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Trolley Problems

You've heard this one before:

TROLLEY
A runaway trolley is coming down the track. It is headed towards five people who cannot get out of its way. A Passerby realizes that he can save the five by throwing a switch and diverting the trolley down a siding, but he also realizes that if he does so, the trolley will kill a Lone Man standing on the siding.

Should you divert the trolley? Lots of folks say, "Yes!" Whether or not they are right is an interesting problem but it is not what philosophers call "The Trolley Problem". That problem involves a different case:

FAT MAN
A runaway trolley is coming down the track. It is headed towards five people who cannot get out of its way. A passerby realizes that if he pushes a nearby fat man onto the tracks his bulk will stop the trolley before it hits the five, though the fat man himself will be killed.

Most people, including those who think it is okay to turn in TROLLEY, think that it is not okay to push the FAT MAN. "The Trolley Problem" is how to reconcile these two answers. In both cases it seems you can do something that will save five people but only by killing one. How can anyone think it okay to turn in TROLLEY but wrong to push the FAT MAN? What difference is there between the two stories that can possibly make a moral difference?

In the almost forty years since Judith Jarvis Thomson first posed the problem in this form there have many attempts to solve it but none is generally accepted as successful. Indeed a general consensus seems to have developed that the "folk intuitions" (as philosophers call them) about the difference between these cases are simply irrational.

Thus a Utilitarian like Peter Unger can argue that, since there is no difference, it must be morally okay to go around doing things like pushing fat men under trolleys so long as it promotes the general happiness.

Meanwhile Judith Jarvis Thomson concludes that, since there is no difference between the cases, it must be wrong to turn in TROLLEY and so FAT MAN represents a reductio ad absurdum of Utilitarianism.

Both sides explain away "folk intuitions" that the cases are somehow different as a psychological aberration. Folks feel better about killing other folks in TROLLEY-- this theory goes-- because they are more comfortable with throwing a remote switch in TROLLEY than they are with the up close shoving that FAT MAN requires. There are even psychological "experiments" and (God help us) neural imaging studies that are supposed to explain (away) these folksy confusions.

In a conflict between folk intuitions and philosophical theory I'll bet on the folk every time. In this post, I'm not going to take a position on whether or not it is permissible to turn in TROLLEY or push the FAT MAN. My goal instead is to show that, as described, there are subtle but important differences between the FAT MAN and TROLLEY cases; differences that can make a moral difference in other circumstances, but differences that have, hitherto, gone overlooked by philosophers.

We begin with some different thought experiments.

SACRIFICING OTHERS
A runaway trolley is coming down the track. It is headed towards a Lone Man on the tracks who cannot get out of the way. However that man is standing by a switch which, if thrown, will divert the trolley down a siding. In that case the man will be safe but he can also see that, in that case, five people standing on the siding will be killed.

Is it morally permissible for the man to throw the switch? If it is permissible, what of this:

SHIELDING ONESELF
A man sees that someone is about to shoot him. To protect himself, he grabs an innocent bystander and uses her as a shield.

Now there is a line of thought that says that when one's life is in danger, anything goes. The philosopher Hobbes seems to have held something like this position. But this seems to me to throw morality out the window when it may be most required. It seems to me that SHIELDING ONESELF and SACRIFICING OTHERS are clearly impermissible and in what follows I'm going to assume you agree with me.

Now consider.

SELF DEFENSE
A runaway trolley is coming down the track. Luckily there is no one in its path. A passerby, Burns, sees this but he also notices that Homer, someone he hates, is standing on a siding. Burns realizes that if he throws a nearby switch, the trolley will be diverted down the siding killing Homer. Homer can see all this too and when he sees Burns moving towards the switch he correctly guesses his intent. Homer cannot get out of the way but he is not defenseless: he has a gun. He draws it and shouts "Stop or I'll shoot!". But Burns ignores him and keeps moving the switch.

Assuming all these facts, I expect you to agree with me that it would be morally permissible for Homer to pull the trigger. It seems an ordinary case of self-defense albeit against an unusual attack.

Now for the interesting case:

SELF DEFENSE WITH COLATERAL DAMAGE
A runaway trolley is coming down the track. It is headed towards five people who cannot get out of its way. A passerby, Burns, sees this and realizes that he can save the five by throwing a switch and diverting the trolley down a siding. Burns also realizes that if he does so the trolley will kill Homer, whom Burns hates. Homer can see all this too and when he sees Burns moving towards the switch he correctly guesses his intent. Homer cannot get out of the way but he is not defenseless. He has a gun…

The only external difference between this case and SELF DEFENSE is the presence of the people on the track but I have also subtracted any reference to Burns' motive. Feel free to imagine that Burns is primarily motivated by a desire to save the five, or primarily by a desire to kill Homer, or by the combination of the two, but be prepared to say why that makes a difference to the central question.

The central question being: is it permissible for Homer to use his gun to stop Burns?

I do not think that it is. Burns is going to divert the trolley and prevent the death of five people. If Homer or anyone else stops Burns, they will be causing the death of five people and preventing the death of only one. Of course, Homer's life is at risk, but we agreed when we considered the SACRIFICING OTHERS case that it was not permissible for him to save his own life by doing something that would cause the death of people who were no threat to him. That seems to apply in this case too, indeed more so because now he will be harming Burns in addition to causing the death of the five. Though I think that Homer would still be responsible for the death of the five if Burns were stopped by Homer's yelling "Stop". Nor it doesn't seem to me relevant to the case what Burn's motives happen to be.

If that is correct then we have discovered something. People who say that it is wrong to turn in TROLLEY sometimes argue that this is so because killing the man on the siding infringes his rights. But we seem to have just discovered that the man on the siding does not, in this circumstance, have all the rights that people ordinarily have. He doesn't have a right to self-defense. He lacks that right—at least against Burns-- because in this circumstance he can defend himself only by sacrificing others. And if Homer lacks the right to self-defense here, so does the Lone Man in the original TROLLEY case. As described, he didn't have a gun, but it doesn't matter: even if he did, he would not have had the right to use it save himself.

Now what about the Fat Man?

THE FAT MAN DEFENDS HIMSELF
A runaway trolley is coming down the track. It is headed towards five people who cannot get out of its way. A passerby, Flanders, realizes that if he pushes a nearby a fat man onto the tracks his bulk will stop the trolley before it hits the five, though the Fat Man himself will be killed. Flanders decides to push the Fat Man. The Fat Man sees all this, but he is not inclined to sacrifice himself to save the five and when he sees Flanders moving to push him onto the track he draws his gun and threatens "Stop or I'll shoot!". Flanders keeps coming...

Is it morally permissible for the Fat Man to shoot? All the arguments that applied in the case of SELF-DEFENSE WITH COLLATERAL DAMAGE seem to apply here as well. Flanders is going to do something that will keep five people from being killed. If the Fat Man or anyone else stops him they will be causing the death of those five people and saving the life of only one. The Fat Man could claim he was acting in in self-defense, but isn't defending himself in this case as bad as it is in SACRIFICING OTHERS?

Maybe, but there are differences: they have to do with the different alternatives available to Homer and the Fat Man.

Let us pause to remember that when we are deciding whether any action is permissible it is always relevant to ask what alternative actions are available. We all agree that it is morally impermissible to kill. But in a case in which one's only alternative to killing one person is to kill many people, most of us think that it is morally permissible if not mandatory to kill the one rather than kill the many.

Now the TROLLEY case is interesting because the passerby's alternatives are not whether to kill one or five but whether or not it is permissible to kill one rather than allow five to die. Some people think that allowing people to die is just as bad as killing them. But this is a minority view. Most people think that harming people is morally worse than allowing them to come to harm; TROLLEY tests that opinion.

The difference between allowing harm and causing it is especially vivid when preventing harm to others involves incurring harm ourselves. When the Fat Man stares at the speeding trolley his choice is whether to allow five strangers to die or to prevent their death by sacrificing himself. No one (at least, none of us folks) thinks this kind of sacrifice is morally required of him and none of us thinks that this is equivalent to his killing five people. If the Fat Man jumped on his own he would be a hero precisely because he would have been acting above and beyond the demands of morality.

But the situation is different in the case where THE FAT MAN DEFENDS HIMSELF. If the Fat Man allows himself to be pushed, he will be sacrificing himself to save five. But if he resists he will be causing their death by preventing their rescue. Notice that this is not the choice that Homer faces in SELF DEFENSE WITH COLLATERAL DAMAGE. Homer's choice was between causing the death of the five -- by preventing their rescue—or allowing the five to be rescued. In the latter case, if the five are rescued, it won't be Homer's doing, but in the former, if the five are saved it will be the Fat Man who saves them, even if involuntarily.

Killing people when one has the alternative of letting them live is, other things being equal, plain murder. But the Fat Man's choice of whether to defend himself is between killing people versus preventing their death, and we view cases like these as morally different.

The most famous example of a dilemma like our Fat Man's is Judith Jarvis Thomson's Violinist case.

THOMSON'S VIOLINIST
You are knocked unconscious and kidnapped. When you wake you find your circulatory system is plugged into the body of a sickly violinist. The police have apprehended the kidnappers. They were fans of the violinist who were trying to keep him alive. You are now free to go but you are told that if you unplug yourself, the violinist will die. Only if you remain hooked up to the violinist for many months does the violinist have any chance of survival.

In Thomson's story your choice is between unplugging-- and thus causing the death of the violinist,--or sacrificing months of your life to prevent the violinist from dying. Thomson thought that, while it would be admirable of you to play the Good Samaritan in such a case, you were not morally obliged to do so. It would be permissible for you to unplug.

While farfetched, Thomson's story was not frivolous. It was meant to be analogous to:

ABORTION
A woman is raped. She discovers that she is pregnant. Her choice is to have an abortion or to bring the fetus to term.

Set aside the usual arguments about whether or not a fetus is a person. The violinist is certainly a person, but if we think you are not obliged to stay plugged into him, why should we think the rape victim is obliged to play Good Samaritan to the "person" plugged into her?

People have conflicting intuitions about such cases, and intuitions can change when variables vary (e.g. how long must one remain plugged in?). But there is a regularity in everyone's responses which is captured by a principle that Kadri Vihvelin and I dubbed "The Deontological Equivalence Principle"

The Deontological Equivalence Principle
Causing a death when one's only alternative is to prevent it, is morally equivalent to allowing a death when one has the alternative of preventing it.

The Principle does not take sides on whether you may or may not unplug. Instead it predicts that you will think it impermissible to unplug yourself from the violinist only if you think that you would have been obliged to plug yourself in, if you had been asked ahead of time. Alternatively, if you think morality does not require you to sacrifice yourself to save others, then you will think that morality permits you to cause their death when your only alternative is to sacrifice yourself to save them. Or again, if you think it is very, very bad, but not murder, to refuse to make a small sacrifice to save a life then you will think it just as bad, but not worse, to cause a death when, with the same sacrifice, you could prevent it.

If you think the Fat Man is morally obliged to throw himself onto the track to save the five, then you will think it equally wrong for him to prevent Flanders from pushing him. On the other hand if, like most of us, you think that the Fat Man is not required to throw himself in front of the trolley, you will agree that he is not obliged to let Flanders push him in front of it.

If that is right, then it is morally permissible for the Fat Man to defend himself against the push, just as it is permissible for him to refrain from jumping on his own. And that means the Fat Man does have the right to self-defense even though the Lone Man on the siding does not.

And we may note that the same arguments apply to all the cases to which Fat Man is sometimes compared. Thus:

FORCED TRANSPLANT
You learn that a doctor has plans to kidnap you and use your vital organs to save the lives of five other people. But you have a gun…

UTILITARIAN JUDGE
You learn that a judge plans to hang you for a crime you did not commit in order to prevent riots in which many people will be killed. But you have a chance to escape…

In both these cases, your eluding the threat will lead to the death of innocent people, but we may think that permissible given that your only alternative is to sacrifice yourself to prevent those deaths.

What does all this show?

Well, there are some theories of self-defense that entail that a person has the right to self-defense if but only if it is impermissible to harm them. Perhaps that is the theory that underlies the intuition that it is permissible to turn in TROLLEY but not in FAT MAN.

Then too, according to many accounts of self-defense, the right self-defense entrains the right of "other-defense"; so that if someone is permitted to defend themselves against an action then others are likewise permitted to intervene to help them prevent it.   Perhaps, when folks express qualms about pushing the Fat Man they are sensitive to the fact that it may be permissible for third parties to forcibly restrain them.

Or, maybe, folks see a moral difference between, on the one hand, saving the lives of five people and, on the other, forcing someone else to save those lives.

Perhaps, at the end of the day, we'll decide that folk's reasons, whatever they are, are not good. But to be entitled to that conclusion we'll have to work a lot harder at understanding the reasons folks say what they do.

Folks are smart; smarter than philosophers give them credit for. I recommend philosophers do fewer experiments, and use more imagination.

Three Quarks Competition

Abbas Raza, founding editor of Three Quarks Daily, has asked me to announce that it is time again for the Annual 3Quarks Philosophy Competition.  Patricia Churchland will be judging this year!

As I wrote on the occasion of the first competition:

"I think competitions like this are going to become increasingly important in future years. After all, the only known defense for the absurd anachronism of hard copy academic journals is that the competition for space on their expensive printed pages is essential to maintaining academic standards. Maybe so, but hardcopy journals are soon going to disappear and, if standards are not to disappear with them, academics had better quickly figure out other ways to sort out what is worth reading. Congratulations to 3Quarks for conducting an interesting experiment. "

The experiment, I am happy to observe, has become an institution.

And Three Quarks Daily is indeed worth visiting every day  for its original and linked content. Thanks to Abbas's  unerring eye for what is worth reading it seems to me to have become  The Paris Review of the internet age.

Self Defense

If we have any rights, we surely have the right to self-defense. And yet self-defense has proven very puzzling to Rights theorists. To see why, take a simple case:

VILLAINOUS AGGRESSOR
There are two agents, AGGRESSOR and VICTIM: AGGRESSOR resents VICTIM for his sauve good looks and skill on the dance floor and has made it clear that he intends to kill him. One day AGGRESSOR shows up at the dance hall, gun in hand. He takes a shot at VICTIM but misses narrowly. He prepares to fire again, taking more careful aim, but VICTIM too has a gun and his only hope of surviving is to return fire and kill or disable AGGRESSOR.

Is it morally permissible for Victim to shoot aggressor? Of course! But now here's the puzzle. Rights Theorists have wanted to say:

1. It is permissible for VICTIM to shoot AGGRESSOR because VICTIM has the right to self-defense.
2. VICTIM has the right to self-defense because he, like everyone, has the right not to be killed or harmed. (That is why, if you are attempting to kill or harm him, you are doing something wrong.)
3. In defending himself, VICTIM will kill or harm the AGGRESSOR.
4. If the AGGRESSOR, had a right not to be killed or harmed, then it would be impermissible to kill or harm him.

The puzzle is: what happened to AGGRESSOR’s right not to be harmed?

It seems we must say that, by launching his attack, the attacker somehow loses his right not to be harmed. But where does it go?

Note that wherever it goes it doesn't go very far: Suppose that AGGRESSOR takes his second shot and his defective gun explodes rendering it useless and leaving him wounded and helpless on the ground. AGGRESSOR is no longer a threat and now most people (well, anyway, most philosophers) think it would be wrong for VICTIM to draw his gun and execute the now helpless AGGRESSOR. Apparently, AGGRESSORs right against being harmed returns as soon as he is no longer a threat to VICTIM’s life.

And yet there must be more to AGGRESSOR’s losing his right against harm than his just being a threat. After all as soon as any victim decides to defend himself against any aggressor he becomes a threat to that aggressor but we don't want to say that deprives a defender of any rights.

So maybe we should say that the AGGRESSOR's right not to be harmed doesn't go away at all? Couldn't we say that while AGGRESSOR retains his right not to be killed, VICTIM’s right to self-defense is more stringent or weighty than a simple right not to be killed and so it overrides or trumps the AGGRESSOR's right?

But that doesn't seem right either. Even acting in self-defense you have to respect some people’s right not to be harmed. Thus it would not be permissible for VICTIM to defend himself by grabbing some innocent bystander and use him as a shield against AGGRESSOR's bullet. The bystander’s right not to be harmed is not trumped or overridden by VICTIM’s right to defend himself.

So it must be something specific to the AGGRESSOR that removes, diminishes or discounts his right against being harmed; something that distinguishes AGGRESSOR from the bystander. But what can that be?

Isn't the answer obvious? AGGRESSOR, unlike the bystander, is a bad guy. He is trying to do something morally impermissible and for that reason he forfeits his claims against others harming him.

Alas, this collides with the problem of "innocent threats". Two examples from the literature:

FALLING MAN
Out for a walk one day, this man was swept up by a tornado. Now he is plummeting towards earth. When he strikes he will fall directly on VICTIM.  With VICTIM's body cushioning his fall the FALLING MAN may survive but VICTIM will certainly be killed. VICTIM cannot get out of the way, but is carrying a ray gun which he can use to vaporize the falling man and save himself. *

HUMAN SHIELD
An enemy has sent an automated tank on its way to kill VICTIM. VICTIM has an anti-tank gun and can destroy the tank. To discourage this, the aggressor has strapped an innocent passerby to the front of the tank to act as a human shield. Victim can save himself only by killing this person. *

In both these cases most people would say that it is morally permissible for VICTIM to defend himself even though, regrettably, this would result in the death of an innocent person. And by "most people", I do not mean just "most philosophers" or "most undergraduates when given questionnaires". I mean that it is the nearly unanimous opinion of all mankind, in virtually every human society of which we are aware, in every legal system ever devised, that this is so. No court-- not now, not ever-- would hold VICTIM guilty of wrongful killing if he defended himself in these situations. No work of literature or drama has or would treat a victim’s refusal to defend himself in such circumstances as anything less than heroic; that is, as a sacrifice beyond the call of moral duty.

All of which seems to leave the right theorists with a choice of bullets to bite.

Judith Jarvis Thomson and Frances Kamm conclude that, given that it is permissible to kill innocent threats, we just have to say that that FALLING MAN and HUMAN SHIELD, because they are threatening VICTIM’s life, have forfeited their rights not to be harmed no less that the villainous AGGRESSOR, albeit through no fault of their own.

This seems odd and, again, opposed to common sense. No jury-- not now, not ever-- would convict these innocent threats of any crime were the Victim to be killed. The Shield and the Falling Man do not choose to cause death Yes, VICTIM’s death would be a bad thing, but it wouldn't be their fault any more than it would be a bystander’s fault. How can their actions, if they can even be called that, represent a forfeiture of their rights?

But then what is the alternative?

Now, Me

My topic is the state of mind of people who utter sentences containing indexicals; sentences like "I am here now".    It is a subject much discussed in recent years but invariably it has been addressed as an issue in philosophical semantics: as a problem about what indexical words mean.  I want here to pursue a different and, I hope, more productive approach ....     (...with a new way of doing epistemology in the bargain.)

The Retributive Theory of Property

Property rights are collections of rights. In the first place: for something to be your property you must have the right to use or enjoy that thing. In the second place, you must have rights of control: rights that others not use or enjoy that thing in certain ways, except by your permission. Thirdly, though perhaps not necessarily, you must have the right to transfer the former two rights to someone else (as when you give your property to someone else) and fourthly the right to some form of compensation should someone infringe the preceding rights. Each of these rights, moreover, might be divided and limited in various ways. You may have the right that others not walk on your property, but not that others refrain from burrowing underneath it or flying over it. You may have a right to cultivate your own garden, but not to grow opium therein.

And so on. Acknowledging all this complexity, let us set it aside for now and focus on clear cases of the least complicated sort. I have an apple in my hand. I may eat if I choose, use it to make a pie or cider or let it rot. I may give it to someone else. You may not eat my apple without my permission. If you do so, you will have done something wrong and you will owe me compensation. All this because the apple is mine.

What are property rights? Where do they come from?

According to Retributive Ethics, moral rights are merely warrants for violence. All rights are Retributive rights: rights to harm other people. So when a Retributivist hears a right asserted he asks only who is claiming a moral permission to hurt whom, by how much and when.

In the case of property rights the question has clear answers: property rights at least include rights to defend your property: that is, to do harm to those who attempt to deprive you of its use and the right to forcibly interfere with others if they should attempt to use it without your permission. You may interfere with them by building fences or locking doors or by putting your body in their path. Should push come to shove, you may push and shove or, if society recognizes your property claim, you may call on the cops, who will do the pushing and shoving and, if need be, shooting on your behalf.

You are in short, entitled to enforce your property rights. "Force" being the operative word.

Now, academics are apt to grow faint at the first mention of violence so let me quickly offer some palliating remarks for tenured readers. Note first of all that acknowledging a right to defend property does not require you to think property rights warrant absolutely any degree of violence in the defense of absolutely any property. You may not think it permissible to shoot a burglar if you do not have much worth stealing or even if you do. You may yourself be so passive or pacifist that you would not lift a finger to protect your belongings. You may be so empathetic to the plight of those driven by circumstance to theft that you wouldn't even call the cops. Never mind. What matters is that you agree that having property makes it sometimes morally permissible (however personally repugnant) to forcibly interfere with others in some ways that would not be permissible if you had none. To deny this-- to say that it is always morally impermissible to lock a door, build a fence, or lift a finger (even to dial '911')… to defend one's property seems to me to simply deny that there is any moral right to property.

Note too that acknowledging the right to enforce your property claims does not presuppose that property rights, or any other rights, are in any sense "natural". Even if you think that the rules that govern property acquisition and ownership are as arbitrary a social artifact as the rules of NFL Football, you must nevertheless recognize that our adoption of those rules makes certain kinds of violence permissible. Neither the lineman who tackles the quarterback nor the cop who tackles the purse thief is doing something morally wrong. So even if you think "the possession of property under the law" is as inherently amoral a notion as "possession of the ball in football", you must have some account of how the violence of the lineman and the cop come to be morally permissible.

If we agree that property rights at least include some kinds of permissions to use force the next question is whether they include anything more.

Retributive Ethics in a Nutshell

Retributivist Ethics is rooted in five assumptions. 

The first is that something of the following form is true: 

     (1) x is Morally permissible = x harms no one or R₁x , or R₂x, …R_nx. 

Where x ranges over actions. 

The second assumption is that there are properties answering to R₁… R_n and actions which satisfy them.  That is, that there are some features of some actions which make them morally permissible even though those actions do cause harm to others.  

The third is that it is possible to describe what constitutes harming someone in non moral terms.

The fourth is that is also possible to describe those R-properties-- those circumstances which harming others is permissible -- in non-moral terms. 

The third and fourth assumption make Retributivism a reductive thesis.  Note that "=" in (1) expresses an identity on a par with:

    (2)        X is water = x is H2O . 

Retributivism is not a thesis about "the meanings" of moral terms-- whatever "the meanings" might be.  It is a thesis about what moral permissibility is.  It aims to say that to do something morally wrong just is to do one of those things that harms another and is not R₁… or R_n,  just as (2) says that to be water just is to be two parts hydrogen and one part Oxygen. 

Finally, Retributivism is the assumption that all of ethics, everything worth saying about moral right and wrong, will have been exhausted when we have spelt out (1) .  

Spelling out the R's -- saying when it is permissible to harm another--  is a matter of describing agents moral rights and claims.  

Thus, it is permissible to harm another if one acts in self-defense, so we may speak of the "right of self defense". 

To say that someone X has a moral  claim against someone Y that Y do something A (e.g. because Y has promised X that Y will do A) is to say that it would be permissible in certain circumstances for X to harm Y in certain ways (e.g. to force Y to keep his promise).  

To say that someone X has right to compensation from Y because of some harm Y has done X is to say that X has a right to force Y to perform some compensating act. 

Note the Retributivist may not say that the right of self defense makes it permissible to use force in a certain way.  Nor may he explain the permissibility by appealing to the right.  His thesis is that the right is the permission.  On the other hand the Retributivist need not argue for the existence of any right beyond the permissions it entrains.  Once it is conceded that the relevant harmings are permissible then the Retributive right has been wholly established. 

I distinguish between causing harm to others and allowing harm to come to others and assume that absent prior promises the latter are always permissible.  One might revise this assumption, including at least certain kinds of allowing to harm as impermissible and still call oneself a Retributivist if one accepted the other premises.

Means and Ends

Consider this  principle proposed by Judith Jarvis Thomson in The Realm of Rights.  

The Sole-Means Principle for Permissibility: If the only means X has of doing Beta is doing Alpha , then it would be permissible for X to do beta if and only if it would permissible for X to do alpha.  

If the Sole Means Principle (SMP)  is correct there are  far reaching consequences and Thomson does not hesitate to use it to draw large scale conclusions about rights and morality.

Here is one of her examples.   You are standing on your  property and observe that Smith is about to walk on your newly sown lawn.   Would it be permissible for you to tell  him to stop?  Indeed,  to yell loudly at him , "Stop!", if that's what it  would take to get him to stop?   You might think so.  It is your lawn after all.  You have property rights and isn't it always permissible to enforce your rights?   Shouldn't we agree that:  

(r )  If A has a claim that B not φ  then it is permissible for A to prevent B from φ -ing.  

"No", says Thomson.  Suppose that we change the story.  Suppose there is someone else, Jones, in the picture.   Jones is standing, not on your property, but nearby at the edge of a cliff.  As before,  Smith is about to trample your grass  and the only way you can prevent him from doing so is to yell, "Stop!".  The thing is, Jones is so skittish that if you yell,  Jones will jump.  And if Jones  jumps he will tumble down the cliff to his death.  And suppose (somehow) you know all this.   

In that case it is clearly impermissible for you to yell "Stop!".  You would be killing poor innocent Jones.  But given that yelling is the only means available to you to prevent Smith from walking on your lawn  it follows from SMP that it is, in this case, impermissible for you to enforce your claim.   Thus, Thomson concludes,  (r) is false.  

Now I think (r) is true.  It is a core claim of Retributive Ethics.   But I agree that in this case it would be impermissible for you to yell "Stop" because that would kill Jones.  So I agree that, in this situation, you have no  morally permissible means available to you for preventing Smith from walking on the grass.   But I  think, nevertheless that it is permissible for you to prevent Smith from walking on the grass.  You have a morally permissible end, but no permissible means to achieve it. I reject SMP.  

So let me give you seven (7)  arguments that SMP is wrong.  

Obligations and the Obligatory

What is the connection between our moral rights and duties and what we ought to do?  What principles bridge these different forms  of moral talk?  

In my last post on Retributive rights I mostly avoided the language of "ought" because I was there concerned to conjure retributivist rights out of the abstract logic of Hohfeldian rights.   But there is no reason to be coy here.  On the Retributivist view the hinge that connects talk of right and ought is just this.

(R)

A has a claim against B that B φ. B has a duty to A to φ .

=

It is morally permissible for A to force B to φ .

(R) is something new.  So far as I know, all prior attempts to connect moral rights with moral oughts have involved variations on.  

(M)

Someone has claim that A  not φ. A has a duty to someone not to φ .

iff

It is impermissible for A to φ.

The variations involve dropping one half  of the bi-conditional and/or adding qualifications of various sorts on either side.   

(R) and (M)  are logically independent and a Retributivist can, and I do, reject (M) without qualification. 

A notorious problem with (M)  is that it seems to lead directly to paradox.  I promise A that I will φ and I promise B that I will not φ .  The promise seems to give A and B claims against me.  A has a claim that I  φ, B, that I refrain from φ-ing.  But if (M) is correct it would follow that

(O)    it is impermissible for me to φ.

and

(O')    it is impermissible for me  not to φ.

How can that be so? If I really ought to do φ and I ought not to do φ then how do I decide, ... well,what I ought to do? 

Or is it that somehow one promise cancels the other out? And, if so, what mechanism determines which promise prevails?  

I think we should reject the idea that (O) and (O') can be simultaneously true.   These sentences are not formally  contradictory  but the point of a moral theory is to tell us what we ought to do and (O) and (O')  do offer contradictory, and hence worthless, advice.   I take the fact  (M) yields this result as proof that there is something wrong with it. The Retributivist diagnosis is that the paradox  arises from misunderstanding the relation between claims and oughts  in general and the claims created by promising in particular.  

The general point is that, for the Retributivist,  having a duty to to someone to do something does not entail that it is morally impermissible for you not to do it.   Rather it entails that it is morally permissible for that person to force  you to do it;  whether your doing it is permissible or not.  

The particular point about the claims of promising is this:   On the retributivist account,  when I  promise you to φ I  do two things:   

(i)  I give you permission to force me to φ if need be.

(ii)  I  invite you to believe-- at least in part because I have done (i)-- that I will do φ and thus acquire liabilities to compensate you if I don't φ and you suffer in consequence.  

Note again that  neither (i) or (ii) entail that I ought to φ.    

Now, If I promise A to φ and B not to φ, I have given A permission to force me to φ and B permission to forcibly prevent me from not φ-ing and, insofar as they are relying on my promise I am obliged to compensate whoever I disappoint for the costs they incurred .  It is an unenviable position.   I have a dilemma,  but it is not the paradox of (O) and (O').  There is nothing I both ought and ought not do.

Other things being equal, we have an obligation not to harm others. But sometimes things are not equal. Sometimes we will hurt someone no matter what we do.  When we make contrary promises we put ourselves in such a  situation and morality must guide us in deciding what we ought to do. What we have promised does not settle the matter.   

I think that one of the merits of the Retributivist account is that it will give us a plausible reconstruction of how we actually reason when we find ourselves in these dilemmas.    But I will postpone that discussion till a future post.   

Instead, let's round this off by asking if there is some way that (R) could be forced into the same kind of paradoxical corner that traps (M).    

How about this:  what if A promises B to φ and B promises C not to force A to φ.  According to (R), A's promise to B makes it the case that: 

It is morally permissible for B to force A to φ.  

And yet B's promise to C makes it the case that:  

B has a duty, to C, not to force A to φ.   

Isn't this a paradox?  No. Because B's promise does not make it morally impermissible for B to force A to φ.  Instead, according to (R), it makes it permissible for  C to forcibly prevent B from forcing A to φ.  No paradox here: nothing that is both impermissible and not.  

So am I saying that if A promises B to φ then it is always permissible for A to force B φ?  Yes!   

Am I saying that then we are permitted to anything we like to force someone to keep their promises?  No!  

To see how I can say both those things, stay tuned…

Darwin and his Defenders

Over the weekend I found myself defending Fodor and Piattelli-Palmarini's   "What Darwin Got Wrong" in the comments section of the Boston Review.  I thought I would reprint my arguments here in case anyone wants to carry on the discussion in more depth and to offer some summary thoughts.   For context you need only to understand that F&P's critics have all used variants on 1-10 below in defending Darwin.

So, here is my theory of US Presidents. Tomkow's Theory of Presidential Selection: The U.S. has the presidents it does because of the process of electoral selection. Electoral selection works by selecting the most popular candidates. Presidents are popular or unpopular because of their traits. The president elected at any given time will be the president with the most popular traits. Now I assume you agree that: 1) My theory, as far as it goes, is true. 2) There is a fact of the matter why any given president is elected. 3) Whether someone is elected president depends on some of their traits and not others. 4) The election of every president is explained by his possession of popular traits. 5) It is often obvious that certain traits at certain times make some candidates more popular than others. 6) There are plenty of clear historical examples of Tomkovian selection in action: e.g. President X was clearly selected because he had trait T and T was popular (substitute for whatever historical X and T you think clear). 7) It is perfectly clear, that, as a matter of fact, some traits that may be correlated with popularity are not really electorally significant. Thus, it happens that historically, the tallest candidate always wins a US election. But everyone can see, and Tomkow certainly would not deny, that tallness is not the trait that people are voting for.  8) There is a huge industry of serious and sensible people who do careful objective work in studying , explaining and predicting presidential elections using powerful statistical tools and careful historical analysis.  9) There may indeed be, and we may soon discover, real law-like regularities that connect the popularity of particular traits with specific environmental factors e.g. of the rate of taxation or GDP or …  10) There is no reason why the study of what traits lead to electoral success cannot be scientific in every sense of the word. Okay. Now given that you agree about points 1-10, don't you concede that Tomkow's theory represents a deep, indeed profound, insight into the workings of the political order?  No? What's that you say?  You say that even though 1-10 are true, Tomkow's theory, by itself, provides no clue at all about how to distinguish what traits are popular at any given time from other, irrelevant traits.  You say that Tomkow's theory itself really doesn't explain why any particular candidate was or will be elected.  You say that even though historians and political scientists have lots of substantive things to say, it's really no thanks to Tomkow. You say that, as it stands, Tomkow's theory cannot be used to predict who will be elected  and can only be used to explain any particular election result  post hoc. You say that, while some historical cases are clear, what makes for popularity in a candidate is so context dependent that you are skeptical that there will ever be a general scientific theory of "popular trait" per se . You say that Tomkow's theory of Presidential Selection really isn't a Scientific Theory at all!  You know, your complaints about my theory of Presidential Selection sound an awful lot like F&P's complaints against Darwin's theory of Natural Selection.

The Retributive Theory of Rights

There are many sorts of rights to many different kinds of things and most rights are complex combinations of other rights.  The standard taxonomy of basic rights comes to us from Wesley Hohfeld.  Hohfeld argued that all rights are, or are combinations of, what he called claims, duties, privileges, powers and immunities.  We’ll call them Hohfeld rights (RightsH).

Hohfeld RightsH
A has a claimH that B φ	=	B has a dutyH to A to φ
A has a privilegeH, with respect to B, to φ	=	A has no dutyH  to B not to φ
A has the  privilegeH of  φ-ing	=	A has no dutyH  to anyone not to φ.
A has a powerH	=	A has the ability to alter her own or another's RightsH.
B has an immunity	=	A lacks the ability to alter B's RightsH

Retributive rights (RightsR) are Hohfeld rights to do or not to do a particular kind of thing; viz. to forcibly interfere with other people to prevent them from acting, or to make them act, in certain ways.  Self Defense is a paradigm example of a Retributive right.  Someone acting in self-defense is free, with respect to his attacker, of the normal duty not to harm another.  He has  what Hohfeld would call the privilege of fighting back. 

We can define all the forms of rightR in terms of the Hohfeld’s privilegeH:

Retributive RightsR
A has a claimR,  against B, that B φ B has a dutyR to A to φ	=	A has a privilegeH, with respect to B,  to force B to φ
A has a claimR,  against B, that B not φ B has a dutyR to A not to φ	=	A has a privilegeH, with respect to B,  to force B not to φ.
A has a privilegeR, with respect to B, to φ	=	B has no claimR, against A, that A not φ A has no dutyR  to B not to φ B does not have a privilegeH with respect to A to force A not to φ.
A has the  privilegeR of  φ-ing	=	A has no dutyR  to anyone not to φ No one has a claimR against A’s φ-ing No one has the privilegeH to forcibly prevent A’s φ-ing
A has a powerR	=	A has the ability to alter her own or another's rightsR
B has an immunityR	=	A lacks the ability to alter B's rightsR.

Here we understand  "forcing  B to φ " as  matter of applying the minimum violence or harm  required to cause B to φ.  If you use more force than is minimally required you are doing more than just forcing B to φ; more than you have a right to.  In the case where B will φ without any coercion by A then the minimal force is, of course, no force at all.  

The right of self-defense now appears as the claimR that others not harm you, since.

A has a claimR that B not attack A B has a dutyR not to attack A

=

A has the privilegeH, with respect to B, to forcibly prevent B from attacking  A.

In my last post  on Retributivism I tried to demonstrate that the rights conferred by promising are Retributive.  When A promises B to φ, I argued,  what  is going on is that A is exercising his powerR to waive his normal claimsR  not to be interfered with to confer on B a claimR that A φ.

Hohfeld himself spoke of another Retributive right which will be of special interest to us.  He speaks of a right to “non-interference” in performing an action.  Such a right might arise, say, if B promises not to interfere with A’s φ-ing.  

B’s promise gives A a claimH against B that B not interfere in with A’s φ-ing.   Given that:

A has a claimH against B that B not interfere with A’s φ-ing

=

~(B  has a privilegeH, with respect to A,  to force A not to   φ.)

and

~(B  has a privilegeH, with respect to A,  to force A not to φ.)

=

~ B has a claimR that A not φ

and, in turn,

~B has a claimR that A not  φ

=

A has the privilegeR, with respect to B, to  φ

hence

B has a dutyH to A not to interfere with A’s φ-ing

=

A has a privilegeR, with respect to B,  to φ.

So, Hohfeld’s right to non-interference in one’s performance of φ  comes down to a privlegeR to φ.

Retributive Ethics

No one, at least no one willing to acknowledge moral rights at all, is likely to deny the existence of Retributive rights. But Retributive Ethics is not just the doctrine that there are rightsR.  It is the thesis that all rights are Retributive:  that they all are, or are combinations of, claimsR, dutiesR and privilegesR.

This is a substantive claim. One, in effect, denied by Hohfeld and more recently by Judith Jarvis Thomson.  They believe that there are rightsH  that are not rightsR.  Let's look at their arguments.

Retributive Ethics

Begin with the principle:

1. It is impermissible to harm others (other things being equal).

I intend 'harm'  in a very broad sense.  Certainly you harm someone if you physically injure them , but also if, without injuring them, you prevent them from doing something they would have preferred to do, or coerce them to choices they would rather not make.  You may also think you do someone a harm if you wound their pride or disappoint them; if so , I won't quarrel with you here: count injured feelings in as well.  Some readers may-- for sophisticated philosophical reasons--  feel uncomfortable with the word  'harm'.  If you  find (1) more obviously true if you replace 'harm' with 'make unhappy' or  'diminish the utility of' or   'interfere with'  or  'act contrary to the long term rationally revealed interests of' ... feel free make the substitution. ¹  You are reading me right if you construe (1) as  an obvious truism.

 

Assuming we agree about (1), we turn to the question of what these other things are that that must be equal?  In what circumstances is it permissible to harm another?

Self-defense is an obvious example.  Other things being equal, if someone is physically attacking you, you are entitled to do them harm.  How much harm is an interesting question.  It is not a matter of strict proportionality.  If the attacker just wants to cut off your arm to add to his collection you are not constrained to do no worse than amputate his.  But if all he aims to do is push ahead of you in a ticket queue, disemboweling him might be excessive.  Roughly speaking,  it seems that if you are the victim of an attack,  you are permitted to do your attacker only as much harm as is required to thwart the attack  and, perhaps, a bit more  to discourage its being renewed.

Details aside, "The Right of Self Defense" obviously means nothing if it does not include permission to do appropriate violence to your attacker. 

My next question is this: does it mean anything more?  Is there something more you must have -- something  beyond the moral permission to forcefully defend yourself -- before you enjoy the right of self-defense in full?

I think it is clear that there is not.  And I take this to show that having the right of self-defense is constituted by-- is nothing but-- the moral permissibility, ceteris paribus,  of doing (appropriate) harm to those who attack you.

The view I am going to call "Retributive Ethics" is the doctrine that all rights are like this.  It holds that all moral rights are merely provisos in the general prohibition against harming others and that what is morally impermissible is always and only the infliction of harms without right.

Retributivism is a reductive claim.  If you like your philosophical theses to be framed as analyses²,  you may take it as proposing a certain form of  analysis of "morally impermissible", viz. :