Doing and Allowing

El autor recobra las fuentes originales del llamado Dilema del Tranvía pues considera que existe confusión sobre quién es el autor original. Sostiene que no es Phillipa Foot como suele citarse comúnmente, ni siquiera Judith Thomson, sino que sus raíces son más lejanas y se encuentran en dos juristas alemanes: Hans Welzel y, aún antes, Karl Engisch. Propone que la solución al dilema está dada desde el Derecho positivo y no en especulaciones consecuencialistas. ABSTRACT The author recovers the original sources (...) of the so-called Trolley Dilemma because he considers that there is confusion about who the original author is. He argues that it is not Phillipa Foot as it is commonly cited, not even Judith Thomson, but that its roots are more distant and are found in two German jurists: Hans Welzel and, even earlier, Karl Engisch. Proposes that the solution to the dilemma is given from the positive law and not in consequentialist speculations. (shrink)

Helen Frowe has recently objected to Michael Tooley’s famous Moral Symmetry Principle, which is meant to show that in themselves killing and letting die are morally equivalent. I argue that her objection is not compelling but a more compelling objection is available. Specifically, Tooley’s rebuttal of a proposed counter-example to his Moral Symmetry Principle has two problematic implications. First, it undercuts the very principle itself. If we reject the proposed counter-example, then any instance of the Moral Symmetry Principle will actually (...) demonstrate the moral in-equivalence of killing and letting die. Second, it commits us to the view, which Tooley wishes to avoid, that we are just as obligated to refrain from doing wrong as we are to prevent others from doing the same. I conclude with a brief discussion of a more general concern regarding Tooley’s basic strategy. My focus here is quite narrow. My claims, if plausible, only show that the Moral Symmetry Principle is unsound and thus cannot serve as a basis for the view that killing and letting die are morally equivalent. (shrink)

According to the Standard View, a doctor who withdraws life-sustaining treatment does not kill the patient but rather allows the patient to die—an important distinction, according to some. I argue that killing can be understood in either of two ways, and given the relevant understanding, the Standard View is insulated from typical criticisms. I conclude by noting several problems for the Standard View that remain to be fully addressed.

Many philosophers, psychologists, and medical practitioners believe that killing is no worse than letting die on the basis of James Rachels's Bare-Difference Argument. I show that his argument is unsound. In particular, a premise of the argument is that his examples are as similar as is consistent with one being a case of killing and the other being a case of letting die. However, the subject who lets die has both the ability to kill and the ability to let die (...) while the subject who kills lacks the ability to let die. Modifying the latter example so that the killer has both abilities yields a pair of cases with morally different acts. The hypothesis that killing is worse than letting die is the best explanation of this difference. (shrink)

In a recent article, Xiaofei Liu seeks to defend, from the standpoint of consequentialism, the Doctrine of Doing and Allowing: DDA. While there are various conceptions of DDA, Liu understands it as the view that it is more difficult to justify doing harm than allowing harm. Liu argues that a typical harm doing involves the production of one more evil and one less good than a typical harm allowing. Thus, prima facie, it takes a greater amount of good to justify (...) doing a certain harm than it does to justify allowing that same harm. In this reply, I argue that Liu fails to show, from within a consequentialist framework, that there is an asymmetry between the evils produced by doing and allowing harm. I conclude with some brief remarks on what may establish such an asymmetry. (shrink)

It is a commonplace that there are limits to the ways we can permissibly treat people, even in the service of good ends. For example, we may not steal someone’s wallet, even if we plan to donate the contents to famine relief, or break a promise to help a colleague move, even if we encounter someone else on the way whose need is somewhat more urgent. In other words, we should observe certain constraints against mistreating people, where a constraint is (...) a moral principle that we should not violate, even when that is the only way to prevent further, similar violations or other, greater evils. But, despite its intuitive appeal, the view that there are constraints has drawn considerable criticism, and attempts to provide a rationale for constraints have been, at best, substantially incomplete. In this paper, I develop a novel rationale for constraints that fills important gaps left by views in the literature. The account helps make sense of constraints by identifying a morally significant relation that we bear to people when, and only when, we observe certain constraints against mistreating them. Put roughly, observing these constraints is a condition for being worthy of a form of trust that I call civic trust, and being worthy of such trust is an essential part of living with others in the sort of harmony that characterizes morally permissible interaction. By focusing, in ways other accounts do not, on the role that observing constraints plays in our psychological lives, this approach not only makes the structure of constraints more intelligible, but also helps us better appreciate the force of our reason to observe constraints, and better understand the kind of moral community to which we should aspire. (shrink)

This book explores the nature of moral responsibilities of affluent individuals in the developed world, addressing global poverty and arguments that philosophers have offered for having these responsibilities. The first type of argument grounds responsibilities in the ability to avert serious suffering by taking on some cost. The second argument seeks to ground responsibilities in the fact that the affluent are contributing to such poverty. The authors criticise many of the claims advanced by those who seek to ground stringent responsibilities (...) to the poor by invoking these two types of arguments. It does not follow from this that the affluent are meeting responsibilities to the poor. The book argues that while people are not ordinarily required to make large sacrifices in assisting others in severe need, they are required to incur moderate costs to do so. If the affluent fail consistently to meet standards, this fact can substantially increase the costs they are required to bear in order to address it. (shrink)

It is widely believed to be permissible for a physician to discontinue any treatment upon the request of a competent patient. Many also believe it is never permissible for a physician to intentionally kill a patient. I argue that the prospect of deactivating a patient’s artificial heart presents us with a dilemma: either the first belief just mentioned is false or the second one is. Whichever horn of the dilemma we choose has significant implications for contemporary medical ethics.

Past work has demonstrated that people’s moral judgments can influence their judgments in a number of domains that might seem to involve straightforward matters of fact, including judgments about freedom, causation, the doing/allowing distinction, and intentional action. The present studies explore whether the effect of morality in these four domains can be explained by changes in the relevance of alternative possibilities. More precisely, we propose that moral judgment influences the degree to which people regard certain alternative possibilities as relevant, which (...) in turn impacts intuitions about freedom, causation, doing/allowing, and intentional action. Employing the stimuli used in previous research, Studies 1a, 2a, 3a, and 4a show that the relevance of alternatives is influenced by moral judgments and mediates the impact of morality on non-moral judgments. Studies 1b, 2b, 3b, and 4b then provide direct empirical evidence for the link between the relevance of alternatives and judgments in these four domains by manipulating (rather than measuring) the relevance of alternative possibilities. Lastly, Study 5 demonstrates that the critical mechanism is not whether alternative possibilities are considered, but whether they are regarded as relevant. These studies support a unified framework for understanding the impact of morality across these very different kinds of judgments. (shrink)

For over a century now, American scholars (among others) have been debating the merits of “bad Samaritan” laws — laws punishing people for failing to attempt easy and safe rescues. Unfortunately, the opponents of bad Samaritan laws have mostly prevailed. In the United States, the “no-duty-to-rescue” rule dominates. Only four states have passed bad Samaritan laws, and these laws impose only the most minimal punishment — either sub-$500 fines or short-term imprisonment. -/- This Article argues that every state should criminalize (...) bad Samaritanism. There are three main reasons. First, criminalization is required by the supreme value that we place on protecting human life, a value that motivates laws against both homicide and manslaughter. Second, criminalization is recommended by the “proportionality principle” — i.e., the principle that a law’s level of punishment should be directly proportional to the moral severity of the offense. Third, criminalization would yield a number of significant benefits, including helping to minimize needless deaths and injuries and providing society with an institutional outlet for its outrage against bad Samaritans. -/- Still, many objections have been leveled against bad Samaritan laws. This Article will argue that while some of these objections — for example, the objections involving foundational criminal law principles such as the actus-reus requirement, the harm principle, and causation — are all easily refuted, five other objections are not. These five objections involve pragmatic considerations such as the difficulties with obtaining evidence against bad Samaritans and psychological considerations such as people’s understandable reasons for not wanting to “get involved.” This Article will then put these five objections into reflective equilibrium with the moral arguments for bad Samaritan laws and conclude that while bad Samaritanism should indeed be criminalized, the punishment that convicted bad Samaritans receive should be mild — certainly milder than the level of punishment recommended by the “proportionality principle.” The corollary of this conclusion is that the criminal law should sometimes abandon the proportionality principle. (shrink)

This Note offers a normative critique of cost-benefit analysis, one informed by deontological moral theory, in the context of the debate over whether tort litigation or a non-tort approach is the appropriate response to mass harm. The first Part argues that the difference between lay and expert intuitions about risk and harm often reflects a difference in normative judgments about the existing facts, rather than a difference in belief about what facts exist, which makes the lay intuitions more defensible. The (...) second Part considers how tort has dealt with this divergence between lay and expert perspectives. It also evaluates how tort's approach has differed from that of public law approaches to accident law, such as legislative compensation and risk regulation by administrative agencies. Ultimately, tort's ability to recognize the value of lay intuitions supports retaining the tort perspective as part of our societal arsenal of responses to risk and harm. This ability can also support a pro-tort perspective in two practical debates in the arena of tort law: that over preemption of tort law by administrative agency judgments, and that over access to tort recovery as part of a no-fault system. (shrink)

It is generally thought that ought implies can. If this maxim is correct, then my inability to do otherwise entails that I cannot be blamed for failing to do otherwise. In this article, however, I use Harry Frankfurt’s famous argument against the "Principle of Alternative Possibilities" (PAP) to show that the maxim is actually false, that I can be blamed for failing to do otherwise even in situations where I could not have done otherwise. In these situations, I do not (...) act otherwise not because I cannot act otherwise but because I choose not to act otherwise.None. (shrink)