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JOURNAL OF

MORAL
PHILOSOPHY

Journal of Moral Philosophy 9 (2012) 178–199

brill.nl/jmp

A Critique of Scanlon on Double Effect
Joshua Stuchlik

Department of Philosopy, University of St. Thomas, St. Paul MN, USA
jstuchlik@stthomas.edu

Abstract
According to the Principle of Double Effect (PDE), there are conditions under which it
would be morally justifiable to cause some harm as a foreseen side-effect of one’s action
even though it would not be justifiable to form and execute the intention of causing the
same harm. If we take the kind of justification in question to be that of moral permissibility,
this principle correctly maps common intuitions about when it would be permissible to act
in certain ways. T.M. Scanlon argues that the PDE so interpreted is problematic, as it returns
implausible verdicts in other scenarios. Scanlon is unable to account for the common
pattern of moral reasoning that we employ in the relevant cases. I argue that we can account
for this pattern while avoiding implausible verdicts if we interpret the PDE as a principle
about when it is licit to inflict harm rather than when it is permissible to do so, and if we
connect the concept of the licit with that of the permissible in the right way.
Keywords
Aquinas, double effect, intention, moral permissibility, Scanlon

According to the Principle of Double Effect (PDE), there are conditions
under which it would be morally justifiable to cause some harm as a foreseen side-effect of one’s action even though it would not be justifiable to
form and execute the intention of causing the same harm. If we take the
kind of justification in question to be that of moral permissibility, this principle correctly maps the intuitions of many people about whether it would
be permissible to perform a specified action in certain philosophical
thought experiments. However, in Moral Dimensions T.M. Scanlon argues
that the PDE so interpreted is problematic, as it returns implausible verdicts in other scenarios. On his diagnosis this results from the fact that the
PDE confuses two uses of moral principles, their use as guides to deliberation and their use as standards of criticism. Scanlon contends that in order
to explain why it is sometimes permissible to act in the cases to which the
PDE is typically applied we must recognize that moral principles have
exceptions, where the nature of these exceptions varies from case to case.
© Koninklijke Brill NV, Leiden, 2012

DOI 10.1163/174552412X625763

J. Stuchlik / Journal of Moral Philosophy 9 (2012) 178–199 179

I think Scanlon is right that the version of the PDE he considers has
implausible consequences. But I believe his solution is also inadequate.
The reason is that it cannot account for the common pattern of moral reasoning we employ in the relevant cases. My goal in this paper is accordingly
to offer an alternative. Crucially, I think that the PDE can be formulated in
two distinct ways, either as a principle about when it is morally permissible
to bring about some harm or as a principle about when it is licit to do so.1
While the concept of the licit is no doubt closely related to that of the permissible, I will argue that they are not equivalent.
In Section I, I distinguish these two versions of the PDE and I say why it
is often taken as a principle about when it is permissible to bring about
some harm. In section II I outline Scanlon’s complaint about the PDE, his
diagnosis of where it goes wrong, and I explain why I find Scanlon’s positive
view unsatisfying. I then turn to developing my alternative. In section III
I argue for the possibility of a class of moral principles that state that an
action would be licit or illicit rather than permissible or impermissible.
This is important because I think the PDE is best understood as just such a
principle. Finally, in section IV I argue, following William FitzPatrick, that
what it is permissible to do is a function of what it is licit to do. I then show
how this fact provides for a better explanation of when it is permissible or
impermissible to act in the relevant cases than the one offered by Scanlon.
I
The PDE discriminates against cases in which a harmful effect is both
brought about and intended by the agent of the harm and in favor of cases
in which the harmful effect is foreseen but not intended.2 The principle is
usually traced back to Aquinas’ discussion of self-defense in the Summa
theologiae. According to Aquinas, there are severe restrictions on when
deliberate killing is morally justifiable and on who may carry out the task.
He claims (1) that it is illicit for a private person to kill anyone, and (2) it is
illicit for a public official, in his role as representative of the state, to kill an

1
 I will sometimes simply use the term “permissible” instead of “morally permissible”,
leaving it implicit that the sort of permissibility at issue in this paper is moral
permissibility.
2
 Cf. Warren Quinn, “Actions, Intentions, and Consequences: The Doctrine of Double
Effect,” in W. Quinn, Morality and Action (Cambridge: Cambridge University Press, 2003),
pp. 175-93, at p. 176.

44-9.3 Nonetheless.” Theological Studies. 1981). Mangan.g. Q. in the course of self-defense. Therefore.4 On this interpretation. On the other hand. justifiably bring about the death of an attacker as a side-effect of her intended action.64. 30). Westminster. even if a predictable consequence of striking his legs is that he will die of the wounds. 2006]. trans. then one may do so. These conditions are that the defender’s own life is being threatened and that the defender does not do more harm to the assailant than is necessary to repel the attack. 6  Though in this paper I will be focusing on cases that involve killing. MD: Christian Classics. 41-61. see J. 5  This interpretation of Aquinas on self-defense is not uncontroversial. 5 vols. as is customary in discussions of the PDE. 1874). he does appear to allow that in certain circumstances a private person may.5 Aquinas focuses on a case in which one may justifiably kill another.180 J. 3 . The term “innocent person” refers either to a member of one’s own political community who has not broken the law or to a member of another political community who is not an enemy combatant or member of an enemy military establishment. For a commentary on the issue. then it would rule out some actions that proponents of the PDE usually think are morally justified (Double-Effect Reasoning: Doing Good and Avoiding Evil [Oxford: Clarendon Press. Cavanaugh argues.A.3.64 a. If it is supposed to assert that one may not produce the bad effect as a means to the good one.. today the PDE is normally taken as a more general principle.6 The first modern statement of the PDE in this more general way was by Jean-Pierre Gury. Summa theologica of Saint Thomas Aquinas. He says that the death of the attacker must be praeter intentionem. 60-1. slightly simplified. e. she may licitly perform an act that results in the death of the attacker so long as she does not aim at it and certain other conditions are met. a. Controversy arises because it is unclear whether he means to assert by this phrase that the defender may not aim at the death of the attack only as her end. As T. if the condition asserts that the bad effect cannot be even a partial though not intended cause of the good one. Stuchlik / Journal of Moral Philosophy 9 (2012) 178–199 innocent person. is as follows7:  Summa theologiae (hereafter ST) IIaIIae Q. p. by the Fathers of the English Dominican Province (New York. reprint. at pp. which states that the good effect must not be produced by the bad one. whose topic is the bringing about of seriously harmful effects. if the only way for one to escape from an aggressor who poses a lethal threat would be to cripple him. I have simplified Gury’s formulation by omitting a fourth condition that he includes.7. then it is already provided for by the second clause. Gury’s formulation of the PDE. 4  ST IIaIIae.T.” pp. or that she may not aim at his death as either an end or a means. However. “An Historical Analysis of the Principle of Double Effect. 10 (1949). “An Historical Analysis of the Principle of Double Effect. this fourth condition is either redundant or misleading. NY: Benziger Brothers. pp. reproduced in Mangan. 1947. 5th edition (Regensburg: Georgii Josephi Manz. Compendium theologiae moralis. he teaches that while a person may not aim at the death of an attacker either as an end or means. 7  Jean-Pierre Gury.

and determining it requires some degree of sound moral intelligence.” Philosophy and Public Affairs 20. It thus functions as a principle of non-consequentialist moral reasoning. pp. clause (1) presupposes that some types of action are morally bad. I will argue in Section III that they are not equivalent. that if one does A one will be able to save one’s own life or that of someone to whom one has special obligations. “Self-Defense. a “liceity” version and a “permissibility” one. he always has in mind the permissibility version of it. Stuchlik / Journal of Moral Philosophy 9 (2012) 178–199 181 One may licitly perform an action A that one foresees will produce both a good effect and a harmful one just in case   (1) A is not itself a morally bad type of action. One reason why the PDE tends to be formulated in terms of permissibility may be that when so formulated it is able to explain directly the moral intuitions that many people have about when it would be permissible to act in certain pairs of cases. While Gury formulates the PDE as a principle specifying conditions under which it would be licit to perform a certain sort of action. Double-Effect Reasoning. and this fact is important for clarifying two points in its formulation. and these would plausibly include acts such as theft.. and lying. 497-518. while in clause (3) “proportionately grave reasons” for acting may include the fact that the total amount of harm that will be produced if one does A is less than it would be if one does not.J. The PDE is meant to put constraints on the way in which one may pursue worthy ends.   (2)  one intends to cause only the good effect and not the harmful one.” Ethics 109. Second. e. 283-310. What constitutes proportionately grave reasons for acting is not itself specified by the PDE. pp. Cavanaugh. In the meantime it is enough to note that we can prima facie distinguish between two different versions of the PDE.   (3)  one acts for a proportionately grave reason.g. First. both contemporary defenders of the principle and its detractors often substitute his talk of liceity with that of moral permissibility. When Scanlon discusses the PDE. 8 . at least under certain circumstances. and “Physician-Assisted Suicide: Two Moral Arguments. Judith Jarvis Thomson. Some standard examples of these cases are as follows:  E. such reasons need not be exhausted by considerations about the amount of harm one’s action will bring about. adultery. as either an end or means.8 While the concepts of the licit and the permissible are no doubt closely related.g.. Other grave reasons might include.

182 J. i). i)  Shipwrecked: A submarine crew has been shipwrecked on a desert island. (b. i). even though it will result in the death of a crewmember. (d. . i)  Craniotomy: A woman’s life is in danger due to complications with her pregnancy. it would be permissible to submerge the submarine in (c. (b. Stuchlik / Journal of Moral Philosophy 9 (2012) 178–199 (a. i)  Terror bombing: A pilot could help his country win a war by bombing civilian residences. yet it would be permissible to divert the trolley onto the side track in (a. the woman is pregnant and the fetus she is carrying will die when the uterus is removed. It seems that it would be impermissible to push the bystander onto the track in (a. One could save the five workers if one were to push a lone bystander onto the track. But one crewmember is trapped above deck and will drown when the sub submerges. bringing the trolley to a halt. thus undermining their support for the war. However. The only way to save her life would be to remove the unborn fetus by performing a craniotomy. The effect of the bombing would be to terrorize the enemy’s people. There is a hospital nearby. ii). it must be submerged. (a. ii) Submarine attack: A surfaced submarine is under attack by enemy planes. (c. On the other hand. it would be impermissible to perform the craniotomy on it in (b. ii).i). ii) Tactical bombing: A pilot could help his country’s war effort by bombing an enemy munitions plant. The only way to prevent the starvation of the whole crew is to kill one of its members and use his body for nutrition. The only way to save her life is to remove the uterus by performing a hysterectomy. If we assume the fetus is a person. it also appears to be permissible to perform the hysterectomy in (b. except this time one could save the five by operating a switch that would turn the trolley onto a side track where there is one trapped worker who would then be run over by it. or a being with rights. However. ii) Hysterectomy: A woman’s life is in danger due to a cancerous uterus. ii) Trolley/switch: The same as above. In order to prevent it from being destroyed. It would not be permissible to kill the one to save the rest of the crew from starvation in (c. (d. ii). i)  Trolley/push: A runaway trolley is speeding along a track towards five trapped workers. They are awaiting rescue but have run out of food. (c.

Scanlon’s central objection is that it returns bizarre verdicts about whether it is permissible to act in certain other cases. i). ii) if she did not intend to kill anyone she may not intend to kill as the means to her good end. It might be argued that in (d. i). 10  Similar examples involving pain relief and euthanasia are put forward by Thomson. (c. Stuchlik / Journal of Moral Philosophy 9 (2012) 178–199 183 though. There is a patient in the hospital who is suffering severe pain. as Aquinas points out. but the pilot in (d. the reason an agent would act impermissibly if she were to perform the actions under consideration in (a. ii). ii). . The permissibility version of the PDE has an elegant explanation for the common moral intuitions about these pairs of cases. i). it is permissible to cause harm as a foreseen but not intended sideeffect of one’s action. By contrast. as a means to bringing about her good end. (b. The hospital’s administrator asks you whether it is morally permissible to  9  I say the agent would not intend to kill anyone. It appears that Gury’s formulation of the PDE is directed at agents acting as private citizens. but merely foresaw their death. “she may not intend to kill” for the following reason. and (d. provided there is a serious enough reason for doing so. The pilot in (d. and if the pilot destroys the plant a number of civilian patients will be killed as a result of collateral damage. ii) one cannot form and execute the intention to destroy the munitions plant without intending lethal harm to any workers within it. ii). It says that while it is always impermissible for one to form and execute the intention to harm another. This fact is morally significant. if the PDE is formulated as a principle that makes the permissibility of action dependent on the intention with which it is performed then it also has problematic consequences. i) is that in each of these cases she would intend to kill another. (c. i) would act impermissibly were he to bomb the civilian residences. J. 514-6. “Physician-Assisted Suicide: Two Moral Arguments. or some others. not as soldiers in times of war. Consider the following scenario10: (e) Ethics committee: You are a member of a hospital ethics committee. (b. Here we must take into account the fact that in this case one is acting as an officer of the state. and (d. it would be permissible for an agent to act in the specified way in (a.” pp.9 II Even though it provides an explanation of common moral intuitions in the pairs of cases above. Therefore. But it is still intuitively permissible to intend to destroy the plant. ii) would act permissibly if he bombed the munitions plant.

” p. Whether it is permissible to give the patient a barbiturate drip here should turn only on the facts provided in the description of the case.M. The motives and intentions with which an agent performs an action in turn tell us something about the quality of her will. her act would be impermissible. This consequence seems wrong. The plant is so situated that its destruction would inevitably cause the death of a number of civilians. Scanlon. If the doctor administering the drip would do so intending only to relieve the patient’s suffering. Again. The drip will ease his suffering but will also suppress his respiration. But if the doctor would intend to relieve the patient’s pain by killing him. her act would be permissible. 20. However. causing him to die. Stuchlik / Journal of Moral Philosophy 9 (2012) 178–199 provide the patient with a barbiturate drip. Moral Dimensions: Permissibility. So you should tell the administrator it is only permissible to give the patient the drip if the hospital has a doctor who would administer the drip with the first set of intentions.184 J. What should you tell the administrator? If the permissibility version of the PDE is correct. but that it would have to be called off if he (also) intends to kill the civilians. you also need to know about the intentions of the doctor who would administer the barbiturate drip. it would be strange to say that the operation could go through if it is the intention of the bombing pilot merely to destroy the plant for the sake of victory. Blame (Cambridge. thereby undermining support for the war among the enemy population. Thomson. 12  Cf. Scanlon provides another example with this same shape11: (f) Prime minister: You are the prime minister of a country at war. whether or not an action is permissible or impermissible turns on the state of mind (the motive or intention) of the agent who performs it. Otherwise. p. . and would administer the drip in order to execute this intention. 292. such as 11  T. The commander of the air force wants to know whether it would be morally permissible for one of his pilots to bomb a certain enemy munitions plant. Meaning. 2008). “Self-Defense. it is impermissible. Whether the hospital happens to have a doctor on hand who would administer the drip with a certain intention should not be relevant. it is not at all clear to me that this verdict really is implausible.12 Why do these cases cause trouble for the permissibility version of the PDE? According to it. though. p. MA: Belknap Press of Harvard University Press. Scanlon also thinks that the PDE leads to the implausible result that one may not turn the trolley in Thomson’s “Loop” variation of the trolley problem (Moral Dimensions. I therefore concentrate on counterexamples that are less likely to be controversial. 18).

For instance. pp. the person whose item it is does not plan on using it to harm another. whether a doctor who gives the suffering patient a barbiturate drip in Ethics committee acts permissibly does not hang on whether she does so out of a virtuous motive. When we use moral principles in this way they enable us to answer the question whether an agent who did A. Scanlon diagnoses the source of this mistake in a failure to distinguish between two uses of moral principles. whether she gave them their proper weight. which he calls their deliberative employment and their employment as standards of criticism. but we do so in order to assess whether she took the proper moral principles into account during her deliberation. so long as certain other conditions hold. Moral Dimensions. We can suppose that a doctor who gives the patient the drip with the intention of killing him acts badly. moral principles are also employed as standards of criticism. 14 . The permissibility version of the PDE is mistaken because it supposes that the permissibility or impermissibility of an action is determined by the quality of will of its agent. e. 13  Scanlon. in some actual or hypothetical situation acted well or badly by doing A under those circumstances. and if she failed to do one or both of these.14 When we evaluate an agent in this way we do inquire into her psychological states.13 In their deliberative employment. pp.  Scanlon. moral principles guide agents as they engage in practical reasoning.g. But what cases such as Ethics committee and Prime minister show is that evaluations of acts as permissible or impermissible evaluate them in a way that is independent of the quality of the will of the agent of those acts.J. 22-3. 22-4. Now. whether her failure was due to reasonable ignorance. or who is doing it or who will do it. We can say that one “acts well” just in case one’s action is a manifestation of a good will. For example. the fact that a certain item in one’s possession belongs to another and the fact that she is asking for its return make it impermissible to refuse to give it back. and that one “acts badly” just in case it manifests a bad will.. we can define a category of act evaluation that evaluates actions by reference to the quality of the will of the agent who performs them. What is important here is that principles guide agents by citing certain types of action together with features of potential situations that generally obtain independently of the state of mind of the deliberating agent. Stuchlik / Journal of Moral Philosophy 9 (2012) 178–199 185 whether it is virtuous or vicious. Besides being guides to deliberation. Moral Dimensions. but this just shows that one can perform a permissible act for a bad reason.

and his intention should be abandoned. It is obvious. ii) show that it is sometimes permissible to act in ways one expects will cause death if it is the only way to prevent the deaths of a greater number. He must appeal to other sorts of exceptions to explain why it is permissible or impermissible to act in the other pairs of cases. p. It appears that we are responding to a general feature or features present in the diverse cases when we make our moral judgments about them. 28. and the threat to civilians is as minimal as possible given the end of attaining the advantage. the pairs of cases (a)-(d) in Section I all have something in common above and beyond the fact that in each of them it is permissible to act only in the second case in each pair. Stuchlik / Journal of Moral Philosophy 9 (2012) 178–199 Scanlon agrees that if the pilot mentioned in Prime minister were to bomb the munitions plant with the intention of bringing about the death of nearby non-combatants he would not be acting well. Moral Dimensions. we must further refine when the general prohibition on killing allows for exceptions. In the rest of this paper I will attempt to provide such an analysis. though.  Scanlon. he believes that cases such as (a. To say why turning the trolley onto the side track is permissible while pushing a bystander onto the track is is not. For instance. what makes it the case that the bombing is permissible is that one may use lethal force when its use can be expected to bring about a military advantage. Scanlon’s explanation is deeply unsatisfying. p. Yet if Scanlon is correct. i).  Scanlon recognizes this aspect of his view but does not make anything of it (Moral Dimensions. the advantage is proportionately weighty compared with the number of expected civilian deaths. and it is a virtue of the permissibility version of the PDE that it proposes a single explanation of why it is permissible to act when it is. that this will apply only to (d. and these exceptions form a mere heap with no internal unity. and that one that avoids it would therefore be prima facie preferable. this appearance is deeply misleading.16 I take it that this is a serious shortcoming of his analysis. But this is not always the case. The reason it is permissible to act in the second case of each pair is that a different exception to the general prohibition on killing is in force in those cases.15 Scanlon regards the permissibility of bombing the munitions plant as an exception to a general prohibition on the use of lethal force. Intuitively. 36).186 J. On his view. But he denies that this intention determines whether it is permissible for the pilot to bomb the plant. 15 16 . as is shown by (a. ii) above.

When Scanlon says the pilot does not act well  See page 8. But to say that an agent acts well is also to say that her act is morally justified in some sense. Consider again the bombing pilot from the Prime minister case. but according to him whether an agent acts well or badly is determined by whether she gives the appropriate moral principles their due weight in her deliberation. a pilot has the task of bombing a munitions plant that is situated in such a way that its destruction will also kill a number of civilians. On Scanlon’s view if the pilot does not act well it must be because he did not take the proper moral principles into account in his practical deliberation. However. Scanlon recognizes this. moral principles guide agents’ practical reasoning by citing features of potential circumstances that would count for or against the performance of certain types of action in those circumstances. Recall that his central premise is that in their role as guides to deliberation. undermining support for the war among the enemy population. Note that while he applies this point only to one specific kind of moral justification. 17 . however. I first want to question Scanlon’s diagnosis of what makes the permissibility version of the PDE problematic. From this premise Scanlon infers that whether an action is morally justified is not dependent on the state of mind with which it is performed. Scanlon wants to say that the act of bombing the munitions plant is permissible because conditions are such that the prohibition on the use of lethal force that normally obtains is here not in effect.J. it is far from clear that we can do without such principles. This is important because besides evaluating whether a certain action is morally permissible or impermissible we may also evaluate whether it is a case of acting well or badly. and the only kind of principle he considers is the kind that states that the performance of some action would be permissible or impermissible.17 Recall that in this scenario. his point is a general one about a constraint that the deliberative function of moral principles allegedly places on moral justification. Stuchlik / Journal of Moral Philosophy 9 (2012) 178–199 187 III Before doing so. permissibility. He also wants to say that if the pilot destroys the plant with the intention of terrorizing the population he does not act well. while Scanlon does not countenance the possibility of principles that say directly of certain actions that an agent who performs them acts well or badly.

principles of this sort could state that one would be acting badly in doing A. Yet there seems to be nothing in Scanlon’s account that would legitimate such a judgment. one will have executed the intention to do A. It seems that even though this pilot is conscientious. Stuchlik / Journal of Moral Philosophy 9 (2012) 178–199 in intending to terrorize the enemy population he thus seems to have in mind what we might call the “unconscientious vicious pilot. whether an action is morally justified is not dependent on the state of mind with which it is performed. I want to challenge the goodness of this inference. there can be no such principles. What would enable us to account for the judgment that the conscientious vicious pilot acts badly would be the existence of a moral principle stating that one who kills citizens in times of war acts badly. For rather than stating. Therefore. He first makes sure that an exception obtains and that it is permissible to bomb the plant before he does so in order to kill the civilians..g. e. if the inference is a good one. It is because he endorses the following inference: since moral principles cite features of potential circumstances that count for or against the performance of a certain action rather than states of mind of the agent. though vicious. But we might also fill out the case in such a way that the pilot. he still acts badly insofar as he intends to kill the civilians. at least those likely effects that might be morally . when an agent deliberates practically standards of clear-headedness and intellectual honesty require her to consider the likely effects of possible courses of action.” What makes this pilot unconscientious is that he bombs the munitions plant without so much as considering whether it is permissible to do so. that one would be acting badly in intending to do A. or I would add. Its validity depends on the additional assumption that the only way moral principles could allow or prohibit acting with certain intentions would be by specifying that this is so as part of their content. This pilot differs from the unconscientious vicious one in that he takes the relevant moral principle into account before he decides to bomb the munitions plant with the intention of killing the civilians and thereby causing terror. and this assumption is false. As Michael Bratman notes. But whether an agent acts well or badly in certain circumstances does depend on the intentions with which she acts. is also more conscientious.188 J. He simply does not care. but in a context in which it is understood that such principles are meant to guide one’s choices in a sense of “choice” that implies that if one does A by choosing to do it. I say these principles guide choice in this particular sense because the term “choice” is ambiguous. The reason that Scanlon does not consider the existence of principles that specify that certain actions are cases of acting badly is not hard to find.

20 Therefore.E. Volume III: Ethics. however. in his role as representative of the state. Yet this does not entail that she intends them all. with a good will or as virtue requires. Bratman. Even if I am incorrect on the interpretative issue.18 At the conclusion of her deliberation the agent chooses. Anscombe “Modern Moral Philosophy. My point above is simply that there is nothing illegitimate about the existence of a class of moral principles whose job it is to guide what an agent chooses to do in the narrow sense. and to say that an agent acts licitly implies she does act well. Plans.E.J.94 a.M.19 These principles were (1) that it is illicit for a private person to kill anyone. pp. CA: CSLI Publications. and (2) it is illicit for a public official. Anscombe. and she is notorious for claiming that the concept of a law makes no sense without that of a lawgiver.E. To be illicit literally means to be contrary to law.21 The function of moral precepts is to guide rational agents who reason practically in order to arrive at a response to the practical question what to do. Following G. I set aside questions about whether this worry is a legitimate one here. Aquinas tells us that all moral precepts are more determinate specifications of the highest practical principle: do good and avoid evil. 26-42 at p. let us say that an action is illicit just in case it is contrary to one of the virtues the lack of which makes it the case that a human being is bad qua human being. Collected Philosophical Papers. pp. and these acts of intention formation could also naturally be called acts of choice. and Practical Reason (Stanford. the central point for my argument is that we can understand his principles in this way and that doing so will ultimately help shed light on the PDE in the way I go on to argue.M. an agent’s response to this question consists in the formulation of intentions for an end and for the means  Michael E. while an action is licit just in case it is not illicit. 1999). 30. Intention. Rather. in a broad sense of “choice. Since practical reasoning is directed at action. she forms intentions only to perform those acts that figure as an end or the means to that end in her adopted plan of action.2. 21  ST IaIIae Q. Her actual claim is that this definition yields a concept that is coextensional with that of the illicit. 154-5. 20  G. We can understand Aquinas’ two precepts against killing that I referred to in Section I as belonging to this class of principles. 1981). Anscombe. My purposes are not primarily exegetical.” a course of action that includes all these various effects. Stuchlik / Journal of Moral Philosophy 9 (2012) 178–199 189 relevant in her circumstances. to kill an innocent person.M. So in a broad sense an agent chooses a total package that includes both intended and foreseen effects while in a narrow sense she chooses only the end at which she thereby aims and the means to it. to say that an action is illicit implies that the agent who performs it does not act well. Religion and Politics (Oxford: Basil Blackwell. 18 .” in G. 19  I believe this is how Aquinas himself means us to understand these principles.

Protecting the community is the function of the state. are irreducibly common ones. Cicero. Griffin and A. by M. This is both because social life makes it easier to achieve goods like food. the quote is from On Duties i. 18). Hence there is a difference in the norms that govern just behavior towards others by private citizens and those that govern such behavior by public officials. shelter. Atkins. a conception of justice must also include principles for dealing with criminals and outside aggressors who would harm a political community.T. He summarizes this conception of justice by quoting Cicero’s dictum that “the object of justice is to keep men together in society and mutual intercourse. its effect is to tell a human agent to avoid forming and executing the intention to kill an innocent human being in answer to the practical question what to do. Stuchlik / Journal of Moral Philosophy 9 (2012) 178–199 to it that she executes in acting. 23  Although I have merely sketched a justification for these precepts. I believe that it can serve as the beginning of a response to Scanlon’s charge that there is no theoretical explanation for why intention should make a moral difference (Moral Dimensions. and knowledge. ed. such as friendship. 1991). and the just human being is thus guided by the precept commanding her not to kill. trans. (This does not impugn the point that when one forms intentions one normally has some knowledge or beliefs that the execution of those intentions will have certain non-intended side-effects.T. whose role it is to provide for the common good.) So. . even as it relates to the infliction of lethal harm. But they do not cover the entire field of justice. Of course.58 a.”22 Social life would be impossible if people went about forming and executing intentions to kill one another.7. where the harm is not intended by the agent who causes it. and because some distinctively human goods. even though Aquinas’s second precept against killing says that one may not kill an innocent human being. They rule out forming and executing the intention to kill.g. e.190 J. by Margaret Atkins (Cambridge: Cambridge University Press. on Aquinas’ view. On Duties. but they say nothing about when it is licit to perform an action that will bring about lethal harm to others. Why is forming and executing an intention to act in a way that violates one of these two precepts illicit? The precepts against killing fall within the scope of justice. is the fact that human beings need to live together in order to achieve their good. p. either as end or means. Here a reasonable precept is that the chosen action must not itself be illicit and that one’s reason for causing non-intended harm is 22  ST IIaIIae Q.2 sc. and what grounds the norms of justice..23 A human being who violates Aquinas’ two precepts acts illicitly insofar as she acts contrary to the virtue of justice.

(2´) Acting as a public official.25 If we formulate the PDE as a principle of when it is licit to perform a harmful action. J. The commander of the air force wants to know whether it would be morally permissible for one of his pilots to bomb a certain enemy munitions plant. “killing another” and “doing something that will result in the death of another” do not pick out the same classes of actions. 25  For Gury’s formulation. consider again the case Prime minister: You are the prime minister of a country at war. see page 4. The plant is so situated that its destruction would inevitably cause the death of a number of civilians. For instance. The reason is that it is possible to form the intention to perform an act A that will result in the death of S without forming the intention to kill S. (iii) one does A for a proportionately grave reason. S’s death may merely be a foreseen side-effect of doing A. 24  Since this precept is understood to govern the intentions one forms and executes. one may licitly perform an action A that one foresees will both have a good effect and kill another or some others just in case (i)  doing A is not itself illicit. it is silent about when it would be morally permissible to act. one may licitly perform an action A that one foresees will both have a good effect and kill another or some other innocent people just in case (i)    doing A is not itself illicit. just in case what one does is not itself illicit and one does it for a proportionately grave reason. for they are simply an application of it to the case of killing when the distinction between the roles of private citizen and officer of the state is taken into account. .”24 If we add this precept to the two that Aquinas provides. thereby undermining support for the war among the enemy population. (iii) one does A for a proportionately grave reason. (ii)    one intends to cause only the good effect and does not intend to kill the other(s) as either an end or means. the result is the following claims:  (1´) Acting as a private citizen. Thus the precept in question might say. (ii)   one intends to cause only the good effect and does not intend to kill the other(s) either as an end or means. Claims (1´) and (2´) should bring to mind Gury’s formulation of the PDE as a principle about when it is licit to perform a harmful act. Stuchlik / Journal of Moral Philosophy 9 (2012) 178–199 191 proportionately grave in relation to the amount of harm caused. “One may do something that will result in the death of another.

and Moral Permissibility: In Defense of the Doctrine of Double Effect. Scanlon’s own approach could not account for this judgment.192 J.  William J.27 While I do not think FitzPatrick’s  See page 13. if the PDE is to be of use in cases like this. First. I have shown that even if we grant that moral principles should not refer to an agent’s psychological states in their content. the liceity version of the PDE does not generate the bizarre consequence in this sort of case that the permissibility version does.26 The conscientious vicious pilot acts illicitly. At the same time. Second. Therefore. pp. IV What is the connection between the properties of being licit and being permissible? In a recent article FitzPatrick contends that a certain type of action is permissible just in case there exists a justification for it in terms of a sufficiently worthy end that can be pursued through so acting without intending anything illicit as a means. because he destroys the munitions plant with the intention of killing enemy civilians. we must still do some work to connect the concepts of the licit and illicit with those of the permissible and impermissible. Intentions. simply because it does not mention permissibility. 26 27 . FitzPatrick. “Acts. this does not imply that the moral discriminations they make cannot be sensitive to an agent’s intentions. and hence badly. but it runs into trouble if we slide from it to the second. The PDE is fine when it is stated in terms of the first of these concepts. 317-21.” Analysis 63 (2003). Finally. Our next task should therefore be to try to understand how they are related. that where the permissibility version of the PDE goes wrong is that it confuses the notions of liceity and permissibility. if the argument of this section is correct. the liceity version of the PDE can explain why even what I called the conscientious vicious pilot would be acting badly in the conditions described in this scenario. Scanlon’s diagnosis of the permissibility version of the PDE cannot be the real source of the implausible verdicts to which it gives rise. An additional benefit of doing so is that our discussion will bring into view a more satisfying explanation of when it is permissible to act in the pairs of cases (a)-(d) from Section I. namely. Yet I think there are three positive conclusions we can draw at this point. I believe my criticism of his diagnosis suggests a different one. Stuchlik / Journal of Moral Philosophy 9 (2012) 178–199 By itself the liceity version of the PDE does not offer any guidance about this case.

(P1) explains why. This suggests the following metanormative principle: (P1) It is permissible for S to do A in C just in case A could be licitly per­ formed in C. one might think that an agent could do almost anything in a given situation without thereby acting illicitly if she were sufficiently ignorant or misinformed about her circumstances. for instance. suppose that I am charged with the care of Baby and I have every reason to think substance X will make him strong and healthy. Yet this is not quite right either. . i. In this case it seems right to say that I do not act either illicitly or impermissibly in giving Baby substance X. It seems that it is sometimes the case that it is both permissible and licit for an agent to perform an action only because she is ignorant or misinformed about some feature of the situation. the pilot mentioned in Prime minister who bombs a munitions plant in order to kill civilians performs a permissible act. The reason is that one could licitly bomb the munitions plant in this case.e. We must therefore qualify it in such a way that it will yield a more determinate norm for the guidance of action. What cases such as Ethics committee and Prime minister show is that the fact that one acts badly is sometimes compatible with its being the case that the type of act one performs is not one that is in itself something one must refrain from doing. J. Baby has a genetic defect that is difficult to detect and makes substance X toxic to him. An agent can act badly in doing something that is itself morally permissible by doing it from a bad motive. When combined with the liceity version of the PDE. for one would be acting licitly if one bombed the plant in order to weaken the enemy military. (P1) needs to be refined. however. After all. Stuchlik / Journal of Moral Philosophy 9 (2012) 178–199 193 claim that this is what proponents of the PDE have actually meant by that principle can withstand historical scrutiny.: (P2) It is permissible for S to do A in C just in case A could licitly be performed in C in light of full knowledge of the circumstances. however. But saying that a certain act A is one that is not in itself one that an agent must refrain from doing in circumstance C is equivalent to saying that it is not necessarily the case that doing A is illicit in C. For instance. his account of the relation between the property of being permissible and that of being licit is a promising one. One suggestion would be that it is permissible to do what one could licitly do under ideal epistemic conditions. even though he acts illicitly in bombing it with that intention. Unbeknownst to me.

.194 J. Thomson claims that the fact that one objectively ought not to do A entails that it is impermissible for one to do it. It therefore makes a difference whether my ignorance of the effect of substance X is reasonable or not given the body of evidence that is available to me or could become available to me with a certain amount of inquiry. It is important to the previous example that Baby’s genetic defect is difficult to detect and that I have good reason to believe substance X will be beneficial rather than harmful to him. If I give Baby substance X in these circumstances. so too it requires sound moral judgment to distinguish between instances in which an agent’s beliefs are reasonable given the available evidence from those in which they are not. But the fact that it relies on such a notion does not render (P3) too vague to be useful. When the PDE is formulated in terms of permissibility. it gives rise to implausible results. it is permissible for me to give Baby substance X even though it would not be licit for me to give it to him if I had full knowledge of the facts. and this underwrites the thought that there is a sense of “ought” in which it is true that I ought not to give it to him.g. or that it would have been relatively easy for me to learn he has a condition that would render it toxic to him. or justifiably believe. In Thomson’s terminology I “objectively” ought not to give him substance X. The concept of reasonable belief is a familiar one that is used in other sorts of moral and legal reasoning. then my act of giving it to him would not be either licit or permissible. Just as it takes some degree of moral intelligence to determine what constitutes a proportionately grave reason for acting. Scanlon disagrees on the ground that “ought” in this highly general sense lacks the moral content of the notion of permissibility (Moral Dimensions. Ignorance and misinformation do not always affect permissibility or licitness. e. Stuchlik / Journal of Moral Philosophy 9 (2012) 178–199 but this is so only because I do not know about his defect. Intuitively. (The Realm of Rights [Cambridge MA: Harvard University Press]. this is as it should be. this seems correct. we arrive at: (P3) It is permissible for S to do A in C just in case A could licitly be performed in C in light of reasonable beliefs about the circumstances. Therefore. However. 233). my giving it to him would be both illicit and impermissible. pp. if we formulate it instead in terms of liceity 28  Thomson denies that I would be acting permissibly here. If we imagine instead that I have good reason for being suspicious about its effect on him.28 If I did know. that substance X is toxic to him. p. If we incorporate this into our principle.. 48-52). and while it leaves room for hard cases. due to culpable negligence. though. I will no doubt regret doing so afterwards.

However. causing him to die. The same sort of reasoning applies to Prime minister. . we avoid these results. Scanlon’s account in terms of exceptions to a general prohibition on killing was unsatisfactory precisely in that it failed to account for the common pattern of moral reasoning that appears to be at work in these cases. and Moral Permissibility: In Defense of the Doctrine of Double Effect. The hospital’s administrator asks you whether it is morally permissible to provide the patient with a barbiturate drip. ii) Hysterectomy: A woman’s life is in danger due to a cancerous uterus. recall the Ethics committee case: You are a member of a hospital ethics committee. One could save the five workers if one were to push a lone bystander onto the track. 319-20. This solution also provides us with a single explanation of why it is permissible or impermissible to act in the four pairs of cases (a)-(d). There is a patient in the hospital who is suffering severe pain. Stuchlik / Journal of Moral Philosophy 9 (2012) 178–199 195 and take what is permissible to do as a function of what is licit to do along the lines of (P3). i)  Craniotomy: A woman’s life is in danger due to complications with her pregnancy. The only way to save her life would be to remove the unborn fetus by performing a craniotomy. except this time one could save the five by operating a switch that would turn the trolley onto a side track where there is one trapped worker who would then be run over by it.29 For instance.” pp. the answer would be that administering the barbiturate drip is a permissible procedure. Recall. bringing the trolley to a halt. (b. If you reasoned in accordance with the view I have presented here. FitzPatrick. i)   Trolley/push: A runaway trolley is speeding along a track towards five trapped workers. (a. FitzPatrick uses the principle I have labeled (P1) rather than (P3). without also administering it in order to kill him as a means of ending his suffering. in light of reasonable beliefs about the circumstances. “Acts. J. ii) Trolley/switch: The same as above. if some particular doctor were to administer the medication in order to kill the patient as a means to relieving his suffering then that particular doctor would act illicitly. The only way to save her life is to remove the uterus by performing a 29  Cf. Intentions. (b. The reason is that it would be possible for a doctor to administer the drip for the proportionately good end of relieving the patient’s pain. The drip will ease his suffering but will also suppress his respiration. They were: (a.

The effect of the bombing would be to terrorize the enemy’s people. ii). though. Jonathan Bennett. i). Stuchlik / Journal of Moral Philosophy 9 (2012) 178–199 hysterectomy. According to the PDE. This would be so if one’s plan were to use the bystander as a barricade that would stop the trolley upon impact.. e. i)  Terror bombing: A pilot could help his country win a war by bombing civilian residences. It would be illicit to act in this way.A. ii) Submarine attack: A surfaced submarine is under attack by enemy planes. (c. The only way to prevent the starvation of the whole crew is to kill one of its members and use his body for nutrition. pp. the woman is pregnant and the fetus she is carrying will die when the uterus is removed. But one crewmember is trapped above deck and will drown when the sub submerges.L. ii) it would be permissible to turn the trolley onto the side track. In each of these pairs of cases it seems that it is impermissible to perform the action under consideration in the first of each pair and that it is permissible to perform the action under consideration in the second. (d. one would licitly turn the trolley on the side track if one turned it with the intention of saving the five trapped workers and if one did not thereby intend to kill the one.” The Oxford Review 4 (1967). (P3) tells us that it is permissible to do so. The liceity version of the PDE together with principle (P3) explains why in (a. I will concentrate on cases (a. Since it is possible for one to licitly turn the trolley in light of reasonable beliefs about the situation.30 We must also consider whether one could push the bystander 30  In the literature on the PDE one sometimes encounters the objection that in a situation like this the agent aiming at bringing about the good end need not intend the lethal harm to the victim whom she affects in the course of her attempt to realize it. 5-22. (c. ii) Tactical bombing: A pilot could help his country’s war effort by bombing an enemy munitions plant.. and if the pilot destroys the plant a number of civilian patients will be killed as a result of collateral damage. it must be submerged. These two principles also yield the conclusion that it is impermissible to push someone onto the main track in (a.196 J.g. There is a hospital nearby. i) and (a. . However. H. They are awaiting rescue but have run out of food. In order to prevent it from being destroyed. One might push the bystander onto the track in order to save the five people who are trapped on it. for in doing so one would intend to cause lethal harm to the bystander. though. thus undermining their support for the war. i)   Shipwrecked: A submarine crew has been shipwrecked on a desert island. (d. Hart. “Intention and Punishment.

but for the grace of fate. .32 Any ethical theory must include an account of the relation between two categories of evaluation: evaluations of actions and those of agents. ii). i) and (b. 32  Again. ii) is essentially the same. For instance. be lethal or seriously harmful even if that outcome is not logically necessary. There does not appear to exist any such end in this case. and (d. at least as it has been so far described. But when we construct such thought experiments we do so supposing that other things are equal and we have been given all the information about the case that might be morally relevant. But if someone shows an unjust will in her intention to kill or seriously harm another. and if so. than whatever reasons make this illicit will also surely make it the case that one acts illicitly in executing the intention to do some action that will. Classical utilitarianism is an example of a theory on which the evaluation of action is fundamental: actions are good or right if and only if they bring about the maximum quantity of happiness. n. The overall shape of a theory will be determined in part by whether it sees one of these two categories as more fundamental. What is important is that even in this case. I therefore conclude that by (P3) it would be impermissible to push the bystander onto the track. there would have to be some other end E that the act of pushing him onto the track would promote. It would also have to be the case that E provided a proportionately grave reason for causing lethal harm to the bystander. though a non-intended consequence of this action would be the bystander’s being hit by the trolley. pp. Stuchlik / Journal of Moral Philosophy 9 (2012) 178–199 197 onto the main track without intending that he be hit by the trolley. 9). it is contended that the agent who pushes the bystander onto the track does not intend to harm the bystander but merely that his body halt the trolley. 111-3. The Tanner Lectures on Human Values II (Salt Lake City. J. But I think it is plausible that in such a case it would be permissible to push the bystander onto the track. it is arguable that in (d. the solider may not licitly form and execute the intention to kill the patients in the nearby hospital (see page 7. where this is capable of being determined Morality and Consequences. UT: University of Utah Press. it would not be the case that the agent would have failed in executing the intention she set out to execute. This is shown by the fact that if the bystander were somehow to miraculously survive being run over unharmed. in light of reasonable beliefs about the circumstances and without acting illicitly. ii) one must intend to kill the workers in the munitions plant if one intends to destroy it. 1981). (c. i) and (d. For this to be so. But the case is special because it involves a soldier acting in times of war. or in which the agent could act licitly due to the fact that she is reasonably ignorant or misinformed about a morally relevant fact. 31  Perhaps we could construct a variation of the case on which it would be possible to accomplish some proportionately good end by pushing the bystander onto the track without intending that he be hit by the trolley due to an elaborate series of causal coincidences. which one.31 The explanation of when it is permissible or impermissible to act in cases (b. i) and (c. ii).

M. In her essay “Modern Moral Philosophy” Anscombe suggests such an ethical theory33: It might remain to look for “norms” in human virtues: just as man has so many teeth. The concept of the permissible is itself to be understood in terms of the concept of the licit. e. but is the number of teeth for the species. regarded not just biologically. In response. the virtue whose point is to sustain communal human life. a complete set of teeth is a norm. It is possible for one to act in a way that is permissible while being a bad human being. Agents are good insofar as they take the principle of utility into account in their practical deliberation. Anscombe defines illicit human action in terms of it contrariness to one of the virtues the lack of which makes a human being bad qua human being. As we saw in Section III. he does so by contending that such acts are contrary to justice. a permissibility version  G. as “man” with. evaluation of action takes precedence over the evaluation of agents. 16. and when Aquinas argues that deliberate killing is illicit.g. which is certainly not the average number of teeth men have.. 38. But we have also seen that whether an action is morally permissible is independent of the intentions of the particular agent who performs it.  See p.34 In this sort of ethical theory. Anscombe. 33 34 . Stuchlik / Journal of Moral Philosophy 9 (2012) 178–199 prior to any theory about what makes an agent a good one. and dispositions from which an action proceeds will therefore be crucial for its evaluation. but from the point of view of the activity of thought and choice in regard to the various departments of life—powers and faculties and use of things needed—“has” such-and-such virtues: and this “man” with the complete set of virtues is the “norm”. in accordance with the metanormative principle (P3). The intentions.E. However. motives. the evaluation of action is not prior to the evaluation of agents. it does mean that if the PDE is formulated as a principle about when it is permissible to bring about harm it will sometimes generate counterintuitive verdicts. so perhaps the species man. I distinguished between two versions of the PDE. Insofar as it takes the moral justification of an action to depend on the intention with which it is performed the PDE fits naturally into this sort of ethical theory. In opposition to this is a theory that takes as its starting point the virtues and vices characteristic of human life. and the notion of the licit in turn makes reference to the concept of a good person. I have argued that this fact does not show that at the most fundamental level. “Modern Moral Philosophy.” p.198 J.

Stuchlik / Journal of Moral Philosophy 9 (2012) 178–199 199 and a liceity version. and this is unsatisfying. I have argued. My final task has been to provide an account that avoids this feature of Scanlon’s proposal. J.35 35  I would like to thank John McDowell. however. . the reason the permissibility version of the PDE (the only version he considers) fails is that it confuses two employments of moral principles. I agree that the permissibility version of the PDE is inadequate. their use as guides to deliberation. but I think this shows that it is best understood as the liceity version. and therefore whether an action is morally justified is not dependent on the state of mind with which it is performed. and an anonymous reviewer for their comments on an earlier draft of this paper. (c. Scanlon offers an alternative diagnosis of double effect. ii). ii). According to him. (b. There is no single explanation behind each of these exceptions. Kieran Setiya. ii) is that in each of these cases a different exception to the general prohibition against killing is in force. The liceity version of the PDE and (P3) together yield a single explanation of why it is permissible to act in the second case in each pair but not in the first while being immune to the counterexamples that befall the permissibility version of the PDE. He thinks that since moral principles function as guides to deliberation they cite features of circumstances that would count for or against the performance of certain types of action. ii). however. The permissibility version of the PDE is supposed to explain why it is permissible or impermissible to act in cases such as our (a)-(d). If Scanlon is correct. the reason it is permissible to act in the specified way in (a. that from the fact that moral principles do not mention the intentions in their content it does not follow that they cannot exclude acting with certain intentions. and (d. and their use as standards of criticism.