Current Controversies In Bioethics [Hardcover ed.] 1138855820, 9781138855823

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Current Controversies in Bioethics Historically, bioethics has been associated with issues in research ethics and clinical ethics as a result of research scandals such as the Tuskegee Syphilis Study and public debates about the definition of death, medical paternalism, health care rationing, and abortion. As biomedical technologies have advanced, challenging new questions have arisen for bioethics and new subdisciplines, such as neuroethics and public health ethics, have entered the scene. This volume features ten original essays on five cutting-edge controversies in bioethics written by leading philosophers. I. Research Ethics: How Should We Justify Ancillary-Care Duties? Separate contributions from Henry S. Richardson, and S. Matthew Liao & Collin O’Neil II. Clinical Ethics: Are Psychopaths Morally Accountable? Separate contributions from Dana Kay Nelkin and Agnieszka Jaworska III. Reproductive Ethics: Is There a Solution to the Non-Identity Problem? Separate contributions from Melinda A. Roberts & David T. Wasserman, and Saul Smilansky IV. Neuroethics: What Is Addiction and Does It Excuse? Separate contributions from Timothy Schroeder & Nomy Arpaly, and Neil Levy V. Public Health Ethics: Is Luck Egalitarianism Implausibly Harsh? Separate contributions from Zofia Stemplowska and Nir Eyal S. Matthew Liao and Collin O’Neil’s concise introduction, the annotated bibliographies and study questions for each controversy, and the supplemental guide to additional current controversies in bioethics give the reader a broad grasp of the different kinds of challenges today in bioethics. S. Matthew Liao is Arthur Zitrin Professor of Bioethics, Director of the Center for Bioethics, and Affiliated Professor of Philosophy, New York University. His titles include, The Right to be Loved (authored 2015), Moral Brains: The Neuroscience of Morality (edited 2016), and Philosophical Foundations of Human Rights (co-edited 2015). He has been featured in the New York Times and other media outlets and is the Editor in Chief for the Journal of Moral Philosophy. Collin O’Neil is Assistant Professor of Philosophy at Lehman College, City University of New York. His recent publications have appeared in Philosophy & Public Affairs, American Journal of Bioethics, and Journal of Law, Medicine, and Ethics.

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Current Controversies in Philosophy In venerable Socratic fashion, philosophy proceeds best through reasoned conversation. Current Controversies in Philosophy provides short, accessible volumes that cast a spotlight on ongoing central philosophical conversations. In each book, pairs of experts debate four or five key issues of contemporary concern, setting the stage for students, teachers and researchers to join the discussion. Short chapter descriptions precede each chapter, and an annotated bibliography and suggestions for further reading conclude each controversy. In addition, each volume includes both a general introduction and a supplemental guide to further controversies. Combining timely debates with useful pedagogical aids allows the volumes to serve as clear and detailed snapshots, for all levels of readers, of some of the most exciting work happening in philosophy today. Series Editor John Turri University of Waterloo Volumes in the Series Current Controversies in Philosophy of Perception Edited by Bence Nanay Current Controversies in Philosophy of Film Edited by Katherine Thomson-Jones Current Controversies in Political Philosophy Edited by Thom Brooks Current Controversies in Virtue Theory Edited by Mark Alfano Current Controversies in Epistemology Edited by Ram Neta Current Controversies in Experimental Philosophy Edited by Edouard Machery and Elizabeth O’Neill Current Controversies in Philosophy of Mind Edited by Uriah Kriegel Praise for the Series “This series constitutes a wonderful addition to the literature. The volumes reflect the essentially dialectical nature of philosophy, and are edited by leading figures in the field. They will be an invaluable resource for students and faculty alike.” Duncan Pritchard, University of Edinburgh

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Current Controversies in Bioethics

Edited by S. Matthew Liao and Collin O’Neil

First published 2017 by Routledge 711 Third Avenue, New York, NY 10017 and by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN

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Routledge is an imprint of the Taylor & Francis Group, an informa business © 2017 Taylor & Francis The right of the editors to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging in Publication Data Names: Liao, S. Matthew, editor. | O’Neil, Collin, editor. Title: Current controversies in bioethics / edited by S. Matthew Liao and Collin O’Neil. Description: New York, NY : Routledge, 2017. | Includes bibliographical references and index. Identifiers: LCCN 2016021068 | ISBN 9781138855823 (hbk) | ISBN 9781315437538 (ebk) Subjects: LCSH: Medical ethics. Classification: LCC R724 .C87 2017 | DDC 174.2—dc23 LC record available at https://lccn.loc.gov/2016021068 ISBN: 978-1-138-85582-3 (hbk) ISBN: 978-1-315-43753-8 (ebk) Typeset in Minion by Apex CoVantage, LLC

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For Bill Ruddick

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Contents

Acknowledgments

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Contributors

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Bioethics: Current Controversies

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S. Matthew Liao and Collin O’Neil

Part I Research Ethics: How Should We Justify Ancillary-Care Duties? 1 Locating Medical Researchers’ Ancillary-Care Obligations within the Division of Moral Labor

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Henry S. Richardson

2 The Grounds of Ancillary Care Duties

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Suggested Further Readings (Part I) 43 Study Questions (Part I) 44 Part II Clinical Ethics: Are Psychopaths Morally Accountable?

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3 Fine Cuts of Moral Agency: Dissociable Deficits in Psychopathy and Autism

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Dana Kay Nelkin

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4 Holding Psychopaths Responsible and the Guise of the Good

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Agnieszka Jaworska

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Suggested Further Readings (Part II) 77 Study Questions (Part II) 78 Part III Reproductive Ethics: Is There a Solution to the Nonidentity Problem? 5 Dividing and Conquering the Nonidentity Problem

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Melinda A. Roberts and David T. Wasserman

6 The Nonidentity Problem: United and Unconquered

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Saul Smilansky

Suggested Further Readings (Part III) 112 Study Questions (Part III) 113 Part IV Neuroethics: What Is Addiction and Does It Excuse? 7 Addiction, Habits, and Blame

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Timothy Schroeder and Nomy Arpaly

8 How Addicts Lose Control

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Neil Levy

Suggested Further Readings (Part IV) 145 Study Questions (Part IV) 146 Part V Public Health Ethics: Is Luck Egalitarianism Implausibly Harsh? 9 Rarely Harsh and Always Fair: Luck Egalitarianism and Unhealthy Choices Zofia Stemplowska

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10 Luck Egalitarianism, Harshness, and the Rule of Rescue

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Nir Eyal

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Suggested Further Readings (Part V) 172 Study Questions (Part V) 172 Supplemental Guide to Further Controversies

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Index

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Acknowledgments

We would like to thank John Turri, the Series Editor for the Current Controversies in Philosophy, for encouraging us to produce this volume. To give the contributors an opportunity to discuss their essays with each other, we hosted a two-day workshop at New York University in Spring 2015. We would like to thank the NYU Center for Bioethics for helping us to finance the workshop, as well as Amanda Anjum and Jennifer Keyes, the administrative personnel for Center for Bioethics, for their assistance with the organization of the workshop. Thanks are also due to Andrew Beck, the Senior Philosophy Editor at Routledge, for his support and care in seeing this book through to publication. Special thanks are owed to our contributors for their excellent work and their patience. Lastly, we would like to thank Bill Ruddick, the founding director of the Center for Bioethics, for his support of bioethics as a discipline. This book is dedicated to him. S. Matthew Liao Collin O’Neil

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Contributors

Nomy Arpaly (Professor of Philosophy, Brown University) Nir Eyal (Associate Professor of Global Health, Harvard T.H. Chan School of Public Health) Agnieszka Jaworska (Associate Professor of Philosophy, University of California, Riverside) Neil Levy (Professor, Macquarie University; Research Fellow, Oxford University) S. Matthew Liao (Arthur Zitrin Professor of Bioethics, Director of the Center for Bioethics, and Affiliated Professor of Philosophy, New York University) Dana Kay Nelkin (Professor of Philosophy, University of California, San Diego) Collin O’Neil (Assistant Professor of Philosophy, Lehman College, City University of New York) Henry S. Richardson (Professor of Philosophy, Georgetown University) Melinda A. Roberts (Professor of Philosophy, College of New Jersey) Timothy Schroeder (Professor of Philosophy, Rice University) Saul Smilansky (Professor of Philosophy, University of Haifa) Zofia Stemplowska (Associate Professor of Political Theory, Oxford University) David T. Wasserman (Visiting Scholar, Department of Bioethics, National Institutes of Health)

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Bioethics Current Controversies S. MATTHEW LIAO AND COLLIN O’NEIL

Bioethics is the study of ethical issues arising out of advances in the life sciences and medicine. Historically, bioethics has been associated with issues in research ethics and clinical ethics as a result of research scandals like the Tuskegee Syphilis Study and public debates about the definition of death,1 medical paternalism,2 health care rationing,3 and abortion.4 Although some of the early issues such as whether competent adults have the right to refuse treatment against physician advice no longer engender much controversy, some other issues such as abortion continue to be actively debated. Moreover, as biomedical technologies have advanced, challenging new questions have arisen for clinical, research, and reproductive ethics. New subdisciplines of bioethics such as neuroethics and public health ethics have also entered the scene to address the implications of new findings in neuroscience, epidemiology, and social science. To tackle the many challenges in bioethics, those who work in bioethics have fruitfully drawn theoretical resources from other subfields of philosophy, including metaphysics, normative ethics (both general theories of right and wrong and more specific accounts of the nature of wrongs such as discrimination, exploitation, coercion, manipulation, and paternalism), political philosophy, action theory, moral psychology, and philosophy of mind. The aim of this volume is to feature five currently pressing, controversial topics in five areas of bioethics written by leading and up-and-coming philosophers in these relevant areas, which should give the reader a broad grasp of the different

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kinds of challenges in bioethics and how philosophy can contribute to the field of bioethics. The topics are: I. II. III. IV. V.

Research Ethics: How Should We Justify Ancillary-Care Duties? Clinical Ethics: Are Psychopaths Morally Accountable? Reproductive Ethics: Is There a Solution to the Nonidentity Problem? Neuroethics: What Is Addiction and Does It Excuse? Public Health Ethics: Is Luck Egalitarianism Implausibly Harsh?

For each topic, we have included two pairs of original essays in order to offer a variety of new perspectives and the most up-to-date discussions on each topic. In what follows, we will provide some background on each topic and offer an overview of the essays in this volume.

1. Research Ethics: How Should We Justify Ancillary-Care Duties? As noted at the outset, the mistreatment of human subjects in experiments such as Tuskegee played a significant role in the development of bioethics as a discipline. Questions about researchers’ duties toward the human subjects of experimentation continue to be central in this area of bioethics. Duties toward animal subjects are also increasingly part of the conversation. Current topical issues in research ethics include whether consent must be autonomous to be valid; whether and how it can be ethical to enroll children who are too young to give consent for themselves in studies that are expected to benefit future children but that pose risks without any compensating expected benefits to the children in the study; and to what extent researchers are responsible for anticipating and taking precautions against the misuse of their results for nefarious purposes such as bioterrorism. In this volume, we consider an issue that often confronts researchers conducting clinical trials in resource-poor settings. In particular, these researchers can expect to encounter a variety of unmet medical needs among their research participants. For instance, if researchers learn that some of their research participants suffer from intestinal worms, even though this is unrelated to the condition under study, are they obligated to provide deworming medications? In a pioneering article, Leah Belsky and Henry Richardson defined “ancillarycare obligations” as obligations to provide medical care that research participants need but that is not already morally required to conduct the study safely and soundly, and they argued that researchers have special responsibilities to provide ancillary care.5 In his chapter for this volume, Richardson further defends what he calls the “partial-entrustment” model of special ancillarycare obligations. According to Richardson, researchers acquire special obligations to provide care for needs that come to light while carrying out study procedures. These special obligations are an instance of a more general moral

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phenomenon Richardson labels “moral entanglements,” whereby we acquire special obligations to look after needs that surface when we have accepted a privacy waiver from someone.6 To support the partial-entrustment model further, Richardson develops the idea of a division of the moral labor of beneficence, whereby the moral task of addressing needs is contingently divided among various institutions and practices. Richardson argues that the current division of moral labor is nonideal because, among other things, access to clinical medicine is too limited, and as a result many individuals’ medical needs fall into the cracks of this division. Insofar as the needs that fall within the scope of researchers’ special ancillary-care obligations also cover gaps in the overall system of beneficence, Richardson claims there is reason to assign to the practice of medical research responsibility for meeting such needs. S. Matthew Liao and Collin O’Neil agree with Richardson that researchers have duties to provide ancillary care that go beyond what would already be required by the duty of easy rescue, but they offer a novel human rights–based account of the grounding and limits of ancillary-care obligations. According to this human rights approach, everyone has a right to the fundamental conditions for pursuing a good life qua human being. Not every need that researchers encounter among their participants jeopardizes these fundamental conditions. Some needs jeopardize only an individual’s ability to lead a good life qua individual, in which case the needs fall outside the scope of his or her human rights. But when researchers do encounter needs among their participants that jeopardize the fundamental conditions, they may be required to sacrifice substantially more to meet these needs than the duty of easy rescue would require. One difference between Liao and O’Neil’s approach and Richardson’s approach is that Richardson’s partial-entrustment model offers a special ground of ancillary-care duties, which implies that someone similarly positioned to help a participant but who had not engaged in the relevant transaction would not have the same ancillary-care duty. By contrast, on Liao and O’Neil’s human rights– based account, anyone similarly situated would have the same duty to provide ancillary care. Another difference between the two approaches is that Richardson has offered examples suggesting that the partial-entrustment account is needed to explain the existence of ancillary-care duties that go beyond what can be accounted for on general grounds. In their chapter, Liao and O’Neil argue that Richardson’s examples do not in fact show that the partial-entrustment account is needed to explain the existence of such ancillary-care duties.

2. Clinical Ethics: Are Psychopaths Morally Accountable? Patients come into contact with the health care system at especially vulnerable moments in their lives. One of the aims of clinical ethics is to offer moral guidance to patients, their families, and health care professionals who must make

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difficult and consequential choices in this setting. Current issues in clinical ethics include whether physicians are permitted to prescribe placebos to their patients, usually for pain-related conditions, without the patient’s informed consent; whether it is morally permissible for health care professionals to refuse, on grounds of conscience, to provide certain legal services, like abortion and emergency contraception; and whether family members have a duty to share genetic information about certain genetic predispositions with other family members.7 Moral guidance in clinical settings may depend not only on accounts of our general rights and responsibilities with respect to one another but also on accounts of the special rights and responsibilities attached to the role of health care professionals. One factor such accounts must be sensitive to is the level of agency of the patients. For instance, advance directives allow a person to state, when competent, their wishes concerning their medical care should they become incompetent. The moral authority of earlier competently expressed wishes to refuse life-extending medical treatment should one become incapacitated is relatively uncontroversial when the patient is in an irreversible persistent vegetative state or when the patient, though still conscious, is clearly suffering and wishes to die. But what if the patient who has become incapacitated is enjoying herself and clearly wishes to live, having lost touch entirely with the convictions that motivated her earlier competent wish to be allowed to die should she enter the very state she is now in?8 What would respect for autonomy demand? What choice would be in her best interests, considering her life as a whole? Recently there has also been discussion regarding both the intriguing similarities and the profound differences between members of two different groups diagnosed with conditions that seem to implicate deficits in capacities for so-called moral emotions, namely, those with psychopathy and those with autism spectrum disorder (ASD). Although psychopaths and ASD subjects are believed to share a key deficit in empathy, there is evidence that psychopaths lack moral understanding and ASD subjects possess it. According to one leading philosophical theory of what it takes for someone to be morally accountable, that is, to be an appropriate target of praise or blame, one must be able to act on moral reasons, which seems to require moral understanding. On this theory of accountability, a puzzle emerges. How can it be that psychopaths are not accountable but ASD subjects are, if a similar deficit in moral emotions is at the heart of both conditions? In this volume, Dana Nelkin presents a novel explanation of this difference in accountability that appeals to a deficit in the very general ability to take up a normative perspective. Psychopaths seem to suffer from this deficit but not ASD subjects. Since anyone who lacks this general ability to judge actions to be correct or good will thereby lack the more specific ability to act on moral reasons, such a deficit can explain why psychopaths are not accountable. Nelkin

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goes on to suggest that this deficit may stem from impairment in stimulus– reinforcement association found in psychopaths. This developmental explanation does not appear to involve a deficit in empathy, so it holds the promise to explain why psychopaths and ASD subjects differ in accountability, even though both groups suffer from deficits in empathy. Agnieszka Jaworska, too, is interested in the question of whether psychopaths are morally accountable for their actions. Jaworska distinguishes two prominent theories of accountability: one that requires the capacity to act on moral reasons and an alternative that requires only the capacity to act on reasons. Since it is uncontroversial that psychopaths can act on reasons, in the sense of being guided by considerations favoring an action, it may appear that the two theories will diverge on the accountability of psychopaths. Jaworska notes, however, that psychology has not investigated whether psychopaths can act on reasons in a richer sense that involves evaluating those considerations as something on which it is correct or good to act. Jaworska argues that the alternative theory is best interpreted as requiring the ability to act on reasons in this richer sense. Thus, if psychological investigation finds that psychopaths lack this ability (and there is already some indication they do), the two leading theories of accountability will converge on the accountability of psychopaths.

3. Reproductive Ethics: Is There a Solution to the Nonidentity Problem? Advances in reproductive technologies present couples with increased opportunities for reproductive control and raise new questions about whether and how to exercise this control. Do we have duties to seek genetic testing of embryos or fetuses as a precaution against having children who will have untreatable disabilities or diseases? Might we have a duty not to create a perfectly healthy child if we could instead create a child with even better prospects for happiness? Is it permissible to use preimplantation genetic diagnoses (PGD) to select the sex of embryos or choose traits like height or intelligence on nonmedical grounds? A resolution of an especially vexing problem known as the “nonidentity problem” appears to be crucial in addressing these and other related issues in reproductive ethics.9 To illustrate, suppose that a pregnant woman discovers that there is a 50% chance that her fetus has Down syndrome, a burdensome and life-shortening condition that is nevertheless consistent with a life well worth living. Imagine that there is a safe and convenient drug that would cure the condition if the fetus has it but only if it is taken for a few days during the pregnancy. Were the pregnant woman to decline to take the drug and as a result bear a child with Down syndrome, many would consider the decision not to take the drug to be wrong.

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Suppose next that a couple learns that half of the embryos they obtained through IVF have the abnormality that leads to Down syndrome. Rather than screen against this disorder, they ask the doctor randomly to select an embryo for implantation, and as a result, have a child born with Down syndrome. Again, many people would be inclined to judge the decision not to screen as wrong and, at least initially, as wrong for the same reason as the woman’s decision not to take the drug. However, there appears to be a crucial difference between these cases, which gives rise to the nonidentity problem. The decision not to take the drug during pregnancy makes the child with Down syndrome worse off, since if the woman had taken the drug, that very child would have enjoyed a better life. But the couple’s decision not to screen does not make the child with Down syndrome worse off. Had the couple screened, they could have had a child without Down syndrome, but this would not have been the same child they actually had. The child they actually had owes his or her existence to their decision not to screen, and this child’s existence, though inevitably burdened, is still well worth living. The puzzle, then, is how could the decision not to screen still be wrong, when unlike the decision not to take the drug, it makes no one worse off? This puzzle is thought to arise with respect to certain kinds of policy decisions as well. Policy makers may be tempted to adopt a policy of depleting natural resources, which would provide short-term benefits to current and near future generations but greatly reduce the standard of living for distant future generations. If the bad effects of the policy of depletion will be felt only by some distant future generation, then it may seem that, as with the choice not to screen, no one will be made worse off by the decision to deplete, since it is unlikely that anyone who exists under depletion would have existed had a policy of conservation been chosen instead. Yet the choice of depletion rather than conservation seems wrong. The two chapters in this section adopt very different approaches to the nonidentity problem. Many philosophers see the choice not to screen and the choice to deplete as raising the same issue and take on the philosophical task to explain how both of these choices can be wrong even though neither makes anyone worse off. Melinda Roberts and David Wasserman argue that this view is mistaken. Although they see the choice to deplete as wrong, they argue that depletion really does make people in the distant future generation worse off. According to Roberts and Wasserman, no one in that future generation truly owes his or her existence to depletion. Suppose Harry comes to exist. Harry could have existed had conservation been chosen instead; it was just very unlikely that Harry would exist under conservation. But at the time of the choice between depletion and conservation, it was just as unlikely that Harry would exist under depletion. Since the probabilities of Harry’s existing in the future are similar at the time of the choice between depletion and conservation, the expected value of depletion is lower than that of conservation

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for Harry. Roberts and Wasserman argue that, on this measure, the choice of depletion makes Harry worse off. By contrast, Roberts and Wasserman argue that the choice not to screen really is a choice that has no victim. For Roberts and Wasserman, the child with Down syndrome, unlike Harry, really does owe his or her worthwhile existence to the choice that at least initially strikes us as wrong. Interestingly, Roberts and Wasserman go on to argue that since the couple does the best they can for the child burdened with Down syndrome (and harbors no disrespectful attitudes toward the child), the decision not to screen is not wrong at all. Against Roberts and Wasserman, Saul Smilansky attempts to vindicate the usual view that the choice not to screen and the choice to deplete raise the very same problem and call for the same kind of solution. Although the decision not to screen does not make the child worse off, Smilansky regards the intuition of wrongness here as a powerful one, and he produces an original and varied set of considerations in support of that intuition. Concerning the choice of depletion, Smilansky believes that it is like the choice not to screen. Both of these choices are wrongs that make no one worse off. He concedes that the odds of Harry’s coming into existence were no greater under depletion than under conservation but denies that this shows that Harry was harmed by depletion. The appropriate test for harm, he believes, is to ask whether it would be prudent for Harry to request a reroll of the dice that led to his worthwhile though burdened existence, in the hope that he would still, against the odds, come into existence under the better conditions of conservation. Since this would be a bad gamble for Harry, given the miniscule chances of his coming into existence under conservation, Smilansky concludes that Harry has not been made worse off by the choice of depletion.

4. Neuroethics: What Is Addiction and Does It Excuse? Neuroethics is a new subfield of bioethics that examines the moral implications of developments in neuroscience. For example, the development and use of novel drugs and devices that are not just for treating neurological or psychiatric disorders but also for enhancing mood or cognitive functioning or for erasing accurate but unpleasant memories raise questions such as whether these technologies are safe, whether using these technologies is likely to harm others, and whether these technologies might exacerbate existing inequalities.10 At the same time, law enforcement agencies are actively looking into neuroscientific technologies that can provide more effective methods of lie detection and mind reading, raising concerns of autonomy and privacy. Moreover, neuroscience also promises insight into various psychiatric disorders. Learning more about the nature of these disorders and the kind of influence they have on belief formation and decision making may lead to changes in our practices of assigning moral responsibility for decisions made under their influence.

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The two chapters in this section investigate the phenomenon of addiction. The behavior of addicts is puzzling. Their behavior does not seem to be the product of merely unusual preferences, since they pay such high costs for their habits and often struggle against them. Yet they do not appear to be subject to irresistible compulsions either. So what is it exactly that distinguishes addictive behavior from nonaddictive behavior? And does this difference, whatever it turns out to be, mean that addicts are less blameworthy for the bad choices they make or even excused from responsibility entirely? Progress on these important questions calls for both a theory of addiction and a theory of moral responsibility, two areas of controversy within bioethics. The authors in this section all accept the current scientific picture of addiction as stemming from a malfunctioning dopamine system and reject the popular conception of addictive behavior as driven by withdrawal symptoms. But they differ on the significance of this malfunctioning and as a result develop very different theories of addiction. Moreover, they also differ on the degree to which addiction mitigates blame and why it mitigates blame, in part because of their different theories of addiction but also because they endorse intriguingly different theories of moral responsibility. Timothy Schroeder and Nomy Arpaly interpret current science on addiction as suggesting that addictive drugs hijack the dopamine system and send signals to the brain that the drug was better than expected even when the actual reward was no greater than before. As a result, the brain’s reward system comes to predict stronger rewards from the drug than it should. According to Schroeder and Arpaly, these changes in the expectations of reward do not change or strengthen an addict’s desires for the drug, but they can have an influence on motivation comparable to the influence of stronger desires. When it comes to the question of blame, Schroeder and Arpaly carve out a middle path: addicts often have a partial excuse for their behavior. People are to blame, on their account, for acting out of malice or reckless indifference toward others. Addiction does not give an addict who steals from a friend a more powerful desire for the drug or less concern for the friend. But the changes in expectations and habits connected with addiction do make it harder for the addict to act in a way that reflects the addict’s overall desires. Hence an addict who steals from a friend only because of addiction may behave as if she values the drug more than the friend, but she is not as reckless as someone whose theft actually reflected objectionable priorities. For Schroeder and Arpaly, this gives addicts a partial excuse for their behavior. Whereas Schroeder and Arpaly see the dopamine signals as influencing an addict’s behavior by way of changes to the expectations of rewards and habits, Neil Levy sees the dopamine signals as a mechanism for judgments shifts. According to Levy, an addict who is abstaining from consuming drugs has judged that he or she ought not seek out and use drugs and has resolved not to do so. But when an abstinent addict encounters cues of drug availability, the

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system triggers dopamine responses. These error responses lead the addict to deceive herself into believing that an escape clause in the resolution has been triggered and to judge that, on this occasion at least, using drugs would be a good idea. If this is what is happening, it may seem that addicts are fully responsible for their drug seeking and consumption. At each stretch of time—before the addict was addicted, after the addict became abstinent, and when the addict relapsed—the individual is judging that they ought to act as they do. The judgments change, of course, but it is hard to see how a mere change of mind would excuse. However, Levy argues that the judgment-shift in response to cues is no mere change of mind but represents a loss of control over one’s judgments. Existing theories of moral responsibility do not register the significance of impairment in one’s capacity for diachronic agency—the ability to extend one’s will over time. Levy argues though that this capacity should be seen as necessary for moral responsibility, since its possession is just as essential if not more so for autonomy as other widely accepted historical conditions on moral responsibility. For Levy, although the immoral actions that an addict takes to procure drugs, such as stealing from a friend, reflect the addict’s judgments at the time, insofar as the judgment shift reflects a loss of control, the addict is fully or largely excused.

5. Public Health Ethics: Is Luck Egalitarianism Implausibly Harsh? Bioethics is concerned not only with choices made by patients, families, and physicians that affect the health of only a small number of people at a time but also with policy decisions that affect the distribution of health and health care across populations. This subfield of bioethics is sometimes called public health ethics. Some ethicists in public health seek to guide and evaluate health policy decisions by adapting general theories of distributive justice to the spheres of health and health care. Egalitarian theories of distributive justice, for example, tend to agree that justice requires compensation for disabilities and diseases that stem from brute bad luck. However, many modern day health problems are traceable in part to unhealthy behaviors, such as poor diet, lack of exercise, smoking, and substance use. Does justice require providing free treatment to individuals whose health problems result from their own imprudent choices? According to luck egalitarian theories of distributive justice, whether justice requires compensation for a disadvantage depends on whether the victim is responsible for that disadvantage. There are difficulties disentangling the contributions of luck and choice. But for those who are genuinely responsible for their lung cancer or auto accident injuries, luck egalitarianism is usually

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taken to imply that justice does not require the provision of treatment for their health problems. Critics have taken issue with this implication of luck egalitarianism, charging luck egalitarianism with being implausibly harsh.11 This influential “harshness objection” has inspired the development of alternative theories of justice that dispense with responsibility-sensitivity. The two chapters in this section defend luck egalitarianism against its critics, in different through complementary ways. Zofia Stemplowska argues that luck egalitarianism has been misunderstood by its critics. Critics have assumed that, since luck egalitarianism is responsibility-sensitive, it immediately follows that health problems resulting from imprudent choices are beyond the scope of justice. But this is too quick. Stemplowska explains that luck egalitarianism, sensibly understood, incorporates not only responsibility-sensitivity but also an “opportunity principle” that specifies which if any choices we ought to be able to make without having to absorb the costs of those choices ourselves. Whether luck egalitarianism has the harsh implications its opponents ascribe to it depends on how this opportunity principle is filled out. Stemplowska considers opportunity principles at both extremes—one requiring that all choices be accommodated, the other that none be accommodated—and rejects both in favor of a moderate “interest-based” principle that calls for accommodation when and only when the costs of acting to avoid the disadvantage are greater than the costs of compensating for it. According to Stemplowska, a version of luck egalitarianism that incorporates this interest-based principle will avoid some of the implications its critics regard as harsh, though perhaps not all. Yet when it does imply that an individual’s health problem is beyond the scope of justice, this will not be merely because the individual could have avoided it but also because it would have been easy for the individual to avoid it. When the health problem is regarded as irrelevant to justice for this reason, the implication may not seem so harsh. Unlike Stemplowska, Nir Eyal is willing to accept that luck egalitarianism has all the seemingly harsh implications for the imprudent that its critics ascribe to it. He attempts to defend luck egalitarianism by showing that our reactions to these implications do not provide good reasons to reject the theory in favor of responsibility-insensitive alternatives. Eyal’s main argument is that the examples that critics use to elicit the intuitions of harshness have features that render these intuitions untrustworthy. According to Eyal, the examples all involve identified victims at grave risk, features that tend to trigger a ‘rule of rescue’ mentality that causes us to reflexively dismiss the relevance of any consideration recommending against rescue, even considerations that on reflection are clearly relevant, such as the fact that the resources for the rescue could instead be used to save a greater number. The fact that such examples lead us to dismiss the relevance of the victims’ responsibility for their own predicament is not good evidence that it is indeed irrelevant, since our reactions to such cases are biased, so argues Eyal. Cases that avoid the features that

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trigger rule of rescue thinking would be a better test of the relevance of personal responsibility. Eyal constructs a case that is purged of the rule of rescue features and invites the reader to make a judgment about the just prioritization of resources. If personal responsibility strikes us as relevant to the issue of prioritization in this purified case, as he believes it will, he argues that we should regard it as relevant in the rule of rescue cases as well, our intuitions of harshness notwithstanding. As readers will see, the issues in this volume have been selected both for their intrinsic interest and because they represent areas of bioethics that are responding to a variety of recent developments, such as new reproductive technologies, the trend of conducting an increasing proportion of clinical trials in developing countries, the burdens that diseases caused in part by unhealthy behaviors are increasingly placing on health care systems, and new developments in the neuroscience and psychology of mental disorder. There is a great diversity of positions on these topics, and the contributions in this volume demonstrate the breadth and value of this diversity.

Notes 1. Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death, “A Definition of Irreversible Coma,” Journal of American Medical Association 205, no. 6 (1968): 337–40. 2. Jay Katz, The Silent World of Doctor and Patient (Baltimore, MD: The Johns Hopkins University Press, 1984, 2002). 3. Shana Alexander, “They Decide Who Lives, Who Dies,” Life Magazine 53, no. 19 (1962): 102–25. 4. Roe v. Wade, 410 U.S. 113(1973). 5. Leah Belsky and Henry S. Richardson, “Medical Researchers’ Ancillary Clinical Care Responsibilities,” BMJ 328, no. 7454 (2004): 1494–6. 6. Henry Richardson, Moral Entanglements: The Ancillary-Care Obligations of Medical Researchers (New York: Oxford University Press, 2012). 7. S. Matthew Liao, “Is There a Duty to Share Genetic Information?,” Journal of Medical Ethics 35, no. 5 (2009): 306–9. 8. Ronald Dworkin, Life’s Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom (New York: Alfred A. Knopf, 1993); Agnieszka Jaworska, “Respecting the Margins of Agency: Alzheimer’s Patients and the Capacity to Value,” Philosophy & Public Affairs 28, no. 2 (1999): 105–38. 9. Derek Parfit, Reasons and Persons (Oxford: Oxford University Press, 1984). 10. S. Matthew Liao and A. Sandberg, “The Normativity of Memory Modification,” Neuroethics 1, no. 2 (2008): 85–99. 11. Elizabeth Anderson, “What’s the Point of Equality?,” Ethics 109, no. 2 (1999): 287–327.

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PART

I

Research Ethics

How Should We Justify Ancillary-Care Duties?

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Locating Medical Researchers’ Ancillary-Care Obligations within the Division of Moral Labor1 HENRY S. RICHARDSON

Abstract Medical researchers’ ancillary-care obligations are obligations to provide medical care that research participants need but that are not morally required by what’s involved in conducting a study safely and soundly. This essay seeks to deepen and make more explicit the underlying philosophical rationale of the author’s partial-entrustment model of medical researchers’ ancillary-care obligations by explaining how these should be seen as arising in the context of a complex web of moral obligations that constitutes a social division of the moral labor of beneficence. The model had metaphorically described how a special duty of researchers to engage tactfully with research participants regarding their ancillary-care needs, which flows from special permissions they gave the researchers, provides a “hook” on the basis of which to specify the general, background duty of beneficence. By going into more depth about the social division of moral labor with regard to beneficence, the chapter seeks to restate this point in nonmetaphorical terms. It argues that a theory specific to the context of medical research reasonably takes as given the broader aspects of this social division of labor. Against that backdrop, the partial-entrustment model offers a well justified way of addressing a vulnerability that has fallen through the cracks. * Over the last dozen years, working first with Leah Belsky and then on my own, I have developed and defended a theory of medical researchers’ ancillary-care 15

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obligations.2 “Ancillary care,” for these purposes, we defined in a shorthand way as medical care that research participants need but that is not morally required by what’s involved in conducting a study safely and soundly. The requirements of safety and soundness we interpreted broadly, taking the ideal of doing sound science using human subjects as encompassing not just the requirement to provide the care required to do the proposed science but also an adequate standard of care for the disease or condition under study.3 We also understood the commitment to study safety as requiring some remediation of study-caused harm. What is interesting and practically important about the issue of ancillary-care obligations is that they had been omitted from existing ethical understandings and guidelines pertaining to medical research. Hence the definition’s negative character: It defines “ancillary care” as care not required by the established and recognized moral grounds for providing medical care to study participants. When Belsky and I started on this work, the question of who is responsible for providing ancillary care to study participants was one that existing guidelines and understandings had left completely open. While there is today some nascent, shared understanding that medical researchers have some responsibility for addressing their study participants’ ancillary-care needs, official ethics guidelines still treat the issue only rarely. When they do, what they tend to say is rather noncommittal. Belsky and I approached this issue with two desiderata principally in view. First, seeking to systematize the intuitive responses we were hearing from researchers and patient advocates, we aimed to articulate a reasonable middle position, on which the ancillary-care obligations researchers specially owe to their participants—their “special ancillary-care obligations”—are neither null nor unlimited. Second, we sought to locate a position that could be defended on the basis of general moral arguments. On the first score, we sought reasonable limitation both by suggesting that researchers’ special ancillary-care obligations are limited in scope to dealing with issues discovered by carrying out study procedures and by suggesting that any potential claim to ancillary care that falls within the scope needs also to pass a multidimensional test of strength. On the second score, that of providing justificatory arguments, our initial efforts were rather tentative and metaphorical, but we did invoke a metaphor that I later developed into an explicit argument, the metaphor of partial-entrustment. This metaphor has given the view its name: the partial-entrustment view. This view itself sees researchers’ special ancillary-care obligations as playing a role in a division of moral labor, for these supplement the general duty of rescue. Whereas the former are obligations that hold specially between researcher and participant, the duty of rescue applies to everyone in any situation. It holds that if one can prevent someone from serious suffering or death without any serious sacrifice on one’s own part, one would be wrong not to do so. The duty of rescue provides a basis for holding many instances of providing ancillary care to be obligatory, such as providing antihelminths (deworming

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medications) to research subjects in areas where intestinal worms are endemic. The partial-entrustment view assumes that this duty of rescue is in place and seeks to supplement it by defending the existence of a duty that, while more limited in its reach, demands more by way of sacrifice from the research team. My justification of the partial-entrustment model additionally relies on the duty of rescue in another way, namely as a premise in an argument unpacking the entrustment idea. Two other moral principles are also invoked by that argument. The first affirms that each individual has privacy rights that limit others’ access to his or her body and medical information. The second is a wide but specifiable general duty of beneficence. In a nutshell, the justificatory argument is the following: To proceed permissibly, medical researchers must get special permission from their research participants to touch or scan their bodies, sample their bodily fluids, and take their medical histories. In obtaining these permissions, they are soliciting directed waivers of the kind of privacy right just mentioned.4 When these special permissions are given, then—by a moral logic that we see also in other contexts—this gives the researchers a special responsibility vis-à-vis these participants to look out for the goods that these waived rights ordinarily protect.5 In this case, this special responsibility would prima facie call for staying tactfully silent about any unexpected ancillary diagnosis that crops up, but where this diagnosis reveals that the participant is in dire peril, the duty of rescue entails a duty at least to warn, making silence impermissible. As a result, the special responsibility is shifted toward being a positive one, a duty of “tactful engagement.”6 This positive responsibility, as I have put it, provides a “hook” on the basis of which to specify the specifiable duty of beneficence in this instance, generating a special ancillary-care obligation. The partial-entrustment model had a head start on the competitors in this area, of whom there are now thankfully several. The model has come in for its share of criticism. Some of the criticism has come from a roughly consequentialist or impartialist direction, questioning the focus on and defense of an obligation that holds specially between researchers and their study participants and noting that it will sometimes be more cost-effective to help nonparticipants. Much of the criticism has faulted the scope limitation for narrowing the resulting account of researchers’ ancillary-care obligations. As to the former, impartialist criticism, I would remind you that we set out in the beginning to try to construct and to justify an account of researchers’ special ancillary-care obligations. To the extent that the justification succeeds, it provides a basis for resisting this consequentialist pressure. As to the objections to the scope limitation, I will offer two brief observations. The first is just a reminder that the model presumes that a general duty of rescue also applies. That will cover many cases of needed ancillary care that fall outside the scope limitation. The second is that the scope limitation is entailed by the justificatory argument I have summarized, in which the special responsibilities derive

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from the permissions given to carry out study procedures. The question then arises what would justify a special ancillary-care obligation that is broader in scope? In meeting this justificatory burden, my opponents have not to date gotten very far, so far as I am aware. Some have simply invoked the vague idea of relationship without explaining what sort of relationship is involved.7 Others have simply skipped the step of providing a justificatory argument and move directly from noting that practitioners often find the scope limitation unintuitive to concluding that there is a special ancillary-care obligation unencumbered by the scope limitation.8 This is a case of wishful thinking, which is as fallacious in moral theory as it is in other walks of life. Even if all practitioners were agreed that the partial-entrustment model’s scope limitation was too narrow—which, by the way, not all do9—that would not constitute an adequate moral justification for holding this to be true. Here, instead of relitigating this dispute about the scope limitation, I would like to take up in a new way my engagement with my consequentialist and impartialist critics. I hope, at the same time, to provide a way of unpacking a metaphor on which my argument still relies. Having unpacked and defended the metaphor of entrustment, I currently still lean on the idea that the positive special responsibilities that arise provide a hook for specifying the special duty of beneficence. What does this mean? In order to answer this question, I will set out and briefly defend a general methodological stance toward moral theory and then offer a conception of the division of moral labor seen not merely as an implication of a multiplicity of principles but also as a social achievement. This discussion will, in one sense, take me far afield from medical research ethics; in another sense, however, this broader sort of discussion is forced on us whenever—as in this instance—we are called upon to reflect upon how medical research ethics relates to ethics in general. First, then, the general methodological stance, which concerns how moral theory responds to the contingent facts of our situation. One way that I think any reasonable ancillary-care theory should respond to these facts is by being a nonideal theory. It seems quite plausible that a fully just human society that enjoys our levels of technology and access to resources would be marked by an absence of severe poverty and by an effective universal guarantee to access to health care.10 The most poignant and prevalent needs for ancillary care result from ways in which the world is currently unjust. Presaging the point about the division of moral labor, I suggest that it is pointless, as a response to the question about medical researchers’ ancillary-care responsibilities, to reply by insisting that the world be made just. (Whether medical researchers working in certain localities have any obligation to serve as a vanguard of justice is a separate question.)11 The contingent facts about current injustices are but one example of the many contingent facts that moral theory ought to recognize as it proceeds.

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There is no reason to demand that moral theory proceed on an a priori basis. As John Rawls famously put it, “[M]oral theory must be free to use contingent assumptions and general facts as it pleases.”12 Furthermore—and not simply as a corollary of Rawls’s assertion—moral theory must be free to draw on and deploy nonderivative principles whose relevance or validity—or both—is contingent. Here I take a stand against G.A. Cohen’s criticism of “fact-sensitive” principles, which I have rebutted elsewhere.13 As Hegel influentially argued, our moral understandings are the product of our contingent history and have been shaped by concrete, contingent social practices. It would be a particularly rash theorist of medical research ethics who resisted this relevance of contingent historical forms, for medical research is itself a contingent development, a practice that arose only recently and might never have arisen. Now, my consequentialist or impartialist opponents may object that there is no call to have a theory of medical research ethics: All one needs is a general ethical theory. To respond to this objection, I now turn from these fully general characterizations of my methodological stance to the idea of the moral division of labor. The idea of a moral division of labor has lately been prominent in the discussion of one quite special case, namely Rawls’s defense of the difference principle as applying to the basic structure of society and not to an individual’s economic decisions within that set of basic institutions. Cohen vigorously contested this differentiation between these two “sites” of distributive justice. In this context, the idea of a division of moral labor has been invoked by Rawls’s defenders. Prominent among them is Samuel Scheffler. In his 2005 contribution to an Aristotelian Society symposium on the division of moral labor, Scheffler introduces a distinction between two kinds of division of labor.14 Scheffler’s distinction is both useful and potentially misleading for a broader examination of the idea of the moral division of labor. The first kind is what Rawls called “a division of labor between two kinds of social rules, and the different institutional forms in which these rules are realized.”15 Here, the disputed example is the differentiation between the basic structure of society, on the one hand, which ought to assure background justice via the provisions of the tax code and the systems of property and contract law, for example, and on the other hand, the rules applying to individual conduct in seeking and selecting employment and making consumer decisions. Because Rawls’s theory of the justice of the basic structure of society is set up to maintain considerable freedom in the labor market, there are not going to be many such rules. Because these latter so-called rules might be better described as an absence of rules, this example is not a great case of the institutional division of labor. I will come to better examples after discussing the second kind of division of labor Scheffler highlights in Rawls, namely a proper “moral division of labor” between two sets of moral principles. As Scheffler puts it, “Whereas the basic structure of society should be designed in such a way as to

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satisfy the principles of distributive justice, both individual conduct and other groups and associations should in general be guided by other principles and should strive to realize other virtues and ideals.”16 Scheffler’s defense of Rawls proposes that we see the controversial institutional division of labor as being grounded in a distinction among a multiplicity of distinct moral principles and moral or morally important values. Some of these principles and values, Scheffler suggests, are of central importance in some spheres or contexts and others of them in other spheres and contexts. If we step back from the Rawlsian example but hold on to this sensible pluralism about principles and values, we can locate some cases of a division of moral labor that are somewhat less controversial. The values of love and intimacy, as well as the principles supportive of them, are more central to and important for our practices of friendship and romantic attachment than are the values of justice and legality and the principles that realize them. The latter have their core application to the law and the state. To be sure, this does not give friends or lovers any license to be unjust. On the other side, perhaps it is acceptable for the law or the state to be unloving; but they, for their part, must not crush love or intimacy. Despite these linkages, it remains true that the spheres of friendship and romantic attachment are centrally governed by the one set of moral values and principles and the spheres of the state and the law by the other set. Another example bears directly on the case of ancillary care. Our scientific endeavors are centrally answerable to values pertaining to the pursuit of truth, such as integrity and epistemic justice.17 The practice of clinical medicine, by contrast, is above all answerable to the health of one’s individual patients. The relatively new practice of medical research on human subjects is, at present, rather unstably poised between these two spheres.18 Having now given a few quick illustrations of how Scheffler’s way of depicting the division of moral labor can be generalized, let me link this to the general methodological stance I have taken. This will lead us to soften his distinction between an institutional division of labor and a moral division of labor. This methodological stance insists that moral theory should be willing to take on board contingent presuppositions. For the purposes of certain theoretical tasks, this will reasonably mean taking for granted certain aspects of the way that existing practices and institutions help us divide our moral labor. In Rawls’s case, for instance, the theoretical question he posed about what principles of justice should govern a society’s “basic structure” sought to leave many fundamental questions open, such as whether the means of production should or should not be privately held and whether or not liberty should have priority. Nonetheless, he clarified—after having been prodded by H.L.A. Hart— that the understanding of liberty with which he was working was a historically specific achievement, singling out a “traditional” list of “basic liberties.”19 Rawls’s instinct, which I think was sound, was that our social division of moral labor—however exactly it is conceived—is too complexly ramified for it to be

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plausible to make much constructive theoretical progress by trying to set out concretely how it should be remade from scratch. To say this is not to dismiss more critical normative projects, such as Foucault’s critique of power; but it is to raise a question about the aptness of attempting to generate radical critique while at the same time purporting to offer a constructive basis for rebuilding everything, as Bentham’s philosophical radicalism seemed to do.20 Many important tasks in moral theory call for taking for granted certain aspects of the moral division of labor with which we contingently find ourselves. Allowing that nonderivative moral principles may take on board and be shaped by contingent presuppositions enables us to see that the relationship between social practices on the one hand and moral values and principles on the other is genuinely a two-way street. It is not only the case that different social practices and institutions centrally answer to different moral values and principles. Equally important is the fact that these social practices and institutions can constitutively shape these values and principles. Thus it is that, as Rawls affirmed, our historically contingent practices of republican democracy, religion, religious toleration, and the rule of law have bequeathed to us a quite concrete and historically contingent understanding of the basic civil liberties. For example, on our current understandings, the right to vote is a central civil liberty; yet representative democracies in relatively large-scale republics might never have evolved. We might have stuck with small city-states in which rulers were chosen by lot, or people might never have become convinced that democratic republics could work on a large scale. If history had taken these other forks in the road, surely the right to vote would not be considered a basic liberty. Even so, we might still have ended up with forms of democratic rule as legitimate and justifiable as any we presently enjoy. An example of how contingent history has shaped moral obligations that is important to the ancillary-care issue is the duty of rescue. Jeremy Garrett has recently criticized the appeal to the duty of rescue in the context of returning or otherwise acting on genomic incidental findings.21 (So doing, by the way, is a special case of potential ancillary-care obligations.)22 Garrett criticizes an appeal to the duty of rescue in this context by invoking a contrast between approaching cases of helping those in need in a socially contextless way, as isolated, random situations and approaching these cases in a way that attends to how social institutions are configured.23 He seems to suppose that looking at obligations of beneficence in a socially contextualized way will mean taking a roughly optimizing view, one that focuses on whether social institutions are overall configured in a “just and socially beneficial” way. He presumes that when we take this social/institutional perspective, we will leave the duty of rescue behind. The account of the division of moral labor that I have been sketching, however, suggests otherwise. One may view the duty of rescue, as currently understood, precisely as playing its distinctive part in a complex and historically contingent set of moral practices and institutions. These include

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preventative measures, such as one that Garrett mentions, the “laws and codes that require fences around swimming pools.”24 They also include funding first-responders of many kinds, from firefighters to U.N. peacekeeping forces. Practices of charitable giving, the formation of NGOs such as Médecins sans Frontières, and national programs of foreign aid would also need to be added. Because such a complex division of the moral labor of beneficence responds to a plurality of distinctive values, ranging from the importance of national sovereignty and the centrality of human rights to the freedoms of the homeowner and of the would-be founders of NGOs, one would not expect such a system generated by a pluralist view to answer to any simple optimizing standard. Instead, by helping our moral standards contingently evolve, this constellation of social institutions and practices helps constitute our moral standards. In relation to such a complex system of addressing beneficence, the duty of rescue plays a kind of mop-up or interstitial role, whose contours are shaped to fit the gaps contingently left over by other, more specific arrangements. Rescue takes over where the social or institutional arrangements otherwise in place fail to address a case of dire need. The highly evolved and complex pattern of social practices and institutions whereby we currently divide the moral labor of beneficence is surely not ideal. It no doubt fails to take seriously enough the claims of the poorest and most oppressed and gives too much relevance to distance. Rawls’s theory of justice is an example of how a theorist can take a critical perspective on a given set of social arrangements. To stay true to the moral pluralism to which I have here committed myself, however, I would insist that what we mean by calling the system nonideal is that it fails by some compelling moral standard or other, not that it fails some overall, transhistorical standard of optimality. Having some sense of the specific ways in which our complex system of beneficenceaddressing social institutions and practices is nonideal should help orient us to ways in which it might be improved. Into this complex and highly evolved set of social institutions and practices addressing the moral task of helping those who need help comes the relatively new profession of medical research. Those in this field are engaged in an effort to contribute to general knowledge about human health. As a scientific field, medical research is subject to concerns about scientific and data integrity, standards of peer review, and the like. Yet insofar as researchers succeed in generating new general knowledge, they will thereby improve our abilities to promote human health. Whatever their individual aims or those of their employers, they may end up helping people via the new theories they bolster, the products and procedures that they test, the local health infrastructures they help develop, or the medical care they provide as part of their studies. Given current ethical understandings, as reinforced by internationally accepted regulations and guidelines, the activity of medical research should be counted as an institutionalized element in our system of allocating beneficence obligations.

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Relatively strict standards are in place that are meant to protect research participants from undue risk and to assure them an adequate standard of care for the disease or condition under study. Further, such concern with the health and well-being of each research participant is not an alien imposition. The shocking cases that led to the regulation of medical research were not only abuses of research subjects but also failures to conduct research well. Strident warnings about the so-called therapeutic misconception notwithstanding, medical research on human subjects shares some of clinical medicine’s individualized concern with the health of each participant. The partial-entrustment model provides an account of how this kind of morally significant relationship arises between medical researchers and each of their individual participants. It arises from accepting special permissions from each of the participants as an initial step in proceeding to engage them in the study. I want to highlight an important nonideal feature of our social system of beneficence-related institutions that the partial-entrustment model took on board, albeit in an understated or even covert way. One of the key “strength” factors in the model is labeled “dependence.” Commonsensically enough, the strength of a given claim to ancillary care is deemed to vary directly with the degree to which an individual participant is dependent on the researchers for getting the needed care. If they could easily obtain the care elsewhere—say, from their local clinic—their claim for ancillary care is a relatively weak one. In an ideally just society, as I have indicated, adequate medical care would anyway be accessible to all. By building in this important factor of dependence, the partial-entrustment model is primed to deal with this respect in which our current situation is far from ideal. Unlike the general duty of rescue, however, which I have described as an all-purpose stopgap, the special ancillary-care duty remains, at core, one arising out of the special relationship between medical researchers and each of their participants. Now armed with these general considerations about the social division of moral labor with regard to beneficence, I would like to suggest how to replace the idea that the duty of ‘tactful engagement’ provides a hook for specifying the specifiable duty of beneficence with a pair of less metaphorical ideas. (Recall that—according to my justificatory argument—the duty of tactful engagement is what results when the duty of rescue blocks a medical researcher’s interpreting her special responsibilities toward her participants simply in terms of maintaining a tactful silence—for example, with regard to an unexpectedly reached diagnosis.) First, so as to indicate that the phenomenon to be explained here is really not so mysterious, I would like to argue that the duty of tactful engagement is itself an intelligible basis of moral entanglement. The second idea is that, as against the backdrop of our existing division of moral labor with regard to beneficence, the special ancillary-care obligations postulated by the partial-entrustment model are well designed to address an

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uncovered set of needs and vulnerabilities without clashing unduly with a reasonable concern for aggregate well-being. The first of these ideas considers ancillary-care obligations in the context of a set of transactions between individuals, and specifically within the currently unsettled moral context pertaining to medical researchers’ ancillarycare duties. From that perspective, a special ancillary-care duty arises as what I call a moral entanglement. A moral entanglement is a special obligation to another that one accrues unintendedly and in an unplanned way, without doing any wrong, from an interaction with that other. We are familiar with navigating this kind of dynamic change in our moral obligations. We know that our moral obligations can shift even from interacting blamelessly with another: This kind of moral entanglement is an intelligible phenomenon. An easy way to model it is in terms of one’s being shifted—perhaps by chance—from one well established moral role to another. A vivid example of how this can happen is given by the story of how L.A. Times reporter Steve Lopez got slowly entangled in the life of a homeless and schizophrenic cellist he had encountered by chance, shifting by degrees from being a total stranger to being a kind of friend—albeit the kind of friend who was publishing newspaper columns about his new acquaintance from time to time.25 The argument that I have offered to justify the special ancillary-care obligation helps make this phenomenon philosophically intelligible in its context, not by invoking friendship but by describing the intermediate stage at which a special duty of tactful engagement arises. Considering ancillary-care issues in terms of interactions between two persons, then, we need not suppose that the moral division of labor already builds in the ancillary-care obligations of medical researchers in order to understand how this or that medical researcher accrues a special obligation to provide ancillary care to a particular research participant. This first metaphor-replacing idea takes us beyond the bare idea of ‘relationship’ by specifying that the key intermediate step in the deepening moral relationship was not a step toward friendship but rather a privacy-based moral entanglement. Still, while this first idea helps reduce the remaining justificatory burden by helping us to understand how special ancillary-care obligations might arise, it remains too vague to provide an adequately justified account of their contours. I turn, then, to the second metaphor-replacing idea, which takes up the idea of the social division of moral labor from the perspective of a specialized project in institutional design. While one could imagine a Rawls-style work— A Theory of Beneficence—that constructed some sort of initial choice situation providing an Archimedean point affording a critical perspective on the basic structure of our overall system of beneficence, that has not been my aim. I have argued that there is room, within moral theory, for working on lots of different topics and also for work on some topics that will appropriately take for

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granted some aspects of the existing ways in which we divide our moral labor. The topic of medical research ethics is a perfectly good one. Work on this topic will look critically at the morally relevant aspects of medical research, reasonably taking other aspects of our social organization to be largely as they otherwise are, while keeping in mind that they are in many respects morally objectionable. Since critical work on the ancillary-care issues that arise in medical research is concerned in the first instance with how people are to get help that they need, such work should take account of the existing division of moral labor with regard to beneficence and focus on what special problems and opportunities regarding beneficence arise in medical research ethics.26 Some of these will arise at the level of setting research and funding priorities, some at the level of study planning, some at the level of implementation. Relating such a specialized context to a broader set of moral practices prevalent in society is a complex endeavor, impossible to do comprehensively or in a fully systematic way. I have already mentioned three key points about broader social understandings of beneficence that lie in the background of the ancillary-care issue. First, the general duty of rescue already covers an important proportion of the ancillary-care needs. Researchers tend to realize this. Especially when working in places where medical resources are scarce, medical researchers understand that they often are well placed to provide help that no one else can. Second, however, if they were to address all such needs, it is likely that this would significantly interfere with their scientific aims. Since medical research, in general, stands to benefit all future people in ways that I have mentioned, there is a beneficence-based case—one respected by national policies funding medical research—against addressing every immediate need they encounter. Third, whereas the duty of rescue serves a kind of ‘mopping up’ function, human vulnerabilities and needs of the kind that call for beneficence are also covered by existing social practices and institutions ranging from public first-responders and health insurance schemes to a set of expectations about the responsibilities of parents and friends. To appeal as I have done to an underlying ‘specifiable duty of beneficence’ is to assert that this complex social division of moral labor is always assessable at least in part on the basis of how well it mitigates people’s vulnerabilities and addresses their needs.27 In calling on this idea, the partial-entrustment model highlights that medical research subjects’ ancillary-care needs have fallen through the cracks of the existing social division of moral labor. There remain important ancillary-care needs and vulnerabilities that the duty of rescue does not address. Yet given that beneficence also supports giving some importance to aggregate well-being in the long run and that medical research generally contributes to human well-being in the long run, it is also reasonable to take the partial-entrustment model’s scope limitation as providing a principled limit on how much may be asked of medical researchers by way of this kind

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of medical help. One way of putting the grounds for this scope limitation is that it derives from a specific way in which study participants have willingly made themselves more vulnerable, namely by giving permissions that waive their privacy rights. Against this complex social background, then—sensible to take for granted when one’s topic is an aspect of medical research ethics— the specifiable duty of beneficence provides a reason to design or steer the practice of medical research so that it honors the ancillary-care obligations supported by the partial-entrustment model. In seeing things this way, we can agree with Peter Singer that hardly any of us fully discharges our obligation to help others while disagreeing with his further claim that this beneficence obligation is best thought of in a simple, impartialist way that abstracts from the existing division of moral labor. Here, I have had space only to gesture at how resting more weight on the idea of moral entanglement and drawing in these new considerations about the social division of moral labor might replace and, in effect, cash out the metaphor of the special duty of tactful engagement serving as a ‘hook’ on the basis of which to specify the specifiable duty of beneficence. Work on a special moral topic such as medical research ethics needs to take this kind of moral division of labor into account in two ways. It needs to understand the morally salient features of medical research and the role of the medical researcher. It also needs to understand how medical research relates to the other complex ways in which we divide the labor of providing the help to which other people, in at least some impersonal sense, have a claim. I hope I have said enough to have provided some grounds for thinking that the partial-entrustment model of medical researchers’ ancillary-care obligations does reasonably well at these two tasks.

Notes 1. I am grateful to Collin O’Neil and S. Matthew Liao for suggesting an exchange of views on ancillary care and to them and the other attendees of the workshop on Current Controversies in Bioethics held at New York University in May 2015 for many helpful comments and questions. 2. Henry S. Richardson and Leah Belsky, “The Ancillary-Care Responsibilities of Medical Researchers,” Hastings Center Report 34 (Jan.–Feb. 2004): 25–33; Leah Belsky and Henry S. Richardson, “Medical Researchers’ Ancillary Clinical Care Responsibilities,” British Medical Journal 328 (2004): 1494–6; Henry S. Richardson, Moral Entanglements: The Ancillary-Care Obligations of Medical Researchers (NY: Oxford University Press, 2012). 3. The link between sound science and the standard of care is via the idea that the sound design of medical studies in interventional studies generally calls for comparing a trial intervention to the currently established approach. Care for the disease or condition under study that goes beyond the established standard of care will count as ancillary care. A prime example of this has been the (lifetime) provision of posttrial antiretrovirals for participants in HIV-vaccine trials: see Richardson, Moral Entanglements, chap. 6. I thank Collin O’Neil for raising this issue. 4. Directed waivers waive the right in question only vis-à-vis particular other people.

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5. This is how this special responsibility arises when all goes well. As Gerard Vong and another questioner at the NYU workshop pointed out to me, it would be possible for people working on medical research to access a research participant’s tissue or fluid samples, medical images, or medical history without having gotten permission to do so. To cover such cases, one could present the account more abstractly, so that it rested on a variety of ways in which the privacy rights that protect one’s body and one’s medical information might get sidelined—either by having been waived or by having been violated or overridden. The same basic rationale would still apply, in that a right that normally protects the participant has been put out of operation. The decisive advantage of focusing on how things work out if all goes well, however, is that doing so provides a normative account of the researcher–participant relationship, which, when things proceed as they should, begins when these privacy waivers are accepted. 6. Richardson, Moral Entanglements, chap. 3. 7. Neal Dickert and David Wendler, “Ancillary Care Obligations of Medical Researchers,” JAMA 302, no. 4 (2009): 424–8. For my replies, see Richardson, Moral Entanglements, 20–21, 51–7. But see now Nate W. Olson, “Medical Researchers’ Ancillary Care Obligations: A Relationship-Based Approach,” Bioethics 30 (2016): 317–24. 8. See, e.g., Tomi Tshikala et al., “Engaging with Research Ethics in Central Francophone Africa: Reflections on a Workshop about Ancillary Care,” Philosophy, Ethics, and Humanities in Medicine 7 (2012): available at http://www.peh-med.com/content/7/1/10 (accessed July 31, 2016). 9. See the interview data collected in Catherine May Slack, “Exploring the Ancillary-Care Experiences of Stakeholders in South Africa,” Ph.D. dissertation, University of KwaZulu-Natal, 2014. 10. On the latter point, see Richardson, Moral Entanglements, 47, 107. 11. Cf. Alex John London, “Justice and Research in Developing Countries,” in Global Health and Global Health Ethic, ed. Solomon Benatar and Gillian Brock (New York: Cambridge University Press, 2011), 293–303. 12. John Rawls, A Theory of Justice, rev. ed. (Cambridge, MA: Harvard University Press, 1999), 44. 13. Gerald A. Cohen, Rescuing Equality and Justice (Cambridge, MA: Harvard University Press, 2008), chap. 6. In chap. 9 of Articulating the Moral Community: Towards a Constructive Ethical Pragmatism (Oxford University Press, forthcoming), I seek to rebut Cohen’s argument that all non-derivative ethical principles, properly so-called, are fact-insensitive. 14. Samuel Scheffler, “Egalitarian Liberalism as Moral Pluralism,” Proceedings of the Aristotelian Society, 79, suppl. (2005): 229–53, at 237–9. 15. John Rawls, Political Liberalism, expanded ed. (New York: Columbia University Press, 2005), 268. 16. Scheffler, “Egalitarian Liberalism as Moral Pluralism,” 239. 17. On the latter, see Miranda Fricker, Epistemic Injustice: Power and the Ethics of Knowing (Oxford: Oxford University Press, 2007). 18. As Collin O’Neil has pointed out to me, the area of public health can also be hard to demarcate firmly from either clinical medicine, on the one hand, or medical research, on the other. I briefly explored how ancillary-care issues can arise in the public health arena in Richardson, Moral Entanglements, 190–6. 19. John Rawls, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge: Harvard University Press, 2001): 44–5. 20. Cf. Elie Halévy, The Growth of Philosophic Radicalism (London: Faber & Faber, 1972). 21. Jeremy R. Garrett, “Collectivizing Rescue Obligations in Bioethics,” American Journal of Bioethics 15 (2015): 3–11. 22. See Henry S. Richardson, “Incidental Findings and Ancillary-Care Obligations,” Journal of Law, Medicine, and Ethics 36 (2008): 256–70. 23. Garrett, “Collectivizing Rescue Obligations in Bioethics,” 5.

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24. Ibid. 25. Steve Lopez, The Soloist: A Lost Dream, An Unlikely Friendship, and the Redemptive Power of Music (New York: G.P. Putnam’s Sons, 2008). 26. Other kinds of questions about ancillary care can also be asked, such as whether it is just to give research participants preference over those of their neighbors who are not research participants but who have similar unmet medical needs. I touched on such questions in a preliminary way in Richardson, Moral Entanglements, 118–28. By the broader logic of this paper’s conception of the division of moral labor, however, a more thorough treatment of ancillary care’s relationship to justice would need to take fuller account of the division of moral labor with regard to justice. 27. Assessable only in part on this basis, for reasons previously alluded to in discussing the cases of such elements of our system of beneficence as regulations regarding swimming pool safety and the formation of charitable organizations that offer help of one kind or another: Many other morally important values are also relevant, different ones in different cases.

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The Grounds of Ancillary Care Duties

S. MATTHEW LIAO AND COLLIN O’NEIL

Abstract Whether and to what extent researchers have ‘ancillary care duties’ to address the unmet needs they encounter among their research participants is a relatively recent issue in research ethics. Much of the debate has focused on ‘special’ ancillary care duties, which hold uniquely between researchers and participants. There is disagreement about the grounds and precise scope of these special duties, but they are generally thought to pick up where the general duty of easy rescue leaves off. But easy rescue is not, we contend, the only possible general ground of ancillary care duties. In this chapter, we develop a novel human rights approach to ancillary care duties that, like easy rescue, is general but that may differ from it in terms of scope and demandingness. Only those needs that must be met to satisfy the fundamental conditions for pursuing a good life qua human beings, not merely qua individuals, fall within the scope of this human right.

1. Introduction In the course of conducting clinical trials, researchers often find that participants and nonparticipants require care—health or otherwise—that is not already required to ensure the safety or soundness of the research. Following others on this topic, we shall call this ancillary care.1 For instance, in a clinical trial of a potential HIV prevention method for pregnant women in a low-resource country, researchers may find that both participants and 29

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nonparticipants require certain kinds of ancillary care (AC), such as folic acid supplements, immunization shots, clean water, food, and education about antenatal nutrition. A central issue in this debate is whether researchers and their sponsors—or, for that matter, anyone else—have duties to provide ancillary care and, if so, on what grounds. Most, if not all, writers on this topic believe that there are some ancillary care duties. However, they offer different grounds for these duties. To see how their views differ, it is useful to begin by distinguishing between general duties, which are duties that we have to people as such, and special duties, which are duties that we have to particular people in virtue of our interactions/relationship with them.2 An example of a general duty is the duty of rescue, according to which, if one can prevent a great harm to another by doing X without sacrificing anything of substantial significance, then one has a duty to X.3 For instance, if someone is drowning in a puddle of water, and it would require very little effort for you to pull the person out of the water, thereby saving the person, according to the general duty of rescue, you would have a duty to pull the person out of the water. Most writers on the topic of ancillary care duties appear to accept that such a general duty of rescue could be used to ground some ancillary care duties.4 For instance, suppose that one can prevent great harm to a large number of children who are at risk of malnutrition by giving them deworming drugs, which are cheap and easy to administer, even if doing so is not required to ensure the safety or soundness of a particular research. Most writers appear to accept that one has an ancillary care duty to give deworming drugs to these children, owing to a general duty of rescue.5 In fact, however, most writers move swiftly to deriving ancillary care duties from special duties. For instance, Leah Belsky and Henry Richardson have advanced what they called a partial-entrustment model of special ancillary care duties.6 On the partial-entrustment model, researchers have special ancillary care duties to research participants as a result of the participants’ having waived their privacy rights in certain contexts. According to this line of thought, researchers first need to get special permissions from their research participants to do certain things related to the research such as taking the participants’ blood samples, medical histories, brain scans, and so on. When the participants give these special permissions by waiving their privacy rights, researchers then acquire special ancillary care duties to look out for the goods that these waived rights ordinarily protect. If, as a result of the participants’ having waived their privacy rights, the researchers by chance learned that participants require certain specific medical care that is not part of the research, the researchers would have at least a duty to warn the participants, as a result of their having these special ancillary care duties. To illustrate the partial-entrustment model, consider the following: Antimicrobials: Suppose that researchers are conducting a clinical trial for antimicrobials to prevent sexually transmitted infections. Suppose

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that the research participants have consented to pelvic exams for the purpose of data collection. Suppose the research participants also have tooth decays that are casually observable. While performing the pelvic exams, the researchers learned that some participants have vaginal candidiasis, a treatable fungal infection. On the partial-entrustment model, the researchers would have a least a duty to warn these participants of the vaginal candidiasis because the researchers learned about this medical need as a result of the participants’ having waived their privacy rights. Importantly, Belsky and Richardson appear to make the stronger claim that on the partial-entrustment model, the researchers would not have a duty to warn the participants about their tooth decays or a special duty to provide dental care if requested because the researchers did not learn about this medical need as a result of the participants’ having waived their privacy rights.7 A number of people have objected that in limiting special ancillary care duties to only those needs that are discovered through the waiver of privacy rights, the partial-entrustment model is unreasonably restricting the scope of special ancillary care duties. As an alternative, Neal Dickert and David Wendler have proposed that researchers have special ancillary care duties because of their relationship with participants as “whole persons,” regardless of how they found out about various kinds of AC needs.8 On the whole-person model, researchers in Antimicrobials, for example, would have duties to address both the vaginal candiasis and the tooth decay in the research participants by virtue of the fact that the researchers have a relationship marked by a certain degree of depth with the research participants. Still others have raised the concern that both models are too restrictive.9 Both models are intended to ground special ancillary care duties to research participants. But nonparticipants in the local community may also have unmet needs that researchers are in a position to address that fall outside the scope of these special duties. Insofar as the duties to participants are special, this means that researchers must attach some degree of priority to the needs of participants, which may in turn disallow them from distributing resources in a way that would be impartially best or fairest. For example, consider the following: Antimicrobials II: Everything is the same as Antimicrobials. In addition, suppose that the clinical researchers know that there is a high prevalence of tooth decay in the local population. Suppose further that the researchers could either arrange for a dentist dedicated exclusively to treating participants or set up a dental clinic that accepts participants and nonparticipants alike but that would have wait times that would prevent a few participants from receiving timely care.

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It seems that both models of special duties would forbid the latter arrangement, even though there are reasons to distribute the prospect of benefit equally among equally needy people. Recently, Richardson has reaffirmed his commitment to justifying ancillary care duties as special duties through the partial-entrustment model.10 First, he argues that rival alternatives need to provide a justification for why the scope of special ancillary care duties should be broadened. Second, in response to the idea that ancillary care duties can be grounded through general duties such as a duty of rescue, Richardson argues that there are certain intuitively compelling ancillary care duties that extend beyond anything general grounds could justify and that can be justified only through the partial-entrustment model. In this chapter, we take up Richardson’s challenges. First, we shall propose what we call a human rights approach to ancillary care duties, which, as we shall see, offers a general ground for ancillary care duties. In particular, we shall argue that human beings have human rights to basic ancillary care and that this entails that all able individuals have a duty to provide every human being with basic ancillary care. We shall also explain how the human rights approach differs from an approach that grounds basic ancillary care duties on the general duty of rescue. We shall then question Richardson’s claim that there are ancillary care duties that can be justified only through the partial-entrustment model.

2. Human Rights as Fundamental Conditions for Pursuing a Good Life To see how ancillary care duties could be grounded in human rights, it is useful to begin by providing a substantive account of human rights, that is, an account that tells us what human rights we have and why we have these human rights. Elsewhere, one of us has defended what might be called the Fundamental Conditions Approach of human rights, according to which human beings have human rights to the fundamental conditions for pursuing a good life, where a good life is one spent in pursuing certain valuable, basic activities.11 We shall offer a brief sketch of this approach here. As we understand it, basic activities are activities that are important to a human being qua human being’s life as a whole. Sunbathing, for example, is an activity but is not a basic activity because a human being qua human being’s life as a whole is not affected if a human being did not go sunbathing. In addition, activities that are very important to an individual human being’s life as a whole may nevertheless not be basic activities because these activities may not be important to human beings qua human beings’ life as a whole. For instance, being a professional philosopher is very important to one’s life as a whole. But being a professional philosopher is not a basic activity because it is not an activity that is important to human beings qua human beings’ lives as a whole. Finally, basic activities are ones that if a human life did not involve the pursuit

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of any of them, then that life could not be a good life. In other words, a human being can have a good life by pursuing just some and not all of the basic activities. Some of the basic activities are as follows: deep personal relationships with, for example, one’s partner, friends, parents, children; knowledge of, say, the workings of the world, of oneself, of others; active pleasures such as creative work and play; and passive pleasures such as appreciating beauty. From these basic activities, we can derive the contents of the fundamental conditions for pursuing a good life. These fundamental conditions are various goods, capacities, and options that human beings qua human beings need whatever else they qua individuals might need in order to pursue the basic activities. For example, the fundamental goods are resources that human beings need in order to sustain themselves corporeally and include such items as food, water, and air. The fundamental capacities are powers and abilities that human beings require in order to pursue the basic activities. These capacities include the capacity to think, to be motivated by facts, to know, to choose and act freely (liberty), to appreciate the worth of something, to develop interpersonal relationships, and to have control of the direction of one’s life (autonomy). The fundamental options are those social forms and institutions that human beings require if they are to be able to exercise their essential capacities to engage in the basic activities. Some of these include the option to have social interaction, to acquire further knowledge, to evaluate and appreciate things, and to determine the direction of one’s life. These fundamental conditions for pursuing a good life ground human rights because having these conditions is of fundamental importance to human beings and because rights can offer powerful protection to those who possess them. The former is true because if anything is of fundamental importance to human beings, then pursuing a characteristically good human life is. Indeed, pursuing a good life is the first and foremost aim of most human beings. It seems clear that if we attach a certain importance to an end, we must attach this importance to the (essential) means to this end. Given this, since pursuing a good life is of fundamental importance to human beings, having the fundamental conditions for pursuing a good life must also be of fundamental importance to human beings. That rights can offer powerful protection to those who possess them is well-known.12 By their nature, rights secure the interests of the rightholders by requiring others, the dutybearers, to perform certain services for the rightholders or not to interfere with the rightholders’ pursuit of their essential interests. In addition, at least on certain structural accounts of rights, rights typically prevent the rightholders’ interests that ground rights from being part of a first-order utilitarian calculus.13 This means that if a rightholder has a right to something, V, then typically no nonright claims can override the rightholder’s right to V. Finally, as some writers have pointed out, because the rightholders are entitled to these services as a matter of rights, this means that the rightholders can simply expect the services without requesting them.14 Given

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the strong protection that rights can offer for the rightholders and given the importance of having these fundamental conditions to human beings, it seems reasonable that human beings have rights to these fundamental conditions. If this is correct, this provides us with an account of why human beings have human rights to the fundamental conditions for pursuing a good life.

3. A Human Rights Approach to Ancillary Care Duties As noted earlier, ancillary care is care—health or otherwise—that does not bear on the safety or soundness of the research. We shall now discuss what kind of ancillary care duties we have, for which kinds of care, on what grounds, and to what extent. To start, it will be helpful to distinguish between basic and non-basic ancillary care. Basic ancillary care is care that does not bear on the safety or soundness of the research, but that is some kind of fundamental condition for pursuing a good life. For instance, consider the following: HIV Prevention Method: A clinical trial of a potential HIV prevention method for pregnant women in a low-resource country is being conducted. Suppose that many individuals in this country, whether research participants or not, lack access to clean water and food generally. Suppose that lacking access to clean water and food does not bear on the safety or scientific validity of the research. In this case, even though having access to clean water and food does not bear on the safety or scientific validity of the research on the HIV prevention method, since having access to clean water and food is a kind of fundamental condition for pursuing a good life, having access to clean water and food would qualify as basic ancillary care. At the same time, there may be care that does not bear on the safety or soundness of the research and that is also not a kind of fundamental condition for pursuing a good life. We can call such care non-basic ancillary care. For instance, consider the following: HIV Prevention Method 2: A clinical trial of a potential HIV prevention method for pregnant women in a low-resource country is being conducted. Suppose that some individuals in this country, whether research participants or not, lack access to a promising new acne medication generally. Suppose that lacking access to the new acne medication does not bear on the safety or scientific validity of the research. In this case, since having access to the new acne medication does not bear on the safety or scientific validity of the research, having access to acne medication is a kind of ancillary care. Moreover, since having access to the new acne medication

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is not a kind of fundamental condition for pursuing a good life, having access to the new acne medication would be a kind of non-basic ancillary care. Previously, we have argued that human beings have human rights to the fundamental conditions for pursuing a good life. Since, as we have defined it, basic ancillary care is a kind of fundamental condition for pursuing a good life, this means that human beings have human rights to basic ancillary care. This argument implies that all human beings have rights to basic ancillary care. As such, it means that both research and nonresearch participants have rights to basic ancillary care. In addition, this argument does not distinguish between health-care-related and non-health-care-related basic ancillary care. Health-care-related basic ancillary care involves essential goods and services for diagnosing, treating, and preventing diseases, injuries, and disabilities. Non-health-care-related basic ancillary care involves other goods and services besides these health-care-related goods and services and may include basic education, nutrition, housing, clean water, and so on. It might be thought that there are only health-care-related basic ancillary care duties. However, the human rights approach implies that there are both health-care-related and non-health-care-related basic ancillary care duties. Suppose that human beings have human rights to basic ancillary care. Who has the duty to provide such care? At present, the common view is that this duty belongs to the researchers and their sponsors.15 However, what if these researchers and sponsors do not have enough resources to provide for basic ancillary care for all those who need it? Also, what if satisfying the duty to provide basic ancillary care means that there would not be sufficient resources to carry out a particular research? Would the duty to provide basic ancillary care cease to exist in such a case? If not, who else has this duty, and to what extent do they have this duty? The human rights approach offers a novel perspective on this issue. Human rights are typically regarded as rights against every able person in appropriate circumstances. Hence, Maurice Cranston says, “To speak of a universal right is to speak of a universal duty . . . Indeed, if this universal duty were not imposed, what sense could be made of the concept of a universal human right?”16 Given this, a human right to basic ancillary care would imply that every able person in appropriate circumstances has a duty to provide basic ancillary care to everyone who needs it. An implication of this is that in addition to the researchers and their sponsors, everyone else would also have a duty to provide basic ancillary care to those who need it. But can everyone have such a duty? On the surface of it, it might seem that the answer is no. After all, I do not have the resources to provide basic ancillary care for everyone. In fact, it is not clear that even someone as wealthy as Bill Gates would have the means to provide basic ancillary care for everyone in the world. If so, how can the duty to provide basic ancillary care belong to everyone? Four points should make it more plausible that everyone has this duty.

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First, we can have partial duties. By a partial duty, we mean that even if a person cannot fulfill all that is required of a duty, as long as he is able to fulfill part of what is required, then he has a duty to do as much as he can. For example, suppose that X owes Y $5, X has $5, but X needs $3 to survive. Because X is able to pay Y $2, it seems reasonable to expect X to pay Y $2, that is, X still has a partial duty to pay Y. The idea of partial duties is applicable to the duty to provide basic ancillary care. In particular, even if individuals, institutions, and even certain states do not have enough resources to provide a fully adequate system of basic ancillary care by themselves, they may have some extra resources that they can use partially to fulfill some of this duty. If so, they can be obliged to do so, even if they do not have enough resources to fulfill this duty fully. Second, everyone’s having the duty to provide basic ancillary care does not mean that everyone has to do the same thing. Suppose that someone, X, is drowning, and you and another person, Y, are present and you both have a duty to try to save X. The fact that both you and Y have the same duty to rescue X does not mean that both you and Y have to do the same thing, that is, to jump into the water and try to get X out. For example, suppose that Y is a lifeguard. He may try to fulfill this duty by swimming toward X and trying to bring X out of the water. You, on the other hand, are a bystander. Suppose further that you do not know how to swim. You may try to fulfill this duty by calling for additional help or just by being around to see if further help is needed. If so, then even though both of you have the same duty, that is, the duty to save X, you would fulfill the duty in different ways. With respect to the duty to provide basic ancillary care, the fact that everyone has this duty does not mean that you have to provide basic ancillary care for everyone directly. Your duty could instead be to pay taxes in order to support a system of basic ancillary care. Third, it is helpful to distinguish between primary and associate dutybearers of this duty. The primary dutybearers of this duty have the ability directly to provide basic ancillary care. All other able persons have associate duties to help the primary dutybearers successfully discharge their duties. Normally, large institutions such as the state and/or local health care systems are in the best position to provide basic ancillary care directly. Hence, they should have and typically do have the primary duty to provide such care. However, in low-resource countries, the state and/or local health care systems may not be in a position to provide basic ancillary care directly. In some such cases, if researchers and their sponsors are in a position either to supplement the efforts of the state/local health care systems or to provide directly basic ancillary care, they would have the duties to do so. A feature of the human rights approach is that, in either case, everyone else would have the associate duties to supplement the efforts of either the state/local health care systems and/or the researchers and their sponsors, for example, by paying taxes. The human rights approach explains why they would have such duties, namely, because all human beings have human rights to basic ancillary care, which means

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that every able person in appropriate circumstances has the duties to provide basic ancillary care. Lastly, it would be helpful to say how demanding the duty to provide basic ancillary care should be. To answer this question, it is useful to say how demanding morality should be.17 As readers will know, there is a large literature on the topic of the demandingness of morality. We shall make a couple of points that should also have bearing on how demanding the duty to provide basic ancillary care should be. For one thing, it is generally thought that morality does not require an individual to sacrifice something of ‘substantial significance.’ We propose that what are of ‘substantial significance’ are the fundamental conditions for pursuing a good life, that is, the fundamental goods, capacities, and options necessary for pursuing the basic activities. Since these are conditions that human beings qua human beings need whatever else they qua individuals might need in order to pursue the basic activities, and since human beings have human rights to these fundamental conditions, we should not be required to sacrifice these fundamental conditions for the sake of others, at least in normal circumstances. In addition, it seems acceptable to require individuals to sacrifice what might be called surplus conditions, that is, goods, capacities, and resources that are not necessary, whether qua human beings or qua individuals, for pursuing the basic activities. To be as uncontroversial as possible, let us be generous with respect to our assumption about how one determines what are necessary for a human being qua individuals to pursue the basic activities; in particular, let us allow a significant amount of subjectivity in determining what an individual would need in order to pursue the basic activities. For instance, suppose that Bill Gates has $80 billion. Suppose that he needs (or he judges that he needs) $60 billion in order to pursue the basic activities. It seems acceptable to require him to sacrifice his surplus conditions—$20 billion. Finally, in a nonideal world, morality can be more demanding than what common sense morality supposes. In particular, in some cases, we may be required to sacrifice some of what we qua individuals need for pursuing a good life. Consider the following case: Hermit: Suppose that you are hermit living in a very remote region of the world, 500 miles away from civilization. You became a hermit because you wanted to leave the troubles of the world behind and lead a quiet, ascetic life. You have enough supplies for you and another person. One day you find an individual who is really badly injured outside your door. You can (a) take in and try to treat the person; (b) travel 500 miles to the next town and find someone to treat the person; (c) let the individual die. What does morality require of you? It seems that it requires that you not let the individual die; that is, morality requires that you choose option (a) or (b).

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This is so even if option (a) or (b) requires that you sacrifice some of what you qua an individual need for pursuing a good life. For instance, suppose that it may take quite some time to treat the individual, but helping the individual would require that you give up the quiet, ascetic life that you had sought. It seems that morality would require you to give up that life, at least temporarily. These points bear on how demanding the duty to provide basic ancillary care should be. They also help us to see how the human rights approach may resemble or differ from grounding ancillary care duties on the more familiar duty of rescue. For instance, the fact that the duty at issue is a duty to provide basic ancillary care should reduce the burdens connected with this duty. Researchers may always be in a position to benefit their subjects and those around them, but a duty of basic ancillary care will not be triggered unless these individuals are deprived of some fundamental conditions. Even when a resource would be crucial for an individual’s ability to lead a good life qua an individual, this duty would not require researchers to provide it. Indeed, an individual may need a yacht in order to pursue a good life qua an individual, but there would not be a duty to provide a yacht to this individual. In this respect, the restriction on the scope of the needs covered by the human rights approach is something it has in common with the duty of rescue, since the duty of rescue is usually understood to cover only especially urgent needs. Where there are many unmet needs for basic ancillary care, however, as will often be the case in low-resource countries, the burdens of addressing those needs could be considerable. As we have seen, our view is that this duty should not be so demanding that it requires one to sacrifice one’s fundamental conditions for pursuing a good life. Hence, if one would fall into destitution if one had to provide basic ancillary care for others, morality would permit one not to do so. Nor does it require sacrifices of “deep partiality,” since being able to pursue deep personal relationships and being able to determine one’s life course are also fundamental conditions for pursuing a good life. In this respect, our view is less demanding than Peter Singer’s strong principle of beneficence, according to which one can be required to “reduce oneself to very near the material circumstances of a Bengali refugee.”18 On our view, being required to reduce oneself to very near the material circumstances of a Bengali refugee would be too demanding because this would require one to sacrifice much of one’s fundamental conditions. At the same time, our view is more demanding than a common way of understanding the duty of rescue, according to which the slightest risk or inconvenience to one could mean that there is no duty to rescue, that is, there are only duties of easy rescue. On our view, ordinarily, we can be required to sacrifice our surplus conditions, and in certain cases, such as the Hermit case, we can also be required to sacrifice some of what we qua individuals need for pursuing a good life in order to fulfill our basic ancillary care duties. This kind of rescue is not ‘easy’ and imposes a risk of worsening one’s life qua an individual.19

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4. Is the Partial-Entrustment Model Necessary?

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Recall that Richardson has argued that there are ancillary care duties that can be justified only through the partial-entrustment model. To defend this claim, Richardson presents the following examples: The Massage Therapist and the Mole: From his years dealing with skin, the massage therapist has come to have a very good eye for dangerous moles.20 Variant I: While he is waiting in the corridor of the health club for his next client to get ready, another patron—as it happens another regular massage client, this day in the gym for another reason—comes out of the locker room on the way to the steam room, slips on the wet floor and almost falls, meanwhile letting go of the towel around his waist, allowing the massage therapist (who has glanced up involuntarily to make sure he is OK) clearly to see for the first time a dangerous-looking mole on his buttocks. Variant II: While, at the client’s request, working out a knot in the client’s glutes, the massage therapist notices a dangerous-looking mole on the client’s buttocks. Richardson argues that “there are some significant moral inhibitions against warning in Variant I that are not present in Variant II.”21 As Richardson explains, “Intuitively, it seems that the acceptance of a privacy waiver in Variant II makes the mole the massage therapist’s ‘business’ in a way that it is not in Variant I. In this way, the acceptance of privacy waivers can overcome a potential defeasor of the duty to warn.”22 In other words, Richardson is proposing that although the clients in both Variant I and Variant II are equally vulnerable, the massage therapist has a duty to warn only the client in Variant II but not the client in Variant I, precisely because the client in Variant II has waived his privacy rights whereas the client in Variant I has not. On this basis, Richardson believes that this is an example in which the vulnerabilities are identical in two cases and the ancillary care duties absent in one case because no intimacy has been created in that case. Richardson’s example is, however, underspecified in at least two ways. First, it is unclear that the dangerous-looking moles are really dangerous. To be sure, Richardson has specified that the massage therapist is experienced at detecting dangerous moles. But even so, there remains uncertainty regarding whether the moles in the two clients are in fact dangerous or not. After all, the massage therapist has not performed a biopsy on these moles. Given this uncertainty, there is an issue about whether a duty of basic ancillary care (such as a duty of rescue) would even be triggered in such a case. Second, it is unclear whether the massage therapist is the only person who could inform these two clients about their dangerous-looking moles. If the

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clients also see their general practitioners for regular checkups and the massage therapist knows this, then the duty to warn the clients may reside with the clients’ general practitioners rather than with the massage therapist. Let us consider a different example in which these confounding factors are removed: The Pathologist and Biopsy I: A professional pathologist has been examining biopsy tissue for cancerous cells for 20 years. The pathologist received a set of testicular biopsy from a patient and found that the cells are cancerous. The pathologist then noticed that this set of testicular biopsy was sent to her by mistake. It was intended to be sent to a different lab to be evaluated for fertility. Suppose further that if this set of testicular biopsy had been sent to the fertility lab, the technicians there would not have been able to tell that the cells are cancerous. In other words, the pathologist is the only person who could tell the patient that the cells are cancerous. The Pathologist and Biopsy II: A professional pathologist has been examining biopsy tissue for cancerous cells for 20 years. At another patient’s request, the pathologist evaluated a set of testicular biopsy and found the cells to be cancerous. In these two cases, there is no uncertainty that the cells from both patients are cancerous. Also, it has been stipulated in The Pathologist and Biopsy I that the pathologist is the only person who can tell that patient that the cells are cancerous. There is no dispute that the pathologist has a duty to warn the patient in The Pathologist and Biopsy II. It seems equally clear that the pathologist has a duty to warn the patient in The Pathologist and Biopsy I. It is true that this patient has not waived his privacy right vis-à-vis the pathologist, who received the set of biopsy by mistake. However, given that no one else could have warned the patient about these cancerous cells, it seems that the pathologist would have a duty to warn the patient. If this is right, this example suggests that a waiver of privacy rights is not necessary to generate the kind of ancillary care duties that Richardson has in mind. If so, this calls into question Richardson’s claim that there are ancillary care duties that only can be justified through the partial-entrustment model.

5. Conclusion There is a growing literature on the grounds for ancillary care duties, who has these duties, for what kinds of care, and to what extent one has such duties. In this chapter, we offered a human rights approach to these questions. In particular, we argued that human beings have human rights to basic ancillary care, and

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we proposed that this means that all able individuals in the appropriate circumstances have duties to provide such basic ancillary care. We showed how this human rights approach differs from an approach that grounds basic ancillary care duties on the general duty of rescue by pointing out that the human rights approach provides an account of how demanding basic ancillary care duties should be. We also argued against Richardson’s partial-entrustment model by questioning whether a waiver of privacy rights is necessary to generate the kind of ancillary care duties that he has in mind. An interesting implication of our human rights approach is that ancillary care duties do not belong solely to researchers and their sponsors. Since all able individuals in appropriate circumstances have duties to provide basic ancillary care, even people who are not researchers and sponsors of research also have these duties. Practically speaking, this means that all of us may be required to support funds, such as via taxation, that would enable researchers and their sponsors to discharge basic ancillary duties. The human rights approach offers a distinct and real alternative to existing models of what grounds ancillary care duties and is worthy of further investigation.

Notes 1. Leah Belsky and Henry S. Richardson, “Medical Researchers’ Ancillary Clinical Care Responsibilities,” BMJ 328, no. 7454 (2004): 1494–6; Neal Dickert and David Wendler, “Ancillary Care Obligations of Medical Researchers,” Journal of American Medical Association 302, no. 4 (2009): 424–8; Maria W. Merritt, “Health Researchers’ Ancillary Care Obligations in LowResource Settings: How Can We Tell What Is Morally Required?,” Kennedy Institute of Ethics Journal 21, no. 4 (2011): 311–47. 2. Samuel Scheffler, Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought (Oxford: Oxford University Press, 2001). 3. Peter Singer, “Famine, Affluence, and Morality.” Philosophy & Public Affairs 1 (1972): 229–243. 4. Belsky and Richardson, “Medical Researchers’ Ancillary Clinical Care Responsibilities.”; Dickert and Wendler, “Ancillary Care Obligations of Medical Researchers.” 5. Belsky and Richardson, “Medical Researchers’ Ancillary Clinical Care Responsibilities.” 6. Ibid. 7. Ibid. 8. Dickert and Wendler, “Ancillary Care Obligations of Medical Researchers.” 9. Merritt, “Health Researchers’ Ancillary Care Obligations in Low-Resource Settings: How Can We Tell What Is Morally Required?.” 10. Henry Richardson, Moral Entanglements: The Ancillary-Care Obligations of Medical Researchers (New York: Oxford University Press, 2012). 11. S. Matthew Liao, The Right to Be Loved (New York: Oxford University Press, 2015); S. Matthew Liao, “Human Rights as Fundamental Conditions for a Good Life,” in Philosophical Foundations of Human Rights, ed. Rowan Cruft, S. Matthew Liao, and Massimo Renzo (Oxford: Oxford University Press, 2015), 79–100. 12. Rights could also have noninstrumental importance in addition to having instrumental importance. 13. See, e.g., Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977); Robert Nozick, Anarchy, State and Utopia (Oxford: Blackwell, 1974). 14. Joel Feinberg, “The Nature and Value of Rights,” in Bioethics and Human Rights: A Reader for Health Professionals, ed. Elsie L. Bandman and Bertram Bandman (Boston: Little, Brown, 1970), 19–31.

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15. Participants in the 2006 Georgetown University Workshop on the Ancillary-Care Obligations of Medical Researchers Working in Developing Countries. 2008, “The Ancillary-Care Obligations of Medical Researchers Working in Developing Countries,” PLoS Medicine 5, no. 5 (2008): 709–13. 16. Maurice Cranston, What Are Human Rights? (London: Bodley Head, 1973), 69. 17. Here we restrict our discussion of how demanding morality should be to individuals. There may be a separate issue of how demanding morality should be to companies and corporations that sponsor the research, depending on whether one regards these sponsors as just extensions of individual agents, in which case our points in the main text should apply, or whether one thinks of them as independent entities with their own agency. Suppose that one thinks of them as the latter. Sponsors may have other legitimate reasons for not providing basic ancillary care to study subjects. For example, if providing basic ancillary care to subjects would prevent a sponsor from conducting research designed to improve our ability to meet other kinds of basic needs, it seems that such a company would have good reasons not to provide basic ancillary care to subjects in such a case. Indeed, providing lifetime antiretroviral therapy to subjects who seroconvert during an HIV prevention trial would address their basic ancillary-care needs, but the substantial investment of resources this would require would very likely do more good by being reinvested in further research or capacity building. Another reason not to provide basic ancillary care to subjects is if doing so would compromise the value of the results of a particular study, e.g., providing subjects with an ancillary medication could in some cases make it harder to determine the effects of the drug being evaluated in the study. 18. Singer, “Famine, Affluence, and Morality.” 19. It therefore also differs from Richard Miller’s Principle of Sympathy, which does not require one to aid if this “would impose a significant risk of worsening one’s life.” Richard Miller, “Beneficence, Duty, and Distance,” Philosophy and Public Affairs 32(2004): 357–83. 20. Richardson, Moral Entanglements. 21. Ibid. 22. Ibid.

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Suggested Further Readings (Part I)

Belsky, Leah and Richardson, Henry S. (2004) “The Ancillary-Care Responsibilities of Medical Researchers: An Ethical Framework for Thinking about the Clinical Care That Researchers Owe Their Subjects.” Hastings Center Report 34: 25–33. The first publication devoted to the issue; defines ancillary care for the medical-research context in a way that has become standard and puts forward the so-called partial-entrustment model of medical researchers’ ancillary-care obligations. Dickert, Neal and Wendler, David (2009) “Ancillary Care Obligations of Medical Researchers.” JAMA 302(4): 424–8. Argues that researchers have special ancillary-care obligations because of their relationships with participants as “whole persons,” not because of any particular kind of transaction with them. Liao, S. Matthew (2015) “Human Rights as Fundamental Conditions for a Good Life.” In Philosophical Foundations of Human Rights, edited by Rowan Cruft, S. Matthew Liao, and Massimo Renzo. Oxford: Oxford University Press, 79–100. Defends in greater detail why human beings have human rights to the fundamental conditions for pursuing a good life. Merritt, Maria W. (2011) “Health Researchers’ Ancillary Care Obligations in Low-Resource Settings How Can We Tell What Is Morally Required?,” Kennedy Institute of Ethics Journal 21(4): 311–47. Sets out criteria for assessing theories of ancillary-care obligations and compares an approach based on the duty of rescue to the partial-entrustment model. Olson, Nate W. (2016) “Medical Researchers’ Ancillary Care Obligations: The RelationshipBased Approach.” Bioethics 30, no. 5: 317–24: doi:10.1111/bioe.12212. Argues that grounding ancillary-care obligations in the meaningfulness of the professional relationship between researchers and their participants will provide an account more integrated and less limited in scope than the partial-entrustment model’s. Pratt, Bridget, Zion, Deborah, Lwin, Khin Maung, Cheah, Phaik Yeong, Nosten, Francois, and Loff, Bebe (2013) “Ancillary Care: From Theory to Practice in International Clinical Research.” Public Health Ethics 6: 154–69.

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Argues on the basis of Jennifer Prah Ruger’s health capability paradigm that the requirements of justice underwrite the provision of ancillary care in the context of much international clinical research. Richardson, Henry S. (2012) Moral Entanglements: The Ancillary-Care Obligations of Medical Researchers. Oxford: Oxford University Press. A book-length elaboration and defense of the partial-entrustment model of medical researchers’ ancillary-care obligations, with attention both to philosophical objections and to practical applications. Richardson, Henry S., and Cho, Mildred (2012) “Secondary Researchers’ Duties to Return Incidental Findings and Individual Research Results: A Partial-Entrustment Account.” Genetics in Medicine 14: 467–72. Extends the partial-entrustment model to the case of high-tech research involving banked samples, including genetic samples, arguing that the model applies despite the fact that many of those doing research with the sample have never had any direct relationship with the probands (sample donors). Wertheimer, Alan (2011) Rethinking the Ethics of Clinical Research: Widening the Lens. Oxford: Oxford University Press. Chapter 6 develops powerful philosophical objections to any view that, like the partialentrustment model, defends the existence of role-specific positive obligations.

Study Questions (Part I) 1. Which of the medical needs of a participant in a medical research study count as ancillary-care needs? a. Can these include needs arising from the disease or condition that is the focus of the research study? Why or why not? b. If a person is a participant in several research studies, will the needs of that person that count as ancillary-care needs necessarily be the same one in each study? Why or why not? c. Why is ancillary care standardly defined as “medical care that research participants need but that is not morally required by what’s involved in conducting a study safely and soundly”? 2. Are all ancillary-care obligations specially owed by medical researchers to participants in their trials? 3. Are some ancillary-care obligations specially owed by medical researchers to participants in their trials? 4. According to the partial-entrustment model of medical researchers’ ancillary-care obligations, what is the aspect of the informed-consent process that gives rise to potential special obligations on the part of medical researchers to provide ancillary care to participants in their studies? 5. According to the human rights approach to ancillary-care obligations, are there obligations to provide whatever a participant may need to live a good life qua an individual or to provide only what participants need to live good lives qua human beings?

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PART

II

Clinical Ethics

Are Psychopaths Morally Accountable?

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CHAPTER

3

Fine Cuts of Moral Agency

Dissociable Deficits in Psychopathy and Autism1 DANA KAY NELKIN

Abstract With a new understanding of the deficits of psychopaths, many have argued that psychopaths are not morally accountable for their actions because they seem to lack any capacity for fundamental moral understanding. And yet a lack of capacity for empathy, which has been seen as the root of this incapacity, has also been attributed to subjects with Autism Spectrum Disorder (ASD). But there is much anecdotal evidence that many with ASD have moral understanding and are rightly treated as morally accountable agents. Is it possible to explain how those diagnosed in the first group might lack, while those in the second group possess, moral accountability, given the commonly recognized shared incapacity for empathy? If so, how? In this chapter, I argue that there is an explanation that requires distinguishing between different kinds of empathy and that brings to bear a “fine cuts” approach at the neural and psychological levels of explanation.

1. Introduction Let us start with a puzzle. Psychopaths can behave in nasty ways and can at times seem to take particular pleasure in harming others. But they also have a number of psychological deficits, including diminished capacities for remorse and empathy, and there is significant reason to believe that they lack genuine knowledge of moral principles. While controversial, it is for these reasons that there has recently been considerable movement toward treating psychopaths 47

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as not morally accountable agents. This is consistent with treating them as posing dangers to others who need to be protected, of course. But the idea that psychopaths simply cannot understand or act on moral reasons, and so do not have the basic abilities necessary for being held morally accountable for their actions, is a powerful one.2 If they really lack the relevant capacities to act on moral reasons, they seem as undeserving of being held accountable as, say, wild animals who also lack such capacities. In both cases, we need to protect people from the dangers they pose, but in neither should we hold them accountable for their actions. (I understand “appropriately holding accountable” to entail the appropriateness of making moral demands, such as the demand to act differently than one does, and of responding with so-called reactive attitudes such as resentment, indignation, and gratitude.) The puzzle arises because psychopaths appear to share a key deficit with those who are diagnosed with Autism Spectrum Disorder. Lack of capacity for empathy has been thought characteristic of the disorder (although, as we will soon see, what empathy amounts to is a subtle matter). And yet while it is natural to point to mitigating circumstances in many cases in which the behavior of ASD subjects harms others, there is much anecdotal and other evidence that many such subjects have the general ability to respond to moral reasons and in some circumstances may be fully morally accountable (whether blameworthy or praiseworthy). If the same emotional deficit is at the heart of both conditions, then how is it that we can reasonably arrive at such different verdicts in the two cases concerning whether subjects are morally accountable? In other words, if we accept both premises (1) psychopaths are not morally accountable and (2) ASD subjects are morally accountable, then we need an explanation. Before we explore solutions to the puzzle, it is important to note a couple of preliminary points. First, while it is clear from the label “Autism Spectrum Disorder” that it refers to a spectral condition, the same is also true of psychopathy, at least as currently diagnosed.3 Thus, it might be that the generalizations made about either condition hold only for a smaller subset of cases with the condition and also that where the psychological deficits are scalar, it might be that the moral deficits are correspondingly scalar. Also important is the fact that both conditions are currently diagnosed by symptoms of various sorts. It might turn out that we come to divide into two groups those who are currently diagnosed as psychopaths. For example, there are so-called successful psychopaths who seem to differ from the unsuccessful ones on at least one important dimension (i.e., living a conventionally successful life), and it might be that the etiologies are in fact different. Were we to move eventually to etiology, we would differentiate the diagnoses. But for now, we will make the assumptions that we have only two distinct conditions: ASD and psychopathy. Second, it is also important to describe briefly the key features of each condition used in each diagnosis. The most widely used diagnostic tool for psychopathy is currently the Hare Psychopathy Checklist-Revised (henceforth,

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“Hare Checklist”), a two-factor model that takes into account personality traits and lifestyle traits (see the appendix to this chapter). Notably, it includes “lack of remorse or guilt” and “callousness/lack of empathy,” emotional deficits that have been thought to be at the root of the disorder.4 In addition to their performance on the Hare Checklist, there has been much discussion in the literature of psychopaths’ weak performance on a well-known test for moral cognition, Turiel’s moral/conventional test, that shows whether subjects distinguish moral transgressions from conventional ones (like using the wrong fork for a salad course). The test is commonly thought to measure moral knowledge.5 The Diagnostic and Statistical Manual–5 offers the following as diagnostic criteria for autism (see the appendix for details): persistent deficits in social communication and social interaction across multiple contexts and restricted repetitive patterns of behaviors, interests or activities, where these symptoms must be present in the early developmental period and cause clinically significant impairment in social, occupational, or other important areas of current functioning and are not better explained by intellectual disability or developmental delay. Third, having already picked out the concept of moral accountability by its connection to the appropriateness of moral demands and the reactive attitudes, it might be thought that we ought to go further and adopt a more specific set of necessary and sufficient conditions for moral accountability. I favor a conception according to which one is morally accountable when one has fair opportunities to act well, or avoid wrongdoing.6 In turn, this requires both that situational factors cooperate and that the agent possess important normative capacities, including the cognitive capacity to discern moral reasons and the volitional capacity to be motivated by such reasons. Not everyone accepts this account of moral accountability, however. Interestingly for our purposes, even competing accounts require what appear to be some of the same conditions, such as the capacity to form certain sorts of morally salient judgments, such as those that would constitute judgments of regard or disregard for another person’s agency.7 Thus, in what follows, I will, unless noted, not assume a particular account of moral accountability. With these preliminaries in mind, we can now turn to the puzzle itself. There are two main strategies for addressing it: Accept the two premises and go on to explain how and why this is, given that seemingly morally salient deficits are shared between the two groups, or reject one or both of the premises of the puzzle. In the next section, I canvass exemplars of each strategy. In the end, I tentatively conclude that accepting both premises is the most fruitful approach and that the evidence we currently have supports the existence of an important difference in moral capacity underlying the difference in moral

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accountability between ASD subjects and psychopaths. However, I do not think that previous attempts to explain why this is true have so far been fully successful. Thus, in the third section, drawing on insights from the suggestions canvassed, as well as from a general approach to psychopathy that I extend to ASD, I offer a tentative account that brings together what is, in my view, the best moral theory with a broad collection of the current empirical evidence. In the fourth section, I then show how the account and the approach might have further applications, and finally conclude by drawing some larger lessons about how best to approach the constellation of questions I’ve addressed here. In particular, as the title of this chapter suggests, I advocate a “fine cuts” approach, taking inspiration from Uta Frith and James Blair.8 They compare fine distinctions in amygdala function to distinct psychological mechanisms, which we might otherwise miss if we simply focus on general similarities among the outcomes across different conditions. Seeing differences in brain function, say, between ASD subjects and psychopaths can help clue us in to different mechanisms and, in turn, to different cognitive deficits, despite the superficial similarities in affect and empathy that drive the puzzle. This insight might, in turn, help us to distinguish moral deficits that we might otherwise miss or, in other words, make finer cuts relative to moral agency than we are used to doing. Interestingly, we can also work fruitfully in the opposite direction: distinguishing between different moral capacities can provide reason to seek different cognitive capacities and neural function that underlie them.

2. Two Approaches to the Puzzle Accepting the Premises and Rejecting Empathy as a Requirement for Moral Accountability In her rightly influential (2002) paper, “Autism, Empathy, and Moral Agency,” Jeanette Kennett argues for the bold conclusion that subjects with ASD show that empathy is not in fact a necessary condition for moral agency. I assume here that if one is not a moral agent, then one is not a morally accountable agent either. Thus, we can solve the puzzle by rejecting empathy as a requirement for moral accountability, but preserve (1) and (2), the premises that psychopaths are not morally accountable agents while at least some subjects with ASD are. The difference between them is due to something else missing in the case of the psychopath but intact in the ASD subject. Kennett’s case has several parts. First, appealing to various forms of evidence, she makes the case that subjects with ASD have strong moral concerns. As evidence, she cites their ability to distinguish moral and conventional harms on Turiel’s moral/conventional test, as well as a rich variety of anecdotal evidence, including testimony from very high-functioning subjects who are able to reflect on and articulate aspects of their own condition. For example, Jim

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Sinclair, who has ASD, reflects eloquently on his mental processes as he realized that someone was sobbing and grief-stricken. He realized that he should do something to relieve the other’s distress but could not figure out what to do. Eventually, he realized that this was a situation in which “someone needed to be touched” (Sinclair 1992, 300). While Sinclair had trouble figuring out what needed doing, there is excellent reason to believe he recognized an important moral reason for doing something. ASD subjects may be impaired in their ability to know that they are in a morally salient situation, but once they learn of the salient features (someone else’s distress, for example), then they take it as their end to respond in morally relevant ways. And yet they seem to have deficits in empathy, even as they themselves describe their situation (see Kennett 2002, 347–8). By themselves, these two claims present a powerful case that empathy—at least understood as Kennett does here, as a particular kind of emotional capacity—is not necessary for moral concern or for being able to act on moral reasons. But it would help to explain how this is possible, and Kennett appeals to the Kantian idea that subjects with ASD are in possession of rational predispositions and feelings in favor of acting for reasons. Because some reasons are moral, subjects with ASD can act for moral reasons and are thus capable of deep moral concerns. As Kennett writes, “They are capable, as psychopaths are not, of the subjective realization that other people’s interests are reason-giving in the same way as one’s own, though they might have great difficulty in discerning what those interests are” (2002, 354). It is in their capacity to act with a concern, even a feeling for, reasons, that underwrites ASD subjects’ moral agency—and, by extension, moral accountability. While I will ultimately agree with much of what Kennett says here, I want to focus on two important challenges to the view. The first is that Kennett does not explicitly distinguish between different definitions of “empathy.” To see how this affects the view, note that psychologists have come to distinguish between, on the one hand, cognitive empathy, which is sometimes equated with Theory of Mind and which involves perspective-taking capacities that enable one to know and predict what mental states others have, and, on the other hand, so-called emotional empathy, which consists in one person’s feeling the same feelings that another does and at the same time believing that the same feelings are felt by the other (see Blair 2008; Roskies 2011; Bird and Viding 2014). Having made the distinction, we can see that there is a great deal of evidence that psychopaths have cognitive empathy and may even be especially talented in this area given their skill at manipulating others, while subjects with ASD often have deficits in this area. At the same time, subjects with ASD often have capacities for emotional empathy (at least in the circumstances in which they are able to pick up correctly on cues from others), while psychopaths have deficits in this area (Blair 2008). These different deficits might then be thought to dissolve the puzzle by rejecting the overly general

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claim that both groups suffer from deficits in empathy. Instead, once we distinguish between different kinds of empathy, we can see that the two groups do not suffer from the same deficit.9,10 But while these empirical claims about the respective deficits of the two groups may very well be true, and while they might provide an initial framework for dissolving the puzzle, in my view they do not remove the sorts of fundamental questions underlying the puzzle. In particular, they do not explain how or why the different deficits can lead to different moral capacities and in turn to different verdicts about moral agency and moral accountability. Further, we can ask whether the relationship between the respective deficits and moral capacities is a contingent one, dependent on a particular human developmental path, or whether it is an intrinsic one, so that having the deficit in empathy directly entails a moral incapacity. Before exploring these further questions, consider a second worry about Kennett’s view. To ground the idea that ASD subjects can act for moral reasons, Kennett suggests that the fundamental concern that makes this possible is a concern to act for reasons. On a natural way to understand this suggestion, one’s motive in acting well in a given instance is ultimately a desire to act for reasons. The problem with this idea is that it is a substantive and contentious view that it is sufficient for acting for moral reasons that one simply desires to act in accord with some reasons. The worry here is that one might take the existence of rules to be reason-giving and so want very much to follow rules and do so, but not thereby act for particularly moral reasons. Importantly, there is anecdotal evidence that some ASD subjects stick with rules when they really ought to see that there are moral reasons for making exceptions. For example, there is the person with ASD whose allegiance to rules is so strong that he attacks the coat check attendant who mistakenly offers him the wrong coat, and there are others who fail to understand how there can be exceptions to rules even in circumstances that cry out for exceptions (see McGeer 2008 and Shoemaker 2015 for this point). Arguably, such persons act with a concern for reasons, but intuitively this seems insufficient for acting for moral reasons. But there is a second way of understanding the suggestion, and, on this view, the concern with acting for reasons simply makes possible a further contingent ability to find and adopt moral reasons. Indeed, in later work, as I read it, Kennett (2008) suggests something like this idea. One challenge for the second way of understanding the suggestion is that we are left with an incomplete story about how it is that ASD subjects develop their capacities for acting on moral reasons. Kennett offers a speculative example of how the story might continue. When offered a scenario in which a child smashes a piano, ASD children with deficits in the ability to pretend-play correctly identify the action as morally and not merely conventionally wrong. But, lacking empathy and unable to imagine any potential victim’s point of view, by hypothesis, they

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must find another route to this conclusion. Kennett suggests the possibility that what is going on in this case—and the case in which there is a direct victim—is that ASD subjects take the object in question (the piano, the person) as an object of value and find something wrong in harming or destroying it (2008, 263). This is an interesting idea, but even if this were the correct empirical story about how ASD subjects come to classify the act as morally wrong, it is at best controversial that an ASD subject acting for these reasons is acting for moral reasons. It is controversial, for example, whether destroying a piece of art is wrong in any way, if there is no possible victim. And it is a further step to claim that doing so would be morally wrong. (See Dworkin 1993, who distinguishes these two kinds of claims.) In sum, this way of accommodating ASD subjects’ supposed lack of empathy of a kind that involves the taking up of victims’ points of view, while still recognizing their ability to grasp moral reasons, is a neat solution. However, at a minimum, it comes at the cost of making a commitment to substantive and controversial moral theory here, which would need defending.11 Still, while the commitments to the particular moral theory might be indefensible in the end, the general idea that psychopaths lack, while ASD subjects possess, a distinct faculty is intriguing, and we will return to it in the next section as a complement to the main suggestion previously discussed. The idea is to identify a capacity that is unrelated (or at least not directly related) to the relevant sorts of empathy and that divides psychopaths from ASD subjects. For now, let us turn to a very different approach to the puzzle. The Rejection of One or More of the Puzzle’s Premises A key premise for generating the puzzle is (2) ASD subjects are morally accountable agents. But this claim might be doubted, and if we focus on cases like the man previously described whose understanding of moral rules seems shallow in an important way, then this seems like a solution worth pursuing. Of course, there are cases and then there are cases, and it might be that while some ASD subjects lack moral agency and accountability, this is because they have some sort of additional condition (which is common) that is responsible for such moral deficits. Citing only a few cases will not suffice here. So let us turn to a more developed argument for this conclusion. Beginning with the psychopath, David Shoemaker argues that the key to understanding psychopaths’ moral deficits lies in a particular kind of deficit of empathy. Further, while there may be some differences in the particular kinds of empathy that psychopaths and ASD subjects are capable of, in the end, both ASD subjects and psychopaths lack just the kind of empathy required for moral accountability. Let us begin with the psychopath. While Shoemaker points out that a popular test for moral understanding, Turiel’s moral/conventional test, is flawed in

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a number of ways, he takes it that we can salvage something from the results. One of the dimensions on which the test sorts responses to scenarios as being either moral violations or conventional transgressions is that of “authority (in)dependence.” For example, when asked whether, if a teacher says it is permissible to wear pajamas to school, it would be permissible, most adults and children say yes. In contrast, when asked whether, if a teacher says it is permissible to hit another child, it would be permissible, they say no. One interesting way in which psychopaths differ from nonpsychopaths on this sort of question is that they treat both kinds of cases as on a par when it comes to authorityindependence.12 Shoemaker takes it that insofar as psychopaths have a problem, it is in understanding what he calls “victim-authorizations,” which is the capacity that underlies moral accountability. He suggests that, at least in key cases, if we make sure to correctly identify the potential victim in a given scenario, what determines whether we have a moral transgression is whether the victim has authorized a given action. So in a case in which someone is sincere, informed, and rational, and “says it was ok” to hit her, or pull her hair, or smash her piano, or break her swing, then, according to Shoemaker, the behavior becomes permissible (2015, 155). In the event in which the person gives permission, she cannot make a legitimate complaint. In contrast, in the event in which the person does not give permission, she can make such a complaint, and it is appropriate for her to respond with anger (a response associated with holding someone accountable). In Shoemaker’s theory, the transgressor in this case has failed to show sufficient regard for, or in other words has failed to appropriately weigh, another’s specific normative perspective in his own. It is the capacity to do just this that is the condition (or at least a central one) for moral accountability in Shoemaker’s view. Psychopaths, lacking an understanding of victim-authorization, are not apt objects of moral accountability. The inability to understand victim-authorizations can be seen to have a source in an inability to engage in what Shoemaker calls “identifying empathy.” While psychopaths are quite good at cognitive empathy, or mere perspective taking, they seem incapable of taking up “the normative perspective of [another’s] mind’s eye as my own in certain crucial respects” (2015, 158). This sort of empathy is a matter of seeing the others’ ends under the “guise of the good,” as they themselves see their ends. Psychopaths thus have deficits in identifying empathy, which takes both cognitive and emotional forms. But identifying empathy goes well beyond the mere taking of another’s perspective in a way that allows one to predict and manipulate behavior, and psychopaths are lacking in this ability in both of its forms. While Shoemaker takes this to be a third kind of empathy, we might take it to combine cognitive empathy with something else altogether, namely valuing, or at least the seeing of another’s ends as valuable in the way that they would see them. Supplementing this analysis, Shoemaker points to the observation that many psychopaths seem impaired not only morally but prudentially, a point

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noted by Kennett as well. As Shoemaker puts it, psychopaths are evaluationally impaired generally, and this offers even more support to the idea that they are not able to engage in identifying empathy even of the cognitive sort, which in turn suggests that they cannot take up another’s evaluative point of view, which is itself essential for moral accountability. Now the question is whether this same pair of deficits—in identifying empathy and in a more general ability to see any projects, even their own, as worthy of pursuit—applies to subjects with ASD. Shoemaker takes it that the answer to the first question is “yes,” subjects with ASD are deficient in the capacity for identifying empathy. When it comes to the second question, Shoemaker points out that while ASD subjects seem not to have the more general deficit that psychopaths do, they have a more limited one with respect to seeing value in others’ projects, and this is sufficient to put them in the same boat as psychopaths when it comes to limitations in moral accountability. To support the lack of identifying empathy in ASD subjects, Shoemaker points to limitations in emotional empathy. Although subjects with ASD can express a wide range of emotions and they can be affected by others’ emotional responses, Shoemaker denies that this counts as genuine emotional empathy insofar as there is a tendency to remain unaffected by “the other person’s feelings as the feelings of another self with whom one is engaged” (Hobson et al. 2006 , 135). In turn, Shoemaker takes this deficit to rest on a more fundamental inability to take up the perspectives of others in any real way. For this reason, even if ASD subjects do not suffer from the more general deficit that psychopaths seem to suffer from and can see their own projects as worthy of pursuit, the inability to take up the perspectives of others in any real way is sufficient to deprive them of the capacity to have the kind of regard for others that is essential for moral accountability.13 While this is an intriguing solution to the puzzle and offers important insights, I believe that there are at least two main reasons to question it. The first simply acknowledges the anecdotal evidence that at least some subjects with ASD seem to be extremely articulate about their moral concerns, which go much deeper than the mere following of rules. As they describe it, they use rules to help them achieve those moral ends. For example, Sinclair describes himself after the episode with the grief-stricken person as developing “a separate translation code for every person” he meets (1992, 300).14 Second, and perhaps most importantly for our larger project of figuring out how to approach these deep and challenging questions, for Shoemaker’s argument to go through, it must presuppose a substantive but deeply controversial moral theory. Recall that in Shoemaker’s view, it seems that once an agent has given permission for another to do something that is prima facie harmful (as in the punching case), it is morally permissible to perform that act. But this is a narrow view of what makes something morally wrong. As long as we recognize

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the fallibility of agents to recognize and act on their own interests, this focus on agents’ perspectives wrongly leaves out the idea that a person’s interests could generate reasons and obligations even when the person herself doesn’t recognize them. In Shoemaker’s own case in which he has the intuition that it is permissible to punch another if she says so, I have the opposite intuition. It could very well be wrong to punch someone even if from her point of view it was appealing (or at least not on balance bad) and the permission was given sincerely. And the reason for this is that there are at least two kinds of moral considerations on the moral theory I favor, namely, those concerning justice or rights and those concerning beneficence or welfare. If the account of why someone is wholly lacking in moral accountability is exhausted by an inability to recognize one of the two kinds of reasons, then the account can at most be partial. So we have a kind of dilemma for Shoemaker’s reasoning: Either the account is incorrect in being too restrictive an account of morality, or it is incomplete.15 Interestingly, some accounts of the impairments of psychopaths emphasize only the second of the two kinds of reasons—an inability to see the actual interests of others (as opposed to the interests others take themselves to have, perhaps mistakenly) as reasons.16 Shoemaker’s view nicely brings out the fact that this characterization of the psychopaths’ moral failings is also, arguably, incomplete. It is not a settled matter whether or not all moral reasons reduce to welfare (as utilitarians believe), for example. And given Shoemaker’s own commitments, he at least comes close to representing the opposite reductionist view at some points, namely, that moral reasons fundamentally reduce to respect for others’ permissions or lack thereof to do what they see as in their interests. While I believe that there are good reasons to adopt a view that recognizes reasons of both kinds, rather than try to offer a defense of that claim here, I want to note the importance of making explicit one’s theoretical moral commitments in judging whether or not someone is capable of acting on moral reasons. In turn, this can have direct implications for what sorts of psychological capacities one takes to be necessary for moral agency and moral accountability. Taking stock, we have seen that while Shoemaker’s and Kennett’s views are fundamentally opposed to each other, it turns out that they both make very particular moral theoretical commitments about what we ought morally to do and why. On the one hand, Kennett’s view of moral reasons is so inclusive that it might include ASD subjects as capable of acting on moral reasons when it should not insofar as it counts impersonal reasons of a sort that could apply to pianos and persons equally as moral. On the other hand, Shoemaker’s view of moral reasons could turn out to be so restrictive that it might exclude ASD subjects (and psychopaths) from moral accountability when it should not to the extent that it restricts moral reasons to authority-dependent reasons of justice.

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At the same time, both Kennett and Shoemaker provide key insights. Before turning to these, it remains to consider the rejection of the first premise in the puzzle, namely, the claim (1) that psychopaths are not morally accountable. One might argue that Shoemaker was right to assimilate the two cases but that, contrary to Shoemaker’s further claim, both psychopaths and ASD subjects are morally accountable. And, indeed, some of the original reasons researchers have asserted that psychopaths are not morally accountable have proved to be undermined. Recall, for example, that one of the original reasons for thinking that psychopaths were not morally accountable was their poor performance on Turiel’s moral/conventional test. If they truly cannot sort moral and conventional transgressions correctly, then they appear to have a serious cognitive incapacity, one that calls into question whether they have the relevant moral concepts at all. But further refinements of the test in a forced-choice form show that diagnosed psychopaths actually can sort cases as well as others. Their original missorting seems to have been due to their overinclusion of cases in the moral category in an attempt to impress their testers with how moral they are.17 Thus, one of the main pillars of support for the premise about psychopaths is no longer standing. Another piece of evidence often cited in favor of psychopaths’ lack of moral accountability is their seeming inability to care about doing the right thing, which has been interpreted as evidence that they are motivationally incapacitated from doing the right thing. But as David Brink points out in his illuminating discussion of psychopaths, the fact that psychopaths do not act well or do not care enough about doing so does not entail that they cannot do so (2013, 37–38). They do not seem to have complete volitional impairment across the board, for example. And in fact they can often act in accordance with moral norms for stretches of time.18 If both kinds of evidence turn out to be flawed, then perhaps the solution to the puzzle is to simply reject the premise that psychopaths are not morally accountable. But while this particular evidence for the premise is problematic, we haven’t been shown that the premise is false. To see this, note that while it is surely right that psychopaths’ performance on the test cannot be used in the way it has been to support the premise that they are not morally accountable, mere correct sorting of the moral and conventional is not sufficient for supporting the contrary claim either. For example, someone might have learned all of the moral rules on Tuesdays and conventional rules on all the other days and knows that the moral ones are the Tuesday-learned ones. But this wouldn’t show the kind of genuine moral knowledge that seems to be required for moral accountability. And while it is also true that failure to conform to moral norms is not decisive evidence against the capacity to do so, it is also true that there is anecdotal evidence that psychopaths simply are not working with the same conceptual framework as the rest of us. For example,

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in a chilling but not atypical passage from Robert Hare’s Without Conscience, a psychopath describes himself as follows: Do I care about other people? That’s a tough one. But, yeah, I guess I really do . . . but I don’t let my feelings get in the way . . . I mean, I’m as warm and caring as the next guy, but let’s face it, everyone’s trying to screw you . . . Do I feel bad if I have to hurt someone? Yeah, sometimes. But mostly it’s like . . . uh . . . [laughs] . . . how did you feel the last time you squashed a bug?19 This passage is subject to interpretation, but at least one natural reaction is that there is a lack of understanding of what it is to be a ‘warm and caring’ guy, and a fortiori of what sorts of ends a warm and caring guy aims at. There is a glimmer of understanding of what his interlocutor would like to hear, but that is not the same thing. In sum, then, while it is true that some of the original reasons that researchers put forward for the premise that psychopaths are not morally accountable agents are problematic, there remains some evidence in favor of the premise. At the least, the case is not closed against the premise. Taking stock, then, it seems that attempts to reject each of the two premises are either unsuccessful or indecisive. In the next section, then, I will return to the project of seeking an explanation of how the two premises could both be true. If we can find a plausible explanation of this kind, it can provide mutual support to the premises themselves.

3. Finding a Plausible Substitute for Empathy as a Way of Grounding Differential Moral Capacities Let us begin with an insight that starts with the observation, made by Cleckley in the 1940s and discussed by others since, including Kennett and Shoemaker, that psychopaths tend to suffer not only from moral deficits but also from prudential ones. As Cleckley concludes, “In contrast with all the various diversities of viewpoint and degrees of conviction found among ordinary people, the so-called psychopath holds no real viewpoint at all and is free of any sincere conviction in what might be called either good or evil” (1976, 371, note).20 This idea is developed most recently in its most sophisticated form by Watson (2013). The basic idea, or the “linkage thesis,” as Watson puts it, is that the psychopath’s deficits in moral concern and prudential concern have a common explanation. As Watson writes: The thought that prudential and moral concerns are bound up with one another is not unfamiliar in philosophy, and we find in philosophical moral psychology, and current theory of agency in particular, a cluster of

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ideas that might help us capture what is amiss with psychopathic agents: that they are deficient in the capacity to care or to value; that they are wantons or lacking practical identities . . . [T]he common ground of the prudential and moral failures of psychopaths is the incapacity for a reflective normative orientation. I am primarily concerned here with practical normative orientation . . . by which I mean standards of action, intention and desire that entail the possibility of conducting oneself badly or incorrectly, and hence serve as the basis for self-criticism and correction. (2013, 275–76) The common explanation of the moral and prudential deficits, then, and the crucial missing piece for the psychopath, is the ability to reflect on one’s actions in a way that allows for judgments that one has acted badly or incorrectly. This is a very general deficit and is thus more general than a moral one. While Watson does not apply this idea to the puzzle concerning psychopaths and ASD subjects, we can turn to that task here. Subjects with ASD display a clear normative orientation in many cases and do not seem to suffer from the kind of inconsistency in practical reasoning that psychopaths do. For example, some seem to desire to avoid punishment and very much dislike it, and yet the desire does not seem to influence their behavior.21 Note that this way of distinguishing psychopaths from ASD subjects does not require any commitment to a particular moral theory. Far from appealing to an arguably overly narrow or overbroad account of moral reasons, this approach identifies the deficit in question as explicitly encompassing failures broader than that of the moral. But if it is appropriate to the cases, then we should welcome such an explanation. Some important questions remain, however.22 For one, it would be helpful as a further test of the hypothesis concerning the scope of psychopaths’ deficit in being able to take up a normative perspective to connect the failure to other, perhaps lower-level, psychological deficits (and, perhaps ultimately, to neural structure). As it is, empathy plays no prominent role in explaining the very general deficit hypothesized here. Is there a replacement to be found? Or could we see that empathy of one form or another plays some contingent, albeit robust, typical developmental role? Perhaps we should return to the apparently real differences between psychopaths and ASD subjects when it comes to different kinds of empathy for insight here after all. Importantly, there is perhaps an even more promising place to look for a developmental difference that can explain the differential capacity in taking up normative perspectives, namely, the capacity for a certain kind of learning. As Blair writes: There is evidence of a clear “fine cut” between psychopathy and autism with respect to stimulus-reinforcement association formation.

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Individuals with autism show no impairment of this function of the amygdala. (2008, 165; see also Blair 2015) Thus, there is a deficit in psychopaths that is not present in ASD subjects and that can be seen at both the neural and psychological levels. And this dovetails nicely with a claim made by Elliot in his elaboration of something like the common ground account of the psychopath’s deficit: This poor judgment seems to stem not so much from the psychopath’s inadequate conception of how to reach his ends, but from an inadequate conception of what his ends are. He seems neither to learn from his adverse experiences nor to plan for the future. (1992, 210) It might be that the psychopath’s impairment in stimulus–reinforcement association plays a role in a developmental explanation for the failure to acquire the capacity for taking a normative perspective. Not being able to mark features of situations as ‘bad’ for future use would seem to be potentially relevant in developing a normative perspective from which one can see the need for selfcorrection. The appeal to stimulus-reinforcement deficits in psychopaths helps explain the idea that psychopaths and ASD subjects differ in fundamental ways. The former, but not the latter, are impaired in their ability to take a normative perspective, and, for this very reason are impaired in the capacities needed for moral accountability.

4. Conclusion and Further Applications I began by canvassing two intriguing approaches to the puzzle, one that accepts the premises of the puzzle and explains how they can both be true by denying that empathy is necessary for moral accountability and one that rejects one or both premises of the puzzle. Though each contains important insights, each also faces challenges (e.g., the first does not distinguish between different kinds of empathy while at least one variant of the second undermines intuitive responses in at least some paradigm cases), and despite their fundamental differences, variants of each approach share a reliance on substantive and controversial implicit moral theories. Adopting a shared insight, namely, that psychopaths appear to be lacking an ability to value not only in moral contexts but also in prudential and other contexts, I suggested that this is the key to distinguishing the moral status of psychopaths and ASD subjects. Importantly, taking a fine cuts approach at the neural and psychological levels supports this difference between members of the two groups. And it succeeds without having to adopt a controversial and specific moral theory.

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At the same time, it is important to note that even if this approach to the puzzle allows us to avoid having to defend commitments to particular moral theories, such as whether moral reasons reduce to considerations of welfare or instead to consideration of rights or autonomy, it does not follow that there are no circumstances in which the fine cuts approach will force us to do just that. The discussion thus far shows that there are interesting questions about whether there might be actual (or even just hypothetical) creatures who can act for some kinds of, but not all kinds of, moral reasons. For example, the case of those with a behavioral variant of prefrontal dementia, which, as Agnieszka Jaworska argues, is characterized by a dissociable deficit in the ability to care, raises the question of whether those with such a diagnosis are incapacitated for acting on all moral reasons or just some. Are there even finer cuts to be made with respect to domains of moral accountability? Although answering these questions goes beyond the scope of the chapter, I hope to have shown how a fine cuts approach can help illuminate a search for answers that relies both on philosophical inquiry and an understanding of distinct psychological capacities.

5. Appendix The Hare Psychopathy Checklist–Revised Factor 1: Personality “Aggressive Narcissism” • • • • • • • •

Glibness/superficial charm Grandiose sense of self-worth Pathological lying Conning/manipulative Lack of remorse or guilt Shallow affect (genuine emotion is short-lived and egocentric) Callousness; lack of empathy Failure to accept responsibility for own actions

Factor 2: Case History “Socially Deviant Lifestyle” • • • • • • • • •

Need for stimulation/proneness to boredom Parasitic lifestyle Poor behavioral control Lack of realistic long-term goals Impulsivity Irresponsibility Juvenile delinquency Early behavior problems Revocation of conditional release

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Traits Not Correlated with Either Factor

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• Promiscuous sexual behavior • Many short-term (marital) relationships • Criminal versatility Acquired behavioral sociopathy/sociological conditioning (Item 21: a newly identified trait i.e., a person relying on sociological strategies and tricks to deceive) From the Guidelines to Interviewers in the Hare Checklist Screening Version Empathy This item describes individuals who have little affective bonding with others and are unable to appreciate the emotional consequences (positive or negative) of their actions. As a result, they may appear cold and callous, unable to experience strong emotions, and indifferent to the feelings of others. Alternatively, they may express their emotions, but these emotional expressions are shallow and labile. The verbal and nonverbal aspects of their emotion may appear inconsistent. (Hart, Cox, and Hare 1995) Autism Spectrum Disorder (DSM-V) Diagnostic Criteria A. Persistent deficits in social communication and social interaction across multiple contexts, as manifested by the following, currently or by history . . . 1. Deficits in social-emotional reciprocity . . . 2. Deficits in nonverbal communicative behaviors used for social interaction . . . 3. Deficits in developing, maintaining, and understanding relationships . . . B. Restricted repetitive patterns of behaviors, interests, or activities, as manifested by at least two of the following, currently or by history . . . C. Symptoms must be present in the early development period . . . D. Symptoms cause clinically significant impairment in social, occupational, or other important areas of current functioning . . . E. These disturbances are not better explained by intellectual disability . . . or global developmental delay . . .

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Notes 1. I am very grateful to S. Matthew Liao and Collin O’Neill for their incisive and constructive comments on a previous draft, as well as the opportunity to present an earlier version at a workshop associated with this volume at New York University in May 2015. Many thanks to them and to all of the workshop participants for very helpful discussion on that occasion. I am also indebted to Agnieszka Jaworska and Sam Rickless for their valuable comments, as well as to David Brink and David Shoemaker for the discussion of issues related to the chapter. 2. Among those who deny that psychopaths are morally accountable agents, there is some variety in how they draw the boundaries of the condition of psychopathy, as well as great variety in what additional claims they make about psychopaths. For example, some (e.g., Gary Watson 2011; David Shoemaker 2015) claim that, while psychopaths are not morally accountable, they can be morally responsible in other senses, such as the sense of its being appropriate to attribute to them moral faults such as cruelty and contempt. 3. The Hare Checklist remains the most widely used diagnostic tool. (See the appendix to this chapter.) 4. See, for example, James Blair, Derek Mitchell, and Katrina Blair (2005). 5. See Elliot Turiel (1983). Note that some discussions of psychopaths use a stipulative definition, such as that they are “morally blind” (see, for example, Talbert 2008). But for the purposes of this chapter, I take this to be a trait not settled by stipulation. 6. See Nelkin (2011) and Brink and Nelkin (2013) for further elaboration. 7. Compare Talbert (2008) and Shoemaker (2015). 8. The title of Blair’s paper, “Fine Cuts of Empathy and the Amygdala: Dissociable Deficits in Psychopathy and Autism,” inspired the title of this one. See Frith and Happé (1994), pp. 116–8, and Blair (2008), p. 157, for a nice overview of this approach. 9. In describing the deficit of the psychopath, Kennett initially characterizes empathy as follows: “this imaginative process of simulation with its resulting emotional contagion and reciprocal awareness” (2002, 345). To use the more precise language just introduced, this sounds like the deficit of emotional empathy. But later, in discussing the ASD subject, Kennett describes the deficit as one of the ability to take others’ perspectives or know what others are thinking and feeling (2002, 347), which sounds more like a deficit in cognitive empathy. So distinguishing explicitly between these two deficits suggests the alternative way of solving the puzzle, without agreeing, as Kennett does in her official statement, that both psychopaths and subjects with ASD have a similar empathy deficit. 10. Interestingly, neither cognitive nor emotional empathy matches up perfectly well with “empathy” as explicated by the instructional guidelines of the Hare Checklist, which is the most used diagnostic tool for psychopathy. While it mentions a deficit in “affective bonding” with others, it also immediately suggests that this explains “indifference” to the feelings of others, which goes well beyond emotional empathy as defined in the text. (See the appendix for the full description.) But emotional empathy and indifference could come apart in both directions. I might care very much about feeding the great numbers of poor children in the world without feeling what they are feeling; I might feel what they are feeling without caring about their feelings. 11. Importantly, the view makes another substantive commitment concerning moral theory, and that is that certain so-called sentimentalist views cannot be right. 12. Interestingly, on the original version of the test, psychopaths tend to treat both cases as moral wrongs, neither being dependent on the teacher’s authority. But see Aharoni et al. (2012) for a forced-choice version of the test on which psychopaths distinguish the two kinds of cases at nearly the same rate as nonpsychopaths. 13. Shoemaker offers an additional reason for the claim that ASD subjects are not morally accountable, and it is that many appear to be incapable of guilt (2015, 171). A full discussion

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15.

16. 17. 18. 19. 20. 21. 22.

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of the empirical claim, together with the implications for moral accountability, will have to await another occasion. Of course, it might be that ASD itself turns out to encompass several separable conditions as differentiated by either etiology or psychological impairments that differ not only in degree but in important kind. Whether Shoemaker adopts the narrower view of morality, or simply does not specify what additional aspects he would accept, is undetermined by the text as a whole. For example, Shoemaker qualifies his claim about the child who gives permission to hit her at one point, writing that “. . . we attribute a very important kind of authority to the potential victim, as it is her voice that (at least partially) determines what counts as a moral—or at least angergenerating—transgression in the first place” (2015, 155). But then we are left without the rest of the story as to what counts as moral, and it is left open whether there is a quite different capacity that is responsible for our being able to respond to additional moral reasons. See Talbert (2008), who defines “moral blindness” in this way, and also Watson (2011), Nelkin (2015). See note 12. See Brink (2013) for a detailed analysis of a whole body of evidence presented for the claim that the psychopath is not morally accountable. Hare (1993), p. 33. See also Murphy (1972), Elliott (1992), Duff (1977), Kennett (2008) and McGeer (2008). See, for example, the intriguing examples cited in Watson (2013). One question to be set aside is that it is not clear that all psychopaths really do have such severe prudential deficits. As mentioned at the outset, it might be that the most “successful” psychopaths manifest a different condition than “unsuccessful” ones, as measured by differences in etiology and by the making of correspondingly fine cuts to capacities. For present purposes, I focus on the group that seems to suffer from both moral and prudential impairments. If it were instead to turn out that there is a common etiology, and the prudential impairments are unrelated to the moral ones in the subset of subjects who possess both kinds, then we will have to go back to the drawing board.

References Aharoni, Eyal, Sinnott-Armstrong, Walter, and Kiehl, Kent A. (2012) “Can Psychopathic Offenders Discern Moral Wrongs? A New Look at the Moral/Conventional Distinction.” Journal of Abnormal Psychology 121: 484–97. American Psychiatric Association (2013) Diagnostic and Statistical Manual of Mental Disorders: DSM-5. Washington, DC: American Psychiatric Association. Bird, Geoffrey, and Viding, Essi (2014) “The Self to Other Model of Empathy: Providing a New Framework and Understanding Empathy Impairments in Psychopathy, Autism, and Alexithymia.” Neuroscience and Biobehavorial Reviews 47: 520–32. Blair, James (2008) “Fine Cuts of Empathy and the Amygdala: Dissociable Deficits in Psychopathy and Autism.” The Quarterly Journal of Experimental Psychology 61: 157–70. Blair, James (2015) “Psychopathic Traits from an RDoC Perspective.” Current Opinion in Neurobiology 30: 79–84. Blair, James, Mitchell, Derek, and Blair, Katrina (2005) The Psychopath: Emotion and the Brain. Malden: Blackwell Publishing. Brink, David O. (2013) “Responsibility, Incompetence, and Psychopathy.” The Lindley Lectures 53: 1–41 (University of Kansas). Brink, David O., and Nelkin, Dana Kay (2013) “Fairness and the Architecture of Responsibility.” Oxford Studies in Agency and Responsibility 1: 284–313. Cleckley, Hervey (1976) The Mask of Sanity, 5th edition. St. Louis, MO: C.V. Mosley.

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Duff, Antony (1977) “Psychopathy and Moral Understanding.” American Philosophical Quarterly 14: 189–200. Dworkin, Ronald (1993) Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom. New York: Knopf. Elliott, Carl (1992) “Diagnosing Blame: Responsibility and the Psychopath.” The Journal of Medicine and Philosophy 17: 199–214. Frith, Uta, and Happé, Francesca (1994) “Autism: Beyond ‘Theory of Mind’.” Cognition 50: 115–32. Hare, Robert (1993) Without Conscience: The Disturbing World of the Psychopath among Us. New York: Guilford Press. Hart, Steven D., Cox, David N., Hare, Robert (1995) The Hare Psychopathy Checklist: Screening Version. Toronto, ON: Multi-Health Systems. Hobson, Peter R., Chidambi, Gayathri, Lee, Anthony, Meyer, Jessica, Müller, U., Carpendale, J.I.M., Bibok, M., and Racine, T.P. (2006) “Foundations for Self-Awareness: An Exploration through Autism.” Monographs of the Society for Research in Child Development 71: 1–166. Jaworska, Agnieszka, “Frontotemporal Dementia and the Capacity to Care.” manuscript. Kennett, Jeanette (2002) “Autism, Empathy, and Moral Agency.” The Philosophical Quarterly 52: 340–57. Kennett, Jeanette (2008) “Reasons, Reverence, and Value.” In Moral Psychology Volume 3, The Neuroscience of Morality: Emotion, Brain Disorders, and Development, edited by Walter Sinnott-Armstrong, 259–64. Cambridge, MA: MIT Press. McGeer, Victoria (2008) “Varieties of Moral Agency: Lessons from Autism (and Psychopathology).” In Moral Psychology, Volume 3, The Neuroscience of Morality: Emotion, Brain Disorders, and Development, edited by Walter Sinnott-Armstrong, 227–58. Cambridge, MA: MIT Press. Murphy, Jeffrie G. (1972) “Moral Death: A Kantian Essay on Psychopathy.” Ethics 82, 284–98. Nelkin, Dana Kay (2011) Making Sense of Freedom and Responsibility. Oxford: Oxford University Press. Nelkin, Dana Kay (2015) “Psychopaths, Incorrigible Racists, and the Faces of Responsibility.” Ethics 125: 357–90. Roskies, Adina L. (2011) “A Puzzle about Empathy.” Emotion Review 3: 278–80. Shoemaker, David (2015) Responsibility from the Margins. Oxford: Oxford University Press. Sinclair, Jim (1992) “Bridging the Gaps: An Inside-Out View of Autism (Or, Do You Know What I Don’t Know?).” In High Functioning Individuals With Autism, edited by Eric Schopler and Gary B. Mesibov, 294–302. New York: Plenum. Talbert, Matthew (2008) “Blame and Responsiveness to Moral Reasons: Are Psychopaths Blameworthy?” Pacific Philosophical Quarterly 89: 516–35. Turiel, Elliot (1983) The Development of Social Knowledge. Cambridge: Cambridge University Press. Watson, Gary (2011) “The Trouble with Psychopaths.” In Reasons and Recognition: Essays on the Philosophy of T.M. Scanlon, edited by R.J. Wallace, R. Kumar, and S. Freeman, 307–31. Oxford: Oxford University Press. Watson, Gary (2013) “Psychopathic Agency and Prudential Deficits.” The Aristotelian Society, 113: 269–88.

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4

Holding Psychopaths Responsible and the Guise of the Good1

AGNIESZKA JAWORSKA

Abstract Should we hold psychopaths morally responsible? Traditionally, this question is taken to turn upon whether psychopaths have the capacity for moral understanding. But what if psychopaths lack this capacity? There is a lively debate about whether psychopaths would nevertheless be responsible. This debate seems to take it for granted that this issue could be settled without further empirical investigation into psychopaths’ deficits. Here I question this received orthodoxy. Central to my discussion is a distinction between two interpretations of “reasons for action.” On a weak interpretation, one’s reason for action is simply a consideration one takes as speaking in some way in favor of the action. On a strong interpretation, one’s reason for action isn’t merely a consideration that guides the action, but the consideration is also seen under the guise of the good. Whether psychopaths have the capacity to act for reasons in the strong sense seems to be a question that could be settled empirically. Indeed, there is some empirical evidence that suggests psychopaths lack this capacity. I argue that if psychopaths lack the capacity to act on reasons in this stronger sense, this will have a profound effect on the shape of the debate concerning their responsibility. * Much of the discussion of moral responsibility of psychopaths2 in the philosophical literature revolves around the question of the psychopaths’ capacity for moral understanding, that is, understanding that there are nonstrategic reasons to comply with moral demands.3 Insofar as empirical evidence is relevant to this discussion, it appears straightforward that this would be evidence 66

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about various aspects of moral understanding found present or missing in those meeting the criteria for psychopathy, such as the grasp of the difference between moral and conventional prohibitions. I will take it for granted here that if it turned out that the psychopaths have the capacity for moral understanding, this would settle the question of their moral responsibility: In most plausible views, we would then have to hold them responsible. But what if, as it seems to me more likely, psychopaths lack the capacity for moral understanding? Much of the literature seems to assume that the question of psychopaths’ responsibility would then be settled by a philosophical analysis, working out what the best theory of responsibility should say about the responsibility of those who lack the capacity for moral understanding. Of course, there is a lively debate, in fact a sharp disagreement, in the philosophical literature on whether lack of capacity for moral understanding excuses one from responsibility. Nonetheless, it appears that the issue could in principle be settled without further empirical investigation of the deficits of the psychopaths: what needs to be settled is the philosophical debate. I would like to question this received orthodoxy. Here I can sketch only very roughly the two main approaches to thinking about the responsibility of those who lack the capacity for moral understanding. On the view prominently advocated by Gary Watson, there are two senses, or “faces,” of deeming someone responsible (Watson 2004). In the weaker sense—Watson calls this the attributability sense—deeming someone responsible is, roughly, a matter of moral assessment; it involves appraising what the person is like as an agent. For example, we take someone to be morally responsible if he has exhibited a moral vice in his action. He has acted viciously, and we attribute a vice to him. I will return to Watson’s view of what is involved in attributability. For now, suffice it to say that, for Watson, a psychopath who makes it his aim to cause someone pain and frustration clearly exhibits the vice of cruelty. In making this assessment of him, we attribute a vicious act to him and, in this sense, deem him responsible. And we can legitimately make this assessment of the action and thus attribute the action to the psychopath, irrespective of whether the psychopath has the capacity to understand that there are strong reasons not to act this way, or perhaps even irrespective of whether the psychopath has the capacity to understand that he has committed a morally prohibited or vicious act. By contrast, holding someone responsible in the full sense—in what Watson calls the accountability sense—involves more than mere moral assessment or attribution of the action to the agent. When we hold people to account for their wrongdoing, we hold, among other things, that sanctioning or censuring them for a moral transgression would be warranted, at least prima facie. For Watson, this crucially involves making demands that the person recognize moral reasons, that is, the reasons not to do the wrongful act in question. Making such demands is senseless if the person lacks the capacity to

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recognize moral reasons. Since this demand is pointless, the lack of capacity for moral understanding directly implies the lack of responsibility understood as accountability. On the contrasting view, associated most prominently with T. M. Scanlon and elaborated by Angela Smith, Matthew Talbert, and others,4 there is only one sense of holding someone morally responsible. So long as we can attribute an act to the person, we can also hold them accountable. One underlying rationale for this ‘Scanlonian’ view flows from thinking about why we hold people morally accountable. Specifically, the argument goes something like this: • A key reason for holding someone morally and legally accountable for wrongful acts (that is, for censuring them) is to stand up against and protest a false or objectionable view of the moral standing of others that the perpetrator has expressed through her actions. • A person can therefore be appropriately held morally accountable if she has in fact expressed, through her action, a false or objectionable view of how others can be treated. • According to the Scanlonians, a grasp of the concept of moral standing or of moral reasons is not necessary in order to express such an objectionable view. So long as a person is capable of acting on reasons, her actions do express a view of what the appropriate reasons for action are in the circumstances at hand. An action that altogether ignores moral reasons expresses the objectionable view that moral considerations are irrelevant; that the interests of the victim can be disregarded in one’s action. A perpetrator can express such an objectionable view even if she is incapable of understanding moral reasons. • So, on this approach, we are entitled to hold psychopaths morally accountable so long as they are capable of acting on reasons. Under this condition their actions can express an objectionable view of reasons and we hold them morally accountable as a way of opposing or protesting against this objectionable view. Note that, on this Scanlonian view, in holding a person morally accountable we do not necessarily demand that the person recognize moral reasons, so holding responsible a person who lacks the capacity for moral understanding is not pointless. The point is rather to stand up against and protest a false view of the moral standing of the victim. If this Scanlonian view has merit, then to establish the moral accountability of psychopaths we need not worry whether they are capable of moral understanding. The question of their moral accountability rests on whether they are capable of acting on reasons. While this is an empirical issue, as far as I know, all parties to the philosophical debate accept it as uncontroversial that

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psychopaths are capable of acting on reasons. Some simply assert it. Watson, for example, states outright: “a [general] capacity to the effect that such and such is or is not a reason for action . . . psychopaths undoubtedly possess” (Watson 2011, 310). Others give examples of reasons for acting psychopaths presumably employ, such as, “I feel like a beer; this is a reason to go rob the 7–11” (Nelkin 2015, 366). Or take Talbert’s more sophisticated case of a malicious psychopath “seeing the prospect of another’s harm and suffering as a reason to act” (Talbert 2014, 278). However, I worry that this easy acceptance of the idea that psychopaths act on reasons conflates two rather different senses of the term “reason for action.” There is an important ambiguity in what it means to act ‘for a reason’ overlooked in the debate about holding psychopaths responsible. The term “reason for action” admits of a weaker and stronger interpretation. In the weaker sense, one’s reason for action is simply a consideration one takes as speaking in some way in favor of the action. One acts on a reason in this sense when one pursues the action in light of this consideration; the consideration guides the action; one does what one does because of this consideration. By contrast, in the more demanding sense, one’s reason for action is not merely a consideration that guides the action, but the consideration is also seen under the evaluative guise or the guise of the good. In acting on a reason in this sense, one evaluates the action as having a good-making feature. This importantly entails that in taking oneself to have a reason for action one believes that one is correct in doing so, that one is getting the matter right.5 Implicit here is the recognition of the possibility that one might not be correct after all—that in taking this consideration as a reason, one could be making a mistake. While a reason understood under the guise of the good is also a consideration seen as speaking in favor of the action, the reverse need not be the case: One can act on considerations that one takes to speak in favor of the action without seeing them under the guise of the good, that is, without the background notion that taking a consideration as a reason is something one can be correct or incorrect about.6 This distinction is easily overlooked partly because, in paradigmatic cases of action, rational agents act on reasons in the stronger sense. The distinction comes into clear view in nonparadigmatic cases of human action, for example, actions of a very young child who is not yet capable of grasping (even implicitly) evaluative concepts and so cannot see anything under the guise of the good. The child may nonetheless see and act on all kinds of considerations in favor of the action: The child sees the anticipation that her parents will chase her and pay attention to her as reasons to run away; she sees the fact that a toy is new as a reason to play with it; she sees the fact that her sister has a pink hat as a reason to get one too; and so on. But, given the young age of children already capable of acting out of such considerations, there is a presumption against the notion that these children are evaluating any of these considerations as good ones to act on, that is, against the notion that

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they see themselves as being correct when they guide their actions by these considerations. With this distinction in hand, let us return to the Scanlonian view of moral accountability. Recall that, for the Scanlonians, the decisive condition of moral accountability is that the person’s actions can express a view of what reasons for acting are appropriate in the circumstances at hand. These, I submit, must be reasons in the “guise of the good.” For if the person were merely capable of guiding her actions by certain considerations, without any implicit recognition that there is a correct and incorrect way of viewing the matter, then she wouldn’t be able to express any view of what reasons are appropriate; there would be no view of reasons here to oppose or protest. Of course, one could oppose the action (in the way that one may oppose the action of a toddler or even a lion), but one could not oppose her view of reasons because no view is expressed. In order to express a view, one must be in a position to declare its correctness, albeit perhaps only in some implicit fashion.7 But in taking considerations as reasons in merely the weaker sense, without the guise of the good, one, by hypothesis, is not committed in any way to the correctness of the reasons—one simply happens to act on them—so one cannot implicitly declare the correctness or appropriateness of the reasons. The child in our example who sees the anticipated chase by an exasperated parent as a reason to run away is not thereby expressing the view that this is an appropriate way to treat the parent. Not being an evaluator yet, the child simply does not yet have any such views to express.8 So, on the Scanlonian approach, the moral accountability of psychopaths must rest on whether they are capable of acting on reasons in the stronger, guise-of-the-good, sense. Note, however, that in accepting the seemingly uncontroversial assumption that psychopaths are capable of acting on reasons, all parties to the debate fail to attend to the guise of the good aspect. So they manage to establish only that psychopaths act on reasons in the weaker sense. The cited examples bear this out. The psychopath sees his desire for a beer as a reason to rob the 7–Eleven, but this doesn’t mean that he takes this reason to be appropriate or that he grasps that there is something here to be correct about. Similarly, the malicious psychopath sees the prospect of harming someone as a reason to act, but, for all we know, it couldn’t even occur to him to worry whether this way of seeing things is correct.9 The recent empirical literature has not, to my knowledge, attended to whether psychopaths are capable of seeing reasons under the guise of the good, but there is some indication that they may not be.10 Cleckley appears to hold such a view in the passage cited by Nelkin (Chapter 3 in this volume): “The so-called psychopath holds no real viewpoint at all and is free of any sincere conviction in what might be called either good or evil” (Cleckley 1976, 371, note). The Psychopathy Checklist (Chapter 3, Appendix) includes items such as superficiality, “proneness to boredom,” and “lack of realistic long-term

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goals,” which are suggestive of a lack of evaluative commitments. Lack of regret is not on the Checklist but is often mentioned in the case studies of psychopaths; insofar as it is one of the marks of psychopathy, it would be a better indicator of a deficit in evaluative capacity. Nonetheless, it is not at all clear how to go about investigating this matter empirically. If it turns out that psychopaths are capable of acting on reasons only in the weaker sense and have no understanding of the guise of the good at all, the Scanlonians would have to concede that it is inapt to hold the psychopaths morally accountable. According to the Scanlonians, the decisive condition of holding accountable is that the person’s actions express a view of what the appropriate reasons for acting are in the circumstances at hand. These are, as I have argued, reasons in the “guise of the good” sense. So if the psychopaths are incapable of understanding the guise of the good, they are not able to express the relevant view of reasons through their actions, and it would not make sense to hold them morally accountable. But what implications would the same finding—that psychopaths are capable of acting on reasons only in the weaker sense and have no understanding of the guise of the good—have for the rival Watsonian view of moral responsibility of psychopaths? Since Watson distinguishes two senses or faces of responsibility, we have to consider them in turn. According to Watson, accountability, the stronger sense of responsibility associated with censure and sanctions, involves making a demand that the person recognize moral reasons. The application of this view to the psychopath would be unaffected by the finding that psychopaths have no grasp of the guise of the good, since, regardless of this finding, psychopaths are already thought to lack the capacities relevant for Watsonian accountability in virtue of being incapable of grasping moral reasons: The demand to recognize moral reasons cannot be sensibly addressed to them. But what about Watson’s view of responsibility of psychopaths in the attributability sense? Here the finding that psychopaths are capable of acting on reasons only in the weaker sense and lack a grasp of the guise of the good might be relevant. In fact, the distinction between the two senses of acting on reasons brings out a seeming ambiguity in Watson’s understanding of attributability. In his earlier work on attributability, the “Two Faces of Responsibility” paper, Watson tied attributability to the expression of the agent’s true self and this in turn to the expression of the agent’s evaluative perspective. He wrote: Aretaic evaluations thus differ significantly from other forms of appraisal. If I dance clumsily, it is inescapably true of me that I was (on that occasion) a clumsy dancer. But if what I do flows from my values and ends, there is a stronger sense in which my activities are inescapably my own: I am committed to them. As declarations of my adopted ends, they express what I’m about, my identity as an agent. They can be evaluated

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in distinctive ways (not just as welcome or unwelcome) because they themselves are exercises of my evaluative capacities. (Watson 2004, 270–1; emphasis mine) Thus, on this approach to attributability, if the psychopath doesn’t see reasons under the guise of the good, he doesn’t really have his own identity as an agent, so he has none to express. We cannot legitimately see him as responsible even in the weak sense of attributing the actions to him.11 However, when Watson comes, in his later work, to explicitly apply his distinction between attributability and accountability to the case of psychopaths, he emphasizes different features of attributability. What’s at issue is whether the person exhibits virtue or vice in her action. Action that is in fact morally prohibited, such as hurting somebody, is, of course, not sufficient for this. The agent must have evinced disrespect for the victim. The story here is complex, but, at least in the paradigm case, Watson sees a psychopath who takes causing someone pain and frustration as her reason to act to be exhibiting the vice of cruelty. What’s now at issue for us is whether taking this consideration as a reason to act in the weaker sense is sufficient for vice. There is some indication in what Watson says that he would take the weaker sense of ‘reason’ to be sufficient. Watson emphasizes that the key feature of psychopaths’ malice is that they “set themselves directly against others’ aims as such . . . . Part of their intent in cruelty is to subordinate others’ agency to theirs, in a way that seeks the others’ recognition of their ability to do just this” (Watson 2011, 316). It seems perfectly possible to have this complex intent and to take the corresponding considerations as reasons without seeing them under the guise of the good. What this complex intent is supposed to show is that the psychopath is ‘into’ her own agency in domination and thereby takes ownership of her agency. This distinguishes her from a mere animal and allows for attributability. But the psychopath can be ‘into’ her own agency in domination and thereby take ownership of her agency, without seeing her reasons under the guise of the good. As Watson acknowledges, children are capable of this kind of cruelty, and I would add that even children who lack the evaluative capacities required for acting under the guise of the good are capable of this kind of cruelty. I am inclined to take the second approach to reflect Watson’s more settled view of attributability. After all, in a paper that addresses the nature of psychopathic agency apart from the concern with responsibility, “Psychopathic Agency and Prudential Deficits,” Watson argues that psychopaths’ lack of ability to evaluate would furnish a good explanation for the comorbidity of moral and prudential deficit characteristic of psychopathy (Watson 2013). So Watson seems to believe that psychopaths lack the ability to evaluate and thus also to see reasons under the guise of the good. Since he also thinks that psychopaths are responsible for their immoral actions in the attributability sense, the

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consistent view would be that attributability does not require seeing reasons under the guise of the good. Overall, then, where does my investigation leave the debate about the moral responsibility of psychopaths? Initially, you might have thought that the question turned on whether psychopaths have the capacity for moral understanding. However, I invited you to take seriously the Scanlonian challenge to the view that lack of moral understanding is sufficient for lack of responsibility. The way this challenge is usually presented, it appears that so long as the challenge is philosophically sound, it would render psychopaths morally responsible. By contrast, I argued that, when this challenge is properly understood, it hinges the moral responsibility of psychopaths on whether they are capable of seeing reasons under the guise of the good. And this is an unsettled empirical question. Suppose we now set out to answer it. How would this shape the debate? If it turns out that psychopaths are capable of acting on guise-of-the-good type of reasons, things are as the debate between the Watsonians and the Scanlonians assumes—although it currently assumes it based on misinterpreted evidence—and the stalemate in the debate remains. If, however, it turns out that psychopaths are only capable of acting on reasons in the weaker sense and have no understanding of the guise of the good at all, the philosophical debate about their responsibility in the accountability sense can be resolved: The Scanlonians can be brought around to the Watsonian position. Recall that, according to the Scanlonians, the decisive condition of accountability is that the person’s actions express a view of what the appropriate reasons for acting are in the circumstances at hand. These are, as I have argued, reasons in the guise-of-the-good sense. So if the psychopaths are not capable of understanding the guise of the good, they would not be able to express the relevant view of reasons through their actions, and they would not be appropriately held accountable. Thus both seeming contentious approaches to the accountability of psychopaths would give the same answer, and the question could be settled. What we have also discovered is that the Watsonians and the Scanlonians differ in their accounts of attributability and that, perhaps surprisingly, they give conflicting answers about whether psychopaths are responsible in the attributability sense, if it turns out that the psychopaths are not capable of seeing reasons under the guise of the good. Since the Scanlonians collapse accountability and attributability together, once they back off on the accountability of psychopaths, they would then also have to say that the psychopaths cannot be deemed responsible in the attributability sense. By contrast, the Watsonians might have the resources to say that actions are attributable to psychopaths even if they don’t see reasons under the guise of the good. Once you separate accountability from attributability, the conditions for attributability can be weak, and a mere explicit sense of one’s own agency in dominance over another may be sufficient.12

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Even if you don’t agree with these specific conclusions, I hope to have shown that the question of whether psychopaths are capable of understanding the guise of the good is very relevant to settling the responsibility of psychopaths and that it merits further investigation.

Notes 1. I am grateful to audiences at the panel on Responsibility in Law and Psychology: New Challenges for Criminal Justice? at the Princeton University Center for Human Values 25th Anniversary Conference and at the NYU Current Controversies in Bioethics Workshop, and especially to Victoria McGeer, Dana Nelkin, S. Matthew Liao, and David Beglin, for very helpful comments on earlier drafts. 2. For a discussion of the clinical characterization of psychopathy, see Dana Nelkin’s Chapter 3 in this volume. 3. Duff (1977) is a notable exception, but his insights have not been taken up in the most recent literature on the moral responsibility of the psychopath. 4. See Scanlon (1998, 2008), Smith (2008) and Talbert (2008, 2012, 2014). 5. Here ‘right’ is to be understood as a broad normative notion—evaluatively right but not anything as specific as morally, prudentially, or instrumentally right. Relatedly, the notion of correctness at issue here is not merely relative to some particular goal or standard—moral, prudential, aesthetic, instrumental, or other—where the goal or standard itself is not evaluated. Rather, the reason is taken to pick out a good-making feature that can contribute to making the action choiceworthy. 6. See, e.g., Velleman (2000) for a defense of this distinction. Dana Nelkin has pointed out to me that Gert seems to make roughly the same distinction—using, e.g., the terminology of “reason in the normative sense” and “motivating reason” (Gert, 2003, 423)—in his criticism of Scanlon’s (among others’) view of intentional action. However, Gert only briefly mentions (2003, 440) and does not consider in depth the implications of this distinction for questions of responsibility. Franklin-Hall and Jaworska (2017) make use of a related distinction, applied to the case of reasons for love. 7. This doesn’t entail that the person must be able to defend the correctness of the view; such a requirement would be too demanding and unnecessary. 8. Talbert may be read as explicitly having the weaker sense of reasons in mind, when he says, for example, that the relevant understanding of reason may well be “unsophisticated.” He also says that psychopaths have the concept of a reason and can explicitly apply this concept to their own actions and those of others. Given this, Talbert thinks that we can take the psychopath’s actions to reveal his “judgments” about what considerations do and do not count as reasons (Talbert 2008, 522). Taken together, these remarks can be read as a suggestion that if an agent goes beyond merely acting on reasons in the weaker sense to explicitly employ this concept of a reason, especially with respect to himself, this agent is then making judgments about reasons and thereby expresses views about reasons in the weaker sense that we can agree with or protest. However, as I see it, when one makes a judgment that one has such-and-such a reason in the weaker sense to do an action, this is merely a description of one’s motivation. This judgment can be incorrect if one’s motivation was in fact different, but this judgment cannot be incorrect because the motivation was wrong or inappropriate. The judgment was not about correctness or appropriateness of the motivation, so it cannot be criticized or protested on this score. (Thanks to Dana Nelkin for inviting me to attend to these aspects of Talbert’s view.) 9. Shoemaker may seem to attend to the distinction I have made between the two senses of reasons, but this impression is misleading. He says that psychopaths are capable of “judgment about ‘instead of ’ reasons, reasons in favor of doing something or having some attitude instead of some relevant contrary action or attitude” (2015, 176). These may initially

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sound like reasons in the weaker sense, especially in light of Shoemaker’s claim that a psychopath “lacks an evaluative stance” (2015, 161). But as his discussion progresses, it becomes clear that “instead of ” reasons, as Shoemaker conceives of them, are in the guise of the good, they are “reasons [one] is capable of seeing and judging as to their worth” (2015, 178). So Shoemaker’s distinction turns out to be different than mine: it is between “a general evaluative stance” (Shoemaker, 2015, 179), associated with one’s perspective as a temporally extended agent, and local judgments of worth and reasons, tied to one’s perspective at-atime (both involve the guise of the good). Shoemaker claims that psychopaths are capable of the latter (despite being incapable of the former), but it is unclear what he takes as evidence for this claim. He cites psychopaths’ reason-recognition and judgments in “mathematics, aesthetics, athletics, or . . . means–end reasoning” (2015, 176). But note that these are all reasons relative to a standard, and do not show the psychopath is able to judge anything to be unconditionally worth doing. Shoemaker also cites psychopaths’ anger at the frustration of their current desires as “a kind of response distinctive to a loss in value” (2015, 181). However, it seems to be a built-in feature of desire that one is frustrated when the desire is not satisfied (even an addict is frustrated when he doesn’t get the drug), so this kind of an emotional response is insufficient to establish the presence of a judgment of value or worth of the object. (Thanks to David Beglin for helping me sort out Shoemaker’s views.) 10. In her chapter in this volume, I read Dana Nelkin as proposing that the inability to understand the guise of the good is the distinctive deficit in psychopathy capable of explaining why we are inclined not to hold psychopaths morally accountable while we do think that patients with Autistic Spectrum Disorders can be held morally accountable at least in some contexts. 11. Note that there are other routes to the conclusion that the psychopath doesn’t merit attributability that appeal to the psychopath’s lacking or shallow moral understanding and do not require the stronger claim that the psychopath lacks the grasp of the guise of the good across the board. Nelkin (2015) argues that the attribution of both moral virtue and moral vice requires moral understanding by relying on the particular plausibility of this claim when it comes to virtue (e.g., we would not consider someone kind who simply enjoyed helping others and was incapable of seeing reason to help) and the presumed symmetry between virtue and vice in this regard. Levy (2014), although he does not use the language of attributability, can be interpreted as arguing that vice can be attributed to the psychopath only in a very attenuated sense because his actions cannot express full moral content. First, although the psychopath can learn what others consider to be morally impermissible, he is incapable of coming to believe that these actions are in fact impermissible. Accordingly, the psychopath’s violations of moral rules have at most the same (low) moral content as an ordinary person’s (e.g., an anthropologist’s) violations of moral rules of others that that person reasonably rejects. Second, since the psychopath doesn’t understand what it is to be a person, that is, an agent who sees his goals, plans, and projects as persisting over time, he cannot understand the kinds of harm that only persons can suffer and the kind of moral violation it is to harm a person. Accordingly, his actions cannot express the right kind of moral content to count as, e.g., disrespect for persons. 12. For rejections of this approach to attributability, though, see the views cited in note 11.

References Cleckley, H. (1976) The Mask of Sanity: An Attempt to Clarify Some Issues about the So-Called Psychopathic Personality, 5th edition. St. Louis, MO: C. V. Mosley. Duff, A. (1977) “Psychopathy and Moral Understanding.” American Philosophical Quarterly 14(3): 189–200. Franklin-Hall, A., and Jaworska, A. (2017) “Holding on to Reasons of the Heart: Cognitive Degeneration and the Capacity to Love.” In Love, Reason, and Morality, edited by E. Kroeker and K. Schaubroeck. Routledge Studies in Contemporary Philosophy series. Abingdon: Routledge, 20–38.

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Gert, J. (2003) “Brute Rationality.” Nous 37(3): 417–446. Levy, N. (2014) “Psychopaths and Blame: The Argument from Content.” Philosophical Psychology 27(3): 351–67. Nelkin, D. (2015) “Psychopaths, Incorrigible Racists, and the Faces of Responsibility.” Ethics 125(2): 357–90. Scanlon, T.M. (1998) What We Owe to Each Other. Cambridge, MA: Harvard University Press. Scanlon, T.M. (2008) Moral Dimensions: Permissibility, Meaning, and Blame. Cambridge: Cambridge University Press. Shoemaker, D. (2015) Responsibility from the Margins. Oxford: Oxford University Press. Smith, A. (2008) “Control, Responsibility, and Moral Assessment.” Philosophical Studies 138: 367–92. Talbert, M. (2008) “Blame and Responsiveness to Moral Reasons: Are Psychopaths Blameworthy?” Pacific Philosophical Quarterly 89: 516–535. Talbert, M. (2012) “Accountability, Aliens, and Psychopaths: A Reply to Shoemaker.” Ethics 122: 562–74. Talbert, M. (2014) “The Significance of Psychopathic Wrongdoing.” In Being Amoral: Psychopathy and Moral Capacity, edited by T. Schramme, 275–300. Cambridge, MA: MIT Press. Velleman, J.D. (2000) “The Guise of the Good.” Reprinted in The Possibility of Practical Reason, 99–122. Oxford: Oxford University Press. Watson, G. (2004) “The Two Faces of Responsibility.” Reprinted in Agency and Answerability: Selected Essays, Chapter 9, 260–88. Oxford: Oxford University Press. Watson, G. (2011) “The Trouble with Psychopaths.” In Reasons and Recognition: Essays on the Philosophy of T.M. Scanlon, 275–300, edited by R.J. Wallace, R. Kumar, and S. Freeman, Chapter 13, 307–31. Oxford: Oxford University Press. Watson, G. (2013) “Psychopathic Agency and Prudential Deficits.” Proceedings of the Aristotelian Society 113(3): 269–92.

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Suggested Further Readings (Part II)

Blair, R.J.R., Mitchell, D., and Blair, K. (2005) The Psychopath: Emotion and the Brain. Malden: Blackwell Publishing. The authors present support for the hypothesis that at the heart of psychopathy is a certain form of abnormal brain development that is in turn responsible for a deficit in the capacity for emotional learning. Kennett, J. (2002) “Autism, Empathy, and Moral Agency.” The Philosophical Quarterly 52: 340–57. Kennett argues that some autistic subjects show that it is possible to be a moral agent without empathy as she understands it. Levy, N. (2007) “The Responsibility of the Psychopath Revisited.” Philosophy, Psychiatry, and Psychology 14: 129–38. Levy argues that recent empirical work suggests psychopaths aren’t morally responsible agents because their actions cannot express the sort of ill will that grounds attributions of responsibility. He then defends this view from possible criticisms. Schramme, T., ed. (2014) Being Amoral: Psychopathy and Moral Capacity. Cambridge, MA: MIT Press. Schramme’s book is a collection of 12 essays on psychopathic amorality, including papers of both an empirical and philosophical bent. Shoemaker, D. (2011) “Attributability, Answerability, and Accountability: Toward a Wider Theory of Moral Responsibility.” Ethics 121(3): 602–32. Shoemaker argues that a comprehensive theory of moral responsibility must account for three distinct conceptions of moral responsibility—attributability, answerability, and accountability—and he criticizes Scanlonian views for failing to do this. Shoemaker, D. (2015) Responsibility from the Margins. Oxford: Oxford University Press. Shoemaker explores a number of cases of marginal agency, including autism, psychopathy, and intellectual disability. He concludes that it is possible to be responsible in some ways while not being responsible in others, depending on different aspects of the quality of one’s will. Talbert, M. (2012) “Moral Competence, Moral Blame, and Protest.” The Journal of Ethics 16: 89–109.

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Talbert offers a number of arguments for the view that agents can be appropriately blamed even if they lack the capacity to respond to the moral considerations that count against their action. And he ties this view to the idea that blame is often a way of protesting one’s victimization. Watson, G. (2013) “Psychopathic Agency and Prudential Deficits.” The Aristotelian Society 113: 269–88. Watson puts forward the hypothesis that what explains psychopaths’ moral deficits is a broader deficit in the ability to value at all, including one’s own interests.

Study Questions (Part II) 1. What is the puzzle posed by the psychopath and the ASD subject? 2. Set out two of the three ‘solutions’ to it that are presented in Nelkin’s article, and explain which one is more convincing. 3. Explain the weaker and stronger interpretations of “reasons for action.” Why is this distinction relevant to the Scanlonian position on the responsibility of psychopaths? 4. What is meant by attributability for Gary Watson? Accountability? If psychopaths can act for reasons only in the ‘weak’ sense, how does this affect their responsibility along these two dimensions of responsibility?

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PART

III

Reproductive Ethics Is There a Solution to the Nonidentity Problem?

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Dividing and Conquering the Nonidentity Problem1 MELINDA A. ROBERTS AND DAVID T. WASSERMAN

Abstract The nonidentity problem is accepted by many philosophers as demonstrating that choices can be morally wrong even though they are not bad for, and do not make things worse for, that is, harm, or disrespects, existing or future people. That conclusion has far-reaching implications for both procreative ethics and population ethics. The effort to show wrongdoing in the absence of any plausible existing or future victim can make us think that certain procreative choices we intuitively consider morally permissible are wrong. It can lead, that is, to intolerance and indeed to a form of perfectionism with respect to one’s future offspring. In this chapter, we challenge the conclusion that a choice can be wrong though it harms or disrespects no one. We argue that a couple who chooses to have a genetically burdened child has done nothing wrong, in a case where that child’s life is worth having and where the couple intends to do and does the best they can for that child (and for everyone else who does or will exist). At the same time, we agree that in other versions of the nonidentity problem—those based on large-scale policy choices, including environmental or energy choices—the choices described are clearly wrong. But we shall argue that in those cases harm to individuals can readily be identified. In this way, we aim here to ‘divide and conquer’ the nonidentity problem.

1. Introduction After careful deliberation, a couple declines to have their gametes or embryos screened for genetic or chromosomal abnormalities before conceiving and 81

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bearing a child. Their child is then born with one of the very disorders the screening technologies were meant to detect. But the child nonetheless has a life well worth living, and the parents remain happy with the choice they have made. Policy makers fail to protect critical natural resources. Their omission— that choice—allows their own generation and the next two or three generations to deplete resources at will for their own benefit. But that same choice consigns distant future generations to lives that, though well worth living, are burdened by the constant struggle to secure—among other things—clean air and water. Most moral philosophers consider both those choices morally wrong. But those same philosophers have a hard time explaining just why the choices are wrong. At first glance, it might seem that that an explanation would be easily grounded in the burden itself—the genetic or chromosomal disorder or the constant struggle to secure clean air and water. But it is here that the logic of what is called the nonidentity problem kicks in. Had the agents avoided the choice under scrutiny, the putative victims would never have existed—at least very probably would have never existed—at all. Had the couple undergone screening for the genetic or chromosomal disorder and selected an alternate embryo for implantation or chosen early abortion, they may well have gone on to produce a child unburdened by that disorder or any other. But the unburdened child would have been a different child, a child nonidentical to the child the couple in fact produces. Members of distant future generations perhaps would have had better lives had they not had to struggle for clean air and water. But the odds against those very same identical people coming into existence had things been otherwise than exactly as they were seem enormous. After all, any change in the actual sequence of acts and events ending in any particular person’s existence is going to make that person’s ever coming into existence at all, as Gregory Kavka put the point, highly precarious.2 How many of us, Derek Parfit asks, would have existed had “railways and motor cars” never been invented?3 Any policy other than depletion, it seems, would not have made anyone better off but rather would have produced a different future generation altogether—a generation person-for-person nonidentical to the distant future generation that will exist and suffer the effects of depletion. In both cases, in other words, the very people whose plight most concerns us also seem to owe their very existences to those choices. What is it, then, that makes those choices wrong? We seem left with wrongs without victims; wrongs without harms; wrongs without any bona fide complaint. Many philosophers think that to solve the nonidentity problem is to explain just how an act that makes things worse for no one can be morally wrong—how a ‘bad’ act, as Parfit puts it, can be ‘bad for’ no one at all.4 We take a different view here. The solution to the nonidentity problem we propose begins by noting that what is widely regarded as a single unified problem is not one problem that we cannot solve in any intuitive way but rather two distinct problems requiring

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two distinct solutions. We shall call the first sort of problem the genetic problem. It arises in cases in which the agent had, prior to conception, no ability whatsoever to make things better for the child than they in fact are. For the genetic problem, we acknowledge that the choice under scrutiny doesn’t make things worse for, or harm, the putative victim (or by assumption anyone else). But we will argue, contrary to most philosophers, that it is tenable to say that the choice under scrutiny in the genetic case is not wrong. We shall call the second sort of problem the expectational problem. It arises in cases in which the agent has some slight chance—some slight expectation—of making things better for at least some future person. Here we concede that the choice under scrutiny is wrong—indeed, we wholeheartedly endorse that position. But we will argue, again contrary to most philosophers, that, in that kind of case, future people really are made worse off, that is, harmed, by that choice. Thus we argue that the logic of the nonidentity problem, beguiling as it is, sometimes itself fails— and specifically fails when we fail to recognize how the point that the agent has some chance of making things better for particular people can play out in the context of some cases.5 Our two arguments work together. We might have felt forced to conclude in the genetic case that the choice under scrutiny is wrong had we believed that taking the contrary position would have required us to find the choice in the expectational case permissible as well. But since we independently show harm in the expectational case, which in turn grounds a conclusion of wrongdoing for that case, we do not have to guard against the risk of infection. We do not have to worry, that is, that our no-wrong-done conclusion in the genetic case—where we don’t find harm—will carry over to the expectational case, where we do find harm. In this way, we aim to divide and conquer the nonidentity problem. *** In the second section, we will outline the genetic problem. Specifically, we imagine a case where a couple declines to have their embryos screened and so produces a child with Down syndrome. We discuss a handful of accounts that try to explain how such a choice can be bad though bad for no one and argue that those accounts are implausible. In the third section, we will focus on the expectational problem and specifically on Parfit’s depletion case. We argue that a clear understanding of that case shows that the choice under scrutiny really does harm—make things worse for—future people. The remainder of that section is devoted to two objections to our account of the expectational problem. The first is based on what we call the existence lottery, a hypothetical suggested by Saul Smilansky’s discussion of an historical-injustice version of the expectational problem. The second objection, from Mark Greene, is based on the idea that the quantity of harm we

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show in the depletion case is too trivial to matter. We shall argue that both objections fail.

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2. The Genetic Problem Background In genetic cases, the burdened child really does seem to owe his or her very existence to the couple’s choice not to screen against the disorder. That existence is well worth having. Moreover, the burden that the child endures is not one agents had or have the ability to eliminate or mitigate. Finally, we note that a procreative choice can, of course, affect people—existing and future— beyond the person the choice brings into existence. But let’s add some details to describe a case in which the couple’s choice does not make things worse for, or harm, any of those people either, including any existing or any future person. Let’s suppose that the agents in that case are a well-off couple with no children who have had difficulty conceiving a child and have thus decided to undergo in vitro fertilization. Using the couple’s own gametes, specialists have produced a number of embryos suitable for transfer. The specialists, however, inform the couple that half of those embryos have the chromosomal disorder that produces Down syndrome, a condition associated with mild to moderate cognitive impairment, possible heart problems, and a life expectancy of less than 60 years. The remaining embryos are free of known abnormalities. The couple have spent time with family members and others who have a Down syndrome child and believe (correctly) that there is no reason a Down syndrome child cannot have a life well worth living. Moreover, they intend to provide a good life—they intend, indeed, to do the best they can—for any child they produce whether or not that child is born with Down syndrome. And, finally, they believe (again correctly) that they can allocate all necessary resources to that child for that purpose without compromising any obligations they may have toward anyone else. Accordingly, they decline to screen the embryos and instead ask the doctor to randomly select an embryo for implantation. The doctor complies, and the child the couple then produces—let’s say, Georgia—is born with Down syndrome. Just prior to their choice, the couple had only four options: to have no child at all, to have screened against abnormalities like Down syndrome, to have screened for Down syndrome or other abnormalities, or to have chosen, as they did, not to screen, with substantial odds of having a child with Down syndrome.6 They didn’t, as noted, have the further option of treating or mitigating Down syndrome in an embryo they selected. It’s not that such a correction is not logically or metaphysically possible but that it is not available or accessible to them in the current state of medical technology. They can

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refrain from producing Georgia altogether, but they cannot cure or alleviate her Down syndrome. It seems realistic to assume that a life with Down syndrome is well worth living. It may seem less realistic to assume that having a child with Down syndrome does not affect the well-being of others—the couple, their other existing or future children, or the wider community. There may be few real life cases where there is no effect on some third parties. But for this very reason, our stipulation that the couple’s choice has no such effects should be kept clearly in mind. Otherwise, we risk viewing the choice as wrong because of its effects on others. Our Solution Moral philosophers face the problem of explaining how it is that the choice in the genetic case can be wrong given that it does not make things worse for, or harm, Georgia herself or any existing or future person. On what grounds might one say that that choice is wrong? Our answer to this question—and our solution to the genetic problem—is straightforward. We do not think the choice is wrong. One critical consideration is roughly consequentialist in nature: The choice under scrutiny represents the best agents can do for each and every person, including Georgia, who does or ever will exist. The critical fact, in other words, is that no outcome was accessible to agents just prior to choice that was better for Georgia or any other existing or future person. Under these circumstances, we find it on the face of things difficult to think that the choice itself is wrong. Another critical consideration, for one author, is that there’s nothing in the attitude or intention underlying the couple’s choice to be faulted. The prospective parents not only expect but intend to provide a good life—indeed, the best they can—for any child, Down syndrome or not, that they bring into existence. There is no suggestion of disrespect in their willingness to have a child with Down syndrome, no basis for the claim that any of the child’s rights have been violated, and no grounds to think the child herself has otherwise been wronged.7 The prospective parents’ intentions, and choice of random selection, make it clear that they did not specifically seek a Down syndrome child, let alone an unusually burdened or dependent child. These considerations give, we think, strong support to the conclusion that no plausible deontic analysis would find their choice impermissible. Competing Accounts Our judgment in this hypothetical genetic case is supported by our failure to find any plausible attempt to explain why the couple’s choice is wrong. We examine some of the standard accounts here.

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Grounding the wrong in what is done to the burdened child. A wrong to the burdened child could be sought in a comparative harm, a noncomparative harm, a disrespectful attitude, or the imposition of unacceptable risk. None of these, however, are present in our genetic case. The first approach assesses harm by comparing how the individual is doing with how she was doing or would have done otherwise. But Georgia had no well-being before she was created, and she is doing better, if a comparison can be made, than she would have been doing had she never existed at all. The second approach relies on the fact that Georgia’s life will be burdened in certain ways. There are surely negatives for Georgia in being born with Down syndrome, aspects of that disorder that count against Georgia’s own wellbeing, without making things worse for her than nonexistence. Some philosophers who take this approach argue that these negatives themselves constitute noncomparative harms.8 Some focus directly on the child’s specific burdens, including, for example, her inability to perform certain typical human functions. The argument is that the negatives that come with the burdened existence ground the claim that the choice is wrong. The difficulty with this approach is that it proves too much. Simply specifying a particular negative, even a substantial negative, will never on its own show wrongdoing. We are all burdened—for example—by mortality. And we don’t think that means that our parents’ choice to bring us into existence was wrong.9 Third, the burdened child might be held to be wronged by her parent’s disrespectful reasons for selection. As noted earlier, we did not discuss the option of selecting for Down syndrome in order to avoid the issue of what reasons were disrespectful. The couple in our case did not select a child with Down syndrome; they were simply willing to have and unwilling to select against such a child. There is no hint of disrespect in their reasons. Finally, it might be argued that even if most burdened children have lives well worth living, they face unacceptably high odds of ending up with one that is not—a substantially higher risk than unburdened children. We agree that risk imposition can be a wrong, even if the risk is never realized or appreciated by the prospective victim. But we see no reason to believe that the parents in our case or similar cases impose an unacceptable risk on their child of a life not worth living. The assumption that burdened children face a substantially greater risk of such a life than unburdened children confuses the probability of a life worth living with the extent to which a life exceeds the minimum. It may be that aiming for a life modestly above the minimum is more likely to result in a life worth living than aiming for a life far above it, with substantial risks of falling below it. More concretely, we find no evidence or argument that a child with Down syndrome born in the circumstances we describe faces a substantially greater risk of a life not worth living than a child without Down syndrome.

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The upshot? We can’t plausibly point to the situation of Georgia herself or, by hypothesis, to the situation of any existing or future person to ground the result that the choice is wrong. Grounding the wrong in what is done to the genetically unburdened child. Perhaps we can be more creative. Perhaps there are no obvious victims of the choice to produce the burdened child. But are there any nonobvious victims? If the choice is made to produce the genetically burdened child, then (by supposition) the other child, the nonidentical child, the genetically unburdened child, will never exist. The burdened child’s existence is well worth having, but the unburdened child’s existence would have been still better. Choosing, then, to bring the burdened child into existence in effect deprives the unburdened child of that better existence. Can we, accordingly, find a wrong to the unburdened child in the choice to produce the burdened one? We maintain that the answer is no. Arguably, not bringing the unburdened child into existence makes things worse for that child. Just as it is better for us that we exist than that we not and thus would have been worse for us had we never existed at all, so it is better for the unburdened child to exist than not and hence worse for that child never to exist. Of course, if these two claims hold for the genetically unburdened child, they hold for the genetically burdened child as well. That means that, just as the choice to produce the burdened child will create a morally significant victim in the form of the unburdened child, so will the choice to produce the unburdened child in the form of the burdened child. But by hypothesis, the unburdened child’s existence is better for him than the burdened child’s existence is for her. Thus, if harm is a matter of making things worse for a person, it seems to follow that the harm done to the unburdened child if he is left out of existence would be greater than the harm done to the burdened child if she is left out of existence.10 However the distinction is articulated, it might appear to justify the claim that the one choice is permissible, the other wrong. Does, then, the choice the agents made—the choice that results in Georgia— wrong the potentially better off child not brought into existence? We think not. Although we believe that both children have moral standing, we also believe that some ways of making things worse for a person have moral significance while others don’t. We don’t think the harm in leaving an individual out of existence—however happy he would have been—has any moral significance. The distinction we make in this case seems closely related to what is called the procreative asymmetry. According to the asymmetry, it is wrong, other things equal, to bring a miserable child, a child with a life less than worth living, into existence but perfectly permissible, other things equal, not to bring a happy child into existence. We can, moreover, easily articulate the principle we see as underlying this asymmetry. When we make things worse for an existing or future person or

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bring a miserable person into existence, we harm someone who does or will exist in the very possible world in which that person is made worse off. Bringing a child into a life less than worth having counts morally; leaving children out of existence from the start doesn’t.11 The upshot for the genetic problem? We can recognize a victim under either choice. But any loss or harm associated with never existing has no moral significance whatsoever. We are thus left with no grounds on which to claim that the choice to produce the burdened child is wrong. Grounding the wrong in what has been done to the universe. A second nonobvious candidate for victimhood is the universe itself. It can be argued that the choice to produce the burdened child is wrong in making the universe worse than the choice of the unburdened child. Theorists who take this position differ on just how the choice to produce the burdened child makes things morally worse. They may take the critical fact to be that this choice gives rise to a future that contains less well-being in the aggregate. Or they may instead take the critical fact to be that the choice gives rise to a future in which human flourishing or excellence is reduced. The aggregative view faces familiar difficulties in the form of the repugnant conclusion—that it is morally better to produce a vast number of lives only barely worth living than to produce a very large number of lives well worth living.12 But so does the flourishing view in its typical pluralistic version, according to which human flourishing and the maximization of aggregate well-being are two of many values that together determine a hierarchy of alternate possible futures, ranked by their all-things-considered moral betterness. Add enough aggregate well-being in the form of many, many lives, each barely worth living, and the loss of human flourishing ceases to matter. The repugnant conclusion can be avoided by stipulating that the duty to pick the person with the greater expected well-being applies only in samenumber choices, when one makes a choice that will not affect the number of people in the universe. Apart from the ad hoc character of the stipulation, the restricted duty seems perverse in the context of procreative decisions. Why should the quintessentially personal choice of whom to bring into one’s family be governed by this impersonal standard? *** In our view, the reason that it is so hard to find a wrong in the genetic case is that the claim of wrongdoing in that case is false. The choice to produce the burdened child is the best agents can do on behalf of that child and as good as any alternative for any other existing and future person. It’s also a choice made with acceptable attitudes and intentions toward all potentially affected parties. Few real-world cases may have the features we have built into the genetic case. But when things do come together in this particular way, it’s hard for us to see that the choice isn’t perfectly permissible.

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Conclusion We have explained why we think it can be perfectly acceptable to have a burdened child, arguing that none of the most plausible attempts of find a wrong in that choice are successful. What we have not done so far, however, is discuss perhaps the most serious objection to choosing the burdened child. We turn to that objection now.

3. The Expectational Problem and an Argument for Harm Background The genetic problem does not exhaust the variety of nonidentity problems we face. As noted earlier, there also exists the expectational form of the nonidentity problem. Instances of the expectational problem include Parfit’s depletion and risky policy examples, Kavka’s slave child and pleasure pill examples, and examples involving historical injustices, including American slavery and the Holocaust.13 In each case, the putative victim appears to owe his or her worthwhile existence to a choice that is clearly wrong. What different versions of the expectational problem have in common is that they rely on a mistaken bit of probabilistic reasoning to establish their ‘no-harm-done’ result. They all turn on the claim not that agents couldn’t have done better for a particular person but rather that, given the probabilities involved, agents couldn’t have expected to have done better for that person, had they not done as they did. We don’t contest that point. But we do contest how it’s used to show no-harm-done in the expectational cases. The Depletion Problem Let’s go back to Parfit’s depletion example. In that case, agents, at a certain time, together make the choice to deplete rather than to conserve certain resources. Their choice makes the people who live at that time and over the next two or three generations at least as well off as they would have been under conservation. However, after a few generations, conditions of scarcity set in. At that point, the lives of many of those people, though worth living, become burdened by the constant struggle to secure—for example—clean air and water. The issue, then, for us is whether the choice of depletion in fact makes things worse for, that is, harms, members of those distant future generations. To simplify the discussion, let’s focus on one such distant future person—say, Harry. The argument meant to show no-harm-done, then, is as follows. The probability of Harry’s ever coming into existence at all had things been otherwise than exactly as they were is very low. After all, had things been other than exactly as they were, the probability that the very same gametes that in fact combined to produce Harry under depletion would also combine to produce

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Harry under conservation is minute. Now, we can’t be certain Harry never would have existed under conservation; he might have existed under conservation. But the expectation, given the probabilities, is that conservation would not have made things better for Harry but rather, by leaving him out of existence altogether, would have, if anything, made things worse. His life, under depletion, may not be ideal. But at least he has something. It is this logic that has convinced most moral philosophers that the choice of depletion does not harm Harry. It’s convinced most philosophers that Harry indeed “owes his very existence” to depletion. Yet the choice itself seems clearly wrong.14 Thus the problem: a case that seems to show that a bad act can, after all, be bad for no one. Beguiling as it is, however, the argument that depletion does not make things worse for Harry—that it doesn’t harm him and isn’t bad for him—is mistaken. The argument moves to the result that depletion doesn’t make Harry worse off than conservation does after focusing exclusively on Harry’s very low probability of coming into existence under conservation. We concede that point. But to obtain the result that depletion isn’t worse for Harry than conservation is—that comparative result—it’s not enough to establish that the probability of Harry’s coming into existence given conservation is very low. One must also establish that the probability of Harry’s coming into existence would have been greater under depletion. But that latter point can’t be established. At least based on information available to agents just prior to choice, the probability of Harry’s coming into existence is surely very low, indeed equally low, under both choices. The only obvious way to secure the result that Harry is more likely to come into existence under depletion is to take the position that the relevant probabilities are to be determined as of the moment just prior to choice for conservation and as of the moment just after Harry exists for depletion. But such a hybrid procedure would be illegitimate. This is a point that has been overlooked by many philosophers, and so we should examine it closely here. What we are really just noting is that it’s a mistake to think depletion somehow secures or makes more likely or even moves the future vaguely in the direction of Harry’s coming into existence. There is no unseen causal force lurking in depletion—or conservation—that is somehow going to draw the particular person Harry into existence. Rather, Harry’s coming into existence will depend on precisely how depletion ends up being implemented—and precisely how the agents are going to implement their choice is not something they can predict in advance of choice or even well into implementation. There are many, many ways, perhaps an infinite number of ways, in which conservation might be implemented, very few of which will produce Harry. But there are also many, many ways, perhaps an infinite number of ways, in which depletion might be implemented, very few of which will produce Harry. At the same time, if conservation is chosen and Harry does happen to exist, Harry will be better off than he in fact is under depletion. Hence—evaluated not on the basis of how the future actually unfolds but on

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the basis of how it is expected to unfold just prior to choice—we conclude that depletion is after all worse for Harry than conservation is.15 We can put this point in terms of expected value. Let’s say that the actual value to Harry of the outcome in which depletion is chosen and he exists—the outcome, that is, that by hypothesis in fact obtains—is w, and that the actual value to Harry of an outcome in which conservation is chosen and he exists is 25% higher, that is, 1.25w. Let’s say as well that the actual value to Harry of any outcome in which one or the other choice is made and Harry does not exist is 0.16 We concede that, based on all the information available to agents just prior to choice, the probability of Harry’s coming into existence, given the choice of conservation, is very low. And we can express that probability as 1 × 10−r, where r itself is a very large number. But, based on all the information available to agents just prior to choice, the probability of Harry’s coming into existence, given the choice of depletion, is very low as well. It’s about what it is under conservation (if not a bit lower, given the existential risks that come with conditions of scarcity). By the same token, the probability of Harry’s never existing at all, given conservation, is very high; it’s just as high, given depletion; and we can express that very high probability for both choices as 1 – (1 × 10−r). We are now in a position to say that the expected value of conservation for Harry—evaluated as of the critical time, that is, the time just prior to choice—is (1 ×10−r) × 1.25w + [1 – (1 × 10−r)] × 0. And the expected value of depletion for Harry is (1 × 10−r) × w + [1 – (1 × 10−r)] × 0. Now, we can’t complete the calculation without having a value for r. But just note that if r is even 2, the comparison is going to come out in favor of conservation. That is, the expected value of depletion for Harry will be less than the expected value of conservation for Harry.17 It might be argued that the expected value calculation cannot complete our analysis of when one choice is worse for a given person than another. It might be argued that how things actually turn out is important as well. We agree. But in any actual value calculation, we shall still find that depletion is worse for Harry than conservation is. After all, the claim of the depletion problem is not that an outcome in which conservation is chosen and Harry exists is impossible or inaccessible to agents. The claim is just that it’s highly improbable that he will exist under conservation. Hence on this measure as well, depletion is worse for Harry than conservation is. The Existence Lottery Objection A lottery example can be used to articulate Saul Smilansky’s objection to our account of the depletion problem.18 The existence lottery. Congratulations! You have won the existence lottery! You exist; you are a “black swan.”19 Against (almost) all odds, the world unfolded over 14 billion years give or take in such a way that you

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were conceived, gestated and born and that you now (we shall assume) thrive in place of the many other people who might easily have been conceived, gestated and born in your place. But you are now informed that the existence lottery you have won involved malfeasance. The malfeasance has caused your existence to be limited in some way (though, to be sure, to remain well worth having!). You are informed further that the only way to rectify the malfeasance is to rerun the lottery, this time fair and square. In principle, you favor rectification. But you realize that the malfeasance itself took place many generations before you were conceived. And rerunning the existence lottery, whether from its inception 14 billion years ago or from the moment just prior to the malfeasance itself, means that you would face the very great chance, just as you did the first time around, of losing the lottery—of, that is, never existing at all. Let’s now ask the question what it would take for you to be perfectly content to have—for you to feel (to use Smilansky’s expression) no regret in having—the lottery rerun.20 The answer is it would take a lot. Suppose that your overall well-being would be increased by 25% if both the lottery were rerun fair and square and you again won. Would you then be happy for the powers that be to decide to travel backward in time and rerun the lottery? Would you feel no regret at having to face the abyss of having never existed all over again? Here, we agree with Smilansky. Of course, you would feel regret! Steely eyed missile man that you are, you would have immediately evaluated the situation as follows. Agents have two choices. They can (A1) let the malfeasance stand and not rerun the lottery, leaving you to thrive for the rest of your natural life, or (A2) invalidate and rerun the lottery, this time without any malfeasance, leaving you with a near zero probability of ever existing at all. You realize that the evaluation will need to be in terms of expected, not actual, value. You realize, that is, that you don’t have enough information to perform an actual value evaluation of A2 itself since it’s just unknown whether the lottery will (against the odds) happen to be implemented in such a way that you, again, win. But you do understand the very great odds against your ever existing at all on the condition that the lottery is rerun. And we’ve stipulated by just how much better your life will go if the lottery is indeed rerun and you indeed win: 25%. Those facts give you all you need to do a perfectly useful expected value calculation, just the sort of calculation we did earlier in our discussion of the depletion case with one critical exception. You, in this new case, at the time just prior to choice, that is, now, exist. That means that the probability of your existing, given A1, is 1. That new fact changes the expected value calculation. The expected value A1 creates for you is (in this new case) 1 × w = w. And the expected value of

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A2 is (1 × 10−r) × 1.25w + [1 − (1 × 10−r)] × 0. A1 thus is better for you than A2 is. A bird in hand is worth 1.25 in the bush. That calculation in hand, you are naturally not going to be happy about A2’s being chosen over A1. You are going to feel some regret. That seems exactly right to us. In the circumstances described, you would be a fool (thinking now just of your own interests) to favor rerunning the lottery to correct the malfeasance. The problem is that Smilansky at least suggests that the depletion problem itself works in the same way that the existence lottery does. Thus he writes: But recall that we already exist. . . . If we came to exist under conditions of depletion, we owe our existence to depletion; we cannot “afford” to risk a retrospective switch of policy to conservation. Procreation is sensitive, and we cannot risk a re-run under radically different conditions.21 In fact, however, there is an important distinction to be drawn between the existence lottery on the one hand and, on the other, the depletion problem and problems involving historical injustice. Thus, in the existence lottery, one of the choices presented to the agents— the leaving-things-as-they-are choice, that is, A1—secures the existence of the particular future person whose plight concerns us—that is, you. The probability of your existing, given A1, based on all the information available to agents at the time just prior to choice, is 1. In contrast, there is no point in the depletion problem in which agents have a choice that secures the existence of that person. The probability of your existing, under either depletion or conservation, is very low: 1 × 10−r, where r itself is a very large number. There is, then, no unseen causal force lurking in depletion that is somehow going to draw Harry into existence. There are many ways in which conservation might be implemented, some of which, if very few, will produce Harry. But there are many ways in which depletion might be implemented as well, very few of which will produce Harry. Cases involving historical injustices share that critical feature with depletion. In that respect, they are unlike the existence lottery. Thus the Holocaust doesn’t exert some mysterious force that secures or even takes the future in the direction of some particular person—a great grandchild, say, of Holocaust survivors—coming into existence many decades after the fact. There are many ways in which the Holocaust could have been implemented, very few of which would have ended in the coming into existence of that child. But there are many ways in which a choice short of the Holocaust could have been implemented as well, some of which would have ended in the coming into existence of that same child but with blessings that child never in fact was able to enjoy. Given the risk the Holocaust posed to those who in fact survived it, the odds of the child coming into existence without it may well have been greater.

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In short, Smilansky sees the depletion problem as analogous to the existence lottery hypothetical. But it’s not. It’s not better for you that the existence lottery be rerun. But conservation is better for future people than depletion is. It’s better in terms of expected value, measured at the time just prior to choice, and it’s better in terms of actual value, given that there existed some way of implementing conservation that would have brought at least some of those same people into existence. Triviality of Harm Objection Our discussion of the depletion problem includes two observations. (1) The actual value of depletion for Harry—the value of depletion, that is, as that choice is implemented in the outcome that (by hypothesis) in fact obtains—is less than the actual value of conservation for Harry—is less, that is, than the value for Harry of an alternate accessible outcome in which conservation is chosen and Harry exists. And (2) the expected value of depletion for Harry, calculated on the basis of information available to the agents just prior to choice, is less than the expected value of conservation for Harry, calculated on the same basis. Those observations, we have argued, provide ample ground for the finding that depletion is worse for Harry than conservation is and indeed that depletion harms Harry. More generally, where a choice A1 as compared against a choice A2 creates less actual value for a given person and less expected value for that same person, we can conclude that A1 is worse for, indeed harms, that person. Mark Greene seems to concede that the choice of depletion is worse for and indeed harms Harry. Thus, he writes that we have answered the “letter of the non-identity challenge.”22 But Greene also notes that, for both depletion and conservation, the expected values in play are very small. And that in turn raises the concern that “the harm [this account] sees in [d]epletion will be too tiny to make much of a dent in the substance of the non-identity problem.”23 Specifically, there won’t be enough harm to future people imposed by depletion to justify the harm imposed by conservation on existing people; we’ll still end up without any account of why depletion is wrong. Thus, the “magnitude of [d]epletion’s expected harm to future people matters because that harm must be weighed against the significant expected cost of [c]onservation for present people. . . .”24 If anything, we’ll be pushed to the result that depletion is, after all, morally permissible, given the trade-offs involved. There’s a problem, however, with Greene’s analysis. He interprets the account we have offered to include a rule that might be called the EV rule of harm measurement. According to that rule, the amount of harm that depletion imposes on Harry when compared against conservation is the difference between the

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expected value that conservation creates for Harry and the expected value that depletion creates for Harry. The problem is that that’s not a rule that we do or would endorse. In our view, it remains an open and interesting question just what the rule for how much harm a given choice imposes on a given person will look like at the end of the day. Here, however, are some preliminary thoughts. Our account of depletion doesn’t, of course, suggest that an expected value calculation alone determines harm. Risk alone is not the same as harm done. Ordinary cases make that point. Even where the expected value of, say, Susan’s buying a $2 lottery ticket is less than the expected value of her saving that same $2, we do not think she’s harmed herself or made the choice that is worse for her in the case where she turns out to have the winning ticket and the jackpot itself is worth more than $2. We think, in other words, that actual value has a critical role to play in any plausible analysis of whether a given choice is worse for, or harms, a particular person. Indeed, those theorists who think that actual value alone is what determines what we ought to do can rest content with a simplified version of our solution to the depletion problem. The expected value complication arises for theorists who do not find the actual value approach plausible—for theorists, that is, who think that a choice that represents the best agents can do taking into account probabilities as they exist just prior to choice cannot be dismissed as wrong even if the outcome produced is itself (however predictably) less than the best. That point in hand, it seems entirely plausible that, just as a determination of whether harm has been imposed involves a consideration of actual value, so does a determination of how much harm has been imposed. Here is an example. Suppose that Nat is negligently speeding down I-95; suppose he is going 90 miles an hour. Then, the reduction in expected value for other people travelling in other vehicles on his stretch of the road might be trivial. At the time of choice, the chances are, after all, that all will be well. But suppose that ahead and off to the side of the highway, a massive tree suddenly comes crashing down, clipping the car just ahead of Nat’s. And suppose that Nat is unable to slow down quickly enough and for that reason slams into the back of that car and kills all its occupants. Then Nat, we will want to say—and the law in fact would say when the ensuing wrongful death litigation has its day in court—that the amount of the harm Nat has caused each of those people is the full value of whatever their lives are in fact worth. It’s not discounted a whit by the fact the expected value of Nat’s speeding was not dramatically lower than the expected value of his not being in such a rush.

4. Conclusion In this chapter, we have argued that two classic variations on the nonidentity problem, the genetic problem and the expectational problem, are susceptible

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to two quite different accounts. Where it seems very clear that a wrong has been done, as in the expectational problem, we have found that the choice under scrutiny does actually make things worse for the very person whose plight concerns us. Where it seems very clear that the choice is not worse for that person, as in the genetic problem, we have argued that no wrong has been done. Hence we have divided and, we think, conquered the “nonidentity problem.”

Notes 1. We are very grateful to Collin O’Neil, S. Matthew Liao, Saul Smilansky, and Mark Greene for the enormously helpful comments they have given us on earlier versions of this chapter and discussions they have found time to have with us in connection with the issues we’ve addressed in this chapter. 2. Kavka (1981), p. 93. 3. Parfit (1987), p. 361. The most important discussion of the nonidentity problem remains Parfit’s own. See, e.g., Parfit (1987), pp. 353–79. 4. Parfit (1987), p. 363. 5. The term genetic is not ideal, but we use it here in place of the clumsier though more accurate nonexpectational. Agents can be unable to make things better for a particular child they eventually bring into existence in cases that have nothing to do with genetics. For example, slaves who cannot escape their bondage may have no ability both to bring a child into existence and ensure that that child is not itself a slave. 6. We do not discuss the fourth option. We recognize that it is easier to imagine disrespectful reasons to have a child with Down syndrome than to have a child without it, e.g., because one desires a child who would never become independent (as many people with Down syndrome do). More realistic reasons are more uncertain morally: e.g., because prospective parents worked with Down syndrome children and found it rewarding, or they wish to provide a companion for a beloved older child with Down syndrome. To avoid assessing the acceptability of such motives for direct selection, we present a case in which the parents’ choice displays no preference for a child with Down syndrome. 7. Benatar and Wasserman (2015), chap. 10. 8. Harman (2004). 9. Cf. Benatar and Wasserman (2015), chaps. 2, 3. 10. In our view, however, the magnitude of the harm itself is not decisive. Indeed, more fundamental than the magnitude of the harm would seem to be the overall lifetime well-being level that the choice under scrutiny leaves its victim with. 11. See Roberts (2011a, 2011b). 12. This conclusion is considered, by Parfit and others, to be “repugnant” (Parfit, 1987, 388–90). The repugnant conclusions have led many theorists to reject classical, aggregative forms of utilitarianism. 13. See Parfit (1987), pp. 371–7; Kavka (1981), pp. 98–103. We owe the depletion example to Parfit. For discussion of climate change as a version of the nonidentity problem, see John Broome (1992). For discussion of the nonidentity problem in the context of historical injustice, see George Sher (2005). Although Kavka’s cases involve procreation, they, lacking the critical features of genetic cases, should be understood as expectational in nature instead. Thus both (a) the agents in Kavka’s cases could have done better for the burdened child they have and (b) the particular burdened child’s chances of coming into existence, contrary to popular belief, are no greater under the choice under scrutiny than under many alternate choices available to the agents at the relevant time. In the text going forward, we make the argument in the context of depletion. But we could have made the argument in connection with one of Kavka’s cases or many other cases just as well.

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14. Philosophers who consider the choice permissible include Heyd (1992) and Boonin (2014). 15. We should note that a principle that attempts to determine which choice is worse for Harry by comparing how things actually turn out for Harry under depletion against how they are expected to turn out for Harry under conservation is inconsistent. Mixing and matching won’t do. See Roberts (2007, 2009). 16. Valuing never existing at all at 0 is controversial but seems plausible however value to the individual—that is, well-being—is ultimately defined (no joy, no sadness; no pleasure, no pain; no preferences satisfied or left unsatisfied; no capabilities, no disabilities). See Roberts (2015). But see, too, Arrhenius and Rabinowicz (2015). 17. Substantially similar arguments appear in Roberts (2007, 2009). 18. The details of the lottery example we provide here are our own. But Smilansky himself sketched such an example in a recent talk (Bioethics Conference, New York University, May 2015). For his argument against our account, see Smilansky, Chapter 6 in this volume. 19. Taub (2007), p. 298. Taub would agree with Kavka, Parfit, and others as to the precariousness of the coming into existence of each of us had things been other than they in fact are. Indeed, the point he makes supports our argument here. Even given that things are exactly as they are, our own coming into existence, as of the critical time, that is, just prior to choice, was exactly as precarious. It may have been determined, but it was still, based on all the information available to the agent just prior to choice, highly improbable. 20. Smilansky focuses on “the ‘risks’ involved in re-running the history” in the context of historical injustice forms of the expectational problem. See Smilansky, Chapter 6 in this volume. 21. Smilansky, Chapter 6 in this volume (emphasis added). 22. Greene (2016), p. 112. 23. Greene (2016), p. 112. 24. Greene (2016), p. 117.

References Arrhenius, Gustaf, and Rabinowicz, Wlodek (2015) “The Value of Existence.” In The Oxford Handbook of Value Theory, edited by Iwao Hirose and Jonas Olson, 424–43. New York: Oxford University Press. Benatar, David, and Wasserman, David (2015) Debating Procreation: Is It Wrong to Reproduce? New York: Oxford University Press. Boonin, David (2014) The Non-Identity Problem and the Ethics of Future People. New York: Oxford University Press. Broome, John (1992) Counting the Costs of Global Warming. Cambridge: White Horse Press. Greene, Mark (2016) “Roberts on Depletion: How Much Better Can We Do for Future People.” Utilitas 23(1): 108–18. Harman, Elizabeth (2004) “Can We Harm and Benefit in Creating.” Philosophical Perspectives 18: 89–113. Heyd, David (1992) Genethics: Moral Issues in the Creation of People. Berkeley, CA: University of California Press. Kavka, Gregory (1981) “The Paradox of Future Individuals.” Philosophy & Public Affairs 11(2): 93–112. Parfit, Derek (1987) Reasons and Persons. Oxford: Oxford University Press. Roberts, Melinda A. (2007) “The Non-Identity Fallacy: Harm, Probability and Another Look at Parfit’s Depletion Example.” Utilitas 19(3): 267–311. Roberts, Melinda A. (2009) “The Nonidentity Problem and the Two-Envelope Problem.” In Harming Future Persons: Ethics, Genetics and the Nonidentity Problem, edited by Melinda A. Roberts and David T. Wasserman, 201–28. New York: Springer. Roberts, Melinda A. (2011a) “The Asymmetry: A Solution.” Theoria 77: 333–67. Roberts, Melinda A. (2011b) “An Asymmetry in the Ethics of Procreation.” Philosophy Compass 6(11): 765–76.

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Roberts, Melinda A. (2015) “Population Axiology.” In The Oxford Handbook of Value Theory, edited by Iwao Hirose and Jonas Olson, 399–423. New York: Oxford University Press. Sher, George (2005) “Transgenerational Compensation.” Philosophy & Public Affairs 33(2): 181–200. Smilansky, Saul (2016) “The Nonidentity Problem: United and Strong.” edited by S. Matthew Liao and Collin O’Neil. This volume. Taub, Nassim Nicholas (2007) The Black Swan: The Impact of the Highly Improbable. New York: Random House.

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Nonidentity Problem: United and Unconquered

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The Nonidentity Problem United and Unconquered SAUL SMILANSKY

Abstract The nonidentity problem (NIP) is one of the great moral discoveries of the twentieth century and a philosophical classic. It is a single, simple, powerful, philosophical conundrum. It has in many cases a solution, but cannot be dismissed, and it retains its paradoxical force. I will aim to present my own take on it and defend the NIP from the original and challenging attack by Melinda Roberts and David Wasserman in “Dividing and Conquering the Nonidentity Problem” (Chapter 5 in this volume). In the process, I will reject the positions they offer on each of the two alleged problems into which they divide the NIP, offering some less familiar arguments, particularly about individual contribution and the special role of parenting. I will also explicate why I think that it is in any case a mistake to see the NIP as composed of two distinct problems, showing both its unity and the broadness of its manifestations; illustrate how my recent ‘historical’ exploration of this problem is helpful; and conclude by defending the idea that the nonidentity problem typically has a solution but is nevertheless a large and significant problem, an ‘existential paradox.’ * The nonidentity problem (NIP) is one of the great moral discoveries of the twentieth century and a philosophical classic. It is a single, simple, powerful, philosophical conundrum. It has in many cases a solution but cannot be dismissed, and it retains its paradoxical force. The nonidentity problem concerns situations of intuitively clear wrongdoing, where despite the wrongdoing, there is no apparent victim, no one is 99

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harmed overall or made worse off by the wrongdoing (and indeed the relevant purported victims are typically made better off by the apparent wrongdoing) (Parfit 1984). This is for the simple reason that the nature of the wrongdoing in nonidentity situations determines the identity of who will be born. Those born owe their very existence to the alleged wrongdoing and, assuming that they (let us suppose reasonably) perceive their lives to be worth living, it seems that they have benefited from the wrongdoing. Yet if all apparent victims and indeed perhaps everyone affected have benefited from the wrongdoing, then how can it be wrongdoing? This paradox manifests itself in many forms and contexts, as we shall see, and has both theoretical and practical import. I will not attempt to review here the extensive literature on the NIP. I will aim to present my own take on it and defend the NIP from the original and challenging attack by Melinda Roberts and David Wasserman in “Dividing and Conquering the Nonidentity Problem” (Chapter 5 in this volume). In the process, I will reject the positions they offer on each of the two alleged problems into which they divide the NIP, offering some less familiar arguments, particularly about individual contribution and the special role of parenting. I will also explicate why I think that it is in any case a mistake to see the NIP as composed of two distinct problems, showing both its unity and the broadness of its manifestations; illustrate how my recent “historical” exploration of this problem (Smilansky 2013a) is helpful; and conclude by defending the idea that the nonidentity problem typically has a solution but is nevertheless a large and significant problem, an “existential paradox” (Smilansky 2007) . Roberts and Wasserman (R&W) seek to divide the problem into two parts: first, a ‘genetic’ problem that focuses on the decisions of parents during procreation and then an ‘expectational’ problem, concerning actions that will affect future generations. I will explore them in turn.

1. The Genetic Problem Roberts and Wasserman explore a situation of parental decision making where a number of fertilized eggs combining the parents’ genetic material can be used; half are known to be such as will lead to the birth of a ‘normal’ child, the other half to the birth of a child with Down Syndrome (DS). Through screening, it is possible to learn which is which and hence choose an egg of one kind or the other for the actual insemination. The question they present is whether it is wrong not to screen in this way and choose the normal child. They assume that the normal child will have a significantly better life than the DS child, yet the other child will still have a life well worth living. Any other effects (such as expenses and the impact on third parties) are bracketed. The thought of the parents is that they are happy just to accept whichever baby comes (and no sinister motivation is involved). R&W then argue that the parents may legitimately decide not to screen the eggs and thus to be quite likely

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to produce a child with Down Syndrome. They grasp here the second horn of the dilemma in the NIP: Since no one is harmed by decisions in genetic NIP cases, there cannot be any moral wrongdoing involved. The DS child could not have been born as normal; he or she could only have not been born, and that, they assume, would have been worse for the child. I have no problem granting the conditions R&W present, although the risk component involved in the particular scenario they describe is an unnecessary complication (they include it in order to avoid the charge of disrespect toward the DS child, a charge that I do not wish to make). We can merely ask whether it is morally permissible to choose to have a DS child when one could decide to have a normal one. Likewise, there might be particular aspects to DS children (such as their apparent happiness) or to the situation in this instance (e.g., that a particularly valuable parental bond will emerge) that may divert us from the moral dilemma at hand. The crucial point, we recall, is that the parents willingly decide to have a child that is (bracketing epistemic uncertainty) going to have a life that is considerably less good than the life to be had by an alternative child, whom they just as easily could have had. R&W would have to acknowledge this and bite the bullet also in a case of otherwise equivalent alternative children, when one will have a very good but fairly short life, while the other will have a very similar life but one that will be much longer. There is nothing special about the DS child; it is merely one example among many. In all such cases, they would take the hard-line position that there is nothing wrong with parents who (for nondisrespectful reasons) will choose to bring about a child who has a life worth living, rather than an alternative child who will have a much better life (in terms of quality and/or length). The reason, again, is the traditional NIP one that the first child could not complain—it could not have the higher-quality or longer life of the second alternative child, and so the life it has is the best deal it can get. What is wrong with risking or indeed choosing to have the DS child, when a normal one is to be had? Roberts and Wasserman first consider as replies some nonstarters, such as the harm to the DS child or to the unborn potential normal children, and then really consider only a broadly utilitarian-like improvethe-universe sort of concern, which they dismiss. Yet it seems to me that the challenge they face is considerably stronger and indeed does not depend upon utilitarian commitments. A number of considerations seem to me to be particularly salient here; they are related yet are nevertheless distinct. The first can be termed “contributivist.” It focuses on one’s own contribution to the ensuing states of affairs. In this way, it has a consequentialist component but personally so: What matters is not only what emerges or indeed that what emerges be optimal but that it emerge through you, that you do it. What matters is your effect on the world. This sort of moral perspective has been almost completely neglected, yet it seems to me promising (see Smilansky 2004).

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We can see its operation in mundane situations such as ‘green’ ones—many people care not only about what happens to the environment as such (where one’s individual effect is typically, after all, negligible or even nonexistent) or about meeting deontological or contractual injunctions, for example, not to pollute. People also care about what they themselves do, what comes out of their actions. They hope that others will do good, and there is concern about what happens, but they care particularly about their own relationship to what happens. They do not want themselves to have a negative impact on the environment. Another context in which a contributivist perspective emerges is in volunteering. One might pay others and hire them to do some good in the world, but one nevertheless prefers to do it oneself—even if less good is thereby accomplished! The direct engagement with the beneficiaries, the fact that it is oneself who is doing the good, matters. This contributivist moral concern seems evidentially salient in the parental context. Admittedly, in certain situations one cares only about the child, for example, that it get the best emergency medical help, and not at all about whether it is the parent that gives this help. But in most contexts of parenting, one reasonably and deeply cares that it be oneself that makes the difference; for example, that you take your child to his or her weekly sports practice. A contributivist’s presence in this world will be evaluated in terms of his or her contribution. A greater individual contribution pro tanto makes one better. In the present context, a contributivist will care about producing a child that has a very good life rather than merely a life worth living (coupled with a lack of ability to complain for NIP reasons). The second pertinent moral consideration is that the child we are speaking of is your child. If we follow the scenario proposed by R&W, the couple could have produced a normal child but decided to behave in a way that expectedly led to the birth of a DS child, who lives only to the age of 60 and has a life that is well worth living but is nevertheless significantly less good than the life of the normal child they could easily have had—a life that involves illness, continuous dependence, and early death. It seems to me that part of the intuitive perplexity, distaste, or even horror that such a case brings out follows from the personal weight of the act of parenting (cf. Smilansky 1995; Weinberg 2016). You are about to bring into the world not only a child but your child—don’t you want your child to live a normal life span and have a much better life than that of the DS child? Yes, any child you have could not personally complain; that, after all, is the catch of the NIP. But this just means that personally it is, as it were, held hostage to your whims; it completely depends upon your taking this disturbing decision to have as your child one who has a considerably less good life and a much shorter one. If we take the case of a normal child who will live only to the age of sixty, we can see him engaging in a conversation with the parents and finding their decisions very perplexing and disturbing. “Yes,” he can say, “I sure am lucky,

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personally, that you did not have an alternative child who would have lived to the normal age. I understand all that. But how could you? How could you have chosen that your child would die at 60, when you could have chosen that your child would live an equally good life for so much longer?” This, I think, helps to capture the wrongness of the parent’s decision in another way. Roberts and Wasserman ask us to see people like the couple in the case they present, who leave the chips to fall as they may, with the significant risk of having a child with a much worse life than the child they could have had for certain, had they so chosen, as acting in a morally permissible way. But the couple’s decision seems to me clearly unvirtuous. Note also that beyond the DS and life span cases, there is a very wide spectrum of other cases in which R&W would still have to say that there is nothing wrong—producing lives with severe physical hardship, psychological torment, bursts of extreme pain and suffering. As long as the lives were not below the level at which they were worth living, R&W would excuse the parents, just because the children could not complain; any wrongdoing was a condition of their existence. It seems to me that bringing such a child into the world, when one could bring into the world a child spared such horrors, is morally irresponsible, callous, and wrong. Suppose I can create one of two persons, A or B. They would have equally meaningful lives, but A would suffer only moderately, whereas B would suffer greatly and continually throughout his life (which would still be worth living). Suppose there are no other relevant differences between A and B and between the relation I would have to A and the relation I would have to B. Would it not be obviously perverse, morally speaking, for me to choose to create B rather than A? To choose B rather than A is to choose a reality in which there is much more to be lamented (by a moral person who cares about the suffering of others) than there would be if A were chosen. And this in a case in which by definition there are no contrary considerations that would favor choosing B. How could deliberately choosing a reality that is more lamentable, all things considered, be anything but immoral? And this sense of deep wrongness is only extended when we consider the contributivist element (the emphasis on your contribution to what comes about) and the special, deeply personal nature of parenting (the fact that it is not just a child but your child who is suffering). Finally, we can also explore the familiar what-if-everyone-did-this move in this context. This is a notoriously tricky test; if applied uncritically, it would mean that no one could, for example, go to their neighborhood cafe, for if everyone did this, the results would be catastrophic. Yet nevertheless in many contexts, it is an important moral test and a salient consideration. The couple R&W present to us has enough money, knowledge, and desire to take good care of the DS child and help it to have a good life, albeit within the severe limitations of Down Syndrome. But a world in which many people did this (even assuming they too had the required resources and so on) would not be sustainable. Everyone, including this couple, depends upon there not being

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too many people with DS and there not being too many couples that indulge themselves in this sort of case. Since the burden of not choosing to have (or even greatly risk having) a DS child is not too great, why should we permit it? One could reply that it makes little difference to the world either way. But this argument is too powerful—it risks morally permitting one never to recycle, to waste water in arid regions, to avoid paying taxes, to escape serving in the army in a just war, and the like (see, e.g., Glover 1986; Smilansky 2012). All of these involve certain burdens, yet the individual difference one makes normally, realistically, does not matter; nevertheless, we think that it would be wrong to shirk the burden. It might be countered that the choice of our couple in the case provided us by R&W is surely quite rare, that it could be accepted, without being considered some sort of moral self-indulgence that many others are tempted by— and thus that everyone should, in all fairness, resist. But matters seem to be more complicated. Perhaps this specific sort of case is rare and for good reason. But the question is how wide we consider the generalization, at what level of resolution we operate. Roberts and Wasserman, after all, seek to provide a general NIP-based argument, and that would allow a very broad range of disturbing decisions in procreation, as long as (due to the NIP) no one could complain. It is the very acceptability of NIP-related moral reasoning that is at issue here. Accepting the couple’s decision in the case R&W present is only a token of a broad type of cases, which are morally unacceptable in the familiar ways in which many cases of moral indulgence are unacceptable, from deontological and virtue ethical perspectives. These different moral perspectives help to show that defending wrongness and blameworthiness despite the NIP does not depend only on a general utilitarianlike position and that such a defense has many diverse philosophical resources to build upon. Put another way, there are ample ways—utilitarian, contributivist, deontological, virtue ethical—of grounding philosophically the intuitive perplexity, distaste, or even horror involved in many choices in NIP contexts. I cannot consider all of the counterarguments that Roberts and Wasserman could raise at this junction. I do want, however, to consider one, the charge of perfectionism. If, despite the NIP and ensuing impossibility of personal complaint, a couple can be morally wrong because they choose a DS child (or a normal child that, like DS children, will at most live only to the age of 60, and the like), what stops us from blaming them any time they choose short of potential perfection (see Savulescu and Kahane 2009)? The attractions of perfectionism in general, or even in this context, are too wide a topic for the present chapter. Yet it seems to me that the points I just raised help us to see why we are not running a risk of a slippery slope here, and that suffices to counter this move. If we have utilitarian-like commitments, then stopping short of perfection may seem arbitrary and wrong. Yet as we saw, the very contributivist

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concern already acknowledges that the child might legitimately end up with less. The parent normally has a right to be a parent, to be involved with the child, with the interests of the child as only a partial consideration here. Nor is there an inherent urge toward infinite contribution within the contributivist fold: There is room for compromise and for trade-offs, for example, as to how much time one will spend with one’s child. One cares not to be someone who has a negative effect and to be someone who has a positive one (these are distinct concerns), and the nature and size of the contribution one makes matters, but there is no inherent demand for maximization here. The force of the “But how could you do such a thing, it’s your child” charge surely decreases as we ascend in normalcy and well-being. The child, perplexed and shocked by his parents who did not care that their child would have an unusually short life span, would simply not reasonably be in such a morally disturbed status if, say, the parents neglected to provide their child with superior singing abilities. Likewise, the greater the horrors of the life of the created human being, the more would the charge of moral irresponsibility and callousness apply, and the lesser the virtues of the parents answerable for the way things have ended up. Above some threshold no virtue-based challenge would apply, but R&W would permit choices much below such a threshold. Finally, the world goes on reasonably well with many people who are not outstanding in it; and indeed it is probably better to have a mix of abilities and traits rather than have all parents aim at perfection, as long as we do not descend too low. So the idea of a generalization test also gives the NIPbased objector no mileage in this context. It seems that all the arguments that I have presented are not susceptible to the charge of being impelled toward perfectionism. The perfectionist challenge was one that I had to confront outright, for it might seem to follow directly from my stance. R&W connect the nonidentity problem to a number of other philosophical puzzles or paradoxes, notably the “asymmetry” (McMahan 2009) and the repugnant conclusion (Parfit 1984). Some of the directions I took in criticizing R&W’s DS-bearing couple could be helpful in these contexts as well, for the sort of reasons we saw when I rebutted the countercharge of perfectionism. The contributivist concerns, the particular expectations when there are close personal relationships (“It is your child”) and the “What if everyone did so?” move in this context, are not susceptible to the pull of producing more children, in the way that a maximizing utilitarianlike position is. I do not have the space to elaborate here further. Yet in any case I do not see why I must provide a solution to these further matters in order to make the plausible claims I make concerning the NIP. One cannot be criticized for not having solved all difficulties, for not having constructed some Hegelian-like “philosophical system” where everything fits into place and all is connected. Excusing the possibility of wrongdoing in typical procreation issues because of the nonidentity problem is highly

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counterintuitive, as we see from the results of pursuing such a direction in examples such as the DS one or the gap between 60 years and a normal life span. We have seen various ways of trying to ground philosophically these broad and deep intuitions. We can thus reasonably feel that these intuitions can be defended, irrespective of what happens with some other philosophical conundrums. There is no direct line leading from my position to positions on other questions beyond the NIP that force me to take counterintuitive stances of the scale involved with the NIP. We should continue to struggle with other puzzles, but there is no reason to force us to abandon commonsense judgments of wrongness and blameworthiness in the nonidentity context.

2. The Expectational Problem We recall that Roberts and Wasserman seek to divide and conquer the nonidentity problem. While in what they call genetic cases, their solution to the NIP is to argue that there is no wrong involved in procreation decisions for the familiar no-complaint reasons (as long as the conditions they delineate apply), in the expectational cases they do see wrongness. The example they take is Parfit’s familiar depletion of the natural environment case, as compared to conservation. Since the identity of people who will be born in 200 years in cases of depletion or conservation will be different because of the difference depletion will make, then, assuming that everyone will have lives worth living, Parfit argues that no one can complain in either case. And if wrongdoing requires wronging individual persons, then there can be no wrongdoing involved in depletion. R&W concede that depletion is wrong, but they argue that—given that we identify the situations correctly—those created are harmed. Thus it is not true in depletion cases that there are no individual victims; the putative victims really are victims, and therefore the wrongdoing involved in the depletion case is easily explained. Correctly understanding the situation, they claim, involves an adequate evaluation of the probabilities at the time of depletion. The person at issue, whom they call Harry, comes to exist. The NIP seems threatening because we think that depletion was in fact necessary for his coming to be born, but R&W argue that (1) Harry could have existed even had conservation been chosen in place of depletion and (2), evaluated at the time of the policy decision, depletion did not make Harry’s chances of being born any greater than they would have been under conservation. At the time when alternative policies of depletion or conservation are to be decided between, chances are extremely slim that anyone specific will be born, whatever we do. Depletion makes the environment more challenging and so, R&W argue, if anything actually somewhat even decreases the chances of Harry’s birth. However, I do not see this intriguing move as successful. It might be thought that the odds of a given individual’s coming into existence are in any case so

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slim that changes such as deciding between policies of depletion and conservation could not make much of a difference. But recall that we already exist. What matters here are not the abstract odds before we came to exist. Rather, we are considering the chance that those same contingencies that brought us into existence (or contingencies of similar efficiency) would still exist, if causally effective factors in our actual history were interrupted. Our parents would still need to meet and have sex under such conditions that the exact same sperm among millions would be involved in our conception. We indeed came into being against the odds, but the same sort of factors that made the odds so difficult in the first place (such as the great sensitivity of the circumstances of procreation) would be almost certain to make any changes fatal to our emergence. If we came to exist under conditions of depletion, we owe our existence to depletion; we cannot ‘afford’ to risk a retrospective switch of policy to conservation. Procreation is extremely sensitive, and we cannot risk a rerun under radically different conditions. This emphasis on the ex post odds and on the ‘risks’ involved in rerunning the history come out in my recent discussion of historical dilemmas (Smilansky 2013a; R&W discuss my claims in the third section of their chapter). Hardly anyone alive today would have come to exist without the (humanly historical and natural) calamities of the past, such as the Black Plague, slavery, the world wars, and the Holocaust. The fragility of the conditions necessary for our existence is such that we would not have ‘made it’ into existence, given major modifications to history. I therefore argue that we need to decide whether we regret our existence and that of our loved ones (in the sense that we would prefer a state of affairs that excludes certain major calamities but also as a result ourselves and our loved ones). The alternative is to say that we do not regret (in this important, alternative-preference sense) the calamities of history, with the terrible suffering and death of millions. Both options seem extremely unappetizing. In any case, looking back we can see quite clearly that our existence in fact depends on the historical equivalents of depletion or conservation. At the time, it might have been epistemically unclear what would increase our (as it must have seemed at the time) very negligible chances of coming to exist, but elementary biological knowledge suffices to realize that, having come through into existence, we cannot risk a rerun and any significant change. The idea that Harry could have existed even had conservation been chosen in place of depletion is true logically but can be easily dismissed empirically. Miracles rarely occur twice. Another way of seeing why the R&W move fails, this time from the ex ante perspective, is the following. As policy makers, we need to decide between depletion or conservation. Let us assume that the same number of people will come to exist and that all of them will have lives worth living. We know, when determining our policy, that whether we deplete or conserve, different people will come to exist but that in any case none of them will be able to complain;

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they depend, in fact, on our choosing the specific policy that we did. Thus, if we limit wrongness to personal harm, then there is nothing wrong with depletion! We know, when we decide to deplete, that there will be no one that we would be victimizing, no one who could complain. If we nevertheless feel certain that depletion is morally wrong, then it seems that we must acknowledge moral wrongness without victims, wrongness without the wronged, wrongness that harms no individual. So wherever we turn, pace R&W, the nonidentity problem lives on to perplex us.

3. How Many Problems? I have shown that the arguments of Roberts and Wasserman on both the genetic cases and the depletion cases are not successful. The argument of the previous paragraph also shows that their attempt to divide the NIP into two distinct problems is unconvincing. The NIP remains a single, united problem. In both cases, we have policy decisions. In both, one knows that, if one chooses one way, a person or persons who could not complain will come to be born, likewise if one chooses another way. This forcefully brings out the question of what one may do without doing wrong. If a condition for wrongdoing is that there be a specific designated victim who can complain, then one may deplete and enjoy. If wrongness can come to be without any designated victim who may complain, then the couple do wrong by bringing a DS baby into the world, when they could have done instead so much better. So, in reality, there is only one problem here. It has various manifestations— actually more than the two R&W posit. The sort of issues I raise in the historical cases, such as whether one ought to regret one’s birth and the birth of all one’s loved ones (Smilansky 2013a), is different from the genetic case R&W present. A similar set of surprising results emerges if we combine the NIP with questions of gratitude (Smilansky 2016). These are all part of what we may more broadly call the moral philosophy of history. NIP questions can also usefully be asked in the context of nonhuman animals. May we, for example, eat free grazing sheep, whose lives are worth living (within the limitations of sheepishness)? Assume that they are not treated with cruelty and are killed without serious pain but are also sustained in order to be eaten. Were it not for their planned culinary future and willfully shortened life span, they would never come to be born, fed, and enjoy life. Whatever one concludes, this again seems very different from the genetic or expectational problems R&W propose.

4. Conclusion The nonidentity problem, I have argued, is a simple, single, perplexing, and disturbing problem. When apparent wrongdoing can determine the identity of those who are the candidates for the status of the victims of the purported

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wrongdoing, then we face a paradox. We can accept wrongdoing without victims, without anyone who is harmed, without anyone who is wronged or would wish to complain. Or we can deny wrongdoing in the most intuitively obvious places. Roberts and Wasserman attempt to divide the nonidentity problem into two distinct problems, the genetic one and the expectational one. I find the division unconvincing: In both we have policy decisions where it is known that no one produced by either policy would complain, and the question is whether that in itself excuses any procreation-affecting decision. In any case, I find the positions they take on their two allegedly distinct problems unconvincing. In addition to the obvious utilitarian-like stance, there are numerous deontological, virtue ethical, and contributivist reasons not to bring Georgia, the DS child, into the world, when her parents could instead easily have produced a normal child. They do wrong by choosing to have as their child someone who will have a life that is much worse than that of a normal child that they could easily have had. R&W’s argument on depletion policy is based upon the negligible apparent probabilities, before a person is born, of anyone being born, and the further lowering (which constitutes the harm) of the chances by a policy of depletion. As thinking of historical cases illustrates, this is a mistake. Once someone exists, the conditions for his highly improbable existence manifestly sufficed to bring about this existence, and no other policy (whether it is avoiding war or conservation) can be ‘afforded,’ unless in this thought experiment he is willing to risk giving up his existence. In principle, there is no reason why we could not know these odds before he was born (surely God could), that is, know for certain that the path into existence of this specific person runs only through depletion or war—avoid (say) the wrongdoing of depletion, and the person will not emerge. Moreover, even if we take a forward-looking perspective under conditions of uncertainty, we know, when we come to decide on environmental policy (just as in the genetic cases) that whatever we do (within the assumptions of the debate), none of the people produced will wish to complain. Whether we may indulge ourselves nevertheless depends on what we think about the nonidentity problem and about the salience of the various normative positions. Roberts and Wasserman need to show that harm to individuals is involved in the intuitively wrong depletion policy but do not succeed in doing so. Looking backward, we see that the people already existing are not harmed but actually empirically depend on the past wrongdoing of depletion for their existence. And in deciding upon forward-looking policy, on R&W’s assumptions, one can deplete as one pleases because one knows that (due to the NIP) no individual who will come to be born could then complain. The position that seems to me to be most plausible is to retain wrongness in most NIP cases. Denying wrongness in most cases is a morally unacceptable

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price; radical depletion is wrong, as is bringing into the world for no good reason babies who will have lives that are much worse than those one could easily produce. Yet the sense of absurdity involved in wrongness without victims (or, indeed, only with beneficiaries) remains. This is why a sense of paradoxicality continues to surround the nonidentity problem. It seems helpful to think here about an idea that I developed before, the “existential paradox” (Smilansky 2007). This is not a paradox in the traditional sense that we do not know what to think and what to do, that is, that our conclusion is surely an indicator that we have made some error in our assumptions and/or argumentation. Rather, as in other existential paradoxes, it seems that it is not we who are mistaken, but moral reality that is absurd. Absurdity is not an indication of our epistemic limitations but of the ways in which moral reality is radically surprising and falls short of our most natural expectations. The idea of victimless crimes—of wrongdoers who harm no one (and indeed benefit everyone relevant) and of wrongdoing without the wronged—is not a mistake, it is an unveiling of these true but surprising and absurd aspects of moral reality. I have recently introduced the notion of a “crazy ethics” (Smilansky 2013b), the idea of a true or at least most plausible morality that is nevertheless ‘crazy.’ It is not crazy in the sense that it is obviously mistaken but in grossly defying our most reasonable expectations from morality. The nonidentity problem typically has a solution but is nevertheless paradoxical, for the absurdity is in a sense larger than the solution. It is a further illustration of the idea of a crazy ethics.1

Note 1. I am grateful for the invitation to participate in the original NYU conference and in the current volume, as well as for comments made in the conference. I am very grateful to Arnon Keren, Iddo Landau, Ariel Meirav, Collin O’Neil, Melinda Roberts, Daniel Statman, David Wasserman, and Rivka Weinberg, for very helpful comments on drafts of the chapter.

References Glover, Jonathan (1986) “It Makes No Difference Whether or Not I Do It.” In Applied Ethics, edited by Peter Singer, 125–44. Oxford: Oxford University Press. McMahan, Jeff (2009) “Asymmetries in the Morality of Causing People to Exist.” In Harming Future Persons: Ethics, Genetics and the Nonidentity Problem, edited by Melinda A. Roberts and David T. Wasserman, 29–48. Dordrecht: Springer. Parfit, Derek (1984) Reasons and Persons. Oxford: Oxford University Press. Roberts, Melinda A., and Wasserman, David T. (2016) “Dividing and Conquering the Nonidentity Problem.” This volume. Savulescu, Julian, and Kahane, Guy (2009) “The Moral Obligation to Create Children with the Best Chance of the Best Life,” Bioethics 23: 274–90. Smilansky, Saul (1995) “Is There a Moral Obligation to Have Children?” Journal of Applied Philosophy 12: 41–53. Smilansky, Saul (2004) “Gratitude, Contribution, and Ethical Theory.” In The Ethics of Altruism, edited by Jonathan Seglow, 35–50. London: Frank Cass.

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Smilansky, Saul (2007) 10 Moral Paradoxes. Malden: Blackwell Publishing. Smilansky, Saul (2012) “On the Common Lament, That a Person Cannot Make Much Difference in This World.” Philosophy 87: 109–22. Smilansky, Saul (2013a) “Morally, Should We Prefer Never to Have Existed?” Australasian Journal of Philosophy 91: 655–66. Smilansky, Saul (2013b) “Free Will as a Case of ‘Crazy Ethics’.” In Exploring the Illusion of Free Will and Moral Responsibility, edited by Gregg Caruso, 103–20. Plymouth: Lexington Books. Smilansky, Saul (2016) “Gratitude: The Dark Side.” In Perspectives on Gratitude, edited by David Carr, 126–38. Abingdon: Routledge. Weinberg, Rivka (2016) The Risk of a Lifetime. New York: Oxford University Press.

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Suggested Further Readings (Part III)

Boonin, D. (2015) The Non-Identity Problem and the Ethics of Future People. New York: Oxford University Press. Boonin presents a carefully organized, comprehensive review of the arguments identifying a harm or wrong in nonidentity cases. He concludes that all of these arguments beg the question, are hopelessly ad hoc, or have implications that are more implausible than the judgment of no harm or wrong. But he does not distinguish between genetic/can’t-dobetter and policy/can’t-expect-better cases, reaching the same conclusion for both. Kavka, G. (1981) “The Paradox of Future Individuals.” Philosophy & Public Affairs 11: 93–112. Kavka presents the slave child example and the pleasure pill example. These cases are excellent examples of the expectational form of the nonidentity problem. It seems clear that in each case the choice under scrutiny is wrong. At the same time, it is a challenge to identify a clear victim. Kavka himself considers attempts to resolve the problem that try to explain how a choice that harms no one might be wrong, as well as attempts that try to explain how an agent might act ‘wrongly toward’ the apparent victim without harming that person or making him or her worse off. He sees the wrong as a kind of exploitation that violates a version of Kant’s categorical imperative. Harman, E. (2004) “Can We Harm and Benefit in Creating?” Philosophical Perspectives 18: 89–113. Harman argues that we must reconsider whether the assumption that, for a choice to harm a particular person, that choice must make that person worse off than he or she would have been under some alternate choice, should be rejected. Harman argues that harm should instead be understood to have been done whenever a condition involving a substantial or significant injury has been imposed. Parfit, D. (1987) Reasons and Persons. Oxford: Clarendon Press. Parfit considers a range of cases involving both personal procreative choice and far-reaching matters of policy. His own conclusion is that choices can be “bad” though “bad for” no one. As he argues, any attempt to explain just how that conclusion can hold by appealing to the principles of classical utilitarianism leads directly to what he calls the repugnant conclusion, that it is better to create indefinitely many people with lives barely worth living than a large number of people with better lives. Philosophers interested in population ethics have

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struggled mightily against these twin obstacles over the last several decades and have yet to resolve them in a way that has commanded wide acceptance. Roberts, M. (2009) “The Nonidentity Problem and the Two Envelope Problem.” In Harming Future Persons, ed. M. Roberts and D. Wasserman, 201–28. Dordrecht: Springer. This paper attempts to show that the no-harm-done conclusion reached in many discussions of the nonidentity problem has been too quick. Once calculations of probability are done correctly—are, that is, based consistently on information available to agents prior to choice—harm becomes easily identifiable. Roberts, M., and D. Wasserman, eds. (2009) Harming Future Persons: Ethics, Genetics, and the Nonidentity Problem. Dordrecht: Springer. A collection of commissioned papers on the nonidentity problem, from philosophers with a wide variety of perspectives. Sher, G. (2005) “Transgenerational Compensation.” Philosophy & Public Affairs 33: 181–200. Sher focuses on the form of the nonidentity problem involving historical injustice. He argues that overlapping generations, each of which is itself affected adversely by the prior generation’s having suffered in some way as a result of a historical injustice, can form the basis for the claim of harm. Smilansky, S. (2013) “Morally, Should We Prefer Never to Have Existed?” Australasian Journal of Philosophy 91: 655–66. We can judge that various actual historical occurrences were bad, overall—the Holocaust, World War I, and slavery, for example. We should prefer that such events had not occurred and regret that they had occurred. But the vast majority of people who now exist would not have existed had it not been for those historical events. There seems to be a strong case for saying that, morally, one must wish and prefer that certain historical events had not occurred, even if that would have meant that one would never have existed. Smilansky explores arguments for and against this idea. Wasserman, D. (2005) “The Nonidentity Problem, Disability, and the Role Morality of Prospective Parents.” Ethics 116: 132–52. Wasserman argues that prospective parents may have no moral reason to select against disability and some moral reason not to select at all. At the same time, prospective parents should only bring a child into existence if they do so in part for reasons that concern its own good. They can, however, act with this intention in having a disabled child, no less than in having a nondisabled one.

Study Questions (Part III) 1. What is the critical distinction between what the authors call the genetic problem and the expectational problem? 2. Which do you find the strongest of the arguments discussed by the authors for a harm or wrong in genetic cases? Are you persuaded by their response? 3. The authors stipulate that the genetic problem involves existences that are worth having. Can you imagine existences that aren’t worth having? Even if such existences are possible, do you think that they actually occur? 4. Does it make sense to compare a particular person’s existence against an alternative in which that person never exists at all? Can we cogently say that never existing would be worse (or better) for a person than existence is if the subject of our own statement does not exist?

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5. Why do the authors think that the choice of depletion lowers both actual value and expected value for the putative victim (that is, Harry)? 6. What sorts of normative positions are available in order to argue that it is wrong to produce a Down syndrome child instead of a normal one who will have a much better life?

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PART

IV

Neuroethics

What Is Addiction and Does It Excuse?

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CHAPTER

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Addiction, Habits, and Blame TIMOTHY SCHROEDER AND NOMY ARPALY

Abstract Addiction is controversial in at least two ways in bioethics. Theories of addiction are controversial. And theories of whether addicts are to blame for what they do out of addiction (or why they are to blame, or how much they are to blame . . .) are also controversial. In this chapter, we try to address both controversies. We think that there is a growing body of scientific work that gives central importance to the long-term effects of an overstimulated dopamine (reward) system in the explanation of addiction, and we think this work is pointing in the correct direction. So we draw on this scientific work to suggest a philosophical theory: Addicts are distinctively addicts not because of how much they want the drugs to which they are addicted but because of their unhealthily powerful habits (both mental and behavioral) and in their unhealthily strong (unconscious) expectations surrounding these drugs. With this theory in place, we go on to state a general theory for when and how much people are to blame for the bad things they do. Applying this theory to addicts, we reach the conclusion that when addicts do bad things out of their addictions, they are to blame—but less to blame than other, nonaddicted people would be for doing the same things in similar circumstances. Addiction mitigates blame but does not excuse addicts from all blame. * The popular image of the addict is of a person with a physical dependency on some drug: nicotine, alcohol, heroin, amphetamines. Because of the dependency, the addict is forced to keep consuming the drug or else suffer terribly. 117

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Nicotine withdrawal in chronic heavy smokers causes symptoms not unlike having a terrible flu for a week; sudden alcohol withdrawal can cause seizures; heroin withdrawal is often described as inducing an unbearable sort of wholebody nausea; amphetamine withdrawal can feel like an attack of depression. The scientific image of the addict used to match the popular image, but in the last two decades that has changed dramatically because of the striking fact that addiction outlasts withdrawal, often by years or even decades.1 Smokers who quit smoking often make it through physical withdrawal and then go back to smoking a month, or a few months, or years later, in spite of their good intentions to never smoke again. So too with alcoholics, heroin addicts, and every other familiar sort of addict. Bad decisions to go back to smoking, drinking, or consuming other drugs can be made by anyone, of course. But former addicts are much more at risk of making such decisions than people who have enjoyed smoking a few cigarettes, or drinking a few bottles of beer, or even recreationally using illegal drugs, before deciding that the risks were too great to make the practice worthwhile. This fact reveals that addiction is a deeper change than mere chemical dependency and a more mysterious change as well. The current scientific image of the addict also poses a challenge to moral philosophers trying to understand the responsibility of addicts. If addiction were just chemical dependency, then addicts would be just as responsible for their actions as everyone else. Of course, we would need to acknowledge that most of us do not have to accept a weekend, a week, or months of sometimes agonizing physical discomfort in order to act in a morally decent way. So sometimes addicts could be at least partially excused for doing something that nonaddicts could not be excused for doing (such as stealing $20) because when the addict does it, the alternative is to endure agonizing withdrawal. But, in general, the moral responsibility of the addict would have been simple to understand, if only the popular image were correct. Since the popular image of the addict is not correct, however, more work needs to be done, by the moral theorist as much as by the scientist.

1. The Science of Addiction Scientific work over the last two decades has converged on the brain’s socalled reward system as the key to understanding addiction.2 So any discussion should start with it. The word ‘reward’ conjures up a lot of associated ideas, but try to set these aside for the moment. To begin understanding the science, consider first a very illuminating line of research begun back in 1990, research that has served as the foundation for modern thinking about the reward system and its role in addiction ever since. With a series of collaborators, Wolfram Schultz studied the key cells of the reward system, cells deep in the brain that release a

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distinctive compound, dopamine.3 They found that, in the monkeys that they were studying, the dopamine-releasing cells were constantly active at a low rate, releasing a small but steady stream of dopamine to many different targets in the brain. They also found that when a monkey received a little treat (such as sweet juice), there was a sudden brief increase in the release of dopamine by these cells. So these cells release dopamine at a baseline rate, normally, but they can also get excited and briefly release a lot more dopamine before returning to their baseline activity.4 The next step was pairing a treat with advance warning. In one paradigm, a light that the monkey could see would turn on, and one second later the monkey would receive sweet juice. At first, there was no dopamine response to the light. Dopamine would be released at its baseline rate, and then the light would come on, and dopamine would still be released at its baseline rate, and then finally the sweet juice would arrive and there would be a surge of dopamine release. However, over time, things started to change. As the monkey had more experiences of the light followed by the juice, it began to have a dopamine response to the light. When the light came on, a little dopamine would be released, and then, when the juice arrived, there would be a second surge of dopamine. As more dopamine got released at the sight of the light, less got released at the taste of the sweet juice. Eventually, when the light came on, there would be a large burst of dopamine released in the monkeys, a burst just as large as had originally been released in the monkeys by getting a sip of sweet juice. And under this condition, when the juice itself arrived, there was no change in dopamine release. Dopamine release stayed at its baseline level. It was as if the power to cause a dopamine response had shifted from the tasting of the juice to the seeing of the light that predicted juice was coming. There was one more condition to test. What would happen when the monkeys who had been trained in this way saw the light but then did not receive the juice they had learned to expect one second later? In these monkeys, dopamine was released at the sight of the light, but then it dropped below baseline when no juice arrived! Over time, with various replications and further studies, the view came to be widely held that the release of dopamine by the reward system expresses what is called a “prediction error,” the gap between what is actually happening and what is (unconsciously) predicted. Scientists studying the system interpreted it as treating certain things in the world as rewards: things such as sweet juice and (for humans) money, cooperation, hearing a favorite song, and so on.5 The dopamine system both monitors for actual rewards and attempts to predict the rewards that are going to exist at any given moment. When actual rewards exceed predicted rewards, then there is a positive prediction error, and extra dopamine is released. When actual rewards match expected rewards, there is no prediction error, and a baseline quantity of dopamine is released.

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And when actual rewards fall short of predicted rewards, there is a negative prediction error and less dopamine is released. (Some scientists theorize that there must also be a parallel system focused on punishments instead of rewards, generating a parallel punishment signal using some other neural chemical. But this has not yet been demonstrated conclusively, so we will focus just on reward.6) In ordinary people, this system is constantly at work. Suppose you get an exam returned to you with a grade. You expected a B+, and you look at the exam, and it’s an A! If high grades are a reward for you, then you will have expected one level of reward but received more, so there will be a positive prediction error, and there will be a surge of dopamine inside you. If the grade is a B+, then your rewards will be just as expected, and so there will be no prediction error at all. You will continue to have baseline dopamine. And, if your grade is a B−, then you will have expected more reward than you actually got. This will generate a negative prediction error, and a drop in dopamine release will be the consequence. Surges in dopamine release are known to have effects on actions (they promote actions associated with them), feelings (they cause feelings of pleasure), thoughts (they influence what you think about and pay attention to), and even unconscious learning (they help to generate habits of action and thought, and more).7 So clearly, they are fairly important to a range of things people do, think, and feel. In particular, surges in dopamine are in some way very important to just what people choose. The distinctive fact about drugs that are addictive is that all these drugs reach inside the brain to directly or indirectly manipulate the dopamine system. They all get into the bloodstream and then into the brain, and then chemically interact with cells in the dopamine system or cells that are directly connected to cells in the dopamine system. The result of these interactions is that addictive drugs change the calculation of the prediction error from what it would have been to something with a more positive (sometimes, much more positive) prediction error value. This is not to say that addictive drugs are addictive just because they cause positive prediction error signals to be released in the form of dopamine. Unexpectedly good grades cause positive prediction error signals, after all, and no one is addicted to getting good grades (except metaphorically). Rather, addictive drugs are addictive because they bypass the brain’s ordinary calculation process and force it to generate a positive prediction error signal regardless of what the brain would have calculated otherwise.8 Imagine Cindy is an ordinary smoker who always smokes while drinking a cup of coffee first thing in the morning. No doubt, smoking (or the experience of nicotine, or the smell of tobacco, or all of these things) is a reward for Cindy, just as high grades or delicious juice might be. But at the same time, because she always smokes in this context, the reward of smoking is highly

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predictable by the unconscious prediction system used in calculating reward signals. When she smokes her first cigarette of the morning, then, her reward system should calculate that she is getting a reward (the cigarette) and should calculate that this reward equals expectations, and so Cindy should have no prediction error and release only a baseline quantity of dopamine. She should be just like the monkeys who have come to fully predict sweet juice one second after the light arrives and who get exactly what they predict. But what actually happens in Cindy is that, when the nicotine enters her lungs, it crosses into her blood, and then into her brain, and some of it reaches the cells of her reward system (and nearby cells). There, the nicotine causes changes that result in a positive prediction error signal being released anyway, in spite of the brain’s calculation saying that there should be no prediction error signal. The nicotine directly overrides the inner calculation by its chemical action on cells in or connected to the dopamine system. And this is not a special story specific to nicotine. It is the same story (with various complications of detail) for every addictive chemical. From all of this, it is clear that something is going wrong in Cindy and in every addict. But why does this one thing going wrong make someone an addict? Clearly, the answer must have something to do with the consequences of overriding the natural reward prediction error signal on many occasions over a long time. There must be consequences that build up over time (addictions become stronger as weeks of use turn into years) and that last even after consumption of addictive substances has stopped, creating the possibility of a person being a sober, abstinent addict who must still take care to manage her addiction long after the smoking, drinking, or other drug use has ended. The science of addiction has targeted two main lasting consequences of the overriding of the natural reward prediction error signal. One consequence involves the creation of lasting habits.9 These include habits in the ordinary sense: actions one tends to take without thinking when there is some familiar cue. But they also include habits of mind: patterns of thought and tendencies to form plans or think of certain things (or tell oneself certain excuses) that have, like habitual actions, developed over time. Both sorts of habits, it turns out, are built entirely through the influence of dopamine. When mental or outward actions, prompted by a cue, tend to be followed by surges of dopamine, then a habit is generated to think that thought or to take that action in response to the cue. The other consequence involves the creation of lasting changes in the predictive system itself—changes in the system that predicts reward. The (small or large) surge of dopamine generated each time an addictive drug is used has the effect of telling the predictive system that it should have predicted an even bigger reward and that it should recalibrate itself to do so in the future under similar conditions. Think again of the monkeys seeing lights and getting

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sips of sweet juice. When the monkey’s reward systems begin to register that a reward is coming as soon as the light comes on, that registration is at first a weak one, and so, when the juice arrives, it is not fully predicted by the reward system. The prediction system then, over time, predicts a stronger and stronger reward, until the reward predicted when the light comes on finally matches, exactly, the reward attained by getting sweet juice. At that point, the prediction system stops predicting stronger rewards. After all, predictions of reward are now matching actual reward. But that requires a change in predictions. That change, it turns out, requires dopamine surges as part of its input. And in people using addictive drugs, those changes to the prediction system never stop happening. The predictive system just nudges up its prediction of how much reward will be attained when you smoke, drink, use cocaine, swallow Ecstasy, or the like, without any natural stopping point. (This effect happens much more powerfully with cocaine than, say, alcohol; this is due to the fine details of the effects of these different drugs, and these are details we will not be getting into.)

2. Interpreting the Science of Addiction To understand the significance of what is going wrong with the reward system, it will help to start by understanding the ordinary significance of the reward system. So that’s where we will start. We think of the reward system as realizing our wants or desires.10 Suppose you want something (for itself, not just as a way of getting something else). Maybe you want to eat chocolates. Maybe you want your parents to live long and healthy lives. Maybe you want the New York Yankees to lose their games. Whatever you want, you have your idea of it, and that idea influences you in certain ways. You do things to get chocolates to eat (you pick up a chocolate from the open box), or to make your parents live long healthy lives (you encourage them to eat kale and stop smoking), or to make the New York Yankees lose their games (you shout “Choke!” at the baseball game). You feel things too: You feel good when you get what you want, and you feel bad when you are denied what you want. (You can use this fact to learn about what you want, when what you want is hard to figure out. Do you really want to spend your life with that other person? Well, how do you feel about the idea of getting married?) And then the idea of what you want influences what you pay attention to. If you hear people are talking about chocolate, and you want to eat chocolate, you’ll start paying attention. And your desire has other effects on you as well. If you want your parents to live long healthy lives, for instance, you might unconsciously convince yourself that they’ll never get lung cancer even though they both smoke because you just want it to be true. These roles for desires in action, feeling, and thought are also the roles played by the reward system. When the reward system treats eating chocolate

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as a reward, then when you get chocolate (that you don’t take for granted), you get motivated to acquire the chocolate and eat it, you feel good about getting the chocolate, and it grabs your attention. When your reward system treats eating chocolate as a reward, but you take getting chocolate for granted (maybe your mom has worked for the Lindt chocolate company for 20 years and always has tons of samples around the home), then you will sometimes eat chocolate but be less motivated; you might sometimes feel good about eating chocolate but usually feel nothing special and not normally pay much attention to chocolate. And when your reward system treats getting chocolate as a reward for you and you take it for granted, and then suddenly there’s no chocolate one day (maybe your mom lost her job, got mad, and threw it all away), you stop what you’re doing, feel bad, and start looking around to figure out where the chocolate went! These are exactly the same things we would expect from a person who desires to eat chocolate or from anyone who wants anything. Because we think that the roles played by desire and the roles played by the reward system match, we say that our desires are realized by our reward system. But in this volume, Neil Levy argues that the reward system is actually a system for predicting error more generally: error in the brain’s models of how the world is, including models of whether certain actions are to be done or not to be done. Why do we disagree? To our way of thinking, Levy’s theory does not go far enough in explaining the match between the diverse roles of the reward system and the diverse roles of desires. Some failures of the world to match expectations are a huge relief, while others are a huge disappointment, and others are a neutral, meaningless surprise. The times when you really wanted something not to happen but took for granted that it probably would, only to be proven wrong, are the times when the violation of expectations felt good. And the times when you really wanted something to happen and took for granted that it would, only to be proven wrong, are the times when the violation of expectations felt terrible. Other violations of expectations can be striking but feel neither good nor bad. These sorts of facts suggest to us that it is the expectation of getting (or being denied) what we want, combined with experiences of actually getting what we want (or being denied it), that play a special role in us—a role that aligns with what is known about feelings of pleasure and displeasure and the reward system. Expectations and experiences of the facts in a more general fashion no doubt play important roles in our brains, but we doubt that those roles are so closely connected to the reward system. So suppose for now that we have the right story about the reward system or something near enough to it. If ordinary desires are found in the structure of the reward system, then what is going on in addicts? Do addicts desire to consume nicotine, alcohol, heroin, cocaine, and so on? Yes. They have desires to consume these substances or related desires (to obliterate consciousness,

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to feel pleasure, to stop feeling bad, to have fun socially, and so on) and probably multiple desires that lead them to consume the drugs to which they are addicted. But in this particular respect, addicts are just like nonaddicts who have tried and enjoyed nicotine, alcohol, heroin, cocaine, or any other addictive substance. Lots of people who are not addicts also want to smoke the occasional cigarette, drink a glass of whiskey, or use illegal recreational drugs. How, then, is the addict different from other people? In the last section, we reported the growing scientific view that addicts differ from other people in the long term (including after they stop consuming the drugs to which they’re addicted and beat the symptoms of physical withdrawal) in two ways. They have changes to the predictive component of the reward system, and they have changes in their habits. What does that mean for their desires? Changes in the predictive component of the reward system are not, we think, changes to what a person wants or to how much she wants it. Instead, they are changes to what she takes for granted, what she expects “deep down,” in “her gut.” They are changes in what she is jaded to and what she is hardened to. In a person who has never been a nicotine addict but who enjoys smoking very occasionally, the predictive component of the reward system works more or less normally. If she refuses the cigarette, the calculation of actual reward (zero) minus expected reward (the expected value of getting a cigarette equal to how much it is wanted generally) will be some negative value, and that should make this person hesitate before refusing or feel a little sad about refusing. Still, if there are other good things to gain by refusing (better health, not needing to wash her hair later to get rid of the smell), then maybe these will contribute to their own reward calculations, and the overall weight will go with refusing. In a person who has been a nicotine addict, the predictive component of the reward system will work abnormally. It will have learned to treat getting nicotine as a huge reward. If the addict refuses the cigarette, the calculation of actual reward (still zero) minus expected reward (the expected value of getting a cigarette, which is now enormous) will be a hugely negative value. That should make the former smoker completely hesitate to refuse and make her feel terrible about the idea of refusing. Her attention will be locked onto that cigarette she’s offered, because of the huge negative reward calculation associated with refusing and the huge improvement in expected reward when she thinks about accepting. Thoughts about better health and bad smells will have much weaker effects on her reward system in comparison to the powerful effects had by the idea of smoking, all because of the out-of-control change that has happened, through past smoking, to the reward prediction system.11 And as a result, the nicotine addict will have much more motivation to smoke, feel much more deprived when refusing a cigarette, and will have trouble thinking about anything else while the cigarette is available. Not surprisingly,

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she will be more likely to accept the cigarette than someone who was never addicted, even if both of them wish they could have the occasional cigarette and both of them care about health equally. And, of course, what goes for the nicotine addict goes at least as much for the alcoholic, the heroin addict, the cocaine addict, and other addicts. If that is the role of the reward prediction system in addiction, what is the role of habit? It is easy to think that habits are easily ignored, but there are habits of thought as well as habits carried out in action, and it is not easy to monitor yourself at every moment. The person who has never been addicted to nicotine will have no special habits associated with smoking. She will have some ordinary and nearly universal habits, of course, such as looking both ways before crossing the street, and some personally idiosyncratic habits, such as, perhaps, checking her wrist (where she normally has a watch with a date display) when she wants to know the date. She will have some mental habits too, perhaps including the philosophical habit of searching for counterexamples every time she hears someone say that “everyone does X.” But her habits will not be particularly related to her occasional smoking of a cigarette. The addict will have these normal habits too. But, even if she has not smoked for years, she will also have a set of habits built by smoking. Every time some thought or action of hers led directly to inhaling nicotine, the action of the reward system led to building a habit to again think those thoughts or do those actions in the future. Some of these habits are harmless to the addict, such as the habit of holding any small tube (even pieces of chalk) as if it were a cigarette, for example. But other habits make life hard for the addict who wants not to smoke. There are habits such as going out with friends who still smoke (a habit that makes trouble because it increases the chance of being tempted), and mental habits such as thinking how great a cigarette would be with this cup of coffee or glass of whiskey or meal or. . . . Nicotine addicts (unintentionally) habituate themselves into thinking these sorts of thoughts because thinking them often leads to getting nicotine, and that encourages the thoughts to keep coming. After deciding to quit, the habits do not go away. And so the smoker who quits is plagued with actions and thoughts that put temptation in her path, much more so than the person who has smoked occasionally but not often enough to be addicted. And these sorts of habits plague every sort of drug addict, not just the smokers. Remembering how complicated life is helps to remind us of how important our habits are to keeping us on a sensible path. We cannot keep track of everything, consciously or unconsciously, that matters to us. We need to have reliable paths that we trust. If someone says “Myra and Phil want to go out for a bite at Dinah’s Diner,” we can remember how we feel about Myra and Phil and the two of them together, and maybe we know something about the food at Dinah’s. But will we always remember that Phil smokes and that Dinah’s

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has an outdoor patio where smoking is permitted and that Phil always nags us to have a cigarette when he’s smoking. Maybe not. If we’re in the habit of going to Dinah’s when choosing a place because of our days of smoking in the past, then that habit could betray us when we’re making a decision in the present. Once you’ve said, “Sure, Dinah’s sounds great,” then everyone will expect you to go and not make a fuss, and then you’ll have to put up with Phil, and be tempted, and deal with the huge signals generated by your faulty reward prediction system. If you weren’t in the habit of going to Dinah’s, you might have hesitated before answering, but your habit betrayed you. And in the drug addict who has spent a long time addicted, her habits are always waiting to betray her. She has to watch herself like a hawk, if she is going to avoid putting herself in the path of temptation. And, not surprisingly, that is hard to do. Of course, these habits have nothing to do with how much an addict wants to use a drug and have nothing to do with how much an addict wants to be healthy or to keep a promise to stay sober. Habits exist because of past experiences with things that mattered to you in some way, but they do not automatically reflect what matters to you now, and addiction shows that they do not have to be proportional to how much your reward system treated something as a reward. In our way of thinking about things, that means habits do not have to be proportional to how much you once wanted something. Even if you only had a moderate desire to smoke, you can get some awfully strong habits from 20 years of smoking.

3. Blaming Addicts You can blame an addict for at least two things: the things she did that led her to become addicted (or to get more addicted) and the things she did after she was an addict (to some extent) that she did because she was an addict. Blaming an addict for the things she did that led her to become an addict is reasonable enough, but it’s just like blaming anyone for anything that has bad long-term consequences she should have been able to see. “Why did you start smoking when you knew you’d become addicted and maybe get cancer?” is just like, “Why did you not save any money for retirement, when you knew eventually you’d have to stop working and live on your savings?” Before a person is an addict, blaming her for what she does is just like blaming anyone else for anything else. So we will set that to one side. What’s interesting is blaming addicts for things they do specifically because they are addicts. The smoker knows she is wrecking her health, badly. Maybe she is going through a bout of pneumonia, a disease she gets at least once a year because of the mess smoking has made of her lungs. But she says, “It’s just so hard to stop.” Or the cocaine addict who has spent everything he owns on cocaine and who knows that stealing $20 from a friend is wrong. But he says, “I just want it so badly I can’t think about anything else.” We might blame the

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smoker for smoking, and the cocaine addict for stealing. But if we are fair, we will admit that there is something to what they say. It is hard to stop smoking, and it is hard to think about how wrong stealing is when you’re addicted to a drug that you can afford only by stealing. These facts do not make us say that the actions are right, and they do not make us say that the addict is completely not to blame for doing what they do. Some addicts stop smoking when it wrecks their health; some cocaine addicts stop using when it wrecks their finances. These people are not robots blindly doing what the drugs tell them to do. They are acting for their own reasons. They seem responsible. And yet a person who wasn’t ever addicted to nicotine (but who likes smoking the occasional cigarette) who smoked one cigarette right when it would mess up her health (maybe she’s on medication that could give her a heart attack when mixed with nicotine) would seem utterly irresponsible if she would smoke that cigarette. Likewise, the person who was broke from buying too many luxury clothes and shoes and electronics and who then stole $20 from a friend to buy a knockoff Prada handbag would seem utterly irresponsible. The addicts get a little more sympathy from us than these imaginary people. Why? To see why, it will help to think more generally about blame. People are to blame for their wrong actions when they act out of malice (to hurt or diminish people) or when they act with reckless indifference to others.12 If Wilma steps on Betty’s foot to hurt her (maybe she is mad she lost a game of chess to Betty), then Wilma does something wrong out of malice. If Wilma sees the very last big-screen TV on sale and rushes over without caring that Betty is in the way and, in doing so, stomps on Betty’s foot, then Wilma does the wrong thing because she was recklessly indifferent to whether Betty got hurt, so long as Wilma got that TV. This theory of blame is, like many philosophical theories, very controversial. But we think it sounds pretty reasonable.13 Applied to the actions addicts do out of addiction, it leads to an interesting result. If an addict wrecks her life or someone else’s out of addiction, is she acting out of malice? No. Addiction does not give anyone a desire to hurt, diminish, or dominate anyone else or to do anything else that would count as malice. What about reckless indifference? The addict does seem to show some reckless indifference. The person who wrecks her own life seems to not care enough about her health (or how much her life means to others dependent on her) to stop smoking or drinking or whatnot. She seems to care more about smoking. And the person who steals from a friend to buy more cocaine seems not to care enough about his friend and his friend’s right to that money. He seems to care more about getting cocaine. Or, to put things very precisely into our framework, the addicts seem to desire their drugs much more than they desire other things, even though those other things are morally important. In the last section, though, we argued that what makes a person an addict is not that the person has a powerful desire for nicotine, alcohol, heroin,

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cocaine, or any other drug. Instead, what makes a person an addict are changes in that person’s unconscious reward predictions and habits that make that person much more likely to take actions (and think thoughts) that lead to getting more of the addictive drug. So, of course, it is possible to imagine a person who just very much wants to smoke and who does not care about her health in comparison (her desire to smoke is just much stronger than her desire to be healthy). If wrecking her health is wrong (say, because her elderly parents depend on her for their survival), and if she wants to smoke so much that she keeps smoking even at the cost of her health and so her parents’ lives, then it seems she even desires to smoke much more than she desires that her parents live. And, of course, if this is the case, she is recklessly indifferent to what is morally important and fully to blame for her actions. But it is also possible to imagine a person who has just an ordinary desire to smoke but who often ends up smoking anyway, even when the person much more wants to be healthy or to protect her parents in their old age. That person smokes only because she is an addict, only because she has disordered reward calculations and habits that lead her to do things that she does not want to do overall. This person might be doing something wrong while smoking, and, of course, if she had even better priorities (if her health or her parents’ lives were even more important to her, say), she would find it easier to quit. But she is not just recklessly indifferent to the consequences of her actions. She is less to blame for risking her health and the lives of her dependents, then, because she is less recklessly indifferent than she seems. And so, we think, it is with addicts in many such cases. All of our discussion has been in the service of reaching this point, so we should say just a little more about our idea. It is certainly not that addicts are helpless slaves and so excused for everything they do out of addiction. On our view, this is quite wrong. Addicts are people who act for their own reasons, in a way that reflects their own priorities—to some extent. But our view is also not that addicts have made their own choices and are therefore just as much to blame for doing bad things out of addiction as anyone else. Instead, we see a middle path, that occasionally applies to all of us but often applies to addicts acting on the basis of their addictions. All of us sometimes do bad things, not because we don’t care at all or even because we don’t care very much but because at the moment of action we are acting partly out of habit, or partly out of tiredness, or partly out of drunkenness. Perhaps at a party insecure Frank asks you whether you think he’s put on weight, and you tell him he’s “looking fatter,” and poor Frank is hurt and wonders what on earth made you say something so mean. The truth might be that you don’t have much of a desire to protect other people’s feelings, and so you just recklessly went ahead and said something you pretty much knew would be hurtful. If that were the truth, no one would think you were excused

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from being blamed. But the truth might be something a little less harsh. It might be that you spend most of your time as a blunt, no-nonsense counselor to people on probation. And you have built up conversational habits of bluntness and directness that sometimes kick in even when you’re not talking to former criminals, and it was your workplace habits, more than anything else, that explained why you were so rude. If that were the truth, that would be a pretty decent excuse for telling Frank he’s looking fatter. You want to be kind as much as anyone else, but you have some habits that occasionally lead you to say the wrong thing. In this case, Frank might say, “Well, ok, but you could have been nicer, don’t you think?” And he would be right. You could have been nicer— nice enough that you might not have said the thing that your habit led you to say, and there’s no getting around the fact that you did the wrong thing. You don’t have a perfect excuse. Still, Frank should also admit that you weren’t acting like a complete jerk and recklessly not caring whether he was hurt. That’s not what acting out of habit is like either. The most reasonable position is in the middle: You should say you’re sorry, but Frank shouldn’t treat you like you did something utterly callous either; you’re only a little blameworthy. Similarly, it might be that you were very tired or rather drunk, and you just couldn’t think of a way out of telling Frank the truth because you were too exhausted or intoxicated to figure something out quickly, and so you just went with the first thing to come out of your mouth. If you had been a little fresher and sharper, you wouldn’t have told Frank he’s looking fatter because you want to protect people’s feelings when you can as much as anyone, but your (partial) excuse for saying something hurtful is that you were just in a bad position to act the way you wanted to: too tired or too drunk to do what you had most reason to do, given what you genuinely want. In these scenarios, again, it seems fair to agree that you did the wrong thing in part because you’re not a saint who could never say something so blunt, however tired or drunk, while also emphasizing that you’re not an unfeeling meanie either. You’re to blame, but not as much to blame as an unfeeling meanie would have been. Our view is that addicts are in these sorts of situations quite often when acting out their addictions. Being an addict doesn’t make you a helpless robot, but it does impair your ability to act in a way that truly reflects what you really want. The mental habits and outward habits and unconscious expectations that using addictive drugs builds up inside a person make an addict more like a person in the grip of a workplace habit, or in the grip of sleepiness or intoxication, even when they’re wide awake and not intoxicated and not in a situation where a normal person would have a habit. The addict is still in the position of having inner forces at work that are partial (sometimes, very substantial) obstacles between her ordinary good intentions and her actual actions. And so, when an addict does something wrong in part because of her habits or her unconscious expectations or both, then while the addict has clearly done something wrong and is probably to blame for it, there is also likely to be some

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partial excuse. The addict comes across as callous or unfeeling, caring only about the addictive drug, but that impression is misleading. The truth is often that, while a saint would have done better, the addict might be a lot less unfeeling or callous than she seems. Different cases will be different, of course, and so we do not claim to have a one-size-fits-all conclusion to draw. But we have still reached the conclusion we meant to reach. Being an addict changes how a person will act and does so, in part, without changing how malicious or indifferent that person is. As a result, when an addict does something wrong because of her addiction, it will at least sometimes be true that her action appears terribly malicious or indifferent, when really it is not. And thus, it will at least sometimes be true that an addict is less to blame—even much less to blame—than she appears to be for the wrong she has done.

Notes 1. Hyman (2005) is representative of this change. 2. For a tiny fraction of the literature representing this way of thought, see Berridge and Robinson (1998), Gardner and David (1999), Hyman (2005), or Schultz (2011). 3. See Schultz, Dayan, and Montague (1997) for a clear overview and full citations. 4. We walk through all these details with more careful and detailed explanations in Arpaly and Schroeder (2014, chaps. 6 and 11). 5. For this sort of diversity in sources of reward signals, see, e.g., Knutson et al. (2001), Rilling et al. (2002), Aron et al. (2005), Salimpoor et al. (2011). 6. For some first steps, see the literature reviewed in Schroeder (2004, 54–7). 7. Reviewed in Schroeder (2004, chap. 2). See Arpaly and Schroeder (2014, chap. 6) for an updated review. 8. See Berridge and Robinson (1998), Gardner and David (1999), Hyman (2005), or Schultz (2011). 9. The dopamine system has long been linked to habit in general, as well as to habits inculcated through using addictive drugs in particular. See, e.g., Packard and White (1991), Knowlton, Mangles, and Squire (1996), White (1996), Packard and Teather (1997), and Schroeder (2010). 10. For a full defense, see Schroeder (2004). For a shorter version of the argument, see Arpaly and Schroeder (2014, chap. 6). For competing views, consider, e.g., Morillo (1990), Holton (2009), and Yaffe (2013). 11. Thus we see changes in the unconscious reward prediction system as implementing the existence of the “cravings” that are the focus of Loewenstein (1999) and its theory of addiction. 12. For a full development of the following theory of blame, see Arpaly (2003, chap. 3) and especially Arpaly and Schroeder (2014, chap. 7). 13. Some well-known competing theories of blame can be found in Frankfurt (1971), Watson (1975), Herman (1993, chap. 1), and Scanlon (2008).

References Aron, Arthur, Fisher, Helen, Mashek, Debra, Strong, Greg, Li, Haifang, and Brown, Lucy (2005) “Reward, Motivation, and Emotion Systems Associated with Early-Stage Intense Romantic Love.” Journal of Neurophysiology 94: 327–37. Arpaly, Nomy (2003) Unprincipled Virtue. New York: Oxford University Press.

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Arpaly, Nomy, and Schroeder, Timothy (2014) In Praise of Desire. New York: Oxford University Press. Berridge, Kent, and Robinson, Terry (1998) “What Is the Role of Dopamine in Reward: Hedonic Impact, Reward Learning, or Incentive Salience?” Brain Research Reviews 28: 309–69. Frankfurt, Harry (1971) “Freedom of the Will and the Concept of a Person.” Journal of Philosophy 68: 5–20. Gardner, Eliot, and David, James (1999) “The Neurobiology of Chemical Addiction.” In Getting Hooked: Rationality and Addiction, edited by Jon Elster and Ole-Jørgen Skog, 93–136. Cambridge: Cambridge University Press. Herman, Barbara (1993) “On the Value of Acting from the Motive of Duty.” In The Practice of Moral Judgment. Cambridge, MA: Harvard University Press. Holton, Richard (2009) Willing, Wanting, Waiting. Oxford: Clarendon Press. Hyman, Steven E. (2005) “Addiction: A Disease of Learning and Memory.” American Journal of Psychiatry 162: 1414–22. Knowlton, Barbara, Mangels, Jennifer, and Squire, Larry (1996) “A Neostriatal Habit-Learning System in Humans.” Science 273: 1399–1402. Knutson, Brian, Adams, Charles M., Fong, Grace W., and Hommer, Daniel (2001) “Anticipation of Increasing Monetary Reward Selectively Recruits Nucleus Accumbens.” Journal of Neuroscience 21: 1–5. Loewenstein, George (1999) “A Visceral Account of Addiction.” In Getting Hooked: Rationality and Addiction, edited by Jon Elster and Ole-Jørgen Skog, 235–64. Cambridge: Cambridge University Press. Morillo, Carolyn (1990) “The Reward Event and Motivation.” Journal of Philosophy 87: 169–86. Packard, Mark, and Teather, Lisa (1997) “Double Dissociation of Hippocampal and DorsalStriatal Memory Systems by Posttraining Intracerebral Injections of 2-Amino-5-Phosphonopentanoic Acid.” Behavioral Neuroscience 111: 543–51. Packard, Mark, and White, Norman (1991) “Dissociation of Hippocampus and Caudate Nucleus Memory Systems by Posttraining Intracerebral Injection of Dopamine Agonists.” Behavioral Neuroscience 105: 295–306. Rilling, James K., Gutman, David A., Zeh, Thorsten R., Pagnoni, Giuseppe, Berns, Gregory S., and Kilts, Clinton (2002) “A Neural Basis for Social Cooperation.” Neuron 35: 395–405. Salimpoor, Valorie, Benovoy, Mitchel, Larcher, Kevin, Dagher, Alain, and Zatorre, Robert (2011) “Anatomically Distinct Dopamine Release during Anticipation and Experience of Peak Emotion to Music.” Nature Neuroscience 14: 257–62. Scanlon, Thomas (2008) Moral Dimensions: Permissibility, Meaning, Blame. Cambridge, MA: Harvard University Press. Schroeder, Timothy (2004) Three Faces of Desire. New York: Oxford University Press. Schroeder, Timothy (2010) “Irrational Action and Addiction.” In What Is Addiction?, edited by Don Ross, Harold Kincaid, David Spurrett, and Peter Collins, 391–407. Cambridge, MA: MIT Press. Schultz, Wolfram (2011) “Potential Vulnerabilities of Neuronal Reward, Risk, and Decision Mechanisms to Addictive Drugs.” Neuron 69: 603–17. Schultz, W., Dayan, P., and Montague, P.R. (1997) “A Neural Substrate of Prediction and Reward.” Science 275: 1593–99. Watson, Gary (1975) “Free Agency.” Journal of Philosophy 72: 205–20. White, Norman (1996) “Addictive Drugs as Reinforcers: Multiple Partial Actions on Memory Systems.” Addiction 91: 921–50. Yaffe, Gideon (2013) “Are Addicts Akratic? Interpreting the Neuroscience of Reward.” In Addiction and Self-Control: Perspectives from Philosophy, Psychology, and Neuroscience, edited by Neil Levy, 190–213. New York: Oxford University Press.

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How Addicts Lose Control NEIL LEVY

Abstract Addiction is almost universally held to centrally involve a loss of control over drug seeking and using. But there is a puzzle: Almost all the behavior involved in seeking and using drugs satisfies standard conditions for instrumental rationality and therefore seems to count as controlled behavior. I resolve the puzzle by arguing that addiction involves a loss of control not over behavior but over the states that control the behavior. Addicts experience cue-driven shifts in their mental states. I then turn to the implications of this account for moral responsibility. I argue that the disposition to experience such shifts entails an impairment of diachronic agency, and diachronic agency is a necessary condition of moral responsibility. There are therefore good grounds for excusing addicts for much of their behavior or at least significantly mitigating their degree of moral responsibility. * Addiction and addictive drugs raise a number of ethical concerns—regarding the ethics of deliberately intoxicating oneself, of complicity with organized crime, and so on—but the issue that has attracted the most attention concerns the responsibility of addicts. Addicts are puzzling: Their behavior seems to be under their control, and yet they often say that they would greatly prefer to stop taking drugs, and they may pay such a high price for their continued addiction that we find it difficult to believe that they choose to act as they do. Because their behavior is puzzling, we find ourselves at a loss when it comes to assessing their responsibility: Should we blame them for taking drugs (if we think taking 132

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drugs is wrong) or for engaging in immoral actions in the course of procuring drugs, as we blame other agents who act immorally? Or should we excuse them? Different philosophers have offered different and conflicting responses to these questions over the years. I will offer an account that excuses many addicts for many of their immoral actions and greatly mitigates their responsibility for others. This account contrasts quite sharply with that offered by Tim Schroeder and Nomy Arpaly in their chapter. These differences are partly explained by what we share: A conviction that the theory must be responsive to the best available account of how addiction affects agents’ decision making and that this account will be drawn in very significant part from contemporary neuroscience. In fact, our agreement goes further: We agree that addiction must be explained by reference to how addictive drugs affect the mesolimbic dopamine system. It is because Schroeder and Arpaly offer an interpretation of the science that contrasts with mine that they come to different conclusions regarding the responsibility of addicts. Schroeder and Arpaly think that the dysfunction of the mesolimbic dopamine system results in changes in the addict’s expectations and that these changes affect how motivating drugs are for her. These facts, together with facts about the role of habits, mitigate her responsibility because they entail that when she acts to procure and consume drugs, she doesn’t act out of a bad quality of will. In my view, addicts’ actions when procuring and consuming drugs are less disordered than Schroeder and Arpaly seem to suggest. I will argue that the behavior of addicts is under their control. I will claim that there is a strong case for saying that nevertheless they have lost control not over their actions but over their mental states. I will argue that this fact constitutes strong grounds for mitigating their responsibility for procuring and consuming drugs (to a much greater extent than Schroeder and Arpaly suggest), in many circumstances excusing them altogether. I will argue that addiction brings into focus a kind of excusing condition to which accounts of moral responsibility have not hitherto paid attention; understanding how addiction excuses, when it does, requires us to rethink our account of moral responsibility. Addiction undermines our capacity to exercise diachronic agency, and this is a capacity we require to be autonomous and responsible agents. Before I begin, let me say a word about the set of addicts to whom my remarks apply. I am concerned with the most puzzling set of addicts: those who firmly and sincerely resolve to abstain from consuming drugs. Abstinent addicts, as I will call them, are puzzling because they so often go on to consume in spite of their firm resolution and do so apparently willingly. Not all addicts are abstinent addicts: some have no wish to give up taking drugs, and some have given up on giving up, usually because they feel it is hopeless. But abstinent addicts are common enough. Proverbially, addiction is a chronic relapsing disease; explaining how abstinent addicts come to consume is explaining what makes it a relapsing disease.

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1. The Puzzle of Addiction It is widely held that addicts have in some way lost control over their behavior. Scientists who specialize in addiction often make that claim (Leshner 1999; Everitt and Robbins 2005; Hyman 2005), and addicts themselves affirm it. And yet addicts’ behavior looks quite normal. Notoriously, addicts may engage in a long series of actions (some of them illegal) to procure drugs and a safe place to consume them, and this behavior looks like ordinarily reasons-responsive action. It involves planning. An addict procures drugs by doing the same kinds of things that you and I might do to procure milk (getting into a car and driving to a location where it is to be had, conducting a financial transaction, and driving back). The best explanation for this behavior, it seems, is that at the moment of action (and despite their sincere and wholehearted commitment to abstinence), the addict desired drugs and believed that this series of actions was a means to procure drugs, just as the best explanation of my behavior is that I desired milk and believed that this was a way to procure milk. Further, addicts often—typically, it seems—give up taking drugs, and they do so for entirely banal reasons. They give up drugs when life offers them something more rewarding (Heyman 2009). In the face of the fact that addicts’ behavior looks like ordinary, instrumentally rational behavior, it is tempting to conclude that it is entirely ordinary, that addicts are people who just prefer consuming drugs, and continue to do so until some better option is offered (Foddy and Savulescu 2010). We might explain away their protestations to the contrary as hypocrisy or, more charitably, as self-deception. There are good reasons to resist this temptation, however. One reason to resist the temptation is that addicts sometimes pay a very high cost for their habit, a cost high enough to throw into doubt the suggestion that they simply prefer consumption to abstinence. They may sacrifice relationships, career, and their dignity in the pursuit of drugs, and they may continue to consume them even as the impacts on their health mount. Do addicts really prefer their drugs to self-respect, to their health, and to their relationships? Consumption of drugs is pleasant, but few people report it as all that pleasant. A second reason to resist the thought that addicts simply have unusual preferences is the effort that they often invest in preventing themselves from consuming. Addicts spend a lot of time and a lot of money procuring drugs, but they many also invest a great deal of time and money in an effort to prevent themselves relapsing (Ross et al. 2008). They may voluntarily check themselves into rehab, for instance, perhaps multiple times. Again, this behavior is difficult to explain on the hypothesis that they simply prefer taking drugs to abstinence. In the face of this kind of evidence, most people accept that addicts suffer some kind of impairment of their capacity to control their behavior. One

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popular theory is that the pains associated with withdrawal coerce them into relapsing: They may set out to refrain but find that they can’t bear the mounting discomfort. No doubt withdrawal is a powerful incentive to consumption, but it doesn’t come close to explaining the puzzle of addiction. Not all drugs produce powerful withdrawal symptoms (nicotine, one of the most addictive of all drugs, does not produce phenomenologically insistent withdrawal symptoms; West 2006). Moreover, addicts remain very prone to relapse long after withdrawal symptoms have passed. Another popular account has the addict overcome by an irresistible desire that overwhelms her capacity to act as she wishes, but this too is false: Again, not all drugs are associated with cravings, and, as we have already seen, addicts retain sufficient control over their behavior at all times to engage in instrumentally rational behavior. I think the evidence that addicts’ behavior is instrumentally rational— that it is controlled by their beliefs and desires, just like my milk-procuring behavior—is overwhelming, and only in extremis should we abandon the hypothesis that this is true. As we have also seen, though, we cannot simply conclude that addicts have different preferences to nonaddicts. We need to postulate some kind of pathology to make sense of their behavior. I suggest that the best explanation is that addicts are subject to recurrent losses of control over their mental states. At every moment, the addict is doing what she sees herself as having most reason to do, but addicts who resolve to abstain are apt to experience recurrent and uncontrollable shifts in what they see themselves as having most reason to do. They change their mind, but this change of mind is not a rational revision of judgment; rather, it is pathological.

2. Judgment-Shift In this section, I will outline the reasons for thinking that the set of addicts with whom I’m concerned—abstinent addicts—are subject to what Holton (2009) calls judgment-shift. I will delay discussing the reasons why we ought to see this judgment-shift as constituting a loss of control (and not a mere change of mind) until the next section, where I will also discuss the implications of my account for moral responsibility. One reason for thinking that abstinent addicts experience judgment-shift is that the hypothesis makes sense of their behavior. One and the same addict may engage in behavior that is consistent over the medium term but inconsistent over the longer term (checking into a rehab clinic; deleting the cell phone number of their supplier, on the one hand; driving to somewhere they know their supplier hangs out and then buying and consuming drugs, on the other). Each medium-term stretch of behavior is coherent and understandable if we suppose that during it, the addict judges that he ought to act as he does. We need only to suppose that their judgment regarding what they ought to do shifts from stretch of behavior to stretch of behavior to make sense of it. Given

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that no other hypothesis has the explanatory power of the judgment-shift hypothesis, we ought to adopt it. Further, neurobiological evidence provides a plausible mechanism for judgment-shift. It is widely held that addiction is centrally characterized by a dysfunction of the mesolimbic dopamine system (as already mentioned, this is a claim with which Schroeder and Arpaly agree). This system plays a role in tracking expected reward (Montague, Dayan, and Sejnowski 1996; Schultz, Dayan, and Montague 1997). In a classic series of experiments, Schultz et al. (1997) recorded the activity of dopamine neurons in the brains of monkeys. In this experiment, a light was flashed and the monkeys then received a squirt of juice. In the initial rounds of the experiment, there was a spike in the activity of dopamine neurons when the juice—a reward—was delivered. However as the experiment went on, and the monkeys learned that the flashing of the light predicted the reward, dopaminergic activity spiked in response to the light, while remaining flat at reward delivery. Dopamine activity seems to respond to and signal unexpected reward. The light is not predictable by the monkey, so when it flashes, dopamine neurons fire. But once the light has flashed, the monkey expects the reward, so there is no increase in activity in response to the reward itself. This interpretation of the dopamine signal is boosted by the finding that if the light flashes and no reward is forthcoming, activity in dopamine neurons actually falls below the baseline. This same circuitry is dysfunctional in addiction. One way or another (by directly driving up dopamine, by delaying its reabsorption, and so on), addictive drugs all cause a spike in dopamine. Amphetamine, nicotine, cannabis, cocaine, and alcohol all either stimulate dopamine release or decrease dopamine reuptake. They thereby increase dopamine in the nucleus accumbens. Opioids increase dopamine indirectly by influencing neurons that alter accumbal dopamine (Carter and Hall 2012). In other words, addictive drugs cause a spike in the very currency that tracks expected reward value. As a consequence, someone who is experienced with drugs undergoes a spike in dopamine in response to cues that predict drug availability (the sight of drug paraphernalia or perhaps of people with whom they have consumed in the past), just as they should in response to anything else they find rewarding. But they also experience a spike in dopamine when they consume the drug. They cannot learn the actual reward value of the drug because it has hijacked the machinery that tracks expected reward: Every time they consume, the reward prediction machinery ‘learns’ that the drug is better than it expected. This much is uncontroversial. It is highly controversial what role this dysfunction in the mesolimbic dopamine system plays in explaining addiction. The explanation will, of course, depend in very important part on what role the spike in dopaminergic activity plays in the normal case. There are various options (not all of them mutually incompatible). Dopamine is known to play a role in the regulation of attention, for instance: The dopaminergic

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signal may cause the person to orient toward the expected reward, crowding out other distractions from conscious awareness. Yaffe (2013) suggests that the dopamine signal causes or partially constitutes the agent’s valuing of its cause; for Schroeder and Arpaly (2013), the signal is associated with or partially constitutes the person’s desire for the cause. I think neither account is quite right. I think the dopaminergic firing constitutes a mechanism for judgment-shift. The mesolimbic dopamine system is better thought of as tracking violations of expectations than tracking unexpected rewards specifically: It responds to violations of expectations whether or not any reward is involved. For instance, Corlett et al. (2004) measured activity in the rostral prefrontal cortex (not itself part of the mesolimbic dopamine system but downstream from and reliably linked to it) in an experiment in which subjects learned the associations between symptoms and allergies. They found that activity increases in response to violations of expectations. Expectations are a kind of doxastic state: To expect p is to believe that the world is (likely) a certain way. There is plentiful additional evidence, moreover, that the dopamine system is involved in belief formation. In later work, Corlett et al. (2007) found that delusional patients had attenuated dopaminergic response to violations of expectations, coupled with abnormally high activity in response to expected events; further, the degree of abnormality was correlated with delusion severity. The same group also found that the magnitude of dopaminergic response to violations of expectation under placebo predicted the likelihood of delusions under ketamine (Corlett et al. 2006). Because dopaminergic response tracks violations of expectations and not specifically the availability of unexpected reward, it is best thought of as a mechanism for updating expectations generally, not updating expectations specifically about rewards. Taken together, the evidence suggests that dopaminergic response is involved in the formation of beliefs, with violations of expectations causing belief update. In earlier work, I suggested that we ought to understand this evidence in the context of work on prediction error minimization (Levy 2014). Many systems in the brain work to minimize what is technically called surprisal, which is the difference between what the system expected and the actual input it receives. When a lower-level mechanism receives an unexpected input (say feedback from the limbs—there is plentiful evidence for mechanisms that track the expected consequences of action; Frith, Blakemore, and Wolpert 2000), it may refer the surprisal to a higher-level system that attempts to explain it or explain it away. One way in which high-level systems may explain away lower-level errors is changing beliefs about the way the world is. The dopamine signal is, I suggest, an error signal, and the fact that it is often followed by changes in belief is not surprising: Sometimes, the most efficient and least costly way of explaining the unexpected is to alter one’s model of the world. There is plentiful evidence that relapses, as well as cravings in the case of drugs that cause cravings, are associated with cues predicting drug availability

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(Carter and Hall 2012). These cues may usefully be thought of as triggering responses that constitute errors, relative to the abstinent addict’s reigning model of the world. On the reigning model of the world, drugs are not to be consumed, but the powerful dopaminergic response caused by the pathological overlearning of the reward value of the drug ensures that cues of drug availability are not easily explained in a way that is consistent with that model. What’s more, these cues are insistent, given that dopamine upregulates attention (Corlett et al. 2007; Fletcher and Frith 2009), so they cannot be ignored. They can be explained, though: There is a model of the world available to (almost all) addicts that predicts and explain the errors. It is the model of the world that motivated drug taking before it became problematic, when the addict consumed drugs because doing so was pleasurable or offered an escape from a reality that was unpleasant or stressful. Because that model explains the error, there is pressure to adopt it and behave accordingly. (This model is not available to some addicts, for instance, those who acquired their addiction in hospital through the administration of analgesia. Interestingly, however, addiction in this group is very much easier to treat; perhaps because they do not have an easily accessible model of the world that entails that the drug ought to be consumed.) Addicts remain broadly rational agents, of course, and they will not forget that they had recently resolved to abstain. Perhaps what happens, at the personal level at which we and they understand ourselves, is that they adopt a compromise judgment of the world. This is easily done because resolutions like the resolution to abstain from drugs are never intended to be absolute. Consider an ordinary resolution, like the resolution to go jogging every day. When someone makes that resolution, she doesn’t mean that she will go jogging come what may. If the jogger’s child is sick or if she has broken her leg, she will see herself as absolved of blame for not jogging. The resolution comes surrounded with implicit escape clauses, clauses that mention conditions under which the agent is not expected to follow through on it. These clauses must remain implicit, for the most part, because there are indefinitely many circumstances in which they are triggered, and it is impossible to list them all. Because these escape clauses are implicit and because we must often exercise judgment to decide whether they have really been triggered, we can easily deceive ourselves into thinking that the circumstances we confront trigger such an escape clause. In retrospect, it may be clear that taking my stressful day as a condition justifying my departing from my diet was nothing more than a rationalization, but at the time it seemed to me that I had a perfectly good reason to eat that entire packet of crisps. Addicts are no different. The resolution to stop using drugs is also surrounded by implicit escape clauses, though there are likely to be fewer, and the conditions that genuinely trigger them are likely to be more demanding. Nevertheless, the addict is at least as prone to self-deception as any of us (Pickard

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2016). She will not forget her resolution, but under the pressure of the prediction error signal, she may see an escape clause as triggered and adopt a model of the world that explains the error. It won’t hurt to take drugs just once more, she may think. (The thought is tempting because it is true. Other things equal, the health costs associated with one more episode of consumption are trivial, and relapse doesn’t necessarily lead to behavior spiraling out of control, contrary to media depictions.) Today is not a good time to start abstinence, she may think, or these circumstances are so exceptional that I can take drugs in them without worrying that I will take drugs in more normal circumstances. These thoughts are more extreme versions of thoughts familiar to all of us; they are the kind of thoughts we all have when we are weak willed. Perhaps, indeed, our behavior is explained by similar error minimization mechanisms as those that explain her behavior, though, of course (because our dopaminergic system is not dysfunctional), we are not subject to such spectacular failures or spectacularly confabulated rationales. There is, indeed, evidence from social psychology that when ordinary people experience ordinary failures of self-control, they also experience judgment-shift (Levy 2011). A parallel story might be told concerning how we—the addict and the ordinary agent—come to revise our judgment once again. After consuming the tempting good or having been removed for a sufficient time from its vicinity and its attention-grabbing properties, competing rewards generate new sensory inputs, and these inputs constitute a prediction error relative to the hypothesis, “I ought to consume.” These errors are best explained away by reactivating the resolution, and the familiar cycle of resolution, reconsideration, and regret begins anew.

3. Control and Responsibility On the account I have just sketched, addicts—and perhaps ordinary weak willed people, some or all of the time—are subject to cue-driven oscillations between coherent sets of psychological states, each of which is able to cause instrumentally rational behavior in the ordinary way. How should we understand these states and the oscillation between them? In this picture, do addicts genuinely suffer from an impairment in their capacity to control themselves, and, if so, does this impairment excuse? There is little reason to think that an addict would be excused in virtue of being in one or other of the set of states that control their behavior over the short to medium term. Sometimes the addict abstains from taking drugs and avoids situations in which drugs might be on offer because she judges that’s how she ought to behave. She endorses that judgment and her behavior is reasons-responsive (were we to offer her a large enough reward for taking us to her dealer, she might do so). Nothing about her behavior or about the mental states that cause it is abnormal, and it is difficult to see why we ought to think

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she is not responsible for what she does. At other times, she judges that she ought, all things considered, to seek out and use drugs (on this occasion, which she convinces herself is exceptional), and she endorses this judgment. Moreover, she remains reasons-responsive while she so judges (contra the myths, she is not impelled by an irresistible desire). Offered a large enough inducement, she will refrain from taking drugs. So there are no obvious grounds for thinking that being in either state constitutes an excuse for her. It seems that there is a short route available from these considerations to the conclusion that the addict is morally responsible for her behavior. Neither state excuses, and the switch between states—the judgment-shift itself—is a mere change of mind. It is hard to see how that would excuse. I think this tempting line of thought should be resisted: Judgment-shift is not mere change of mind. I think it is plausible to see it as involving a loss of control not over behavior but over judgments. In a paradigm case of changing one’s mind, one rejects a view that one held or abandons a resolution to which one had committed oneself because one is presented with new evidence or reasons. Judgment-shifts (as Holton 2009, from whom I take the term, emphasizes) are not like that. In the cases with which we are concerned, the agent abandons her resolution despite the fact that she has not been presented with new evidence or reasons in favor of doing so. In fact, when she resolved to abstain from drugs, she intended her resolution to be proof against exactly the temptations that now cause her to abandon it. This kind of shift should be distinguished from a change of mind; it is better thought of as involving a loss of control over judgment. Why should we think that this kind of cue-dependent judgment-shift involves a loss of control? Following Fischer and Ravizza (1998), I understand ‘control’ to consist in a kind of counterfactual sensitivity to reasons. An agent possesses control over a state of affairs or over her own actions just in case she is capable of recognizing a sufficient range of reasons as reasons to act otherwise, and she is also capable of responding to some of the reasons she recognizes. As Fischer and Ravizza emphasize, agents possess control only when this responsiveness is suitably ‘patterned’; it must be the case that they respond to reasons in a way that is itself rational. Agents who experience judgment-shift continue to exhibit some degree of reasons-responsiveness (there is a broad range of counterfactual circumstances in which, were they presented with reasons to do otherwise, they would recognize these reasons, and in some of these circumstances they would react appropriately). But failing to recognize a strong reason to which one has antecedently committed oneself looks to be a failure of the kind of rational patternedness required for control. Because the agent responds to what is, by her own lights, no reason at all, we should think that her response is indicative of a loss of control. Does this loss of control excuse? I think it does, though the most influential accounts of moral responsibility currently available are unable to explain

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why. I think the best way to bring out how this loss of control excuses is to focus on the agent’s history. Though this is controversial, many accounts of moral responsibility recognize that the agent’s history matters for her moral responsibility. In general, these accounts appeal to history to avoid problems with manipulation. Two agents might perform identical actions (say, donating to charity) and have identical relevant mental states, and yet it can seem that only one of them is morally responsible for the action because the other has been manipulated into having those mental states. The formerly curmudgeonly agent who has, for example, been rewired by neuroscientists into possessing kind and empathic dispositions and who then donates to Oxfam seems to be (at minimum) less praiseworthy than the agent who develops these same dispositions on her own. These kinds of thoughts have led some philosophers to maintain that moral responsibility is a partially historical concept, like ‘sunburn’ (nothing counts as sunburn unless it actually features the sun’s rays in its causal history). There have been various attempts to capture this partly historical nature. Some philosophers have advanced positive historical conditions. (The agent must have had a history of the right kind, say one that involves her endorsing or taking responsibility for the psychological states that cause her actions; see, for instance, Fischer and Ravizza 1998). Others have advanced negative historical conditions (the agent must lack a responsibilityundermining causal history; see, for instance, Mele 2006; Haji 2009). On neither kind of account, it seems, does the addict have an excuse available. The addict oscillates between two sets of psychological states, each of which is normal and for each of which she has taken responsibility. Recall: The state that motivates her consumption is (roughly) the same state as the one that motivated her earlier, before she was addicted. There is no reason to think that she was not a responsible agent at that earlier time or that the mental states that motivated her lacked the right kind of history. We can say much the same thing with regard to the set of states that motivate her when she abstains. So there seem to be no grounds for excusing her, so far as extant historical conditions on moral responsibility are concerned. This seems to me to be a good reason for revising or replacing these historical conditions rather than for accepting that the addict is not morally responsible. These conditions are blind to a central fact about normal human agency; it is historical in a way that has nothing whatsoever to do with manipulation by other agents. Agents pursue goals over time, and their pursuit involves the planning and coordination of activities through time. Few, if any, worthwhile goals can be achieved without an extended series of actions, which must be completed in roughly the right order and carefully coordinated with one another. If we do not plan and coordinate our activities, we will be unable to pursue goals successfully because we will end up tripping ourselves up. (Even achieving a simple goal—having a picnic, say—involves planning beforehand: buying and preparing the food; filling up the car with gas and checking the

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map; calling one’s friends beforehand and settling on a day, and so on. Failure to do these things or to do them in the right order ensures failure of one’s picnic plans.) Achieving anything valuable requires coordination of one’s own agency (as well as, often, the agency of others), and it is this diachronic capacity that addiction disrupts. Anyone who accepts a historical condition on moral agency should also accept that the capacity for diachronic agency is also required for moral responsibility. Worries about history and manipulation are best understood as worries about agents’ autonomy—their capacity to shape their lives as they see fit. Anything that undermines agents’ diachronic capacities undermines their capacities to shape their lives as they see fit because shaping our lives requires being able to extend our wills across time. We can’t carry out plans (of any length or complexity) unless we can trust ourselves not to interfere with them; disruption of the capacity to extend one’s will over time ensures that we cannot have this kind of self-trust. In fact, there are stronger reasons to think that the capacity to exercise diachronic agency is necessary for moral responsibility than to think that the absence of manipulation is necessary for moral responsibility. A number of philosophers have argued that manipulation is no barrier to responsibility if post manipulation the agent has what it takes to be appropriately reasons-responsive, to endorse her motivating reasons, and so forth (e.g., Frankfurt 2002; McKenna 2004). Once the manipulation is over and done with, these philosophers maintain, the agent has what it takes to be autonomous, and therefore the manipulation is irrelevant to her moral responsibility. Whatever plausibility this reply has, it is irrelevant here because the agent who lacks the capacity for diachronic agency does not have what it takes to be autonomous. Theorists of moral responsibility of all stripes recognize a need for a shallow historical condition, the kind of historical condition that has been captured in various ‘tracing’ conditions. (A tracing condition holds, roughly, that an agent is morally responsible for an action that she performs when she lacks what it takes to be morally responsible if and only if she is responsible for the fact that she lacks what it takes to be morally responsible.) I suggest that all theorists should also recognize another historical condition: Agents are morally responsible for their actions only if they possess the capacity to extend their wills across time. This is a genuinely historical condition because an agent may at any instant (indeed, over a short stretch of time) possess everything it takes to be morally responsible but lack autonomy because she is unable to ensure that she retains the relevant capacities.

4. Conclusion The central pathology that characterizes addiction is a pathology in the capacity to extend one’s will over time. I’ve suggested that this pathology entails that the addict lacks the autonomy she requires for self-trust and to be able to

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carry out plans and projects of any complexity. For this reason, it undermines moral responsibility for a large range of significant actions and in particular for the kinds of immoral actions that are all too often associated with addiction (the actions involved in procuring drugs, for instance). Admittedly, these remarks are sketchy, and the account of how an impairment of diachronic agency undermines moral responsibility is underdeveloped (a proper development would require a separate paper devoted to the question). Correlatively, it is unclear exactly which actions this impairment would excuse or for which responsibility would be mitigated, as well as by how much. Nevertheless, so central is the capacity for diachronic agency to moral responsibility, I suggest, that this impairment will have far-reaching consequences for a broad range of actions. Addicts are reasons-responsive agents who endorse the springs of their actions. They satisfy a broad range of plausible conditions on moral responsibility. As Schroeder and Arpaly recognize, addicts exercise their agency under conditions that are far from ideal, but on the standard accounts (like the account that Arpaly [2003] herself has powerfully developed), these facts are unlikely to significantly reduce their moral responsibility for many of the actions for which people are most prone to blame them. In my view, the impairment in their capacity for diachronic agency, which goes unrecognized on the standard accounts, is likely to have broader and deeper consequences for their moral responsibility. Their responsibility is likely routinely to be very significantly reduced and may even be entirely eliminated.

References Arpaly, N. (2003) Unprincipled Virtue: An Inquiry into Moral Agency. Oxford: Oxford University Press. Carter, A., and Hall, W. (2012) Addiction Neuroethics: The Promises and Perils of Neuroscience Research on Addiction. Cambridge: Cambridge University Press. Corlett, P.R., Aitken, M.R., Dickinson, A., Shanks, D.R., Honey, G.D., Honey, R.A., Robbins, T.W., Bullmore, E.T., and Fletcher, P.C. (2004) “Prediction Error during Retrospective Revaluation of Causal Associations in Humans: fMRI Evidence in Favor of an Associative Model of Learning.” Neuron 44: 877–88. Corlett, P.R., Honey, G.D., Aitken, M.R., Dickinson, A., Shanks, D.R., Absalom, A.R., Lee, M., Pomarol-Clotet, E., Murray, G.K., McKenna, P.J., Robbins, T.W., Bullmore, E.T., and Fletcher, P.C. (2006) “Frontal Responses during Learning Predict Vulnerability to the Psychotogenic Effects of Ketamine: Linking Cognition, Brain Activity, and Psychosis.” Archives of General Psychiatry 63: 611–21. Corlett, P.R., Murray, G.K., Honey, G.D., Aitken, M.R., Shanks, D.R., Robbins, T.W., Bullmore, E.T., Dickinson, A., and Fletcher, P.C. (2007) “Disrupted Prediction-Error Signal in Psychosis: Evidence for an Associative Account of Delusions.” Brain 130: 2387–400. Everitt, B.J., and Robbins, T.W. (2005) “Neural Systems of Reinforcement for Drug Addiction: From Actions to Habits to Compulsion.” Nature Neuroscience 8: 1481–89. Fischer, J.M., and Ravizza, M. (1998) Responsibility and Control: An Essay on Moral Responsibility. Cambridge: Cambridge University Press.

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Fletcher, P.C., and Frith, C.D. (2009) “Perceiving Is Believing: A Bayesian Approach to Explaining the Positive Symptoms of Schizophrenia.” Nature Reviews Neuroscience 10: 48–58. Foddy, B., and Savulescu, J. (2010) “A Liberal Account of Addiction.” Philosophy, Psychiatry, and Psychology 17: 1–22. Frankfurt, H. (2002) “Reply to John Martin Fischer.” In Contours of Agency: Essays on Themes from Harry Frankfurt, edited by Sarah Buss and Lee Overton, 27–32. Cambridge, MA: MIT Press. Frith, C.D., Blakemore, S.-J., and Wolpert, D.M. (2000) “Abnormalities in the Awareness and Control of Action.” Philosophical Transactions of the Royal Society of London 355: 1771–88. Haji, I. (2009) Incompatibilism’s Allure. Peterborough, Ontario: Broadview Press. Heyman, G. (2009) Addiction: A Disorder of Choice. Cambridge, MA: Harvard University Press. Holton, R. (2009) Willing, Wanting, Waiting. Oxford: Clarendon Press. Hyman, S.E. (2005) “Addiction: A Disease of Learning and Memory.” American Journal of Psychiatry 162: 1414–22. Leshner, L. (1999) “Science-Based Views of Drug Addiction and Its Treatment.” JAMA 282: 1314–16. Levy, N. (2011) “Resisting Weakness of the Will.” Philosophy and Phenomenological Research 82: 134–55. Levy, N. (2014) “Addiction as a Disorder of Belief.” Biology & Philosophy 29: 315–355. McKenna, M. (2004) “Responsibility and Globally Manipulated Agents.” Philosophical Topics 32: 169–92. Mele, A. (2006) Free Will and Luck. New York: Oxford University Press. Montague, P.R., Dayan, P., and Sejnowski, T.J. (1996) “A Framework for Mesencephalic Dopamine Systems Based on Predictive Hebbian Learning.” Journal of Neuroscience 16: 1936–47. Pickard, H. (2016) “Denial in Addiction.” Mind & Language 31: 277–99. Ross, D., Sharp, C., Vuchinich, R.E., and Spurrett, D. (2008) Midbrain Mutiny: The Picoeconomics and Neuroeconomics of Disordered Gambling. Cambridge: MIT Press. Schroeder, T., and Arpaly, A. (2013) “Addiction and Blameworthiness.” In Addiction and SelfControl, edited by N. Levy, 214–238. New York: Oxford University Press. Schultz, W., Dayan, P., and Montague, P.R. (1997) “A Neural Substrate of Prediction and Reward.” Science 275: 1593–1599. West, R. (2006) Theory of Addiction. Oxford: Blackwell Publishing. Yaffe, G. (2013) “Are Addicts Akratic? Interpreting the Neuroscience of Reward.” In Addiction and Self-Control, edited by N. Levy, 190–213. New York: Oxford University Press.

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Suggested Further Readings (Part IV)

Ainslie, George (2001) Breakdown of Will. Cambridge: Cambridge University Press. Arpaly, Nomy, and Schroeder, Timothy (2014) In Praise of Desire. New York: Oxford University Press. In this book, the authors discuss in depth issues concerning desires, the reward system, addiction, and blame—and other topics linking the neuroscience of the mind to the morality of our thoughts, feelings, and motives. Elster, Jon (1999) Strong Feelings: Emotion, Addiction, and Human Behavior. Cambridge, MA: MIT Press. In this clear, accessible, and short book, a philosopher tackles the science of addiction and introduces the idea that addictive drugs ‘hijack’ the brain’s reward system. Fischer, John Martin, and Ravizza, Mark (1998) Responsibility and Control: An Essay on Moral Responsibility. Cambridge: Cambridge University Press. A modern classic, this book is the most detailed and convincing philosophical account of how agents may be morally responsible, whether or not they possess free will in a metaphysically demanding sense of the term. It provides a detailed analysis of ‘control,’ which provides a test of whether addicts or other agents can be said to possess it. Heyman, Gene (2009) Addiction: A Disorder of Choice. Cambridge MA: Harvard University Press. Heyman provides strong epidemiological evidence that most addicts recover from addiction without external aid, in response to ordinary incentives. On this basis, he argues that addicts retain control over their behavior. Addiction is a disorder of choice in two senses: It centrally involves genuine choice, but the choice is in some way disordered. Levy, Neil, ed. (2013) Addiction and Self-Control. New York: Oxford University Press. This volume brings together a set of papers by neuroscientists, psychologists, and philosophers on the question of how addiction impairs self-control. It contains important papers by Richard Holton and Kent Berridge (a leading philosopher and neuroscientist, respectively), Gideon Yaffe, and Timothy Schroeder, and Nomy Arpaly, each of which focuses on the implications of neuropsychological changes in the brains of addicts for their self-control. It also contains important papers by Hanna Pickard and Steve Pearce, George Ainslie, and other major figures on self-control and addiction.

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Schultz, Wolfram (2011) “Potential Vulnerabilities of Neuronal Reward, Risk, and Decision Mechanisms to Addictive Drugs.” Neuron 69: 603–17. In this paper, the world’s leading experimentalist on and theorist of the dopamine-based reward system outlines his own theory of how that system is involved in addiction. A challenging paper for those who aren’t trained in neuroscience but compulsory reading for anyone who really wants to understand addiction. Wallace, David Foster (1996) Infinite Jest. New York: Little, Brown and Company, 1996. Although this is a work of fiction, it’s also the product of a writer who went through treatment for addiction, where he met a wide range of other addicts. The novel includes fictionalized versions of Wallace’s and others’ stories, told with enormous honesty and sympathy. Anyone who wants to theorize about addiction should read a range of memoirs and experience-based fiction to get some sense of what addiction is like on the inside for a whole range of people, and this is one wonderful place to start.

Study Questions (Part IV) 1. What does it mean to say that someone has lost control? How similar or different is loss of control over behavior to loss of control over, say, a car? Is it plausible that addicts have lost control? 2. We blame people for those acts for which they are responsible. What makes individuals responsible for an action? Under what conditions might they be excused responsibility for a bad action? 3. What implications, if any, do the accounts of addiction presented here have for our attitudes toward addictive drugs and toward addicts themselves? 4. List a variety of (partial or full) excuses you or your friends might make for an addict who had done something wrong to you as a direct result of addiction. Which of these excuses would Schroeder and Arpaly accept as excuses permitted by their theory? Which excuses would they not accept? Why? 5. Schroeder and Arpaly offer extensive scientific details of the brains of addicts. How is this discussion ultimately important to their theory of the blameworthiness of addicts? Or is it ultimately not important to their theory?

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PART

V

Public Health Ethics

Is Luck Egalitarianism Implausibly Harsh?

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CHAPTER

9

Rarely Harsh and Always Fair

Luck Egalitarianism and Unhealthy Choices1 ZOFIA STEMPLOWSKA

Abstract Critics who lodge the harshness objection against luck egalitarianism have interpreted the theory as claiming it is sufficient to justify a disadvantage that it was avoidable against a background of equal opportunities no matter the content of these opportunities. However, luck egalitarianism, sensibly interpreted, must incorporate an opportunity principle that specifies what class of opportunities, if any, should be cushioned against disadvantage. The most plausible version of this principle protects some options, though not all, and because of this, luck egalitarianism does not have some of the implications its critics regard as overly harsh. In particular, if there would be more sacrifice involved in giving up an imprudent activity than there would be in compensating for its costs, then the option of pursuing this activity should be protected, in the sense that its costs should be shared. Luck egalitarianism will still have harsh implications for those pursuing activities that do not pass this test, but these implications are not unfair.

1. Introduction Should binge drinkers who end up in need of emergency medical treatment pay for it even in countries with a national health service where health provision would standardly be offered free at the point of use? Should smokers who develop lung cancer pay for their cancer treatment? Should cyclists who cycle recklessly without cycling helmets bear the costs of lifesaving operations? 149

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Luck egalitarianism has been famously seen as providing affirmative answers to such questions, at least when poor health outcomes can be traced back to the patients’ genuine choices.2 I will argue, however, that the argument on which this interpretation of luck egalitarian justice rests is mistaken. More importantly, I will suggest a principle according to which we should determine when justice does and when it does not require making people pay for their own medical treatment in cases where their choices led to them being in need of it. My answer is going to be luck egalitarian in that I am going to assume that we are all required to share in the costs of medical provision for those whose medical conditions are just a matter of (bad) luck to them.3 This is, obviously, a widely shared view in Europe, and, while I won’t argue for it here, I think it is also the correct view. The question that will be of interest to me here is what to do about medical needs that are, at least in part, traceable to avoidable choices made by those currently in need. In what follows, I will review three possible principles that luck egalitarians could adopt and defend the third of those principles.4

2. What Is Luck Egalitarianism? According to luck egalitarianism, disadvantages that are due to the disadvantaged person’s bad luck are genuinely inegalitarian, while disadvantages that are of one’s own making are not. The view is composed of three elements. First, it assumes that some form of equality is a key requirement of justice. This is the requirement of egalitarian justice. Second, it is antiluck in that it sees disadvantages that are due to luck as upsetting equality; luck that is not neutralized is in this sense objectionable. Third, it is pro-choicist in that it sees at least some disadvantages that are of one’s own making as consistent with equality and, in this sense, acceptable. So, to identify disadvantages that need to be removed, luck egalitarianism uses two filters: A disadvantage needs to pass both of them to qualify as genuinely inegalitarian. Thus, it needs to pass what we might call the relevance filter. This filter picks out which differences between people are potentially troubling—whether it is their different amounts of hedonistic pleasure or of objective well-being, material resources, social status, specific opportunities, etc. The disadvantage also needs to pass what we might call the luck/choice filter. This filter determines whether the potentially troubling disadvantage is due to luck or due to choice. If the former, the disadvantage is seen as genuinely equality-upsetting; if the latter, it is not. Regarding this second filter, I’ll assume that the choice category encompasses genuine choice, whatever that might mean—you can plug in your favorite theory here. So, to clarify, when I say that one has chosen a disadvantage or is responsible for it or the disadvantage is avoidable—terms I use interchangeably—I mean that one is to be thought of as the author of the disadvantage according to whichever plausible account of authorship/choice we adopt.

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Let me add an extra terminological clarification. When I say that compensation is allowed/required or not, I am concerned only with whether it is so by the sole criterion of egalitarian justice; that is, the question is whether egalitarian justice mandates the provision of compensation funded from general taxation or the equivalent. And I mean to imply nothing about the desirability of such compensation when offered voluntarily by individuals as an act of charity.

3. What Costs Should Poor Choosers Bear? Why might someone think that luck egalitarianism requires people to bear the costs of all the medical treatment for conditions they brought upon themselves? Because luck egalitarianism is often misinterpreted as the view according to which it is sufficient to justify a disadvantage that it was avoidable (chosen) against the background of equal opportunities no matter the content of these opportunities (or, if opportunities were unequal, that their inequality did not bear on the choices that led to the disadvantage). But not only is this view not one unambiguously endorsed in any iconic—early or late—luck egalitarian writings,5 it is also a very unattractive view. This is so for two main reasons. First, such a view is next to useless in most cases. This is because if nothing is specified about what opportunities the agent should have had open to her, then it is impossible—with one exception6—to know whether how she ended up vis-à-vis another agent is due to her different choices or due to her different circumstances and odds. For example, if I end up with a stroke after having consumed 10 grams of salt every day, and you end up without it, having consumed 6 grams of salt every day, we won’t know whether the different outcomes are due to our different choices in salt consumption or due to different predispositions for high blood pressure (i.e., luck). To avoid this problem we need to specify which options (opportunities) should be open to the agent, including specifying the range of acceptable payoffs that should follow if an agent takes a given course of action.7 In this case we could say, for example, that a person who consumes up to 7 grams of salt each day should not incur any blame or absorb any burdens in case she ends up with a stroke. If so, we will be saying that, although she might have chosen to consume less salt, her stroke should be seen as a matter of luck rather than choice, while the stroke of someone who consumes more than the 7 grams of salt is attributable to choice. Specifying what options should be open to agents, in other words, means deciding on when to attribute the resulting outcomes to someone’s choice or to her luck. Second, to claim that a choice leading to a disadvantage is sufficient to justify the disadvantage no matter what options were open to people (provided only that they were equal or equivalent) is deeply counterintuitive. Consider someone’s failure to follow a daily exercise routine. Suppose in the first case

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such failure elicits no official reaction while in the other it is punished by life imprisonment. No account of egalitarian justice, I think, should claim to be completely indifferent as to whether the choice/luck filter is applied when we are dealing with the first or the second case. Rather, it should postulate that the filter should be used only if acceptable payoffs attach to a given choice. What this means is that all sensible versions of luck egalitarianism must endorse two principles rather than just one: (1) the choice-sensitivity principle, according to which all disadvantages due to choice are just, and (2) the opportunity principle, which specifies which opportunities should be open to people. Very little has been written about the second of these two principles, and this is the problem I turn to next. What opportunity principle should luck egalitarians adopt?

4. Three Opportunity Principles The Fully Externalizing Opportunity Principle An externalizing opportunity principle8 externalizes all the costs of choices by assigning all choices (including the choice to do nothing) the same outcome. According to the externalizing opportunity principle, for example, you can get free medical treatment for your condition no matter whether it arose due to your recklessness, negligence, absentmindedness, deliberate pursuit of danger (I’ll refer to all of these as imprudence), or bad luck. The principle provides a perfect cushion against disadvantage. In effect, it gives people the right, as far as possible, to act imprudently without suffering additional costs to those who acted prudently. Some might protest at this point that, independently of whether the principle is or is not attractive in its own right, the externalizing opportunity principle is not compatible with luck egalitarianism. This is because—a critic might say—erasing avoidable disadvantage means forcing the prudent to subsidize the imprudent, for example, funding from general taxation full medical coverage for those who refuse to wear motorcycle helmets or those who take dangerous recreational drugs. Providing compensation to the imprudent upsets equality of opportunity. But I think this objection fails. This is because the externalizing opportunity principle does not shrink the relative share of resources available to the prudent vis-à-vis the imprudent. To see why, consider two scenarios, in which imprudent action can lead to a disadvantage (say, a broken arm) and an insurance payoff perfectly eliminates the disadvantage (free medical procedure that mends the arm). In Scenario 1—which models the externalizing principle— insurance payoffs are funded from general taxation and are offered to all, no matter how the individuals acted (e.g., even if the broken arms resulted from riding a bicycle on ice). In Scenario 2, only private insurance is available, so

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the imprudent who do not insure and end up with broken arms get no free medical treatment (and so either put up with a broken arm or use their savings). My claim is that the share of resources available to the prudent in Scenario 1 is no less (in fact, it is the same) as the share available to the imprudent. Why? Suppose we contradict this by proposing that that the imprudent enjoy what the prudent enjoy plus more, since the imprudent get to be imprudent but also get an insurance payoff (free medical treatment) that eliminates their disadvantage. So the imprudent get to have fun and end up no worse off, thus enjoying a greater share of resources. In response, notice that the opportunity to be imprudent and receive the payoff is open to both the prudent and the imprudent. Moreover, seeing those who acted imprudently and got the insurance payoff as better off than those who acted prudently and did not need the payoff would suggest that there is no equality of opportunity in Scenario 2 either. After all, in Scenario 2 the imprudent who do insure (privately) and get the insurance pay off would then be considered better off than the prudent who did insure but did not need the payoff. This would mean that there can be no equality of opportunity just as long as there is any insurance, even if such insurance is private and does not model the externalizing principle. So this first line of reasoning does not succeed in showing that the externalizing principle in particular fails to capture what equality of opportunity requires. In response, someone might try to compare the relative share of resources available to the prudent in Scenario 1 and in Scenario 2, noting correctly that in Scenario 2 the prudent have more disposable income (since there is no taxation for public insurance). But this line of attack against the externalizing principle also fails since equality of opportunity is not meant to be measured across different opportunity regimes: Our question is whether the prudent have less than equal opportunities than the imprudent in any given scenario. So the objection that the externalizing principle of equality is inegalitarian fails. But there is a further objection to the fully externalizing opportunity principle. The more cushioning the baseline—so that the lesser the differential impact of choice on outcomes—the less scope there is for the operation of the luck/choice filter. Thus if luck egalitarianism wants to be a distinctive doctrine, it needs to retain some space for the operation of that filter and thus reject the externalizing principle. In fact, theorists like Shiffrin have suggested that merely retaining some space for the operation of the filter won’t be good enough. Such a move, she claimed (in the context of dissecting Dworkin’s views), “eviscerates the power of ‘choice-sensitivity’ as either an organising principle or an illuminating characterisation of the underlying structure of egalitarianism.”9 But I don’t think her criticism is persuasive. Take the criminal justice analogy: Although merely attending to whether someone is the author of a given act or not cannot tell us whom and how much to punish in the absence of assignments of rights and freedoms, the view that we should punish only those who are responsible for

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their crimes is a principle organizing the retributivist and nonconsequentialist theories of punishment. Similarly, the view that we should punish those who commit crimes does not force retributivists to adopt the conclusion that any punishment at all is appropriate. The principle of responsibility needs to be complemented by a principle of proportionality, but this does not eviscerate one’s retributivist credentials. Ultimately, however, I agree that luck egalitarians should retain some space for the operation of the luck/choice filter, and this means they should reject the (fully) externalizing principle of opportunity. Incidentally, even the critics of luck egalitarianism who see themselves as more forgiving of imprudent choices reject the principle. So Elizabeth Anderson, for example, tells us that “people do not owe one another the real freedom to function as beach bums” and adds elsewhere that “in the case of an able-bodied adult . . . access to a decent income would be conditioned on responsible performance of one’s duties in one’s job, assuming a job was available.”10 The Fully Internalizing Opportunity Principle According to the fully internalizing principle, opportunities should be constructed to maximize the advantage of those who choose well vis-à-vis those who choose less well. So, for example, if you choose to arrive at work 1 minute late, you are fined $10 [or x dollars], if 2 minutes late, $20 [or x + y dollars], etc. The principle could be construed to impose fines to improve the position of those who are never late, but a more plausible interpretation simply requires that the fines (and consequences of choices more broadly) are fixed to ensure that the (more) prudent are be able to enjoy whatever they would be able to enjoy had they only shared the world with people who were themselves (equally) prudent. In effect, the principle gives people the right to enjoy all the fruits of their prudent choices that are not needed to compensate others for bad brute luck. Although I think that we should reject this principle as well, it is instructive to consider what might be its appeal. Could an appeal to desert justify it?11 Even leaving aside all the standard problems with desert, it’s not clear how far this will take us regarding the provision of medical treatment. It’s not clear, for example, that those who fail to wear motorcycle helmets or those who fail to check expiration dates on their medication deserve to suffer the physical consequences of collisions and poisonings. Given this, some may wish to appeal instead to the value of freedom, claiming that the internalizing principle maximizes it for all. After all, getting rid of compensation for avoidable disadvantage means getting rid of taxation for that purpose; assuming the existence of a private insurance market, people can still insure if they wish, but if they prefer, they can use the resources differently instead. If they want to buy a piano instead of paying the medical tax, they can do so.

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But I think this line of reasoning also fails to provide a rationale for the principle. True, the people get the option to use as they wish the resources that would otherwise have been taxed. On the other hand, people also lose the option to act imprudently without suffering bad consequences. Having extra resources increases the range of options available to one but so does having a safety net. Both the externalizing and the internalizing principles offer people freedom even as they cater to different preferences regarding which options should be available. The internalizing opportunity principle also cannot be defended with reference to the fact that it alone allows for the operation of the luck/choice filter since—as already argued in response to Shiffrin’s criticism—such a filter can operate even if opportunities are structured to cushion one’s choices a bit, just as long as we avoid the fully externalizing version of the principle. Ultimately, therefore, it is not easy to find a robust rationale for the fully internalizing principle. In addition, the principle is deeply counterintuitive. To see this, consider the following scenario. Suppose we are considering whether to offer free at the point of use medical treatment for a certain disease or whether to rest satisfied if private insurance is available. Suppose the treatment is very expensive and the effects of the disease if untreated are debilitating. Suppose the disease is caught only amid very large gatherings of people: concerts, football games, large conferences, and the like. And suppose the risk of catching the disease is very low, but if an epidemic spreads, the risk is very high for anyone who finds themselves in the large gathering at the wrong time, so the costs of private insurance are very high. Although catching the disease is reasonably avoidable, it is not clear to me that the claim for compensation, should one catch it not having insured for it, is mute. Or consider a criminal justice analogy. We could set up courts in such a way that those who dressed in a so-called sexually provocative way and were assaulted or who spontaneously befriended strangers who turned out to be robbers had to wait until the claims of the more prudent citizens were processed first by the criminal justice system and then pay for having their claims processed. But I don’t think we should. One reason we may find this unattractive is precisely because we think that making different choices, even as they expose the agents to a greater risk, is within one’s right in the sense that one should not be disadvantaged by it. What these medical and criminal justice examples have in common is that the slightly risk-increasing choices can be given perfectly innocent justifications and that it is not unreasonable of those who make them not to pay attention to the possible consequences for the prudent. But the internalizing principle fails even when we are faced with a harder case where the conduct in question is merely convenient, as opposed to an expression or pursuit of an important value. Suppose that each evening in a certain town, people face the choice of going from A to B through a well lit but circuitous route or a dark

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shortcut where they are more likely to be mugged. If police work is funded from general taxation, then the choice to take the shortcut increases the costs and risks to the prudent citizens who take the well lit path. Is it reasonable to ask the prudent citizens to bear this extra burden so that one can take the shortcut (assuming, of course, that we cannot eliminate mugging and make the wrongdoers bear all the relevant costs)? My view is that it may well be because we do not owe it to one another to always minimize the risk of disadvantage or burdens that we may have to bear for each other. The Interest-Based Opportunity Principle Given the difficulties that the fully externalizing and internalizing principles face, we should search instead for a principle that would allow us sometimes to internalize and sometimes to externalize the costs of our choices. My suggestion is that when considering when to offer compensation/medical treatment free at the point of use in a given situation, we should ask the following question (where sacrifices are measured in terms of people’s interests): Does acting to avoid disadvantage (were not compensation available) require greater sacrifice than offering compensation should the disadvantage arise? If the answer is positive, then we should offer compensation/free treatment, and if it is negative, then we should withhold it. I’ll offer a rationale for this interest-based opportunity principle at the end of this section, but let me first illustrate its application. If the relevant insurance is very expensive and being able to choose one’s route home spontaneously without worrying about crime, being able to befriend strangers and let them into one’s house are important—as I think they are—and if the costs to everyone of providing such compensation are small (because even if everyone knows compensation will be given, the uptake for such activities remains small), then compensation should be offered. On the other hand, it’s unlikely, say, that there is a great value in not reading the expiration date on the medicine found at the back of the medicine cabinet when it is clearly printed on it, so that the costs to all of providing compensation are likely to outweigh the interests served by not reading the expiration date. What about binge drinking, cycling without helmets, and smoking? Take cycling first and assume (controversially as far as empirical evidence goes) that helmet wearing is protective. To apply the principle well, we may need data on how often one cycles without the helmet. There’s likely great value in not being obsessive about helmet wearing when the risks are small—so occasional cycling without the helmet should not deprive one of free medical treatment following an accident. But there is likely little value in not developing an easy system for remembering to take the helmet along on most occasions (for example, one can try to keep it near one’s bike) and therefore little value in

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always cycling without the helmet, with the resulting inability to claim free medical treatment. The issues of binge drinking and smoking are obviously vastly complicated by the fact that we may doubt people are choosing to do them in a way that makes their choices appropriately genuine. But actually I think that we have good reason to provide free medical treatment for the consequences of either conduct in any case. At least in Britain, for example, binge drinking is often the only way for some people to be accepted into a community of peers. And, again in Britain, smoking is to a large extent a class issue. Thus I agree with the former British Secretary of State for Health John Reid, who suggested that for many very poor people in difficult situations (he singled out lone mothers in public housing), smoking is an essential and rare escape from stress. It is still more prudent to quit, of course, but quitting involves a sacrifice that is greater in a life with fewer other means to destress. These assessments of each activity are obviously just speculations. My point is not to defend them in any specific case but to suggest that the right question to ask in each instance is the following: Does acting to avoid a disadvantage require a greater sacrifice than compensating for it does? Moreover, the right way to measure the various costs involved here is to hypothesize that everyone is granted the opportunity under consideration—to smoke, to binge drink, and to get free medical treatment as needed—and then to consider the likely costs of the insurance given not the assumption that everyone takes up the option but given the actual take-up. That is, we must hypothesize that all have equal opportunities so that we can have an egalitarian account, but there is nothing wrong with testing the costs of any given insurance policy against the actual take-up of it rather than an imagined one. This way we can get to the actual costs of granting the insurance to all. Clearly, we will want to know more about how to judge which interests outweigh which: Should we go the democratic route (aggregating people’s answers), or should we adopt a more objective measure? These are difficult questions, and I cannot answer them here. My point is that such questions are unavoidable because only an opportunity principle that compares people’s various interests can do the job of determining when compensation is and when it is not due. I promised a rationale for the principle, not just raw intuitions, however. Here it is. The idea behind the principle is the following: We must respect each other as beings with equal moral status and our own lives to lead. To lead our own lives/carry on our own projects, we need access to resources. And because of scarcity, the choices one person makes affect the amount available to others. So we must offer each of us some protection from the choices of others and cannot adopt the externalizing principle. Not all avoidable disadvantage should be compensated for. But equal moral respect does not require that the

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prudent be presented with the option to maximize their advantage; indeed, it cannot if it would mean that some people had to sacrifice more of their interests than the prudent would thereby gain. So we can abandon full externalism without being forced to embrace full internalism. If I am right, then the interest-based opportunity principle respects people’s equal moral status, and if so, social egalitarians—i.e., critics of luck egalitarianism who argue that the point of equality is in realizing equal social status12—should sign up to it too. That is, they should sign up to the idea that compensation should be offered, on egalitarian grounds, only when it would have been unreasonable to ask someone to act more carefully for the sake of others. We may still have other reasons to offer compensation in such cases, but they are not going to be egalitarian: It’s odd to suppose that those who do not respect the equal moral status of others should be seen as their social equals except for instrumental reasons.

5. Conclusion All in all, providing some blanket insurance/cushioning does not mean abandoning luck egalitarianism. We assess the claim to compensation not by asking simply whether the disadvantage is of the agent’s own making but by asking how valuable an opportunity she had to avoid the disadvantage and thus how costly it would have been for her to do what was necessary to avoid it. If more costly than it would be for us to insure her against it, then she is due compensation if such disadvantage arises. We might want to know at the end whether any of this is relevant, given that we don’t live in an egalitarian society and people don’t face equal opportunities in their lives. I think it is: We can assess the value of people’s opportunities and the costs they impose on one another even if they face unequal options in life; it’s just that while doing so, we have to be extra careful, as I think John Reid was, to notice that the value of a cigarette when life is very hard is far greater than it is when life is easy. Our medical provisions should be structured to reflect this, and luck egalitarianism has the resources to accept that this should be so.

Notes 1. I am grateful for careful comments to Ben Jackson and Collin O’Neil, as well as the participants of the NYU workshop organized by the editors of this volume. 2. Marc Fleurbaey, “Equal Opportunity or Equal Social Outcome?,” Economics and Philosophy 11 (1995): 22–55; Nir Eyal, “Egalitarian Justice and Innocent Choice,” Journal of Ethics and Social Philosophy 2 (2007): 1–18, see his discussion of ‘standard luck egalitarianism,’ esp. 1–3; Kristin Voigt, “The Harshness Objection: Is Luck Egalitarianism Too Harsh on the Victims of Option Luck?,” Ethical Theory and Moral Practice 10 (2007): 389–407; Jonathan Wolff and Avner de-Shalit, “The Apparent Asymmetry of Responsibility,” in Responsibility and Distributive Justice, ed. Carl Knight and Zofia Stemplowska (Oxford University Press,

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2011), 216–29, esp. 221. See also Nir Eyal (Chapter 10 in this volume) for a discussion of the rationale. Gerald Allan Cohen, “On the Currency of Egalitarian Justice,” Ethics 99 (1989): 906–44, esp. 934; Richard Arneson, “Luck Egalitarianism and Prioritarianism,” Ethics 110 (2000): 339–49, esp. 344; Ronald Dworkin, Sovereign Virtue (Cambridge, MA: Harvard University Press, 2000). The argument that follows draws on Zofia Stemplowska, “Rescuing Luck Egalitarianism,” Journal of Social Philosophy 44 (2013): 402–19; Zofia Stemplowska, “Luck Egalitarianism,” in The Routledge Companion to Social and Political Philosophy, ed. Gerald Gaus and Fred D’Agostino (Abingdon: Routledge, 2013); Zofia Stemplowska, “Responsibility and Respect: Reconciling Two Egalitarian Visions,” in Responsibility and Distributive Justice, ed. Knight and Stemplowska, 115–35. Stemplowska, “Rescuing Luck Egalitarianism.” The exception is when two people who face identical options and make their different choices regarding perfectly foreseeable outcomes whose coming about involves no chance; if so, we can reasonably conclude that these two individuals’ relative standing is due to their different choices rather than luck. Cf. Matthias Hild and Alex Voorhoeve, “Equal Opportunity and Opportunity Dominance,” Economics and Philosophy 20 (2004): 117–45, esp. 124; Serena Olsaretti, “Responsibility and the Consequences of Choice,” Proceedings of the Aristotelian Society 109 (2009): 165–88; Zofia Stemplowska, “Making Justice Sensitive to Responsibility,” Political Studies 57 (2009): 237–59. See also Gideon Elford, “When Is Inequality Fair?,” working paper. I follow Andrew Williams’s vocabulary developed for a slightly different context: externalizing and internalizing egalitarianism. Andrew Williams, “Liberty, Equality, and Property,” in The Oxford Handbook of Political Theory, ed. John S. Dryzek, Bonnie Honig, and Anne Phillips (Oxford: Oxford University Press, 2006), 488–506. Seana Valentine Shiffrin, “Egalitarianism, Choice-Sensitivity, and Accommodation,” in Reason and Values: Themes from the Moral Philosophy of Joseph Raz, ed. Philip Pettit, Samuel Scheffler, Michael Smith, and R. Jay Wallace (Oxford University Press, 2004), 297. Elizabeth Anderson, “What Is the Point of Equality?,” Ethics 109 (1999): 287–337. Carl Knight, “Responsibility, Desert and Justice,” in Responsibility and Distributive Justice, ed. Carl Knight and Zofia Stemplowska, 152–73. Anderson, “What Is the Point of Equality?,” esp. 296–300; Samuel Scheffler, “What Is Egalitarianism?,” Philosophy and Public Affairs 31 (2003): 5–39 and his “Choice, Circumstances, and the Value of Equality,” Politics, Philosophy & Economics 4 (2005): 5–28; Christian Schemmel, “Distributive and Relational Equality,” Politics, Philosophy & Economics 11 (2012): 123–48.

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Luck Egalitarianism, Harshness, and the Rule of Rescue NIR EYAL

Abstract Luck egalitarians consider it somewhat fairer when relative disadvantage results from the disadvantaged party’s own choice or fault—when it is “option luck,” not “brute luck.” The most famous objection to luck egalitarianism is the harshness objection. It points out that when someone is at grave risk through their own choice or fault, refusing to rescue them on the grounds that they are responsible for their own plight would, intuitively, be too harsh. A strong version of the objection adds that intuitively it is harsh even to weigh her personal responsibility for her plight against rescuing her. In defense of luck egalitarianism, I point out that grave risk is known to bring out the so-called rule of rescue mentality and related biases. These biases incline us to deny that there is any sound reason against rescuing the person identified as at grave risk. That fact, I propose, provides an alternative causal account of our intuition that rescue is mandated and that considerations of personal responsibility against rescue would be harsh and inappropriate. In support of this alternative account, when the propriety of holding people responsible for avoidable risk taking is assessed outside immediate rescue situations, our intuitions are far more accepting of the relevance of personal responsibility for disadvantage and hence of luck egalitarianism.

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1. Background: Luck-Egalitarianism, the Harshness Objection, and Democratic Equality

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According to luck egalitarianism:1 When deciding whether or not justice (as opposed to charity) requires redistribution, the egalitarian asks if someone with a disadvantage could have avoided it . . . If he could have avoided it, he has no claim to compensation, from an egalitarian point of view.2 A paramount objection to luck egalitarianism is that it endorses a harsh allocation of resources. Critics Marc Fleurbaey, Elizabeth Anderson, Dan Wikler, Sam Scheffler, and Norm Daniels accuse luck egalitarianism of supporting the harsh abandonment of reckless drivers who hit trees, of gluttons whose unhealthy diets lead to chronic disease, and of bons vivants whose taste for unprotected sex results in their infection (Fleurbaey 1995; Anderson 1999; Scheffler 2005; Wikler 2006; Daniels 2011). Elizabeth Anderson famously writes: Consider an uninsured driver who negligently makes an illegal turn that causes an accident with another car. Witnesses call the police, reporting who is at fault; the police transmit this information to emergency medical technicians. When they arrive at the scene and find that the driver at fault is uninsured, they leave him to die by the side of the road.3 The objection is that luck egalitarianism allows society to abandon the negligent (or ‘imprudent’ or ‘reckless,’ as they are also called in this literature), say, for no special reason or in order to cut costs, to deter others from being negligent, or to stop the negligent from dumping their slack on others. Luck egalitarianism allegedly must say that society would be in its right, at least in terms of justice, if it abandoned them. Anderson and fellow critics of luck egalitarianism preempt some apologies on behalf of luck egalitarianism, according to which luck egalitarianism has the resources to justify rescuing negligent victims of bad option luck. For example, Anderson agrees that it is inexpedient to leave decisions on health coverage to ambulance drivers and emergency physicians. However, the expediency defense fails for harsh decisions made by hospital administrators and insurers. Likewise, the critics judge that abandoning negligent individuals would often penalize patients who have had an underprivileged upbringing, which generally correlates with lower medical compliance. But Fleurbaey, who had raised the harshness objection before Anderson did, was careful to emphasize that the victim he discussed “received a normal and balanced upbringing” (Fleurbaey 1995).

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Luck egalitarians have proposed a number of responses, most of which seek to clarify why they can consistently endorse a duty to save the imprudent. One such response is given by Zofia Stemplowska in Chapter 9 in this volume. Pluralist luck egalitarians provide different responses. They adduce our many other potential reasons to save the imprudent, such as our complementary (not alternative) reasons to satisfy people’s basic needs. In pluralist luck egalitarian Shlomi Segall’s words, “The concern for basic needs . . . overrides luck egalitarian distributive justice and mandates meeting the basic medical needs of the prudent and the imprudent alike.”4 However, a sophisticated champion of the harshness objection could respond that intuition rebels against the implications of this position too. For example, an ambulance driver who saved only the prudent when there was a reckless driver and a backseat passenger and only one spot in the ambulance, rather than flip a coin, would intuitively act wrongly (compare Segall 2010, 71–2). Nor is abandoning the imprudent as such something that, intuitively, should even cross the minds of decent ambulance drivers or doctors. Ones who thought that the imprudent had lost their just claim to their services and should be aided out of sheer charitable concern for their basic medical needs would intuitively be guilty not of making the wrong choice but of flawed background phenomenology. Anderson hints at this “strong version” of the harshness objection (as we may call this version) when she complains that on luck egalitarianism, the post office “can with justice turn away the guide dogs of faulty drivers who lost their sight in a car accident” (Anderson 1999, 296, emphasis added). Anderson and some other critics of luck egalitarianism use its alleged harshness to motivate an alternative egalitarian theory, namely, democratic equality. That theory states: Negatively, egalitarians seek to abolish oppression—that is, forms of social relationship by which some people dominate, exploit, marginalize, demean, and inflict violence upon others. . . . Positively, egalitarians seek a social order in which persons stand in relations of equality. They seek to live together in a democratic community, as opposed to a hierarchical one. (Anderson 1999, 313) Democratic equality is said to be immune to the harshness objection because it guarantees “effective access to a package of capabilities sufficient for standing as an equal over the course of an entire life. It is not a starting-gate theory, in which people could lose their access to equal standing through bad option luck” (Anderson 1999, 319; see also p. 328: “Democratic equality . . . guarantees a set of capabilities necessary to functioning as a free and equal citizen and avoiding oppression”). Remaining “capable of standing as an equal in civil society requires,” among other things, ambulatory services in the event of a

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car accident, regardless of the causes of disability; post office disabled access, regardless of its causes (Anderson 1999, 246); lung transplantation to overcome certain lung cancers regardless of their causes; and protection against other very bad brute or option luck. These rights to basic protection are inalienable because society has a duty to protect the standing of each member as a Kantian fundamental equal. This right is as inalienable as are the freedoms from slavery and from any other violation of citizens’ Kantian dignity (Anderson 1999, 319). Put differently, Anderson argues that what is wrong with the alleged luck egalitarian denial of medical care to the neglectful is that it robs them of their capacity for full democratic participation in politics and civil society on equal terms and that that capacity matters because Kantian dignity does. Daniels and Scheffler espouse the grounding in equal democratic status (Scheffler 2005; Daniels 2011). Daniels adds that such denial of medical care also robs the neglectful of their fair share of opportunity, a related fundamental right (Daniels 2007, 2011). Even luck egalitarian Shlomi Segall concedes that democratic equality “easily averts the abandonment objection”; he merely insists that, with moral acrobatics, luck egalitarians can avert that objection as well (Segall 2010, but see Segall forthcoming). Like Segall, I am sympathetic to pluralist luck egalitarianism. But I take a more radical stance against the harshness objection than he does. The three sections of this chapter will argue, respectively: 1. Harshness objections arise for democratic equality as well. 2. A central reason why either luck egalitarian recommendations or democratic egalitarian ones seem too harsh may well be the potentially distracting influence of the unrelated and irrelevant rule of rescue mentality. That mentality, which I shall lay out, makes us not only prioritize greatly individuals who are identified as being in great danger but also, crucially, ‘deeply exclude’ (as I shall put it) any reasons to deprioritize them, sound or unsound. I shall also explain the notion of deep exclusion. 3. Indeed, outside immediate rescue situations, the force of the harshness objection wanes, and personal responsibility intuitively feels much more relevant. I shall conclude that, in truth, personal responsibility always matters somewhat, but that this truth is sometimes too harsh for us to admit—even to ourselves. Harshness Objections to Democratic Equality In its own ways, democratic equality is harsh as well, in some ways more than luck egalitarianism. Elsewhere, I laid out several ways in which it is harsh, but

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let me feature one: its harshness toward identified victims. Anderson cites the protection of a decent democratic minimum as the reason to save the negligent driver. But often it is possible to help more people past the democratic minimum threshold (or any other minimum threshold) by letting another person slip. First, sometimes the fungible resources and the efforts that rescuing the neglectful would take could be diverted to saving more people’s democratic minimum rights elsewhere. Prevention is often more cost-effective than rescue. One reason why resources saved by refusing to rescue could lead to democratic improvements elsewhere is that democratic improvements require giving each some potentially scarce fungibles. In Anderson’s own words, “[D]emocratic equality requires that everyone have effective access to enough [divisible] resources to avoid being oppressed by others and to function as an equal in civil society” (Anderson 1999, 320). She also criticizes libertarians’ merely formal definition of freedom because it “neglects the importance of having the means to do what one wants” (Anderson 1999, 315). Many societies are only barely capable of securing these fungibles to all, stably. Rescues of identified individuals from dire straits can be very expensive and not so rare—most dialysis and organ transplantation, intensive care following car accidents, and advanced cancer treatments are rescues in that sense, when they seek to rescue an individual identified as at high risk of premature death. Money saved by refusing to provide such rescues to anyone or to some people could often release enough funds for many preventative interventions that are more ‘cost-democratically-effective,’ as we may put it. They prevent large democratic deficits in more statistical people. A second way in which abandoning the negligent could improve democratic equality is through deterrence. Sometimes abandoning those identified as both in great danger and negligent would dissuade similar negligent choices by many other statistical people (Tomasi 2013). It would therefore prevent the major democratic deficits that needing rescue, and either getting it on time or not, would cause those who could have made more prudent choices and avoided the trouble in the first place. Without deterrence, more of these statistical people would act imprudently, potentially coming to need rescue. And unless the latter get rescued on time, they would suffer major democratic deficits. So-called democratic sufficientarians like Anderson, who prioritize protecting a democratic minimum or a minimum of fair opportunities, may thus be committed to abandoning the neglectful. Abandoning them could move society closer to full democratic participation and opportunity for all. Properly worked out, then, democratic equality may generate the same counterintuitively harsh recommendations regarding many cases of rescue. Elsewhere, I also explain why Anderson’s sufficientarianism and her Kantianism fail to ward off this challenge. Nothing about them, at least as Anderson

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interprets them, provides reasons to save identified reckless drivers now over merely statistical reckless drivers later. I also find her approach suspect of harshness toward those whose plight is not political (e.g. victims of horrific pain or deafness, when those fail to create social or political impediments or stem from any). In addition, Anderson writes openly of her extreme harshness toward those who make antisocial choices (she actually writes that Van Parijs’s surfers should not be fed). And there are other harshnesses in her system. My provisional conclusion is that there is a lot that’s harsh about democratic equality, at least under Anderson’s seminal interpretation. Luck egalitarianism certainly does not have a monopoly on harshness. Some harshness is built into either of the leading egalitarian theories on their non-pluralistic interpretations, and egalitarians of all mettles should examine how much harshness, of which kinds, really poses a problem for an ethical theory. The Confounding Influence of the Rule of Rescue Molly Osborne and Timothy Evans have defined the rule of rescue in health care as “the powerful human proclivity to rescue a single identified endangered life, regardless of cost, at the expense of many nameless faces who will therefore be denied health care” (Osborne and Evans 1994, 779). Others have characterized the rule of rescue mentality in additional settings (Cohen, Daniels, and Eyal 2015). It is interesting that Anderson’s negligent driver’s traffic accident is a situation where rescue is needed. So are the often discussed situations where we must decide whether to give a transplant to a patient who has lost an organ by smoking or drinking. So are the often discussed situations in which what we debate is whether to send helicopters to save hikers or yachters who have been warned not to head to remote destinations yet headed there and got stuck. I am not aware of any version of the harshness objection in which a negligent person did not need rescue. The phenomenology of rescue goes beyond the proclivity to rescue threatened identified lives. John McKie and Jeff Richardson add: Perhaps the most conspicuous feature of the [rule of rescue] is the tendency to disregard opportunity costs when the life of an identifiable individual is visibly threatened. There is a tendency to “act first and ask questions later”. Considerations about costs are pushed in the background. (McKie and Richardson 2003) In fact, even this characterization remains partial. McKie and Richardson could have said as much about considerations beyond opportunity cost, all of which are “pushed in the background” in rescue crises. If the person in dire

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need of rescue were a blameless psychopathic serial killer, we would refrain from and repudiate calculations about the possibility of preempting murder through nonrescue. In the case of rescuing patients living with AIDS or multidrug-resistant tuberculosis, we try not to think about the danger that providing expensive antiretrovirals or second-line antibiotics would exacerbate drug resistance and jeopardize others’ health. We consider it indecent to wonder whether the person lacks the moral desert to be rescued and whether her death might have taught other negligent people a lesson and saved more lives than it would take. Even writing down these ideas makes me shudder— so powerful is the rule of rescue mentality. These and other considerations are all typically pushed aside, when human beings rush to the rescue. Morally justified or not, this pushing-in-the-background feature of the rule of rescue mentality already causally explains our willingness to rescue and our tendency to repudiate luck egalitarian calculations of personal responsibility, whether or not luck egalitarianism is true. Even if luck egalitarianism were true, its truth would be pushed in the background. When people need us direly, we are inclined to help them and to dismiss the relevance of virtually any argument against helping them. We dismiss considerations about money and cost-effectiveness and about using the money to save more lives later; we dismiss the need to create deterrence against risk taking; we dismiss the legitimacy of sacrificing individuals now as a prophylactic against loss of either future welfare or future democracy; and, among other things, when individuals are responsible for their own plight, we deny that their being responsible excuses our letting them bear the consequences. We are inclined to say that personal responsibility is irrelevant. But that doesn’t show that it is irrelevant any more than it shows that money or democracy lack any relevance. Let me recap the point. Rescue situations elicit a strong tendency not only to weight highly and act on considerations supporting rescue but also to deny the relevance of considerations that weigh against rescue, even when the latter considerations are perfectly relevant. Harshness objections accuse luck egalitarianism of treating as relevant a factor that may weigh against rescue yet intuitively seems irrelevant in the situation: personal responsibility. But because harshness objections arise only in rescue situations, these objections are very bad tests of any theory that may endorse reasons weighing against nonrescue. Rescues are precisely crises that make us see what is relevant as though it were irrelevant. One way to put this is to say that rescue crises often prompt us to exclude any reasons not to rescue, in a deep way: not only not to take them into consideration in decision making but also to believe and declare that they do not exist or at least to “see them as” nonexistent—to hold that somehow, cost or public health or personal responsibility considerations, which are relevant in so many areas of our lives, do not apply there. This “deep exclusion,” as we may call this phenomenon, may itself be justified or just part of how we are. It may reflect sound deep exclusionary reasons (because rescue crises give us

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sound second-order reasons to deeply exclude certain first-order reasons) or merely deep exclusionary tendencies (because deep exclusion is just a remnant of our sociobiological heritage, a reflection of our vested interests or other distractions). But that doesn’t matter. The point is that, justifiably or not, rescue situations systematically make us unreliable judges of which reasons against rescue are relevant and which are irrelevant. Returning to luck egalitarianism, what we need in order to assess luck egalitarianism and its relevance in the health arena more reliably are examples of decisions in which immediate rescue is not a deciding factor. The next section discusses two such examples. The Potential Plain Relevance of Personal Responsibility for Health outside Rescue Crises Ex ante Decision Making For all of her ire about theories that hold people responsible for bad option luck, Anderson actually endorses holding people responsible for many decisions in the health sphere ex ante of luck. At one point, her article surprisingly argues for ex ante cigarette taxes—small harms of a financial stripe, which materialize with certainty years before lung cancer or chronic obstructive pulmonary disorder turn out to have materialized or not to have materialized. Anderson clarifies that what she opposes are only ex post reduced benefits. As she explains, democratic capacities are under real threat only when a gamble pans out ill and ex post a person needs an expensive operation and so forth to live and participate democratically. Small ex ante taxes on cigarettes “just to force smokers to absorb these costs ex ante” do not jeopardize a person’s standing as a fundamental equal, she believes, so there is nothing wrong with ex ante taxes on cigarettes (Anderson 1999, 328–9). It would seem, however, that if a large financial loss threatens a person’s standing, a small financial loss threatens it some. And a small financial loss that smokers are bound to undergo (as is the case with cigarette taxes) may turn out to threaten it significantly. Daniels’s most recent take on personal responsibility for health likewise starts with long Scanlon-inspired sections dismissing the application of personal responsibility to health as a category mistake of sorts but then surprisingly states: Why should others—especially those who may take great care to engage in healthy behaviors—be obliged to pay for meeting health needs that are the result of the imprudent, irresponsible choices of some? It is one thing to respect the self-regarding choices of individuals in order to avoid intrusive forms of paternalism, but it is another to ignore choices that impose externalities on others. (Daniels 2011, 276)

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Daniels then proceeds to express support for forcing all of us to “internalize our externalities,” even in the health arena (so long as society has discharged all of its obligations to us). Unlike Anderson, Daniels does not even clarify whether these propersonal responsibility for health statements are limited to ex ante resource allocation or apply also ex post. One is left wondering whether Daniels is not committing here to the very same harsh policies of which critical caricatures accuse luck egalitarianism. Consider this. Presumably, Daniels would not propose internalizing of externalities by people who could not avoid making imprudent, irresponsible choices with externalities for others—say, past victims of vicious, forced injection of incurably addictive substances who now desperately seek these substances—with moderate externalities for society. Their present choice to seek them notwithstanding, surely Daniels would endorse compassionate accommodations for such victims, not sheer penalties. His proposal hopefully concerns only those people whose choices are avoidable all the way down. Only they, he hopefully thinks, should be made to internalize social externalities. If so, his proposal seems coextensive with the sort of luck egalitarian policies that Anderson’s and Fleurbaey’s harshness objections set out to condemn. Moreover, Daniels’s rationale for these policies seems luck egalitarian: The costs imposed on others by a person’s own wholly avoidable choices are unacceptable, even when these costs are simply what it would take to redress serious disadvantage resulting from the person’s own choice or fault. In fact, unlike luck egalitarian pluralists, such as Cohen, Temkin, Segall, and myself, Daniels may consider such disadvantages permissible or mandatory no matter what and not only permissible in one respect. Failure to force the internalizing of externalities in the case of thoroughly avoidable imprudent choice would unjustly impose on others, and, for Daniels, injustice is simply impermissible. However Daniels is to be interpreted, what is clear is that both Anderson and Daniels express here that they have no essential problem with ex ante personal responsibility policies. A possible gloss is that, outside the distracting influence of rescue crises where the human rule of rescue mentality exercises distracting influence, both thinkers find personal responsibility for social externalities in the health sphere perfectly relevant. Ex post Decision Making Made in Advance Consider the following case: Remotania, a poor and remote island nation, is blessed with beautiful, high mountains, and citizens crave to hike to their summits. All the routes to the top, however, are difficult and dangerous, and there is no way to make the paths safer. Citizens are educated not to attempt hiking, and all approaches to the mountains have prominent signs warning of the dangers. Still, some hikers remain undeterred. On average, 10 reckless hikers

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a year die of exposure after becoming stranded on the mountainsides. Only a helicopter could have saved them, but in most years in the past, the country had lacked the funds to obtain and operate one. Experience shows that operating one did not motivate additional hiking. This year, the government’s revenues are just high enough to buy and operate a helicopter for the rescue service; but there are competing needs. For example, about 10 adults on this island nation die each year from an unpreventable infection. This infection is completely curable, with no further effects—but only with a critical care device that has been too expensive for this country. The cost for buying and for operating the helicopter and the critical care device are similar, so rescuing the 10 stranded hikers (in an average year) costs about the same as saving and curing the 10 people who (in an average year) will otherwise succumb to this disease. These two groups of 10 are similar in age, general health, and income. If the extra money available this year could be used only for the helicopter rescues (that is, for the 10 stranded hikers who would otherwise die) or for the critical care device (that is, for the 10 patients afflicted with the disease, who would otherwise die), and the money must be spent this year for one of these, which would make the better use of these funds?5 In this case, I take it that, intuitively, it makes perfect sense to prioritize the drugs for the congenitally ill. While in this case life, limb, and democratic capacities hang in the balance for either group of ten people, our intuitions side with reserving limited resources for the congenitally ill. A natural explanation is that the victims of congenital disease are not at all responsible for avoidable risk taking. An alternate explanation would have been that rescue might make more people hike, but, as mentioned, that was seen not to be the case. Thus, although grave risks are involved, in the Remotania case, at least, personal responsibility appears perfectly relevant. Let us ask, then, do our intuitions side in that way about Remotania because that case involves unique features that ex nihilo turn what is usually an utterly irrelevant factor, personal responsibility for health, into a sound consideration? More plausibly, personal responsibility was relevant all along but was masked in discussions of unfolding rescue crises. The negligent driver case, cases where the decision surrounds whether or not to provide rescue for a hiker contemporaneously stuck on a mountain or to a smoker contemporaneously struggling with lung disease, and other standard cases triggered a rule of rescue mentality and its resulting distractions. They were badly construed for locating the decision during the rescue crisis. These distractions made us pronounce some potentially relevant considerations to be irrelevant without proper consideration because deep exclusion of perfectly relevant considerations is part of that mentality. The Remotania case is purer. It blocks these distractions. And, lo

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and behold, that case strongly suggests that even ex post personal responsibility is, sometimes at least, perfectly relevant. Apparently, luck egalitarian personal responsibility can count in the health arena. Its relevance may be less apparent because in rescue situations, it is deeply excluded, but it remains real. My hunch is that personal responsibility considerations obtain on some level throughout, even in health contexts and even in rescue contexts. We may have reason and, all things considered, even justification for deep exclusion of such considerations. We may be justified in some sense in having strong intuitions that these considerations do not obtain. But luck egalitarian considerations of personal responsibility do obtain, even in rescue situations. (They can, of course, be weak or overridden, and often they are.)

2. Conclusion Luck egalitarianism initially seems to demand an exceedingly harsh allocation of basic health resources—one that is intuitively too hard on those responsible for their own plight. Critics have used the alleged harshness of luck egalitarianism in the health sphere to motivate democratic equality. But I have argued: 1. Harshness objections arise for democratic equality as well. I featured one harsh aspect of democratic equality: its commitment to abandon many identified imprudent victims. 2. A central reason why both luck egalitarian and democratic egalitarian recommendations seem as though they are too harsh is the biasing influence of the unrelated and irrelevant rule of rescue mentality. Whether that mentality is justified by what I called deeply exclusionary reasons or we have no sound reason for deep exclusion, the reality is that contemporaneous rescue crises make us intentionally blind to perfectly good reasons not to rescue. 3. Indeed, outside contemporaneous rescue crises, the force of the harshness objection wanes, and personal responsibility feels more relevant. Even Anderson and Daniels endorse ex ante personal responsibility considerations, and when decisions about ex post personal responsibility are made in advance, as in the case of Remotania, most of us seem to take personal responsibility into account.

Notes 1. This chapter is based on presentations at Harvard University, the Brocher Summer School on Health Inequalities, the Nordic Network for Political Ethics (NNPE) conference in Vejle Fjord, the Munich workshop on Credits 4 Health, the Current Controversies in Bioethics Workshop at the NYU Center for Bioethics, and the Duke Center for Law, Economics, and Public Policy conference on Equality of Opportunity. For helpful comments, I am grateful to

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the audiences, Elizabeth Anderson, Richard Arneson, Leah Price, Alex Voorhoeve, and Dan Wikler, as well as the editors. 2. Cohen 1989, 920. Obviously, if he could not have avoided it and cannot now overcome it otherwise, then he has a claim to compensation from that point of view. 3. Anderson 1999, 296. See also Daniels 2011, 466–7. Anderson and other proponents of the harshness objection build on Marc Fleurbaey’s early critique of luck egalitarians’ “equal opportunity” principle: [O]ur moral intuition can run into conflict with the principle of equal opportunity, as Bert’s case should show. Bert has received a normal and balanced upbringing, but he has freely adopted a negligent and reckless character. In particular, he enjoys having his hair blown by the wind when he rides his motorbike on the highway, and he seldom wears a helmet even though he has one and it is compulsory to wear it. One morning . . . Bert’s careless driving causes an accident, in which he suffers serious head injuries. The hospital diagnoses a trauma which requires a costly operation Bert cannot afford because he has no health insurance. He will die if nothing is done. In this case, the equal opportunity principle would not endorse any transfer of resources to help Bert. He is fully responsible for his injury . . . a society complying with equal opportunity will quietly let you die (Fleurbaey 1995, 40–1). 4. Segall 2010, 76–7; my italics. See also pp. 68–72. Elsewhere, Segall adds that reasons to promote autonomy and social solidarity can also override the reasons to instill luck egalitarian justice. 5. This case is essentially Alex Voorhoeve’s improvement on a case with which I had come up. I am also grateful to I. Glenn Cohen, Leah Price, Andreas Schmidt, and Dan Wikler for help in honing it further.

References Anderson, Elizabeth S. (1999) “What Is the Point of Equality?” Ethics 109(2): 287–337. Cohen, Gerald A. (1989) “On the Currency of Egalitarian Justice.” Ethics 99(4): 906–44. Cohen, I. Glenn, Daniels, Norman, and Eyal, Nir (2015) “Introduction.” In Identified vs. Statistical Persons, edited by I. Glenn Cohen, Norman Daniels, and Nir Eyal, 1–10. New York: Oxford University Press. Daniels, Norman (2007) Just Health: Meeting Health Needs Fairly. Cambridge: Cambridge University Press. Daniels, Norman (2011) “Individual and Social Responsibility for Health.” In Responsibility and Distributive Justice, edited by Carl Knight and Zofia Stemplowska, 266–86. Oxford: Oxford University Press. Fleurbaey, Marc (1995) “Equal Opportunity or Equal Social Outcome?” Economics and Philosophy 11: 25–55. McKie, John, and Richardson, Jeff (2003) “The Rule of Rescue.” Social Science & Medicine 56(12): 2407–19. Osborne, Molly, and Evans, Timothy W. (1994) “Allocation of Resources in Intensive Care: A Transatlantic Perspective.” Lancet 343(8900): 778–780. Scheffler, Samuel (2005) “Choice, Circumstance, and the Value of Equality.” Politics, Philosophy & Economics 4(1): 5–28. Segall, Shlomi (2010) Health, Luck, and Justice. Princeton, NJ: Princeton University Press. Segall, Shlomi (forthcoming) “Justice and Health.” In The Oxford Handbook on Justice, edited by Serena Olsaretti. Oxford: Oxford University Press. Tomasi, John (2013) Free Market Fairness. Princeton, NJ: Princeton University Press. Wikler, Dan (2006) “Personal and Social Responsibility for Health.” In Public Health, Ethics, and Equity, edited by Sudhir Anand, Fabienne Peter, and Amartya K. Sen, 109–34. New York: Oxford University Press.

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Suggested Further Readings (Part V)

Cohen, Gerald A. (1989) “On the Currency of Egalitarian Justice.” Ethics 99(4): 906–44. A classical presentation of luck egalitarianism. Anderson, Elizabeth S. (1999) “What’s the Point of Equality?” Ethics 109(2): 287–337. A major critique of luck egalitarianism, which contains the most famous version of the harshness objection. Segall, Shlomi (2010) Health, Luck, and Justice. Princeton, NJ: Princeton University Press. Includes a detailed defense of luck egalitarianism from the harshness objection. McKie, John, and Richardson, Jeff (2003) “The Rule of Rescue.” Social Science & Medicine 56(12): 2407–19. A primer on the rule of rescue mentality. Dworkin, Ronald (2000) Sovereign Virtue. Cambridge, MA: Harvard University Press. An alternative account of luck egalitarian justice. Lippert-Rasmussen, Kasper (2015) Luck Egalitarianism. London: Bloomsbury. A recent defense of luck egalitarianism. Stemplowska, Zofia (2013) “Luck Egalitarianism.” In The Routledge Companion to Social and Political Philosophy, edited by Gerald Gaus and Fred D’Agostino, 389–400. New York and London: Routledge. An overview of the debate about luck egalitarianism. Eyal, Nir (2011) “Why Treat Noncompliant Patients? Beyond the Decent Minimum Account.” Journal of Medicine and Philosophy 36(6): 572–88. Proposes many accounts, largely compatible with luck egalitarianism, for why we should typically assist “imprudent” people at grave risk.

Study Questions (Part V) 1. How should we determine whether a given outcome is due to luck or due to choice?

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2. Must luck egalitarians hold people responsible for the costs of their imprudent choices? 3. What is the harshness objection, and how would you assess its validity? 4. Does Eyal oppose the rule of rescue?

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Supplemental Guide to Further Controversies (1) Is Obtaining Consent to Research Truly Necessary in all Research on Human Subjects? Brody, Howard, and Miller, Franklin G. (2013) “The Research-Clinical Practice Distinction, Learning Health Systems, and Relationships.” Hastings Center Report 43(5): 41–7. Faden, Ruth, Kass, Nancy, Goodman, Steven, Pronovost, Peter, Tunis, Sean, and Beauchamp, Tom (2013) “An Ethics Framework for a Learning Health Care System: A Departure from Traditional Research Ethics and Clinical Ethics.” Hastings Center Report 43: S16–S27. Truog, Robert D., Robinson, Walter, Randolph, Adrienne, and Morris, Alan (1999) “Is Informed Consent Always Necessary for Randomized, Controlled Trials?” New England Journal of Medicine 340(10): 804–7. Wertheimer, Alan (2014) “(Why) Should We Require Consent to Participation in Research?” Journal of Law and the Biosciences 1(2): 137–82.

(2) Are Conscientious Refusals on the Part of Physicians and Pharmacists to Provide Abortion and Emergency Contraception in Contravention of their Obligations as Medical Professionals? Brock, Dan (2008) “Conscientious Refusal by Physicians and Pharmacists: Who Is Obliged to Do What and Why?” Theoretical and Medical Bioethics 29(3): 187–200. Brownlee, Kimberley (2012) Conscience and Conviction: The Case for Civil Disobedience. Oxford: Oxford University Press. Cantor, Julie, and Baum, Ken (2008) “The Limits of Conscientious Objection: May Pharmacists Refuse to Fill Prescriptions for Emergency Contraception?” New England Journal of Medicine 351(19): 2008–12. Fitzgerald, Chloë, and McLeod, Carolyn (2015) “Conscientious Refusal and Access to Abortion and Contraception.” In Routledge Companion to Bioethics, edited by John Arras, Elizabeth Fenton, and Rebecca Kukla, 343–56. New York: Routledge. Wicclair, Mark R. (2011) Conscientious Objection in Health Care: An Ethical Analysis. Cambridge: Cambridge University Press.

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(3) Is There an Obligation to Create the Best Baby One Can? Buchanan, Allen (2009) “Human Nature and Enhancement.” Bioethics 23(3): 141–50. Kamm, Frances (2010) “What Is and Is Not Wrong with Enhancement.” In Human Enhancement, edited by Julian Savulescu and Nick Bostrom, 91–130. Oxford: Oxford University Press. Liao, S. Matthew (2008) “Selecting Children: The Ethics of Reproductive Genetic Engineering.” Philosophy Compass 3: 1–19. Sandel, Michael J. (2007) The Case against Perfection: Ethics in the Age of Genetic Engineering. Cambridge, MA: Harvard University Press. Savulescu, Julian, and Kahane, Guy (2009) “The Moral Obligation to Create the Child with the Best Chance of the Best Life.” Bioethics 23(5): 274–90. Sparrow, Robert (2015) “Enhancement and Obsolescence: Avoiding an Enhanced ‘Rat Race’.” Kennedy Institute of Ethics Journal 25(3): 231–60.

(4) In an Effort to Improve Public Health, May the State Legitimately Remove or Penalize Unhealthy Options or Noncoercively “Nudge” Us to Make Healthier Choices, or Are Such Measures Objectionably Paternalistic? Conly, Sarah (2013) Against Autonomy: Justifying Coercive Measures. Cambridge: Cambridge University Press. Sunstein, Cass (2014) Why Nudge? The Politics of Libertarian Paternalism. New Haven, CT: Yale University Press.

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Index

abortion 1, 4, 82 addiction 2, 8, 117–30, 132–43, 145; and blame 8, 117, 126–8; and chemical dependency 118; and diachronic agency 9, 132, 133, 142–3; and dopamine system 8–9, 117, 130n9, 133, 136–7, 146; and loss of control 9, 132, 135, 140–1; and malice 8, 127; and physical dependency 117–18; and reckless indifference 8, 127–9; and self-control 139, 145; and withdrawal 8, 118, 124, 135; see also blame; habits; reward system addictive drugs see reward system addicts: abstinent 8–9, 121, 133–5, 138–9, 141; behavior of 8, 133–6, 140; and control (loss of) 9, 132, 135, 140–1, 145; desires of 8, 122–4, 127–9, 135, 145; diachronic agency of 132, 133, 142–3; and habits 8, 117, 121, 124, 128–30, 133; and judgment-shift 9, 135–6, 139, 140; mental states of 133, 135; moral responsibility of 118, 132–3, 139–43; reasons-responsiveness of 134, 139–40, 142, 143; and rehab 134, 135; and relapse 9, 134–5, 137–8, 139; see also addiction ancillary care 2–3, 16–18, 20, 23, 25, 26n1, 26n3, 27n18, 28n26, 29–31, 34, 44; basic

32, 34–41, 41–2n17; definition of 16, 29; health-care-related basic 35; non-basic 34–5; non-health-care-related basic 35; see also ancillary-care obligations/duties ancillary-care obligations/duties 2–3, 15–44; and associate dutybearers 36; definition of 15, 16; and “dependence” 23; and duty of “tactful engagement” 17, 23–4, 26; and human rights approach 3, 29, 32, 34–8, 40–1; and “moral entanglement” 3, 23–4, 26; and partial duties 35–6; “partial-entrustment” model/view of 2–3, 15–18, 23, 25–6, 30–2, 39–41, 43, 44; potential 21; and primary dutybearers 36; and privacy rights 17, 26, 27n5, 30–1, 39, 40, 41; “special” 2–3, 16–18, 23–4, 29–32, 43; whole-person model of 31; see also ancillary-care; human rights; rescue; rule of rescue mentality Anderson, Elizabeth 154, 161–5, 167–8, 170, 170n1, 171n3 Arpaly, Nomy 8, 133, 136–7, 143, 145 authority (in)dependence 54, 56, 63n12 autism 4, 47–8, 59–60, 77; diagnostic criteria for 49, 62, 64n14 autism spectrum disorder (ASD) subjects: behavior of 48; brain function of 50;

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and empathy 4, 53, 55, 59, 63n9; moral accountability of 4, 5, 48, 50, 53, 56–7, 63n13; moral agency of 51, 53; moral reasoning of 52–3, 56; moral status of 60; moral understanding of 4; and normative perspective 4; and rules 52; see also deficits behavior: controlled 132; see also addicts; habits Belsky, Leah 2, 15–16, 30–1 beneficence 3, 15, 18, 21–6, 28n27, 38, 56; duty/obligations of 17, 21–2, 23; principle of 38; “specifiable” 25–6 Bentham, Jeremy 21 bioethics 1–2, 7, 8, 9, 11, 26n1, 117; definition of 1 biomedical technologies 1; reproductive 11 blame 4, 8, 24, 48, 78, 104, 106, 117, 126–30, 132–3, 138, 143, 145, 151, 166; and malice 127, 130; and reckless indifference 127–30; theory of 130n12, 130n13 choice-sensitivity principle 152, 153 clinical ethics 1, 2, 3–5; agency of patients 4; see also moral accountability Cohen, G. A. 19, 27n13, 168 crazy ethics 110 cruelty, vice of 67, 72; and psychopaths 67, 72 Daniels, Norman 161, 163, 167–8, 170 death 16, 107, 166; definition of 1; early/ premature 102, 164; wrongful 95 deficits 4–5, 47–55, 58–62, 63n9, 63n10, 64n22, 66, 67, 71, 72, 75n10, 77, 78; in “affective bonding” 62, 63n10; of ASD subjects 63n9; of caring 61; democratic 164; as “indifference” 63n10; moral 58–9, 64n22, 72; prudential 54, 58–9, 60, 64n22, 72; of psychopaths 58–60, 63n9, 64n22, 66, 67, 72, 75n10, 78; see also empathy; linkage thesis demandingness of morality 29, 37 democratic equality 162–5, 170; and abandonment objection 163; and

deficits 164; and deterrence 164, 166; and harshness objection 162–5, 170; and resources 164; see also democratic sufficientarianism democratic sufficientarianism 164–5; and democratic minimum threshold 164 difference principle 19 disadvantage(s) 9, 10, 149, 150–8, 160–1, 168; avoidable 151, 152, 154, 157, 158, 168; and choice 150, 153, 159n6, 160, 168; and congenital disease 169; and grave risk 160; and luck 150, 160; relative 160; see also luck; luck egalitarianism distributive justice 9, 19–20, 162; egalitarian theory 9, 162; and “interestbased” principle 10; and “opportunity principle” 10; and personal responsibility 11; and responsibility-sensitivity 10; and ‘rule of rescue’ mentality 10–11; theories of 9; see also luck egalitarianism; rule of rescue mentality division of labor: between social rules 15, 19; see also division of moral labor division of moral labor 3, 15, 16, 18–26, 28n26; of beneficence 3, 15, 22, 23, 25; social 20–21, 23, 24, 25, 26 dopamine system 8–9, 117, 119–22, 130n9, 133, 136–7; and belief formation 7, 137; and delusions 137; and expectations 137; and surprisal 137; see also addiction; reward system Down syndrome 5–7, 83–6, 96n6, 100 duties: general 30; special 30; see also ancillary-care obligations/duties Dworkin, Ronald 153 egalitarianism, externalizing and internalizing 159n8 empathy 47–8, 50–5, 59–61, 62, 63n9, 77; of ASD subjects 51–3, 55, 59; cognitive 51, 54, 63n9, 63n10; deficit of 4–5, 52, 53–5, 63n9; emotional 51, 54, 55, 63n9, 63n10; identifying 54–5; incapacity for 47–9; of psychopaths 51–5, 59; vs. valuing 54–5, 60; see also deficits

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Index entrustment, idea of 17, 18; see also ancillary-care obligations/duties: “partial-entrustment” model/view of EV rule of harm measurement 94–5 existential paradox 99, 100, 110 expectational problem 83, 89–95, 97n20, 100, 106–8; actual value approach 89–95; American slavery example 89, 107, 113; depletion case 83, 89–91, 93, 106–8; vs. existence lottery 83, 91–4, 97n18; expected value approach 89–95; Holocaust example 89, 93–4, 107, 113; and no-harm-done result 89, 113; pleasure pill example 89, 112; risky policy example 89; slave child example 89, 112; see also wrongs Eyal, Nir 10–11

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instrumental importance 41n12; and noninstrumental importance 41n12; and surplus conditions 37, 38 institutional division of labor 20 Jaworska, Agnieszka 5, 61, 63n1, 74n6 judgment-shift 9, 135–6, 139–40; and dopamine system 137; see also addicts justice 9–10, 18–20, 44, 56, 150, 161–2; and ancillary care 28n26; and compensation 151; criminal 153, 155; distributive 9, 19–20, 162; and division of moral labor 28n26; egalitarian 150–2, 171n4, 172; and equality 150; in- 18, 83, 89, 93, 96n13, 97n20, 113, 168; theories of 10, 22 Kantian dignity 163

Fleurbaey, Marc 161, 168, 171n3 Foucault, Michel 21 friendship 20, 24; idea of 24 genetic problem 83–9, 96n5, 100–6, 108; “contributivist” considerations 101–2, 103, 104–5, 109; and disabilities 113; and perfectionism 81, 104–5; personal considerations 102–3; see also wrongs habits 8, 117, 121, 124, 128–9, 133; of action 125–6, 129; and dopamine 121, 130n9; of thought 125–6 Hare, Robert 58 Hare Checklist-revised 48–9, 61–2, 63n3, 63n10, 63n12 harshness objection(s) 10, 149, 160–2, 163, 165, 166, 168, 170, 171n3, 172; see also luck egalitarianism health care rationing 1 Hegel, G. W. F. 19, 105 human rights 3, 22, 29, 32–8, 40–1, 43; and basic activities 32–3, 37; fundamental capacities 33, 37; fundamental conditions 33, 37, 38, 43; Fundamental Conditions Approach of 32–4; fundamental options 33, 37; and

Levy, Neil 8–9, 75n11, 77, 123 Liao, S. Matthew 3, 26n1, 63n1, 74n1, 94n1 linkage thesis 58–9 luck: “brute” 9, 154, 160, 163; “option” 160–3, 167 luck egalitarianism 2, 9–10, 149–59, 160–72; and abandonment objection 163; definition of 150, 161; and expediency 161; filtering disadvantages 150; and harshness objection(s) 160–2, 163, 165, 166, 168, 170, 171n3, 172; and luck/choice filter 150, 151–4, 155; and personal responsibility 166, 170; pluralist 162, 163, 168; and relevance filter 150; see also choice-sensitivity principle; opportunity principle; personal responsibility marginal agency 77 McKie, John 165 medical paternalism 1 medical research 3, 15–26, 27n5, 27n18, 44 mesolimbic dopamine system see dopamine system moral accountability 4–5, 47–57, 61, 64n13, 68, 70; and autism spectrum disorder

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Index

(ASD) 4–5, 47–54, 56–7, 60, 63–4n13, 75n10; and empathy 4–5, 47–8, 51–3, 60; “fine cuts” approach 47, 50, 60–1, 64n22; and moral emotions 4; and psychopathy 4–5, 47–58, 60, 63n2, 63n5, 64n18, 68, 71, 75n10; Scanlonian view of 68, 70–1, 73, 77; and theories of accountability 5; and “victim-authorizations” 54; Watsonian view of 71, 73 moral agency 50–3, 56, 142; of ASD subjects 51–3, 77; and empathy 50, 77; and moral accountability 50–1, 53, 56; of psychopaths 52; see also empathy; moral accountability moral blindness 64n16 moral division of labor 19–21, 24, 26 moral labor see division of moral labor moral philosophy of history 108 moral psychology 1, 58 moral reality 110; absurdities of 110 moral reasons 4–5, 48–9, 51–3, 55–6, 59, 61, 64n15, 67–8, 71; and authoritydependent reasons of justice 56, 61; and permission 55–6, 64n15; and rights 61; and welfare 56, 61 moral responsibility 7–9, 66–8, 77, 118, 132–3, 135, 140–3, 145; and accountability sense 67–8, 71–3, 77; of addicts 118, 132, 143; and agent’s autonomy 142; and agent’s diachronic capacities 142; and agent’s history 141–2; and answerability 77; and attributability sense 67, 71–3, 75n11, 75n12, 77; and diachronic agency 132, 133, 142–3; of psychopath 66–7, 71, 73, 74n3; and reasons-responsiveness 142; theories of 8–9, 77; and ‘tracing’ conditions 142; Watsonian view of 71; see also moral accountability moral theory: sentimentalist views 63n11 moral understanding 4, 19, 47, 53, 66–8, 73, 75n11; see also ASD subjects; psychopaths national health service 149 Nelkin, Dana Kay 4, 70, 74n1, 74n2, 74n6, 75n10, 75n11

neuroethics 1, 2, 7–9; and addiction 8; theory of addiction 8; theory of moral responsibility 8–9; see also addiction neuroscience 1, 7, 133, 145, 146; of mental disorders 11 nonidentity problem (NIP) 2, 5–6, 81–3, 89, 94, 95–6, 96n3, 96n13, 99–100, 104–6, 108–10, 112–13; and procreative “asymmetry” 87–8, 105; and repugnant conclusion 88, 96n12, 105, 112; see also expectational problem; genetic problem normative ethics 1 normative perspective 4, 54, 59–60 O’Neil, Collin 3 opportunity: equality of 152–3; right of 163; see also opportunity principle(s) opportunity principle(s) 10, 149, 152–8; equal 171n3; externalizing 152–4, 157–8, 168; interest-based 156–8; internalizing 154–6, 158, 168; and sacrifice 157 Parfit, Derek 82, 83, 89, 96n12, 96n13, 97n19, 106, 112; see also expectational problem: depletion case patients’ choices 150; avoidable 150 personal responsibility 11, 160, 163, 166– 70; ex ante 107, 167–8, 170; ex post 107, 167–8, 170; for grave risks 10, 160, 169, 172; for health decisions 167–70; policies of 168; in rescue contexts 169–70 population ethics 81, 112–13 procreative ethics 81 prohibitions: conventional 67; moral 67 proportionality, principle of 154 psychopaths 2, 4–5, 47–62, 63n5, 63n12, 64n22; and emotional learning 77; and empathy 51–5, 59, 63n9; identity as agent 72; moral accountability of 4–5, 47–58, 60, 63n2, 63n5, 64n18, 68, 71, 75n10; moral responsibility of 63n2, 66–8, 71, 73–4, 74n3, 77; moral understanding of 66–8, 73, 75n11; see also deficits; empathy; Hare Checklist-revised; moral accountability; moral responsibility

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Index Psychopathy Checklist 61, 70–1; clinical characterization of 74n2 public health ethics 1, 2, 9–11; see also distributive justice punishment 59, 120, 154; theories of 154 punishment avoidance: and ASD subjects 59; and psychopaths 59 Rawls, John 19–22, 24; theory of justice 22 reasons for action: appropriateness of 70, 71, 73, 74n8; and guise of the good 66, 69–74, 75n9, 75n10, 75n11; and psychopaths 66, 68–9, 70–2, 74n8; strong interpretation of 66, 69, 70; weak interpretation of 66, 69, 70–3, 74n8; see also psychopaths reproductive ethics 1, 2, 5–7; choice not to screen 6–7; choice to deplete 6–7; see also nonidentity problem rescue: and cost effectiveness 166; and “deep exclusion” 163, 166–7, 169–70; and deterrence 164, 166; duty of 3, 16–17, 21–2, 23, 25, 29, 30, 32, 38, 39, 41, 43; vs. easy rescue 3, 29, 38; and harshness objections 160–2, 163, 165, 166, 168, 170, 171n3, 172; and moral desert 154, 166; and opportunity costs 165–6; and personal responsibility 160, 163, 166–70; and public health 166; and risk taking 160, 166, 169; and sacrifice 3, 166; see also personal responsibility; rule of rescue mentality research ethics 1, 2–3, 15–16, 18–20, 25, 26, 29; see also ancillary-care obligations resolutions 9, 104, 133, 138–40; and addicts 138–9; and escape clauses 138–9 responsibility: personal 11, 160, 163, 166–70; principle of 154; see also moral responsibility; personal responsibility reward system 8, 118–26, 145, 146; and addictive drugs 120–1, 127–8, 145; and desire 122–3; and dopamine 118–22, 136, 146; and expectations 136–7; and

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feelings 122–3; and prediction error 119–21, 137, 139; and predictive system 121–3, 124–6, 128, 130n11, 136 Richardson, Henry S. 2–3, 30–2, 38–41 Richardson, Jeff 165 Roberts, Melinda A. 6–7, 99–101, 103–4, 106, 108–9, 110n1 rule of rescue mentality 10–11, 160, 163, 165–70, 172 rules 19, 52, 53, 55, 57; conventional rules 57; vs. moral reasons 52–3, 55; moral rules 57, 75n11; see also moral reasons; rule of rescue mentality Scheffler, Samuel 19–20, 161, 163 Schroeder, Timothy 8, 133, 136–7, 143, 145 Segall, Shlomi 162–3, 168, 171n4 Singer, Peter 26, 38 Smilansky, Saul 7, 83, 91–4, 96n1, 97n18, 97n20, 113 social egalitarianism 158 Stemplowska, Zofia 10, 162 stimulus-reinforcement association formation: and ASD subjects 59–60; and psychopaths 59–60 Theory of Mind 51 therapeutic misconception 23 Turiel’s moral/conventional test 49, 50, 53–4, 57 Tuskegee Syphilis Study 1, 2 Wasserman, David T. 6–7, 99–101, 103–4, 106, 108–9, 110n1, 113 Wikler, Dan 161, 170n1, 171n5 wrongs 1, 7; without bona fide complaint 82, 104, 106, 108, 109; and categorical imperative 112; denial of 109–10; without harms 82, 108, 109, 110, 112; moral 63n12; without victims 82, 108, 109, 110, 112; see also EV rule of harm measurement

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