bad reason. The permissibility version of the PDE is mistaken because it
supposes that the permissibility or impermissibility of an action is determined by the quality of will of its agent.
Scanlon diagnoses the source of this mistake in a failure to distinguish
between two uses of moral principles, which he calls their deliberative
employment and their employment as standards of criticism.13 In their
deliberative employment, moral principles guide agents as they engage in
practical reasoning. What is important here is that principles guide agents
by citing certain types of action together with features of potential situations that generally obtain independently of the state of mind of the deliberating agent. For instance, the fact that a certain item in ones possession
belongs to another and the fact that she is asking for its return make it
impermissible to refuse to give it back, so long as certain other conditions
hold, e.g., the person whose item it is does not plan on using it to harm
another.
Besides being guides to deliberation, moral principles are also employed
as standards of criticism. When we use moral principles in this way they
enable us to answer the question whether an agent who did A, or who is
doing it or who will do it, in some actual or hypothetical situation acted
well or badly by doing A under those circumstances.14 When we evaluate an
agent in this way we do inquire into her psychological states, but we do so
in order to assess whether she took the proper moral principles into
account during her deliberation, whether she gave them their proper
weight, and if she failed to do one or both of these, whether her failure was
due to reasonable ignorance.
13
14
186
16
III
Before doing so, however, I first want to question Scanlons diagnosis of
what makes the permissibility version of the PDE problematic. Recall that
his central premise is that in their role as guides to deliberation, moral principles guide agents practical reasoning by citing features of potential circumstances that would count for or against the performance of certain
types of action in those circumstances. From this premise Scanlon infers
that whether an action is morally justified is not dependent on the state of
mind with which it is performed. Note that while he applies this point only
to one specific kind of moral justification, permissibility, his point is a general one about a constraint that the deliberative function of moral principles allegedly places on moral justification.
This is important because besides evaluating whether a certain action is
morally permissible or impermissible we may also evaluate whether it is a
case of acting well or badly. But to say that an agent acts well is also to say
that her act is morally justified in some sense. Scanlon recognizes this, but
according to him whether an agent acts well or badly is determined by
whether she gives the appropriate moral principles their due weight in her
deliberation, and the only kind of principle he considers is the kind that
states that the performance of some action would be permissible or
impermissible.
However, while Scanlon does not countenance the possibility of principles that say directly of certain actions that an agent who performs them
acts well or badly, it is far from clear that we can do without such principles. Consider again the bombing pilot from the Prime minister case.17
Recall that in this scenario, a pilot has the task of bombing a munitions
plant that is situated in such a way that its destruction will also kill a number of civilians, undermining support for the war among the enemy population. Scanlon wants to say that the act of bombing the munitions plant is
permissible because conditions are such that the prohibition on the use of
lethal force that normally obtains is here not in effect. He also wants to say
that if the pilot destroys the plant with the intention of terrorizing the population he does not act well. On Scanlons view if the pilot does not act well
it must be because he did not take the proper moral principles into account
in his practical deliberation. When Scanlon says the pilot does not act well
See page 8.
17
188
190
to it that she executes in acting. (This does not impugn the point that when
one forms intentions one normally has some knowledge or beliefs that the
execution of those intentions will have certain non-intended side-effects.)
So, e.g., even though Aquinass second precept against killing says that one
may not kill an innocent human being, its effect is to tell a human agent to
avoid forming and executing the intention to kill an innocent human being
in answer to the practical question what to do.
Why is forming and executing an intention to act in a way that violates
one of these two precepts illicit? The precepts against killing fall within the
scope of justice, and what grounds the norms of justice, on Aquinas view,
is the fact that human beings need to live together in order to achieve their
good. This is both because social life makes it easier to achieve goods like
food, shelter, and knowledge, and because some distinctively human
goods, such as friendship, are irreducibly common ones. He summarizes
this conception of justice by quoting Ciceros dictum that the object of
justice is to keep men together in society and mutual intercourse.22 Social
life would be impossible if people went about forming and executing intentions to kill one another, and the just human being is thus guided by the
precept commanding her not to kill. Of course, a conception of justice must
also include principles for dealing with criminals and outside aggressors
who would harm a political community. Protecting the community is the
function of the state, whose role it is to provide for the common good.
Hence there is a difference in the norms that govern just behavior towards
others by private citizens and those that govern such behavior by public
officials.23
A human being who violates Aquinas two precepts acts illicitly insofar
as she acts contrary to the virtue of justice. But they do not cover the entire
field of justice, even as it relates to the infliction of lethal harm. They rule
out forming and executing the intention to kill, either as end or means, but
they say nothing about when it is licit to perform an action that will bring
about lethal harm to others, where the harm is not intended by the agent
who causes it. Here a reasonable precept is that the chosen action must
not itself be illicit and that ones reason for causing non-intended harm is
22
ST IIaIIae Q.58 a.2 sc; the quote is from On Duties i,7. Cicero, On Duties, ed. by
M.T. Griffin and A.T. Atkins, trans. by Margaret Atkins (Cambridge: Cambridge University
Press, 1991).
23
Although I have merely sketched a justification for these precepts, I believe that it can
serve as the beginning of a response to Scanlons charge that there is no theoretical explanation for why intention should make a moral difference (Moral Dimensions, p. 18).
192
By itself the liceity version of the PDE does not offer any guidance about
this case. Therefore, if the PDE is to be of use in cases like this, we must still
do some work to connect the concepts of the licit and illicit with those of
the permissible and impermissible. Yet I think there are three positive conclusions we can draw at this point. First, simply because it does not mention permissibility, the liceity version of the PDE does not generate the
bizarre consequence in this sort of case that the permissibility version does.
Second, the liceity version of the PDE can explain why even what I called
the conscientious vicious pilot would be acting badly in the conditions
described in this scenario.26 The conscientious vicious pilot acts illicitly,
and hence badly, because he destroys the munitions plant with the intention of killing enemy civilians. Scanlons own approach could not account
for this judgment.
Finally, if the argument of this section is correct, Scanlons diagnosis of
the permissibility version of the PDE cannot be the real source of the
implausible verdicts to which it gives rise. I have shown that even if we
grant that moral principles should not refer to an agents psychological
states in their content, this does not imply that the moral discriminations
they make cannot be sensitive to an agents intentions. At the same time,
I believe my criticism of his diagnosis suggests a different one, namely, that
where the permissibility version of the PDE goes wrong is that it confuses
the notions of liceity and permissibility. The PDE is fine when it is stated in
terms of the first of these concepts, but it runs into trouble if we slide from
it to the second. Our next task should therefore be to try to understand how
they are related. An additional benefit of doing so is that our discussion will
bring into view a more satisfying explanation of when it is permissible to
act in the pairs of cases (a)-(d) from Section I.
IV
What is the connection between the properties of being licit and being permissible? In a recent article FitzPatrick contends that a certain type of
action is permissible just in case there exists a justification for it in terms of
a sufficiently worthy end that can be pursued through so acting without
intending anything illicit as a means.27 While I do not think FitzPatricks
See page 13.
William J. FitzPatrick, Acts, Intentions, and Moral Permissibility: In Defense of the
Doctrine of Double Effect, Analysis 63 (2003), pp. 317-21.
26
27
claim that this is what proponents of the PDE have actually meant by that
principle can withstand historical scrutiny, his account of the relation
between the property of being permissible and that of being licit is a promising one.
What cases such as Ethics committee and Prime minister show is that the
fact that one acts badly is sometimes compatible with its being the case
that the type of act one performs is not one that is in itself something one
must refrain from doing. An agent can act badly in doing something that is
itself morally permissible by doing it from a bad motive. But saying that a
certain act A is one that is not in itself one that an agent must refrain from
doing in circumstance C is equivalent to saying that it is not necessarily the
case that doing A is illicit in C. This suggests the following metanormative
principle:
(P1) It is permissible for S to do A in C just in case A could be licitly per
formed in C.
When combined with the liceity version of the PDE, (P1) explains why, for
instance, the pilot mentioned in Prime minister who bombs a munitions
plant in order to kill civilians performs a permissible act, even though he
acts illicitly in bombing it with that intention. The reason is that one could
licitly bomb the munitions plant in this case, for one would be acting licitly
if one bombed the plant in order to weaken the enemy military.
(P1) needs to be refined, however. After all, one might think that an
agent could do almost anything in a given situation without thereby acting
illicitly if she were sufficiently ignorant or misinformed about her circumstances. We must therefore qualify it in such a way that it will yield a more
determinate norm for the guidance of action. One suggestion would be that
it is permissible to do what one could licitly do under ideal epistemic conditions, i.e.:
(P2) It is permissible for S to do A in C just in case A could licitly be
performed in C in light of full knowledge of the circumstances.
Yet this is not quite right either. It seems that it is sometimes the case
that it is both permissible and licit for an agent to perform an action only
because she is ignorant or misinformed about some feature of the situation. For instance, suppose that I am charged with the care of Baby and
I have every reason to think substance X will make him strong and healthy.
Unbeknownst to me, however, Baby has a genetic defect that is difficult to
detect and makes substance X toxic to him. In this case it seems right to say
that I do not act either illicitly or impermissibly in giving Baby substance X,
194
but this is so only because I do not know about his defect.28 If I did know, or
justifiably believe, that substance X is toxic to him, my giving it to him
would be both illicit and impermissible. Therefore, it is permissible for me
to give Baby substance X even though it would not be licit for me to give it
to him if I had full knowledge of the facts.
Ignorance and misinformation do not always affect permissibility or licitness, though. It is important to the previous example that Babys genetic
defect is difficult to detect and that I have good reason to believe substance
X will be beneficial rather than harmful to him. If we imagine instead that
I have good reason for being suspicious about its effect on him, or that it
would have been relatively easy for me to learn he has a condition that
would render it toxic to him, then my act of giving it to him would not be
either licit or permissible. It therefore makes a difference whether my ignorance of the effect of substance X is reasonable or not given the body of
evidence that is available to me or could become available to me with a
certain amount of inquiry. If we incorporate this into our principle, we
arrive at:
(P3) It is permissible for S to do A in C just in case A could licitly be
performed in C in light of reasonable beliefs about the circumstances.
Just as it takes some degree of moral intelligence to determine what constitutes a proportionately grave reason for acting, so too it requires sound
moral judgment to distinguish between instances in which an agents
beliefs are reasonable given the available evidence from those in which
they are not, e.g., due to culpable negligence. But the fact that it relies on
such a notion does not render (P3) too vague to be useful. The concept of
reasonable belief is a familiar one that is used in other sorts of moral
and legal reasoning, and while it leaves room for hard cases, this is as it
should be.
When the PDE is formulated in terms of permissibility, it gives rise to
implausible results. However, if we formulate it instead in terms of liceity
28
Thomson denies that I would be acting permissibly here. If I give Baby substance X in
these circumstances, I will no doubt regret doing so afterwards, and this underwrites the
thought that there is a sense of ought in which it is true that I ought not to give it to him.
In Thomsons terminology I objectively ought not to give him substance X. Thomson
claims that the fact that one objectively ought not to do A entails that it is impermissible for
one to do it. (The Realm of Rights [Cambridge MA: Harvard University Press], p. 233).
Scanlon disagrees on the ground that ought in this highly general sense lacks the moral
content of the notion of permissibility (Moral Dimensions, pp. 48-52). Intuitively, this seems
correct.
196
onto the main track without intending that he be hit by the trolley, in light
of reasonable beliefs about the circumstances and without acting illicitly.
For this to be so, there would have to be some other end E that the act
of pushing him onto the track would promote, though a non-intended
consequence of this action would be the bystanders being hit by the trolley. It would also have to be the case that E provided a proportionately
grave reason for causing lethal harm to the bystander. There does not
appear to exist any such end in this case, at least as it has been so far
described. But when we construct such thought experiments we do so supposing that other things are equal and we have been given all the information about the case that might be morally relevant. I therefore conclude
that by (P3) it would be impermissible to push the bystander onto the
track.31 The explanation of when it is permissible or impermissible to act in
cases (b, i) and (b, ii), (c, i) and (c, ii), and (d, i) and (d, ii) is essentially the
same.32
Any ethical theory must include an account of the relation between two
categories of evaluation: evaluations of actions and those of agents. The
overall shape of a theory will be determined in part by whether it sees one
of these two categories as more fundamental, and if so, which one. Classical
utilitarianism is an example of a theory on which the evaluation of action is
fundamental: actions are good or right if and only if they bring about the
maximum quantity of happiness, where this is capable of being determined
Morality and Consequences, The Tanner Lectures on Human Values II (Salt Lake City, UT:
University of Utah Press, 1981), pp. 111-3. For instance, it is contended that the agent who
pushes the bystander onto the track does not intend to harm the bystander but merely that
his body halt the trolley. This is shown by the fact that if the bystander were somehow to
miraculously survive being run over unharmed, it would not be the case that the agent
would have failed in executing the intention she set out to execute. But if someone shows an
unjust will in her intention to kill or seriously harm another, than whatever reasons make
this illicit will also surely make it the case that one acts illicitly in executing the intention to
do some action that will, but for the grace of fate, be lethal or seriously harmful even if that
outcome is not logically necessary.
31
Perhaps we could construct a variation of the case on which it would be possible to
accomplish some proportionately good end by pushing the bystander onto the track without intending that he be hit by the trolley due to an elaborate series of causal coincidences,
or in which the agent could act licitly due to the fact that she is reasonably ignorant or misinformed about a morally relevant fact. But I think it is plausible that in such a case it would
be permissible to push the bystander onto the track.
32
Again, it is arguable that in (d, ii) one must intend to kill the workers in the munitions
plant if one intends to destroy it. But the case is special because it involves a soldier acting
in times of war. What is important is that even in this case, the solider may not licitly form
and execute the intention to kill the patients in the nearby hospital (see page 7, n. 9).
198
prior to any theory about what makes an agent a good one. Agents are good
insofar as they take the principle of utility into account in their practical
deliberation. In opposition to this is a theory that takes as its starting point
the virtues and vices characteristic of human life. In her essay Modern
Moral Philosophy Anscombe suggests such an ethical theory33:
It might remain to look for norms in human virtues: just as man has so many
teeth, which is certainly not the average number of teeth men have, but is the
number of teeth for the species, so perhaps the species man, regarded not just
biologically, but from the point of view of the activity of thought and choice in
regard to the various departments of lifepowers and faculties and use of
things neededhas such-and-such virtues: and this man with the complete
set of virtues is the norm, as man with, e.g., a complete set of teeth is a
norm.
33
34
and a liceity version. I agree that the permissibility version of the PDE is
inadequate, but I think this shows that it is best understood as the liceity
version.
Scanlon offers an alternative diagnosis of double effect. According to
him, the reason the permissibility version of the PDE (the only version he
considers) fails is that it confuses two employments of moral principles,
their use as guides to deliberation, and their use as standards of criticism.
He thinks that since moral principles function as guides to deliberation
they cite features of circumstances that would count for or against the performance of certain types of action, and therefore whether an action is
morally justified is not dependent on the state of mind with which it is
performed. I have argued, however, that from the fact that moral principles
do not mention the intentions in their content it does not follow that they
cannot exclude acting with certain intentions.
The permissibility version of the PDE is supposed to explain why it is
permissible or impermissible to act in cases such as our (a)-(d). If Scanlon
is correct, the reason it is permissible to act in the specified way in (a, ii), (b,
ii), (c, ii), and (d, ii) is that in each of these cases a different exception to the
general prohibition against killing is in force. There is no single explanation
behind each of these exceptions, however, and this is unsatisfying. My final
task has been to provide an account that avoids this feature of Scanlons
proposal. The liceity version of the PDE and (P3) together yield a single
explanation of why it is permissible to act in the second case in each pair
but not in the first while being immune to the counterexamples that befall
the permissibility version of the PDE.35
35
I would like to thank John McDowell, Kieran Setiya, and an anonymous reviewer for
their comments on an earlier draft of this paper.