Cours 1

23/09/2019
Examen le 13 décembre, 2h, très court, pas une dissertation, 2 ou 3 questions sur les
sujets que nous avons étudiés. Pas des questions de cours, questions de réflexion basées
sur des sujets que l'on aura étudiés.
Même chose au second semestre

A Companion to Applied Ethics​. R.G. Frey, Christopher Heath Wellman, Blackwell

publishing, trop cher mais consultable à la bibliothèque universitaire. Contient des articles
résumant presque tous les points du cours.

What is applied ethics ?

Definition of ethics
Review of the basic knowledge about ethics

What we commonly know as ethics has three dimensions, normative ethical theory
(normative ethics), which is a systematically developed theory about the determination of
right or wrong, it's the way you have to commonly understand morals or ethics.

The second dimension is the problem of what is good, of what is a moral fact, of what is a
dilemma, and so on (Metaethics).Whereas normative ethics is concerned with wether an
action is right or wrong, metaethics is concerned about the meaning of moral concepts.
Metaethics is also called descriptive ethics.

The third dimension is the general field of applied ethics. Applied ethics is a general field of
study that includes all systematic efforts to understand and to resolve moral problems that
arise in some domain of practical life, as with medicine, journalism, or business, or in
connection with some general issue of social concern, such as empoyment equity or
capital punishment.

It's impossible to study applied athics without studying metaethics and normative ethics.

Normative ethics

In normative ethics, there are main approaches. Philosophers agree that we can say that
there are only three main approaches in normative ethics.
The first one is a rule-based approach, for example, deontology.

This kind of approach seeks to reduce ethical principles to a set of rules to follow. For
supporters of this approach, the answer to the question "What is the ethical response to
this situation ?" is "Follow the rule."

Outcome-based approaches : consequentialism. For example, utilitarianism.

Some approaches argue that the central issue in an ethical dilemma is to look to the
consequences of the decision. To be ethical is to produce the best outcome. For
supporters of this approach, the answer to the question "What is the ethical response to
this situation ?" is "Consider what will produce the best outcome"

Character-based approaches – for example, virtue ethics

This approach is about the moral character of the individual. Ethics is about displaying
certain virtues such as honesty or kindness. Nobody agrees on the list of the virtues. For
the supporter of this approach, the answer to "What is the ethical response to this
situation ?" is "Act in a way that displays virtue"

In other words…

Deontology or deontological ethics

Is the normative ethical theory that the morality of an action should be based on whether
that action itself is right or wrong under a series of rules, rather than based on the
consequences of the action. It is sometimes described as "duty-" or "obligation" or "rule-"
based ethics. For the most known example of deontological ethics is of course kantianism.

Utilitarianism

A form of general normative theory that holds that the rightness or wrongness of actions is
wholly determined by the goodness or badness of their consequences. Classical
utilitarianism defines the value of consequences in terms of their total contribution to the
happiness or well-being of all those affected by an action, counting each person's
happiness as equally important. Contemporary forms of utilitarianism may focus instead on
aggregate satisfaction of individual interests or preferences.

Virtue ethics

A general type of normative ethical theory that displaces traditional concentration on the
rightness or wrongness of action with a primary concentration on certain virtuous traits.
Normative ethics and Theories of Ethics

A "theory of ethics" is, in Bernard Williams' words

"A philosophical structure which, together with some degree of empirical fact, will yield a
decision procedure for moral reasoning"

In this regard, theories of ethics and normative ethics are similar, and perhaps identical

That makes it a little more difficult

The list of ethical approaches is getting longer. We should add :

Contractarianism : An ethical theory that centers ethics on a contract made between moral
agents. (Thomas Scanlon for instance, and in a certain way, Habermas)

Emotivism : Ethical propositions merely express feelings, and therefore are literally neither
true nor false. It's a kind of metaethical position but can also be a normative ethics
position.

Ethical naturalism : the view that what humans ought to be in some sense follows from
what they are.

Intuitionism : The truth of ethical proposition do not admit of proof or disprove but follows
from intuitions.

Natural law ethics : An ethical theory that bases ethics on claims about human nature

Religious ethics

Reflective equilibrium theory : A theory holding that there is a dialectical relationship

between our considered moral judgments about concrete cases and our commitments to
principles. Reflection on principles sometimes overrides considered judgment, and
considered judgment sometimes forces revisions in our principles. What we are seeking
then, in all systematic moral reflection, is a coherent integration or equilibrium between our
general principles and our particular judgements.

Principalism : A traditional view of moral justification in which a particular action is

ultimately justified by showing that it conforms to a universal ethical principle that is
grounded in the most abstract level …

After World War II, it was thought that ethics had little to contribute to practical manners.
There has been a dramatic change because most of the most exciting ethical writrings of
the 20th century were about some of the most exciting matters such as euthanasia etc..
Problem of ethical skepticism : an influential cluster of challengers to applied ethics springs
from metaethics. The idea is that in ethics, there are merely opinions, and that as a result,
no one can give advice as to what is right and what is wrong. This general skepticism
maybe was a result of metaethics, at least in the 20s 30s 40s.
When we talk about applied ethics, maybe we have to talk about this challenge, the
challenge of relativity. One of the challenge to ethics begins with the observation that
different cultures seem to have different ethics. This has led many to reject universal
ethical truth ; there is nothing but different cultural customs. There is no acultural
standpoint, or "view from nowhere". This cultural relativism has attracted a good deal of
criticism.

For now, to simply recite some of the most obvious difficulties : even granting the
difference of ethical point of views, it doesn't mean that that there's no fact about the
matter, just like with scientific truth. It might too be the case that there is a very large area
of ethical consensus, there may be some moral rules held by all communities at all times,
so because of this kind of response, a great position in the beginning of applied ethics has
been the so called principalism. Why ?
Because in the rise of applied ethics, a great deal was the work of Beauchamp and
Childress "​The Principles of Biomedical Ethics​". For a while, in applied ethics, everybody
was concentrated on this research of universal principles in ethics.

Principalism is a position in applied ethics that tries to find principles for all fields at the
same time. Of course, the beginning was in biomedical ethics, but the ambition was to find
principles for every kind of problem in practical ethics.

In the same time there's another position in applied ethics that's the opposite : this position
is contextualism. It means that moral reasoning and justification must be always
understood inside a specific context. Applied ethics would be a contextualism in ethics,
you have to contextualize ethics and you can't find universal principles. Contextualism also
has been a great position, but until now, a lot of works in applied ethics are in a way
contextualist, because that's what we do. For instance, in the ethics of war, what do you
have to do ? You have to study war, in the contemporary world, there's no clear frontier
between peace and war. Is France at war now ? In a way, yes (Daesh etc..), but at the
same time, our state is not in an official war with an official state, so we're at peace. You
have to understand the special issues of the field ; sexual ethics don't have the same
issues as the ethics of war.

Conventionalism is also a great issue in applied ethics, because of course when you study
applied ethics, if you want to study properly, you study from a context, and a context is a
specific context in which there are conventions.

Moral expertise is a very controversial issue. It means that there could be a kind of people
we can call experts in morals.
Cours 2
30/09/2019

Euthanasia and Physician Assisted Suicide

If you define euthanasia as referring to cases where the patient requested it, it's probably
too narrow.

Case of neo-natal euthanasia, when there's an accident during the birth. ​The being to be
euthanised is very young, has no conscience, no identity, doesn't know who he is
and has no will at all. ​In this latter case, it's impossible to ask the person its opinion
because in a sense, it's not a person.

In case the person to be euthanised is in a vegetative state,​ we'll have to ask other people
whether the person should be euthanised or not, or try to find what would he have said
back when he still had a conscience.

Assisted suicide is different because to commit suicide you must have your conscience It's
a case ​in which you're aware and can decide for yourself, but need an assistance. Why ?

1. Because you can't kill yourself, because for instance, you can't move your body.

2. You can move your body, but you cannot chose the way you'd end your life. If you
want to commit suicide, what can you do ?
- You could throw yourself under a train or through the window, but those are not
perfect methods, because sometimes, they fail and can be very brutal.
Some people ask for assisted suicide because they want to chose the method, not
because they can't kill themselves but because they can't chose the method with
which they're going to commit suicide.

Arguments advocating physician-assisted death

Two arguments :

The argument of autonomy and the argument of well-being

The two fundamental ethical values that support physician-assisted death are ​autnonomy
and well-being
Autonomy refers to the interest persons have to live their own life according to their own
conception of the good life.
The right of self-determination protects the value of autonomy by ensuring that persons,
once they meet the criteria for competency are then free to act for their decisions.
Towards the end of life, many people will want to maintain the quality of their life as much
as before, these people may also want to influence the circonstances and moment of their
death.

Counterargument 1 : Deny that people who request physician assisted death want to die.
With adequate attention, the request to die will turn out to be something else.
People sometimes do request physician assisted death for other reasons than wanting to
die. What this fact justifies is sincere attention for the motive of the person who asks for
physician assisted death and not a dismissal of all requests. What else you could want by
requesting assisted death ? Care and love, a lot of things, except death.
Counter-counterargument : The person might require care but that's not a reason to deny
the request

Further counterargument : A person's freedom cannot be extended to allow for the very
condition of freedom, life itself. ​We could not justify someone's death on the ground that it
is good for him. Goodness is a value that's embodied in the person. ​This counterargument
is also given in parallel to slavery ; ​you can't give up your freedom, even libertarians deny
a natural right to sell yourself into slavery.
Frances Kamm (1999, ​Physician-Assisted Suicide, the doctrine of Double Effect, and the
Ground of Value)​ : it's a false analogy, because requesting physician assisted death
doesn't involve turning a right to someone. You simply accept to give up your right to live
without turning it to someone.

Well-being
The person who requests physician assisted death will not consider his or her life as a
benefit but will see it as a burden. It should here be underlined that the patient's request is
regarded as necessary but insufficient evidence that continued life is worse than death.
The physician will have to judge the clinical situation and the patient's prospects. The
dutch law on euthanasia states that unbearable suffering without prospect of relief is one
of the conditions for performing physician assisted death. ​The justification lies in the role of
the physician. Physicians always need justifications for their act other than patient
preferences.

Counterargument : The counterargument will deny that there can ever be medical
circumstances that will justify the physician complying with physician assisted death. Good
palliative care can remove all suffering, even if at the time it comes at the cost of
consciousness, like with pallative sedation.
Countercounterargument : Pallative care can't take away all the suffering, and some
patients do not want to die after a prolonged phase of unconsciousness. This is an
argument against the french law on euthanasia.

Arguments against physician-assisted suicide

Deontological view

The killing of innocent persons is always wrong

The sanctity of life

Proponents of physician assisted death would state that the principle holds only for those
who share certain religious beliefs, for instance, the judeo christian tradition. This not to
say that lives of people outside of this traditions are of no value, it's just that those persons
have a more qualified view of the sanctity of life.. ???

The « killing or letting die » problem

Against this claim it can be argued that most occurrences of physician assisted death do
accept the foregoing of life assisting treatment.

Utilitarianist View

Effects : « positive » and « negative »

Positive effects of a policy that tolerates euthanasia will be that people who want physician
assisted death can obtain it.
A second similar but distinct effect is that people will think that they might want it under
certain circumstances and may be reassured that they can indeed obtain it should they
ever want it

There will be ​less agony caused but unrelievable pain in the terminal phase of disease.

Negative effects ;

Erosion of the moral center of medicine ?

« Slippery slope » problem

Accepting physician assisted death on the level of law would have some undesirable
consequences.
Allowing physician assisted death would erode trust in physicians, would weaken the legal
prohibition of homicide, ​most importantly however, tolerating cases of physician death
would lead to active physician assisted death be performed in other cases aswell.

Often, there's the fear that accepting euthanasia would make people lose trust in their
physician. ​There is some vagueness in this expression : if this means that physicians will
no longer be commited to prolonging life in all circumstances this is surely correct.​ Of
course, except if you're crazy, you can't accept it in any case or circumstance.

But the moral center of medicine shouldn't be vitalism, ​but the well-being of the person. ​If
you say that the moral center of medicine should be vitalism, it means that you defend the
value of the sanctity of life, that life must be defended in absolutely all cases, but is it the
moral center of medicine ?​ A lot of ethicists propose to say that the moral center should be
the well-being of the patient, and it's completely different.​ Of course, we therefore submit
that physicians who do not show what the French call « acharnement thérapeutique » but
who are prepared to evaluate the effects from the perspective of the patients will gain in
trust. In France, we have a law against the so-called acharnement thérapeutique, and this
law, as far as we know, had no negative effect on the trust of the people towards
physicians.

There's also the fear that it would erode the trust people have, not towards physicians, but
towards each other.

Allowing physician assisted death may lead to nonvoluntary cases of physician assisted
death.

The common behavior of physicians is to cure or remove suffering, this is undoubtedly true
for physicians in all countries.

Sometimes, the desire to cure or remove suffering is expressed by adhering to the

Hippocratic oath. ​Does the hippocratic oath have rhetoric value or an argumentative
value ?

No one knows what was in the original hippocratic oath, if there ever was such a thing.
The hippocratic oath might express the beliefs of the translators and not the ones in the
original.
It says that physicians shouldn't kill people with poison.
a lot of ethicists think that referring to the hippocratic oath has a great rhetorical, but a little
argumentative value.

Erosion of society's commitment to provide optimal care ? Is it so obvious ?

A second undesirable consequence of a liberal policy on physician assisted death
concerns society's commitment to provide optimal medical care.​ When euthanasia is
available as an inexpensive alternative, people might feel pressured to make that choice.
We should start by saying that there's some empirical evidence that end of life doesn't lead
to public cost reductions.

From a public health perspective, we could say that the goal should be to enhance medical
care and not legalize physician assisted death.

It might undermine the provision of a civilized society not to kill.

The slippery slope argument is the claim that starting from justifiable cases of physician
assisted death we'll end up with unacceptable cases of physician assisted death.
It's quite easy to have a counter argument against this slippery slope argument. The
counter argument is empirical evidence : ​in the countries in which physician assisted death
has been legalized there hasn't been an increased number of euthanasia. There's no
evidence of the slippery slope argument.
It's impossible to defend that physician assisted death is the response in all situations. If
you accept euthanasia, ​you must accept a societal control. A very well known case is the
one of Netherlands.
In Netherlands, there's immunity from prosecution regulated by the euthanasia act of april
2002, and this act is quite interesting ;​ it states that although euthanasia remains in
principle a criminal offence, a physician will not be prosecuted if he has reported to the
commity and the commity finds that he has acted with due care. ​Negative freedom to
perform euthanasia. Euthanasia, in principle is a criminal offence, but the physician will not
be prosecuted in the case he respects the rules carefully. ​The criteria are the following :
The physician must be satisfied that the patient's request is voluntary and well
considered
The physician muist be satisfied that the patient's suffering is unbearable and that
there's no prospect of improvement
The physician must have informed his or her patient of his or her's further prognosis
The physician must be satisfied that there's no other reasonable alternative
The physician must have consulted at least one other independant physician who
certifiates that the attending physician has satisfied the criterias of the four previous
points
The physician must have exercised due medical care in assisting the patient's
suicide

The french solution to euthanasia

Leonetti law 2005
Claeys-Leonetti law of 2016 in France

The Claeys-Leonetti law was a response of the Leonetti law of 2005 which was
unsatisfactory. ​The leonetti law says that euthanasia is absolutely forbidden in case of
active euthanasia, but only allowed in the case of passive euthanasia : but passive
euthanasia is not euthanasia, it's letting die. ​The Leonetti law is branded on the doctrine of
double-effect.

The doctrine of double-effect has been invented by Thomas Aquinas, and in the beginning,
it was a catholic doctrine. One of the main points of the doctrine is that we say that there's
a moral difference between killing and letting die.​ It's forbidden to kill, but you can let die,
you can stop the medication.
But this law was unsatisfactory on certain points, which is why in 2016 there was this law
of Claeys-Leonetti. Claeys is left-wing (PS), and Leonetti is right-wing (UMP-LR) so it's not
a right or left-wing law.

Article 1 :
A patient's right to painless medical intervention ; a doctor's obligation to offer painless
medical intervention
Everyone has the right to have a dignified end of life and the best possible relief of
suffering. Health professionals must use all means at their disposal to ensure that this right
is respected.

The standard requires not to act in the benefit of the patient, but for the wishes of the
patient, ​and by the wishes of the patient to avoid all pain and suffering. The law doesn't
say anything about the Hippocratic oath, but the meaning is quite clear, the medical
professionals must act not for the benefit of the patient, but, for the wishes of the patient.
Article 2 :
The right to refrain from unreasonable obstinacy
Artificial nutrition and hydratation are treatments that may be stopped. This is completely
new in the french law (Claeys-Leonetti 2016). ​If the patient agrees, the doctors have the
right to stop artificial nutrition and hydratation.
Describes the situation where treatments should only be continued in proportion to the
expected benefit of the patient. ​Treatments that do not procure the expected benefit are
treatment that will only artificially prolong a life that may be ceased not if it procures a
benefit to the patient, but if it's wished by the patient.

Article 3 :
This is the french response to the euthanasia issue.
The patient's right to request terminal sedation and a doctor's obligation to offer terminal
sedation.
Where the patient is unable to express his or her will regarding the refusal of
"acharnement thérapeutique", the doctor may stop treatments in some conditions.

Article 4 : ???

Article 5 : ???

The french revolution in medical ethics is first this concept of the sedative treatment. The
french law is quite clear, in a terminal phase of an illness, you can ask for this deep
sedation and if you cannot ask for it, a person interested or your family, or a relative, and
maybe also just the doctors can take a decision to put you in a deep uncontinuous
sedation.

After 1968, death became cerebral death in the US, it means that now, you're dead when
you lose forever your consciousness.​ This allows for more organ transplants.
Cerebral death means that the doctor thinks he has the evidence your brain will not have
the ability anymore to provide consciousness.

The Claeys-Leonetti law says ​that it doesn't accept active euthanasia, because it would
create a vagueness in the definition of what is criminal or not criminal, a kind of exception
to homicide. But we accept the negative euthanasia, even if it's just letting die. ​We accept
that we can stop the treatment, and that in order to eliminate all suffering, we put you in a
deep uncontinuous sedation until death.
But if death means that you have lost consciousness forever, at what time will you be
dead ? At the time we start the deep uncontinuous sedation, because you will not go back
to your consciousness.
The french law says it is legal to do it, but only in one condition : the physician must be
able to give you back your consciousness, but it's just an abstract possibility, since we'll
never do it. We give you medication in order for you to lose your consciousness, but not
too much because the doctor must be able to give you back your consciousness. It's a
very specific argument, which is why it's called « The french solution to euthanasia ».
Leonetti said « Our goal is just to eliminate human suffering, so we just put you to sleep
until you die »
What about the people who do not want to lose their consciousness before death, and
would prefer to die immediatly, and thus would ask for an immediate death ? Their
freedom, tbeir preference, is not accepted by the french law.
Cours 3
01/10/2019, rattrapage du cours qui
aurait dû avoir lieu le 16/09/2019

Religious and State Medical Oaths

How are the oaths sought in history ?

Religious and state medical oaths require practitionners ​to swear loyalty to certain
religious precepts. ​It ​was very well known in India with the Charaka oath made in the
second century before Christ, and it was also very well known in the christian church.

The first version of this kind of oaths is for the midwives, we know precisely from history
that as christianity was split into catholicism and protestantism, midwives got different
oaths according to whether they were catholic or protestant, each religion has organized
specific oaths for midwives.

After, there was a spread and a secularization of the midwife oaths.

This kind of oath went to America through the british colonization.
After this period, ​we know that for centuries and centuries, oaths for midwives were classic
practice everywhere

The Nazi midwife's oath

The nazis believed in the superiority of the natural german children, it was fundamental for
them that the midwives placed loyalty in the community, state, folk, reich, and the leader :
the führer.
The midwife had to swear fidelity to the party, to the state, and not to the patient. This new
priority was a kind of inversion of the meaning of a classic oath.

Physicians' Sponsio Academica

Sponso = I swear, I engage myselfe
Communist and Nazi Physician's Oaths

If we think about the nazi period, the nazi doctors and phyisicians swore a loyalty oath to
folk, reich, and führer, exactly as the soviet doctors swore a similar oath to the communist
party and the people of the soviet union.
It was a substitution of religion by nazi or communist belief, it was exactly the structure of
the ancient oath, but instead of religion, the engagement of the midwife had to be to the
party, to the state, and so on.

Hippocratic Oath

Best known medical oath in history. This oath is not as clear as we usually think. because
we know that historians know the oath was returned after the death of Hippocrat.
The doctor has to swear « I will not give a drug that is deadly to anyone if asked for it, nor
will I suggest a way to (?), I will not give a woman a destructive surgery »
This has been interpreted in many ways in different traditions. For instance, christian
translators translate this sentence as protecting the fœtus and prohibiting euthanasia. But
recent commentators noticed that ancient greek practiced infanticide by exposure, and
think the point was to protect the life of the woman, and not the baby itself.

We know also that in the 20​th​ century, this hippocratic oath played a major rôle.
In the 40s, the Hippocratic oath played a specific rôle in Nazi Germany and Nazi occupied
Europe, aswell as in the Soviet Union. Both the soviets and the nazi party have rejected
the hippocratic oath, calling the fidelity given to the patient as bourgeois. The new morality
must be to defend the state, the party, the people, and not the patient.

The Hippocratic Oath is ambivalent, because it's not so clear, and in the same time, it's
clear enough to oppose the nazi and soviet policies.

Declaration of Geneva

In 1947, the newly formed World Medical Association had written this « Serment de
Genève » in three languages ; french, english, and spanish. And this declaration is a kind
of new version of the Hippocratic oath.
"The health of my patients will be my first consideration, and I will not permit
considerations of religion, nationality, race... to intervene between me and the patient"
Medical students often swear this oath at graduation or during the white coat ceremony.
It's the modern version of the hippocratic oath, and it's typically a self regulatory medical
oath.

Codes

(1) Self-Regulatory Medical Codes

Percival's Code of Medical Ethics

Thomas Percival of Manchester wrote the book "​Medical Ethics"​ in which he tried to define
the duties of physicians. The percival code specified duties to patients and also to the
public. For instance, physicians had a duty to treat all patients, poor and rich alike, with
attention with tenderness, humanity, attention to confidentiality, and to inform patients,
families...
Quite different from the oath, it's not something that you're going to swear, but something
that's imposed to you as a physician. Deontological obligation.
This code is also innovating in appealing to the ideal of physicians as professional. For us
it is quite obvious that physicians are professionals and must be professionals, but at that
time, there was a great debate about the following issue : are physician professionals or
much more honorable gentleman ? The traditional way to thnk the physician, for instance
in England, was that it was a work for gentlemen, honorable gentlemen, and that
physicians didn't have to follow a code. This tradition will be kept in what we call the honor
court.

By the end of the 19​th​ century, in the Americas, Europe, and european colonies, we're
experimentating with honor courts that regulate the behavior of the physicians.

Another possibility that's now the modern one is the International Codes of Medical Ethics

(2) International Codes of Medical Ethics

Until the end of world war 2, medical societies vascillated between honor courts and formal
courts of ethics, but after world war 2, it was different because of the Nazi period.
After the Nuremberg trials, we understood precisely the role of Nazi physicians in the
holocaust, so it was an emergency to write a code not for a country, but with this ambition
to be an immediately international one.
This is why the Nuremberg tribunal housed at the end the birth of the Organization of
medical science, the council of international organization of medical science, and later on
other transnational entities.
What we called the Nuremberg code was a code issued by war crimes tribunals, and was
the main basis in the new international code in medical ethics. This new code will be
written for a second time with the declaration of Helsinki in 1964.
Soft law, because it's not an obligation for states to abide by it, but it's an influential law.

Critique and Defense of Medical Oaths and Codes

The Critique

Medical oaths and codes have been criticized in the sense that they're self-serving and
lack moral authority ; indeed, they're issued by the state, they really serve the interests of
the party issuing them. They're made by physicians to protect physicians, it's just a kind of
professional protection. One of the main works in academic fields defending this thesis has
been made by two sociologists in 1975, two sociologists following the theory of
functionalism. They tried to explain that these proclamations of codes, even oaths in
medical ethics, merely serve to hide monopolistic privileges of the physicians. One of the
proof they give is that this kind of texts has two effects : It's supposed to have the effect of
regulating the behavior of physicians, but the second effect is to say who has the right to
(enable?) a physician. These code define a category of professionals, they do not serve
the interest of the patients, but the interests of the physicians themselves.

The Defense

The soviet experience, or the nazi experience have shown that if you do not respect a
code, and if you invent another one, saying that the duty of the physician or a midwife is to
serve the state, the party, or the people, instead of the patient, you're going straight to a
catastrophe.

Principlism

Prima facie = at first sight/view, à première vue

Specific conception of non-absolute duty introduced by David Ross. ​The Right and the
Good.​
Prima facie duties are morally binding unless they conflict with particular obligations in
certain contexts. The prima facie duty is not the actual duty in all situations.
It's the opposite of the kantian ethics. Usually when we think of deontological ethics, we
think immediately that it is kantian ethics, but it's in fact only one possibiliy in deontological
ethics. The kantian ethics have the problem of the absolute duties ; are they as absolute
as Kant says, is it possible to respect absolute duties in every case ?
There are other possibilities and this one is very famous, it's a non-absolute deontological
method.
Your moral life always occurs in a specific context, so you must have a kind of aristotelian
deliberation in order to find what will be your actual duty at the end. This is the
fundamental concept used in medical ethics if we follow the method of principlism (the
word has been coined by some philosophers (K. Danner Clouser and Bernard Gert) to
criticize another one, it doesn't otherwise exist in the english language)

If you don't have principles, Beauchamp and Childress think you can't have a moral
conduct, but it's just prima facie principles.

Applied ethics, you discover ethics that are not the same in every field, so you have to
understand what are the specificities.

Characterization of the Four Principles

1. Principle of beneficience

2. Principle of nonmaleficience

3. Principle of respect
Controversial, because when you go see a physician, it's because you cannot be
your own physician, he has a knowledge that you don't have, so there's an
asymettry in this relationship. How to deal with this asymettry in order to respect
autonomy ?
 4. The principle of justice
This principle of justice is in professor Bilier's opinion the weakest, because it's
extremely difficult to agree on what means justice, what kind of theory of distributive
justice you're going to use to think the problem of benefits..

Negative duty = duty that's universal and that can be respected by anybody. Exemple : Not
killing people.

Positive duty = You have to do something, and everybody doesn't have the same
possibility to respect a positive duty. Nevertheless, Beauchamp and Childress stress the
first role of the principle of beneficience, because as a doctor, your role is to provide
beneficiency.

The emergence of principlism

After the second world war, ethics was at that time in the academic world, mainly theories,
mainly about normative theories, and also about metaethics. So there was a kind of gap
between academic works and the issues raising in specific fields like medicine, that's why
the idea of Beauchamp and Childress was to find some cohesion in the discussion of
normative ethics by examining the basic principles that should apply to a wide range of
biomedical problems. It's based on the insight that despite divergence between different
schools of thought, philosophers of different school of thought can agree.
They share the hypothesis that the differences in ethics, even in metaethics, are just
theretical, in the end, everyone agrees
Derek Parfitt, even if philosophers disagree on metaethical issues, on normative theories,
they can agree on the same results. Beauchamp and Childress share the same insight, ;
they think we can agree on a minimal part of ethics.

The reception of Principlism

A Critique of Principlism,​ Clouser KD, Gert B, 1990, paper in which the word principlism
was coined.
The four principles are free-standing, eclectically picked from different branches of moral
philosophy, but not embedded in one moral theory, it's not really a moral theory.
Beauchamp and Childress haven't tried to unify their theory, they've just said "Let's take
these principles, and it'll be enough as prima facie duties in medical ethics"

Two sides of the critic : some critics think it's a mistake to turn away from fundational moral
philosophy, they've said that the big msitake was to avoid the problem of foundation of
moral philosophy. We don't try to justify the principles, we simply pick them up in the
culture.

The first criic is to say hat there's a lack of theory, a lack of foundation.

The other side argued un the opposite direction, Beauchamp and Chaldress haven't
sufficiently departed from fundational moral philosophy, because they start from general
principles, and that it's going to be useless because it's too general.

Criticism of the « Georgetown mantra »

Both Chaldress and Beauchamp were from Georgetown university. If you look at hospitals
20 years later, we see a kind fo use of mantra. "Mantra" because each time there's an
issue, the physician says : we know the principles,
Often the philosophy of Beauchamp and Chaldress isn't understood properly, because
often, the concept of prima facie duty is not understood properly. It's often understood to
be the opposite of what they've said.

Rappeler le principe de non nuisance ne serait-il pas un truisme ?

Le principe de bénéficience est différent, si le médecin ne suivait pas ce principe, alors il

ne serait pas médecin

Principe d'autonomie :
Théorie kantienne, concept très fort de l'autonomie, l'autonomie n'a de sens que lorsque
l'individu se place dans la situation où tout doit être respecté par tous et toujours. =
lorsque le sujet se plie à la loi morale.
Théorie millienne (Dans notre cas, c'est celle-ci) : capacité pour quelqu'un de choisir pour
lui-même son projet de vie

Principe rawlsien des considerate judgements, on peut parvenir à des jugements moraux
très peu controversés qui peuvent être la base d'un équilibre réflexif, c'est-à-dire de la
construction d'une réponse morale cohérente. Il est important que la réponse morale soit
cohérente.

Personne de confiance, Vincent Lambert, comment choisir entre les parents et les frères
et sœurs ?
Solution J-C Billier : Privilégier le choix de la famille de choix (épouse) plutôt que de la
famille d'héritage

En 2016 Claeys-Leonetti a proposé la personne de confiance, qui peut être n'importe qui,
mais si vous n'avez pas fait de directive anticipée, pourquoi auriez vous choisi une
personne de confiance ?

Est-ce qu'un état (libéral) peut vous obliger de penser à votre mort ?
Non, viol de sa neutralité

Leonetti 2005 = théorie du double effet

On ne peut jamais donner assez à quelqu'un → puise infiniment dans les ressources →
liberticide

On pourrait distinguer suicide et euthanasie

êtres non-conscients (nouveaux nés, ou ceux qui n'ont plus accès à leur volonté) =
euthanasie
êtres qui ont accès à leur volonté et ne peuvent pas physiquement accéder à la mort =
suicide

Cours 4
07/10/2019

L'éthique de la guerre

Confucius,
Do not send first soldiers, send virtues because the problem is very often corruption. War
must be the last solution.

Mo Tzu
There are three kinds of war
Wars of aggression
Punitive wars
Wars of self defense
His reasoning is already like that of modern utilitarians because he tried to make a kind of
balance between costs and benefits. He explains that war of aggression is too costly for
everybody, because if you want to invade a country your soldiers will not be at their (own?)
to work

India : The Laws of Many

Greece , Plato, ​Republic​,

Plato places limits on the ravages when fighting other Greeks.
It's different when they fight non-greeks

The Romans and the rules of war

Christianity :
In the beginning, christians were pacifists because of the lessons of the Christ and for a
political reason : christians weren't with any kind of military and political power. When
christians began having an army and political power, they tried to develop a theory about
war and violence.
St. Ambroise, St. Augustine, St. Thomas Aquinas, Francisco de Vitoria, Francisco Suarez

Natural Right Theory

Grotius took the christian tenet of just war and put it in a non-religious law, the natural law.
The rules of the just war, in accident, are the same since the christian period until now in
international law.

Structure

Just War Theory : Standard Version

Jus ad bellum = what are the good reasons to start a war, to use violence, if there is any.
Jus in Bello = once the war has already started, how can we conduct the war, what's the
permissible conduct in the war ?

Contemporary version adds Jus post bellum

Jus post bellum = Can we judge people after a war, like in the Nuremberg or international
trials ? After a war, is there room for justice ? How to end a war after irs end ? How can we
establish peace for a long time. The end of the war is not just an act by which you sign to
end the war, it's also a policy that gives grounds to peace.

The problem of the connection between the two parts of the theory
Two first parts of the theory. There are several possibilities.
It's possible to start a war for good reasons but we can break the rules of the Jus in bello
It's possible to start a war without good reasons, but it's possible that you conduct your war
morally and respect the rules of conduct in war.
You have no good reasons to start a war and don't respect the rules
You have good reasons to start a war and respect the rules = ideal war

Jus ad bellum / Justice of the War

(moodle)

Traditionally, six conditions are identified

Aquinas's three conditions for just war :

Just cause (including the « preemptive »/preventive problem »)
Legitimate authority
Just means of the principle of proportionality
 1. Just cause

There's just one just cause. It's self defense. At the time of Aquinas and in the middle age
there were two just causes in the moral catholic eschatology
When you fight against the muslims, eternal just cause, you can do it whenever you
want
Self-defense, when it comes to war with other christian countries
Defensio, recuperatio, punitio. Attacked countries can fight until their territory is under their
control, but they can also recuperate the equivalent of the damages they've suffered, and
thus, they can go to the attacking countries to take riches. They then have to punish the
attacking country, by causing aditional damages/casualties.

Preemptive/preventive problem. The theory makes a clear distinction between a

preemptive strike and a preventive one.

Our spies and our satellites show that in Belgium, this morning, the army is just at the
border with France, there are many men and tanks and it seems they are preparing
themselves to invade France. So we suppose they're going to attack, and for military
reasons, it would be better to strike first. Is it morally possible ? This question is very
complicated because of the problem of the counterfactual. If we strike Belgium, if we bomb
the tanks, we are going to destroy the tanks and at the same time, the only possibility to
prove that they will attack, is that they would attack. Impossible to prove. But part of the
theorists of just war theory, is that we can accept this preemptive strike because there's a
military reason.

The other possibility is the preventive strike, the preventive strike is not the same.
A few years ago, Israel and the United States said Iran was preparing nuclear bombs.
They weren't going to have it immediately, but it was too dangerous, because once they'd
have the nuclear bomb, they might attack Israel or anyone. So let's attack them. It would
seem crazy in a one on one context.

2. Legitimate authority

The state is the only authority that can legitimately start a war. Nobody else can enter in a
war. It means that all the other will be called not ennemies, but illegal ennemies/illegitimate
ennemies. Example : terrorists, free-fighters...
This problem is typically the problem of the war against terrorism. Is it a war ? Is it an
enemy ? Or is it just a criminal ? It's a very deep problem, because if you see the terrorist
as a criminal, you deny that it could be an enemy. It's as if you could chose who has the
right to be an enemy.
 3. Just means or the « Principle of Proportionnality »

Must not be confused with another principle, the principle of success.

Proportionnality means that the war must not be rigged by means more savage than
necessary to ensure victory.

Let's say that Belgium is going to attack France, they have two hundreds tanks at the
border, and are going to invade France. France has to fight, what is the proportionnality ?
If you're a bad soldier, you're going to send two hundreds tank ; because you think war is
like sport. If you want the victory, you're going to want to overpower the ennemy, so you're
going to send thousands of tanks and are going to destroy the ennemy tanks at the first
strike. Maybe the strike will be violent, but it'll only take like one hour before the Belgians
will likely stop immediately. So in order to obtain proportionnality, you must be
disproportionnate, but the disproportion has a mean : the mean is proportionnality.
How can you obtain victory with the smallest amount of suffering ? = Negative
utilitarianism

Criticisms of Aquinas' Conditions

Self defense is not an absolute right

It's impossible to justify Jus ad Bellum with one criterion, even two, and even three.

4. Last resort

A just war is one in which hostilites have been initiated only as a last resort. On this view, a
war is unjust if its ends can be attained by nonbelligerent means. You must explore first
diplomatic

5. Reasonable hope of success or Likehood of success

If defeat is inevitable, hostilities will only impose costs with no hope of gain, so it's just
going to maximize the human suffering, and it's absurd. The idea is that even if you have
all the other criteria for the Jus ad bellum, if you haven't a hope of success, you haven't the
right to fight.
In 1940, the French resistants, do they have a reasonable hope of success ? No, so we
could say that they have a just cause, but they haven't any kind of reasonable hope of
success. Do we have to say that what they did was illegitimate ? The same goes for the
polish hussards, considered as heroes in Poland.

6. Right intention or Good intention

A war may be justified only when the responsible agents have a right or good intention.
What is a collective entity as a state ? The intention of who is that of the state ?

Conclusion on the Jus ad Bellum

If even one of the principles have not been satisfied, the war is unjust, you must respect all
the principles together.

Jus in bello / Justice in the war = Permissible conduct in War

-The principle of Proportionality

The same as before

-The principle of Discrimination

Proportionality : It demands that the quantity of force employed always be proportional to

the end.

Difficulties

Where do you have to respect proportionalities

- It's unclear because the principle is just a principle, it doesn't give you precise answers.
What means savage use of violence ? When violence is starting to be savage ? Maybe
violence is always savage ?
The Principle of Discrimination

Distinction combatance / non combatance, military targets and civil targets

Difficulties

Difficulty of distinguishing between combatants and non combatants

Obliteration bombings

Theoretical background

The Doctrine of Double Effect

Invented by Thomas Aquinas, has four principles that we'll see later on.

Churchill, bombings on Dresdes, had the effect of killing hundred thousands people, that
were mostly civilians. Under the international law at that time, it's exactly the concept of
war crime where you order to kill massively civilian people. Churchill said it wasn't a crime,
it was morally legitimate because his intention was to desroy the Nazi regime and to stop
definitively the Nazi distraction of Europe. There's a general agreement that it's a moral
goal. The casualties weren't wanted but only known, and the proportion is good, so the
double effect is respected.

Absolutists and non-absolutists

Absolutist = absolute deontological obligations. Like not to kill, or just ennemies that are
military combatants. But in reality, it's never clear ; in a war, nothing is ever completely
clear. Who a combatant exactly?

Kantian / non-kantian

Using Just War Theory

Who can use Just War theory ?

Political leaders.

Challenges to Codes of Warfare

 Why Not Pacifism ?

Anscombe (Critiqued pacifism)

Poltiical Duty to Nation vs. Moral Duty to Preserve Life

Feminist critic

Everything about war is borne off a masculine point of view.

Contemporary Issues

A contemporary defense : Walzer on ​Just and Unjust Wars

We can defend something such as just war. Controversial, because there are good
arguments according to which there's no such thing as just war

Bryan Orend, ​The Morality of War,​ most interesting book in the bibliography
New criterions for the Jus ad bellum
Imagine that you can respect the six criteria of the Jus ad Bellum
Decent society vs non-decent society (Rawls' vocabulary), decent = your society respects
a minimum of non-controversial principles → your society is allowed to defend itself

Théologie morale catholique qui va inventer la paix de Dieu et la trêve de Dieu

Paix de Dieu = lors d'un conflit vous ne pouvez pas vous en prendre à certaines
catégories de la population : prêtres, femmes, juifs...

Trêve de Dieu = Interdiction de se battre entre le samedi à midi et le dimanche le soir

Crise des arbalètes, fondatrice de l'éthique de la guerre occidentale. L'église a interdit les
arbalètes en disant qu'il était moralement répréhensible d'avoir une arme à laquelle
l'ennemi ne peut réagir, et qui a une force disproportionnée par rapport à celles de
l'ennemi
Armes mala in se (Armes mauvaises en soi)

Double effet

Codes de chevalerie
Art de Bataille, Honoré Bonnet, synthèse de tous les codes de chevalerie de l'époque.
Interdit de s'en prendre aux non-combattants, qui peuvent aussi être des hommes ou des
combattants qui ne sont plus en état de combattre (malade, blessé...)
Critère de l'égalité de statut moral des combattants, application du principe séculaire de
réversibilité : ne fais pas à autrui ce que tu ne voudrais pas que l'on te fasse. Autrui va
tenter de me tuer, je vais tenter de le tuer.
Cours 5
14/10/2019

Doctrine of Double Effect

Read Double effect theory article on the Stanford Encyclopedia of Philosophy

One of the most famous tools in metaethics and normative ethics

Invented by Thomas Aquinas, Summa Theologica (II-II, qu 64, art 7)

It's possible from a moral point of view to kill somebody. Incredible because in the christian
religion one of the first rules is to never kill anybody.

If you are attacked, you can kill because killing the person is not intended. The first rule is
intention.

"Therefore, this act, since one's intention is to save one's own life, is not unlawful, seeing
that it is natural to everything to keep itself in being as far as possible." the action has two
effects, you have at least two effects ; the idea is that only the first one is intended, but for
the second one, you simply know/foresee what's going to happen (the effect), and this
effect can be allowed.

However, the permissibility of self-defense is not assured, self-defense must be exerted

proportionally to the threat/injury towards ourselves.

Joseph Mangan's Formulation

Four conditions :

That the action in itself from its very object be good or at least indifferent

That the good effect and not the evil effect be intended

That the good effect be not produced by means of the evil effect
That there be a proportionately grave reason for permitting the evil effect

The four conditions have to be respected together, otherwise you're not in the doctrine

2. Applications

Exemple of the terror bomb, a terror bomber aims a military target, and his bomb kills
civilians, the death of civilians is an uninteded consequence.

Supererogation (surérogation)

Supererogation is when you have something beyond duties, it will be an act with two
characteristics :
- It is absolutely optional, it cannot be an obligation
- If you perform it, it will be sacrifice, you will sacrify your life or your interest

Double effect theory, sacrifying one's own life to save that of another can be distinguished
from suicide by distinguishing consequences from intention. The person doesn't want to
commit suicide, to kill themself, their intention is to kill others

3. Misinterpretations

A. First, it is a misinterpretation to claim that the principle of double effect shows that
agents may permissibly bring about harmful effects provided that they are merely foreseen
side effects of promoting a good end.

B. ???

C. Michael Walzer said that we should have this rule of minimization in the double effect
theory. If you want to find the good proportionality, the good proportionality is never given,
it's never obvious, it's just the rule of minimizing the bad effect.

Problème dans la doctrine du double-effet

Statut de l'intention, la doctrine ne dit pas qu'il faut rejeter le conséquentialisme au nom
d'une morale de l'intention, ou qu'il faut rejeter la déontologie, elle combine les deux, ce
qui entraîne peut-être une addition des pires problèmes des deux.
La première clause nous ramène dans le champ des morales de l'intention puisque tout va
découler de la caractérisation de l'acte par l'intention. Parfois mise en avant de façon
excessive par des philosophes qui défendent la centralité de l'intention. Exemple,
Elizabeth Anscombe,

Il ne faut pas confondre l'intention avec la volonté. Dans une description naïve des
morales de l'intention, on nous explique qu'un acte est bon grâce au critère de l'intention ;
ce n'est pas les conséquences de cet acte qui le font bon, mais la qualité de l'intention.
Version kantienne, naïvement kantienne, car Kant explique :
- Aucune intention n'est pure, puisque nous sommes un être capable de s'engager par la
raison mais aussi un être sensible
- Wittgenstein, peut-être n'atteint on nos intentions que rétrospectivement, comment
puis-je accéder à l'identification de mon intention ? Il faudrait que j'arrive à dépasser le
problème du mensonge à soi-même, de l'opacité morale à soi-même. (Kant devoir de ne
pas mentir à soi-même premier par rapport au devoir de ne pas mentir à autrui). Lorsque
je décris un acte de l'extérieur, je n'ai pas la capacité de comprendre quelle est l'intention
qui caractérise cet acte. Pour caractériser l'acte, on va prendre l'intention la plus probable
grâce à d'autres facteurs.

Kant a une solution pour vérifier que l'on ne se ment pas à soi-même. Le critère de Kant
est une émotion, malgré une éviction de l'émotion en tant que motif. L'émotion peut-être le
signe de ce qui permettra de savoir si vous mentez ou pas ; ce signe est la joie, qui n'est
pas la même chose que le plaisir (= anticiper un bien futur et le viser avec intérêt) alors
que la joie je ne peux pas la viser ou l'anticiper, même si on peut la supposer, la joie est
quelque chose qui nous vient et semble de l'ordre de la grâce.

Théologie chrétienne, la joie est un plaisir qui nous vient, pas un plaisir de type normal, ne
correspond pas à un intérêt. Nous serions tous capables en nous de distinguer la joie d'un
plaisir.
Kant, de façon chrétienne dit, si j'ai identifié correctement l'intention de l'acte, je ne suis
pas récompensé, mais je suis signalé à moi-même par la joie, j'éprouve la joie du devoir
accompli.

Cela ne paraît pas entièrement robuste, il ne paraît pas évident que nous puissions
identifier de façon parfaite l'identité de l'intention

Wittgenstein et Anscombe : l'intention n'est pas un état mental antérieur à l'acte que l'on
pourrait identifier à part, l'intention est inscrite dans l'acte ; l'acte comporte de l'intention, et
dans le fond c'est en partie rétrospectivement que l'on atteint l'identité de l'intention par
l'acte, et il est trompeur d'imaginer que l'intention serait un état mental qui existerait
antérieurement à l'acte qui serait un mouvement quelconque.

Michael Bratman, livres années 80-90 sur l'intention, l'intention est un plan intentionnel qui
se déploie dans l'acte et peut se corriger au fur et à mesure.

Toxin Puzzle, Kavka : montre la distinction entre intention et volonté.

Imaginons qu'existe un scanner cérébral qui permettrait de détecter dans l'esprit de
quelqu'un, avec une certitude absolue la présence d'une intention possible à un moment
T.
Considérons une petite fiole de toxine, si on la boit, nous serons atrocement malade
pendant 24h, mais il n'y a aucun effet secondaire, aucun danger pour l'organisme. Pas
obligé de la boire, on doit seulement avoir à 0h l'intention de la boire le lendemain à midi.
Si la présence de cette intention est détectée à 0h, un million de dollar sera versé sur
notre compte à 10h.
Mais si je pense que j'ai juste à avoir l'intention de la boire à 0h00, c'est que je n'ai pas
l'intention de la boire.
Nous n'avons aucun contrôle volontaire de notre intention.
Objection majeure et catastrophique pour les morales de l'intention naïves.

Chez Kant, c'est la volonté bonne, lorsque je me projette volontairement sur un but, et non
pas en constatant en moi un état.

Stoïciens, différence entre scopos et telos, dans un acte il faut distinguer scopos (= le but
atteignable d'un point de vue concret) et telos (= la volonté), exemple de l'archer : l'archer
veut atteindre le centre de la cible (volonté, telos), et peut-il maîtriser cette volonté, oui, car
il la maîtrise au présent. Mais scopos non, car la cible est séparée de nous par le temps et
l'espace, on peut rater la cible. Mais à ce moment là c'est la fortune, le hasard, et ça nous
ne pouvons pas le maîtriser, seul le telos peut être maîtrisé. Je peux vouloir soigner un
patient, mais en injectant un produit, il peut y avoir des choses imprévisibles qui changent
le cour des choses.

La doctrine du double-effet dit que je ne suis pas responsable du second effet qu'à
condition que je ne le veuille pas. Je le prévois, mais j'ai concentré ma volonté sur l'autre
action.

Causalité déviante, Donald Davidson, ​Actions and Events

Exemple de John, dont l'intention est de tuer son oncle. Il prend son fusil, le met dans sa
voiture, et part tuer son oncle. Il est entièrement absorbé par cette intention. Arrivé à un
carrefour, il va renverser quelqu'un qui traverse, et cette personne est son oncle.
L'a-t-il tué volontairement ? Est-il responsable ?

Joshua Knobi,

Side-side effect
Skill effect
Intéressants pour montrer comment nous appréhendons l'intention
Peuvent être considérés comme des biais ou des structures par lesquelles nous
comprenons ce qu'est une intention.

Side-side effect : On travaille dans une entreprise, on va voir notre patron, et nous lui
disons que nous avons découvert une façon de doubler le chiffre d'affaire de l'entreprise,
mais il y aura un effet secondaire : nos activités deviendront catastrophiques pour
l'environnement. Le patron nous demande de la mettre en œuvre.
Ce patron a-t-il nuit intentionnellement à l'environnement ?
Tests de psychologie morale expérimentale : la majorité des gens disent oui, même si l'on
est dans le cadre du double effet. Son intention est de doubler le chiffre d'affaire, mais il
prévoit la nuisance à l'environnement. Pourtant, nous attribuons une intention négative à
ce patron car il nuit à l'environnement

On va voir le patron, moyen de doubler le bénéfice, les activités vont être incroyablement
bénéfiques à l'environnement. Le patron demande de le mettre en œuvre.
Ce patron a-t-il aidé intentionnellement la cause de l'environnement ? Dans les tests de
psychologie morale expérimentale, a proportion statistique s'inverse, cet homme n'a pas
oeuvré intentionnellement en faveur de l'environnement.

Notre façon d'identifier l'intention, de la ranger non pas du side-side effect mais du côté de
ce qui est visé au premier chef va dépendre de notre façon de qualifier moralement la fin
de l'acte. Lorsqu'un acte est considéré par nous-mêmes comme étant mauvais (nuire à
l'environnement) nous allons abaisser notre exigence intentionnelle. Alors que si cet acte
correspond à une qualification positive, nous allons augmenter l'exigence intentionnelle,
on va donc augmenter la dose d'intention que nous exigeons, et donc la même personne
n'est plus considérée comme intentionnelle.

Bombarder des villes allemandes en disant que le but n'est pas de tuer des civils, va-t-on
attribuer une intention à Churchill qui va être une responsabilité ?

Skill effect : championnat de tir au pistolet, arrive le premier candidat, il vise le petit rond
noir, il est parfaitement concentré, toute sa volonté est concentrée sur le fait de toucher
intentionnellement le coeur de la cible. Il touche le coeur de la cible, l'a-t-il touchée
intentionnellement ? Il semblerait que oui

Deuxième candidat, idem, se concentre sur l'intention présente de toucher le coeur de la

cible, mais ce deuxième candidat n'est pas très bien entraîné, il tremble, et en tremblant,
son doigt appuie maladroitement sur la gâchette, et la balle touche le coeur de la cible,
l'a-t-il touchée intentionnellement ?
L'intention est la même que le premier candidat, la seule différence est l'habileté, le fait
d'être habile ou pas va-t-il avoir une incidence rétroactive sur la qualification intentionnelle
de l'acte ?

Une personne tire volontairement sur un policier, le touche

Une personne tire volontairement sur un policier maladroitement
Doivent-ils être jugés différemment ? Est-ce intentionnel ?

Moral luck

Bernard Williams, ​Moral Luck

Thomas Nagel

Inclue-t-on la fortune, le hasard, dans la qualification morale d'un acte, cela vient croiser le
skill effect.
Exemple : Trekking au Pérou, on arrive là-bas avec un groupe de sportifs que l'on ne
connaît pas, et nous sommes partis pour 8jours de marche sur les hauts plateaux
péruviens. Dès le début, il y a un personnage très désagréable, insultant, et nous a pris
nous spécifiquement en grippe. Au bout d'un moment, on ne se maîtrise pas, on le frappe.
Nous l'ignorions, mais il était hémophile → il meurt. Il y a-t-il une différence si la personne
était hémophile ou non ? Il y a un élément totalement imprévisible qui est intervenu dans
le déroulement de l'acte. La qualification risque de changer, s'il n'avait pas été hémophile,
les autres membres du groupe nous auraient peut-être dit que nous avons bien fait, mais
s'il meurt, il y a peu de chance qu'ils disent que nous avons bien fait.
Est-ce qu'on introduit la moral luck dans l'évaluation morale d'un acte ?

Imaginons deux frères jumeaux nazis en 1939. L'un des deux est enrôlé dans la
Wehrmacht, et de la Wehrmacht il passe aux SS. Pendant la guerre, il va participer de
façon nette et de grande ampleur au génocide des juifs d'Europe.
Son frère jumeaux a exactement les mêmes intentions nazies, mais lui, il a été envoyé par
son entreprise allemande dans une filiale en Argentine, où il a travaillé dans une
boulangerie industrielle pendant toute la guerre. Il ne se révolte pas.
À la fin de la guerre, y a-t-il une différence morale entre les deux ? L'un des deux a eu la
chance de ne pas être impliqué dans des massacres, l'autre a eu la malchance d'être
impliqué, doivent-ils être moralement qualifiés de la même manière ?

L'intention compte-t-elle lorsque la réalisation ne dépend pas de l'agent ?

Cours 6
21/10/2019

Ethics of Spying or Ethics of Espionnage

Part of ethics of internal relations or of ethics of war

Jan Goldman, ​Spying​, two volumes

Is it possible to spy on allied and neutral states ? Is it allowed to spy on everyone ?
Probably, but then it means there's no clear distinction between war and peace.
Sometimes, we want to draw a demarcation line between war and peace, but in reality,
there's a kind of cloud of indistinction between peace and war. For instance, as put two
weeks ago, right now, is France at war ? Officially no, but actually yes, in Syria and Africa.
France is not a war, but because there are intelligence works of the french state
everywhere in the world. peace is not a complete peace.

Right/good intention, last criterion of the jus ad bellum.

It is immediately controversial, not only because of the problems we can find in the
concept of intention, but also because in ethics of war, it's immediately controversial.

Grotius tossed this criterion out of the theory of just war because of the subjective nature
of intention.
Grotius wanted objective principles to do the restraining work promised by the theory of
just war, and the criterion of good and right intention was subjective for Grotius. Grotius
understood that we can know the intention after the event, how can we know the real
intention of a person or a state ?
If an army leaves a liberated country, we say that the said army has – or should we say,
had a good intention. It's always after the event that we evaluate an intention.
Intentions can be changed during the course of an event.

It's really difficult to do what Grotius did, it's very difficult in ethics to say that intention
doesn't mean anything, so we probably have to keep that criterion of intention, but we can
use it only after the event.

Difficult to interpret intentions because ends and means of a war are usually secret.

Extremely difficult to know after the event what was the intention of spying

Jus in bello, there are limits to the legitimate magnitude of forces. If war is decided to
correct injustice, it cannot be justified if the level of force used creates new and greater
injustices. Proportionality demands that the quantity of force employed be proportional to
the end. This principle will also be employed in spying.

Three main difficulties with this principle of proportionality :

1. The end considerate might include both the immediate military end as well as the
general political aim of the war, and the importance and magnitude of these two goals
might be quite different, making it difficult to know exactly what are the proportional means.
Two goals in spying : to obtain informations in a specific situation, and another one, the
political end. Depending on the goal you chose, the proportionality will be quite different
when you want to define it.

2. Maleability of proportionality
3. The proportionality principle can be expected in the use of weapons. There are
considerable debates about napalm bombs, or also atomic bombs, but in practice, it has
been extremely uncommon for any existing weapon system, especially those that are
highly effective to be viewed as disportionate, maybe all weapons must be
disproportionate, since they're meant to be used to obtain victory.
Spying, fair play between spies, between states, but this idea is naive, because if you want
to obtain legitimate goals, if you want to reach a goal, of course, you must try to use the
good means, and so the proportion will be seen with this consideration of the goal. If an
enemy has sent 10 spies on my territory, is it fair to send 10 spies on their territory ?
Doesn't it allow me to send more spies ?

Principle of discrimination

Not every target is properly the object of military force, if there's to be a distinction between
killing and murder in war, there must be a prior discrimination between targets. →
Treatment of non-combatants
The principle of discrimination usually prohibits attacks on non-combattants, on
non-military targets.
The main problem with this principle is the difficulty to distinguish combatants from
non-combatants. It will be also a problem in spying. In spying, are you just allowed to spy
the other states, or are you also allowed to spy the civil society of these states ? Can you
draw a clear line of distinction between combattants and non-combattants, state targets
and non-state targets ? In fact, it will probably be highly impossible to give a very clear line
of demarcation.

In ethics of war, we usually think that the principle of discrimination is the small sibling of
the jus ad bellum principle. Whereas the principle of proportionality applies to the whole
war, the principle of discrimination applies only to individual campaigns or battles, but in
the case of spying, it doesn't work, because in fact, the two principles are probably at the
same level, so there's a kind of lack of hierarchy here between the two principles rendering
the problem much more complicated in spying.

Some positions about ethics of war link to the ethics of spying

The problem of pacifism
The problem of the political duty to nations and the moral duty to preserve life, because
those two issues are linked directly to the problem of spying.

Pacifism : We could acknowledge that war is an awful thing and that it's to be avoided,
except maybe in the case of legitimate defense. But in all other cases, we just want to see
the other states as neutral or allies, but never hostiles, and we do not want to be hostiles.
So we will not use any kind of spying.
Classic question in political theory, the challenge of pacifism, and we have to think about
it : why not pacifism ?
Some will argue that there cannot be a theory of the justification of war because war can
never be justified. Some will accordingly argue that there cannot be a theory of the
justification of spying, because if you spy somebody it's because you have a kind of
hostility to that individual/state, spying is a kind of low-level war.
Numerous philosophers have taken the option of pacifism seriously, but mostly, pacifism is
rejected. Two very well known reasons why :

Jan Narveson, argument against pacifism : the argument is that, pacifism is

internally inconsistent and self-contradictory. Why ? Narveson argues that if we have any
right at all, then we have a right to use force in defense of our rights, at least in some
occasions. Moreover, he argues that the pacifist principles, that everyone has a duty not to
oppose violence with force, implies that pacifists must believe we do have some rights,
namely, the right not to have violence done to us. But then, the pacifist position is self
contradictory, because it says both that violence is wrong, yet at the same time that people
have a right to prevent violence by force if necessary. If you have a right, you have a right
to defend the right.
We can discover that Narveson's arguments works only against a version of
pacifism that prohibits any use of force, but it's ineffective against another form of pacifism,
in which you think that you can sometimes use force to prevent violence, but for instance,
prohibiting any lethal use of force. This version is much more close to that of Aquinas.

Elizabeth Anscombe, double argument, because Anscombe has presented two

additional criticisms of pacifism.
First, she argues that Pacifism is a false moral ideal, because it denies that
individuals have the right to self defense.
Second, she argues that pacifism is pernicious, because it encourages people to
believe that all killing is equally wrong, which leads people to neglect the distinction
between killing in war time for a justified cause, and unjustified atrocities, the result is that
war becomes much more murderous rather than moderated.

In intelligence questions, you haven't to kill anybody, so even if you have a strong
version of pacifism, you can accept spying.
But if you have a weaker version of pacifism, and say that it's not about killing
people, but in general, it's about being hostile to others, in this case, there's going to be an
issue with spying, because spying cannot be pacifist. Spying is an hostile kind of act. And
the existence of spying in general shows that there's no clear line of demarcation between
peace and war.

Churchill wanted to keep the old version of spying a work of gentlemen, and in this
version of ethics of spying you never have a case for spying your allies, you can spy
hostile states, sometimes neutral states, but never allied states.
But just before the second world war, the main ennemy of England was the Soviet
Union, both of them sent a lot of spies to each other back then. So when the Soviet Union
began to fight against Nazi Germany, it became allied to England, so at the time, England
prohibited any kind of spying in the Soviet Union, because it was now one of the allies.
Historians say that it was mostly true.

But of course, the United States of America is spying France, Germany, which is
spying Spain, etc.. even if we are allies, we have interests and secrets, so in fact, spying is
this kind of "caillou dans la chaussure", something you have always in the naive definition
of peace.
A naive peace would be a peace without any kind of interest, but it's extremely
naive to imagine that a state would never have a kind of interest.
 The last issue about just war theory is the problem of political duty to nations vs the
duty to protect lifes.
Duty to preserve the national community, first classic moral principle for spying, but
do you think that you can do absolutely anything to respect this duty to nation ? It's the
same thing as in just war theory, in just war theory, you cannot use any mean whenever
you want. You cannot use a nuclear weapon in response to a minor attack.
It's rare that you have to kill somebody, we know from the history of intelligence that
there's a kind of general agreement between intelligences not to kill people, because that
would be against the interest of everybody.
There has been a case of assassination by the Russian intelligence in England
recently, but Russia killed a russian, though considered english by England. For the honor
code of intelligence in Russia, it's impossible to accept that somebody is going to betray
the state without punishment. It's a case of conflict between an internal moral code and
international law..

I. Intelligence gathering

Ethical intelligence work : an old fashioned oxymoron ?

It might be impossible to think any kind of ethics in intelligence.

Stupid problem because ethics is necessary when you are in cloudy situations, as
business, as spying, as war, and so on, it's in these situations that you need ethics, not in
everyday life when you have small problems.

There's an idea that ethical intelligence is an oxymoron that is based on the

arguments of :

- Moral nihilism, all moral claims are just meaningless, even those that are
supposed to hold between individuals, it doesn't represent a misunderstanding of ethics,
but rather a rejection of ethics. There's no problem because there's no ethics.

- Realism, but maybe it is a misunderstanding. This position holds that ethics has
no place in international affairs. This idea is most famously argued by Hans Morgenthau.
In ethics of international relation, this realism says that there's no ethics at all, there's just a
fight of interests between states/nations. It means that in fact, as it's pure interest, you
have not to speak about moral issues ; there's no moral issue.
Quite strange, there's a very famous case with a russian spy in the United States
(though he was american), Aldrich Heims, he betrayed friendly agencies for two foreign
agencies, for the russian government. We could say that it wasn't immoral, but just a
problem of interest. But we could say that the fact that he betrayed friendly agencies, that
he betrayed the United States of America is not a problem. The point is that if you think
about interest, you would say that concepts like loyalty, for instance, have no meaning,
and this is quite counter-intuitive ; you would say that there's nothing else than the fight of
interests, and in fact, the spying issues, are very often linked to the problem of betrayal. In
what cases we can use betrayal, and in what case we have not to use it ? Not a prudential
question, but a moral question

Publicity, this view has been offered by Jones : we must give a kind of moral limit to
intelligence, and this moral limit became very famous. This view says that we must use a
test, the Jones test, when you use any mean in spying, could you defend the decision
before the public ? The moral limit must be publicity in a democracy, you can do
everything you can defend in public. This moral code is also a new misunderstanding.
Because there are cases of state secrets, and in those cases, you cannot defend your
decision before the public. You could say that you have to defend the decision before the
representatives, which means that you will create in the state an organ to control
intelligence services.
Rawls, at the time he was a rule utilitarian, it is moral if I think that I could defend it
in public, even if I don't actually do it.

Minimum trespass, modeled after the military concept of minimum force, the
operation should be conducted with the minimum trespass against the national and
individual rights. But it's nothing else that the principle of proportionality in just war theory,
we must always use the minimum level of force.

The justification of intelligence collection from Human Sources

Five principles

1. The defense of the security of a just political community is a morally worthy end

2. Intelligence is necessary to the protection of the just political community

3. The gathering from human sources of information that is otherwise unobtainable is in at

least some cases a necessary mean for acquiring insights into the intentions, capabilities,
and activities of actual or portential adversaries

4. The effective gathering of such information from human sources may require both the
use of deception and other actions that deviate from generally accepted moral norms

5. The protection of the security of a just political community then provides moral
justifications for the use of deception and for other actions that deviate from generally
accepted moral norms

3. Spying your allies not immoral

4. If you obtain information from moral sources, there's no problem at all, and probably half
of the intelligence in the world is made from open sources, and there's no moral problem at
all. And as we know, intelligence is not information, it is analysis of informations.
5. All the moral problem here is just a classic but difficult problem of political philosophy,
it's to give the definition of a just society. If you have a just society, then the problem will be
what kind of mean you're going to use to protect the said just society ? You can use war
only to help society to its defense. Does a society that's completely right have the right to
spy ? Rawls, ​The Law of Peoples,​ definition of decent society. A decent society is a
society with a hierarchy, and where basic rights are respected. You should then accept
that a decent society has a right to defend itself, even by a war of self-defense.

Electronic sources, if you use electronic intelligence to spy other states, it's less
problematic because you haven't to use blackmail, deception, betrayal and so on. Of
course, there's another problem, it's the problem of using an electronic device in order to
obtain information, and this is a problem for democracy, but if you use it to spy, it's not very
much problematic.
The problem is human sources, because in that case you will use blackmail or other
bad means.

Drawing the line : the moral boundaries of intelligence gathering

- Kantian criteria, "treating people as ends and not merely as means", too vague to
offer any meaningful practical guidance, especially in international relations. So even if it is
an excellent moral principle, you cannot use it directly, because of course, if you spy, you
will use people as means, it's impossible to use in another way, so maybe we could try to
find another solution.
Low level solution ?

- "Shared expectations"

- "Good faith"