Philosophy and Phenomenological Research

Philosophy and Phenomenological Research Vol. LXXX No. 3, May 2010 2010 Philosophy and Phenomenological Research, LLC

Substitution, Subordination, and Responsibility: Response to Scanlon, McMahan, and Rosen

frances kamm Harvard University I am deeply grateful to the three outstanding philosophers whom I am fortunate to have as discussants. I have tried my best to do justice to their excellent comments. Response To Scanlon Scanlon seems to agree that the distinction I drew in Intricate Ethics (IE)1 between substitution and subordination is useful in characterizing the dierence between permissible and impermissible harmings and not aidings. We also agree that (i) focusing on the state of mind of the agent (e.g., his intentions) is not the way to distinguish between permissible and impermissible acts, and (ii) insofar as we are interested in states of minds, there is a distinction between acting in order (with the intention) to bring about some eect and acting on condition that we bring about some eect. It is also possible that dierences in our views represent different levels of analysis, with one set of distinctions underlying or supervening on the other. (I shall try to defend this claim in II[A] and [B]). I shall rst critically examine some of Scanlons positive proposals and then consider how my proposals withstand his criticism. I. (A) Scanlon tries to provide an explanation of puzzle cases, beginning with the basic Trolley Case (TC). He sees TC as involving individuals on the two tracks, each of whom has an equal claim (right) to have the trolley directed away from, or not directed toward, him. However, because there are a greater number of people on one track, we have a reason, he thinks, to attend to their rights. Scanlon thinks it is permissible to turn the trolley from the ve to the one because what
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Intricate Ethics: Rights, Responsibilities, and Permissible Harm (New York: Oxford University Press, 2007).
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is at stake is the same (in the sense of same type of) right of each person (to have the trolley directed away from or not directed toward him) and we are just deciding whose right is accorded. This is a case of permissible substitution, he thinks.2 By contrast, in Bystander, where someone would be thrown from a bridge in front of the trolley to stop its hitting the ve, a dierent right is in question: the right not to be manhandled into harms way. He thinks that impermissible subordination of the bystander occurs because his right would be overridden to protect a dierent right of the ve. Although I too argued that substitution occurs in TC,3 I have concerns about Scanlons analysis: (i) Scanlon describes TC as though it were what I call a Crosspoint Case, in which the conductor must decide whether to direct the trolley toward ve or toward one. However, in TC, because the trolley is already headed to the ve, it is no longer a question of possibly directing it to them, but of whether the conductor will let it go on toward them. He has to decide whether to be the killer of the ve if he lets them die, given that he set the trolley in motion, but he does not kill them just insofar as he does not redirect the trolley. Hence, the right at stake in TC for the ve is to have the trolley directed away and the right at stake for the one is not to have the trolley directed toward him. These rights, contrary to Scanlon, are not the same. It is not always true that someone who has endangered the lives of others may kill someone else to save his own victims. I argue in IE that turning the trolley to save the ve when this results in killing the one is morally the same as what is done in the Crosspoint Case, even though the rights at stake are not of the same type. (ii) My second concern is with Scanlons interpretation of substitution versus subordination in TC. He thinks that substitution occurs when the same right is at stake for all parties, but if what I claimed in (i) is correct, the permissibility of turning the trolley will not be accounted for by his interpretation of substitution. Furthermore, there seem to be cases where, on Scanlons view, the same right is in question, yet I think subordination, not substitution, occurs. Suppose a conductor seated in a control room is in charge of two trolleys. One trolley is headed toward killing one person but could be redirected to another track where it will kill ve other people. A second trolley is headed toward killing ten entirely different people. The button that controls the second trolley is not working, but if the conductor turns
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Scanlons speaking of the ves rights to have the trolley directed away suggests that he thinks even a bystander has not only a permission but a duty to redirect the trolley when one person will then be killed. Despite this, I shall assume that in this case he would argue only for a permission (or right) of someone to redirect the trolley. See Intricate Ethics, p. 165.

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the rst trolley from the one to the ve, vibrations from this movement will redirect the second trolley away from the ten. Doing this will still save the greatest number of people who, on Scanlons view, have the same right at stake. Yet, sending the trolley from one to ve in order to send the second trolley away from the ten involves subordination of the ve to the ten, I believe. My explanation of subordination in this Two Trolley Case is that turning the trolley away from the one is rationalized as a mere causal means to save the ten and it causes ve to be killed as a side effect. Neither the greater good (the ten being saved) nor means having the greater good as a noncausal ip side causes the lesser evil. In IE, I argued that even when having the ve subject to the threat of the trolley is only a side eect not necessary to save the ten, it is often impermissible to act and subordination is involved. (iii) Even if the same rights were at stake for everyone in TC and this helped account for the permissibility of turning the trolley away from the ve, it would not account for the permissibility of turning the trolley in cases where the same rights are not at stake, even on Scanlons view. That is, subordination and impermissibility do not necessarily occur when a different right is transgressed from the one that is being protected. Suppose that turning the trolley away from the ve and thus saving them will create vibrations that cause the bystander on the bridge to fall to his death. Or suppose that turning the trolley away from the ve causes a landslide that kills another bystander. It seems permissible to turn the trolley in these cases too. Yet, it is not the right not to have a trolley directed to one or the right to have a trolley directed away from one that is equally at stake for all the people in these cases. Ordinarily, bystanders have a right that we not do what creates vibrations or landslides that kill them. Indeed, if it were necessary to set a bomb to turn the trolley but as a side effect this created vibrations that topple the person off the bridge or caused a landslide that kills him, I think it would be impermissible to use the bomb to turn the trolley. Yet, when the toppling and the landslide are caused by the trolley being turned away from the ve (not by a mere causal means to this, such as a bomb), it seems permissible to turn the trolley. I argued that this is because the greater good (or the trolley turned that has the greater good as a noncausal ip side) causes the lesser evil. Scanlon helpfully describes such a greater good as the ve being in a state (not dead) that they have a claim to be in even if it has a bad side effect for others. My point now is only that, contrary to what Scanlon says, the rights at stake not being the same does not mean that impermissible subordination occurs (and when the rights are the same in his sense that does not rule out impermissible subordination). Hence, something besides
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different rights being at stake will have to explain why Bystander involves impermissible subordination. My suggestion was that in Bystander, it is what causes (or does not cause) the transgression of the bystanders different right that is crucial: the greater good (or what has it as a noncausal ip side) is not the cause and this is problematic. Scanlon may say that he was only concerned with explaining the permissibility of a limited set of cases and so the fact that his explanation of TC and Bystander does not deal with other cases is not a mark against it. But in IE, I was concerned to show that the permissibility of turning the trolley in TC can be explained by a broader principle that shows redirection cases to be part of a larger category of cases. It is this broader principle that provides the deepest explanation, even of the limited set. (iv) A fourth concern I have with Scanlons analysis of TC is that he only says the conductor may direct the trolley so as to diminish harm it causes. What if the conductor cannot redirect the trolley but can push another button that will move the ve people off the track? Presumably, it would be permissible for him to do this even if getting the ve to a safe place caused a landslide that killed a bystander. The Lazy Susan Case discussed in IE involves the movement of the ve people, and it bears on Scanlons view that the right in Bystander is not to be manhandled in the way of a harm. (Presumably the right not to be manhandled is not limited to not being pushed (or any other form of up close and personal contact); the right would also be impermissibly transgressed if the conductor pressed a button so that a mechanical device pushed the person o the bridge in Bystander.) In the Lazy Susan Case, the ve threatened with the trolley are seated on a swivel table (lazy Susan) that the conductor can turn so that the ve are away from the oncoming trolley. However, on the other side of the swivel table is another person who will be pushed into the approaching trolley as the table turns. This too seems to be a form of manhandling someone into the way of harm yet, I suggest it is permissible. Scanlon may agree because he thinks this case involves equal rights to be away from a trolley had by each person, with the greater number winning. But suppose no one is seated on the other side of the swivel table and when we turn it vibrations topple the person on the bridge to his death. Turning the swivel table in this case would also be permissible, even though the right of a bystander not to be toppled is in question and dierent from the right of anyone to be away from a trolley. (B) Now let us consider Scanlons proposals concerning the Loop Case in which the one person being hit by the redirected trolley stops its looping back toward the ve. As he sees it, the right of the one person on the side track not to have the trolley directed at him succumbs
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to the equal rights of the ve not to have a trolley directed at them, just as in TC. And given that the one person is no worse off if his being hit has a useful, merely causal effect, it is permissible to turn the trolley away from the ve, even though there would be no point in doing so unless the one persons being hit caused the trolley not to loop. (Scanlon contrasts a merely causal effect with a change in the moral status of the single person that is required for a useful effect to come about. I shall discuss this distinction in (C) below.) While I agree that it is permissible to turn the trolley in Loop, I have concerns about Scanlons explanation of this. (i) The ve could have rights that the trolley be turned away from them when this would cause the death of the single person, only if they will not die soon anyway. (While Scanlon says that we would not turn the trolley if the ve would soon die anyway, he does not seem to allow this to alter his description of the rights of the ve. But I believe the ve would have no right that the trolley be turned when it will kill the one, if the ve would die soon anyway.) The ves not dying soon anyway depends on the usefulness of hitting the one person. So their right to have the trolley away from them in Loop depends on its being permissible for the single person to be caused to play such a useful role in their survival. However, it might be argued that we have no right to turn the trolley if the ves right depends on the usefulness of hitting the person, when he could avoid being harmed were the trolley not turned. Hence, contrary to what Scanlon says, the ve might have to claim a more complex and contestable right in Loop than in TC. (It is certainly true (I argued in IE) that once we turn the trolley from the ve toward the one in Loop, if it became possible to easily lift the one person o the track, the ve have no right that we not do so even though his being lifted means the ve will die.) It may be that Scanlon treats Loop like cases where we have a right to do what kills someonefor example, in self-defenseand the fact that his death will have an additional useful effect is (to use Scanlons phrase) neither here nor there. In this case, the harm is already justied by self-defense, and the additional useful effect is not necessary to justify the harm. But in Loop, whether we are justied in harming someone depends in part on whether there will be a further useful effect. (ii) Another concern is that Scanlons explanation of Loop implies that it is also permissible to turn the trolley away from the ve in the Tractor Case (discussed in IE). In this case, the ve are threatened by the trolley and by a large tractor headed at them. This second threat is present independently of turning the trolley away from the ve (unlike the looping trolley). We would have no right to turn the trolley hitting
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the one person, if the tractor could not be stopped. It turns out that if we turn the trolley away from the ve, it will hit the one and, without making him any worse o, move him on an extra bit of track in front of the tractor stopping it.4 Yet it seemed to me to be impermissible to turn the trolley in Tractor, even if it is permissible in Loop because (i) the harm to the one person in Loop is only necessary to sustain the good we produce by turning the trolley from the ve, but (ii) the harm in Tractor is necessary to produce the good. This is one place where the idea of a structural equivalent of the good became important (though Scanlon says he cannot see why it is needed). As I saw it, in turning the trolley away in Loop, we produce what would be the greater good that could justify the death of the one person if only it was not undone by the looping trolley that results from our redirecting. I called what would exist if not undone by eects of our redirecting the structural equivalent of the good. In Loop, the additional piece of looping track is not needed in order to produce any further good. It is only necessary that its presence does not interfere with the good we have accomplished. By contrast, in Tractor, there would be no point in turning the trolley away from the ve if there were not the additional piece of track on which the person will be moved into the tractor. This is because his being hit by the tractor is itself productive of the greater good. A mark of this is that the structural equivalent of the greater good does not yet exist when we only turn the trolley away from the ve because the tractor, a threat independent of our redirecting, is still headed to them. We have not yet produced a state that must only be sustained (from eects of our redirecting) in order for the greater good to exist. (C) Scanlon thinks Loop differs from another case that I called Two Diseases, in which ve people will die of disease 1 if we do not give them a scarce medicine instead of giving it to one other person. However, the drug will cause a fatal side effect, disease 2, only in the ve. Therefore, it would be wrong to give the scarce drug to them rather than to the one person, were it not that if the one person does not get the drug and dies, his organs can be used to save the ve from disease 2. In this case, as in Loop, saving the ve from one threat is right only if the resulting condition of the single person could help save the ve from another threat caused by our saving them from the rst threat. I
4

Suppose that turning the trolley would not kill the one person; it is his being dragged into a tractor that is not threatening anyone that would kill him. Presumably, it would be permissible to turn the trolley from the ve in this case. (This is an implication of what I argued in I.A[iii].) If Scanlon accepts this, his view on Tractor should not change were the one person is not killed by the trolley but only by the tractor that is a threat to the ve.

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argued that it was permissible to give the medicine to the ve but Scanlon thinks that in this case, unlike Loop, giving the medicine to the ve rather than the one would violate his Nonforfeiture of Rights Principle, which states that If someone has a right to something (such as his organs), the fact that he would no longer have this right if he dies, does not justify harming or not aiding him. In Loop, harm to the one helps the ve as a result of merely causal effect (his body stops the trolley), but in Two Diseases the ve are helped by a change in the single persons moral claim to his organs brought on by his death. Scanlon similarly thinks killing someone in the Transplant Case is impermissible because we would kill someone in order to make him have no claim to his organs (which we can then use to save other people). (i) My concerns about these claims of Scanlons begin with his views of Transplant. It has been said by others that in Transplant, one need not intend the death of the person so long as his miraculously surviving is consistent with getting his organs to save others. This suggests that those who think we may kill in Transplant are not concerned with someones death because it eliminates his claim to his organs; they deny that the live person has any claim to his organs that prevents our using them to help others. Furthermore, suppose the persons will directed that after his death, his organs not be given to the ve. Scanlons view that killing in Transplant is wrong because it violates the Nonforfeiture of Rights Principle would not be applicable because the persons death would not change his claim to control his organs. But those who consider it permissible to kill in Transplant would, presumably, think killing in this case is permissible because they think the will is irrelevant. Scanlons analysis also makes it seem as though the wrong in Transplant is entirely different from the wrong of kidnapping someone so that others could be hooked up to use his organs. Here the wrong could not make the person lose any right he has to his organs or their sole use. It seems to me that in both cases, it is the violation of the right that the person continues to have to his life and organs that makes the act wrong. Scanlons analysis further implies that the reason why killing in Transplant is wrong is entirely different from the reason it is wrong to kill someone whose organs after his death would be magnetically attracted to living bodies nearby. But it seems to me that killing in such a merely causal version of Transplant would be wrong for the same reason as in the original Transplant. Similarly, his analysis implies that if it were a pure causal effect of the persons death in Two Diseases that his organs are magnetically installed in the ve, it would be permissible to give the medicine to the ve. But I do not think the two variants of Two Diseases differ morally.
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Consider a further objection to the Nonforfeiture of Rights Principle: There are other rights besides those to ones organs. Suppose that if we gave the scarce medicine to the ve to save them from disease 1, they would need another scarce medicine to save them from disease 2. However, they could not get the second medicine because the single person has a contractual right to be given it if he lives. Of course, if we give medicine 1 to the ve people, the single person will die and have no right to medicine 2. Scanlons principle, therefore, implies that it is morally problematic to save the ve in this case as well because the fact that the one person would no longer have a right to medicine 2 once he dies plays a role in justifying our aiding the ve and not him initially. I think this conclusion is wrong. We have seen that Scanlon tries to connect Transplant (and the not aiding version of it, in which we let someone die of an easily curable disease so that we can get his organs) with Two Diseases. It is important, however, to recognize a further distinction between them. Suppose that a new drug became available that could cure disease 1 only in the single person. Someone who thought that it was permissible to save the ve in Two Diseases only because this had the side effect of the one dying, could consistently agree that we should give the new medicine to the one, even if this interfered with his organs being available to save the ve. By contrast, someone who was willing to do what led to the one persons death in the not-aiding version of Transplant should consistently refuse to give the new medicine. One way to explain the difference is that in Two Diseases we act on condition that the one persons organs are available, while in Transplant we act in order to make it the case that the one persons organs are available. In sum, I think that neither Scanlons positive accounts of TC, Loop, and Two Diseases, nor the Nonforfeiture of Rights Principle, are satisfactory. II. Having, for the most part, discussed Scanlons own positive views, I shall now focus on criticism that Scanlon makes of my views. (A) Scanlon contrasts (1) the view that restrictions on harming or not aiding are based on rights, which, he says, restrict the ways in which harms are caused, and (2) the view that restrictions are based on causal relations between harms and the good that justies them. He supports (1), and he says that I support (2). (i) One concern I have is whether his description of the rights view accurately characterizes the way in which he himself speaks of rights. When he discusses rights not to have a trolley directed at one and not to be manhandled into harms way, he does not seem to emphasize

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the ways in which harms are caused, though I think it would be correct to do so. As I pointed out in I.A(iv) above, one may have a right not to be manhandled into harms way by someone pushing one over a bridge in Bystander, but one may have no right not to be manhandled into harms way as a consequence of the ve being moved to safety on the lazy Susan. (ii) My primary concern, however, is that there really may not be a strong contrast between views (1) and (2) as view (1) also describes my position. To see this, rst consider some of the causal relations that I discuss: the greater good, its structural equivalent, or means having these as a noncausal ip side causes the lesser evil; the lesser evil causes the greater good or its structural equivalent; a mere causal means to the greater good also causes a lesser evil. I emphasize in IE that these causal relations between goods and harms also involve dierent ways in which harms are caused. For example, harms are caused (directly or indirectly) by the greater good, its structural equivalent, or means having these as noncausal ip sides, or harms are caused by mere means (such as a bomb going o) to the greater good or its structural equivalent, or the mere means causes a harm that causes the greater good. Hence, view (2) is all about how harms come about (as well as about how good comes about) and about restrictions on, and permissions for, doing harm. For example, lesser harms may permissibly come about as eects of the greater good, its structural equivalent, or means having these as noncausal ip sides. They often should not be eects of mere causal means to the greater good. If a rights view is one that is concerned with how harms come about, then view (2) is also a rights view. (B) Scanlon says that view (2), as I present it, is downstreamish, which is indeed the term I used. Strict downstream views only allow harm to follow causally on greater good. Scanlon sees that my view is a modication of this, insofar as he notes that I permit means (such as turning the trolley) that have the greater good as a noncausal ip side to cause lesser harm, even though harm is not then strictly causally downstream from greater good. He also points to my allowing for a structural equivalent of the greater good to cause the lesser harm. However, he does not see what role this plays, and he fails to mention that my view often (not always) rules out using mere causal means to greater good that have lesser harm as a side effect. I think that his failure to understand the last two parts of my view explains why he mistakenly takes the primary message of view (2) to be that harm should not have a causal role in the occurrence of the greater good. This may be the message of strict downstream views, but it is not the message of my view.
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To show that he has not quite grasped my view, consider that in his nal paragraph, Scanlon represents Loop as a test case that shows that view (1) is correct and view (2) incorrect. Scanlon thinks that if it is permissible to turn the trolley in Loop, where hitting the one person has a necessary causal role in saving the ve, then view (2) cannot be correct as, he says, it emphasizes that harm should not cause good. The fact that Scanlon uses Loop as the end of his argument against my view is striking. After all, it did not escape my notice that hitting the one has a necessary causal role in saving the ve. For me that was the beginning of my theorizing, not the end of it, as Scanlon would have it. First (as already described in I.B[ii]), Loop led me to distinguish two types of causal roles for harmsustaining and productive; that is why the nal name for the theory is the Principle of Productive Purity (not causal purity). Second, in an important connection with view (1), Loop led me to emphasize the way in which a harm that is a necessary cause of the greater good comes about. As described in I.B(ii), I argued that when we turn the trolley away from the ve in Loop, we produce the structural equivalent of the greater good. It is the structural equivalent (or means that has the structural equivalent as its noncausal ip side) that causes the hit that has a necessary causal role in sustaining the structural equivalent (by stopping the trolley from looping). Hence, hitting the one sustains rather than produces the greater good. By contrast, I claimed, in the Tractor Case hitting the one has a causal role in producing the greater good. Neither standard downstream views nor Scanlon take account of this distinction, but my view does. This distinction in causal roles also shows that my view focuses on how the harm, which has a particular type of causal role in leading to the greater good, comes about. For example, is the harm caused by the turning trolley, which has the structural equivalent of the greater good as its noncausal ip side, or by a mere means to the greater good such as simply pushing someone into the looping trolley. Recall that my view also tries to explain why we may not set a bomb that will move the trolley from the ve, if the bomb causes death as a side effect without a causal connection to the greater good. Hence, my theory is not focusing only on harms that have a necessary causal role in leading to the greater good. In this case, again, my theory is concerned with how the lesser harm comes about rather than with the harms causal role in leading to the greater good. For example, is the harm caused by the greater good or its structural equivalent, or by a mere means to the greater good? Although Scanlon sees some ways in which views (1) and (2) overlap, he does not see other ways in which they are complementary. I also believe that view (2) provides a deeper understanding of view (1)
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by uncovering particular causal relations that determine whether harms may be brought about. Response To McMahan and Rosen Both McMahan and Rosen discuss the Intricate Ethics (IE) Responsibility and Collaboration chapter. I there discussed two variations on Bernard Williamss Jim and the Indians Case, namely the Scan Case and the Oer Case (among others). In Scan, Jim would act on his own, on information a brain scan provides that the Captain will release nineteen Indians if Jim shoots one Indian who would otherwise also be killed. I thought there was a reason to think that it was morally more dicult for Jim to kill one of the Indians in Scan than in Oer, where the Captain oers Jim a choice to kill one or else the Captain will kill all twenty. (In both variations, the Indians views are not available.) I thought the additional moral diculty arises because Jim would have some moral responsibility for the negative consequences of the death in Scan but the Captain would have all moral responsibility in Oer. The rst section of Rosens paper and the second of McMahans deal with the relevance of Jims moral responsibility. Rosens second section and McMahans rst deal with the issue of the Captains responsibility. For reasons of space, I shall try to combine my responses to both papers. Unlike McMahan, Rosen thinks that Kamm has identied a novel and somewhat surprising phenomenon, and he says, I think I understand the intuition upon which Kamm is drawing. I can get myself into a frame of mind in which it seems to me that the moral obstacles to intervention are less serious in Offer than in Scan. He describes this intuition as the following Datum: There is a moral reason for Jim to shoot in Offer that is absent in Scan, or perhaps a reason against shooting in Scan that is absent in Offerthe sort of reason that might make the difference between a permissible act and an impermissible one. McMahan denies the existence of the Datum, but for Rosen (in a certain frame of mind), the problem is to provide an explanation of it. Rosen notes that the Datum is consistent with its being permissible or impermissible to kill in both cases; it is just that particular obstacles to, or considerations that favor, permissibility are different. So when Rosen speaks of differential relative permissibility, he need not deny (what McMahan and I hold) that permissibility to an off on concept; he need only be thinking about the relative hurdles to achieving permissibility in the cases. Rosen says that if it is only psychologically easier to kill in Offer than in Scan, this does not provide a moral reason relevant to

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permissibility. I agree with this, as it could simply be supererogatory to do what is harder, not impermissible. However, if it were hard to do something, this could provide a moral reason that bears on whether the act is required. For the most part, Rosen gives the impression that he thinks shooting in Scan and Offer are permissible but not required. McMahan thinks it is Jims duty to shoot in both and, at one point, Rosen describes someone as being in a position to say that Jim had no choice but to shoot in Scan. This suggests that Jim had a duty to shoot, but it seems to me that its being psychologically hard to shoot could be a moral reason against this claim. It is also possible that there is a sense of moral reason that is broader than consideration that bears on permissibility, namely, the sort of consideration to which a moral agent (an agent concerned with morality) would attend in deciding what to do. I shall call this moral reason (B). Both McMahan and Rosen think that the explanation I offer of the (supposed) Datum is concerned with a difference in the distribution of moral responsibility (DR) in Scan and Offer: The Captain gets it in Offer and Jim in Scan. Rosen says that I think DR is important for two possible reasons: (I) it can preserve Jims moral purity, and (II) give the Captain what he deserves to have. He thinks that my explanation cannot be correct, and McMahan agrees. I shall consider their objections to (I) and then to (II). (I) (a) Rosen thinks that we could say that Jim is morally responsible for killing (and this will make him lose his moral purity) in Scan, only if we already assume that killing in Scan is wrong. Similarly, he thinks we could say that Jim is not morally responsible for killing (and this leaves him morally pure) in Offer, only if we already assume that killing in Offer is permissible. If this is so, it means that who will have moral responsibility cannot help to determine permissibility. Furthermore, he notes that I wish to run my argument without having to commit to the permissibility or impermissibility of the killings. My response to (I)(a) is that I was concerned with a sense of moral responsibility that one could have independent of whether ones act is permissible or impermissible, and hence whether one was culpable or not culpable. An agent could know that the act is morally at his doorstep and that if it is right, he may deserve praise and if it is wrong, he will be to blame, without knowing which it is. Hence, this sense of moral responsibilitycall it responsibility (P)precedes a judgment of permissibility. Also relevant to (I)(a) is my claim that even if an agents act is permissible, he could be morally responsible for wronging someone in the process of doing the right thing (as when we lie to a bystander to save
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a life). Such wrongings could be moral obstacles to conduct, and the concern not to be responsible for such wrongings underlay what I called an agents concern for hyper purity. Now let us consider whether Jims not being morally responsible in Oer depends on his act being permissible, and so not being responsible could not be a reason for permissibility.5 What I argued in IE is in partial agreement with Rosen: I said that if Jim did an act in Oer that has certain properties (such as being the killing of a bystander rather than one of the Indians) that made it impermissible, then moral responsibility for the act cannot transfer entirely to the Captain. These properties would settle the question of the acts impermissibility independent of determining Jims responsibility (P). However, my further claim was that sometimes certain factors are present that are reasons in favor of doing something (e.g., no Indian would be worse o; some would be better, etc. if Jim kills) so the act is not ruled out prior to considering the issue of responsibility (P). Then, not being responsible (P) could settle the question of permissibility or provide a moral reason (B), and being responsible (P) could raise an obstacle to action, at least in the sense of moral reason (B). (I) (b) McMahan too is concerned with the moral relevance of having responsibility. He asks, need the fact that one will not be morally responsible for the act and its eects play a role in making it be permissible for one to do an act? Could it play such a role? McMahan denies that it is needed. He says that if a natural cause threatened the Indians, Jim would be permitted to kill one Indian to save the rest. But it is no more important to stop a natural disaster than one caused by a person. Hence it should also be permissible to kill the one Indian to stop the Captain. Whether Jim is responsible plays no role in determining permissibility in this argument. I am concerned that this argument ignores considerations that could make it wrong to stop a threat presented by a person rather than a natural cause, not because it is a less important threat but because, for example, it allows a bad person to have power over our acts6 or helps him escape moral responsibility for a killing. Like Rosen, McMahan also denies that not having moral responsibility could make acts permissible, but for a different reason. He says
5

McMahan claims that a lawyer who evicts a tenant on behalf of his client may do a morally impermissible act, even though he is not morally responsible for the act. Hence, McMahan seems to deny that not being morally responsible for an act depends on its permissibility. As emphasized by N. Ann Davis in her The Priority of Avoiding Harm, B. Steinbock and A. Norcross, eds., Killing and Letting Die, pp. 298-354. Bronx, NY: Fordham University Press, 1994.
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that Jim will do the same act for the same reason (killing one in order to save others) in Scan or in Offer. Hence, an offer from the Captain (even assuming it eliminates Jims moral responsibility) would not strengthen (or give) a reason to kill and it would not rebut any objection to killing. Even if Jim were not responsible, this would be irrelevant to the agents deliberation about what to do. In responding to this argument, I will make use of a distinction I have elsewhere drawn between different types of reasons for action.7 In one sense, a reason for action is what we aim to accomplish; in another sense, it is what McMahan identies as a factor that rebuts objections to acting, so we act on condition it will exist but not with the aim of making it exist. I saw not being morally responsible as a reason of the second type. In addition, I want to distinguish between the rebuttals that make an act permissible and the rebuttals that make a permissible act less dicult for an agent concerned with morality. It is clear that not being responsible can rebut an objection to permissibility when being morally responsible would make one liable to compensate victims but one had no money with which to compensate. If someone else were morally responsible in the sense of liable for compensation for ones act, it could be permissible for one to act. There are other cases where effects on the interests and rights of others do not vary and yet not being responsible seems to affect permissibility. For example, one may foresee that others will be harmed if one acts but whether one would be morally responsible for the harm will depend on how ones act brings harm about. Suppose that A attacks B, and B wishes to defend himself. If his act of self-defense will, without any other agents willful intervention, cause harm not only to B but also to innocent bystanders, then B would be morally responsible for the harms and it may be impermissible for him to act. By contrast, suppose the harm to bystanders comes about because A responds to Bs act of self-defense by deecting toward bystanders the object B hurled at him. Though B can predict that A will do this, the fact that it is As act that will cause the harm to bystanders, not Bs, makes it permissible (I think) for B to defend himself. One could say of this case that because A, not B, will be morally responsible for the harm to bystanders, it is permissible for B to act. When B determines that he will not be responsible, this gives him a reason to act, by defeating the harm-to-bystanders objection to his act, even though his act, its aim, and its ultimate eects remain the same. However, McMahan says who will bear the responsibility may be determined by considerations that are relevant to the agents
7

See my Intricate Ethics, Chapter 4.

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deliberations but is not itself an additional consideration to be taken into account in assessing the permissibility of the contemplated act. So he might say that the fact that Bs act leads to harm only by way of As act can be a reason why Bs self-defense is permissible; As role determines that B is not morally responsible for harm but his nonresponsibility itself is irrelevant to permissibility. Though I do not nd this plausible, the important point is that this analysis is consistent with the Captains making an oer being a reason why Jims act is permissible (something McMahan denies), and with the oer making Jim not responsible for a killing, even if his nonresponsibility itself is irrelevant to the permissibility of Jims act. Now let us consider whether not being responsible could be a rebuttal that makes a permissible act morally less difcult. As noted, I did not want to insist that it was impermissible to act in Scan, only that it would at least be much easier, for moral reasons (B) to act in Offer. This could also be true if Jim got an offer from the Indians themselves, as then some of the moral objections to shooting that are, perhaps, outweighed in Scan might not even exist. Again, this is why I mentioned an agents concern with hyper purity. Furthermore, shooting on the authorization of the Indians might rebut an obstacle to Jims shooting just because it is the Indians and not Jim who will be morally responsible for the killing and any of its negative residues. I nd it quite understandable that instead of acting on ones own initiative, a person might seek to become a substitute actorwhat I called an Agentfor someone whom he knows will have a right to direct him to do permissible acts. One could take on this Agent role in order to avoid being morally responsible for even permissible acts (and their negative residue) that one wants to do. These are some reasons why I do not think McMahan is correct to say that where responsibility will lie is not among the reasons that count either against or in favor of an act, independently of whether they do so by affecting permissibility. (I) (c) Rosens ultimate concern with arguments for Jims avoiding responsibility for killing is that there is no powerful moral reason to avoid personal responsibility for bad occurrences, holding constant the interests and rights of others. (Call this the NMR view.8 As I am not sure what is meant by powerful, I shall just assume that Rosen thinks there is no moral reason to avoid personal responsibility for bad occurrences.) However, Rosen also accepts what he calls the perverse
8

There are dierent ways to interpret the holding constant the interest and rights of others clause. I believe Rosen is concerned with the same eects on others will occur even if one does not act.
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view that it is permissible to do an act that is clearly wrong (impermissible) to save someone else from doing the impermissible act with the same eects on others instead. Indeed, he believes that doing such an act to save someone else from doing something wrong can be morally admirable. However, it is not clear why his NMR view does not imply that there is no moral reason not to do the impermissible act merely for the sake of indulging in wrongdoing, when someone else would do the wrong act anyway with the same eects. Hence, it seems that Rosens views may imply that there is no moral reason for Jim not to kill all twenty Indians just for the sake of being a killer, if the Captain would kill them anyway and there is no way for Jim to alter the eects on the Indians.9 A consideration that Rosen thinks supports the NMR view is that being willing to risk a moral black mark (if there were one) by killing is like making a purely personal sacrice, and this can be heroic. By contrast, I do not think that getting a black mark on ones moral record is like sacricing ones leg. Ones leg may be something one has the authority to dispose of, but that is not the correct account, I think, of ones integrity or ones appropriate relation to right and value, which one has a duty to maintain. Now consider II. Rosen and McMahan doubt that making the Captain morally responsible for killing in Offer, thus making him get what he deserves to have, could be a moral reason for Jim to kill in Offer that he lacks in Scan. This is, in part, because they both think that the Captain will also be morally responsible for the killing in Scan. By contrast, it seemed to me that even though the Captain creates the situation in which so many lives are threatened and he could easily undo it, he would not be morally responsible for the killing Jim does in Scan, as Jim acts on his own and decides how to deal with the bad context the Captain created, prior to the Captains doing any act that is sufcient to kill the Indians. The Captain is morally responsible for the context, Jim for the death, though this need not mean that Jim is blameworthy in the way the Captain would be if he killed. (II) (a) To support his view, Rosen presents the Botched Rescue Case, in which ofcials who try to rescue the twenty accidentally kill one Indian in the process. He believes that the Captain is morally responsible for this death, not the ofcials who do the right act in trying to rescue.
9

Does Rosens NMR view imply that if Jim knew that rocks were about to fall on and kill one Indian, prompting the Captain to release the other nineteen, there is no moral reason for him to wait for the rocks rather than shoot? But if he waits, the Indians right not to be killed will not be transgressed.

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Reaching a conclusion about Scan from Botched Rescue ignores the fact that in Botched Rescue, it is not the killing but other things that the ofcials must do that are necessary means to the rescue; the rescuers should not be required to forego doing them just because there is some risk that one of the Indians (or even a bystander) will be accidentally killed. But this is a different issue from whether the Captain will be morally responsible for the killing if the ofcials decide to deliberately kill the Indian, as Jim would do in Scan. Rosen may suggest that Botched Rescue shows that the Captain is morally responsible for anything it is permissible for Jim to do to stop the killings. However, this will require a judgment that it is permissible to kill in Scan. Also, it is permissible for Jim to sacrice his own life to save the Indians, yet the Captain would not be morally responsible for his doing this. The Captains being responsible for anything Jim has no choice but to do may exclude such supererogatory acts, but it would imply that Jim was morally required to shoot the one Indian, and I do not think this is true. One way I tried to distinguish the responsibility of the Captain in Offer and in Scan was to imagine the Reformed Captain Case. I thought that if the Captain became a good person, though he would regret having created the context in which Jim found himself in Scan, he could also be relieved that the killing that occurs if Jim shoots is not one he actually helped decide to bring about. This would not be true of Offer. (Notice that since the Captain would not actually have pulled the trigger in Offer, it is not his not having done this in Scan that provides the relief.) The responsibility whose absence would be the object of his relief is present in Offer but absent in Scan. (II) (b) McMahan also objects that if Jim were morally responsible for the death in Scan, it is not clear how his responsibility would transfer to the Captain in Offer. It seemed to me that if Jim accepts the offer from the Captain, it is possible to construe him as something like the Captains Agent in the sense of substitute actor. Ordinarily, when someone becomes an Agent, it is because he is permitted to act on behalf of someone who has a right to make decisions concerning what the Agent will be asked to do. So if Jim permissibly accepts an oer to be an Agent for the Indians themselves who have a right to decide what happens to their lives, they would have moral responsibility for Jims killing one of them. Does McMahan think there is any diculty with the idea of moral responsibility for the killing transferring from Jim to others in this case? The problem with moral responsibility for the killing shifting from Jim to the Captain in Offer, it seemed to me, is that the Captain has no right to decide what to do with the Indian lives, so how can Jim
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permissibly become his Agent? The way I would now explain this is that while lacking a right to kill any of the Indians, the Captain does have a right to diminish the amount of harm he will do (even if he does not have a good motive for doing so).10 Jim may permissibly become the Agent of this diminishment, if this is good for the Indians. If he becomes the Agent, moral responsibility for the act goes to the Captain, as it would have gone to the Indians were Jim their Agent. This account does not, however, explain another aspect of my account in IE (which McMahan also questions). I claimed that if Jim makes the oer to the Captain to shoot one Indian on condition that the Captain does not shoot all twenty, then full responsibility for the death does not shift to the Captain; Jim and he will share moral responsibility. However, if the Captain has a right to diminish the harm he does and Jim may accept in Oer, how could Jims making (or prompting) the oer to be an Agent make him partially morally responsible for the death, if simply getting and acting on an oer relieves him of moral responsibility? A further difference between Scan and these different types of Offer Cases, emphasized by another view of these cases (on which I did not focus in IE), may help explain why Jims moral responsibility for the killing would be eliminated only in the original Oer. According to this second view, it is important that Jim is put on the spot by the Captains oer to him. Jims being on the spot is not just a matter of his knowing that what the Captain will do depends on what Jim does. For in Scan Jim knows this too. Rather, it is a matter of his facing a challenge that is directed to him by the Captain. Even though his own well-being is not threatened in Oer, the challenge being directed to him may constitute a form of coercion that the circumstances in Scan cannot produce. According to this second view, it is the coercion resulting from being put on the spot that causes the transfer of moral responsibility for the killing from Jim to the Captain.11 However, the more Jim does to prompt the oer, the less reasonable it becomes to see him as being put on the spot and coerced by this, and thus the less reasonable it becomes to think that moral responsibility transfers to the Captain because of his coercion of Jim.
10

This step in the argument was not explicitly made in Intricate Ethics, and I now think it helps make better sense of the position for which I tried to argue there. I believe that John Gardiner and some others at the Conference on Intricate Ethics (held February 22-23, 2008 at the Rutgers Institute for Law and Philosophy, Rutgers University) expounded such a view. Elinor Mason presented such a view in her presentation at the Conference on the Moral Philosophy of F. M. Kamm at Oxford University, November 29, 2008.

11

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This would provide an explanation of why Jims offering to be an Agent does not result in complete transfer of responsibility to the Captain, but it requires a different explanation than I provided in IE of why responsibility does completely transfer in Oer. For my explanation, that Jim becomes an Agent for the Captain in Oer, does not see him as coerced into action but rather as freed to act by the fact that he will not have moral responsibility for killing. While it is possible to be coerced into being an Agent who will not have moral responsibility, the coercion would not allow for my original claim that Jim can take not being morally responsible for killing as a reason for accepting the oer. This is because Jims taking not being morally responsible for killing as a reason would be an indication that he is not being coerced into being an Agent. (Coercion itself is not a reason for action that eliminates moral responsibility; it is only a cause of action that can eliminate responsibility.) To separate the Coercion view from the Agent view, we could imagine a case in which the Captain posts written notices of his offer all over the town, although Jim is aware that he is the only one who can read (Posted Offer Case).12 When Jim reads the notice, he is not put on the spot any more than in Scan, but since an oer has been made, if the Agent view were correct, Jim would have a reason to shoot that he lacks in Scan. However, there may be another reason why moral responsibility would not transfer completely from Jim if he accepted the posted oer: Unlike Rosen, I believe a moral agent, for moral reasons, should be reluctant to get involved in situations where she will have to kill someone, even when this will make the person killed no worse o and others better o. If there is a moral reason for Jim not to become an Agent when he is not already on the spot, becoming an Agent may not release him from some moral responsibility for the negative consequences of the act. (II) (c) Rosen raises objections to the (supposed) good of securing a measure of retributive justice by making the Captain morally responsible for a killing for which he deserves to be responsible. He says that if a consideration of this sort can sometimes make the difference between a permissible act and an impermissible one, it will lead to wrong decisions in other cases. As an example, he considers a case in which doctors can save either a victim of an accident or the victim of a drive-by shooting. He thinks that my views about the difference between Scan and Offer imply that (other things equal) the doctor should not save the drive-by victim because only this victims death will make someone responsible for a death for which he deserves to be responsible. Yet, he says, this is an obviously incorrect conclusion.
12

It is possible that this case was suggested by a member of the audience at Masons presentation.
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I agree that making the drive-by shooter responsible for a death is no reason to deprive his victim of an equal chance to be saved. I deny that my ground for distinguishing Scan from Offer implies that it is a reason. First, as I have argued in other contexts,13 the fact that a consideration provides a reason sometimes does not mean that it always provides a reason. I call this contextual interaction, and it can make what is sometimes a reason be irrelevant. For example, I have said that the fact that we could save some owers if we direct a trolley toward killing one person rather than another is irrelevant to deciding toward whom we should direct the trolley. Yet if we have no alternative but to direct a trolley toward one person, and one method of directing will save owers and another not, saving owers can be a reason to choose the rst method. Similarly, in Rosens Doctor Case, given that each victim is concerned with his being the one to survive, it is wrong to deprive either of his chance of survival for the sake of making a shooter responsible for killing. The latter would, at the very least, be what I have called an irrelevant good in this context. In Scan and Oer, however, we would not use achieving the additional good of responsibility for a killing being where it belongs to choose whom to kill or save. Rather, the contrast between Oer and Scan is more like the contrast between sending a trolley toward the same person with or without achieving the additional good of saving owers. It is also worth re-emphasizing that I argued in IE that some reasons for action are goals of action; other reasons are conditions of action. For example, in my Party Case, my goal to give a party for my friends could be defeated by a side eect of my pursuing my goala mess. It is a condition of my having the party that this defeater gets defeated. My guests feeling indebted and cleaning up (another side eect of the party) will defeat the defeater. Similarly, one way to construe the Captains being morally responsible for the killing is as a condition of Jims act, not as a goal of his act. That is, there are considerations in favor of Jims acting, but there is the obstacle, as I saw it, of his being morally responsible (P) for killing in Scan. If the Captain will be morally responsible in Oer, this defeats a defeater to Jims acting. (Notice that this analysis points up a dierence between Rosens Doctor Case and Scan and Oer: The doctor faces no obstacle to saving either person (stemming from his then being responsible for killing someone) that would be defeated by his doing what makes the shooter responsible for killing.) The distinction between the Captains being responsible treated as a goal or condition might be brought out by a case in which there is no
13

As summarized in Chapter 1 of my Intricate Ethics.

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obstacle for Jim that must be defeated. Suppose rocks will fall on one Indian (when Jim cannot stop them falling), but the Captain will think that Jim has killed the Indian and he will release the other nineteen (Rockslide Case). Given what I have said about Offer, I am committed to its being better that the Captain make an offer and Jim act on it before rocks fall, so that the Captain gets responsibility for a killing. Much of my concern in IE was that in cases where moral responsibility for killing would fall on someone, it would be better if it fell on the Captain who creates the problematic situation rather than on Jim. However, even if the Captains retaining responsibility for a killing were an appropriate goal for Jim to have, could be an a criminals retaining responsibility could be an inappropriate goal in other cases. (II) (d) Rosens nal objection to the idea that keeping responsibility with the Captain helps explain a moral difference between Scan and Offer is raised by his Insane Captain and (Reasonably) Mistaken Captain versions of Scan and Offer. His sense is that in neither of these cases would the Captain deserve moral responsibility for a killing, and yet the Datum is still present. Hence, keeping responsibility where it belongs cannot explain the Datum.14 My sense, however, is that the Datum may not be present in the Insane Mistaken Captain versions of Scan and Offer. At least there is not as much of a difference between these as between the original set. I think Rosens cases are closer to ones in which a natural disaster threatens the twenty and killing one of the twenty will save nineteen. Indeed, the Captain in both of Rosens cases is more like another victim of things gone wrong, whom Jim, in the Scan version, is trying to help out. It may be that because there is no morally wrong act that creates the problem situation, and Jim would not be helping to carry out part of an evil plot, there is no need to worry about helping the Indians without shifting responsibility for killing. To the extent to which any part of the Datum is still present, this may be due to the factor emphasized by the Coercion view: Jim is put on the spot in a coercive way when an offer is directed to him, even by an insane person, but not in Scan. In a sense, the insane or morally reasonable Captains offer puts Jim in charge of what the Captain will do. In Scan, what Jim does may determine what the Captain does, but not because he has been put in charge by the Captain of determining what the Captain will do.

14

In addition, there is no sense in which an insane Captain could make Jim his Agent by an oer, so there could be no transfer of responsibility from Jim (whether or not the Captain deserves it) on these grounds.
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