The unconscionability doctrine in contract law enables a court to decline to enforce a contract whose terms are seriously one-sided, exploitative, or otherwise manifestly unfair. It is often criticized for being paternalist. The essay argues that the characterization of unconscionability doctrine as paternalist reflects common but misleading thought about paternalism and obscures more important issues about autonomy and social connection. The defense responds to another criticism: that unconscionability doctrine is an inappropriate, because economically inefficient, egalitarian tool. The final part discusses (...) more interesting but neglected questions about the scope of accommodation necessary to support fully meaningful autonomous activity. (shrink)

In this article I argue for a particular analysis of paternalism. I start by examining Dworkin's conditions for the paternalist act and make a case for alternative conditions. I argue that the paternalist actor acts irrespective of what she believes the wishes of the target of her action are and the paternalist actor acts because she has a positive epistemic standing that the act may or will improve the welfare of the target of her action. I also argue that it (...) is consistent with my analysis that there are paternalist acts that don't interfere with the autonomy of the object of the paternalist act. I describe some such acts and make the case that such acts, when they are paternalist acts, may be morally permissible and outline the factors that bear on their permissibility. Finally I locate my analysis in the literature by comparing it to a number of other accounts. (shrink)

The doctrine of double effect, together with other moral principles that appeal to the intentions of moral agents, has come under attack from many directions in recent years, as have a variety of rationales that have been given in favor of it. In this paper, our aim is to develop, defend, and provide a new theoretical rationale for a secular version of the doctrine. Following Quinn (1989), we distinguish between Harmful Direct Agency and Harmful Indirect Agency. We propose the following (...) version of the doctrine: that in cases in which harm must come to some in order to achieve a good (and is the least costly of possible harms necessary), the agent foresees the harm, and all other things are equal, a stronger case is needed to justify Harmful Direct Agency than to justify Harmful Indirect Agency. We distinguish between two Kantian rationales that might be given for the doctrine, a “dependent right” rationale, defended by Quinn, and an “independent right” rationale, which we defend. We argue that the doctrine and the “independent right” rationale for it are not vulnerable to counterexamples or counterproposals, and conclude by drawing implications for the larger debate over whether agents' intentions are in any way relevant to permissibility and obligation. (shrink)

According to the classical Doctrine of Double Effect, there is a morally significant difference between intending harm and merely foreseeing harm. Versions of DDE have been defended in a variety of creative ways, but there is one difficulty, the so-called “closeness problem”, that continues to bedevil all of them. The problem is that an agent's intention can always be identified in such a fine-grained way as to eliminate an intention to harm from almost any situation, including those that have been (...) taken to be paradigmatic instances in which DDE applies to intended harm. In this paper, we consider and reject a number of recent attempts to solve the closeness problem. We argue that the failure of these proposals strongly suggests that the closeness problem is intractable, and that the distinction between intending harm and merely foreseeing harm is not morally significant. Further, we argue that there may be a deeper reason why such attempts must fail: the rationale that makes the best fit with DDE, namely, an imperative not to aim at evil, is itself irredeemably flawed. While we believe that these observations should lead us to abandon further attempts to solve the closeness problem for DDE, we also conclude by showing how a related principle that is supported by a distinct rationale and avoids facing the closeness problem altogether nevertheless shares with DDE its most important features, including an intuitive explanation of a number of cases and a commitment to the relevance of intentions. (shrink)

In general, we think that when it comes to the good of another, we respect that person’s will by acting in accordance with what he wills because he wills it. I argue that this is not necessarily true. When it comes to the good of another person, it is possible to disrespect that person’s will while acting in accordance with what he wills because he wills it. Seeing how this is so, I argue, enables us to clarify the distinct roles (...) that the wills of competent and incompetent people should play in third-party deliberations about their welfare. (shrink)

The distinction between harm that is intended as a means or end, and harm that is merely a foreseen side-effect of one’s action, is widely cited as a significant factor in a variety of ethical contexts. Many use it, for example, to distinguish terrorist acts from certain acts of war that may have similar results as side-effects. Yet Bennett and others have argued that its application is so arbitrary that if it can be used to cast certain harmful actions in (...) a more favorable light, then it can equally be manipulated to do the same for any kind of harmful action. In response, some have tried to block such extensions of the intend/foresee distinction by rejecting its application in cases where the relation between the plainly intended means and the harm is “too close”. This move, however, has been attacked as vague and obscure, and Bennett has argued that all the plausible candidates for explicating the idea of excessive closeness ultimately fail. In this paper, I develop and defend an account of excessive closeness with the aim of rescuing the intend/foresee distinction from such charges of arbitrariness. The account is based on the distinction between merely causal and constitutive relations among states of affairs, and I show both how it escapes Bennett’s objections to other accounts and how it applies to a variety of cases. Finally, I also examine Quinn’s alternative move of shifting the focus of the intend/foresee distinction in an attempt to sidestep the issue of closeness, and argue that it is not ultimately successful. In fact, Quinn’s view has shortcomings that can be resolved only by returning to an appeal to some notion of closeness, underscoring the need for the sort of account I offer. (shrink)

THOMAS A. CAVANAUGH Oxford: Oxford University Press, 2006, 256 pp., ISBN 0 199 27219 0 Thomas Cavanaugh has written a fine book and the problem he is struggling with ought to be of great concern to...

Philosophers from Hart to Lewis, Johnston and Bennett have expressed various degrees of reservation concerning the doctrine of double effect. A common concern is that, with regard to many activities that double effect is traditionally thought to prohibit, what might at first look to be a directly intended bad effect is really, on closer examination, a directly intended neutral effect that is closely connected to a foreseen bad effect. This essay examines the extent to which the commonsense concept of intention (...) supports a reasonably consistent and coherent application of double effect. Two important conclusions are these: (1) a number of traditionally proscribed activities involve a kind of “targeting” of innocents that can be taken to exhibit a direct intention to harm them; (2) a direct intention to harm need not involve a desire to harm in any ordinary sense of the latter expression. (shrink)

The doctrine of double effect, together with other moral principles that appeal to the intentions of moral agents, has come under attack from many directions in recent years, as have a variety of rationales that have been given in favor of it. In this paper, our aim is to develop, defend, and provide a new theoretical rationale for a secular version of the doctrine. Following Quinn (1989), we distinguish between Harmful Direct Agency and Harmful Indirect Agency. We propose the following (...) version of the doctrine: that in cases in which harm must come to some in order to achieve a good (and is the least costly of possible harms necessary), the agent foresees the harm, and all other things are equal, a stronger case is needed to justify Harmful Direct Agency than to justify Harmful Indirect Agency. We distinguish between two Kantian rationales that might be given for the doctrine, a “dependent right” rationale, defended by Quinn, and an “independent right” rationale, which we defend. We argue that the doctrine and the “independent right” rationale for it are not vulnerable to counterexamples or counterproposals, and conclude by drawing implications for the larger debate over whether agents' intentions are in any way relevant to permissibility and obligation. (shrink)

T. A. Cavanaugh defends double-effect reasoning (DER), also known as the principle of double effect. DER plays a role in anti-consequentialist ethics (such as deontology), in hard cases in which one cannot realize a good without also causing a foreseen, but not intended, bad effect (for example, killing non-combatants when bombing a military target). This study is the first book-length account of the history and issues surrounding this controversial approach to hard cases. It will be indispensable in theoretical ethics, applied (...) ethics (especially medical and military), and moral theology. It will also interest legal and public policy scholars. (shrink)

Ethics Without Intention tackles the questions raised by difficult moral dilemmas by providing a critical analysis of double effect and its most common ethical and political applications. The book discusses the philosophical distinction between intended harm and foreseen but unintended harm. This distinction, which, according to the doctrine of double effect, makes a difference to the moral justification of actions, is widely applied to some of the most controversial ethical and political questions of our time: collateral damages in wars and (...) acts of terrorism; palliative care, euthanasia, abortion, and embryo research; self-defence, suicide, and self-sacrifice. It is also crucial to the now notorious theoretical cases of the trolley problem and the knobe effect. -/- Di Nucci approaches the doctrine of double effect from four key directions: its historical origins, which can be traced further back than the classic attribution to Aquinas; its theoretical coherence, which is the subject of a lively contemporary debate in philosophy; its moral intuitiveness, which has always been taken for granted but has recently begun to be questioned; and finally its relevance to the difficult moral and political decisions of our time. An engaging and comprehensive introduction to the doctrine of double effect. (shrink)

In this lecture I shall offer to make clear, deeply grounded, objective sense of a certain contrast: I call it the contrast between positive and negative instrumentality, and it shows up in ordinary speech in remarks about what happens because a person did do such and such, as against what happens because he did not. The line between positive and negative instrumentality lies fairly close to some others which are drawn by more ordinary bits of English. For instance, the difference (...) between positive and negative instrumentality in someone’s dying is cousin to the difference between killing a person and letting him die. The latter distinction has the advantage of being already encoded in plain. (shrink)

In this book Uwe Steinhoff describes and explains the basic tenets of just war theory and gives a precise, succinct and highly critical account of its present status and of the most important and controversial current debates surrounding it. Rejecting certain in effect medieval assumptions of traditional just war theory and advancing a liberal outlook, Steinhoff argues that every single individual is a legitimate authority and has under certain circumstances the right to declare war on others or the state. He (...) also argues that the just cause cannot be established independently of the other criteria of jus ad bellum (the justification of entering a war), except for right intention, which he interprets more leniently than the tradition does. Turning to jus in bello (which governs the conduct of a war) he criticizes the Doctrine of Double Effect and concludes that insofar as wars kill innocents, and be it as "collateral damage", they cannot be just but at best justified as the lesser evil. Steinhoff gives particular attention to the question why soldiers, allegedly, are legitimate targets and civilians not. Discussing four approaches to the explanation of the difference he argues that the four principles underlying them all need to be taken into account and outlines how their weighing can proceed if applied to concrete cases. The resulting approach does not square the distinction between legitimate and illegitimate targets with the distinction between soldiers and civilians, which has extremely important consequences for the conduct of war. Finally, Steinhoff analyses the concept of terrorism and argues that some forms of "terrorism" are actually not terrorism at all and that even terrorism proper can under certain circumstances be justified. (shrink)

Stable URL: http://links.jstor.org/sici?sici=0048-3915%28198923%2918%3A4%3C334%3AAIACTD%3E2.0.CO%3B2-P..

Nudging policies rely on behavioral science to improve people's decisions through small changes in the environments within which people make choices. This article first seeks to rebut a prominent objection to this approach: furnishing governments with the power to nudge leads to relations of alien control, that is, relations in which some people can impose their will on others—a concern which resonates with republican, Kantian, and Rousseauvian theories of freedom and relational theories of autonomy. I respond that alien control can (...) be avoided, if nudging is suitably transparent and democratically controlled. Moreover, such transparency and democratic control are institutionally feasible. Building on this response, I then provide a novel and surprising argument for more nudging: democratically controlled public policy nudging can often contain the power of private companies to nudge in uncontrolled and opaque ways. Therefore, reducing alien control often requires more rather than less nudging in public policy. (shrink)