JOURNAL OF

MORAL
PHILOSOPHY

Journal of Moral Philosophy 9 (2012) 178199

brill.nl/jmp

A Critique of Scanlon on Double Effect

Joshua Stuchlik

Department of Philosopy, University of St. Thomas, St. Paul MN, USA

jstuchlik@stthomas.edu

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

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 the intuitions of many people about whether it would
be permissible to perform a specified action in certain philosophical
thought experiments. However, in Moral Dimensions T.M. Scanlon argues
that the PDE so interpreted is problematic, as it returns implausible verdicts in other scenarios. On his diagnosis this results from the fact that the
PDE confuses two uses of moral principles, their use as guides to deliberation and their use as standards of criticism. Scanlon contends that in order
to explain why it is sometimes permissible to act in the cases to which the
PDE is typically applied we must recognize that moral principles have
exceptions, where the nature of these exceptions varies from case to case.
Koninklijke Brill NV, Leiden, 2012

DOI 10.1163/174552412X625763

J. Stuchlik / Journal of Moral Philosophy 9 (2012) 178199 179

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.

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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).
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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.
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(a, i)Trolley/push: A runaway trolley is speeding along a track towards five

trapped workers. One could save the five workers if one were to push
a lone bystander onto the track, bringing the trolley to a halt.
(a, ii)Trolley/switch: The same as above, except this time one could save
the five by operating a switch that would turn the trolley onto a side
track where there is one trapped worker who would then be run over
by it.
It seems that it would be impermissible to push the bystander onto the
track in (a, i), yet it would be permissible to divert the trolley onto the side
track in (a, ii).
(b, i)Craniotomy: A womans life is in danger due to complications with
her pregnancy. The only way to save her life would be to remove the
unborn fetus by performing a craniotomy.
(b, ii)Hysterectomy: A womans life is in danger due to a cancerous uterus.
The only way to save her life is to remove the uterus by performing a
hysterectomy. However, the woman is pregnant and the fetus she is
carrying will die when the uterus is removed.
If we assume the fetus is a person, or a being with rights, it would be impermissible to perform the craniotomy on it in (b, i). On the other hand, it also
appears to be permissible to perform the hysterectomy in (b, ii).
(c, i)Shipwrecked: A submarine crew has been shipwrecked on a desert
island. They are awaiting rescue but have run out of food. The only
way to prevent the starvation of the whole crew is to kill one of its
members and use his body for nutrition.
(c, ii)Submarine attack: A surfaced submarine is under attack by enemy
planes. In order to prevent it from being destroyed, it must be submerged. But one crewmember is trapped above deck and will drown
when the sub submerges.
It would not be permissible to kill the one to save the rest of the crew
from starvation in (c,i). However, it would be permissible to submerge
the submarine in (c, ii), even though it will result in the death of a
crewmember.
(d, i)Terror bombing: A pilot could help his country win a war by bombing
civilian residences. The effect of the bombing would be to terrorize
the enemys people, thus undermining their support for the war.
(d, ii)Tactical bombing: A pilot could help his countrys war effort by
bombing an enemy munitions plant. There is a hospital nearby,

J. Stuchlik / Journal of Moral Philosophy 9 (2012) 178199 183

though, and if the pilot destroys the plant a number of civilian

patients will be killed as a result of collateral damage.
The pilot in (d, i) would act impermissibly were he to bomb the civilian
residences, but the pilot in (d, ii) would act permissibly if he bombed the
munitions plant.
The permissibility version of the PDE has an elegant explanation for the
common moral intuitions about these pairs of cases. It says that while it is
always impermissible for one to form and execute the intention to harm
another, it is permissible to cause harm as a foreseen but not intended sideeffect of ones action, provided there is a serious enough reason for doing
so. Therefore, the reason an agent would act impermissibly if she were to
perform the actions under consideration in (a, i), (b, i), (c, i), and (d, i) is
that in each of these cases she would intend to kill another, or some others,
as a means to bringing about her good end. By contrast, it would be permissible for an agent to act in the specified way in (a, ii), (b, ii), (c, ii), and (d, ii)
if she did not intend to kill anyone she may not intend to kill as the means
to her good end, but merely foresaw their death.9
II
Even though it provides an explanation of common moral intuitions in the
pairs of cases above, if the PDE is formulated as a principle that makes the
permissibility of action dependent on the intention with which it is performed then it also has problematic consequences. Scanlons central objection is that it returns bizarre verdicts about whether it is permissible to act
in certain other cases. Consider the following scenario10:
(e)Ethics committee: You are a member of a hospital ethics committee.
There is a patient in the hospital who is suffering severe pain. The hospitals administrator asks you whether it is morally permissible to
9
I say the agent would not intend to kill anyone; she may not intend to kill for the following reason. It might be argued that in (d, ii) one cannot form and execute the intention
to destroy the munitions plant without intending lethal harm to any workers within it. But
it is still intuitively permissible to intend to destroy the plant. Here we must take into
account the fact that in this case one is acting as an officer of the state. This fact is morally
significant, as Aquinas points out. It appears that Gurys formulation of the PDE is directed
at agents acting as private citizens, not as soldiers in times of war.
10
Similar examples involving pain relief and euthanasia are put forward by Thomson,
Physician-Assisted Suicide: Two Moral Arguments, pp. 514-6.

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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.

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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

Scanlon, Moral Dimensions, pp. 22-3.

Scanlon, Moral Dimensions, pp. 22-4.

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Scanlon agrees that if the pilot mentioned in Prime minister were to

bomb the munitions plant with the intention of bringing about the death
of nearby non-combatants he would not be acting well, and his intention
should be abandoned. But he denies that this intention determines whether
it is permissible for the pilot to bomb the plant. On his view, what makes it
the case that the bombing is permissible is that one may use lethal force
when its use can be expected to bring about a military advantage, the
advantage is proportionately weighty compared with the number of
expected civilian deaths, and the threat to civilians is as minimal as possible given the end of attaining the advantage.15
Scanlon regards the permissibility of bombing the munitions plant as an
exception to a general prohibition on the use of lethal force. It is obvious,
though, that this will apply only to (d, ii) above. He must appeal to other
sorts of exceptions to explain why it is permissible or impermissible to act
in the other pairs of cases. For instance, he believes that cases such as (a, ii)
show that it is sometimes permissible to act in ways one expects will cause
death if it is the only way to prevent the deaths of a greater number. But this
is not always the case, as is shown by (a, i). To say why turning the trolley
onto the side track is permissible while pushing a bystander onto the track
is is not, we must further refine when the general prohibition on killing
allows for exceptions.
Scanlons explanation is deeply unsatisfying. Intuitively, the pairs of
cases (a)-(d) in Section I all have something in common above and beyond
the fact that in each of them it is permissible to act only in the second case
in each pair. It appears that we are responding to a general feature or features present in the diverse cases when we make our moral judgments
about them, and it is a virtue of the permissibility version of the PDE that
it proposes a single explanation of why it is permissible to act when it is.
Yet if Scanlon is correct, this appearance is deeply misleading. The reason
it is permissible to act in the second case of each pair is that a different
exception to the general prohibition on killing is in force in those cases, and
these exceptions form a mere heap with no internal unity.16 I take it that this
is a serious shortcoming of his analysis, and that one that avoids it would
therefore be prima facie preferable. In the rest of this paper I will attempt to
provide such an analysis.

Scanlon, Moral Dimensions, p. 28.

Scanlon recognizes this aspect of his view but does not make anything of it (Moral
Dimensions, p. 36).
15

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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.

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in intending to terrorize the enemy population he thus seems to have in

mind what we might call the unconscientious vicious pilot. What makes
this pilot unconscientious is that he bombs the munitions plant without so
much as considering whether it is permissible to do so. He simply does
not care. But we might also fill out the case in such a way that the pilot,
though vicious, is also more conscientious. This pilot differs from the
unconscientious vicious one in that he takes the relevant moral principle
into account before he decides to bomb the munitions plant with the intention of killing the civilians and thereby causing terror. He first makes sure
that an exception obtains and that it is permissible to bomb the plant
before he does so in order to kill the civilians. It seems that even though this
pilot is conscientious, he still acts badly insofar as he intends to kill the
civilians. Yet there seems to be nothing in Scanlons account that would
legitimate such a judgment. What would enable us to account for the judgment that the conscientious vicious pilot acts badly would be the existence
of a moral principle stating that one who kills citizens in times of war acts
badly.
The reason that Scanlon does not consider the existence of principles
that specify that certain actions are cases of acting badly is not hard to
find. It is because he endorses the following inference: since moral principles cite features of potential circumstances that count for or against
the performance of a certain action rather than states of mind of the agent,
whether an action is morally justified is not dependent on the state of mind
with which it is performed. But whether an agent acts well or badly in certain circumstances does depend on the intentions with which she acts.
Therefore, if the inference is a good one, there can be no such principles.
I want to challenge the goodness of this inference. Its validity depends
on the additional assumption that the only way moral principles could
allow or prohibit acting with certain intentions would be by specifying that
this is so as part of their content, and this assumption is false. For rather
than stating, e.g., that one would be acting badly in intending to do A, principles of this sort could state that one would be acting badly in doing A, but
in a context in which it is understood that such principles are meant to
guide ones choices in a sense of choice that implies that if one does A by
choosing to do it, one will have executed the intention to do A.
I say these principles guide choice in this particular sense because the
term choice is ambiguous. As Michael Bratman notes, when an agent
deliberates practically standards of clear-headedness and intellectual
honesty require her to consider the likely effects of possible courses of
action, or I would add, at least those likely effects that might be morally

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relevant in her circumstances.18 At the conclusion of her deliberation the

agent chooses, in a broad sense of choice, a course of action that includes
all these various effects. Yet this does not entail that she intends them all.
Rather, she forms intentions only to perform those acts that figure as an
end or the means to that end in her adopted plan of action, and these acts
of intention formation could also naturally be called acts of choice. So in a
broad sense an agent chooses a total package that includes both intended
and foreseen effects while in a narrow sense she chooses only the end at
which she thereby aims and the means to it. My point above is simply that
there is nothing illegitimate about the existence of a class of moral principles whose job it is to guide what an agent chooses to do in the narrow
sense.
We can understand Aquinas two precepts against killing that I referred
to in Section I as belonging to this class of principles.19 These principles
were (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 innocent person. Following G.E.M. Anscombe, let us say that an action is illicit
just in case it is contrary to one of the virtues the lack of which makes it the
case that a human being is bad qua human being, while an action is licit
just in case it is not illicit.20 Therefore, to say that an action is illicit implies
that the agent who performs it does not act well, with a good will or as virtue requires, and to say that an agent acts licitly implies she does act well.
Aquinas tells us that all moral precepts are more determinate specifications of the highest practical principle: do good and avoid evil.21 The function of moral precepts is to guide rational agents who reason practically in
order to arrive at a response to the practical question what to do. Since
practical reasoning is directed at action, an agents response to this question consists in the formulation of intentions for an end and for the means
Michael E. Bratman, Intention, Plans, and Practical Reason (Stanford, CA: CSLI
Publications, 1999), pp. 154-5.
19
I believe this is how Aquinas himself means us to understand these principles. My purposes are not primarily exegetical, however. Even if I am incorrect on the interpretative
issue, the central point for my argument is that we can understand his principles in this way
and that doing so will ultimately help shed light on the PDE in the way I go on to argue.
20
G.E.M. Anscombe Modern Moral Philosophy, in G.E.M. Anscombe, Collected
Philosophical Papers, Volume III: Ethics, Religion and Politics (Oxford: Basil Blackwell,
1981), pp. 26-42 at p. 30. Her actual claim is that this definition yields a concept that is coextensional with that of the illicit. To be illicit literally means to be contrary to law, and she
is notorious for claiming that the concept of a law makes no sense without that of a lawgiver.
I set aside questions about whether this worry is a legitimate one here.
21
ST IaIIae Q.94 a.2.
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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).

J. Stuchlik / Journal of Moral Philosophy 9 (2012) 178199 191

proportionately grave in relation to the amount of harm caused. Thus the

precept in question might say, One may do something that will result in
the death of another, just in case what one does is not itself illicit and one
does it for a proportionately grave reason.24 If we add this precept to the
two that Aquinas provides, the result is the following claims:
(1)Acting as a private citizen, one may licitly perform an action A that
one foresees will both have a good effect and kill another or some others just in case
(i)doing A is not itself illicit,
(ii)one intends to cause only the good effect and does not intend to
kill the other(s) either as an end or means,
(iii)one does A for a proportionately grave reason.
(2)Acting as a public official, one may licitly perform an action A that one
foresees will both have a good effect and kill another or some other
innocent people just in case
(i)doing A is not itself illicit,
(ii)one intends to cause only the good effect and does not intend to
kill the other(s) as either an end or means,
(iii)one does A for a proportionately grave reason.
Claims (1) and (2) should bring to mind Gurys formulation of the PDE
as a principle about when it is licit to perform a harmful act, for they are
simply an application of it to the case of killing when the distinction
between the roles of private citizen and officer of the state is taken into
account.25
If we formulate the PDE as a principle of when it is licit to perform a
harmful action, it is silent about when it would be morally permissible to
act. For instance, consider again the case 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.
24
Since this precept is understood to govern the intentions one forms and executes, killing another and doing something that will result in the death of another do not pick out
the same classes of actions. The reason is that it is possible to form the intention to perform
an act A that will result in the death of S without forming the intention to kill S. Ss death
may merely be a foreseen side-effect of doing A.
25
For Gurys formulation, see page 4.

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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

J. Stuchlik / Journal of Moral Philosophy 9 (2012) 178199 193

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,

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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.

J. Stuchlik / Journal of Moral Philosophy 9 (2012) 178199 195

and take what is permissible to do as a function of what is licit to do along

the lines of (P3), we avoid these results.29 For instance, recall the Ethics committee case:
You are a member of a hospital ethics committee. There is a patient in
the hospital who is suffering severe pain. The hospitals administrator
asks you whether it is morally permissible to provide the patient with a
barbiturate drip. The drip will ease his suffering but will also suppress
his respiration, causing him to die.
If you reasoned in accordance with the view I have presented here, the
answer would be that administering the barbiturate drip is a permissible
procedure. The reason is that it would be possible for a doctor to administer the drip for the proportionately good end of relieving the patients pain,
without also administering it in order to kill him as a means of ending his
suffering, in light of reasonable beliefs about the circumstances. However,
if some particular doctor were to administer the medication in order to kill
the patient as a means to relieving his suffering then that particular doctor
would act illicitly. The same sort of reasoning applies to Prime minister.
This solution also provides us with a single explanation of why it is permissible or impermissible to act in the four pairs of cases (a)-(d). Recall,
Scanlons account in terms of exceptions to a general prohibition on killing
was unsatisfactory precisely in that it failed to account for the common
pattern of moral reasoning that appears to be at work in these cases. They
were:
(a, i)Trolley/push: A runaway trolley is speeding along a track towards
five trapped workers. One could save the five workers if one were to
push a lone bystander onto the track, bringing the trolley to a halt.
(a, ii)Trolley/switch: The same as above, except this time one could save
the five by operating a switch that would turn the trolley onto a side
track where there is one trapped worker who would then be run over
by it.
(b, i)Craniotomy: A womans life is in danger due to complications with
her pregnancy. The only way to save her life would be to remove the
unborn fetus by performing a craniotomy.
(b, ii)Hysterectomy: A womans life is in danger due to a cancerous uterus.
The only way to save her life is to remove the uterus by performing a
29
Cf. FitzPatrick, Acts, Intentions, and Moral Permissibility: In Defense of the Doctrine
of Double Effect, pp. 319-20. FitzPatrick uses the principle I have labeled (P1) rather than
(P3).

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hysterectomy. However, the woman is pregnant and the fetus she is

carrying will die when the uterus is removed.
(c, i)Shipwrecked: A submarine crew has been shipwrecked on a desert
island. They are awaiting rescue but have run out of food. The only
way to prevent the starvation of the whole crew is to kill one of its
members and use his body for nutrition.
(c, ii)Submarine attack: A surfaced submarine is under attack by enemy
planes. In order to prevent it from being destroyed, it must be submerged. But one crewmember is trapped above deck and will drown
when the sub submerges.
(d, i)Terror bombing: A pilot could help his country win a war by bombing
civilian residences. The effect of the bombing would be to terrorize
the enemys people, thus undermining their support for the war.
(d, ii)Tactical bombing: A pilot could help his countrys war effort by
bombing an enemy munitions plant. There is a hospital nearby,
though, and if the pilot destroys the plant a number of civilian
patients will be killed as a result of collateral damage.
In each of these pairs of cases it seems that it is impermissible to perform
the action under consideration in the first of each pair and that it is permissible to perform the action under consideration in the second.
I will concentrate on cases (a, i) and (a, ii). The liceity version of the PDE
together with principle (P3) explains why in (a, ii) it would be permissible
to turn the trolley onto the side track. According to the PDE, one would
licitly turn the trolley on the side track if one turned it with the intention of
saving the five trapped workers and if one did not thereby intend to kill the
one. Since it is possible for one to licitly turn the trolley in light of reasonable beliefs about the situation, (P3) tells us that it is permissible to do so.
These two principles also yield the conclusion that it is impermissible to
push someone onto the main track in (a, i). One might push the bystander
onto the track in order to save the five people who are trapped on it. This
would be so if ones plan were to use the bystander as a barricade that
would stop the trolley upon impact. It would be illicit to act in this way,
though, for in doing so one would intend to cause lethal harm to the
bystander.30 We must also consider whether one could push the bystander
30
In the literature on the PDE one sometimes encounters the objection that in a situation like this the agent aiming at bringing about the good end need not intend the lethal
harm to the victim whom she affects in the course of her attempt to realize it., e.g., H.L.A.
Hart, Intention and Punishment, The Oxford Review 4 (1967), pp. 5-22, Jonathan Bennett,

J. Stuchlik / Journal of Moral Philosophy 9 (2012) 178199 197

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).

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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.

As we saw in Section III, Anscombe defines illicit human action in terms of

it contrariness to one of the virtues the lack of which makes a human being
bad qua human being, and when Aquinas argues that deliberate killing is
illicit, he does so by contending that such acts are contrary to justice, the
virtue whose point is to sustain communal human life.34 In this sort of ethical theory, the evaluation of action is not prior to the evaluation of agents.
The intentions, motives, and dispositions from which an action proceeds
will therefore be crucial for its evaluation.
Insofar as it takes the moral justification of an action to depend on the
intention with which it is performed the PDE fits naturally into this sort of
ethical theory. But we have also seen that whether an action is morally permissible is independent of the intentions of the particular agent who performs it. It is possible for one to act in a way that is permissible while being
a bad human being. I have argued that this fact does not show that at
the most fundamental level, evaluation of action takes precedence over
the evaluation of agents. The concept of the permissible is itself to be
understood in terms of the concept of the licit, in accordance with the
metanormative principle (P3), and the notion of the licit in turn makes reference to the concept of a good person. However, it does mean that if the
PDE is formulated as a principle about when it is permissible to bring about
harm it will sometimes generate counterintuitive verdicts. In response,
I distinguished between two versions of the PDE, a permissibility version

G.E.M. Anscombe, Modern Moral Philosophy, p. 38.

See p. 16.

33

34

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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.