Natural Law Ethics in Theory and Practice: A Joseph Boyle Reader [1 ed.] 2020021130, 9780813232959, 9780813232966

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Natural Law Ethics in Theory & Practice

Natural Law Ethics in Theory & Practice A Joseph Boyle Reader Edited by John Liptay & Christopher Tollefsen Foreword by Robert P. George

Th e C at h o li c U n i v e rs i t y o f Ame ri ca Pre ss Washington, D.C.

Copyright © 2020 The Catholic University of America Press All rights reserved The paper used in this publication meets the minimum requirements of American National Standards for Information Science—Permanence of Paper for Printed Library Materials, ANSI Z39.48-1984. ∞ Library of Congress Cataloging-in-Publication Data Names: Boyle, Joseph M., 1942– author. | Liptay, John J., editor. | Tollefsen, Christopher, editor. | George, Robert P., writer of foreword. Title: Natural law ethics in theory and practice : a Joseph Boyle reader / edited by John Liptay and Christopher Tollefsen ; foreword by Robert P. George. Description: Washington, D.C : The Catholic University of America Press, [2020] | Includes bibliographical references and index. Identifiers: LCCN 2020021130 | ISBN 9780813232959 (paperback) | ISBN 9780813232966 (ebook) Subjects: LCSH: Natural law—Philosophy. Classification: LCC K420 .B69 2020 | DDC 340/.112—dc23 LC record available at https://lccn.loc.gov/2020021130

• To Barbara Boyle In memory of Joseph M. Boyle

Contents

Foreword by Robert P. George   ix Acknowledgments   xiii

• Introduction: Joseph Boyle and Natural Law Ethics

John Liptay & Christopher Tollefsen  / 

1

Part 1. A rt icu l ating a Theory of Natura l Law Section 1. Determinism, Reasons for Action, Free Choice, and Incommensurability

1. Is Determinism Self-Refuting?  /  23



2. Reasons for Action: Evaluative Cognitions That Underlie Motivations  /  38



3. Free Choice, Incomparably Valuable Options, and Incommensurable Categories of Good  /  61

Section 2. The Nature and Foundations of Natural Law

4. Being Reasonable in Choosing among Incommensurable Goods  /  85



5. On the Most Fundamental Principle of Morality  /  108

vii

viii  C o n te n t s Section 3. Intention and Double Effect

6. Double Effect and a Certain Type of Embryotomy  /  133



7. Toward Understanding the Principle of Double Effect  /  151



8. Intention, Permissibility, and the Structure of Agency  /  165

Part 2. Natural Law Theory and Con t emporary Moral Problems Section 1. Justice in War

9. An Immoral Kind of Deterrence  /  189

10. Traditional Just War Theory and Humanitarian Intervention  /  205

Section 2. Private Property and Welfare Rights 11. Natural Law, Ownership, and the World’s Natural Resources  /  231 12. Fairness in Holdings: A Natural Law Account of Property and Welfare Rights  /  248

Section 3. Bioethics 13. Personal Responsibility and Freedom in Health Care: A Contemporary Natural Law Perspective  /  275 14. A Case for Sometimes Tube-Feeding Patients in Persistent Vegetative State  /  306 15. Against “Assisted Death”  /  319

Bibliography   337 Index   353

Foreword

During his lifetime, Joseph Boyle was admired above all for the analytical rigor of his philosophical writings. Readers of this posthumously published volume who are encountering his essays for the first time will no doubt be struck by that feature. What struck me, however, and will, I suspect, strike others who have read these essays before, is Boyle’s creativity. This is a quality of his work that was underappreciated in his lifetime—including by me. It was not a matter of devising new concepts or conceptual tools— an almost standard way in which creativity manifests itself, when it does manifest itself, in the work of analytic philosophers like Boyle. Rather, it is a matter of noticing things that others hadn’t noticed or, in any event, that others had left unremarked or unexplored. This is the sort of creativity that is underwritten by a willingness to examine philosophical problems from new or multiple angles. And often enough, this willingness is in turn underwritten by a commitment to precision of thought and strict logical scrupulosity—analytical rigor. A good example of what I am talking about is Boyle’s work demonstrating the connections between the incommensurability of more-than-merely-instrumental reasons for actions—basic human goods as they figure in concrete options for choosing—and metaphysical freedom (freedom of the will; “libertarian” free choice) and, conversely, the connections between the belief (mistaken in Boyle’s view, and mine) in the commensurability of the human goods that provide more-than-merely-instrumental reasons (a commensurability that is necessarily presupposed by utilitarian and other consequentialist approaches to ethics) and the denial of true metaphysical freedom. As the editors of this volume point out in their introduction, what Boyle shows is that the availability of options that are not commensurable is a conix

x  F o r e wo r d dition of the possibility of making a free choice—that is, a choice that is not rationally determined by the option that reason putatively identifies as offering more of the quality shared by the options that makes them worth considering (in other words, “greater good”). The relationship between the rigor of Boyle’s thinking and his creativity is worth lingering over a bit. Often, he saw things that others failed to see, or he looked at things from angles that others had neglected to consider, precisely because of the care and precision of his thinking. He was forced to go deeper or to think outside the box because, upon careful, truly logically scrupulous scrutiny, standard beliefs or solutions to philosophical problems proved to be unsatisfactory. Take, for example, Boyle’s work in action theory, and especially his revisions of beliefs common among philosophers—especially those within his own broad tradition of thought—about the principle (or “doctrine”) of double effect. His writings in this area are among his best known and most highly praised, yet at the same time most controversial and strongly resisted. Boyle noticed that much double-effect analysis traded on ambiguities and equivocations about exactly what it is that is being intended in various actions (and therefore distinguished from what were merely being accepted as foreseen but unintended side effects). This prompted him to undertake some new and deeper thinking about the content of intentions and what determines it. He led the way in directing our focus to the first-personal perspective or viewpoint in understanding intention and showed that this adjustment of focus need not cause act-analysis to collapse into a purely subjective enterprise (a “Disneyland of the mind”), as critics feared it would. Boyle’s combination of rigor and creativity made him a philosopher’s philosopher—someone other philosophers loved to talk with about his work, their own work, and the work of other philosophers— from Plato and Aristotle, to Aquinas and Hobbes, to MacIntyre and Rawls. His deep friendship with Elizabeth Anscombe toward the end of her life illustrated this. He was, I might add, a philosopher in a more than merely academic or professional sense. His life, like his work, was directed and powered by a love of truth, a delight in seeking it, and a deep desire to attain it. Like all true philosophers, he was never quite sure that he had it—and was therefore always willing, even eager, to hear challenges, engage counterarguments, and, if necessary, change his mind. He had some firm opinions, to be sure, but he never fell so deeply in love with them as to shield them from serious scrutiny and

F or ewo r d   xi reconsideration. He loved truth even above the opinions he cherished most deeply. Inasmuch as they bear witness to this approach to doing philosophy, the essays collected in this volume are of enduring value and provide us with models to emulate.

• Robert P. George McCormick Professor of Jurisprudence Princeton University

Acknowledgments

The editors would like to thank the following persons and organizations for their assistance: Barbara Boyle, Robert P. George, Sherif Girgis, John Martino, the University of South Carolina, and Jim Mariano, system administrator at St. Thomas More College of the University of Saskatchewan, for advice and support. They would also like to thank St. Thomas More College for a Publication Grant in support of this volume. We gratefully acknowledge permission to reprint the following essays: “Is Determinism Self-Refuting?,” in Self-Reference: Reflections on Reflexivity, ed. Steven Bartlett and Peter Suber (Dordrecht: Martinus Nijhoff, 1987), 192–208, reprinted with permission from Springer Nature. “Reasons for Action: Evaluative Cognitions that Underlie Motivations,” American Journal of Jurisprudence 46, no. 1 (2001): 177–97, reprinted with permission from Oxford University Press. “Free Choice, Incomparably Valuable Options, and Incommensurable Categories of Good,” American Journal of Jurisprudence 47, no. 1 (2002): 123–41, reprinted with permission from Oxford University Press. “Being Reasonable in Choosing among Incommensurable Goods,” Vera Lex 6 (2005): 11–34, originally published by Pace University Press in Vera Lex 6 (2005) and reprinted with permission. All rights reserved. “On the Most Fundamental Principle of Morality,” in Reason, Morality, and Law: The Philosophy of John Finnis, ed. John Keown and Robert P. George (Oxford: Oxford University Press, 2013), 56–72, reprinted with permission from Oxford University Press. “Double-Effect and a Certain Type of Embryotomy,” Irish Theological Quarterly 44, no. 4 (1977): 303–18, reprinted with permission from SAGE Publications. “Toward Understanding the Principle of Double Effect,” Ethics 90, no. 4 (1980): 527–38, reprinted with permission from the University of Chicago Press.

xiii

xiv  Ack n owl e dg me n ts “Intention, Permissibility, and the Structure of Agency,” American Catholic Philosophical Quarterly 89, no. 3 (Summer 2015): 461–78, reprinted with permission from the Philosophy Documentation Center. “An Immoral Kind of Deterrence,” in Just War, Nonviolence and Nuclear Deterrence, ed. D. Cady and R. Werner (Wakefield, N.H.: Longwood Academic, 1991), 189–205, reprinted with permission from Philosophers Concerned for Peace. “Traditional Just War Theory and Humanitarian Intervention,” in Humanitarian Intervention: Nomos XLVII, ed. M. Williams and T. Nardin (New York: New York University, 2006), 31–57, reprinted with permission from New York University Press. “Natural Law, Ownership, and the World’s Natural Resources,” Journal of Value Inquiry 23, no. 3 (1989): 191–207, reprinted with permission from Springer Nature. “Fairness in Holdings: A Natural Law Account of Property and Welfare Rights,” Social Philosophy and Policy 18, no. 1 (2001): 206–26, reprinted with permission from Cambridge University Press. “Personal Responsibility and Freedom in Health Care: A Natural Law Perspective,” in Persons and Their Bodies: Rights, Responsibilities, Relationships, ed. M. Cherry (Dordrecht: Kluwer Academic, 1999), 111–41, reprinted with permission from Springer Nature. “A Case for Sometimes Feeding Patients in Persistent Vegetative State,” in Examining Euthanasia: Legal, Ethical and Clinical Perspectives, ed. John Keown (Cambridge: Cambridge University Press, 1995), 189–98, reprinted with permission from Cambridge University Press. “Against ‘Assisted Death’ ” was presented as the Anscombe Memorial Lecture of 2015 at the Anscombe Bioethics Centre, Oxford, England, and is reprinted with permission from the Anscombe Bioethics Centre.

Natural Law Ethics in Theory & Practice

Introduction / Joseph Boyle and Natural Law Ethics

• John Liptay and Christopher Tollefsen

Joseph M. Boyle Jr. was, with Germain Grisez and John Finnis, one of the principal architects of the so-called “New” Natural Law, or “New Classical” Natural Law Theory (NCNLT), arguably the most important development in Catholic moral philosophy of the twentieth century. NCNLT originated in some early studies of Grisez’s, which focused on St. Thomas’s account of the first principles of practical reason and the last end of man.1 But that work quickly led to a richly developed and freestanding moral theory that makes no appeal to the authority of St. Thomas and that has been dialectically defended against rival and alternative positions in moral philosophy and metaphysics.2 Notably, the NCNLT’s defenders have engaged as well with a host of practical questions on beginning and end of life issues, social justice, war and peace, and sex ethics. NCNLT thus constitutes a comprehensive and systematic philosophical ethics, and Boyle played a significant role in the development of this ethics over his career. 1. See Germain Grisez, “Kant and Aquinas: Ethical Theory,” Thomist 21 (1958): 44–78; “The First Principle of Practical Reason: A Commentary on the Summa Theologiae, 1–2, Question 94, Article 2,” Natural Law Forum 10 (1965): 168–201; and “Man, Natural End of,” The New Catholic Encyclopedia (New York: McGraw Hill, 1967), 9:132–38. 2. See, for example, Grisez, Joseph Boyle, and John Finnis, “Practical Principles, Moral Truth, and Ultimate Ends,” American Journal of Jurisprudence 32 (1987): 99–151; Finnis, Boyle, and Grisez, Nuclear Deterrence, Morality and Realism (Oxford: Oxford University Press,1987); Finnis, Grisez, and Boyle, “ ‘Direct’ and ‘Indirect’: A Reply to Critics of Our Action Theory,” Thomist 65 (2001): 1–44.

1

2  I n tro duct io n Boyle’s first contribution to the theory dates from the period shortly after he completed his doctoral studies in philosophy under Grisez at Georgetown University in 1970, as he began what was to become a decades-long process of collaboration with Grisez. Boyle’s doctoral dissertation was a study of the logic of self-reference, and his findings were soon put to use in a collaborative effort with Grisez and Olaf Tollefsen in a defense of free choice. Building upon this initial collaboration, Grisez and Boyle went on to coauthor a number of seminal books and essays and to assist one another in the works that they were carrying out on their own. While Finnis was later to join in the collaborative efforts of developing the NCNLT, Grisez notes that “it’s the Grisez-Boyle theory through the summer of 1978.”3 Boyle made significant contributions to Grisez’s own more theological work, including the monumental The Way of the Lord Jesus, during the years 1978 to 1997, and Finnis, during the same period, showed the potential of the theory for making important advances in analytic jurisprudence. But Boyle primarily continued to work on developing the NCNLT as a philosophical theory of ethics and showed its fruitfulness for addressing numerous controversial concrete issues. The range of his work was vast, encompassing metaphysics and philosophy of religion, philosophy of action, and both theoretical and applied ethics. In addition to the books and essays he coauthored, he published over one hundred essays in his own name. This volume brings together fifteen of Boyle’s essays across all of these areas of philosophy. In what follows, we briefly describe the essays found in each section and the themes around which the collection is based and indicate their significance to the development of the NCNLT.

Part 1: Articulating a Theory of Natural Law A philosophical ethics is an attempt to offer rational guidance and direction to human choices and acts. A natural law ethics aims to identify objective and true standards, which allow one to act not only for the sake of some intelligible end, but in a manner that is fully reasonable and conducive to one’s fulfillment or flourishing. The NCNLT, accord3. This quotation from Grisez is found in Russell Shaw, “Pioneering the Renewal in Moral Theology,” in Natural Law and Moral Inquiry: Ethics, Metaphysics, and Politics in the Thought of Germain Grisez, ed. Robert P. George (Washington, D.C.: Georgetown University Press, 1998), 262.

I n tr oducti on   3 ingly, identifies the normative propositions that are to be used to rationally guide and inform one’s choices and actions—propositions that allow one to determine if an action is to be done or avoided—and provides an account of how these kinds of propositions are known and related; NCNLT also deploys nonnormative propositions and arguments to establish that the normative propositions it advances can be rationally vindicated and are worthy of being considered objective and true.4 The tasks here are manifold, as NCNLT cannot be held or advanced if, for example, skepticism in morals is true, if determinism obtains in the moral order, or if any rival theory’s conception of the moral life is sound. The distinctive approach that NCNLT takes to the relation between normative and nonnormative propositions is more deeply rooted in the thought of St. Thomas than is often thought. In his “Prologue” to his Commentary on Aristotle’s Nicomachean Ethics, St. Thomas identified four ways in which reason is related to “order.” There is first the order that reason finds but is in no way responsible for; this is the order of nature, which the various sciences investigate. Second, there is the order that reason introduces into its own considerations, an intensional order that includes logic. Third, is the order that reason introduces into the will. Fourth, there is the order that reason introduces into material things through intelligent and creative design and construction; this is the order of artifacts, including manufactured products, engineering feats, and technological achievements.5 Aquinas identified the subject matter of moral philosophy as belonging to the third order, the order reason introduces into the operations of the will, and, in this, the NCNL theorists have followed him.6 To be morally upright just is, on this account, to have a will fully ordered by reason. But the acts of will that are so ordered must themselves be of the right sort: they must be free responses to the ordinances of practical reason. That is to say, they must be free choices. 4. Finnis, “Natural Law,” in Routledge Encyclopedia of Philosophy, gen. ed. Edward Craig (London and New York: Routledge, 1998), 6:685. 5. See St. Thomas Aquinas, Commentary on the Nicomachean Ethics, Book I, Lecture 1, nos. 2–3, and Grisez, Beyond the New Theism: A Philosophy of Religion (Notre Dame, Ind.: University of Notre Dame Press, 1975), 230–35. 6. Grisez and Boyle, “Response to Our Critics and Our Collaborators,” in Natural Law and Moral Inquiry: Ethics, Metaphysics, and Politics in the Thought of Germain Grisez, ed. Robert P. George (Washington, D.C.: Georgetown University Press, 1998), 213; see St. Thomas Aquinas, Commentary on the Nicomachean Ethics, Book I, Lecture 1, nos. 2–3.

4  I n tro ductio n So the foundational metaphysical task for moral theory is a defense of free choice. This understanding of what is required as a metaphysical prolegomenon to moral philosophy, but also of what is not required, put the NCNLT in sharp dialectical antithesis to two competing approaches to ethical theory. First, the defense of free choice emerged as essential to dialectical engagement with the dominant form of moral philosophy of the age, consequentialism. Early on, both Grisez and Boyle came to appreciate that consequentialism (and Marxism as well) deploys a technique for making moral determinations that fails to do justice to the reality of free choice and, indeed, implicitly denies it.7 The proposed procedure would have one make a moral judgment only after having undertaken a cost-benefit analysis that identifies the option in which the greatest amount of good obtains when balanced against the associated harms. While this procedure allows that individuals make moral judgments and so exercise choice, it advances the view that “they necessarily choose the options they think will better (or best) serve their purpose”—a form of “psychological determinism.”8 Notably, the consequentialist approach goes wrong by focusing its attention on the fourth of Aquinas’s orders, the artifactual, by treating ethical deliberation as essentially a technical problem: how most efficiently to bring about a determinate state of affairs. As we discuss further, Boyle’s work on the NCNLT begins with a defense of the reality of free choice. If the argument is sound, both the cost-benefit analysis for making moral judgments and psychological determinism should be set aside as mistaken. Moral deliberation cannot be a matter of fourth-order instrumental or technical inquiry only. Second, the NCNLT’s adoption of Aquinas’s fourfold scheme of order and its recognition that the metaphysics of free choice is the necessary precondition for moral philosophy also established a break with what we will call traditionalist neo-Thomism, insofar as the traditionalist account insists on a further foundational task for metaphysics. The disagreement here too can be conceptualized in terms of Aquinas’s four orders, as we will show. NCNLT is well known for its distinctive conception of practical reason’s first principles. These first principles are practical all the way 7. Grisez and Boyle, “Response to Our Critics and Collaborators,” 214–15. 8. Ibid., 215.

I n troducti on   5 down to their foundations—that is, they cannot be reduced to or derived from theoretical knowledge or nonnormative propositions.9 Rather, the starting points for reflection on moral and practical matters are propositions that are per se nota, known through themselves, through the activity of practical reason. The NCNLT holds that practical reason, or reason oriented toward action, grasps as self-evident a set of propositions enjoining the pursuit of a number of basic goods. These goods, which are described as constitutive aspects of genuine human flourishing, include life and health; knowledge and aesthetic experience; skilled work and play; friendship; marriage; harmony with God; and harmony among a person’s judgments, choices, feelings, and behavior. As grasped by practical reason, the basic goods give foundational reasons for action to human agents and are recognized as good for all human agents. The emphasis on the nonderived character of the first principles of practical reason established a contrast between the NCNLT approach and traditionalist neo-Thomism precisely over the role of metaphysics in moral philosophy. Early critics such as Henry Veatch and Ralph McInerny took the founders of the “New” theory to task for abandoning the view that moral norms are inferred from a more speculative, metaphysical understanding of human nature. That debate continues to the present day.10 A related disagreement between traditionalist neo-Thomists and NCNL theorists emerges over the multiplicity of first principles. What is the relationship between the goods apprehended by practical reason? Are they ordered hierarchically? If not, what principle is available for rationally guiding choices? The NCNLT developed moral-theoretic answers to these questions that set their view apart not only from con9. Ibid., 214. 10. Important early exchanges are Ralph McInerny, “The Principles of Natural Law,” American Journal of Jurisprudence 25 (1980): 1–15, answered by Finnis and Grisez, “The Basic Principles of Natural Law: A Reply to Ralph McInerny,” American Journal of Jurisprudence 26 (1981): 21–31; Henry Veatch, “Natural Law and the ‘Is’-‘Ought’ Question,” Catholic Lawyer 26 (1981): 251–65, countered by Finnis, “Natural Law and the ‘Is’-‘Ought’ Question: An Invitation to Professor Veatch,” Catholic Lawyer 26 (1981): 266–77; Russell Hittinger, A Critique of the New Natural Law Theory (Notre Dame, Ind.: University of Notre Dame Press, 1987), trenchantly reviewed by Grisez, “A Critique of Russell Hittinger’s Book, A Critique of the New Natural Law Theory,” New Scholasticism 62 (1988): 62–74. More recent contributions to this debate are Sherif Girgis, “Subjectivity without Subjectivism: Revisiting the Is/Ought Gap,” in Subjectivity: Ancient and Modern, ed. R. J. Snell and Steven F. McGuire (Lanham, Md.: Lexington, 2016), 63–88; and, in the same volume, Christopher Tollefsen, “First- and Third-Person Standpoints in the New Natural Law Theory,” 95–113.

6  I n tro ductio n sequentialists, but also from traditionalist neo-Thomistic philosophers: the goods are not ordered hierarchically; the options they make available to agents in action are typically incommensurable in goodness; and thus a first principle of morality, different from the first principles of practical reason, must order agents other than by a directive to a highest or greatest good.11 So the NCNLT starting point emerges in a different place than that of the neo-Thomists. For the latter, the foundational investigation is conceived almost entirely in terms of Aquinas’s first order, the order of nature; in other words, the starting point for moral philosophy is in a metaphysics of human nature.12 Properly practical deliberation then shapes up as a fourth-order inquiry into what most effectively brings about the highest good. The NCNLT, by contrast, recognizes the moral domain as belonging to the third order; its practical starting points are thus within that order and are not inferred from the principles of any other of the orders. On this view, moral philosophy does not presuppose an account of human nature in order to identify its starting points; rather, these starting points, consistent with a much-overlooked methodological principle accepted by both Aristotle and Aquinas, provide the data or materials for the philosophical reflection undertaken for the sake of understanding human nature. What is epistemologically prior, then, is what practical reason first grasps—the very opposite of what traditionalist Thomists maintain.13 Yet moral theory does have a metaphysical task: establishing that the preconditions of the third order itself obtain. In other words, the NCNLT recognizes the need to philosophically establish the possibility of free choice. 11. Scholars who would seem to agree on little else in moral philosophy can be found advancing criticisms of the NCNLT’s nonhierarchical account of the first principles of natural law, as, for example, McInerny, “Principles of Natural Law,” 10–11, and Jean Porter, The Recovery of Virtue: The Relevance of Aquinas for Christian Ethics (Louisville, Ky.: Westminster/John Knox Press, 1990). 12. For some, this metaphysical foundation of morality must be buttressed and completed by a theological foundation. See, for example, Edward Feser, Aquinas: A Beginner’s Guide (London: Oneworld, 2010), 188–92. 13. Finnis notes that “nothing is more basic to Aquinas’s idea of theory, science, or understanding in general than the following epistemological principle (strategy for getting knowledge): ‘the nature of X is understood by understanding X’s capacities or capabilities, those capacities or capabilities are understood by understanding their activations or acts, and those activations or acts are understood by understanding their objects,’ ” and provides the following references where this principle is appealed to in the works of Aquinas: ST I, q. 87, a. 3; I Sent. d. 1 q. 1 a. 1 ad 3; d. 17 q. 1 a. 4 ad 4; III Sent. d. 23 q. 1 a. 2 ad 3. See Finnis, Aquinas: Moral, Political, and Legal Theory (New York: Oxford University Press, 1998), 29.

I n troducti on   7 “Determinism, Reasons for Action, Free Choice, and Incommensurability,” section 1 of part 1 of this volume, reveals Boyle’s signal role in the development of the NCNLT’s claims and arguments on these metaphysical, meta-ethical, and normative matters. Boyle does not directly establish that persons have the capacity to make free choices. Rather, in “Is Determinism Self-Refuting?” he draws upon his work on the topic of self-referential arguments, which indicated how appeal to the self-referential quality of a proposition can serve as a way of falsifying or defeating an affirmed proposition. While propositions that refer to their own propositional content are often paradoxical, propositions can refer to other nonpropositional aspects of their affirmation, such as the sentence that is used in the affirmation or the act of affirming. Features of these realities can come in conflict with the proposition. Thus, the sentence “No one can put words together to form a sentence” is selfreferentially self-falsifying: the existence of the sentence that expresses the proposition disproves its propositional content. Similarly, when asserted, “No one can assert anything” refers to its own performance as an assertion and is performatively self-referentially falsified: its performance refutes its own claim by showing it to be false. Boyle argues that “No one can make a free choice” is performatively self-referentially self-defeating, rather than self-falsifying: the performance could have no point if the content of the assertion were true. The essay represents a later formulation of the argument that Boyle made with Grisez and Olaf Tollefsen in Free Choice: A Self-Referential Argument, a major, if too often overlooked, contribution to the debate about libertarian free will. The next two essays, “Reasons for Action: Evaluative Cognitions That Underlie Motivations” and “Free Choice, Incomparably Valuable Options, and Incommensurable Categories of Good,” both from the American Journal of Jurisprudence, engage respectively with an important meta-ethical issue and, again, with the question of determinism and free choice. The first takes up the nature of reasons for action, arguing against the Humean claim that reason can provide no reasons for action and that only the passions can motivate. Boyle argues that the Humean view cannot provide an account of moral deliberation, whereas a cognitivist account of reasons for action can: cognitivism makes sense of the way in which agents deliberate in order to uncover what is desirable and worthwhile and not simply in order to allow the strongest desire to emerge. Boyle’s work here intersects with debates in contemporary moral

8  I n tro ductio n philosophy concerning the nature of reasons for action and the implications for practical reasoning of the correct account of its principles. Boyle’s dialectic is primarily aimed at David Hume’s twentieth-century heirs, J. L. Mackie and Bernard Williams. But the Humean project of arguing for the noncognitivist view that reason does not motivate has been revived in more recent work, such as Simon Blackburn’s quasi-realism and the expressivism of Alan Gibbard and Mark Schroeder. It remains, we think, an important question whether Boyle’s argument from deliberation can be wielded equally against these more recent and supple forms of noncognitivism. More positively, Boyle identifies what he takes to be the “elements of a cognitivist account” of reasons for action. On that account, “a reason for action . . . is the conjunction of a belief about the capacity of some action one could perform to achieve a benefit and the motivational force of one’s interest in that benefit.” Boyle’s account is internalist, without being, as Williams’s account is, subjectivist. It is noteworthy that, in passing, Boyle references T. M. Scanlon’s concerns with Williams, for Scanlon himself has, with others such as Christine Korsgaard, been at the forefront of recent cognitivist discussion of the nature for reasons for action. Scanlon holds that reasons are considerations that count in favor of doing something, and he has argued for what he calls “reasons fundamentalism”—the view that reasons cannot be reduced to or identified with truths about the natural world or explained in terms of notions of rationality or rational agency that don’t themselves depend upon claims about reasons for action.14 While this view overlaps with Boyle’s view in certain respects, it does not appear to converge, given Boyle’s understanding of the role of “benefit” in something’s being a reason for action. That understanding is thoroughly grounded in natural law reasoning, thus establishing some programmatic questions for defenders of Boyle’s approach to natural law as to how the eudaimonist approach to reasons for action characteristic of natural law thought generally is to engage dialectically with accounts that are “fundamentalist” or grounded, as Korsgaard’s account is, in considerations of rational agency, and whether the specifically NCNLT account of reasons for action has any particular advantages in that dialectic.15 14. T. M. Scanlon, Being Realistic about Reasons (New York: Oxford University Press, 2014). 15. Christine Korsgaard, Self-Constitution: Agency, Identity, and Integrity (New York: Oxford University Press, 2009).

I n tr oducti on   9 The final essay of this section brings together a characteristic claim of the NCNLT, that goods available in options for deliberation are incommensurable—not measurable in terms of a common scale of goodness—with the investigation into free choice. Boyle there argues that incommensurable options are necessary conditions for free choice, since in the absence of incommensurability, choices would be rationally determined by whatever option promised the greatest good. And Boyle further argues that if there is choice—that is, a volitional response that is sensitive to rational judgment—in response to incommensurable options, then that choice must be free. If values are not hierarchical and the relevant commensurations among options for choice cannot be made, it follows that reasonable choices are not made by a cost/benefit analysis, but in an alternative manner. Part 1’s section 2, “The Nature and Foundations of Natural Law,” brings together two essays that clarify the NCNLT’s account of the foundations of the natural law and the way in which those foundations can generate moral norms. For the NCNLT, as well as for most other natural law theories, the foundations lie in human goods, basic aspects of human well-being that are grasped by practical reason as “to be done and pursued.” But these goods are, as we have seen, both multiple and incommensurable; moreover, they serve as the foundations of all practical thinking, whether morally upright or erroneous. What, then, is the appropriately basic moral standard for choice and action in the face of this multiplicity of goods? And how is subsequent moral thinking to be carried out in a way that acknowledges the incommensurability of that multiplicity? The two essays of this section range over these questions. “Being Reasonable in Choosing among Incommensurable Goods” asks whether moral constraints could emerge from the teleology of a goods-based ethic. Constraints of a sort could emerge if the goods were commensurable: pursuit of the greatest good would be part of the logic of the pursuit of the good. However, such “choice” could not be free, and the normativity of the demand would be compromised by the fact that pursuit of the “lesser” good would be irrational. Boyle argues that constraints can emerge from the basic goods, given the way nonrational factors can shape our motivation; in light of that possibility there emerges the further possibility of shaping one’s response to the goods by reason. Boyle then shows that a reasonable response to the goods in options for choice rules out various forms of personal bias, thus justifying the

10  I n tro duct io n Golden Rule; it also rules out the choice to damage or destroy an instance of a good for the sake of some important goal, thus justifying the Pauline principle that evil not be done for the sake of good. The discussion additionally gives Boyle the opportunity to define moral goodness: it is “the specific goodness of willing rightly when there are competitors for our personal allegiance.” The second essay in this section, “On the Most Fundamental Principle of Morality,” consolidates many of the themes of the previous essays—the incommensurability of goods, deliberation in the face of options for choice, and the directiveness of reason in the face of competing desire-based motivations—to explore a question frequently revisited by NCNL theorists: what is the first principle of morality? Various formulations have been offered: that agents should will and choose only what is compatible with the ideal of integral human, or communal, fulfillment; that they should will and choose only in accordance with unfettered practical reason; and that they should will and choose only in accordance with the integral directiveness of practical reason. Boyle argues that the last formulation is the most fundamental. Thus, the most fundamental principle is that identified in the natural law tradition: follow right reason. Having established that free choice is possible and having identified the practical and moral principles that are to direct and order such choices, it was also incumbent upon the NCNLT to develop an account of human action. NCNL thinkers understand their approach as one that builds upon and refines Aquinas’s account, in which the act of choice is viewed in terms of the total human action of which it is a part.16 For while it is the operations of the will that reason orders by appeal to moral principles and norms, one can distinguish among these operations and their proper objects. In this way, one can understand choice as the selection of some means to achieve a desired end, and intention, in a narrow sense, as the willing of that desired end. With Aquinas, NCNL thinkers understand intention also in a broader sense, which involves both of these roles: when one acts with intention, one both chooses to do something and seeks to bring about, foster, or participate in some further good, since the means are chosen for the sake of the end. Thus, while one can view and classify human actions in a variety of ways, 16. Grisez and Boyle, “Response to Our Critics and Collaborators,” 219.

I n troducti on   11 from the moral standpoint they are understood, defined, and essentially determined by appeal to what is intended in them.17 This account of intention can be expressed using the helpful notion of a proposal for action. In acting, agents seek to bring about some state of affairs in which a good or goods will be instantiated (agents thus envisage the state of affairs as offering a benefit). An agent’s proposal for action is her proposal to do such and such in order to bring about that state of affairs. Included in the proposal is both the state of affairs sought—the end—and the instrumentalities by which she will bring about that end—the means.18 Boyle’s influence on the NCLT account at precisely this juncture was significant. In early accounts of intention, Grisez had spoken of the unity of performance and the unity of intention; the unity of performance reflected, in some ways, the older Thomistic tradition’s emphasis on physical causality.19 Similar emphasis can be found in Finnis’s early essays, including his response to Judith Jarvis Thomson’s “A Defense of Abortion.”20 But, partly under the influence of Boyle, the NCNLT eventually came to embrace the view that intention is an entirely agent-centered, or first-personal, reality. It is from the point of view of the agent as seeking some good that a proposal is considered and adopted. What the agent intends is thus a matter of this proposal, and of nothing else, and it is only by adopting the perspective of the acting person that an agent’s action can be best understood.21 From this perspective, certain consequences that might, in a more “objective” or third-personal account of action, appear intended will not in fact be so. Of course, actions in which upright persons actively pursue and promote the good and form upright commitments will inevitably have side effects—consequences that are not intended—some of which are negative in their impact on fundamental goods.22 It is therefore necessary 17. Ibid. 18. See Finnis, Grisez, and Boyle, “ ‘Direct’ and ‘Indirect,’ ”1–44. 19. That emphasis is maintained by contemporary Thomistic opponents of the NCNLT account. See, e.g., Kevin J. Flannery, SJ, “Thomas Aquinas and the New Natural Law Theory on the Object of the Human Act,” National Catholic Bioethics Quarterly 13 (2013): 79–104. 20. Finnis, “The Rights and Wrongs of Abortion: A Reply to Judith Thomson,” Philosophy and Public Affairs 2 (1973): 117–45. 21. See, e.g., Tollefsen, “Direct and Indirect Action Revisited,” American Catholic Philosophical Quarterly 74 (2001): 653–70; and Tollefsen, “Is a Purely First Person Account of Human Action Defensible?” Ethical Theory and Moral Practice 9 (2006): 441–60. 22. Grisez, The Way of The Lord Jesus Christ, vol. 3, Difficult Moral Questions (Quincy, Ill.: Franciscan Press, 1997), 863.

12  I n tro duct io n to identify the norms that will govern the acceptance of negative side effects. But of central importance for the NCNLT is this: moral absolutes are framed in terms of what is intended: for instance, one ought never to intend the death of an innocent human being. The NCNLT’s first personal account of intention thus has practical consequences, for where more traditional forms of casuistry were inclined to see “close” physical consequences as intended, the NCNLT controversially denies this. In section 3 of part 1, “Intention and Double Effect,” Boyle takes up these concerns, elucidating the NCNL account of intention, double effect, and the manner in which they are implicated in the moral evaluation of actions. “Double Effect and a Certain Type of Embryotomy,” originally published in the late 1970s, provides an important early account of Boyle’s agent-centered account of intention and applies that account to the case of craniotomy performed to save a mother’s life. Boyle argues that the death of the fetus need not be intended in craniotomy. The ripple effects of this article are still felt today in Catholic discussion of double effect and so-called cases of vital conflict, such as the Phoenix abortion case. Boyle contributed as well to the important question of the justification of the Principle of Double Effect (PDE), which holds that some bad results that it is wrong to intend may be permissibly accepted as a side effect. After initially arguing, with Grisez and Finnis, that the PDE reflected the differential effect of intending bad results on one’s moral character by contrast with accepting bad side effects, Boyle went on to defend the view that intention is essential for practical systems, whether theological, moral, or legal, in which there are absolute prohibitions. Such absolutes prohibit intending certain bad effects, and an agent can always refrain from such intending. But bad side effects are not always avoidable and indeed are very frequently unavoidable. Restricting absolute prohibitions to the context of what is intended is thus necessary for ensuring the coherence of a normative system in which there are moral absolutes. “Toward Understanding the Principle of Double Effect,” originally published in Ethics and republished in an important anthology about double effect,23 begins Boyle’s efforts to show how the importance of intention emerges from its role in a good-protecting ethic with moral 23. P. A. Woodward, ed., The Doctrine of Double Effect: Philosophers Debate a Controversial Moral Principle (Notre Dame, Ind.: University of Notre Dame Press, 2001), 7–20.

I n troducti on   13 absolutes. “Intention, Permissibility, and the Structure of Agency,” one of his last published essays, further investigates and defends PDE as a necessary feature of a moral philosophy incorporating moral absolutes and makes an important contribution to the contemporary debate about the relevance of intention for moral theory.

Part 2: Natural Law Theory and Contemporary Moral Problems Part 2 presupposes all the positions advanced in part 1, as it contains some of Boyle’s many works on practical ethics and casuistry. Much of that centered on the area of medical ethics, but Boyle also made important contributions to the ethics of war and peace and to natural law reflection on property and welfare rights. These chapters illustrate, then, the kind of work the NCNLT can do when applied to pressing and disputed practical questions. The casuistry of the NCNLT is in large part a working out of the implications of the first principle of morality, a principle that requires openness to, pursuit of, and no intentional damage to the basic goods across all persons. As we have seen, this principle is further specified in a set of moral norms that direct practical deliberations and choice in relation to basic goods in one’s moral determinations generally, including in the area of applied ethics. Among the norms are a number of moral absolutes that identify as impermissible certain types of intentional acts that damage or destroy instances of basic goods, though they are not brought to bear directly upon the foreseen but unintended consequences of one’s acts. Section 1, “Justice in War,” addresses an issue upon which Boyle reflected deeply, staking out an important and controversial position in collaboration with Finnis and Grisez in their 1987 monograph Nuclear Deterrence, Morality, and Realism. In this work they argued that the nuclear deterrent strategy of the United States included a conditional intention to kill noncombatants as part of a “final retaliation” in the event of a nuclear war with the Soviet Union. Thus, the deterrent was a morally impermissible strategy for keeping peace. Boyle, Finnis, and Grisez argued that the United States therefore ought morally to undergo unilateral nuclear disarmament. This book marked a major contribution to contemporary philosophical reflection on justice in war in the nuclear age.

14  I n troductio n Shortly thereafter, of course, the Soviet Union collapsed; yet, as Boyle suggests in “An Immoral Kind of Deterrence,” it is far from obvious that there has been or will be a clear repudiation of the deterrent strategy. In this essay, Boyle updates the argument that there is an immoral form of deterrent with a view to providing leaders and citizens the grounds for moral reflection on and evaluation of future deterrent strategies. As the title suggests, Boyle’s 2006 essay “Traditional Just War Theory and Humanitarian Intervention” addresses the question of whether humanitarian interventions can be justified in just war thinking. Boyle looks in particular at Aquinas’s three conditions for ius ad bellum, just cause, right intent, and proper authority. The first two, Boyle argues, can straightforwardly be met (with some caveats concerning right intent). But there are significant problems with the third: on what ground can the authority of one sovereign nation intervene with military force in the affairs of another? And on what ground can a nation’s authority, charged with protecting and serving the common good of that nation, command its soldiers to fight, and perhaps die, on behalf of another nation’s good? Despite these worries, Boyle argues that there can be proper authority for humanitarian intervention: the authority of common morality, which requires persons and, mutatis mutandis, states to go to the aid of those in grave need when only those persons or states may adequately meet that need. In section 2, “Private Property and Welfare Rights,” Boyle explores issues that were of considerable importance to him, as he maintained a professional interest in questions of economic justice throughout his career; indeed, one of his final publications, “A Natural Law Perspective on Economic Equality,” returns to this issue. In thinking about these questions, Boyle was deeply influenced by St. Thomas’s treatment of the nature of and justification for private property in the Summa Theologiae II-II, q. 66 (where he discusses theft). There, Aquinas argues that the world’s goods are meant to be for the benefit of all human beings, but that this will be best accomplished if possession of at least some of those goods is not common, but private. For Aquinas, this means that individuals are to have authority over the care and distribution of what is held privately, but that, nevertheless, the “use” of such goods is still to be “common”—that is, “Things are to be used in a fair way to serve human utility.”24 24. Boyle, “Fairness in Holdings: A Natural Law Account of Property and Welfare Rights,” chapter 12 of this volume.

I n troducti on   15 An implication of this, commonly recognized by natural law thinkers, is that the “division of things by human law need not prevent their use for relieving human need. Quite the opposite: the natural law requires owners to use anything residual or superfluous to help the needy.”25 In the two essays included in this section, “Natural Law, Ownership, and the World’s Natural Resources” and “Fairness in Holdings: A Natural Law Account of Property and Welfare Rights,” Boyle works through the implications of this Thomistic position on “common use” and of the moral implications of private holdings. Boyle’s argument in “Fairness in Holdings” concludes with a justification of certain limited welfare rights (which must not reduce the taxpayer base to “servility”), an argument that Boyle extended elsewhere to the question of healthcare entitlements. Section 3, “Bioethics,” is an area in which Boyle worked and wrote extensively, addressing a wide range of issues spanning the beginning of life to life’s end, most notably in the important study Life and Death with Liberty and Justice: A Contribution to the Euthanasia Debate, coauthored with Germain Grisez. Boyle’s body of work in bioethics is an essential resource both to those working in the natural law tradition, for whom it identifies issues that the tradition has failed to grapple with or failed to do justice to, and to bioethicists generally, in view of the analytical rigor of the positions staked out. “Personal Responsibility and Freedom in Health Care” is Boyle’s effort to fill a lacuna in the natural law tradition insofar as it is lacking a developed account of the moral issues that arise in respect to the exercise of personal freedom and responsibility in the health care setting. Boyle begins by noting that the widespread acceptance of patient autonomy underpins a further proposition that he regards as a considered judgment to which reasonable people assent: “There is generally no authority governing the decisions of a competent adult concerning his or her own health care.” Boyle maintains that natural law theory can make sense of this judgment and proceeds to do so with reference to the idea of bodily intangibility, the idea that human persons should not be touched without their or their proxy’s permission (rare exceptions excluded). Bodily intangibility, in turn, is justified (1) by appeal to the special normative status of the human body and (2) by the consideration that each individual is uniquely placed to make decisions concerning 25. Ibid.

16  I n tro ductio n his own health and bodily welfare. Boyle then makes the case that the limitations to bodily intangibility that natural law allows for are not significantly out of step with considered judgments and what people generally accept. Boyle concludes by identifying the relevant criteria for a comparison with other approaches and suggests that the natural law account of personal responsibility he has developed stands up well against them. In the second essay of this section, “A Case for Sometimes TubeFeeding Patients in Persistent Vegetative State,” Boyle investigates a much disputed issue to which he was to return frequently in his career—namely, the question of whether withdrawing artificially provided nutrition and hydration from a patient in a persistent vegetative state is justified on the grounds that such a patient receives no benefit from that provision. Boyle critiques several arguments for this claim and argues positively that there are, in fact, distinguishable benefits for the patient, including the good of human life, respect for the patient’s dignity, and solidarity with the patient. If, in the face of such benefits, the removal of nutrition and hydration is thought to be justified, this must be because of the disproportion of burdens to benefits. Boyle undertakes a nuanced consideration of the various burdens in view and offers a similarly nuanced conclusion: It follows, therefore, that circumstances of the particular case will be the decisive moral considerations in arriving at the moral judgment about the level of care to be provided to any patient in PVS. The condition itself and the essential requirements for caring for people who suffer from it are not sufficient to show either that withdrawing food and water is permissible or required or that continuing to provide them is required.

In later essays on this topic, Boyle would revisit this conclusion in light of Pope John Paul II’s 2004 Allocution “On Life-Sustaining Treatments and Vegetative State: Scientific Advances and Ethical Dilemmas.” This collection’s final essay, “Against ‘Assisted Death,’ ” finds Boyle once again addressing an issue to which he devoted a great deal of philosophical attention, especially in Life and Death with Liberty and Justice. Invited to deliver the Anscombe Memorial Lecture at the Anscombe Bioethics Centre in Oxford, Boyle set out to defend the established practice in end-of-life care against the challenge of those seeking to qualify the prohibition against intentional killing in order to provide some form of assistance in dying. Boyle grants that persons have a liberty to com-

I n troducti on   17 mit suicide, but not a right, since what is at issue is merely a personal value, which of itself fails to underpin a requirement that others help one secure this value. Further, while persons have a right to refuse medical treatment, Boyle maintains that this right, as the first essay in this section argues, simply recognizes that there is no authority other than the individual’s discretion governing decisions about personal health care, and so has no clear implication for a right to die. The last piece of Boyle’s defense secures the soundness of the distinction between what is intended and what is merely accepted as a side effect in human actions. The inference to the acceptance of intentional killing from the acceptance of causing death as a side effect is therefore unsound. Boyle adds that qualifying the prohibition against intentional killing is not in the public interest, that implementing it would require burdensome regulation, and that some decisions rendered in light of it would inevitably be challenged, giving rise to instability in end-of-life care. While the previous sketch of the main lines of the NCNLT and of Boyle’s contributions to its articulation is meant to provide a sense of the range of issues it addresses, the cogency of the account on the whole, and the significance of Boyle’s work in relation to it, many important matters are left untreated, even unmentioned. Perhaps enough has been said of the theory to indicate that it can hold its own against alternative moral positions and that the features that distinguish it from neo-Thomist, Kantian, intuitionist, consequentialist, or virtue ethics provide reasons to consider it superior to them. Whether this is so or not, this collection of Boyle’s essays can serve both as an introduction to the NCNLT and an as invitation to engage the account dialectically— possibly even to embrace it. For our part, we, the editors of this collection, have spent our professional lives learning from Joseph Boyle and his work; to both of us, he gave considerable personal time in argument, critical reflection, and philosophical encouragement. It has been our privilege to bring together these essays, both in tribute to Boyle and his philosophical importance and so that other philosophers, theologians, and lay people can continue to benefit from his philosophical insight, dialectical rigor, and intellectual generosity.

Part 1

Articulating a Theory of Natural Law

• Section 1 / Determinism, Reasons for Action, Free Choice, and Incommensurability



1 / Is Determinism Self-Refuting?

Some Preliminaries One of the relatively minor skirmishes in the ongoing philosophical controversy over the reality of free will is the debate about whether the determinist position is somehow self-refuting. This debate has seemed to be of minor importance because the argument that determinism is self-refuting has the appearance of sophistry; it seems like a short, fast way out of a very complicated problem. Still, this line of argument—particularly in its more developed forms—is intriguing.1 For whatever is ultimately to be said about the relevant experiences, their interpretations, the complicated arguments, and assumptions, it is clear that determinism must be asserted in a proper, justified way. If determinism is incompatible with some feature of its own assertion, then we need look no further to reject it. The argument that determinism is self-defeating maintains that there is such an incompatibility; thus, the determinist is held to be “hoist on his own petard” in much the same way as the thoroughgoing skeptic or the all-out relativist. Just as the skeptic or relativist seems, in asserting his thesis, to be making the sort of knowledge claim his thesis excludes, so also the determinist is said to be doing something in asserting determinism, which this very thesis excludes. However, skepticism and relativism are general claims about human knowledge, and so it is not surprising that they should make reference to their own assertions and in such a way that they might have difficulty in allowing for them. By contrast, determinism is a claim about human actions and volitions, and, while it is true that assertions are 1. James N. Jordan, “Determinism’s Dilemma,” Review of Metaphysics 23, no. 1 (1969): 48– 66, is the most persuasive formulation of this argument that I know of.

23

24  A rt i cu l at in g a T he ory o f Natural Law human acts of a kind, it does not seem that freedom of the will must be an ingredient in a proper or justified assertion. The determinist is required to hold that there are sufficient causal conditions for his act of asserting determinism, but why should this in any way compromise his assertion as an epistemically proper act? Surely, one does not simply choose to believe or assert determinism. Those who hold the standard version of the thesis that determinism is self-refuting could be more forthcoming in answering this question; moreover, their answer is less than persuasive. But it does have considerable intuitive plausibility. Essentially, the answer is that an assertion is a justifiable and epistemically responsible act only if there is an unbiased consideration of the evidence for the proposition asserted in the light of the relevant standards of evidence. This unbiased consideration is where the free choice must come in, for if this consideration has sufficient causal conditions, it cannot be unbiased. The causal conditions sufficient to determine one’s assent to the proposition and one’s assertion of it might or might not have a connection with the relevant evidence and standards. Thus, one’s assertion—even if it were an assertion of a true proposition—would be at best only accidentally related to what is the case. It would not be known to be based on the relevant evidence and standards, even if one were determined to believe it to be so, for the evidence and standards could not be considered with an open mind. One’s mind would be closed by the factors sufficient to determine assent and affirmation. This argument seems to beg the question, for it cannot be stated without the premise that rational assent is incompatible with causal determination. Since this premise is not itself established in the argument, it simply states an implication of what the determinist means to deny.2 Perhaps it is true that reasons cannot be reduced to causes, and perhaps this argument suggests why this is so; nevertheless, it fails to show that the reasons sufficient to justify the assertion of a proposition are not, either by themselves or with other conditions, sufficient to determine the assertion. Moreover, there surely are rational assertions that do not involve any choice—let alone a free one. Judgments about immediate experience do not seem to involve choice: we see something, and sponta2. See Joseph M. Boyle, Germain Grisez, and Olaf Tollefsen, Free Choice: A Self-Referential Argument (Notre Dame, Ind.: University of Notre Dame Press, 1976), 43–46, for a development of this argument. Hereafter this work will be cited as Free Choice.

I s De te r min ism Self-Ref ut i ng?   25 neously, and perhaps necessarily, judge it to be as it appears. Likewise with certain immediately evident, necessary truths: we consider the proposition that the whole is greater than any of its proper parts, and we simply cannot think otherwise than that it is true. Surely, the lack of anything like a choice in the assertions of these propositions does not compromise their epistemic credentials. Quite the contrary, we would be far more suspicious if we thought that choices were involved in making these assertions. Likewise with the assertion of determinism: it is proposed as based upon—and required by—the evidence. In general, philosophical positions are not things we choose to accept or reject, but are propositions that the evidence and argumentation lead us—in the ideal case, inevitably—to accept. It seems a mistake, therefore, to hold that free choice must be involved in the assertion of determinism if the assertion is to be justifiable. In spite of the failure of the standard version of the argument that determinism is self-refuting, one can wonder whether there is not a better argument for the same conclusion. For asserting propositions is an inherently normative thing; it is not simply believing a proposition, but being convinced that one is justified in believing it, and that others ought to accept it as true. Since there is a kind of norm that seems to imply the capacity for free choice, if the norm involved in the assertion of determinism is a norm of this kind, then determinism could not be asserted without invoking a norm that implied the capacity for free choice. If an argument were developed along these lines, it would avoid the obvious difficulties of the standard argument that determinism is self-refuting. It would not make use of the question-begging assumption that rational assertion is incompatible with causal determination; it would proceed, instead, by showing that the assertion of determinism involves appeal to a norm that implies the capacity for free choice. This approach would have to involve the defense of two controversial propositions—that the assertion of determinism necessarily involves appeal to a norm and that the norm somehow implies the capacity for free choice. But it would not involve any general, question-begging assumptions about the relationship of reasons and causes. Similarly, it would not involve any general view about the conditions necessary for rational affirmation, but only a view about the conditions for the rational affirmation of determinism and propositions like it. Nor would

26  A rt icu l atin g a T he ory o f Natural Law it suppose that the determinist or his opponent actually made a free choice in affirming or assenting to determinism; instead, it would seek to show that a norm necessarily involved in asserting determinism implies the capacity for free choice. An argument of this kind exists,3 and I believe it to be sound. But before developing it, it is necessary to define some of the key terms to be used. The deterministic proposition at issue in this discussion is the claim that human beings do not have the capacity to make free choices. For purposes of brevity and clarity I will name this proposition Nfc, as in “No free choice.” It is a universal negative proposition; it is not—at least on its face—a logically necessary proposition. It does, of course, make a claim about what human beings cannot be; but this claim is about causal or physical necessity. It is also put forth as having some sort of epistemic necessity—as being the proper and justified conclusion of the evidence and arguments adduced in its behalf. The phrase “free choice” can be used to refer to a number of things. I will use the phrase narrowly to refer to only one of the things that determinists wish to deny and some proponents of free will wish to assert— namely, choices in which there is no sufficient cause for the choice a person actually makes that does not include the person’s own choosing. A person makes a choice when he or she is faced with a set of alternatives for action. Spontaneous action is blocked because one sees that there are several possibilities for acting. The person must then deliberate and choose. The person sees that he or she could do this or do that, but not both, and settles the indeterminacy about what to do by choosing to do this rather than that or to do that rather than this. A choice is free, in the narrow sense used here, when the factors determining which alternative will be selected are not sufficient to determine the selection, unless the person’s own choosing is included among these factors. In other words, if all the causal factors relevant to a choice—including such things as desires and reasons—are sufficient to bring about the person’s choosing one way rather than another, then the choice is not free. Only the person’s choosing one way rather than the other settles the issue if the choice is free; and there are not sufficient causes outside the person’s very choosing for the person’s making the choice he or she makes.4 3. See Free Choice, 153–81. 4. See Free Choice, 11–12, for a fuller explanation of this definition. Kenneth Konyndyk, “Rational Affirmation and Free Choice: A Study of Free Choice,” New Scholasticism 53, no. 4 (1979): 504–5, provides suggestions for the improvement of the more formal definition offered there.

I s De t e r min ism Self-Ref ut i ng?   27 One may wonder why this very restricted sense of free choice is made the focus of the controversy over free will. For it is certainly true that not all determinists are primarily concerned to deny free choice in this sense; and it is also true that not all who defend free will are ready to affirm the reality of free choice in this sense; some, for example, wish only to affirm the irreducibility of determination by reasons to ordinary causal determination. Moreover, some who defend the freedom of the will regard it as a far richer and more pervasive part of human life than this narrow definition allows. It is true, of course, that this notion of free choice is narrow; it does not refer to many things necessary for a complete theory of human volition or human action. It surely does not follow from this, however, that free choice is not central to the controversy about free will. Many volitions seem to be determined—by reasons if not by causes. This point is made by some proponents of free will—for example, by Aquinas.5 The issue between determinists and proponents of free will concerns those will acts that seem to be free. It would seem, therefore, that the dispute should center on deliberate choices, for these are the part of human life in which people experience themselves as self-determining. An aspect of the experience of choice is that nothing seemed to make one choose one way rather than the other. The person himself decided.6 It is not accidental, therefore, that determinists have focused on free choice in the narrow sense defined here. This is the datum that their account must deal with. Thus, although denying free choice in the narrow sense has not been the central concern of all determinists, all determinists do deny it; for free choice in this sense is something that does not fit into the normal pattern of causal explanation. It seems to violate the principle of sufficient reason, and so on. Nfc, therefore, is central to the determinist program—if not the very center of it. There is another reason for the focus on free choice in the narrow sense, and that is the moral significance of free choice. Many proponents of free will regard it as essential for moral responsibility; those who deny free will also deny—either explicitly or implicitly—that there is moral responsibility of the kind connected with free will. Of course, there is a kind of moral responsibility compatible with determinism, as 5. See ST I-II, q. 10, a. 1. 6. See Free Choice, 18–23, for a more complete description of the experience of free choice.

28  A rt i cu l at in g a T he ory o f Natural Law the tradition of compatibilism or soft determinism has made clear. But the kind of responsibility that involves free will is different from that allowed by some forms of determinism.7 This responsibility seems to be the responsibility people have for the choices they make. So free choice is again the focus of the discussion. This last point requires some development. As Aristotle pointed out, there are voluntary acts that do not involve choice, but choice is the locus of moral responsibility.8 If choices are determined as soft determinists suppose, they are still voluntary and even in some sense free. There is a sense in which persons would be morally responsible for such choices. But this is not the sense of moral responsibility affirmed in the Bible and in the Catholic moral tradition, in particular. For in this tradition, one’s very self is determined by the choices one makes, and one’s eternal destiny may hang on how one chooses. One’s responsibility is, therefore, radical; it is up to the individual to choose life or death, to choose to keep or not to keep the commandments. If the choice in question were determined by anything other than the person’s own choosing, then it would be unreasonable to regard his or her responsibility as radical; for, while the person made the choice and in some sense could have done otherwise, it was not within the person’s power to choose otherwise in the situation. In short, the controversy over the reality of free choice in the narrow sense defined previously is an important one, however attenuated some may regard the notion of free choice employed. This controversy is certainly an important part of the free will debate, and so if it can be shown that Nfc is self-refuting, an important part of the issue will be well on its way to being settled. A final preliminary to the argument is a clarification of the notion of self-refutation. Self-refutation arises in propositions that are selfreferential in a peculiar way. To clarify the kind of self-reference at issue, it is useful to distinguish various aspects of a statement. What is stated is a proposition; it is the proposition that is true or false and that has sense and reference. Statements also include sentences—the linguistic realities used to express propositions. They also include the stating of the proposition, which is a performance of sorts. This performance has several aspects. At the very least there are two: the affirmation of the proposition and the use of the sentence to express the 7. See Free Choice, 105–10, for a fuller treatment of soft determinism. 8. See Aristotle, Nicomachean Ethics, Book 3, 111lb 4–10, and 1112a 1–5.

I s De t e r min ism Self-Ref ut i ng?   29 proposition and its affirmation. The affirmation is the act of claiming that the proposition is true; it is at least in part an epistemic act. The use of the sentence can be the uttering or inscribing of the sentence and includes the properties of these activities. Propositions can be self-referential in a variety of ways.9 Strictly, a proposition is self-referential when it refers to itself. It is well known that this often leads to paradox. But propositions can be self-referential in a looser way when they refer to the nonpropositional components of the statement in which they are affirmed. This looser form of self-reference can be a reference to the sentence used to express the proposition or to one or another aspect of the performance of the statement. Thus, “This sentence is written in English” and “This statement is typed” are selfreferential, and there is no mystery about how and to what they refer. They refer respectively to the sentence used to express the first proposition mentioned and to the way in which the sentence used to express the second is communicated. The concern here is with performative self-reference, the kind exhibited in the second example. Moreover, the concern is with universal propositions that are performatively self-referential, since Nfc is a universal, performatively self-referential proposition. The self-reference in such propositions is no more mysterious than in the singular propositions examined earlier; the only difference is that one of the instances of the universal proposition refers to the performance of the statement of the universal proposition. Thus, one who states Nfc refers to all human acts, including whatever acts are involved in the performance of that statement. The notion of self-refutation has obvious application to performatively self-referential propositions; it arises when these propositions go wrong in virtue of their incompatibility with the aspects of their own performance to which they refer. This can happen in two ways. The first, which can be called “self-falsification,” occurs when the aspect of the performance to which the proposition refers has some property incompatible with what the proposition ascribes to it. Thus, if someone shouts “I always speak softly,” his proposition is self-falsifying. The second way in which performatively self-referential propositions can go wrong in virtue of their self-reference is by being self-defeating. This oc9. See Free Choice, 122–38, for a more systematic and thorough treatment of self-reference and self-refutation.

30  A rt i cu l atin g a T he ory o f Natural Law curs when the proposition renders pointless the performance of stating it. For example, one who states that all knowledge claims are equally groundless renders his own statement pointless, for it is as groundless as any other. Of course, if there are grounds for the claim, it would not be self-defeating but self-falsifying. Most of the philosophically interesting self-referential propositions that are found to have self-referential difficulties are like this example in that they are either self-defeating or self-falsifying. Therefore, I will call a performatively self-referential proposition “self-refuting” if it is either self-defeating or self-falsifying.

The Argument As was mentioned, Nfc is self-refuting if two conditions are met: (1) that its affirmation necessarily involves appeal to a norm, and (2) that this norm implies the capacity for free choice. If these conditions are met, the affirmation of Nfc will involve invoking a norm that implies the capacity whose reality Nfc denies. Thus, Nfc is either self-falsifying or self-defeating, since the kind of norm it makes use of implies the capacity for free choice or its affirmation cannot have the normative force it must have to be rationally affirmed, because norms that imply the capacity for free choice are excluded by Nfc. The fulfillment of the first condition is easily established; this is not, it seems to me, a controversial matter. When a person affirms a proposition, the person claims not only that he or she believes the proposition to be true, but also that the belief is justified. Moreover, the justification claimed in affirming a proposition is taken as imposing some requirement to accept the proposition on the part of those to whom the statement is addressed. The proposition is put forth as one that people ought to believe—whether or not they come to believe it as a result of its being affirmed. Propositions can be put forth without being affirmed; for example, they can be mentioned as examples, reported as the opinions of others, and so on. When they are put forth in any of these ways they are not affirmed—there is no claim that they are true or ought to be accepted. Moreover, there are affirmations that are not in fact justified, and those for which the justification claimed is very weak. But if there is no claim to justification whatsoever, it is hard to see that there is an affirmation at all, let alone an affirmation that is in any sense rational or purposeful. One who is shown that there is no justification for his or her affirmation may continue to believe the proposition originally

I s De t e r min ism Self-Ref ut i ng?   31 affirmed, but in this case it makes sense to say that the person ought not to believe the proposition, or that the person has no right to believe the proposition. In any case the person’s continued uttering of the proposition gives others no reason to think they should accept the proposition, other than the fact that the person who utters it happens to believe it. Perhaps there are in ordinary discourse affirmations that are irrational in the sense discussed previously, and perhaps there are affirmations that have no normative component. Perhaps some people just talk to hear themselves talk, stating their beliefs with no pretense of justification and no expectation that others will feel bound to take their statements seriously. I would doubt that such statements should be regarded as affirmations, but even if they were affirmations they could not be the rational affirmations appropriate to serious scientific or philosophical discourse. In a philosophical controversy the affirmation of a position is surely normative in the way indicated. Presumably the proposition is affirmed in the context of a serious effort to discover the truth; it is affirmed on the basis of considerations that justify the affirmation and impose an obligation on others to accept the proposition. The affirmation of Nfc is no exception; it is proposed as a reasonable affirmation based on considerations that justify its affirmation and require assent even from those who are not inclined to accept it.10 The establishing of the second condition—that the kind of norm involved in the affirmation of Nfc implies the capacity for free choice—is the difficult part of the argument. For doing this requires showing what kind of norm is necessarily involved in the affirmation of Nfc and showing that this kind of norm implies the capacity for free choice. Those who believe Nfc will, of course, deny that any actual, valid norm implies the capacity for free choice. Thus, they will hold that the norms involved in the affirmation of Nfc are of a kind that do not have this implication. Since there are norms that do not imply the capacity for free choice, this way of handling the normative character of the affirmation of Nfc has some plausibility. But the norms used must have the kind of normative force for this affirmation and still be of a kind that does not imply the capacity for free choice. These two conditions, I believe, cannot be jointly fulfilled. This supposes, of course, that there is a kind of norm that implies the capacity for free choice. It does not suppose that any norm of this 10. See Free Choice, 139–44, for a fuller discussion of the rational affirmation of Nfc.

32  A rt i cu l atin g a T he ory o f Natural Law kind is an actual, valid norm, for this supposition would beg the question in this discussion. In fact, even the supposition that there is a conception of a kind of norm that implies the capacity for free choice would be question-begging if it were not established. So, what grounds are there for thinking that there is a kind of norm that implies the capacity for free choice? The type of norm in question is one that prescribes unconditionally one of a set of real possibilities for action. To show that a norm of this type implies the capacity for free choice it is necessary to explain the terms that define it. A norm is a standard that can be fulfilled or can fail to be fulfilled; it does not indicate what is but what is to be. Some norms have prescriptive force only if definite goals are taken as given. Such norms—hypothetical imperatives or technical norms—indicate the rational requirements for achieving these goals. But some norms are not thus conditioned; they prescribe unconditionally or categorically. On some conceptions of morality, moral norms are unconditional in this way: they indicate how one should act no matter what one may happen to desire. But the laws of logic are also norms that are unconditional in this way, as may be other types of norm as well. The other element in the definition of the kind of norm that implies the capacity for free choice—namely, that such a norm prescribes among real possibilities for action—can be clarified by considering the nature of what various types of norm exclude. Technical norms exclude real possibilities for action. These possibilities are articulable things a person could think of doing and might have some reason to do. They are excluded because they conflict with the rational requirements for realizing the established goal. Of course, the person governed by the technical norm can surrender the goal on which the norm is contingent. The point here, however, is that technical norms exclude real possibilities for action. The price for violating the norm is simple practical irrationality; but this irrationality does not mean that there is not a coherent possibility for action contrary to the norm. Moral norms, however they are understood, also prescribe in this way: what the moral norm excludes is a real possibility for action—a possibility that has its attractions, however ill-considered they may be. These clarifications of the notions of a norm’s prescribing unconditionally and among real possibilities for action make possible the statement of the argument that any norm having both these features implies the capacity for free choice. A norm implies the conditions necessary

I s De te r min ism Self-Ref ut i ng?   33 for its fulfillment, in the sense that if these conditions do not obtain, the norm cannot require what it claims to require. Unless these conditions obtain, the norm is null; it has no prescriptive force.11 A norm that unconditionally prescribes one of a set of real possibilities is null if the person to whom it is addressed does not have the capacity to fulfill the norm by undertaking the prescribed action. But this capacity for fulfillment would not obtain unless the person had the capacity for free choice. This is not to say that having real alternatives means having alternatives among which one must have the capacity to choose. The point is, rather, that it would make no sense to unconditionally prescribe one of a set of real possibilities, unless the person to whom the norm is addressed could freely choose to conform to the norm. Of course, a person addressed by such a norm could be determined by reasons or causes to conform to the norm. Such a person would have, trivially, the ability to conform. But for those determined not to conform, the norm would be null. At best its utterance might contribute to determining them to conform; it would in no way require or demand conformity. Thus, if there were no capacity to choose to conform to the norm, the norm would altogether lack prescriptive force: only those determined to fulfill it could fulfill it, and for all others it would be null. So, there is a kind of norm that implies the capacity for free choice. The question that remains is whether the determinist necessarily makes use of a norm of this kind in affirming Nfc. In brief, the response is that the affirmation of Nfc must invoke a norm that prescribes unconditionally; Nfc is put forth as something any reasonable person should accept. Moreover, the norms invoked in rationally affirming Nfc exclude real possibilities for action— namely, the affirmations of propositions contrary to Nfc or its premises. The unconditional character of the affirmation of Nfc is unavoidable. The assertion of any general philosophical thesis is unconditional in this way: it is proposed as reasonable and as something any reasonable person should accept. The force of the norm cannot be escaped because one happens to have different but equally legitimate goals than the determinist has. Being reasonable is not taken as a merely optional goal by those who make such assertions; if it were, the affirmation of the thesis would have no force for anyone having other goals the pursuit of which might reasonably require the refusal to accept the philosophical thesis proposed. So, the ought involved in the affirmation of 11. See Free Choice, 151, for a further elaboration of this point, along with some examples.

34  A rt i cu l atin g a T he ory o f Natural Law Nfc is unconditional; it claims to regulate the affirmations of people, whatever their goals happen to be.12 The second condition for a norm’s being of a kind that implies the capacity for free choice—that it prescribe among real possibilities for action—also seems intuitively to be realized in the affirmation of Nfc; this affirmation excludes other possible affirmations—for example, that of the proposition that someone can make a free choice. Propositions contrary to Nfc can be affirmed; they are certainly not like self-contradictory propositions that cannot be coherently affirmed. What is more, the affirmations of these propositions are certainly things people might find it interesting or desirable to do. The affirmation of Nfc must exclude the affirmation of these propositions as something one ought not to do. If the affirmation of Nfc were based on the claim that its contraries were literally incoherent—self-contradictions—then what its affirmation would exclude would not be a real possibility for action. But only the fatalist argument even pretends to proceed in this way, and this argument involves a modal fallacy.13 Other arguments for Nfc do claim that the concept of free choice is unintelligible, but this does not mean that the claim that someone can make a free choice is formally incoherent. Rather, it means that the doctrine of free choice makes choice into an inexplicable, chance event or that it violates the principle of sufficient reason or causality.14 Such claims about intelligibility assume some standard of intelligibility by comparison to which free choices are unintelligible and in virtue of which one is entitled to dismiss their reality. This standard of intelligibility is not a law of logic or a self-evident truth. What it excludes is coherent, but is dubbed irrational in the sense that one who refuses to affirm in accord with the norm is ignoring the requirements for theoretical explanation and the discovery of truth. Other arguments for Nfc make use of different standards of rational inquiry, but in a way similar to that just discussed. Some of these arguments appeal to principles of induction, some to a rule of simplicity, and some to predictive success. All arguments for determinism, other than the fatalist argument, make use of some such standard.15 In all 12. See Free Choice, 164–66. 13. See Free Choice, 51–57, for a statement and critique of the fatalist argument. 14. See Free Choice, 57–90, for an exposition of these arguments and references to the literature. 15. See Free Choice, for a discussion of all the major types of arguments for Nfc that I know of.

I s De t e r min ism Self-Ref ut i ng?   35 these arguments, the principle invoked provides some standard for rational inquiry; the argument proceeds by showing that the reality of free choice is incompatible with the standard, and this is taken as a reason for excluding free choice and affirming Nfc. These standards, therefore, are norms that condition the affirmation of Nfc. They are an important element in its justification and thus are part of the normative aspect of the affirmation. These rationality norms seem to function in the affirmation of propositions in much the same way as moral norms are thought to function in directing human actions generally. Moral norms exclude real possibilities for action; the penalty for violation is immorality or moral guilt, and not incoherence or the futility of undertaking the impossible. Likewise, rationality norms exclude real possibilities for acts of affirming. The penalty is irrationality—a disregard for the requirements of theoretical understanding—and not incoherence. Of course, the irrationality of violating a rationality norm can be quite rational from another point of view than that of theoretical explanation. For example, if the affirmation of a proposition on the basis of a rationality norm should violate a technical norm based on some goal one has, it might be quite rational to affirm a proposition contrary to the one prescribed by the rationality norm as the rational requirement of realizing this goal. This is similar to the way in which an immoral act might be rational.16 It seems, therefore, that the affirmation of Nfc does involve invoking a norm that implies free choice. The affirmation of Nfc is rational and justifiable only in virtue of the arguments that support it. Like all arguments, these make use of formal logic, but more is involved in these arguments than the formal logic involved in the inferences. There are also standards of rational inquiry that unconditionally exclude as irrational the affirmation of propositions contrary to Nfc. These norms exclude real possibilities for action and are a necessary part of the justification of the affirmation of Nfc. If the arguments for Nfc showed that these possibilities were not real but in fact genuine impossibilities, then the norm could, no doubt, be in force as an unconditional norm without supposing the ability on anyone’s part to choose to conform to it. For the natural, intellectual capacity of human beings to recognize the impossibility of formal incoherence would be sufficient for its fulfillment. But, since the affirmation of Nfc excludes real possibilities, it 16. See Free Choice, 144–52, for a development of this argument.

36  A rt i cu l atin g a T he ory o f Natural Law will be null for anyone determined to choose one of them. If Nfc is true, then a wide range of people, including the philosophical opponents of determinism, will be persons for whom the norm is null. Even if such persons were to be determined to accept Nfc by its affirmative utterance or the presentation of the arguments on its behalf, they might not be; and for such persons it would be pointless to say that they unconditionally should accept it as if this were a rational requirement. These individuals have different motives and different goals, the quite legitimate pursuit of which would make it rational to refuse assent. Thus, on determinist grounds, the affirmation of Nfc would have to surrender any claim to be unconditionally normative. At this point, the claim to be a thesis that people simply ought to accept is given up. But must the affirmation of Nfc be normative in the way supposed? Kenneth Konyndyk has argued that it need not be. He points out that norms can function in two ways: as rules for the guidance of actions, including affirmations, and as rules for judging or appraising actions. He admits that if taken in the first way, norms might be supposed to imply free choice, but he denies that the rational affirmation of Nfc must be normative in this way. It must be normative in the second way only, and norms functioning in this way need not involve the capacity for free choice. He argues as follows: Assuming he is defending his denial of free choice as rational, it seems sufficient for his defense to point out that his affirmation accords with the appropriate norm. He need not deny that the norm is in force. And he need have chosen his position over its contradictory because the norm directed him to that choice. He may have no idea what the causation was, nor does it matter what it was. If we consider a situation in which the determinist is trying to persuade someone else to accept his position, again he need not assume that the other person is free to choose. He simply shows that the evidence and the appropriate norm favor his position, and lets natural causation take over from there. All he can do is demonstrate that his position is rational.17

In response, it should be noted that the argument does not claim that the determinist chose his position “because the norm directed him to that choice.” The claim is that the norm is part of the justified affirmation of his position; how he came to believe it is not at stake. Moreover, the claim is not that anyone actually made a free choice, let alone the determinist himself. The point is rather that the norm is null—is not 17. Konyndyk, “Rational Affirmation and Free Choice,” 512.

I s De te r min ism Self-Ref ut i ng?   37 in force—unless someone can make a free choice. Likewise with the persuasion of others; the issue is not whether the utterance of Nfc will be persuasive in the sense that it induces belief, but rather whether one ought to believe. So Konyndyk’s scenario is a possibility not denied by the argument. The problem is that if Nfc is only thus affirmed and believed, its affirmation lacks the kind of normative force that it seems to have and, indeed, must have to be affirmed philosophically as a thesis that ought to be accepted. Such theses are not uttered in the hope that they will induce belief, but affirmed as what any person should accept. Moreover, Konyndyk’s distinction between the functions of norms does not make room for the relevant norm’s functioning as it must in the affirmation of Nfc without implying the capacity for free choice. For the appraisal of an affirmation must consider what other people should do on coming to know the affirmation. If one who thinks of affirming a proposition recognizes that others are in no way rationally bound to assent to the proposition affirmed, then it seems that he or she is not entitled to affirm it. Such a person might firmly believe the proposition, but the belief cannot be considered justified if the person acknowledges that others are perfectly free to deny it. Again, this is not to deny that the presentation of the evidence and the appropriate norm might be sufficient to induce people to affirm Nfc on the basis of the norm; nor is it to deny that belief so induced is rational. Quite the contrary; such a belief is based on a relevant norm of rationality. But this does not mean that the affirmation is justified, for it allows that others with purposes that might be quite legitimate could have reasons for refusing to assent to the affirmation—reasons that are unassailable if the norm does not bind unconditionally. In short, the unconditional character of the affirmation of Nfc is unavoidable. The determinist must say that people categorically ought to accept his thesis, and this is just the sort of “ought” that implies the capacity for free choice. So determinism is self-refuting; this seemingly minor skirmish in the debate over the reality of free will is really a major victory for the defenders of free choice and of the traditional notion of moral responsibility.



2 / Reasons for Action E va luat i v e C o gni tio ns Th at Und erli e Mo t ivat io ns

Introduction: Cognitivism vs. Noncognitivism Concerning the Motivation of Human Action The idea of “the reason for my action” is an established part of the conceptual framework by which people describe, explain, and justify their actions. The tendency to communicate reasons for action on the part of those cooperating indicates the social importance of this idea. The elementary notion is that, when a person acts, he or she wants something that he or she believes is likely to be achieved by that performance. The reason for the action is the conjunction of the agent’s wanting and the agent’s belief about the action’s capacity to secure what he or she wants. Thus, a person wants to fill the fuel tank of her automobile and believes that going to the neighborhood gasoline station will achieve this, so she has reason to go to the gas station. This idea of a reason for action has obvious ethical significance, since the role it plays in people’s characterizing their own and others’ action is within the broadly ethical perspective in which actions are described, explained, and justified not simply as biological events but as individual and cooperative voluntary undertakings. This notion is integral to the first-person perspective people adopt as they actively lead their lives. The ethical importance of the idea of a reason for action begins to emerge from the distinction between the cognitive and the motivational elements in the concept. The belief that one’s action will bring about 38

Re a so ns fo r Act i on   39 what one wants is clearly a cognition—a belief that may be true or false. The motivational element—the wanting—is plainly not a cognition but rather a motivation, an interest, a want, or a desire. This motivational element can depend—or appear to depend—upon cognitions in several ways. First, in the example used, wanting to fill the gas tank of one’s car—the motivational component of the reason to go to the gas station—plainly presupposes some beliefs about the effects of filling the tank and about the desirability of seeking to bring them about. The desirability of filling the gas tank would not exist without the belief that this action can cause further events or other actions in which one has an interest. Some of the interests in these events and further actions are fundamental: one wants to see one’s friend, one is interested in enjoying the view provided by a drive, and so on. Therefore, just as one’s wanting to perform an action depends on beliefs by which one anticipates features or consequences of the action in which one has an interest,1 so also the desirability of these features or consequences often depends on further beliefs connecting them to further things we want and finally to things we ultimately want—that is, things we want independently of beliefs connecting them with still further desires. Therefore, although the complex nesting of desires within a web of beliefs shows that much of what motivates in reasons for action is dependent upon belief, it does not show that basic motivations are similarly dependent. However, other considerations lead to the view that basic motivations are dependent upon cognitions. This view is not that basic motivations are based on beliefs of the kind required to link motivation to action or to goals within complex motivational structures. Rather, it is that basic motivations can be evaluated or assessed with respect to their value. In my supposition that filling the gas tank could be characterized as “desirable,” I suggested that the motivation for an action can involve not only one’s actual desire for some features or aspects of the action, but also a judgment that the action has some property or relation that renders it worth performing. Of course, the desirability of filling the gas tank is instrumental and not basic. But one might also 1. See Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1987), 140–42, for a clarification of the relation between one’s desire for an action and the reason for that action. The desire depends upon the reason and is not be confused with it. This, I believe, applies not only to a desire to perform an action, but also to the desire one has for any other goal in a nested series of goals in which beliefs connect each with further, and finally with an ultimate desire or interest.

40  A rt icu l at in g a T he ory o f Natural Law say that the fundamental motivations for this action, such as visiting one’s friend or seeing a view, are desirable. Thus, the term “desirable” suggests that motivations can be assessed and that their actual motivational force can be contingent on that assessment. That view is philosophically controversial. For the idea that one’s motivation is sometimes contingent upon an evaluation in which one judges that something is good, valuable, or worth getting is that what one wants or desires in acting is judged good not because one desires it (or because of its utility in getting other things one actually desires) but as the result of an evaluation prior to one’s interest in it. The alternatives sketched here represent two famously opposed philosophical views of motivation: The view denying the reality of such evaluations may usefully be called “noncognitivism” about motivation, since this name refers to a doctrine that rejects evaluative cognitions upon which basic motivations of human actions can be contingent. The view affirming the reality of evaluative cognitions capable of affecting basic motivations for actions can be called “cognitivism.” Other commonly used names for these views, “subjectivism” and “objectivism” respectively, have distracting connotations;2 in particular, the term “objectivism” distracts by suggesting that those who reject noncognitivism are thereby committed to holding that cognitive evaluations must report existing states of affairs in the way “objective” descriptions do. The philosophical controversy between cognitivists and noncognitivists does not concern the clearly cognitive aspect of a reason for action. The beliefs that connect motivations to goals and actions are often complicated and controversial. Consider some of the kinds of beliefs that frequently play a role in reasons for action. Often, they are causal: one believes that an action one can perform will help to realize some goal one has—for example, filling the gas tank so that one may visit a friend. Often, too, they are beliefs about how practices and customs work: one believes that one’s action will have a conventionally established significance and will thereby cause or be part of some goal—for example, in signing a contract or engaging in a religious ritual. Sometimes they are beliefs that performances of some kinds instan2. See John Mackie, Ethics: Inventing Right and Wrong (Harmondsworth: Penguin, 1977), 1–29, for a useful indication of the complexity of terminology in this matter. Mackie prefers to call noncognitivism “subjectivism” to indicate that the subjective acts of valuing and desiring are the sources of value. Part of my reservation concerning this usage is that rejecting Mackie’s subjectivism need not involve all that “objectivism,” particularly as he understands it, connotes.

Re a so ns fo r Act i on   41 tiate certain general properties: one believes that some action or the goal to which it contributes will be satisfying, healthy, or interesting. In all these kinds of beliefs, there are epistemological complexities. Still, however difficult it may be to subject such beliefs to rational scrutiny, we are often able confidently to do so. Coming to confidently accept such beliefs as true does not involve the especially perplexing epistemological problems of basic evaluation. Similarly, the issue that divides cognitivists and noncognitivists does not concern the complexity of the motivational structures in which many nested goals are desired because of their utility for achieving further desired goals. The debate concerns desirability or the goodness of what a person ultimately wants. In entering this controversy, I will first spell out the essential aspects of the noncognitivist account of motivation. Second, I will consider a set of phenomena to which those accounting for human motivation must attend; these are phenomena related to conflict of desires, deliberation, choice, decision-making and so on. Noncognitivists do not provide a developed account of these phenomena, but they have some resources for doing so. Third, I will argue that noncognitivism can neither, on the one hand, deny the reality of morally significant deliberation and choice nor, on the other hand, account for their reality. Fourth, I will develop the contours of a cognitivist alternative to noncognitivism, in which I will show that evaluations of basic motivations of actions are genuine forms of knowledge and are ethically significant.

The Noncognitivist Account Bernard Williams provides what he dubs a “sub-Humean” definition of reasons for action: “A has a reason to Φ iff (if and only if) A has some desire the satisfaction of which will be served by his Φ-ing. Alternatively, we might say . . . some desire, the satisfaction of which A believes will be served by his Φ-ing.”3 Williams takes his conception of a reason for action to be Humean (and so noncognitivist) apparently because he takes it for granted that desire—desiring—is the motivational element in reasons for action and that this desiring is not contingent upon prior judgments of value but instead creates value. 3. Bernard Williams, “Internal and External Reasons,” in Moral Luck (Cambridge: Cambridge University Press, 1981), 101. He calls this view sub-Humean because it overlooks some complexities of Hume’s view.

42  A rt i cu l at in g a T he ory o f Natural Law The sense in which, according to the noncognitivist account, motivationally basic desires do not depend upon cognition needs amplification. Noncognitivists need not and usually do not hold that desires are blind; they are not committed to denying that desire presupposes awareness of something desired. That knowledge has several functions within a noncognitivist account. The known object of desire gives it focus: “I want that.” It also contributes to triggering the desiring: having become aware of a danger, a person or animal is ready to flee or to struggle. The noncognitivist thesis is the more focused denial that the object of desire is desirable or otherwise valuable independently of someone’s desiring it—in other words, a denial that an assessment of the object’s value is prior to desiring it. John Mackie is usefully blunt and clear on this point. In elaborating a noncognitivist account of evaluation, he notes that we use the word “good” in nonmoral contexts to refer to things “because they are such as to satisfy desires.” He proceeds immediately to warn of a mistake: We get the notion of something’s being objectively good by reversing the direction of dependence here, by making the desire depend on the goodness instead of the goodness on the desire. And this is aided by the fact that the desired thing will indeed have features that make it desired, that enable it to arouse a desire or that make it such as to satisfy some desire that is already there. It is fairly easy to confuse the way in which a thing’s desirability is indeed objective with its having in our sense objective value.4

In short, a noncognitivist account of reasons for action is any account that sees the value in what we find basically interesting, valuable, choiceworthy, good, or (for that matter) obligatory to be reducible without any remainder to our acts of valuing such as desiring or wanting. The arguments in favor of the noncognitivist view of motivation are of two kinds. First, there are arguments in support of the view that are based primarily on the difficulties inherent in the cognitivist view. I will return to these arguments in the section “A Refutation of Noncognitivism” in this chapter. Second, there is an attempt to respond to the objections that noncognitivism itself raises and to show that noncognitivism can either account for the normative and motivational aspects of human life or explain why these data can be discounted in an account of human action. John Mackie provides a striking example of this second aspect of 4. Mackie, Ethics, 43.

Re a so ns fo r Acti on   43 the noncognitivist argument. He plausibly maintains that ordinary language and moral thought commit us to the reality of cognitivism. To account for this, he proposes what he calls an “error theory” of moral language. He tries to explain why moral and other evaluative discourse has become committed to what is in fact a mistake. He holds that “patterns of objectification” in which subjective valuings have been accorded objective reality have developed for a variety of historical and social reasons, preeminently reasons of social control.5 Thus, the ontological commitments of evaluative and motivational language are taken to be data that need to be explained or explained away, and, since they contradict noncognitivism, they must be explained away. The extent of the data to be explained in one of these ways is by no means clear. Most discussions of evaluative language have focused primarily on the meanings of terms like “good” and “ought” and their implications, and discussions of motivation assume that a noncognitivist account can deal with the relevant moral psychology. I will suggest in the next section that there is a set of morally important data, the personal experience of deliberation and choice, that accounts of human motivation usually overlook, but must explain or explain away.

Deliberation and Choice: Data for Accounts of Motivation Consider the following situation. A person has reason to do something: open a book. Therefore, the person desires to open the book. But that person, at that very same time, also has reason to make a phone call. Therefore, she also desires to make a phone call. The person experiences a conflict of desires and so hesitates to act. She would have opened the book but for the desire to make the call, and she would have called but for the desire to open the book. The motivationally overdetermined situation blocks action until the conflict is resolved. The hesitation caused by the conflict of desires can be understood as a struggle between the competing desires. It will continue as long as both desires remain and continue to have the motivational power to block the effectiveness of the other desire. The hesitation ends when, for whatever reason, one of the desires prevails over the other and the block to acting is removed. 5. Mackie, Ethics, 42–46.

44  A rt i cu l atin g a T he ory o f Natural Law Of course, the common human experience of conflicts of desire, the hesitation they cause, and their resolution is part of people’s awareness of themselves as agents living their lives. The experience often is not that of observing or being in the throes of desires capable of sorting out their conflicts without the acting person’s actively settling the matter. Often one does not simply witness a conflict or find oneself captured by it, but reflects upon it, seeks to adjudicate among the contending desires, and finally selects a course of action. What is noncognitivism to make of such conflicts of desire, and especially of the role reflection or deliberation plays in leading to a personal selection among them? I will argue in the next section that noncognitivism is incapable of accounting for some of these data. But it can account for much of what requires explaining. Reviewing this account and its limits sets the stage for my refutation. First, sometimes conflicts of desires are settled in just the way suggested by the analogy of a struggle in which one desire overcomes the other. This appears to happen in nonhuman animals and sometimes surely happens within human motivation, as when the fear of bodily harm sometimes simply overcomes the competing desire to take the risk. In a similar way, even without conscious attention, a person’s desire to move about sometimes overcomes the desire to remain still. Second, noncognitivism has considerable resources for explaining how a process of reflective deliberation completed by a selection can play a role in breaking the motivational impasse caused by a conflict of desires. The extent of these resources becomes clear by considering the limitations of the role of rational deliberation according to the noncognitivist account. Deliberation is a kind of thinking, and thoughts and beliefs do not motivate; rather, they relate actions to motivations and connect actions to other goals people actually or potentially have. The thinking and the believing involved in deliberation must remain purely cognitive in effect, even though they are triggered by the conflicting desires and are undertaken in the service of resolving the conflict. Thus, only confusion would allow us to suppose that thinking can directly and of itself change the motivational strength of a desire. The desire has the strength it has probably because of biological and environmental factors, and beliefs and reasoning have no capacity to influence the strength of the desire. Consequently, the idea that reason could help settle the conflict between conflicting basic desires by judging which is more important

Re a so ns fo r Act i on   45 or fundamental or vital to self-interest is misguided. Those judgments all suppose that the knowing itself can make a motivational difference at this basic level, and that is not permitted on noncognitivist grounds. Given this limitation, the role of deliberation may seem restricted to instrumental thinking. Instrumental reasoning can serve desire in straightforward ways—it can help clarify relations between actions and interests. That clarification can become quite complicated, for example, when brought to bear upon certain cooperation problems such as prisoner’s dilemmas, where only a single desire is in play and seeking its optimal realization is in the circumstances irrational—that is, guaranteed to lead to a lesser satisfaction of that desire than seeking a more qualified realization would. The sort of thinking involved in straightforward means/ends reasoning also applies more broadly within the entire set of motivations present in a person’s life. We can trace the effect of an action not only on the interest that gives us reason to do it, but also on other interests we may have. Reflection can, therefore, reveal to a person that desires not in play in a given conflict of desires are in fact connected to one or another of the actions blocked by the conflict. Thus, the awareness of such connections changes the motivational mix involved in the conflict and so might cause those desires favoring one action to prevail. For example, to select between two very attractive meals on a menu, one might reflect on how each would cause one to feel later that day. Suppose also that one has a desire to work late into the day. The reflection brings that desire to bear upon the selection of a meal and causes one to select the less hearty entree because it better corresponds with the desire. Similarly, as noted in the previous section, a person’s awareness of certain internal or external conditions can trigger a desire. Reflection upon the effect of one’s actions on other things one cares about not only can bring existing desires to bear on the blocking of action by a conflict of desire, it also can trigger new desires.

A Refutation of Noncognitivism My refutation of noncognitivism exploits a species of the situation described in the previous section: a conflict of desires that causes hesitation in the motivational process leading to action and so blocks action and calls out for the person’s resolution of the conflict by his or her

46  A rt icu l atin g a T he ory o f Natural Law deliberation and selection. It is this last element in the situation I will specify: the selection. The kind of selection I will consider is a choice that is responsive to the results of deliberation. Thus, a choice, as I shall define this notion, is a kind of selection ending a motivational impasse caused by a conflict of desires. A person who selects unpleasant elective surgery to deal with long-standing disabilities that hinder important activities ordinarily chooses this course of action. The negative feelings evoked by both options induce reflection on the merits and risks of both, and the selection responds to those judgments. Similarly, the cooperative action between patient and health care team to carry out the patient’s choice of surgery is ordinarily a set of common choices that are far removed from the play of competing interpersonal and intrapersonal desires. The sense of this idea emerges more fully by considering other kinds of selection. The resolution of a conflict of desire caused by one desire’s “overcoming” the other may be a selection but is not a choice, inasmuch as that selection is not responsive to deliberation. Less obviously, a selection is not responsive to deliberation—and so not a choice—even if the victory of one desire over another became possible because reflection altered the motivational mix by illuminating the connections between the blocked actions and other desires or by triggering other relevant desires. Similarly, if one selects, say, items on a menu or TV shows by some sort of random device (e.g., flipping a coin or taking the first thing that one encounters), there is no deliberation about the options and no selection based on it. Hence there is no choice. But there may be a related choice: the choice of such a policy based on deliberation about the merits of moving ahead in various situations and the alternative of hesitating. Because choice is a special kind of selection—of one action over others in response to the outcome of deliberation—it is a responsible act. Indeed, on most accounts, it is the core of human responsibility. In choosing, one faces options, possible but incompatible actions one has reason to perform, reflects on them, and, in light of that reflection, selects one option over others. The power to do otherwise and the presence of rational reflection make choice, thus understood, the center of a person’s responsible agency. To clarify this connection between choice and moral responsibility, it is useful to compare it to the notions of choice involved in the debate over free will between those called compatibilists and those called in-

Re a so ns fo r Acti on   47 compatibilists. The connection I affirm between choice, understood as a specific sort of selection, and moral responsibility does not presuppose an incompatibilist conception of free will (which holds that the freedom of a choice and any form of causal determination of that choice are incompatible), but is the common property of incompatibilists and compatibilists (who hold that the freedom of a choice and some forms of causal determination of that choice are compatible). Philosophers of both persuasions regard responsibility as presupposing the rational control of oneself that having options and the capacity to assess them provides. Defenders of both of these positions also agree that voluntary actions are based on rational assessment and that the power to do otherwise refers to a person’s rational control of his or her actions and not to just any counterfactual truth about what would have happened in that person’s life had things been different. Therefore, compatibilists who believe that the outcome of deliberation causally determines choice do not deny that choice is rational selection and that moral responsibility presupposes choice. A common objection to the shared assumptions of those involved in the debate between compatibilists and incompatibilists points to the difficulty faced by noncognitivists in dealing with choice. The objection is that of those reductionists who hold that the first-person discourse of decision-making and moral life is all part of the epiphenomenal realm of “folk psychology.” The difficulty illuminated is that Hume and his noncognitivist descendants cannot reject that realm if they intend, as they obviously do, to account for moral life and lay foundations for normative judgments. So, the proposal that we simply dismiss deliberation and choice, all the connected moral psychology, and the normative presuppositions of this psychology is simply a claim that the entire discussion in which noncognitivists and their opponents dispute is irrational to undertake. This indicates that the notion of moral responsibility is indispensable in any perspective that takes moral life seriously. The connection between moral responsibility and choice is such that if the former is indispensable, then so is the latter. Consequently, noncognitivists like Mackie cannot invoke an error theory of choice but must provide an account of it. This they cannot do. The noncognitivist account of motivation is not capable of preserving these elements of the idea of a responsible action. The basic argument can be stated briefly: If desiring is the exclusive motivational source of action and so establishes the value of options, then conflicts

48  A rt icu l atin g a T he ory o f Natural Law of desire can be settled only by the triumph of the stronger desire. On this view of motivation, desires will be practically in conflict when they point toward different actions and are sufficiently close in motivational strength or force that action is blocked and hesitation created. The resolution in such a case occurs when one of the desires becomes sufficiently strong to overcome its motivational rivals. This resolution involves a selection of one of the options, but that selection is not a choice, which is responsive to judgment, but rather the outcome of a struggle among desires. Consequently, there is no room for choice as a volition, a rational selection responsive to deliberation, if motivation is finally no more than desiring things. As noted previously, a choice causally determined to respond to the judgment assessing the relative merits of options can be responsible according to a compatibilist definition of responsibility, but an outcome of a struggle between conflicting desires cannot. These desires may proceed from within the agent if the desires are not alien or coerced, though the selection is not based on judgment but desire, perhaps triggered, focused, or brought to bear by judgment, but not evaluated by it. Moreover, the power of the agent to bring about the option not selected exists only in name. The idea that such an agent could in any morally relevant sense have done otherwise than as determined by the prevailing desires is hard to conjure in this scenario. This argument invites objections, but considering them helps to clarify the debate. The first is that the noncognitivist conception of motivation does allow for the rational assessment involved in deliberation. We have seen that noncognitivism has a role for rational assessment. But this is not, I think, a role that permits understanding choice as a response to judgment. On the noncognitivist account, the reasoning involved in deliberation and the selection of a course of action are separated by the motivational force of the desires provoked or otherwise brought into conflict by the reflection. The preponderance of desire still causes the selection. This view of the role of reflection in settling conflicts of desires no doubt applies to some experiences. But it is implausibly generalized to cover all of them. We saw previously that in deliberation, whatever else one seeks to do, one tries to expose aspects of one’s action, understood as broadly as one can project it and its effects, aspects that may not have been noticed, as the conflict of desire leads to hesitation, then deliberation. One wants to know how actions one has some reason to do will affect all that one is concerned about.

Re a so ns fo r Acti on   49 But in deliberating we certainly do not experience ourselves as interested in such things solely to trigger desires or bring them to bear on actions in a way that might break a motivational deadlock. Rather, the focus of such reflection is often on the merits of the options rather than on the strength, intensity, or force of the desires underlying one’s interest in the options. Thus, contrary to the limitations imposed by noncognitivism, we often experience ourselves as interested in the merits of the options, not merely (and surely not primarily) in the strength of the desires for them or in the eliciting of desires that might cause the selection of one of them over the other. A related difficulty of noncognitivism is that deliberation is only contingently related to selection, since the new desires that deliberating applies to a conflict of desires are as likely to reinforce the conflict as they are to tilt the balance in favor of one or another option. Moreover, the selection is as likely to proceed from the change of circumstances internal or external to the person caused by the passage of time as it is from any desire made relevant by reflection; in a conflict between the desire to eat and the desire to avoid danger, getting hungrier as one waits will eventually change the balance. The experience of deliberating about the merits of options cannot be taken at face value by noncognitivists. Behind anything rationally determined to be the merits of an option, there must finally be a desire. My point here is not precisely to dispute the accounts of the experience, but to note some of their logical consequences. Selections responsive to assessments of the merits of the options supported by conflicting desires are choices in the relevant sense. They can be responsible. Noncognitivist deliberation cannot carry out such assessments, and for that very reason, the selection is not responsive to the deliberation, even though the deliberation may have a causal role in the selection that may follow it. Perhaps one might think that the strength of desire is somehow revealed by considering the merits of the options, so that the focus of deliberation on the latter somehow reveals the former. But the two things vary independently in obvious ways: in cases of weakness of will, one judges an option better than another but, desiring the other strongly, chooses it: one wants the akratic option more than the rationally based option. Similarly, in cases of unreasonable attachment to an option, one considers the merits of the options, judges one way, and may desire contrary to the judgment. Furthermore, judgments of the value of goals

50  A rt icu l atin g a T he ory o f Natural Law pursued in a complex and extended project can continue unchanged throughout the project, even though desires in relation to those goals vary greatly because of difficulties encountered and because other desires are likely to emerge. There is no evidence for the idea that looking at the merits of options is a way of assessing the motivational strength of the desires underlying them. To recapitulate the main argument: if the motivational component of a reason for action is finally a desire (a wanting or valuing), then deliberation cannot be considering the merits of the options for action— their choiceworthiness, value, or goodness. Furthermore, the selection that ends a conflict of desire cannot be a choice—that is, a selection responding to a judgment that the benefit whose awareness underlies an option is worth pursuing. Deliberation will mean exploring possible aspects of options that will provoke desires or relate other desires to the options, and selection will refer to some desire’s breaking the standoff between desires. Thus, although noncognitivism can account for some selections that end conflicts of desire and can explain some of the reflection that supports such selections, it cannot account for deliberation and choice. The rub is that in deliberating we consider— or experience ourselves as considering—the merits of what we want or desire, and on the basis of assessing these, we move toward choosing.

Elements of a Cognitivist Account The preceding argument is an attempt to refute a common position about the motivation of human actions. The argument is that a noncognitivist account of the motivation of human actions, which is identified with a broadly Humean approach to these issues, is inconsistent with aspects of the experience of human agency that are not easily denied if choice and deliberation are to remain central to our understanding of responsibility. My rejection of this account of motivation leaves open the details of cognitivist accounts that avoid the difficulties of the noncognitivist account. Indeed, my refutation does not fail simply because I or anyone else has not developed a plausible account of the alternative to the position refuted. The refutation is logically independent of an alternative account. Consequently, even if attempted refutations of cognitivist accounts of human motivation—such as Mackie’s famous argument that objective accounts of value require ontologically “queer” entities—have

Re a so ns fo r Acti on   51 some logical and persuasive power, they do not vindicate noncognitivism. Such arguments have no tendency to overturn my refutation. Nevertheless, to anticipate questions about the cognitive presuppositions of reasons for action, and particularly about the foundations of the motivational force of these reasons, I will sketch an account of the evaluative judgment on which basic motivations are contingent. The argument so far is that there must be such evaluations. Since deliberation attends to the merits of the options, and since these cannot be reducible to the agent’s desiring some purpose, the motivational component of a reason for action presupposes an evaluation, a judgment of value that is a type of cognition. Since it considers the merits of options—that is, what can be said on their behalf—this evaluation embraces the entire reason for action. But its focus surely is on what underlies the basic motivation. The evaluation asks whether the ultimate motivation of the action is appropriate and thereby makes the option choiceworthy—not simply connected to something the person happens to desire. Since the objects of such ultimate motivations can have value that can be assessed independently of actual desires, we may usefully distinguish them from other desires by naming them “interests” and their valuable objects “benefits.” This allows an amendment of Williams’s definition of a reason for action so as to make it a cognitivist conception: a reason for an action is the conjunction of (1) the belief that choosing an action will contribute to one’s getting something one is cognizant of as beneficial; and (2) the motivating influence of the interest in that benefit. A reason for action— as I understand it—is the conjunction of a belief about the capacity of some action one could perform to achieve a benefit and the motivational force of one’s interest in that benefit.6 So far a benefit has been characterized only as what can be said on 6. This definition is a minor amendment of the conception of reason for action in Germain Grisez, Joseph Boyle, and John Finnis, “Practical Principles, Moral Truth, and Ultimate Ends,” American Journal of Jurisprudence 32 (1987): 103. My definition is more thoroughgoingly internalist than Williams’s, since he allows that the falsity of the belief in my first condition may remove the reason for acting; see Williams, “Internal and External Reasons,” 102–3. However, I do not see how a belief’s falsity would remove one’s reason for action unless it were recognized as such. More generally, I cannot see how a reason for action, however defined, could be practically relevant to decision-making unless it was a reason whose understanding was somehow an extension of the conception of reasons for action in the sense here specified. Reasons understood as more radically external than such an extension would permit could motivate only contingently, and so they would not motivate without the addition of the kind of motivation included in a reason for action internally conceived.

52  A rt icu l atin g a T he ory o f Natural Law behalf of an option or the merits of an option. Moreover, these merits must be understood to be not subjective acts of wanting, desiring, or valuing something, but the ground of whatever value such interests may have. This minimal idea of a benefit in conjunction with the definition of a reason for action provides the basis for the causal role in human action of assessments of benefits and reasons for action. The motivation of action by interests in benefits is contingent on the reflective assessment of the benefits. The competing interests that emerge in deliberation when conflicts of desire block action are not simply competing desires but rationally based interests. The choice that ends the motivational standoff is, therefore, not a selection caused by the de facto preponderance of wants but selection responsive to reasons for action that themselves presuppose assessments of the merits of the underlying motivation. The reason for action that is endorsed by choice becomes the actual reason for one’s action; the wider set of reasons for action are the necessary conditions for choice. The actual reason for action becomes that by its endorsement in choice. That is so most clearly when the choice is free in the incompatibilist sense of freedom. But it is also true when the result of deliberation settles the choice: the prevailing option does so in virtue of judgment, not desire. What more can be said about the idea of a benefit? The benefit involved in motivating an action is identical with or part of the purpose for which a person acts. Purposes, as imaginatively and conceptually articulated and projected in deliberation, seem to have features capable of provoking emotional responses and so capable of motivating actions independently of any reflective assessment of benefits. One imagines the surgery one deliberates about undertaking: the postoperative pain repels, willy-nilly, but the image of pain-free mobility attracts in the same way. These motivations appear to function according to the noncognitivist model for motivation, except that, within a cognitivist conception of motivation based on deliberation and choice, motivation based on evaluation remains a possible determinant of choice. For on a cognitivist account of reasons for action, their causal role in action, at least in situations of conflict of desires, is to provide the necessary causal conditions for choice. In spontaneous action in which one has reason to act and no competing desire blocking action, then presumably the reason would be a sufficient cause for action, whether or not one could evaluate the basic underlying motive. But when desires conflict and op-

Re a so ns fo r Act i on   53 tions emerge and each option is supported by reasons, neither reason by itself is sufficient for action. And here the difference between cognitivist and noncognitivist accounts is significant. In the noncognitivist account, the desire that becomes stronger must prevail; in the cognitivist account, one can choose because competing interests do not settle the matter independent of judgment. Thus, on the cognitivist view I am articulating, the emotionally grounded response to the imaginable components of purposes will not settle what we finally do when deliberation and choice are called for. These imaginable, emotion-provoking aspects of purposes may be called goals. These are concrete states of affairs, individual events, or conditions, and it seems to be their individual components that provoke emotionally based motivations. It is the imagined pain, not its properties or some true statements about it, that repels, and it is the image of pain-free mobility, not its utility or benefit, that attracts in this almost automatic fashion. As this example suggests, there is more to the purpose than the goal as a concrete state of affairs. The benefit is the intelligible and assessable aspect of a purpose. It is not the pain-free mobility as projected imaginatively and so emotionally attractive, but the features of this condition that make it worth pursuing: its contribution to being healthy and any further benefits facilitated by this condition. Benefits are properties, features, or relationships of the objects of the fundamental interests motivating human actions. These properties are not limited to a given individual state of affairs, but can be instantiated in others as well. They are intelligible, not irreducible particulars.7 The benefits motivating actions are anticipated in practical think7. The scholastic distinction between sensory appetite and volition marks the difference I am after here. Acts of sensory appetite, which medieval philosophers called the passions of the soul, and which we might call feelings or emotions in English, were understood to be the responses by animals, including humans, to sensory information, both internal and external, relevant to immediate prospects of vital interest. Volitions were understood as motivational responses to rational judgments assessing the value of objects of interest by focusing on the features that make them good. Although I believe that the distinction between sensory appetite and volition is important for the analysis of human action, this distinction is not widely made in modern philosophy and does not mark the precise difference between noncognitivists such as Mackie and cognitivists such as myself. Mackie holds that appetite—desire—establishes value (not distinguishing sensory from rational appetite, but assuming that the objects of these acts are not sources of value). I hold that cognitions grasp value and that these are the judgments to which volitions, not acts of sensory appetite, respond.

54  A rt icu l atin g a T he ory o f Natural Law ing, not reported as actually obtaining. Until realized in acting or brought about by actions, they are future benefits, and that is how they function in the deliberation and choice of the actions: they motivate, as anticipated, future benefits. Since the anticipation of benefits motivates the actions of the people who make such judgements, the future to which they refer as beneficial includes their own benefits. The idea is that we can understand as interesting, worth pursuing, or good some possible futures of ourselves to which we can contribute by acting. In effect, we can distinguish from among the set of possible futures for ourselves some that, upon reflection, are worth acting for, and this judgment motivates actions believed to further that future. Since judgments of this kind are basic, it is impossible to express them in more fundamental explanatory terms. Still, the futures we have reason to pursue seem to be those in which potentialities are fulfilled and not thwarted, in which the beings we are and the lives we lead, individually and in community with others, unfold toward more life, more being, more potentiality and not less. In this sense, judgments about the good make reference not simply to any future possibility, but to those that perfect or fulfill. In this limited sense, a cognitivist conception of benefits must be “perfectionist.” For example, we can project a future in which we are in pain, in poor health, and in which we die. We can also project a future free of pain, full of health, and of further life. Aside from our variable feelings about such future states of affairs (and the actions needed to realize them) we ordinarily judge the former a bad future that we work to avoid and the latter a future whose realization justifies action for its sake. The good relevant to human agency—benefits for oneself and others—has a future reference: it sorts out possible futures into those in which a person has reason to be interested and those a person has reason to avoid or prevent. Because of their future reference, and because they are prescriptive statements, the evaluations of benefits are not factual or descriptive; they point to certain possibilities as good. For this reason, accounts of the good in which the very idea of the good is held to have a factual sense and reference are untenable, and so too are noncognitivist demands for a kind of objectivity appropriate in empirical description and explanation. A principle for sorting futures into desirable and undesirable need not be regarded as part of the furniture of the universe— an existent entity that acquires objectivity by existing and at the same

Re a so ns fo r Acti on   55 time inexplicably motivates and guides action.8 So what Mackie and some of his naturalist or Platonist opponents commonly accept as the requirement of objectivity is inappropriate in this context. Furthermore, the good functions in practical reasoning much as basic rules of logic do in thinking. But we do not look for an item in the best list of the kinds of things that exist to ground the principle of noncontradiction or modus ponens. Finally, the term “benefit” is not simply equivocal when applied to benefits intended in action and those actually realized by action. The details of states of affairs brought about by action will never be quite the same as those imagined and conceptualized in deliberation. But the health that is sought and the health that is sometimes achieved by human action are benefits of the same kind. One can judge not only that a benefit is a good to be realized by action but that it is a good actually realized. Noncognitivists will insist at this point that, although being healthy is a property, this property’s contributing to the goodness of the person who is healthy means no more than that we approve of states of affairs in which people have it. But this is no more than restating noncognitivist dogma. The category of the good, of benefits, is irreducible if deliberation and choice are essential to moral life. The preceding sketch of a cognitivist account of the motives of human actions presents an account of reasons for action that is as internalist as Williams’s account; my account addresses reasons for action from the perspective of the person who makes decisions and has reasons—reasons he or she sees as motivating—for doing so. The current philosophical discussion of reasons for action that began with Williams’s formulation of the issues has been concerned primarily with the implications of the acceptance of a thoroughly internalist account that has been taken to be too subjectivist and noncognitivist to allow for criticism of a person’s reasons for action or for linking moral requirements to motivation.9 Williams’s idea that real motivations must be part of the “subjective motivational set” of the person moved by them is readily understood in a noncognitivist way.10 But internalism does 8. This is my response to Mackie’s argument that objectivism implies the existence of such “queer” entities. See Mackie, Ethics, 38–42. 9. See T. M. Scanlon, What We Owe to Each Other (Cambridge, Mass.: Harvard University Press, 2000), 363–73, for a useful, recent statement of these concerns. 10. Williams, “Internal and External Reasons,” 102. Scanlon, What We Owe to Each Other, 367, suggests that Williams’s noncognitivism may be half-hearted. Scanlon takes this to count against Williams’s internalism.

56  A rt i cu l atin g a T he ory o f Natural Law not imply noncognitivism because the benefits whose anticipation motivates action can be rationally assessed. In short, although what moves a person has a subjective hold on him or her, it is not therefore a subjective valuing that escapes rational assessment. So far, the cognitivism being defended here is compatible with some forms of relativism about values. The argument shows only that desiring and other forms of valuing do not create value, but that such subjective acts sometimes are responsive to reflective judgments. It is possible that benefits are variable, that in some human conditions or cultures some things are benefits that are not so in other conditions or cultures, and vice versa. Nevertheless, benefits, as noted previously, are intelligible; they provide the grounds for many actions of diverse people and ground the value of interests motivating many different sorts of actions. They are part of the basis for common action and essential for our making sense out of other people’s behavior. Moreover, the limitations of various conditions of human life or various cultural contexts do not seem to provide limits on the intelligibility of benefits. Simpler societies may not have had the same understanding of medicine and health care as we do. As a result, their actual purposes in dealing with, maintaining, and restoring health were quite different than ours; for example, some debilities that we can overcome were seen by them as an inevitable part of life. Still, the benefit of health that we and they pursue seems common—a human good that underlies all the goals in all the subjective motivational sets of those pursuing health. There are other benefits unifying and making intelligible the diverse purposes people pursue. Knowing the truth in inquiry or doing something with or for a friend for friendship’s sake are examples. It seems that there is a short list of such intrinsic goods, and that these goods play some role in the lives of most human beings.11 For this reason, I and others call them basic human goods. These goods are the basic categories of intelligible benefit that mark out some future possibilities as interesting and worth pursuing. The existence of a set of basic rational motivations shared with other humans is not unexpected, since (1) these benefits are intelligible and therefore not limited in principle to a person or named group or to the concrete goals that further or instantiate them; and (2) humans 11. See Grisez, Boyle, and Finnis, “Practical Principles,” 106–8, for a listing of basic goods.

Re a so ns fo r Acti on   57 share a common nature, and the possibilities judged good are connected in a multitude of ways to that nature; in particular the basic human goods correspond, as Aquinas pointed out, to the basic elements of human nature.12 The basic human goods are included in but are not reducible to elements of what Williams has called a person’s “subjective motivational set.” They are human goods and so are presumptively included in the motivational sets of every person who understands them. There are exceptions: some people may be blind to the goodness of excellent performance or knowledge, or, influenced by false ideology, they may be interested in life and health only as instrumental to other goods, or, convinced that there is no divine principle of reality, may be incapable of religious practice. But even these people generally understand the goods other people with differing but more common beliefs and inclinations pursue. Thus, the reality of human goods does not justify the sort of browbeating that Williams rightly regards as an abuse of practical discourse easily endorsed by those who accept external reasons for action.13 Rather, this reality indicates commonalities underlying our everyday evaluations. These commonalities, recognized by common judgments about intelligible benefits, are necessary conditions for common action. Since the desires of people needing to cooperate vary in several ways throughout the completion of a common project, and since the mere fact that one person desires some outcome is hardly an invitation for the cooperation of others, a more stable and mutually understandable basis for cooperation is required. Moreover, the possibilities for criticism of one’s motivations and for correction of mistaken judgment about the good are created by the reality of common action and of mutual understanding of action made possible by the human goods. The intelligibility of the benefits whose anticipation motivates action based on deliberation and choice allows them to become part of the common world of language, culture, and conversation. Thus, human goods are not beyond discussion and criticism; their existence as parts of most persons’ motivational sets does not render them subjective in ways that preclude this. The cognitive character of judgments about benefits creates a mor12. See ST I-II, q. 94, a. 2. Aquinas says here that reason naturally apprehends as good all those things to which humans have a natural inclination. 13. Williams, “Internal and External Reasons,” 107–11.

58  A rt icu l atin g a T he ory o f Natural Law ally relevant kind of objectivity underlying the motivation of reasons for action. The rational demands practical cognitions make on agents are different in kind from the urgent but subjective demands desires make. There is nothing normative about a person’s simply wanting or desiring something. There can be urgency and causal power but nothing corresponding to “to be pursued,” “is good,” “is worth pursuing,” or “is choiceworthy.” The desire is strictly an exercise of a person’s subjectivity. Wants and desires are subjective in straightforward senses of that word. They are part of that which, within thinking and choosing selves, is confronted by what in various ways is over and against such selves: logic; the facts; agreements; other people; and the commitments and character that define part but not all of the selves of all but the best integrated human beings. Cognitional motivation is not subjective in this way, but can stand against the subjective self by making normative demands on it. The options supported by judgments of value make a kind of demand on the acting person—not necessarily the unconditional obligation of morality, but surely something more than the urgency of desire. They make the peculiarly rational demand that this good is worth pursuing and that actions for its sake are, so far forth, to be done. This rational demand stands out when it conflicts with resisting desire, a resistance that obtains outside narrowly moral contexts. Goods understood practically as the intelligible benefits underlying our interest in options challenge the self as something objective, even though the objectivity is that of the beckoning of a future possible self—for example, the beckoning of the dedicated scholar one aspires to be or the beckoning of the courageous friend one could be when circumstances require laying down one’s life for another. But one might wonder if another, more important form of objectivity is missing from this account: the epistemic objectivity through which mistakes can be recognized and correct judgments confidently distinguished from incorrect judgments. One might wonder what there is to criticize in judgments about the objects of basic interests. For as I have already noted, reasons for action, and especially their motivationally basic elements, are not descriptive but prescriptive. They are not true or false in the manner of descriptive propositions. Nor are these cognitions capable of the specific form of truth that applies to moral judgments: the latter are true just in case all that is morally relevant in the proposed action they evaluate has been fully and correctly considered and are

Re a so ns fo r Acti on   59 otherwise false. But here we are dealing not with moral judgments, or even with the full reason for a human action, but only with the most fundamental motivational ground of the action—namely, with practical principles. These do not seem to correspond to anything, but to be part of that to which reasonable practical judgments must correspond. Nevertheless, mistakes about basic human goods are possible and can be discovered. Discussion and reflection can expose the mistakes in such assessments. This happens in two ways. It is possible to seek as good only a fragment of the good when its fuller reality is available: for example, seeking a temporary palliative when real improvement in health is available, but only by distasteful or difficult actions. Similarly, in the case of the reflexive goods, in which we seek harmony among the elements of the self, among ourselves and others, and between ourselves and God, it is possible to seek harmonies that do not respect reality but suit our wishes. In such cases, it is the assessments of the goods themselves that are misguided. The goals instantiating such distortions of the good can be correctly judged to further them; the mistake is in the assessment of the benefit. The goal of satisfying desire, whether to get pleasure or to reduce tension or for other similar purposes, can emerge in deliberation as an option for choice, even when one recognizes that getting pleasure or reducing tension is not a real benefit. If noncognitivism were correct and deliberation were reduced to eliciting or bringing to bear desires that might resolve a conflict of desires, desire satisfaction would not function as a quasi-benefit provided by an option for choice but would be a competing desire within the conflict. But in those cases in which there is deliberation and morally significant choice, one can regard some option as good just because it promises to satisfy desire. In this case the ultimate reason for desire satisfaction is treated as a quasi­-benefit, even while one recognizes its lack of genuine benefit and its contrariety to some real benefits. Desire satisfaction and its purposes share enough similarities and relationships with intelligible benefits that they can be treated as quasi-benefits. A final thought. Plainly, more is needed than the theory of the good, at least as so far developed here, to generate specifically moral evaluations of proposed actions. But the good as explained here, as the intelligible grounds for the appeal of options understood from the first-person, internal perspective, is sufficient for a theory of the good that grounds an understanding of practical reason on which moral principles can be

60  A rt icu l atin g a T he ory o f Natural Law founded. To find moral norms one need not overcome or transform one’s motivational set into an external, deontological reason for acting. For that set includes not simply desires and emotionally appealing goals but rationally based interests, and their integral directiveness provides a basis for rational scrutiny of every element of a person’s motivational set, and that scrutiny, fully carried out, is morality.

3 / Free Choice, Incomparably Valuable Options, and Incommensurable Categories of Good

Two theses about the incommensurability of human goods are part of the foundation of the account of practical reason created by Germain Grisez and developed collaboratively by him and his coauthors since the mid-1960s. Those theses are (1) that the different categories of basic human goods are incommensurable; and (2) that options for free choice are not commensurable in terms of what makes them appealing. Recently, Grisez has restated these theses and drawn attention to their difference and its importance for understanding his work.1 These theses are obviously important claims about practical reason, and they are central to several characteristic themes of Grisez’s and our common work in moral theory and applied ethics, notably to the anti-consequentialist polemic and to the limitation of the role of alleged pre-moral hierarchies of value. In addition, they set for us the task of articulating practical reason in a way that systematically avoids consequentialist calculation and all other impossible value rankings as ways of resolving moral questions. In this essay, I seek to make a contribution to the discussion of Grisez’s recent essay on this topic by delineating a bit more than he did there the content and relationship between these theses about incommensurability and the connection between free choice and the incommensurability of options for action. I will begin by saying a few things about the puzzling vocabulary of comparability and commensurability and their opposites. In ordinary 1. See Germain Grisez, “Natural Law, God, Religion, and Human Fulfillment,” American Journal of Jurisprudence 46, no. 1 (2001): 3, 14–15.

61

62  A rt i cu l at in g a T he ory o f Natural Law language, comparability is a general and perhaps vague term: any two things can be compared by inquiring whether or not they have anything whatsoever in common. Even if the result of the inquiry is negative, the items have been compared and are so far forth comparable. Since comparability often is commonly understood in this general and imprecise way, I will use, as Grisez does, the vocabulary of commensurability and incommensurability. Two or more things are commensurable if there exists a common measure that can be applied to all of them. This suggests that commensurability is a precise form of comparability: the things compared by commensurating them are related to one another by a common measure that applies to all of them. This in turn requires that commensurable items must share some common feature in the light of which common measurement is possible—for example, size, brightness, cost, elegance, or perhaps even desirability. That feature, in turn, must be capable of being instantiated more or less fully: if there is to be commensuration, the common feature must be instantiated either equally or more or less in the items commensurated. If there is no such feature, or if the feature cannot be instantiated in ways that are equal in the items or more in one than another, then the items are incommensurable. Commensuration of things, therefore, is necessarily, in some respect or other, the respect pointed to by the feature in terms of which the commensuration is to be made. It follows that items incommensurable in some respects may be commensurable in others and vice versa. This notion of incommensurability is, plainly, a stronger notion than the mathematical idea according to which measurable things that cannot be exactly measured in the same unit, such as the length of the hypotenuse of a right triangle and length of its other sides, are incommensurable. These are distinct ideas, and when I (and I believe Grisez, as well) use the word “incommensurability,” I mean it in the former sense.2 2. There are no widely accepted definitions of these ideas in the literature on comparing values. See Ruth Chang, “Introduction,” in Incommensurability, Incomparability, and Practical Reason, ed. Ruth Chang (Cambridge, Mass.: Harvard University Press, 1997), 1–7, for a set of definitional suggestions quite different from mine; see also Peter Simpson, “Grisez on Aristotle and Human Goods,” American Journal of Jurisprudence 46, no. 1 (2001): 81–86. Simpson accepts a kind of incommensurability of goods but rejects their incomparability; he uses the difference between these as a basis for criticizing Grisez’s rejection of a natural hierarchy of basic goods.

Fr e e Cho i c e , C at e g o r i es of Good   63

The Incommensurability of Basic Human Goods The benefits or goods that give people ultimate reason for action are not all of a single kind or category. That categorial diversity implies incommensurability of instances of the different categories of good. A reason for action includes a person’s belief about the capacity of some performance he or she can carry out to realize some rationally anticipated advantage or benefit or to satisfy some desire whose satisfaction is treated as beneficial.3 The distinction among the motivational sources of reasons for action between realizing advantage or benefit and satisfying desire presupposes a prior distinction between rational motivations based on reflective judgment and emotional motivations based on prerational and sometimes pre-reflective assessments. Emotional motivations function widely within human behavior: they operate in nondeliberate and pre-reflective behavior, and they play important roles in all deliberate action. Satisfying desire differs from the emotional motivation involved in all deliberate action when it is treated by an acting person as an advantage or quasi-benefit underlying a reason for action. Reasons for action based on desire-satisfaction are importantly different from those based on the rational anticipation of benefit. One can deliberately pursue desire-satisfaction knowing that it does one no good, or even that it is harmful. In so doing, one treats as advantageous or beneficial what one knows is not so. The goods ultimately sought in the pursuit of desire-satisfaction can, therefore, be called “apparent goods.” By contrast, rationally anticipated benefits are judged by those who seek them to be good, worth desiring and realizing. Because such advantages and benefits are recognized in reflective judgments as good, and because they can be communicated to others as worthy of common pursuit, they are intelligible goods. Goods intelligible in this way comprise both benefits and instrumental advantages, utilities, or empowerments. Plainly, the motivation of action by benefits anticipated or desires to be satisfied does not in many cases involve an expectation of immediate realization of the benefits or satisfaction of the desires. This happens whenever one acts to contribute to a goal one seeks as a means to realizing some further benefit or to contributing to a future satisfaction of desire. Such goals 3. See chapter 2, “Reasons for Action: Evaluative Cognitions That Underlie Motivations,” for an account of reasons for action.

64  A rt icu l atin g a T he ory o f Natural Law are often purposes that are intelligibly but not ultimately desirable— for example, a person’s keeping a high-paying job or a community’s maintenance of commercial markets. Instantiating such goods empowers people to realize benefits, but it does not itself provide benefit. Consequently, underlying every deliberate action there is some benefit sought, or satisfaction desired, for its own sake and not simply as a means or empowerment to some other benefit or satisfaction. Such benefits and satisfactions are, therefore, motivationally basic. Motivationally basic benefits, as intelligible, are understood to be instances of kinds of benefit that ground indefinitely many possible actions for many possible beneficiaries, not simply the acting person himself or herself. There is no ground for limiting the scope of possible beneficiaries of the goods a person finds intelligible except to human beings as such, to all those who can rationally participate in these goods. So, the kinds of benefits are human goods, and since benefits are ultimate grounds for reasons of action, they are basic human goods. Apparent goods may share a common basis for whatever desirability they may come to have—perhaps, for example, the pleasantness of satisfying desire. If satisfying various desires has similar enough pleasantness, and if an acting person can determine that the pleasantness promised by an apparent good is greater than or equal to that of other apparent goods, then they would be commensurable in respect to this feature. But since apparent goods are not intelligibly good but only satisfy desire, they are not commensurable in goodness to basic human goods. Basic human goods are diverse in more fundamental ways than are apparent goods. When we reflect on the intelligibility of the appeal of the benefits we seek in acting individually and cooperatively, we can see that they fall into a small set of categories. Grisez and his collaborators present a short list, inspired by Aquinas’s list in the Summa Theologiae: life and health; knowledge; skillful performance; self-integration; community with others; religion; and marriage.4 Benefits in each of these categories can and regularly do make their appeal to people as the benefits underlying their reasons for action—that is, as the basic or ultimate rational interests they have. 4. See Grisez, Joseph Boyle, and John Finnis, “Practical Principles, Moral Truth, and Ultimate Ends, American Journal of Jurisprudence 32, no. 1 (1987): 106–8, for a fuller statement of this list, which, however, omits marriage, which we then thought reducible to other goods. Aquinas’s list is found in ST I-II, q. 94, a. 2.

Fr e e Cho i c e , C at e g o r i es of Good   65 None of these interests is derived from any or all of the others, although plainly it is possible to seek instances of any of them as means to realizing instances of others. One can seek knowledge for its utility in realizing other benefits; people can pursue health as a condition for doing excellent work; and so on. But instances of staying alive and remaining healthy can themselves be pursued as benefits, as can inquiry aimed just at knowing reality. The character of these goods as beneficial is underived and irreducible; it does not emerge from their utility to other goods. Therefore, the intelligible benefits that fall into the categories marked by the basic human goods are principles of practical reason, independent starting points that mark the foundations of our intelligible interests. The status of the human goods as first principles within practical reason precludes their commensurability in one important respect— namely, insofar as they are the foundations of rational motivation (in other words, just as basic human goods). If some action is simply a better action than some other because the good motivating it is a higher good than the good motivating the other, then the latter good cannot be strictly a principle that points to a distinctive benefit or form of good. The explanation is as follows: if one good is better than another, one possible ground for the commensuration that underlies the ranking is that the lesser good is simply a means to the greater good. Plainly, the means is not a principle of rational action. For example, if knowledge or friendship is better than life and health because the latter is a means to one of the former, then life and health are not principles of practical reason. A more common basis for this commensuration is the existence of some measure of goodness that is better realized in instances of one good than in instances of another. On this way of thinking of the comparison, it is not precisely the intellectual, social, or biological benefit respectively of knowing, having friends, or being alive and healthy that makes each of these rationally desirable, but some further intelligibility of good that they share more or less fully or perfectly. It is that intelligibility of goodness or rational desirability, and not the distinct desirability of the various goods, that becomes the principle motivating rational action. Therefore, the diversity of basic human goods as practical principles insures incommensurability in respect of their goodness. This incommensurability implies that practical reason itself does not provide a hierarchy of inherent goodness among the basic human goods that is based just on the goodness found in the basic human goods. Prac-

66  A rt icu l atin g a T he ory o f Natural Law tical reason can set rational priorities among basic human goods, but only by making use of its full moral resources. These resources are based upon the integral directiveness of the basic human goods, but, because of the incommensurability of the goods, this integral directiveness cannot be greater rational desirability. Therefore, as Grisez frequently emphasizes, there are hierarchies of basic goods; the reflexive goods have clear moral priority to the substantive goods; and, in particular, as Grisez labors to demonstrate in “Natural Law, God, Religion, and Human Fulfillment,” the good of religion is a nonoptional basis for organizing a morally good life. In short, sound moral reflection establishes hierarchies of goods but presupposes the basic human goods functioning as irreducibly diverse principles of practical reasoning. Peter Simpson argues that the inference from the incommensurability of basic human goods to the rejection of a hierarchy of basic human goods is a mistake. He holds that there is conceptual space between accepting the incommensurability of basic human goods, some version of which he seems to accept, and the rejection of a hierarchy of goods. That space opens up because of the difference he maintains between commensurability and comparability. He gives examples of goods he judges incommensurable and then explains their incommensurability as arising from the fact that they serve different functions or do different jobs: Goods are incommensurable because different goods are good with respect to different jobs or functions. The good of pipe playing is good with respect to playing pipes; the good of speed with respect to running and winning races; the good of political virtue is good with respect to ruling. These goods are clearly incommensurable in the sense that no amount of speed or political virtue is going to make up for a deficiency in musical skill when it comes to playing the pipes. Only skill in pipe playing is relevant here and only people competing on the basis of such skill can sensibly be measured against one another as regards better or worse. The other goods are simply irrelevant. Different goods, therefore, are incommensurable in that they are relevant for different jobs, and a good that counts for doing one job does not thereby count for doing some other and completely different job. But this does not mean that one cannot say, for instance, that one of these incommensurable goods is better than another. For one can indeed say this by comparing, not how a good relevant for one job is better or worse with respect to that job than a good relevant for a different job, but how the different jobs compare to each other.5 5. Simpson, “Grisez on Aristotle and Human Goods,” 83.

Fr e e Cho i c e , C at e go r i es of G ood   67 The kind of incommensurability Simpson points to here surely obtains, and it does not preclude commensurability among goods in terms of their rational desirability. But this incommensurability is not what Grisez affirms in respect to basic human goods. The goods Simpson discusses are not basic human goods, but skills and other character traits needed for certain tasks. Basic human goods are not skills or jobs, which are for the sake of further purposes, but rather ultimate grounds for reasons for action. They are what is instantiated in actions realizing the final rational point of the jobs and functions Simpson discusses— for example, the excellent performance made possible by skill and the just decisions of a virtuous politician. Consequently, since the basic human goods are not defined by relationships to further jobs and tasks, the incommensurability Simpson allows cannot be that which Grisez holds concerning the basic human goods. It is clear that the incommensurability of goods that Grisez affirms is the nonexistence of a measure of goodness—the property or intelligibility of the goods in virtue of which they motivate rationally—applicable to diverse basic human goods. The rejection of a common measure of the goodness of basic human goods is plainly different than the claim that measuring excellence in one job by the requirements of another is irrelevant. Indeed, the incommensurability Grisez affirms is a rejection of precisely the measure that Simpson accepts in affirming the comparability of goods. In short, since the incommensurability Simpson allows is not applicable to basic human goods and the comparability he shows compatible with it is precisely the commensurability Grisez denies, Simpson does not succeed in showing that Grisez reasons incorrectly from the incommensurability of basic human goods to the denial of a pre-moral hierarchy among them. Perhaps Simpson has other reasons for thinking that the recognition of the incommensurability of basic human goods does not exclude hierarchies among them. He hints at such an argument: some basic human goods (e.g., life) can be pursued as means to other goods and also for their own sake. The fact that such goods are capable of being pursued for the sake of higher goods in no way undermines their status as basic, since they can also be pursued for their own sake.6 6. See Simpson, “Grisez on Aristotle,” 85. I am constructing this argument from the following sentence: “Life or survival, for instance, is a good to be pursued just as such even if it is also a good to be pursued for the sake of other and higher goods, namely the goods of the soul.”

68  A rt icu l atin g a T he ory o f Natural Law The response is that judging other goods higher than life does qualify the irreducible goodness of life. It does not imply that life will have only instrumental value, but it does imply that what is good about promoting life cannot be simply that it is promoting life. There must be some further intelligible goodness—contributing to human happiness, perhaps—that makes it possible that acting for the sake of life is desirable as a means to realizing an ultimate good, even though that good is less good than some other.

The Incommensurability of Options for Action In this section, I will clarify the claim that options for action are incommensurable in value. In the next section, I will give reasons for thinking this claim true when the selection of one option is a free choice. I begin with the idea of options for action. When a person has reason to do something and thinks of nothing opposing that action, for example, the difficulty of doing it or the existence of other reasons making contrary demands, the person will act spontaneously and straightaway on the basis of that reason. A weaker conception of a reason for action renders reasons too contingently connected with willing and action, since it would allow that a person could have a reason for an action and remain unmotivated to do it, even in the face of no opposing motivations.7 When something does motivationally oppose the prospective action, one faces a conflict of desires that blocks spontaneous action. From such a conflict of desire, options for action—that is, alternative possible performances that one can do and finds reason to do—ordinarily emerge. An option for action, on this conception, has four elements: (1) a performance (including doing nothing at all) a person believes he or she can do; (2) a reason for doing it—that is, a belief that carrying out that performance will contribute to the satisfaction of some desire or interest the person has; (3) an awareness of other effects of the performance that the person may judge good, bad, or possibly indifferent; and (4) at least one alternative option. Since the motivational block precludes the agent’s doing both actions, a selection (often a choice) of one alternative is necessary if the 7. I will say more in defense of this claim in the section “Free Choice and Incomparable Option.”

Fr e e Cho i c e , C at e go r i es of G ood   69 agent is to remove the block and proceed to act.8 The alternative to selection is either the paralysis of action or the removal of the block to action by factors outside the person’s agency. I will say more about the ideas of “selecting” and “choosing” later. An option, therefore, is a possible state of affairs projected in deliberation and actualized by selection or choice. The states of affairs comprising options include properties relevant to their rational desirability. Those properties cause desirability because of their relationship to basic human goods (and sometimes to apparent goods), which can be promoted, instantiated, or harmed by the performances involved in options and by their side effects. I turn now to commensurating options for action in respect to their value. A person facing a motivationally overdetermined situation blocking action will sometimes deliberate about the options among which he or she must select. That deliberation certainly involves comparisons of several kinds among the options, and in making such comparisons the person will observe or try to discover various kinds of commensurability. For example, options can be morally comparable by being measurable by the same set of moral principles; a definite goal in which a person is interested can provide a measure for ordering options; a person’s established preferences or commitments can provide such a measure. The deliberative undertaking of comparisons among options, including seeking these and other kinds of commensurability, does not guarantee that common measures are there to be discovered. The result of the effort may be that the options are not commensurable in the respect considered. One of the respects in which people disagree about whether options for action are or are not commensurable is important for the theory of practical reason—namely, in respect to their overall desirability, intelligible appeal, or value. This is what Grisez refers to when he claims that prospective benefits and disadvantages “considered by themselves and precisely as such” are incommensurable, since what is proper and specific to options for action is that they are desirable, that they are what we have reason to do, and that commensurating them as such is comparing them in this respect, to determine what is most desirable—what there is the most reason to do. Other measures of options are based on considerations distinct from this essential motivating aspect. 8. For more on the ideas in this paragraph, see chapter 2, “Reasons for Action: Evaluative Cognitions That Underlie Motivations.”

70  A rt i cu l atin g a T he ory o f Natural Law The word “desirability” has an advantage over “value” here because it better captures the agent’s first-person perspective and because “value” can suggest something specifically moral. “Intelligible appeal” signifies the appeal or desirability generated by judgments of goodness underlying reasons for action; in this context, the expression excludes only brute urges and similarly unrationalized desires, not apparent goods. I use this terminology interchangeably with these cautions understood. The respect in which options are or are not commensurable now under consideration is the same respect as that in which Grisez holds that basic human goods are incommensurable: what is proper to basic human goods and to options is that they provide motivation for rational action—but at different levels within human motivation. The former are the most general categories of benefit in which people have rational interests; the latter are possible instantiations, or contributions to the causing of instantiations, of these benefits, along with other effects, positive or negative, that action may have on instances of one or another human benefit. The attempt to commensurate the value of options, however, is more complicated than in the case of commensurating basic human goods—if only because more factors must be included within the overall measurement. First, we must commensurate the value of the elements in an option; there is need for common measurement of the value of those features that combine to give us reason to carry out the performance—not only the main reason for action but anything else about undertaking the performance that one regards as desirable, as well as all those negative features that motivate one to refrain from the action or to do something else instead. Having done this, we compare the option’s desirability-making features and the desirability-defeating features to determine its net desirability. Then we do this for every other option having features not already completely considered in evaluating the net value of other options. Finally, we seek to commensurate the comparative desirability of the options. That option that is most desirable, considering everything about the set of options that contributes to the desirability of each of them, is better than the other options and the best of the set—simply or overall the best. An option is not best in this sense unless there is something desirable in it that is comparable to some element of desirability in any other option and, when its desirability-making features are summed, better

Fr e e Cho i c e , C at e go r i es of Good   71 than the sum of all such features in each other option. If an option has an element of desirability that escapes this comparison, there is a reason for choosing that option that escapes the judgment that another is simply and overall better, and so provides an undefeated reason for preferring the otherwise worse option. Thus, if one judges that it would be morally or prudentially or in some other respect better to prefer one option, but if one nevertheless recognizes the continuing motivational appeal of a feature not included in the overall comparison, then that judgment is not based on an overall comparison and cannot pretend to be of what is simply best, in the sense of simply most desirable. Options will be incommensurable in respect to their overall desirability whenever overall comparisons of desirability cannot successfully be carried out—when one cannot determine that one option is better than others or that they are equal in desirability. That will happen whenever there is a feature relevant to the desirability that escapes the overall comparison required to judge that one option is simply best among the set. The relationships among the basic human goods, the apparent goods of desire-satisfaction, and the good-making features of options indicate one ground for the existence of this kind of incommensurability. The foundations of the good-making features of options are the basic human goods and apparent goods. The features of states of affairs that contribute to or detract from their desirability do so because these features relate the states of affairs to these goods. If these features of an option or within a set of options a person faces fall within diverse categories of benefit—that is, within several of the basic human goods— then the elements of value in an option or between options will be incommensurable. Similarly, if these features fall within a category of benefit and an apparent good, the elements will be incommensurable. In both kinds of case, there will be no covering value common to the good-making features in play, and that is the needed common measure. There is another ground for the incommensurability of options— namely, the fact that instances of the same good may instantiate it in ways that are not commensurable. The reasons for action that a human good motivationally underlies give reason for actions and goals so diverse that the generic similarity of the benefits is not sufficient for comparison. For example, the rational desirability of a career as a mathematician may well be incommensurable with a career as a historian for a person making a career choice between them on the basis of a prior

72  A rt icu l at in g a T he ory o f Natural Law commitment to knowledge for its own sake. Similarly, a family’s deliberation about the venue for a family vacation, taken for the sake of family community and healthy relaxation, discovers no common measure for the instantiation of these goods in one location rather than another. Moreover, the plurality of factors relevant to the overall assessment of the value of options is sufficiently complicated that, even if only one good were at stake, comparing all of them in terms of value would be impossible. For example, heath care regimens, such as hormone replacement therapy, promise some patients considerable health benefits. The risks of such regimens are also considerable. Someone choosing such a regimen can recognize the lack of a common measure for comparing the health benefits sought and the health risks accepted. These considerations do not show that options for action are at least sometimes commensurable. They indicate grounds for the incommensurability of some options and suggest that the idea is a coherent possibility and not instead a breakdown of a person’s practical reason. The literature on value incommensurability contains a wide range of conflicting views about whether options for action are incommensurable in value, and, if so, about how widespread the phenomenon is.9 In the next section I will enter into that conversation.

Free Choice and Incomparable Option Grisez and his collaborators propose a general argument for the existence of significant and widespread value incommensurability among options for action. We argue that free choice implies incommensurability among options for action—that is, we argue that a choice cannot be free unless the options among which a person chooses are incommensurable in rational desirability. As Grisez says, in discussing how children begin to deliberate and choose: Children do not deliberate until they begin to understand such intelligible, basic goods. That is because prospective instances of those goods (and of evils opposed to them) ground the reasons for (or against) choosing each alternative that is considered in deliberation. In comparing these reasons, it often becomes clear that the prospective benefits and disadvantages, considered by themselves and precisely as such, are not intelligibly commensurable. [foot9. The essays collected in Chang, ed., Incommensurability, Incomparability, and Practical Reason, exhibit both the extent of the diversity of opinion on this matter and the difficulty of resolving the disagreements.

Fr e e Cho i c e , C at e g o r i es of G ood   73 note omitted] In such cases, there is both room and need for choice. Freedom awakens, and children begin choosing.10

In this section, I will explicate the ideas in this paragraph and develop the argument that, in cases of incommensurable options, there is “room and need” for choice. I understand this to mean, at least, that when humans make free choices, they choose between options incommensurable in desirability, so that free choice implies incommensurable options. Grisez’s words here suggest that incommensurable options are more than a necessary condition for free choice. I think that there is another implication here, going in the other direction—namely, that if there is to be a volitional response to incommensurable options, it must be a free choice. Consequently, incommensurable options are necessary for free choices but not sufficient, unless we suppose that humans are capable of a rationally appetitive response to them. The necessary connection is my focus. This connection requires some clarification of the concept of free choice and of closely related ideas. I understand a choice to be a kind of selection and selection to be an appetitive act. By “appetitive act,” I mean roughly what the Scholastics meant—namely, the causal mechanism that connects a person’s or an animal’s judgment or perception to an action that person or animal can undertake in response to the judgment or perception. The action in question can be any bodily motion or imaginative or intellectual activity that the person can do. Thus, for example, such things as desires, wanting, and intentions and other volitions are appetitive acts: they connect actions to prior judgments or perceptions. A selection is a specific kind of appetitive act—namely, one that is called for if a person is to break by his or her own agency the motivational block to action caused by a conflict of desires. The agent’s selecting is the connection between his or her beginning to do one of the blocked actions and a judgment or perception that doing that action is in some way appropriate. Choices are a kind of selection in which a person responds appetitively to specifically rational, propositional cognition—to the judgment that an option promises good, or at least the satisfaction of desire. Consequently, a choice is a kind of volition. For we call “volitions” the acts of rational appetite—that is, a person’s appetitive response to the intel10. Grisez, “Natural Law, God, Religion, and Human Fulfillment,” 5.

74  A rt icu l at in g a T he ory o f Natural Law ligible features of what his or her judgments present. On this account, a person makes a choice when he or she makes a selection, and it is responsive to the intelligible features revealed in the deliberation preceding the selection. I have, perhaps untraditionally, distinguished between selection and choice to underline a fact of common experience: going for one option rather than others in a situation in which action is blocked because of conflict of desires can be broken in several ways. Some of these are not by any exercise of a person’s agency, as when powerful desire simply overpowers a person or mental incapacity of one kind or another removes the motivation for some action. Being overwhelmed with fear so great that it removes all possible rational reflection would be an example of a block to action being overcome. By contrast, sometimes such motivational impasses are broken by exercises of agency that do not seem to be choices, if choices are defined as volitions. When a person settles a trivial matter by going with a whim, he or she appears to be acting, not pushed by outside forces or by a breakdown of capacity; there is selection but not necessarily choice. Picking a favorite item from a menu often seems to be a selection in this case; frequently there is no intelligible feature of the item picked that settles the selection but only a discernment of one’s inclinations. Of course, choices are possible here: for example, to pick one’s favorite dish rather than following doctor’s orders. More generally, animals and small children appear to experience the blocking of action by conflicting desires, and they appear to overcome this blocking by their own initiative, not by factors outside their agency. Yet these selections are not choices except in an analogous sense. The intuitive idea in our claim about the relation between free choice and the incommensurability of options for action can now be stated. Choices responding to judgments that options are equal in intelligible appeal or that one option is simply better are free only in ways compatible with their being determined by relevant judgments, but choices that respond to judgments of incommensurable desirability are significantly free. The argument for these claims supposes the traditional connections between appetite and action and between an acting person’s judgments about what is rationally appealing and his or her willing. The connection between appetite and action is that if one wants to do something, one will do it if one can and if there is nothing blocking doing it. The

Fr e e Cho i c e , C at e go r i es of Good   75 connection between judgments of desirability and willing is that if the acting person judges something good, then, so far forth he or she wills it. The effect is that the judgment of value will lead through the will to action if there is nothing blocking the action. Both claims are likely to raise objections. With respect to the tight connection between appetite and action, there seem to be counterexamples. Wishing appears to be such a counterexample, because wishing does not lead to action. But in some wishes, willing has become wishing because of a recognition of an incapacity to act, and in others, a block to action is taken by the agent as decisively defeating the connection between willing and action. For example, a person may want to do something, but be unwilling to do it because it is immoral, and yet continue to wish that the moral block to action were absent. In each case, the wish includes counterfactual reference to a situation in which the incapacity or decisive block is overcome or removed and in which the willing, no longer prevented, does lead to action. Similarly, a person’s general interests, such as one’s interest in basic human goods, are acts of appetite or willing; yet these may seem to be only very loosely connected with action. But these interests are principles, effective only by providing the rational motivation that underlies reasons for action. Until there is a reason for action, rationality has not done enough to make the principles of action fully practical. Once there is a reason for action, a person will perform the action if there is no block. Objections to the connection between judgments of desirability and willing can arise because of the multiplicity of uses of key terms, most notably “good” and “value” and their cognates. Not any judgment that something is good is conceptually related to willing it. Only the internal judgments of the acting person concerning what is rationally desirable to do have this motivational implication. There are many judgments of value or goodness that are theoretical or narrowly technical and do not motivate or guide action. An important class of such judgments are descriptive statements about the proper functioning of organisms, organizations, and institutions. Such descriptions involve judgments that some of these entities are good or valuable, even though the interests of the observer may have no connection with the realities described or are negatively affected by them. For example, what is good for predators is not always good for their prey. If we systematically set aside value judgments of these kinds and focus precisely on the judgments of rational

76  A rt icu l at in g a T he ory o f Natural Law appeal made in the first-person perspective of the acting person, it is clear that these judgments are effective for willing that leads to action except when that willing is blocked by incapacity or other contrary willing. The alternative to this is either a denial that there is rational appetite—appetite responsive to judgment—or a claim that the rationality of willing is mysteriously contingent. An objection to the conjunction of the traditional connections between willing and action and between judgment of desirability and willing arises from the fact that in their comparative form they seem to imply that there can be no akratic choices—no weak-willed choices in which a person chooses contrary to what he or she judges best. However, the abiding character of this philosophical puzzle arises precisely because of the apparent unassailability of the traditional connections that generate it. It is not clear that accounting for weakness of will requires their rejection and not instead a more careful account of this phenomenon or its logical relationship to them.11 If these traditional connections are accepted, conflict of desires looms large as what prevents judgments of desirability from leading through willing to action. Deliberation is the rational means to remove or overcome such blocks by providing a rational basis for selecting among the competing desires. This selection, responsive to the intelligible features of the options revealed in deliberation, is choice. As already noted, the comparison of options is central to deliberation. One component of that comparison is the effort to compare the overall rational desirability of the options that emerge in a conflict of desires. If that effort succeeds, either options will be discovered to be equal in value or one will be discovered to be greater and others less in value by comparison. Options equal in value are those in which all the elements relevant to their desirability are commensurable, and they are of exactly the same value. For example, two seemingly different investment plans turn out upon reflection to promise identical benefits with identical risks. One option is simply better than another when all the elements of both are commensurable and one is of greater rational desirability. 11. See Donald Davidson, “How Is Weakness of the Will Possible?,” in Essays on Actions and Events (Oxford: Oxford University Press, 1980), 21–30. My formulation of the traditional connections between willing and action and between value judgments and willing is an attempt to restate in noncomparative terms Davidson’s comparative formulation of these connections; see 22–23.

Fr e e Cho i c e , C at e g o r i es of Good   77 If that effort of comparison does not succeed, the options are incommensurable in value; such options have features relevant to their rational desirability that escape a common measure of goodness. The character of the choices responsive to value judgments of these three kinds is importantly different, particularly in respect to the kind of freedom they include. If the judgment is that the options for action among which one must select to overcome the block to action are equal in value, then, if the selection is a volition responsive to the judgment of value, it will be responsive to what the options have in common in respect to rational desirability. What distinguishes them and blocks action is revealed in deliberation to be something unconnected to their being worth doing. The selection of one option over the others, therefore, is not on the basis of relevant intelligible differences among them but is itself necessarily nonrational. Of course, selecting one option and thereby removing the block to actions is rational, since any of them is worth doing, but, ex hypothesi, the selection of the individual option picked is not. Consequently, if choice is selection responsive to deliberation, selections of this kind are properly understood as choices, even though they do not select in response to something intelligibly distinctive in the option selected. Choices of this kind are free in the sense that any appetitive act is free. Their freedom is simply the fact that it is the person’s own uncoerced judgment of equality of value that determines the person to get on with selecting one of the options identical in rational appeal. That judgment does not settle which option to select, and that aspect of the selection must be made on the basis of some nonrational consideration. But that, too, though not responsive to intelligible features distinctive of any option, can be free insofar as external factors do not coerce the person or prevent the selection from being appropriately, although nonrationally, made. If the judgment is that one of the options is simply better than the others in terms of what makes them rationally desirable, then, if the selection is a volition responsive to the judgment of value, it will be responsive to the fact that one option is rationally more desirable. Selecting among options, one of which is judged simply and overall better in terms of rational desirability, can be a response to that judgment only if it is a selection of that option. In this case, therefore, rational selection is of the better option; the connection is necessary, since a selection of

78  A rt i cu l at in g a T he ory o f Natural Law a worse option could not be responsive to deliberation. In the case at hand, the options have been commensurated by a common standard of rational desirability and one discovered to be better. Consequently, any reason for choosing an option judged less valuable would have been considered in the overall comparison that resulted in the judgment that the features making the less valuable option desirable were more fully found in the better option. This kind of selection is plainly responsive to deliberation, since it is determined by it. Consequently, it is a choice. The mechanism for breaking the block to action caused by conflicting desires is clear in these cases: the judgment that one option is simply better in rational appeal causes the other options to drop out of consideration as rationally appealing, since the better option promises more of what counts than the worse options. Paradoxically, therefore, it is the judgment of greater desirability itself that removes the motivational block; the subsequent willing needed to connect judgment to action is no longer properly an act of selecting among appealing options. Deliberation took care of that. Consequently, there are grounds for denying that willing in response to a judgment of greater value is properly a choice. Volitions of this kind are free in the way all volitions as such are free: a volition is the person’s own activity; it is not coerced by external factors; and it is properly determined by the reasoning that informs it. But plainly this volition is not free in the stronger sense in which a volition would be free just in case it did not have sufficient causes outside the agent’s own willing. The freedom of the choices responsive to judgments of equal value of options and greater value of one option is that allowed by philosophers called “compatibilists” or “soft determinists.” It might be helpful to call choices of both kinds “merely voluntary choices.”12 Choices of these kinds are free in the way all voluntary acts are free, but not in any stronger sense of freedom. I will address two obvious objections to the analysis in the preceding paragraphs. 12. This language is common terminology in debates over freedom of the will at least since the eighteenth century. Compatibilism is the view that moral responsibility and the relevant form of free will are compatible with some kinds of causal determination. Incompatibilism holds that the freedom required for moral responsibility is incompatible with causal determination. The name “soft determinism” refers to the same view as “compatibilism” but in the context of the disagreement among determinists concerning whether some forms of determinism are compatible with moral responsibility. See Free Choice, 105–10.

Fr e e Cho i c e , C at e go r i es of Good   79 First, one might object that this reasoning makes use of a conception of commensurability that is too strong. For this reasoning makes commensurable options completely fungible in value and overlooks the fact that different options have distinctive attractions: no one, except possibly Bentham, holds that the values of options are comparable in the manner of different amounts of money. In response, this reasoning does not require collapsing what is distinctive in various options, but it does require the logic of commensurability—namely, that there is some measure common to things to be compared and that, in the respect in which they are commensurated, it is the greater or lesser possession of that common feature, not distinctive features, that is relevant. In this context, the respect in which the options are compared is their rational appeal or desirability. The second objection is that my account of the motivational implications of judgments of greater value excludes weakness of will. It does exclude weakness of will in a certain deliberative context: on my account a weak-willed choice cannot arise in the face of an acting person’s judgment that one option is overall and simply better than the alternatives. If the attractions of the akratic option are not fully considered in the overall comparison, then the better option is not simply better. But if these attractions are so considered, their remaining appeal, as a ground for choosing the less valuable option, has vanished, and the continued appeal of the option precisely as an option for choice becomes utterly mysterious. For selections of the simply lesser good are problematic only if they are choices, even choices of options supported by apparent goods. By contrast, selections based on nonrational factors are not especially puzzling. Likewise, cases in which literally overwhelming desire breaks a block to action raised by judgment are also unproblematic. With these qualifications, my view does exclude weak-willed choices. But the phenomena that generate the puzzles of weakness of will can be accepted within the framework I have been elaborating: in many cases the judgment of the greater good is not strictly a judgment of the simply more desirable, but of something short of that—for example, of what is morally good or of what fits with a person’s established plans.13 13. I do not exclude the possibility of cases in which an acting person makes a judgment that one option is simply and overall better than others and chooses against it. This might happen as follows: under certain emotional conditions, the judgment that under normal conditions would have been a judgment of what is simply better is not a judgment of the simply better for the set of options facing the person in that emotional state. Under these conditions, the weak-willed

80  A rt icu l at in g a T he ory o f Natural Law I turn now to the third of the judgments of value distinguished earlier. If the judgment is that the options among which a person must select are incommensurable in terms of their rational desirability, then, if the selection among them is to be responsive to that judgment, one option will be selected on the basis of its rational desirability. In contrast to the selection among equally valuable options, the selection among incommensurably valuable options is itself responsive to their intelligible value. In the former, the options are intelligibly identical in those respects relevant to their selection, but in the latter they are irreducibly different. In choosing one over others, a person responds to and endorses its rational desirability by choosing to make it operative in action. This is completely responsive to the practical intelligibility that the acting person faces. There is a conflict among options that blocks action, and the options are incommensurable in value. Consequently, endorsing one option is a volition, since it responds to the value in it but not in others. But the volition is not determined by the judgment, which allows the endorsement of other of the incommensurable options. This freedom is incompatibilist free will. For some philosophers, this connection between free choice and incomparably valuable options is likely to count against the existence of the latter. Donald Regan, a defender of comparability among instances of goods, tellingly argues as follows: Faced with a choice between two incomparable goods, the agent will see that there is reason to choose the first and also reason to choose the second, but there is no adequate reason to choose the first over the second, or vice versa. This does not necessarily mean that the agent will be paralyzed, like Buridan’s ass. But it does mean, I think, that if the agent finds herself pursuing one of the goods, she will have no way of making what happened fully intelligible to herself as her choice. Choice is based on reasons. Choice between two specific goods must be based on reason to prefer one of the goods to the other. Where there is no adequate reason for the preference, there can be no real choice. A decision to go one way rather than the other will be something that happened to the agent rather than something she did [footnote omitted].14

As an argument against incommensurably valuable options, or for that matter against incompatibilist free choice, this reasoning fails. The option has an appeal incommensurable with that of the “better”—that is, the otherwise simply better, option. 14. Donald Regan, “Value, Comparability and Choice,” in Chang, Incommensurability, Incomparability, and Practical Reason, 144.

Fr e e Cho i c e , C at e go r i es of G ood   81 demand for an “adequate reason”—that is, a reason that determines choice—at just the point where defenders of incommensurably valuable options and free choice think intelligibility has run out assumes what needs proving. Moreover, the reference to Buridan’s ass and the idea that something from outside the agent as an acting person must cause the selection suggest that Regan is failing to distinguish choice among incommensurable options from the selection among the equally good. Perhaps more significantly, Regan is assuming that considerations that do not determine choice one way or the other cannot decisively direct choices. Moral demands are closely connected to some of the human goods. Therefore, the option of following moral demands, even when these are unconditional requirements, is not generally comparable to other options, even immoral ones. Consequently, doing what is right is not always most desirable, and that does not remove the rationality and force of its demands on freedom.15 The connection between free choice and incommensurably valuable options for which I have been arguing does not by itself indicate which options for choice are incommensurable. The connection indicates only that where there are free choices there are incommensurably valuable options. But the common experience of choosing freely cannot be generally overturned on the basis of deterministic arguments that their proponents can rationally affirm in philosophical debate.16 Consequently, when people judge that their deliberation does not end with a judgment that one option is better than another and then move straight to action, or that it does not end with a judgment that options are equal in value and so warrant a nonrational selection, but when deliberation ends in a judgment that the options are rationally incommensurable, so that reason operating in this comparative way does not settle what to choose, then they reasonably understand themselves to be facing incommensurably valuable options that call for free choice. This situation appears to be precisely where moral guidance is 15. J. L. A. Garcia, “Topics in the New Natural Law Theory,” American Journal of Jurisprudence 46, no. 1 (2001): 52, in criticizing our argument for free choice, overlooks the fact that although rationality norms do not compel thought as do the laws of formal logic, they do make unconditional, not optional, demands. We do not hold that people are generally free to believe as they like in empirical matters, but that the relevant norms, like moral norms, unconditionally address a person’s freedom. 16. This is the conclusion of our argument for free choice; see Grisez, “Natural Law, God, Religion, and Human Fulfillment,” 3–4; Garcia, “Topics in the New Natural Law Theory,” 51–53, criticizes some aspects of our argument but does not dispute the reality of free choices.

82  A rt i cu l at in g a T he ory o f Natural Law needed. The options themselves as motivating factors do not settle what to do; that will be settled only by the person’s free choice. That choice is not arbitrary, since it can be guided by moral norms, the genesis of which, it is now clear, cannot be the determination of the greater rational appeal of an option. Moreover, this is the situation in which the conditions for moral responsibility, as understood by many Jews and Roman Catholics, obtain. To follow moral demands or not is free, within the person’s power to do or not. What I called merely voluntary choice, the determined choice of the equally valuable or more valuable option, is not a choice that as such involves this kind of responsibility and includes it, if it ever does, from prior free choices.

• Section 2 / The Nature and Foundations of Natural Law

4 / Being Reasonable in Choosing among Incommensurable Goods

Introduction Some philosophers believe that there are moral constraints on the pursuit of the good—that is, constraints a moral person would recognize on his or her doing what he or she judges good, or in cases of competition among good alternatives, what he or she judges better or best. Some of these philosophers believe that at least some such constraints are deontological in the sense that they have no justification in the good. Although one might wonder how it is that the judgments justified in such deontological approaches come to have motivational force, I will not discuss these views here. I want instead to consider a view according to which there are moral constraints on the actions we have reason to do that are justified precisely by the rationality involved in having a reason to act, which I take to be the rationality of pursuing the good. Very roughly, the idea is as follows: the good practically relevant to human action is what presents itself as to be done and pursued. As Aquinas famously put it: bonum est faciendum et prosequendum et malum vitandum.1 Thus understood, the good enjoins promotion when some good is understood to be available to be realized by human action, and the good enjoins protection or defense when some good is under threat that can be forestalled by human action. When applied in respect to bads or evils, the idea of the good as what is to be done and pursued becomes a recommendation of avoidance or opposition. The view to be considered, therefore, is whether An earlier version of this essay was presented to the Ethics Workshop of the Department of Philosophy of the University of Toronto, April 15, 2005. I thank the participants for their helpful comments and criticisms. 1. ST I-II, q. 94, a. 2: “Good is to be done and pursued and evil is to be avoided.”

85

86  A rt icu l atin g a T he ory o f Natural Law these ideas of pursuit, promotion, protection, and their near cognates can underwrite constraints on action. This is what I shall mean by ethical teleology—namely, a view based on the idea that states of affairs instantiating intrinsic goods are what confer value and that moral constraints are the implications of the pursuit of that value. (I believe that morality arises when choices must be made about pursuing value, but that is a further thought than teleology.) Consequentialist ethical theories are clearly teleological in the sense I have specified. But it is not evident that teleological ethics must be consequentialist. Aristotelian virtue ethics and Thomistic natural law certainly appear both teleological and nonconsequentialist. The ethical writings of John Finnis are perhaps the best-known contemporary example of a teleological moral theory that is nonconsequentialist. This essay explores the structure of the moral theory that has emerged in his authored and coauthored writings. I have defined teleology as the moral approach in which constraints on the pursuit of what people have reason to do arise from precisely the directiveness the good provides toward actions in which it is instantiated or caused. How the very good that underlies reasons for action can be the ground for restraints on acting is one of the central questions for teleological theory. Before addressing this question, however, the idea of teleology can be further clarified by contrasting it with a similar-sounding, but quite different view—namely, that the good does more than simply direct us toward its promotion and protection. On this distinct view, the basis in the good itself for constraints on action would not be the very directiveness of good—its to-be-doneness—toward actions in which it is pursued, promoted, or protected, but something else, perhaps—for example, the special status or dignity of the agent or beneficiary as a rational creature. These two moral approaches may appear more similar than they in fact are because some actions taken to promote, protect, or refuse to damage an instance of good are reasonably described in deontologicalsounding terms. For example, choosing not to take an action that destroys an instance of a good shows respect for that good. But the respect involved in this choice plainly is an aspect of the directiveness of the good: what is to be done and pursued in respect to a good when facing a choice to destroy it or not is to refrain from that destructive action. Destroying something is inimical to pursuit, promotion, or protection of it.

I nc omme n s urab le G oods   87 The contrasting view sees the ground of this kind of respect in something about the good that calls for a kind of respect or concern for the good that is not grounded in the directiveness, or “to-be-doneness,” of the good and for that reason might be considered a deontology of the good.2 It is not my aim to refute this deontological view here (although it is unclear how the notion of the good, practically understood, could provide a ground for moral norms except by its unquestioned role in practical reason—namely, underwriting reasons for action). Rather, I wish to explore the idea that the good, just as what gives us reason to act, provides a basis for morality. More starkly, this is the idea that the good as what is to be pursued can itself generate constraints on that pursuit. I will further explore this notion of ethical teleology in the next section, “The Notion of Teleology.” My analysis of the structure of a nonconsequentialist teleology involves a second supposition—namely, that there is enough incommensurability in the value or goodness of options for choice that comparative value judgments regarding one option being decisively better than others are not generally available—at least not so generally as to settle most tough moral issues. I will spell that out in the third section, “The Value Incommensurability of Options for Choice.” If it is possible to be rational or irrational in choosing among incommensurably good options, then promoting the good rationally can constrain some choices to pursue the good. In the fourth section, “Rational and Irrational Reponses to Incommensurable Options,” I will argue that this possibility is real. In the final section, “Constraints Emerging from Being Rational in Response to Incommensurable Options,” I will suggest how excluding nonrational motivations from choices among incommensurably good options generates constraints that look deontological but in fact are rational requirements of pursuing the good.

The Notion of Teleology To begin this exploration, I will consider a way in which a straightforward development of the idea of pursuing the good justifies a sort of 2. By distinguishing teleological ethics from a deontology of the good, I propose a teleological interpretation of the position I hold along with John Finnis and Germain Grisez. We have sometimes stated our view so as to seem to embrace the deontological understanding of respecting the good. See John Finnis, Joseph Boyle, and Germain Grisez, Nuclear Deterrence, Morality and Realism (Oxford: Oxford University Press, 1987), 282–83.

88  A rt i cu l atin g a T he ory o f Natural Law constraint on some possible actions. This development is the application of the mandate of promoting the good to situations in which there is competition among possibilities promising good and consequently a need for comparative judgments of goodness. This development is closely related to consequentialist moral theories and seems either a constituent of or closely connected to essential elements of such theories. Consequentialist rules and judgments justified in this way begin with a recommendation to promote the good—the requirement implicit in the good as a practical concept. They proceed to specify this recommendation to cases where there is competition between good prospects. In virtue of the logic of comparison, they conclude with a recommendation to choose the prospect promising more or most good or less or least evil. Thus construed, consequentialism relies on the logic of the good, or of what we have reason to do, expanded by the logic of comparison, to what is better or best, and concluding with the recommendation of what we have most reason to do. These consequentialist norms, in other words, recommend the greater good or the lesser evil. Whenever the options to which such consequentialist norms are to be applied can be considered in terms of everything about them that contributes to their desirability, and whenever all those desirability characteristics can be ranked and compared in terms of their desirability, then the determination of greater good generates a norm completely vindicated by applying the logic of comparison to the idea of the good. The recommendation provided by such a norm includes a kind of constraint on acting for the good—namely, on choosing the lesser good, however favored that action might be. Perhaps the rationality underlying such straightforward consequentialist rules will be thought to generate more than simply a recommendation. For when a person’s deliberation shows that one option is the thing he or she has most reason to do—in the strong sense specified earlier—the motivation for the other options is thereby removed. The option supported by the best reason has desirability characteristics that better promise whatever of the good the desirability characteristics of the other options promise. Consequently, a form of consequentialism that exploits as its basic ideas only the idea of the good and its extension to comparatives requires an explanation as to why it remains possible to be motivated to choose what one recognizes to be a lesser good, as seems to happen in weak­willed actions, when one judges that there is a greater good, but chooses contrary to it.

I n c omme n s urab le G oods   89 The preceding paragraphs proceed on the assumption that the action for which there is a best reason—the action that promises the greater good—must contain everything that makes the other options desirable and then some further desirability than they possess. This is not to say that the desirability characteristics of the options must be identical, but only that there must be something in the desirability characteristics of the better that, taken as a whole, beats, value-wise, everything promised by those of the worse. This is a strong and narrow construal of “greater good,” as suggested by the fact that expressions such as “action supported by the best reason,” “the best thing to do,” and “the greater good” do not usually refer to an action whose desirability characteristics taken together contain all of what is good in all the desirability characteristics of the alternatives. However, since my purpose in introducing this idea of the greater good is to articulate an obvious way in which rational constraints on action can emerge from pursuing the good, the strong, narrow conception is legitimate. One such constraint is that provided by the form of consequentialism I specified. In the comparative contexts addressed by this approach, only considerations taking into account all the desirability characteristics of the options involved are sufficient rationally to constrain the promotion of a lesser good. For if the lesser good had a desirability characteristic not better found in the (otherwise) better option, the former’s claims for promotion would remain unsilenced. There would be nothing irrational—nothing that violated the implication of pursuing the good or of the meaning of comparatives—for a person to choose an option on the basis of such an unsilenced desirability characteristic. I recognize that most versions of consequentialism assume a conception of the greater good that is weaker and broader than the one I specified. Similarly, there are consequentialist views according to which the determination of what there is most reason to do includes some limitation either on the desirability characteristics considered or on the way they are considered. For example, the impartial perspective of moral concern characteristic of utilitarian theories seems to introduce just such a limitation: the desirability of options that are worse from the impartial perspective can remain after the relevant comparisons and perspective are taken. The norms justified within such forms of consequentialism do not emerge simply from the requirements of promoting the good as they do when options containing strictly com-

90  A rt icu l atin g a T he ory o f Natural Law mensurable goods are compared. The justification for taking a deliberative point of view on options other than that in which the acting person finds them desirable in various ways does not appear to be based simply or immediately on the good and the meaning of comparative terms. The same is true if desirability characteristics are sorted and excluded from comparative consideration or if the standard for regarding options as commensurable in value is not strict. My purpose here is not to contest the justification for various forms of consequentialism. I am exploring how teleologically based but nonconsequentialist moral constraints arise from the good. In particular, I am exploring how there might be nonconsequentialist constraints on pursuing the good that emerge from its logic in a way analogous to that in which the recommendation of the strictly greater good emerges from that logic. Such constraints would remain thoroughly teleological in their justification, even though nonconsequentialist, and even if the ethical content of the constraints turned out to be similar to that of deontologically based constraints. This prospect might appear unpromising. To consider an analogous case: how could the lure of the delectable, just as such, constrain my pursuit of the delectable? You might tell me that too many hors d’oeuvres will spoil my appetite, but that seems just the constraint generated by the comparative judgment of delectability. In other words, the relevant delectability does not contain a ground for constraining itself other than by what promises greater delectability; the balance of delectabilities promised by the various goals settles the matter, and that is promoting delectability, constraining only an inadequate response to it. So, if that extra snack promotes delectability (including its effect on one’s capacity to enjoy the coming meal), there is no delectability-based objection to it. Analogously, the good seems incapable of providing constraints on its own pursuit—other, of course, than those required precisely by its own more adequate pursuit—and that seems fully captured in the logic of the greater good. In spite of this, I will argue that the good—taken as the object of our interest in acting—can constrain actions justified, or at least favored, because they pursue it in some way. This claim supposes the broadly teleological conception of morality already suggested: that the right depends on the good and that the good is what is to be done and pursued. This can be spelled out a bit further. It is accurate, if somewhat rough, to say that the motivation for any

I nc omme n s urab le G oods   91 human action includes a direction toward certain states of affairs that human beings value. Bringing down this child’s fever or preventing that person from being harmed are examples of valued states of affairs the consideration and desiring of which can motivate a person’s action and rationalize it for others’ understanding. These valued states of affairs have several important features, suggested by my examples: one element in the state of affairs is at least one beneficiary, someone benefited in some way by whatever value is present in the state of affairs. Of course, humans can also be elements of these states of affairs in other ways—for example, the goal of my triumphing over him includes two people, but only one, myself, as the beneficiary. This reference to a beneficiary can remain in the motivational background, especially when the motivating states of affairs are embedded within complex, larger projects: Grant’s goal in the winter of 1863 of getting his army south of Vicksburg on the east side of the Mississippi does not indicate the exact benefit or the beneficiaries of this goal, but both are fairly obvious and plainly motivationally essential. Another aspect of valued states of affairs is that they motivate insofar as they are understood as future states of affairs that can be realized in or by action as concrete, datable events. We are sometimes motivated to bring about a completely new state of affairs, but motivation to preserve or protect an already existing entity involves considering and desiring a future state of affairs: the entity’s continuing to exist at some future time or perhaps my bringing it about that the entity continues to exist at that time. The future reference of motivations and the concreteness of the goals that motivate action are both plainly compatible with considerable vagueness. The goals we seek motivate us because we anticipate a future in which they can play a valued part, but that does not require precise dating. Still, we anticipate these goals as elements of a valued future and so necessarily as concrete states of affairs: getting the army back across the river is vague, but the state of affairs that instantiates it is not. The details of such states of affairs distinct from the elements and relationships that render them valuable can remain unsettled as we project and refine our goals. The good-making features or desirability characteristics of states of affairs are not concrete but are intelligible features that can be instantiated in an indefinite number of possible actions. These features or characteristics, which can be called goods, are properties or relationships

92  A rt icu l atin g a T he ory o f Natural Law in virtue of which agents are interested in the states of affairs in which they instantiate these properties or relationships by or in acting. Those states of affairs, of course, are individual events. And it is the instantiation of goods that realizes the good, and so we are interested in creating the concrete events that can instantiate the good. Since interest in realizing what is good—that is, a state of affairs or goal having a desirability characteristic—is so apparently basic in motivating human actions, specifically moral judgments must have some connection to the good. At the very least moral judgments must be capable of motivating action and of doing so successfully in the face of sometimes strong motivations to act immorally. For this reason, teleological approaches to ethics have a powerful, initial consideration in their favor, for they regard moral obligation as a function of the good as a basic category of practical knowledge and motivation. I believe that this function is specified by the need to settle conflicts or competition among the goals in which we are interested. This much of teleology as an ethical theory can be stated independently of a theory of the good. But to determine what is involved in rationally pursuing the good, some aspects of the nature of the good must be considered. I will say something about the conception of the good at work in what follows. It is a sort of objective list view of intrinsic goods, like that stated by Aquinas, with a perfectionist criterion for membership on the list.3 The items on the list I think correct—items such as survival, health, skillful performance, and decent relations with others—are the most general categories within which are gathered the noninstrumental desirability characteristics human beings seek as elements of their full being or perfection. On this theory of the good, it is possible that something not good but nevertheless desired can be regarded as if it were a good—we can project a favored, desired future in which some desire not connected with a good is satisfied or in which some strictly hedonistic satisfaction is fulfilled, but continue to accept that that agreeable future is not really good. Such apparent goods do, however, present themselves as having the thin desirability characteristic I just suggested. So, they can enter into the comparative judgments of value we seek in deliberating. 3. See ST I-II, q. 94, a. 2; Finnis, Boyle, and Grisez, Nuclear Deterrence, 277–81; Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press, 1980), 85–90.

I n c omme n s urab le G oods   93

The Value Incommensurability of Options for Choice The notion of value incommensurability I have in mind obtains when two or more valued items are compared and the result of the comparison is that it is not true that one is better than the others and also not true that all are equal in goodness. The valued items that are important for my exploration of nonconsequentialist but teleological constraints on action are options for action. Such options arise when there is a conflict of desire sufficient to provoke reflection as a basis for settling the conflict. That reflection or deliberation involves formulating the objects of desire as competing options and then considering their merits—including their relative merits—as desirable or good. The consideration of the relative merits of the goodness of options involves comparing the goodness of the options. That involves considering the value of each desirability characteristic and the adequacy of its projected instantiation in the options. For desirability characteristics can specify a covering value differently, and they can be differently instantiated in different states of affairs. Both dimensions of the value of each of these characteristics must be considered and given weight if the deliberation is to cover all that is good about the set of possibilities. Thus, the comparison of options having health as a desirability characteristic must attend to the different ways the different expected results will instantiate health. And when comparing the goodness of options including health and knowledge as desirability characteristics one must consider the different ways these characteristics might specify some common covering value or fit more or less well with some established goal controlling the deliberation. There are three possible outcomes of this process of comparing the goodness of any two such options: either one is found to be better than the other; or one to be as good as the other; or one is judged neither better than nor as good as the other. In the first case, the requirement of rationality, as already suggested, is obvious: one will, at least if rational, choose what there is the best reason to do. Indeed, as suggested earlier, even this proviso is not needed if there is nothing of desirability that has not been adequately addressed by the comparison. For to judge that one option is strictly better than the other is to judge that it embodies desirability characteristics

94  A rt icu l atin g a T he ory o f Natural Law better than the other or that it has more or better of what makes both options desirable. In the light of that judgment any reason for choosing the lesser good would be a better reason for choosing the better option. This strong and narrow idea of the commensurability of the comparative goodness of the value of options does not require that one ordinarily make close cardinal rankings of the values involved. What is required is simply that one be able to make judgments such as that some healthy action is less healthy than another and that as between friendship and success in scholarship the former is more valuable. Successful comparisons of these sorts do not imply the existence of an articulated metric for all options, or even for a given set of options. But the relevant comparison of options leading to the judgment that one is better does seem to involve the ability to arrive at an ordinal ranking of the overall value of the options ranked. And that arrival must determine the judgment and subsequent decision, not be established by the decision. In the second possible outcome of this stage of deliberation—the possibility of equal value exhibited in Buridan’s example of the hungry ass deciding between two equally good and equally accessible bales of hay—the reasons for the options do not settle the choice. In that case, given that settling it is important, some arbitrary procedure such as flipping a coin or going for the option one thinks of next, or perhaps going for the one with which one is least uncomfortable (supposing that this could function without being a desirability characteristic already considered) seems to be the requirement of promoting the good. The directive is simply, “Do not fail to do something good when the options are equally good.” On the assumption that morality is somehow a function of what is good, no moral issue can arise in these cases once all the values have been considered. For everything about the value of the options has been ex hypothesi considered in the judgment that the options are equally good. How could the result of a coin flip be subject to moral assessment if the flip is to settle which of equally valuable options to pursue, on the assumption that morality arises from those values? The third possible outcome of the comparison of the values of options is the judgment that they are incommensurable. Here the imperatives of the good that settle the cases where one option is better or where the options are equally good simply do not apply. The choice between incommensurable options is not determined by the full comparative assessment of the goods underlying desirability of the options.

I n c omme n s urab le G oods   95 The response to the value in the options revealed in this outcome of deliberation is to endorse one of them—to overcome the block to action caused by the conflict of motivations by choosing that one of the options will prevail, that its goods will be realized instead of those of the other option.4 Although that endorsement is not determined by the goods involved in the options, it remains possible that a choice responding to the goodness of one of a set of incommensurably good options will not be as reasonable as the choice of the alternative. To assume that this is impossible is to assume that any form of rationality that is practically relevant will necessarily commensurate goods. That will be question-begging in the absence of a considerable argument. For there is no a priori reason to suppose that the choices in which one endorses one incommensurable option cannot be governed by rational norms and that these norms can be based on the good as long as they do not commensurate the options in terms of value. This possibility is exhibited by the case of a choice between a moral and an immoral option, where there are both incommensurability and goods-based rational considerations favoring the moral option. There is incommensurability because the immoral option has its irreducible attractions, which remain after comparison with the moral option. Goodsbased rational considerations are in play because the moral option serves goods—for instance, “I’ll be wasting time, hurting myself, letting down the team, etc., if I do the immoral act.” Moreover, the norms prescribing the morally good act, once recognized, cannot be violated without failing to serve the goods of practical reasonableness and conscientiousness. These and the other goods served directly by morally good choices just insofar as they are morally good do not themselves provide the ultimate criterion for right action. That, as we shall see, arises from excluding nonrational factors from inappropriately skewing the pursuit of intelligible good. But choosing in accord with this form of practical rationality is itself humanly desirable. In short, there is reason to choose the moral option as such, but this 4. This kind of selection—namely, a selection from among incommensurably desirable options in response to deliberation—is a free choice; as responsive to deliberation it is a volition, a choice; and as responsive to incommensurables it is free, since determination of the choice by reasons, often named “psychological determinism,” is ruled out by the incommensurability. The necessary link between free choices and incommensurable options is not meant to establish the existence of either one. Further argumentation for the existence of one of them is required.

96  A rt icu l atin g a T he ory o f Natural Law is not a reason that necessarily removes the attractions of the immoral option, because, although connected to a good or goods, the justification of the moral norm is not grounded in commensurating considerations. We saw earlier that in the case of equality of value there is no value in one option that is not in the other, and so interest in the good implies that one be chosen—it matters not which. Factors not rationalized by their connection to the good—for example, the results of a coin flip or likings not measured in comparison of values—reasonably settle which of equally valuable options to choose. In such cases there are no differences in intelligible value, and the otherwise nonrational procedure allows the agent to get on with action. Where the options are not equal but incommensurate in value, the goods involved promise quite different futures, not intelligibly identical futures. So, it can make a great deal of difference if the agent chooses one or the other. Those incommensurable values continue, as it were, to have a voice of their own. If the voice of an option includes a justified moral demand, that prescription is serious even though it does not overcome the desirability of other options. The fact that choosing the morally worse option is not choosing an option that is not worse goodswise does not imply that there are no rational considerations favoring it. Consequently, an agent’s using any particular nonrational factor to settle the choice might fail in promoting the good—that is, fail to promote it intelligently, recognizing the condition of incommensurability.5 For example, a person with authority to hire a company to carry out a public project faces a choice between a new company whose track record is unproved but whose bid is well crafted and sensible and an established group that does steady but expensive and unspectacular work. Suppose that the deliberation about these alternatives leads to the judgment that their values are incommensurable. But suppose also that the authority has relatives in the latter group and, therefore, tilts toward giving the contract to the latter group. Even if explicitly noticed in deliberation, this might not be a factor making commensurably better the option of giving the contract to the group employing relatives. It is even possible that this tilt is not reflected in the deliberation at all, but is simply a liking of the one option. In this case, it seems that these 5. See Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1987), 225–335, for the source of some of the development of these ideas and for other arguments concerning the differences between rough equality and incommensurability.

I n c omme n s urab le G oods   97 partial feelings of the authority could settle the matter, even though the merits of the options were judged incommensurable. It is appropriate to question whether these admittedly partial feelings are inconsistent with the demands of promoting the good. This example is not introduced to establish the existence of incommensurability but to indicate a juncture in deliberation at which the possibility of teleological but nonconsequentialist constraints on action can emerge—namely, whenever there are options that are incommensurably valuable and where the distinctive rational appeal of the options includes matters of moral concern that would be compelling except for motivations not connected with the goods at stake. More generally, I am not trying to establish here that some options are incommensurable in value or that value incommensurability is pervasive.6 Consequently, the present relevance of the theory of the good outlined at the end of the previous section is that this theory provides an intelligible value framework within which incommensurable options are possible. This theory of the good plainly allows for incommensurability. The general categories in which the basic human goods are listed are understood to be categories of intrinsic good, irreducible to one another in their goodness, value, or desirability. Their common goodness is just that each in its irreducible way specifies the desirability of some desirable states of affairs. In no more robust sense do goods in these different categories indicate a common property that is just their value or goodness. Obviously, this conception makes it difficult to see how there is a common covering value for choices where the goods at issue are in different categories. Moreover, instances of the same good could be incommensurable in value, as the vastly differing ways to realize the goods of life, knowledge, and friendship suggest. Still, this account of the good will likely rise or fall with one’s judgment about the existence of incommensurable values. The supposition of incommensurability introduced here is meant 6. For the sort of reasoning I would endorse in support of the existence of significant value incommensurability, see Raz, “Incommensurability and Agency,” in Incommensurability, Incomparability and Practical Reason, ed. Ruth Chang (Cambridge, Mass.: Harvard University Press, 1997), 110–28; and, in the same volume, Finnis, “Commensuration and Public Reason,” 215–33. Finnis shows that the presence of an established, definite goal of the kind that controls technical reasoning is needed to commensurate values and that when the horizon of the goods at stake in a choice is wider than in cases dominated by an established goal, commensurability fails and free choice is called for. The essays in Chang’s collection taken as a whole suggest the complexity of the debate about the commensurability or incommensurability of values.

98  A rt icu l atin g a T he ory o f Natural Law to indicate a possible world in which there are nonconsequentialist but teleological constraints on action. I suspect that there are no such constraints whenever options are strictly commensurable in value. When options are commensurable, the strictly better option is recommended by the good, and either of equally valuable options is similarly recommended. There seems no room in such cases for further constraints based on the good. For example, consider a constraint on inflicting harm on an innocent person. If that were an option that arose because of a need to save many lives, and if it were true that saving those other lives were simply better, the person facing that choice would have no reason to refrain from inflicting the harm. If there were such a constraint in the conditions specified, it would not be based on the pursuit of the good; the implications of that are clear enough. So, any other constraint must be deontological and its ability to motivate explained. Similarly, if deliberation showed these options to be equal in value it would not matter, as far as value is concerned, which one was chosen. But if these options are not strictly commensurable, if there is something desirable about not inflicting the harm on the innocent that is not captured by saving the lives of the many, then there could be a constraint on inflicting the harm, and that might be goods-based, since harming a person is damaging her good. The idea then is this: if there are, and whenever there are, incommensurably valuable options, the choice among them might be guided by constraints that are based on the pursuit of the good. Those constraints will be generated in different ways than those that emerge when options are commensurable. This makes the exploration of the supposition of incommensurability interesting. Of course, this will be purely academic if there are no, or very few, incommensurably valuable options.

Rational and Irrational Responses to Incommensurable Options The examples in the previous section suggest that when a person faces a choice between incommensurably good options, he or she may have a motivational tilt toward or away from one or more of the options that are judged incommensurable in value. If there are such motivational factors, and if they can affect choice among incommensurables, their

I nc omme n s urab le G oods   99 assessment can constrain the choice. If that assessment is based on the pursuit of the good, then there are nonconsequentialist but teleological constraints on choices. Such motivating factors exist because of the individuality of human actions. Actions are singulars, and the projection of possible actions and their purposes in deliberation includes a vague and more or less schematic, but nevertheless imagined representation of a goal and of the individual performances to be undertaken to achieve the goal. Sometimes the goal and the performance are identical, since some performances themselves instantiate the desirability characteristics sought in the action. Goals, therefore, are not abstract states of affairs but are concrete realities in which goods are instantiated. So, goals have two aspects: the reasons for pursuing them—their desirability characteristics—and their concrete individuality. The motivational response to the individuality of actions and goals is distinct from the interest grounded in the knowledge of desirability characteristics.7 One may have a good reason to do something that one finds abhorrent or to do something to which one finds oneself simply indifferent. Of course, felt abhorrence or indifference might be fed back into the deliberation as factors counting against doing something, but that is not always what happens. Sometimes we have good reason to do something and just don’t like the idea. The existence of motivations that are not reducible to those responsive to the recognition of desirability characteristics is suggested by the fact that nonhuman animals and small children are motivated to act, and there is no need to suppose they are responding to knowledge of a property such as a desirability characteristic. Indeed, in much of adult human behavior, the motivation seems subrational in just this way— swatting a fly that buzzes at one’s head or shifting one’s position as one becomes slightly aware of discomfort. Events such as these can quickly lead to deliberate action in which getting rid of a distracting bug or getting comfortable becomes articulated as a goal. But the initial motivations are often not a matter of focal attention and are not rationally articulated. The idea here is similar to the medieval distinction between sensory appetite and rational appetite. There are motivations responsive to the 7. See Grisez, Boyle, and Finnis, “Practical Principles, Moral Truth and Ultimate Ends,” American Journal of Jurisprudence 32 (1987): 104–5.

100  A rt i cu l atin g a T he ory o f Natural Law recognition of properties and motivations responsive to aspects of actual or imagined individuals. These aspects can be conceptualized but motivate independently of that. If these motivations always tracked the rational requirements of the good, then their role in motivating choices among incommensurably valuable options would not require rational assessment. But there is no reason to think that the feelings we have toward a concrete goal will generally be lined up with the good we wish to pursue by acting for that goal or for competing goals. For example, depressingly arduous work is called for to complete a project of great importance. When weighed into the mix of factors relevant to the decision to carry on, this consideration turns out to be unimportant. And yet imagining carrying on still evokes these feelings, and it could factor in a choice to give up the project. Moreover, there are several reasons to think that we should not suppose that there is a kind of preestablished harmony between sensory motivations, such as feelings, and our assessments based on the good. The motives in question are those we share with nonhuman animals and small children. These motivations respond to information and to imagined possibilities connected with the goods we share with these others. Goods such as survival, rest, and health are common, and sensory motivation is closely connected to these concerns. But other human goods are somewhat removed from these concerns; for example, goods such as knowledge, skillful performance, or living autonomously with others have analogues in the interests of nonhuman animals, but are distinctive. Feelings about goals instantiating these goods surely are shaped by the survival and other vital interests we share with other animals, and this allows that the direction of the feelings and the goods need not coincide. Similarly, there is a disconnect between the range of beneficiaries registered in sensory motivation and that made possible in considerations based on human goods. The circle of beneficiaries to which sensory motives point are simply ourselves and those near and dear—for example, the survival group. Human goods are capable of benefiting anyone. Plainly, motivations of this kind can motivate choices among incommensurably valuable options because one can endorse one of the options in part because of such motivations. This can involve making the relevant feeling into another reason or, perhaps better, a quasi-reason, for or against the option in question, even if one is firm in judging that

I n c omme n s urab le G oods   101 the reason does not contain a proper desirability characteristic. This is the apparent good I spoke of at the end of the section “The Notion of Teleology.” This form of motivation can also help settle the matter as deliberation progresses by inclining one’s attention toward the grounds for the emotionally favored option and toward overlooking the merits of the more obnoxious option. In short, there are motivations that are distinct from those based on recognition of desirability characteristics. These motivations function with some independence of motivations based on one’s judgments about what is good. That allows that the choices motivated by these independent motivations are not choices in accord with the pursuit of the good. The constraints on acting for the good, therefore, are those that emerge by considering the ways such motivations are not integrated with the good and excluding them.

Constraints Emerging from Being Rational in Response to Incommensurable Options In this section I will consider just two constraints that emerge in excluding the influence of inappropriate motivations operating independently of values. The first of these addresses the limitation of beneficiaries that sensory motivation naturally involves. The second of these is exclusion of actions involving the intention to damage or destroy an instance of a human good for the sake of more favored yet incommensurably valuable instances of the same or other goods. It is important that there are other constraints than these, which taken together give moral life its basic shape. For example, destroying instances of goods out of anger or hostility damages goods for no humanly perfective reason, but only for the satisfaction of these desires. Similarly, organizing one’s life in a disciplined rational way so as to pursue some goods effectively is a requirement of pursuing the good, at least to the extent that it rejects idleness and dabbling or self-indulgence, making an organized and successful life possible.8 8. Finnis, Grisez, and I have stated eight general forms in which nonrational factors capable of skewing the pursuit of the good when choices arc called for are identified and excluded as unreasonable. We call them “modes of responsibility”; the two constraints considered here are two of them. See Finnis, Boyle, and Grisez, Nuclear Deterrence, 284–87. In Natural Law and Natural Rights, 100–133, Finnis lists a set of requirements of practical reasonableness. This list overlaps considerably with the various formulations of the modes of responsibility. The emphasis

102  A rt icu l atin g a T he ory o f Natural Law The first constraint is the Golden Rule. Our sympathies for others appear to be naturally limited to those with whom we identify in some way. That natural limitation of our sympathies can affect choices among incommensurably good options by favoring an option in which beneficiaries of goods are limited in ways not connected to the goods themselves. The imaginative strategies connected with the Golden Rule can expose and rule out these limitations by expanding our limited sympathies. In effect, as much as possible, the intelligible goods themselves, as human goods realized by definite actions that are limited in effect, should settle the question of who is to gain the benefits or suffer the burdens of the actions to realize them. Merely natural attraction to some or indifference or hostility to others should not be allowed to settle choices concerned with who is to share the benefits of action or bear its burdens when the human goods at stake would settle them otherwise. Some goods include within themselves a limitation on who can benefit from actions. Presumably some good human relationships can involve only a single other person or a small group. One cannot be a friend or a partner to everyone. But sometimes it is not the character of the good itself that limits those who can share it, but rather the inevitable limitations of human power and capacity. For example, a physician can only have so many patients, even though her skills and the relationship of a patient to a physician are not inherently exclusive. The goods we instantiate in and by our actions are intelligible human goods. They are desirable as elements in a valued, or at least favored, future in which we anticipate somehow enjoying or participating in them. But we can recognize that the basic human goods, as intelligible, are good for other humans. The self-referring aspect of goods as the ground of reason-based motivation does not, therefore, prevent motivation toward goals that more directly benefit others, as when physicians act for patients’ health. That interest in helping other humans is itself a human good, the agent’s flourishing or welfare considered just as a social being. Consequently, when deliberating about choices concerning the distribution of burdens and benefits of human actions, the sort of fairness that results from applying the Golden Rule is a requirement for promoting the good. Actions that unfairly burden some damage their goods, is different: Finnis’s account emphasizes the goodness of these basic moral requirements; presentations of the modes emphasize their emergence from the rational exclusion of arbitrary limits on the pursuit of good in choices.

I nc omme n s urab le G oods   103 which is contrary to promoting the good. And actions that arbitrarily limit benefits to a favored group prevent the good from being realized where it could be. The idea here is not that the application of Golden Rule strategies promotes the good by inevitably leading to more beneficiaries and so to more actual instantiations of good. That would suggest considerations of fairness pursue the good only by the logic of the greater good, and the supposition in place is that of incommensurably valuable options. The idea, rather, is that feelings that limit considerations based on the good do not appropriately serve among the factors by which one settles a choice among incommensurably valuable options. That might but might not lead to more instances of goods or fewer of harms. If this is correct, the logic of pursuing the good is not exhausted by its application to contexts in which desirability characteristics are commensurated. A warfare example exhibits the reasoning of the last few paragraphs. In World War II, the Allies often bombed submarine pens in occupied France and in Northern Germany. The purpose of these raids was, let us suppose for the sake of the example, simply to destroy the subpens and not to terrorize the civilian population. Certainly, that assumption is credible in respect to the ports in France. The Allies were not interested in terrorizing the French. But suppose they were not seeking to terrorize the German inhabitants of the North Sea and Baltic ports. Still, these civilians were the enemy, innocent or not, and the hostility or at least indifference toward them led to differential care being taken in avoiding collateral damage. The rules for targeting were a lot less stringent over Germany than over France. A more even-handed policy seems required by the Golden Rule: the populations were not different in the relevant respects, and the relevant goods being pursued, most notably a just end to the war, were not pursued as well as they might have been. This application of the Golden Rule suggests a meaning of “proportionate” and “disproportionate” relevant to this and many cases— namely, that causing harm as a side effect is disproportionate if it is unfair to impose it on those who must suffer it. And in the same way, violating any more specific duty to avoid inflicting such harm would render them disproportionate. This sense of proportionate and disproportionate does not assume that the goods involved are commensurate, only that considering the matter in ways that do not include partial feelings will lead to a rejection of the disproportionate.9 9. For the bombing example, see Finnis, Boyle, and Grisez, Nuclear Deterrence, 264; for the generalization concerning the meaning of “proportionate” and its cognates, see 261–67, 270–72.

104  A rt i cu l atin g a T he ory o f Natural Law The second constraint to be considered is that of destroying an instance of a good for the sake of some goal that appears overwhelmingly important. Sometimes motivations operating independently of the desirability characteristics an agent understands may favor options in which an instance of a good is destroyed or damaged. Sometimes those motivations favor options supported by merely apparent goods, such as satisfying a desire for revenge. But sometimes these motivations favor options backed by genuine goods: an instance of basic human good is to be destroyed because doing that serves another genuine, but more favored though not commensurably better, good. This is the case of doing something harmful or bad for the sake of a genuinely good end, an end that would be imperative if it were available otherwise than by damaging a person’s basic good. An example would be the prohibition against killing an innocent person for the sake of great good—for example, saving many lives. Often cases like this are considered to be cases where there is a plausible deontological constraint against the judgment of the greater good. But I am discussing this case on the supposition that it is a case representing a choice among incommensurably valuable options. There is, on this assumption, something of value about inflicting the harm that is not found in allowing the many to die—perhaps that killing sets different precedents than not saving, or that the many to be saved are not the agent’s responsibility, or simply that the value of one human life, either to the person who will be killed or to the agent, is simply incommensurable in goodness to another life. If some such considerations are not present, and if the issue were simply a matter of the number of lives lost by either choice, then the recommendation of the greater good would seem to prevail. My supposition of incommensurability is, therefore, in place. If my examples appear to founder on the question of whether the options are incommensurable in value, then perhaps examples more apparently incommensurable in value might be created and used. Inflicting harm on the innocent is so far forth not pursuing the good; it is precisely destroying an instance of good, a person’s life. Since the option for the sake of which one inflicts this harm is good in virtue of desirability characteristics that are, ex hypothesi, incommensurate with those supporting doing this, a reason based on the goods involved is lacking. In this situation, one is acting against an instance of the good for the sake of fostering other instances of good. But the goods involved are not commensurable, so the only thing that might favor the option including the

I n c omme n s urab le G oods   105 destruction of good cannot justify it, and the preference for that option must be based only on the feelings favoring it. In this situation, pursuing the good is incompatible with destroying instances of it. And doing that when there is no good justifying it is arbitrary in terms of the good. It may be objected, however, that damaging and destroying instances of goods is unavoidable. In the case at hand, pursuit of the good excludes harming the innocent, but saving the lives to be saved by doing that is also pursuing the good. So refusing to inflict harm is also refusing to pursue the good involved in saving these lives. One’s decision not to inflict the harm causes this state of affairs, at least in the morally relevant counterfactual sense that had one chosen otherwise, the goods not saved would have been saved. But the agent’s relationship to these two outcomes is ordinarily different. In the first case the harm is intentionally inflicted; in the second the harm, though voluntarily brought about by the agent’s decision not to kill the innocent person, is ordinarily not intentionally brought about, but is a side effect of the choice not to kill the one person. I say “ordinarily” here because it is possible that the agent in my example could hate one of those to be saved and refuse to save them for that reason alone, making use of the existence of an accepted limit on killing innocents as a socially acceptable explanation. In this case the intentional action is not-saving so as to contribute to the death of the hated person; the side effect of that decision, that the innocent is not killed, is a side effect the agent might or might not regard as a bonus. I am not discussing this sort of case. Of course, many people dispute the ethical significance of the distinction between what a person intends in acting and what a person accepts as a side effect of his or her intentional action. But there is a reason, compatible with the account I am developing, for attributing ethical significance to this distinction. The difference lies in the fact that it is always within one’s power to choose to do something or not, even if doing that sometimes is very unpalatable. But in the case of accepting the harmful side effects of intentional actions, there will inevitably be some of them no matter what one chooses to do or not to do. At the very least, whenever we choose one intentional action when faced with options, we leave unrealized the goods that choosing the other option would instantiate.10 10. For more on this, see Boyle, “Medical Ethics and Double Effect: The Case of Terminal Sedation,” Theoretical Medicine 25, no. 1 (2004): 51–60; in Boyle, “Who Is Entitled to Double Effect?,” Journal of Medicine and Philosophy 16, no. 5 (1991): 475–94, I criticize other attempts to

106  A rt icu l atin g a T he ory o f Natural Law And in very many actions, including most of those that provide the fodder for double-effect casuistry, intentionally promoting a good also has some bad side effects. Deflection cases illustrate this perspicuously: you turn a threat away from some—so far forth protecting good—with the anticipated result that it will fall onto others and harm them. As the variety of such cases suggests, there are moral norms applicable for determining which side effects falling on which people are morally acceptable. But one constraint that makes no sense is to avoid causing harmful side effects altogether. That is an impossibility and cannot be required by the good or anything else. So, in the double-effect cases, the directiveness of the good excludes destroying an instance of good even for a good cause. And the side effect of sticking with that conclusion is not necessarily excluded on the same ground, since some bad side effects are usually unavoidable. The responsibility-limiting character of the inevitability of causing some bad side effects in choosing implies that the absolute character of the norm prohibiting choices precisely to damage or destroy instances of basic human goods cannot be reasonably extended to voluntarily accepting side effects. That, of course, does not mean that it is permissible to do what has those side effects—only that, if they are wrong-making aspects of the action, it will not be in virtue of the sort of reasoning that can exclude precisely choosing against a good. Double-effect cases are usually seen as paradigmatically deontological. And by this point in my essay, its deontological flavor is unmistakable. Aside from the moral absolutism in the second of these constraints, in both of them the focus of moral concern appears to have moved away from state of affairs and into the choosing and the practical reasoning of the moral agent: in the Golden Rule cases to the imaginative exercise of exposing the unreasonable limits of affection, and in the double-effect cases of taking as morally decisive a difference in modalities of willing. The specifically moral is, therefore, a function of what is valuable, but is not identical with creating valuable states of affairs. Morality deals with the way we choose to pursue the good. This means that moral goodness is the specific goodness of willing rightly when there are competitors for our personal allegiance. That goodness is incommensurable with that of the goods of immoral options. give the intended/foreseen distinction and argue for my view of its justification. For the earliest statement of this view that I know about, see Finnis, Boyle, and Grisez, Nuclear Deterrence, 292.

I nc omme n s urab le G oods   107 Still, the criterion of willing rightly is the pursuit of good unfettered by nonrational motivation that is not integrated with the pursuit of the good. The prescriptions generated by reason acting to exclude these motivations are not simply the requirements of the good of practical reasonableness, seeking as it were to dominate other goods. The considerations emerging from the rational assessment and rejection of such motivations address precisely the requirements of reasonably pursuing the good when faced by incommensurable options. There, plainly found, is a shift in emphasis here from goods-based practical reasoning using the logic of comparison. This shift moves moral judgment to the neighborhood of the concern with the moral agent that is found in older, virtue-oriented relatives of ethical teleology, such as Aristotle’s moral theory. But I think the shift arises not because something else has displaced the instantiating of human goods as the point of human action, but because the incommensurability of the value of options significantly changes the shape of thinking about what is required in pursuing the good. I suggest that concern for the good plays out differently if and when(ever) the goods at stake in a choice are incommensurable.

5 / On the Most Fundamental Principle of Morality

The ethical theory John Finnis has adopted and developed includes an account of moral principle. In this approach to morality, fundamental moral principles justify more specific moral considerations, such as the norms guiding actions of specific kinds and the procedures for determining the all-things-considered judgments often needed to complete moral assessment. Thus, according to this conception of a moral principle, an act of killing an innocent person is wrong because features of actions of that kind, considered in the light of the basic moral principle, vindicate that moral judgment. In this contribution, I will consider this conception of moral principle. My specific concern is with a set of closely related issues raised by the several mature formulations by Finnis and his collaborators1 of what Finnis has called the “master principle of morality.”2 One of these formulations is an interpretation of the traditional directive that one should always act in accord with “right reason.” The gloss is that right reason is practical reason unfettered in its direction of choice and action by nonrational motivational factors that are not integrated with reason. So, the basic principle thus formulated would be: never choose except in accord with unfettered reason.3 More 1. Finnis developed his approach to moral theory in broadly collaborative work, some of which appears in coauthored publications; for simplicity I will generally refer to all work having Finnis as author or coauthor as his, without thereby denying the contributions of others, especially of Germain Grisez. I am happy to have been one of Finnis’s collaborators on some of the works in which the views I address here were developed. 2. See Finnis, Fundamentals of Ethics (Washington, D.C.: Georgetown University Press, 1983), 72, 76, 124, 127, and 151, for the original use of this name. 3. See Grisez, Boyle, and Finnis, “Practical Principles, Moral Truth and Ultimate Ends,” American Journal of Jurisprudence 32, no. 1 (1987): 121; see Finnis, “Legal Reasoning as Practical Reason,” in Reason in Action: Collected Essays (Oxford: Oxford University Press, 2011), 1:215–16. Grisez, “Natural Law and the Transcendent Source of Human Fulfillment,” in Reason, Morality,

108

Fu n dame n tal Pr in cipl e of Morali t y   109 commonly, the master principle is stated as a moral ideal: in voluntarily acting for human goods and avoiding what is opposed to them, one ought to choose and otherwise will those and only those possibilities whose willing is compatible with a will toward integral human fulfillment.4 Finnis’s discussion of these formulations suggests how they are related—as distinct but logically equivalent propositions that articulate moral principle from different perspectives. Both formulations appear to rely on the notion of “the integral directiveness of practical reason,” which was proposed as a definition of moral truth,5 but has not been clearly distinguished from the notion of unfettered reason. However, the integral directiveness of practical reason is not precisely the same idea as that of unfettered reason; the latter makes reference to factors that prevent reason’s working from being integral. So, the former idea is simpler. I will proceed, therefore, on the assumption that the traditional rule of following right reason (understood as following the integral directiveness of practical reason) can be usefully distinguished from Finnis’s interpretation of it as “unfettered reason.”6 Similarly, the integral directiveness of practical reason is not the same idea as that of integral human fulfillment: the latter refers to the ideal outcome that would come to be and unfold as the result of the whole set of possible good choices by everybody. The former notion, and Law: The Philosophy of John Finnis, ed. John Keown and Robert P. George (Oxford: Oxford University Press, 2013), 444, has proposed the following formulation: “When one’s feelings incline one to choose what reasons indicate is not to be chosen or not to choose what reasons indicate is to be chosen, one ought to choose in accord with reasons.” 4. Grisez, Boyle, and Finnis, “Practical Principles, Moral Truth and Ultimate Ends,” 128; Finnis, Boyle, and Grisez, Nuclear Deterrence, Morality and Realism (Oxford and New York: Oxford University Press, 1987), 283; Finnis, “Reason, Universality, and Moral Thought,” in Reason in Action, 129; Finnis, “ ‘Natural Law,’ ” in Reason in Action, 210. Grisez, “The True Ultimate End of Human Beings: The Kingdom, Not God Alone,” Theological Studies 69, no. 1 (2008): 57, argues that the integral fulfillment referred to in the formula cannot be limited to humans but must allow for a community including God and other intelligent beings. This improvement of the principle by restating it in terms of integral communal fulfillment does not directly affect the matters I will address here. 5. Grisez, Boyle, and Finnis, “Practical Principles, Moral Truth and Ultimate Ends,” 126. 6. It will become clear that these two ideas are very closely related: I suspect that the normative principle stated in terms of integral directiveness of practical reason and some plausible claims about human motivation imply the unfettered reason formulation and that the latter formulation implies the former. Even if these formulations are, in the end, less distinct than I suppose, I focus on them separately to allow for distinguishing the relationship of the distinctive application of practical reason to free choice, in which its integral directiveness is operative, from the relationship between the first moral principle and the factors preventing its integral working.

110  A rt i cu l atin g a T he ory o f Natural Law therefore, underlies the ideal of integral human fulfillment. This suggests that the integral directiveness of practical reason is a candidate to be the subject in the most basic formulation of the principle of morality.

The Integral Directiveness of Practical Reason and Free Choice Morality and Free Choice The relationship between moral principle and free choice is the essential element of the context in which Finnis’s conception of moral principle emerges. Specific moral norms, and so also moral principles, guide choices. To make a choice an agent must consider alternatives. That consideration is deliberation. Deliberating is a form of practical reasoning. Deliberating begins in articulating the causal and other connections between what one can do and an objective one considers realizing. The deliberation leading to free choice is called for by the fact that more than a single objective emerged as desirable in such a way that one has hesitated to do one action because of one’s interest in doing the other. One way to resolve the hesitation is by thinking about the options and then selecting in response to the results of the thinking. In choosing, the acting person selects one of the options presented in deliberation—that is, one responds to one of the judgments directing the choice of an option. One responds in choosing by beginning to realize the goal promised in the option selected rather than an alternative by executing the performance one believes will contribute to that. Choices made with the intention of a goal one will realize only if conditions outside one’s power obtain activate performances designed to make oneself ready to carry out that intention should those conditions obtain. When the choice is free, the rational and other considerations motivating the option chosen are not sufficient to determine it toward that option. One settles that for oneself by choosing. For this reason, one is responsible for the action chosen; the action done would not have been done without one’s choice, and that choice—the selecting and initiating—lacked sufficient causes prior to one’s own choosing. Since free choices are creative in the way just specified and are therefore irreducible to other volitional responses to practical judg-

Fu n dame n tal Prin cipl e of Moralit y   111 ments, they constitute a domain of reality that is sui generis. The creativity involved in human free choice is analogous to divine creativity: God’s creation is the irreducible source of the reality of all creaturely reality; one’s choosing freely is the naturally irreducible source of the actions for which one is responsible. The exercise of human freedom, though creative, is not necessarily arbitrary, since choice is responsive to practical judgment and practical judgments can be thoroughly informed by practical reason. Practical reason, in turn, is human intelligence directing action to goals that are worth realizing. This use of human intelligence to guide the creation of the sui generis domain of reality constituted by free choices is necessarily irreducible to its use in other domains. It is neither discovering and explaining facts about established creation, nor imposing rationality on the activities of thinking, nor shaping artifacts by intelligent manipulation of things. These uses of human intelligence are in turn used in practical thinking, but do not exhaust its distinctive task of directing human freedom.7 This conception of morality as the direction of human free choices is at least as widely denied as is the reality of free choice. Finnis’s suppositions that human beings can make free choices and that moral norms direct free choices have been defended at length by Finnis and his collaborators and by others in the broader natural law tradition they seek to develop. Consequently, I proceed in the following on Finnis’s supposition that moral standards are what provide the rational guidance of the distinctive creativity that we humans exercise in making free choices, and, consequently, that moral goodness is the reality created by choosing in accord with those standards.

Practical Reason and Its Principles Moral judgment is plainly a form of practical judgment—that is, it is a judgment that directs one person to shape a part of one’s unfolding life. It does this in a special way—to shape one’s life in accord with moral truth. Moreover, moral judgment presupposes options, and options cannot be articulated without thinking practically. Minimally, articulating an option involves judging that the goal it includes promises benefit. 7. The two points made in this and the preceding paragraphs are taken from St. Thomas Aquinas, interpreted and made his own by Finnis in Aquinas: Moral, Political, and Legal Theory (Oxford: Oxford University Press, 1998), 20–23.

112  A rt icu l atin g a T he ory o f Natural Law A judgment that a goal promises a benefit does not contain the specific, imperative prescriptivity of a moral judgment, but like a moral judgment it is directive: one judges that a certain way of acting (including refraining from acting) is to be undertaken. That supposes that one has a reason to shape one’s future in the way proposed by the reason. Understanding practical reason as the capacity to make such judgments presupposes a cluster of simple ideas about human action: that in acting one seeks to bring about a goal by doing something that one believes to be both in one’s power to do and capable of contributing to the realization of the goal. In thinking practically, one takes note of the causal relationships between what is in one’s power and what can foster or instantiate a desirable goal. Making use of these beliefs, one projects and anticipates that realizing the goal by action will be beneficial or useful. Although the realization of the goal is an individual event, one is interested in realizing it because one anticipates that it will instantiate some property or feature whose instantiation in or promotion by the goal will constitute a benefit or an empowerment. Thus, one goes on a diet anticipating a healthier future. Finnis follows Aquinas in holding that the features in virtue of which a goal is capable of motivating action are such because they are judged to be good—that is, because instantiating them by realizing the goals in which they are anticipated is judged to be a future worth bringing about, a future that includes the self the acting person determines himself or herself to be by so choosing. On this account, having reason to pursue these goals does not stop at the brute fact that an agent simply desires goals having these properties. The obtaining of these properties in the goals people realize by action is judged good, desirable—fit to be desired—or perfective, not simply noticed as what one wants. If the beneficial features of goals—that is, those features that are simply desirable and not desirable only because they enable further benefit—can be gathered into a set of genera of “goods,” and if these goods are common to human beings, then there could be a list of basic human goods—a list of the properties of possible goals in which human beings reasonably find the fulfillment that is available to human beings and their communities. Finnis again follows Aquinas in proposing such a list and largely accepts the appropriateness of the items on Aquinas’s list: survival, marriage, knowledge, social relationships, and religion, as well as practical reasonableness itself, are on both lists. Finnis also follows Aquinas in holding that there is a more funda-

Fu n dame n tal Pr in cipl e of Mo ra lit y   113 mental practical principle that is presupposed by the directive force common to any of the human goods considered practically. Aquinas proposed as the first principle of practical reason the proposition that good is to be done and pursued and evil is to be avoided. He held that this proposition is known through itself on the basis of the concept of the good as what all things desire—that is, as the desirable.8 If one accepts that this proposition is the most basic practical truth (although a minimally informative one), then it appears to function in practical thought much as does the principle of noncontradiction in thinking more generally. And like this principle, it plausibly is known through itself—that is, judged to be necessarily and underivatively true: the good relevant for human action is to be done and pursued. We are directed to pursue what we practically judge to be good and to avoid its contrary. As already suggested, the concept of the good as the desirable and the prescription that good is to be done do not by themselves contain the content of good; this definition and principle do not indicate what is practically good. That practical content—the actual elements that make up human good—is what the basic human goods provide; thus, these goods are also practical principles, basic practical propositions, directing that these properties are to be realized in goals human beings can aim to bring about. These practical principles are neither unattached, indubitable intuitions nor conclusions of inferences from facts about human nature. Since they are directions toward the fulfillment of the various dimensions of human beings, the workings of human nature provide data that, when understood practically, provide the concepts needed for the formulation of each of the basic human goods.9 The basic human goods are irreducible in their practical diversity; each good marks a domain of human fulfillment that is not a means to other, higher ranked goods, whether among the basic human goods or distinct from them and unifying them as a more ultimate good. Any such super-good would necessarily be a construct from the basic human goods, since the first principle directs human beings to the basic 8. ST I-II, q. 94, a. 2. 9. For Finnis’s discussion of this “induction” of basic practical propositions from the data provided in humanity’s natural inclinations, see the following in Reason in Action: “Introduction,” 2–3, 5; “Practical Reason’s Foundations,” 32–33, 38–39; “Is and Ought in Aquinas,” 148; “Prudence about Ends,” 177–79; “Commensuration and Public Reason,” 244.

114  A rt icu l atin g a T he ory o f Natura l Law human goods and to them alone. So, instances of the various categories of good are incommensurable in their goodness with instances of other goods. Similarly, the various possible instantiations within any category of basic good are often themselves incommensurable. The basic categories of good are generic and allow instantiations of properties that are not simply more or less of the very same intelligibility. For example, health, an aspect of the good of life, can be pursued by promoting irreducibly distinct and sometimes opposed goals. Medical procedures undertaken to lower mortality are for the sake of promoting the good of health, as are those undertaken to lower morbidity. Many procedures undertaken for the former predictably cause morbidity, and vice versa. There is no common property of healthiness that ranks such actions.10

Integral Directiveness Defined The considerations in the previous subsection indicate the essential contours of the practical reason presupposed by free choice. Considerations about human good are presupposed by having options. However, these considerations do not settle which option is to be preferred. Each option is supported by something judged to be beneficial or valuable for realizing benefits. In this situation of competition between goods, the rational appeal of each cannot by itself settle which to prefer. Therefore, the specific rational direction that moral norms provide for the exercise of freedom in choosing is not simply the direction provided by the goods motivating any of the options among which one must choose. However, since the common elements of practical reason are presupposed by choice, moral guidance makes reference to the human goods, the foundations of practical reason. Similarly, the goodness of choosing in accord with moral standards incorporates in some way the realization of basic human good. This essential reference to human good, however, does not settle how one is to be good precisely in choosing to realize some instance of human good rather than a different instance of a good that is perhaps in a different category of basic good. If, as many people suppose, instances of the basic human goods were strictly comparable in goodness, then the principles of practical reason themselves would be sufficient to resolve the competition be10. See Finnis, Boyle, and Grisez, Nuclear Deterrence, Morality and Realism, 251–61; Finnis, “Commensuration and Public Reason.”

Fu n dame n tal Pr in cipl e of Mora lit y   115 tween options based on human goods. On that supposition one option would be seen to be better or worse than the others, or they would be found to be equal in goodness. Among such comparable goods the prescription that one is to do good will have application: the rational pursuit of good, in the light of the logic of comparatives, mandates doing the greater good and avoiding the greater evil; it also directs us not to hesitate among options revealed not to differ in goodness. Through the logic of comparison, the principles of practical reason would acquire some minimal directive content in choice situations, but only if goods were commensurable. Finnis accepts that the content available to practical reason is entirely that provided by the basic human goods and that the first principle of practical reason provides no special content of its own that might be relevant to evaluating choices. He proposes, however, that in the context of choice it is possible to distinguish two ways these principles can work: practical reason can be directive in a partial, limited, or selective way or in an “integral” way. In formulating a single goal and the means to realize it, or in acting in the absence of the competition among goods needed for free choice, the difference Finnis has in mind does not (and I believe is not meant to) apply; practical reason directs the person toward realizing, through something the person can do, a goal instantiating or contributing to the instantiation of a basic human good. In that simplest case of deliberation and action (where the result of the “practical syllogism” is held to be an action),11 practical reason operates without reference to a framework that could discriminate partial from integral direction. The emergence of options, which calls for deliberation and choice among them, provides that context. When one deliberates among options, one’s reflection necessarily takes practical note of some impacts on some of the human goods implicated in the options—for example, one cannot avoid attending with interest to the goods grounding the desirability of the alternate goals 11. See G. E. M. Anscombe, Intention, 2nd ed. (Cambridge, Mass.: Harvard University Press, 2000), 57–67, for her account of this Aristotelian dictum. Aristotle and Anscombe appear to be dealing with only the single strand of practical reasoning that moves from desirability feature, through something a person can do to realize it, to action. The kind of deliberation and choice that is needed when there are options among which selection is required is not considered. The single strand of practical thinking Anscombe so plausibly explains is an element in the more complex practical reasoning Finnis holds to exist when deliberating about which of competing options to select.

116  A rt i cu l at in g a T he ory o f Natural Law that will be realized or not depending upon one’s choices. Similarly, the person deliberating will find it difficult to avoid considering with interest those side effects negatively affecting emotionally salient and favored goods, such as staying alive and uninjured. The deliberation undertaken in the face of options is completed in practical judgments; when the deliberation does not succeed in removing all but one option as a live possibility, deliberation will lead to several judgments about what to do. The reflection leading to these judgments is wide-ranging and broadly comparative, involving at least some attention to the goods and evils involved in the options. The context of this sort of reflection requires that it consider more than how to realize a good by acting for a goal we can achieve. I propose that when reflection on options is carried out as fully and thoroughly as possible, the judgment expressing that reflection is based on the integral directiveness of practical reason. That is, when all the relevant principles of practical reason are fully and consistently applied in deliberating to all aspects of options, the direction practical reason provides is integral. All the impacts on all aspects of human good of the action we deliberate about doing will be attended to practically if the result of deliberation incorporates the integral directiveness of practical reason. That integral directiveness unfolds in critical reflection on the entire set of motivations toward and away from aspects of the options among which one deliberates. Those motives may include factors not related to willing basic human goods. When reflection reveals that, it becomes clear that these factors are not a basis for rational action. Similarly, that deliberative reflection scrutinizes the goals that emerge in the conflicting options. Aside from the possibility that the goals might be desirable because of factors that are not thoroughly good, pursuing a goal because it promises to instantiate a basic human good often affects the rest of one’s life. Choosing to pursue a goal involves forswearing other actions and possibilities and so can limit one’s further pursuit of that good in other goals and of other human goods. Such reflection may lead the person to articulate other possibilities, options having similar goals but perhaps different ways to achieve them and different, less objectionable side effects. By contrast to the integral working of practical reason, a person deliberates in a partial or selective way when the result of deliberation— the judgment that this option is to be chosen—is based on practical

Fu n da me n tal Prin cipl e of Mo ralit y   117 reflection that fails to give force to the rational appeal of some aspect of an option or of the set of options that affects human good. A choice responsive to a judgment based on a selective application of the principles of practical reason is not informed by all the intelligible good available. Such a judgment, therefore, proposes to shape the future only partially in accord with what is good on the basis of motivating factors responsive to what is not intelligibly good or not responsive to what is intelligibly good. In the next part of this contribution, I will discuss how such nonrational factors can “fetter” the working of practical reason and how those factors can be exposed. In the book Nuclear Deterrence, Morality, and Realism, Finnis, Grisez, and I articulated the attitude toward goods expressed in the notion of the integral directiveness of practical reason as a matter of respect or appreciation of the goods,12 especially of those not directly in one’s sights in acting. But that should not be understood as the claim that the goods themselves and the first principle of practical reasoning have within them a deontological character that constrains the pursuit of good and the avoidance of evil. Good is to be pursued and evil is to be avoided; that, together with the content provided by the basic human goods, comprises (is the entirety of) what practical reason directs. The direction of choice by the integral application of practical reason might appear to be a deontology of goods because it directs us to attend practically to goods affected by our actions without limitation to the goods to be realized in the goals we pursue by adopting certain behaviors as means. However, that direction is the direction of the good as what is to be done and pursued and of evil as what is to be avoided, but now considered in its full directiveness, both toward the goods and away from the evils in the entire set of effects on basic human goods by all aspects of what we might choose to do. The appeal of the goods fostered or instantiated in goals is salient in deliberation; we begin to deliberate because we judge that several goals are worth pursuing. That interest in each of the competing goals is only a step away from action—which one would spontaneously do except for the interest in the alternative. But the rational appeal of other goods affected by aspects of prospective actions—that is, by the side effects and by the means—is not so central to the interests that provoke deliberation. For example, giving practical reality (as within one’s power to do 12. Finnis, Boyle, and Grisez, Nuclear Deterrence, Morality, and Realism, 283.

118  A rt icu l atin g a T he ory o f Natura l Law so) to the recognition that harming someone as a means or side effect is an evil to be avoided can remain in the background of one’s practical reflection. The practical prescription that these harms are evils to be avoided might falsely appear to be a constraint on pursuing one’s interests rather than thoroughgoing rationality in the pursuit of good. Such thoroughgoing rationality will direct the person to take note of side effects and means and to allow their relationship to good and its contrary to be given practical effect as far as possible. There are practically significant limitations here, since in choosing we inevitably set aside the pursuit of some goods or the avoidance of some evils as a result of choosing to pursue other goods or avoid other evils. So, giving practical effect to—that is, making real by one’s actions—all that is judged good and evil in alternatives for choice is beyond human power. However, we will complete deliberation integrally only in judgments that, while taking into account the inevitable limitations of human power, incorporate the directiveness of all the goods involved.

The Integral Directiveness of Practical Reason Provides the Criterion for Morally Good Choice The integral directiveness of practical reason carries through to completion a process of practical thinking that is unavoidable in deliberating among options for choice. Carrying that process through to its end allows a fully rational assessment of the options for choosing. All the impacts on goods of all aspects of the options will be considered, not just noted theoretically. Their rational appeal is given voice and attention as human power allows. A free choice responsive to such an outcome of deliberation will be as reasonable as a choice can be, since it will be responsive to all that is reasonable and to nothing besides that (since integral reflection will expose such things as failing to provide reasons to act). One might wonder why this idea of choosing reasonably should provide the criterion for morally good choices and so constitute the basic principle of morality. Since the analysis has now arrived at the point where the truth of a fundamental principle is proposed, I cannot claim to provide anything like a demonstration. Several considerations must suffice. Free choices can be responsive to a practical judgment that results from practical reason functioning integrally or to a judgment that re-

Fu n da me n ta l Prin cipl e of Mo ralit y   119 sults from something short of that. The former choices are as fully in accord with all that rational reflection can deliver as is possible for beings whose creativity involves doing some good, but not all, at the price of not doing some other good or causing some harm. That form of rationality is distinctive, since it directs free choices—the creative choices constitutive of this domain. The rationality directing the creative choices constitutive of this domain is necessarily not reducible to that of logical consistency, or to that of the rationality of decision making among commensurables, or to other decisiontheoretic prescriptions for social cooperation. Volitional responses to those judgments are settled by them if there is not a breakdown in a person’s motivational operations: recognizing incoherence leads naturally to willing the coherent; recognizing a greater good or univocally more rational course of action naturally evokes pursuit of that greater good or of the more rational course. Practical reason directing choice by way of an integral judgment does not settle one’s choice, as these forms of rationality would do wherever they were applicable. It indicates that an option is fully reasonable, but the judgment is not sufficient, because of the complexity, multiplicity, and incommensurability of the factors considered, to settle what the person will choose and do. The fact that choices can respond to practical reason working integrally, joined with the fact that the direction this working of practical reason provides is appropriate to the irreducible reality constituted by free choices, underlies the basic prescription that only choices responsive to practical reason working integrally should be chosen. Perhaps one could dispense with claiming that this prescription provides a “moral” standard and say simply that it articulates a basic norm for choosing in accord with appropriate rationality. Even so, something can be said about the propriety of this rationality constituting the ultimate moral standard. There is a clear sense in which choosing in accord with the integral directiveness of practical reason provides the standard for what one should choose—that is, what one ought to choose, understanding “ought” as it is ordinarily associated with moral obligation. The goods that will not be served or will be harmed by refusing to choose in response to a selective, nonintegral application of practical reason nevertheless remain goods to be done; the judgment to which a selective use of practical reason leads remains directive, and indeed it is possible that a person will choose the option thus recommended. These goods

120  A rt icu l atin g a T he ory o f Natural Law ought not, however, to be pursued in choices responding to this result of selective deliberation. The rational force of that obligation is rooted in the integral directiveness of practical reason; that force gives one reason to override not only the de facto urgency of desire but also the prescriptivity of the good that remains in the option one sets aside because of the selectivity of the deliberation supporting it.

Unfettered Practical Reason In this essay’s first part, I proposed that the integral directiveness of practical reason provides a basic moral standard. This account of moral principle obviously does not indicate how more specific moral principles and moral norms are to be justified by reference to the basic principle. Moreover, this formulation invites but does not answer the question about what could prevent practical reason from operating fully and integrally as a person deliberates in the face of options for choice. The idea that a person’s practical thinking can be fettered or not addresses both these issues, and in so doing provides a somewhat less abstract version of the basic moral principle than the version formed on the idea of the integral directiveness of practical reason. What sort of reality is this fettering of practical reason? A fetter is literally a chain or shackle on a person’s foot. Fetters restrain or confine. So, practical reason is fettered if it is confined or restrained. This does not mean that the acting person does anything or makes any choice to fetter his or her practical reason, but simply that this thinking is somehow chained down. There are deliberate choices to fetter one’s practical reason, but, like all choices, they will presuppose the workings of practical reason, with its directiveness either functioning integrally or selectively (and rather clearly functioning selectively in this case). So, not all fettering of practical reason can be a human action.13 The general proposition that unfettered reason is practical reason 13. This conclusion may appear contrary to several statements in Grisez, Boyle, and Finnis, “Practical Principles, Moral Truth and Ultimate Ends,” 124, such as “Thus, the vengeful person chooses, fettering reason by one of its own practical principles”; and at 125, “Immoral choice fetters reason by adopting a proposal to act without adequate regard for some of the principles of practical reason, and so without a fully rational determination of action.” This appearance arises on the assumption both that these statements are more than elliptical statements that bad choices manifest the fettering of practical reason (rather than creating it); and that these statements affirm that all fettering of practical reason is by or in choosing. Here I am rejecting the latter assumption, since some fettering must be prior to choice, because choice responds to a practical judgment, which in the case of an immoral choice must be a fettered judgment.

Fu n dame n tal Prin cipl e of Mora li t y   121 operating without limitations or restrictions adds a thought to the idea of the integral directiveness and suggests another. The added idea is that the dynamic of practical reason is toward its full and integral use and that this dynamic will carry through to its end unless prevented. The suggested idea is that there are identifiable kinds of factors that prevent the integral directiveness of practical reason from functioning and thereby cause it to operate only selectively. The idea that practical reason includes a dynamic toward the result its integral directiveness would reach is justified in the context of deliberating about options among which one must make a free choice. The application of practical reason in choice situations involves applying it widely. There is no point short of its integral application that provides a natural limit on its use. Perhaps there are factors that can sometimes overcome practical reason so that deliberation and choice become impossible. Insanity, states of diminished consciousness, and, perhaps sometimes, overpowering fear or desire might make practical thought, deliberation, and choice impossible. Such situations are not cases of reason fettered, but rather of reason altogether overcome and absent. What fetters reason must constrain, not overwhelm, it. Consequently, a fettering factor must be capable of influencing practical judgments such as that an option should be chosen. Unless fettering factors work within this structure of practical thinking, the factors that might render a free choice immoral would not be capable of functioning within the context in which free choices are possible. Factors capable of constraining the full working of practical reason will be found among the cognitions and motivations that can somehow figure into deliberation, choice, and action. The direction practical reason proposes is ultimately based on the basic human goods; that direction cannot fetter its own working. Distorted conceptions of a genuine human good are certainly possible and relevant to reason’s being fettered, but it is not practical reason itself that generates the distortion. Rather, it directs that good is to be done and indicates the goods that are to be done. Something beyond these directions is needed if they are to be constrained. Similarly, the volitions responsive to practical judgments about human goods will not fetter practical reason’s working except to the extent they are responsive to something besides the goods— for example, such as fragments or appearances of goods. Consequently, other cognitions and motivations are the likely fettering factors.

122  A rt i cu l atin g a T he ory o f Natural Law Those other cognitions include nonpractical judgments about such things as human power and causal connections. However, these judgments as such do not constrain practical reason but delineate possibilities for action and the limits of human power; practical reason uses these judgments for its purposes. And, as we saw, practical reason working soundly from its principles does not fetter itself. Like other animals, humans also acquire information from sensory experience, both external and internal to the organism’s body. That information can be stored in memory and manipulated in imagination. Such information is often practically relevant, and that relevance can be articulated by practical reflection on the information. Insight into that information allows propositional formulation and reference to human goods and to human possibilities. We humans not only understand sensory information; like other animals, we react to it: information that registers as repulsive or dangerous or desirable triggers appropriate motivation; like other animals, we behave in response to those motivations. What medieval philosophers called “sensory appetite” indicates this class of motivations. These are motivations responsive to sensory information, understood broadly as including imagination and memory. Given that we are animals, such sensory motivation is closely connected to some of the basic human goods such as survival, health, and the affectionate elements of human sociality. However, the internal and external factors whose awareness by nonhuman animals triggers motivations such as fear in the face of what registers as impeding danger, anger in response to threats, or desire for the satisfying do not always, in the case of humans, point in the direction toward which practical reason, integrally applied, directs. One can be motivated by fear to avoid doing what is completely reasonable but dangerous; one can be motivated by desire for satisfactions that are in the situations in which they are sought either unhealthy, or selfish, or irreligious, or otherwise unwise. This kind of motivation is the likeliest source for the factors that can fetter practical reason. This is so because other elements of motivation, deliberation, choice, and action seem incapable of constraining practical reason and because it is clearly possible, as the examples in the previous paragraph suggest, for these motivations to operate within a person’s exercise of practical reasoning without simply overwhelming it. One’s wanting something or fearing something obviously affects

Fu n dame n ta l Prin cipl e of Mo ralit y   123 one’s deliberation about actions dealing with the desired or feared realities. Ordinarily, they play a role within deliberation, perhaps by suggesting options, by highlighting and favoring some outcomes at the expense of others, by bringing deliberation to a (perhaps premature) close, and by other such influences. These influences point to objects that can be understood practically as goals instantiating goods. Sometimes these motivations accurately indicate a goal in which a genuine human good is instantiated—as when one reasonably judges some rest as a way to realize the good suggested by sensory reluctance to continue to carry on exhausting labor and chooses that option after careful reflection on the situation. In this case the sensory motivation is integrated with practical reason. Sometimes, however, the goods articulated on the basis of the suggestions of sensory motivation are incomplete or distorted, and the very urgency of the motivations prevents full critical reflection upon the underlying fragments of human good. In such cases the goal articulated and the good that provides reason for its pursuit are inadequate; they are not integrated with practical reason directing integrally. The exhausted person who is reluctant to carry on, but who knows that the labor is morally imperative, and whose wish for rest prevents careful consideration of the alternative—carrying on—provides an example. I suspect that precise mechanisms through which sensory motivations can limit or distort the integral direction of deliberation but not simply overwhelm practical reason are manifold and more complex than my examples suggest. The examples used by Finnis to exhibit this notion suggest this complexity.14 However, it is not necessary to sort out these complexities for Finnis’s central claims about the fettering of practical reason to be credible. These claims include the following: (1) that the directiveness of practical reason can be fettered; (2) that reflection can identify the fettering factors—namely, sensory motivation that is responsive to imagination and sensory awareness, but not integrated with practical reason; and (3) that identification allows the judgment that these motivations unreasonably shape the results of deliberation affected by them. Examples can clarify these claims. The desire to stay alive is obviously connected to the good of life; however, the urgency of this desire is not measured by the good of life or by the integral working of practi14. See Grisez, Boyle, and Finnis, “Practical Principles, Moral Truth and Ultimate Ends,” 123–24; Finnis, Boyle, and Grisez, Nuclear Deterrence, Morality and Realism, 284–87; Finnis, “Legal Reasoning as Practical Reason,” 1:215.

124  A rt i cu l atin g a T he ory o f Natural Law cal reason operating when a choice about what to do to survive is called for. Absent that urgency, the choice to kill an innocent, or to deny one’s faith, or treacherously to betray a friend in order to save one’s own life or that of a beloved person (or even something much less dramatic such as spending the family fortune to stay alive a bit longer) will be understood clearly as choices not simply responsive to the basic human good of human life, but as choices shaped by emotionally dominated selfinterest or failure to subordinate feelings of terror to the goods affected by choices raised by the fearful prospect. In the presence of that urgency, the selective application of practical reason results in a judgment that for the sake of the good of life one should, for example, choose to kill an innocent person. Choosing on the basis of such a judgment is acting on the basis of fettered reason. Unfettered, integral reason is needed to correct that judgment and rule out and condemn that choice. In this example, the urgency of desire to stay alive fetters reason without suppressing it altogether (as could happen if the terror of being killed simply overcame one’s rational powers). Perhaps this urgency distracts the person from fuller, more integral deliberation; perhaps it leads the person to overlook the precise directives of practical reason as they bear upon the evils to be avoided, evils that are pursued as instrumental goods in the choice to, say, kill or betray for the sake of saving one’s life. The urgency of this motivation naturally favors some options that arise in the face of death. When that urgency is not integrated into the direction provided by the human goods, it can prevent the full and integral application of practical reason to those options. Of course, that more reasonable result can be reached by conscientious deliberation that can expose any such limiting of practical reason. Exposing such fettering of practical reason allows a practical judgment fully expressing the directiveness of practical reason functioning integrally and well in proposing what is to be chosen. The importance for moral reasoning of the idea that practical reason can be fettered and can become unfettered emerges by noting how these conceptions can be used to generate more concrete moral principles and specific moral norms. An example shows how this can be done: sensory motivation favors goals in which goods are anticipated for oneself and for those near and dear and slights the harms to others that are the means or side effects of pursuing these goals. Sometimes favoring the benefits of one’s goals to oneself and others is completely reasonable: doing this accepts responsibility for one’s own life, serves

Fu n da me n ta l Prin cipl e of Mo ralit y   125 goods that otherwise cannot be served, and accepts harmful side effects to others only as reasonable or unavoidable. But plainly that favoring and slighting often are not integrated into practical rationality. Invoking the considerations of fairness expressed in exercises of imagination such as the Golden Rule serves to clarify the difference between the integrated and nonintegrated functioning of our natural tendencies to favor some persons and to slight the interests of others. So fairness as exhibited in the use of the Golden Rule emerges as a moral principle by considering facts about human motivation and then directing that they be assessed in the light of an imaginative exercise in which the connection between the motivations and the relevant human goods is exposed. The demands by the goods of sociality to act for peace and potential friendship with those we affect by action, together with the fact that the basic human goods are understood to provide fulfillment not only for oneself and one’s own but for human beings as such, should be shaping practical judgments affecting others. The imaginative experiment that the Golden Rule enjoins shows when the sensory motivations involved in such actions are or are not integrated with practical reason’s integral working. This is but one instance of a moral principle that depends upon and implements the idea of unfettered practical reason. Another wellknown instance is provided by the example of choosing to kill an innocent to save one’s own life. Here unfairness exists, but there is another fettering limitation on practical rationality as well. For the life I save is an instance of the good of human life, and the life I destroy for the sake of that instance of good is also an instance of that same good. These are incommensurable, but one is subordinated to the other, as if they were commensurable, without good reason, but not without a natural preference we can all understand, yet not accept as fully good. These cases exemplify what Grisez and his collaborators, including Finnis, call “modes of responsibility.”15 By specifying some aspect of sentient motivation that, when not incorporated into a fully reasonable direction for action, skews and constrains practical reason, one can, by exposing it and testing to determine its possible integration or nonintegration into practical thought, distinguish the integrated from the 15. Grisez, “Appendix 1: Human Acts and Moral Judgments,” in The Way of the Lord Jesus, vol. 3, Difficult Moral Questions (Quincy, Ill.: Franciscan Press, 1997), 861–69, provides the most systematic attempt to locate the sources of fettering factors and to test for their inappropriate influence on deliberation.

126  A rt icu l atin g a T he ory o f Natural Law nonintegrated workings of the motivations in question. In making this separation based on facts about human motivations and tests to reveal their failure to fit into a plan of integral practical rationality, one has moral guidance with enough content to generate—articulate more or less philosophically—more specific moral norms; in the fairness example, norms of justice and fair play emerge concerning such matters as distributing benefits and burdens of social cooperation and helping the needy; in the example of killing innocents to survive, a norm emerges immediately that excludes without exception the intentional killing of the innocent even for the sake of one’s own survival.16 In a word, the formulation of the first moral principle in terms of unfettered reason is an essential expansion of the formulation in terms of the integral directiveness of practical reason. Only this expansion makes clear that intermediate moral principles and specific moral norms follow from the most basic moral considerations.

Integral Human Fulfillment The version of the first principle most commonly invoked by Finnis is that stated in terms of integral human fulfillment. Choices and any other volitions for which humans are responsible are said to be morally good if and only if they are consistent with willing this ideal. The ideal is constructed by considering a community comprising all human beings and, indeed, in Grisez’s more recent formulations, all rational creatures and God. All choices in this morally ideal community would be shaped by moral truth, so the fruit of all these choices would be “the fulfillment of all persons in all the basic goods.”17 Finnis provides several clarifications to prevent misunderstanding. First, the fulfillment of all people in all the goods is not the individualistic fulfillment of each of them alone. The goods can be shared by all humans and in some way by all rational creatures; some goods, like friendship, involve fulfillment of people as members of communities. Second, integral human fulfillment is not a vast, final state of affairs to which common action could be a means, since the basic human goods are open-ended. Third, integral human fulfillment is not a further good, 16. See Finnis, Natural Law and Natural Rights, 2nd ed. (Oxford: Oxford University Press, 2011), 100–130, for the development of the modes of responsibility and some of their more specific implications. See also Finnis, Boyle, and Grisez, Nuclear Deterrence, Morality and Realism, 284–95. 17. Grisez, Boyle, and Finnis, “Practical Principles, Moral Truth and Ultimate Ends,” 128. This is the original statement of the integral human fulfillment formulation.

Fu n dame n tal Prin cipl e of Mo ralit y   127 a super good beyond the basic human goods, but their fully rational unfolding in a morally ideal community.18 With some hesitation, I propose that the idea of this formulation is the following: considerations made simply in terms of the integral directiveness of practical reason (even as expanded to include the unfettering of reason) provide only the procedure for determining that a choice is morally good. The procedure delivers a criterion for goodness in choice and so moral goodness. It remains entirely cognitive, practically cognitive, but still propositional. Only the choice to conform to the criterion constitutes a reality that is morally good. That realization of moral goodness is essentially related to the fulfillment of persons in human goods, since choices select among options in which goods are instantiated or fostered. The actualization of moral goodness will therefore include the fulfillment of persons in human goods, and the ideal projected in this formulation invites the largest possible view of what that fulfillment would be. It delineates what reality, specifically the domain of reality constituted by free choices, would be like insofar as all the morally good choices shaped it as fully as possible.19 Indicating something of the shape of a reality created by good choices is a valuable addition to the dialectic concerning moral principles. In particular, it is useful for showing that the version of natural law Finnis espouses is not indifferent to realizing human good. Its focus, however, is on the realization of human good in and through choice and in accord with practical reason functioning integrally. The ideal of integral human fulfillment is, therefore, important for responding to results-oriented moralities such as utilitarianism and its structurally similar egoist rivals and for clarifying that “goodwill” cannot be understood independently of human good, as Kant appears to have held. However, while the principle that one ought to choose only those possibilities whose willing is compatible with a will toward integral human fulfillment is a correct construction from the first moral principle, its construction suggests that it is limited in the ways it can function as a basic moral principle. First, the construction of the ideal moral community involves a number of concepts people might lack who nevertheless have the ca18. Finnis, Boyle, and Grisez, Nuclear Deterrence, Morality, and Realism, 283–84. 19. I offer the remarks in this paragraph as an interpretation of Grisez, Boyle, and Finnis, “Practical Principles, Moral Truth and Ultimate Ends,” 128: “This formulation focuses on the principle of morality insofar as it is a principle of moral goodness which actualizes moral truth.”

128  A rt i cu l atin g a T he ory o f Natural Law pacity to deliberate and make free choices. Ideas about the fulfillment of all persons in all intelligible goods likely have not occurred to many who have choices to assess morally. If this principle is known through itself (and not a deduction from the requirement that one ought to choose in accord with the integral directiveness of practical reason), the concepts in virtue of which it is so are not those available to all people (and so it would be, in Aquinas’s vocabulary, “known through itself but not to all,” and perhaps only to the wise or at least the learned). If this is correct, one can be morally good without knowing this truth. But one cannot be morally good without some understanding of what it is to choose in accord with the dictates of conscience. The ideas connected with unfettered reason are closer to the concepts needed to engage in deliberation. This suggests that willing toward integral human fulfillment is of secondary importance for guiding choices. Second, this formulation directs us to consider an ideal that is thought of as willed, at least hypothetically, and against which our actual choices and intentional actions are to be compared. That ideal provides a sketch of what the fruits of morally good choices would be in the community in which all the fulfillment by rational creatures in all basic goods could unfold. But that ideal does not indicate what actual goals one could pursue to realize moral goodness in one’s own choosing. For an ideal is not a goal: ideals can be wished for or wanted, but only goals are intended. Moreover, this particular moral ideal is not one a person alone or in cooperating with other human beings could choose to realize. The coming to be of a complete community in which integral human fulfillment obtains is surely beyond human power to realize, although, as Grisez has shown,20 God has set up conditions that would allow human beings to cooperate in working for a community very much like that. In other words, this formulation of the basic principle does point to the fruits of morality as they would unfold on a global scale, but it does not point to the fruits of morality that a person can seek to realize in his or her life. Those fruits must be realized in goals a person can choose to realize, not in ideals. There are moral goals. A person can aim to be and can choose to be conscientious and responsible in some matter, or in many, or to shape his or her personality so as to be habitually conscientious in all the choices to be faced. That often takes self-denial and discipline; these 20. Grisez, “True Ultimate End of Human Beings.”

Fu n dame n tal Prin cipl e of Moralit y   129 are definite means taken for real goals that instantiate human goods. Similarly, one can aim to remain or become a steady, fair-minded participant in civic society and in other communities. And one can aim to cooperate with God and avoid sinning. The goals pursued in these choices are obviously moral goals. And the goods they instantiate, foster, or protect are basic human goods. Human beings are fulfilled by the relationships established in morally upright choices to conform to practical reason, to interact reasonably with other people, and to cooperate with God. These are what Finnis has called “reflexive goods,” reflexive because they include choice within the definition of the good.21 The intended goals of these actions might be hard exactly to pinpoint and individuate but they are doubtless genuine goals one pursues by choosing certain actions one thinks can contribute to achieving and protecting them, just as staying healthy is a long-standing goal or related set of goals pursued and protected by many actions over time. Moral goodness is not in itself ideal; it obtains when people choose in accord with the integral directiveness of practical reason. The import of that directiveness can certainly be illuminated by reference to a morally ideal community. But the realization of the moral goodness comes precisely in choosing rationally and in the proper fruits of such choices. Those fruits are realized in moral goals—the future selves we realize by aiming to be conscientious, just, and pious in pursuing the other basic human goods. Since these moral goals instantiate basic human goods, the motivation that ideals as such cannot provide is fully in place. We can be motivated to respond to the integral directiveness of practical reason because we can judge, for example, that the fulfillment anticipated when we organize the elements of our very selves, by harmonizing our feelings and choices under the stable and satisfying direction of reason, instantiates a basic human good. It seems to me, therefore, that Finnis’s discussion of the good of practical reasonableness and the other reflexive goods draws our attention more directly and effectively toward the reality of moral goodness than the ideal formulation of willing integral human fulfillment could.22 21. See, for example, Grisez, Boyle, and Finnis, “Practical Principles, Moral Truth and Ultimate Ends,” 108. There are at least three such goods: sociality is partially constituted by choices in which we relate to others; religion similarly is constituted by making choices that constitute what we can do about our relationship to God; and practical reasonableness or conscientiousness is constituted by choices human beings make about the elements of their self-judgment, feelings and motivations, and choices. All of these goods are harmonies among elements including choices; each allows for the harmony to be realized more or less adequately and in rather different ways. 22. See Finnis, Natural Law and Natural Rights, 88–90.

• Section 3 / Intention and Double Effect

6 / Double Effect and a Certain Type of Embryotomy

The Principle of Double Effect (hereafter PDE) has long been a mainstay of Catholic moral theology.1 Although this doctrine is not unanimously endorsed by contemporary Catholic moralists, it continues to be a subject of some interest among both secular and religious moralists.2 J. P. Gury, SJ, gave the PDE its classic modern formulation in his often revised manual Compendium Theologiae Moralis: “It is licit to posit a cause which is either good or indifferent from which there follows a twofold effect—one good, the other evil—if a proportionately grave reason is present, and if the end of the agent is upright—that is, if he does not intend the evil effect.”3 In a gloss on this statement Gury makes it clear that he intends the PDE to be comprised of four conditions for the permissibility of performing an act having an evil effect. The condition not explicitly stated is that “the good effect be immediate.” He explains this condition by noting that if the good effect were brought about through the evil effect (nonnisi mediante illo pravo effectu bonus effectus provenit), one An earlier version of this essay was presented at the April 1975 meeting of the Michigan Academy of the Arts. I thank Holly S. Goldman for the helpful comments she made then. I also thank Richard Berquist, Germain Grisez, James Hanink, Kevin McDonell, and Stephen Schwarz for comments and criticism. Another version was completed and many provisions developed while on a College Teachers in Residence fellowship of the National Endowment for the Humanities. 1. See F. J. Connell, “Double Effect, Principle of,” The New Catholic Encyclopedia (New York: McGraw-Hill, 1967), 4:1020–22; Joseph Mangan, SJ, “An Historical Analysis of the Principle of Double Effect,” Theological Studies 10, no. 1 (1949): 41–61. 2. Richard A. McCormick, SJ, Ambiguity in Moral Choice, 1973 Pere Marquette Theology Lecture (Milwaukee: Marquette University Press, 1973), and the literature cited there are skeptical of the doctrine. Its interest to secular and religious moralists is especially notable in the ethics of killing, medical ethics, and discussions of war and suicide. 3. J. P. Gury, SJ, Compendium Theologiae Moralis, 2nd ed., rev. A. Ballerini, SJ (Rome and Turin, 1869), 7. The translation is mine.

133

134  A rt icu l atin g a T he ory o f Natural Law would have a case of doing evil so that good might come about—a violation of the proscription of Romans 3:8.4 Clearly, the PDE gives rise to many questions—for example, questions about the normative significance of the distinctions used and about the theory of action and intention presupposed. There is also a question about whether the PDE can be consistently and nonarbitrarily applied to cases. This question is forcefully raised by the discussion of the application of the PDE to the well-known case of an embryotomy or fetal craniotomy where necessary to save the mother’s life. The question is why procedures of this type are not justified by appeal to the PDE while other seemingly analogous cases are justified by its use. This question leads to a dilemma. Either one insists that the PDE does not justify the procedure, and then one is open to the charge of arbitrariness in applying the PDE and to the suspicion that the PDE is nothing more than a piece of sophistry used to justify actions that obviously are permissible but that cannot be justified by traditional Catholic moral theory, or one allows that an embryotomy to save a mother’s life can be justified by appeal to the PDE, and then one seems to provide a basis for justifying many cases in which an evil means is used to bring about a good end—precisely the result that Gury and other doubleeffect theorists intend to avoid. Thus, the dilemma apparently created by this type of embryotomy is a destructive one. Either one arbitrarily refuses to justify the procedure in question or one justifies it only to destroy the moral intuitions that the PDE embodies. The effort to be consistent about the application of the PDE leads to the destruction of its normative basis. Faced with this dilemma, one might give up the PDE altogether or radically revise it. But one might embrace the first horn of the dilemma and argue that the refusal to use the PDE to justify the embryotomy in question is not arbitrary. I do not find this response as plausible as many traditional double-effect theorists no doubt would. Like them, however, I wish to retain the PDE in something like its traditional form. I will, therefore, argue that even if the second horn is embraced, the destructive consequence does not follow. One can allow this type of embryotomy and consistently refuse to allow cases of the kind that the traditional double-effect theorist regards as illicit.

4. Gury, Compendium Theologiae Moralis, 8.

D o ub l e E f f e ct a n d E m bryotom y   135

The Embarrassment of the Craniotomy Case In using the phrase “the craniotomy case” to refer to an embryotomy performed under certain conditions,5 I do not mean to refer to any case in which the skull of the fetus is crushed or its body dismembered. Nor do I wish to refer to all cases in which an embryotomy is medically indicated.6 Rather, I wish to consider a single type of case—a case that arises if a woman is in labor but cannot deliver the child because it cannot pass through her pelvic cavity. If the labor is not terminated the woman will surely die; the only way to terminate labor is to remove the fetus by craniotomy or other embryotomy.7 Apparently, situations of this type are rare; perhaps they no longer occur at all.8 My interest, however, is in the analytical ethical issue to which the case gives rise—an issue that is important for understanding the PDE. In 1884 the Holy Office declared that it may not safely be taught in Catholic schools that craniotomy is licit, even if it is the only way to save the mother’s life. In 1889 the Holy Office explained that the decree of 1884 was to be understood as applying to “every surgical operation which was a direct killing of a fetus or of a pregnant mother.”9 5. See Edwin F. Healy, SJ, Medical Ethics (Chicago: Loyola University Press, 1956), 250, for a definition of the relevant terms. In a craniotomy the skull is perforated, its contents emptied, and the skull collapsed. Any mutilating operation upon the fetus may be called an “embryotomy.” 6. Apparently, there are two kinds of indications for this type of procedure—disproportion of dimensions and positions that render birth impossible. The latter includes cases in which the embryotomy is not the only possible way to terminate the labor and thus do not fall into the type I am considering. See Charles O. McCormick, A Textbook on Pathology of Labor, the Puerperium and the Newborn, 2nd ed. (St. Louis: C. V. Mosby, 1947), 82, 109, 341ff.; see also Albert Niedermeyer, Compendium of Pastoral Medicine, trans. Fulgence Buonanno, OFM (New York: J. F. Wagner, 1961), 206; and Patrick Finney, CM, Moral Problems in Hospital Practice (St. Louis and London: B. Herder, 1947), 83–95. 7. See Charles Coppens, SJ, and Henry S. Spalding, SJ, Moral Principles and Medical Practice (New York: 1921), 51, for a vivid description of the type of case in question. Several concrete cases of this type are described by Healy, SJ, Medical Ethics, 251–54. 8. See N. J. Eastman and L. M. Hellman, Williams Obstetrics, 13th ed. (New York: AppletonCentury-Crofts, 1966), 1100: “Widespread prenatal care, more astute management of pelvic contraction, antibiotics, and improvements in caesarean section have rendered craniotomy an exceedingly rare operation in modern obstetrics”; Charles O. McCormick, Textbook on Pathology of Labor, 341; see also Niedermeyer, Compendium of Pastoral Medicine, 210; Finney, Moral Problems in Hospital Practice, 93–95; and T. L. Bouscaren, SJ, The Ethics of Ectopic Operations, 2nd ed. (Milwaukee: Bruce, 1944), 6–11. 9. These quotes are cited from Bouscaren, The Ethics of Ectopic Operations, 12–13. Bouscaren quotes these texts in full and provides the Latin and the questions to which the Holy Office responded.

136  A rt icu l atin g a T he ory o f Natural Law It appears that the Holy Office, along with those who posed the questions to it, assumed that a craniotomy is always and necessarily a case of direct killing.10 If it is a case of direct killing, then certainly it is justly proscribed by application of the traditional prohibition against the direct killing of the innocent. But even if this assumption is correct, the craniotomy case could become a potential embarrassment for the double-effect theorist only if direct killing is understood as that type of killing that fails to meet one or more of the criteria of the PDE. Of course, it is natural to understand direct killing as that killing in which the resulting death either is intended or is immediate or is the effect of a cause that may not morally be posited.11 And if direct killing is understood in this way the embarrassment does arise, for it is not easy to show that the craniotomy case is a case of direct killing in this sense. Certainly, the performance of the craniotomy is directly doing something, but this is not evidently the killing of the fetus. What is evidently intended and immediately brought about is the fetus’s being unstuck or, even more immediately, the dimensions of its body—or of some vital part—being changed. Moreover, recent discussions suggest very strongly that what is not evident cannot be demonstrated—namely, the proposition that the fetus’s death is directly brought about. H. L. A. Hart has argued that the craniotomy case cannot be distinguished, with respect to the directness of the bringing about of its deadly effect, from the case of the hysterectomy of the cancerous uterus of a pregnant woman in which the uterus would be removed if the woman were not pregnant—a procedure generally regarded as permissible according to the double-effect principle. Yet in such cases (hysterectomy and craniotomy) it could be argued that it is not the death of the foetus but its removal from the body of the mother 10. This is surprising, since the thesis that the embryotomy was a case of indirect killing was defended by several nineteenth-century moralists. See John Connery, SJ, Abortion: The Development of the Roman Catholic Perspective (Chicago: Loyola University Press, 1977), 225–303, for a discussion of the controversy in the nineteenth century. 11. The only alternative to such an understanding of the relation of direct killing and the conditions of the PDE is to suppose either that it is related to the condition that requires a “proportionally grave reason” or that these conditions are not jointly sufficient for the permissibility of an act—that questions of directness must be considered in addition to the conditions of the PDE in order to determine the permissibility of an act. The first alternative appears implausible; the second removes the potential difficulties of the craniotomy case for the PDE but, I believe, raises difficult questions about why the conditions of the PDE are not jointly sufficient for an act’s permissibility and why the added consideration of directness should be morally relevant.

D o ub l e E f f e ct a n d E m bryotom y   137 which is required to save her life; in both cases alike the death of the foetus is a “second effect,” foreseen but not used as a means to an end, or an end. Hence, if the craniotomy is contrasted with the removal of the womb containing the foetus as a case of “direct” killing, it must be on the basis that the death of the foetus is not merely contingently connected with the craniotomy as it is with the removal of the womb containing it. But it is not clear that the supposition of the survival of the foetus makes better sense in the one case than the other.12

The last sentence of this argument seems to be both false and irrelevant. In late pregnancies fetuses have survived hysterectomies. But, more important, the inevitability of the effect is not what is relevant. What counts is its place in the means/end sequence and its relation to the intention of the agent. Its inevitability, if relevant at all, might be an indication of these. Hart’s argument, however, is worth considering. It supposes a prior point of Hart’s: “A foreseen but unwanted outcome will be taken to be intended if it is of a kind so immediately and invariably connected with action of the kind done that the connexion is regarded as conceptual rather than contingent.”13 It is perhaps worth noting that Hart’s argument does not require the sufficiency of the connection’s being nonconceptual or logically contingent for rendering the effect unintended. It is also worth noting that Hart shares with the double-effect theorist the controversial assumption that one can distinguish between what one foresees he will bring about by his action and what is a part of his intention in acting.14 The discussion of this assumption would take us far afield; what is relevant in the discussion of the craniotomy cases is the question of where this distinction is to be drawn, assuming that it can be. With these considerations in mind, Hart’s argument can be reconstructed as follows: 1. (a) If an effect of one’s intended act is related to this act in a nonconceptual way, and (b) if this effect is not the means to one’s end or itself the end of one’s act, then (c) one need not intend this effect and the bringing about of this effect is indirect. 12. H. L. A. Hart, “Intention and Punishment,” in Punishment and Responsibility: Essays in the Philosophy of Law (Oxford: Clarendon, 1968), 123–24. 13. Ibid., 123. 14. See Henry Sidgwick, The Methods of Ethics, 7th ed. (New York: Dover, 1966), 202, and R. M. Chisholm, “The Structure of Intention,” Journal of Philosophy 67, no. 19 (1970): 636.

138  A rt icu l atin g a T he ory o f Natural Law 2. The death of the fetus in the craniotomy case is not conceptually related to the crushing of the fetus’s skull. 3. The death of the fetus in the craniotomy case is not the means to the agent’s end of saving the mother’s life, nor is it the agent’s end. 4. The killing of the fetus in the craniotomy case is not a case of direct killing. Phillipa Foot has disputed Hart’s claim that an effect can be unintended if it is not conceptually connected to an act—the connection I have stated in (1) between (a) and (c).15 She argues that, although Hart’s interpretation of the double-effect doctrine is “perfectly reasonable given the language that is used,” it would make nonsense of the doctrine from the start. She claims that we cannot treat two descriptions of the same event as if there were two events, one of which is aimed at and the other not. “And even if it be argued that there are here two different events—the crushing of the child’s skull and its death—the two are obviously much too close for an application of the doctrine of the double effect.”16 She goes on to present a counterexample that is to serve as a reductio of Hart’s application. A group of explorers are trapped in a cave. Water is rising in the cave. There is but one small exit, inextricably blocked by a fat member of their party who is firmly stuck in the exit. The only way to escape is to blow the fat man out of the hole with a stick of dynamite. Suppose that the trapped explorers were to argue that the death of the fat man might be taken as a merely foreseen consequence of the act of blowing him up. (“We didn’t want to kill him . . . only to blow him to small pieces,” or even “only to blast him out of the mouth of the cave.”)17

Foot holds that the craniotomy is no more allowed by the doubleeffect principle than is the explorers’ use of dynamite. I believe that those who use the doctrine of the double effect would rightly reject such a suggestion, though they will, of course, have considerable difficulty in explaining where the line is to be drawn. What is to be the criterion of “closeness” if we say that anything very close to what we are literally aiming at counts as if part of our aim?18 15. Phillipa Foot, “The Problem of Abortion and the Doctrine of the Double Effect,” in Moral Problems, ed. James Rachels (New York: Harper and Row, 1971), 31. 16. Foot, “Problem of Abortion and the Doctrine of the Double Effect,” 31. 17. Ibid. 18. Ibid.

D o ub l e E f f e ct a n d E m bryotom y   139 Foot’s question about a criterion for “closeness” is an important one. It is not clear, however, that she has shown Hart’s criterion to be faulty. To achieve this, her counterexample must be a case that is both obviously impermissible and precisely analogous to the craniotomy in those features that might be relevant to its moral evaluation or to the perception that it is not permissible. The first of these conditions is not clearly met;19 the second is clearly not met. Foot’s colorful description of the explorers’ deliberation notwithstanding, the double-effect theorist can admit that the killing of the hapless fat man is not direct; his death is not what opens the cave but rather his being removed from the entrance. But this similarity does not require that the double-effect theorist regard the two cases as morally identical, for, unlike the craniotomy, Foot’s example involves several behaviorally distinct acts for the escape to be accomplished—namely, the blowing of the man out of the entrance and the actual evacuation of the cave by the explorers. In the craniotomy case there is only one piece of behavior—the crushing of the skull that enables the labor to be completed. In other words, the side effects in each case are side effects of rather different types. In Foot’s case the deadly deed establishes a condition that is necessary but not sufficient for the escape; in the craniotomy case the deadly deed is sufficient to remove the threat on the woman’s life. The two cases are, then, different, and thus, even if Foot is correct in supposing that the PDE does not justify her case, it does not follow that it does not justify the craniotomy. The structural differences in the two cases could certainly provide a basis for refusing to extend her perception about the explorers’ case to the craniotomy case, and they might provide a basis for grounding a different moral judgment on the two cases. Proposition (1), therefore, escapes Foot’s criticism. However, the question raised by Foot needs further consideration: is a side effect outside the agent’s intention if it is not conceptually connected to what the agent intends in acting? I think an affirmative answer to this question is in order. My view is supported by the double-effect theorist’s handling of the hysterectomy and killing in self-defense;20 in both of these the death may sometimes be foreseen to follow with causal necessity and simultaneously with the good effect. 19. See James G. Hanink, “Some Light on Double Effect,” Analysis 35, no. 5 (1975): 149. 20. See ST II-II, q. 64, a. 7 for the classic treatment of self-defense. This will be considered later in this essay. In Boyle, “Praeter Intentionem in Aquinas,” Thomist 42, no. 4 (1978): 649–65, I argue, in effect, that Aquinas’s views are consistent with premise (1).

140  A rt i cu l at in g a T he ory o f Natural Law The reason for accepting a criterion such as Hart’s is, I believe, that the double-effect theorist must hold that actions (or descriptions of actions) that are to be morally evaluated are the bringings about of certain intended states of affairs (or the descriptions of these bringings about just insofar as they are the bringings about of such intended states of affairs).21 Unless such an understanding of actions is employed the distinction between an act and its side effects is contingent upon arbitrarily chosen descriptions of the concrete causal sequence initiated by the agent, and the agent’s intention becomes irrelevant for determining what he did. On this understanding of the relation between acts and intentions, the PDE can be no more than a principle of subjective excusability; it cannot be a principle of objective permissibility or justification.22 It follows from the view of action proposed here that what is not included in or entailed by the intended state of affairs is not part of the action—or the morally relevant description of the action. Thus, Foot’s observation that there are not two events but only two descriptions of the same event does not establish her point that the cases under consideration have effects too closely related to what the agent does for the application of the PDE. In both cases there are two states of affairs—the skull’s being collapsed and the fetus’s dying, the fat man’s being blown up and his dying—that are causally and not intrinsically related. Premise (2) also seems to me to be true. The bringing about of the death of the fetus is clearly not conceptually related to relieving the pressure on the woman or to saving her life. If it is related to these ends it must be as a means. More to the point, the bringing about of the death of the fetus is not conceptually related to the performance of the craniotomy. It seems to be logically possible that the craniotomy be performed and the fetus not be killed. The fetus’s death is entailed by the craniotomy and the relevant physical laws and the present state of medical technology. As L. Geddes has pointed out, “The surgeon must 21. I understand these states of affairs to be what the scholastics call the “formal object” of the act that gives the act its essential character. For a contemporary understanding of acts along these lines, see G. H. von Wright, Norm and Action: A Logical Enquiry (New York: Humanities Press, 1963; London: Routledge and Kegan Paul, 1963), 39–41, and The Varieties of Goodness (New York: Humanities Press, 1963; London: Routledge and Kegan Paul, 1963), 123–25. 22. The PDE has, of course, been understood as a principle of permissibility or justification and not as a principle of excuse. See William Conway, “The Act of Two Effects,” Irish Theological Quarterly 18, no. 2 (1951): 128–30. It is hard to see how the PDE could function plausibly as a principle of excuse.

D oub l e E f f e ct a n d E m bryotom y   141 remove the child from the mother’s womb; the dimensions of the child are such that if the surgeon attempts to remove it without changing these dimensions the mother will surely die. He therefore alters these dimensions in certain ways. A necessary but quite unneeded and unwanted consequence of the procedure is that the child dies.”23 But R. A. Duff has contended that there is a logical connection between crushing the skull and killing the fetus. But there is surely a logical absurdity in suggesting that I can intend to decapitate, or cut into small pieces, or remove the heart of, a living human being, without thereby intending his death; it comes close to the madness of the man who cut off his wife’s head during the night “to see her surprise when she woke up in the morning, and realized she was headless”; or of a man who admits that he intended to knock a policeman off his car by colliding at speed with other vehicles, but denies that he intended to injure him.24

Duff’s contention here is based upon his belief that conceivability or imaginability is not the criterion of logical possibility. He proposes a narrower conception but neither delineates it nor argues for it. Such arguments as he has, therefore, seem to be these supplied by his counterexamples, which are quoted previously. The example of the man who cut off his wife’s head to see her surprise when she awoke is surely not serious. One cannot intend what one believes to be causally impossible—that is, a beheaded person’s showing surprise—which is not to say that one must intend what follows from one’s act with causal necessity. Thus, the stated aim of the act could not be, at least for most people, the intention of the act. It is in this impossibility that the madness of the claim resides and not in the supposition that his wife’s death need not be intended. Moreover, to intend such a surprise one would have to intend the head’s being cut off. The cutting-off seems to be a necessary means to the allegedly intended reaction. Thus, even if the wife’s death could be unintended, her head’s being cut off cannot. Such an intention renders the act thus intended such that it—clearly—does not fulfill the proportionality condition of the PDE. In the second example it seems possible—without invoking wildly implausible situations—to suppose that someone could intend to knock 23. Leonard Geddes, “On the Intrinsic Wrongness of Killing Innocent People,” Analysis 33, no. 3 (1972): 94–95. 24. R. A. Duff, “Intentionally Killing the Innocent,” Analysis 34, no. 1 (1973): 17.

142  A rt i cu l atin g a T he ory o f Natural Law a person from his car without intending to injure him. The two might be in training together—as stuntmen, etc. Moreover, “intention” has a technical legal sense that is broader than the sense used in formulating the PDE,25 and even if the claim that there was no intention to harm were true, it does not follow that the driver was not criminally negligent in failing to prevent predictable harm to the policeman. Thus, I take premise (2) to be established: the bringing about of the death of the fetus is not conceptually related to the crushing of the fetus’s skull. Premise (3) also appears to be true. The death of the fetus in no way contributes to the continuance of labor and thus to saving the mother’s life, and thus the bringing about of this effect just as such is not a means to these ends. On the face of it, it is not the killing that removes the threat; the means here appears to be the craniotomy itself insofar as it alters the dimensions of the skull in order to allow labor to proceed. It is the dimensions of the fetus’s skull being altered and not its being dead that saves the mother’s life. This can be seen by considering the fact that the surgery would be required if the fetus whose position threatened the woman were already dead. As Geddes has said, “But in the obstetrical example the killing of the infant cannot plausibly be thought of as having any effects desired by the surgeon; the death of the unborn child is not responsible, in any way, for the fact that the mother is now alive. . . . Clearly the death of the child does not enter into consideration as a means to anything. So, in the relevant sense, the killing of the child was not intended by the surgeon, either as an end in itself or as a means to an end.”26 Thus, the bringing about of the death of the fetus is not the means to the relieving of the pressure. It is the craniotomy itself that is the means and not its causally inevitable consequence. In short, premise (3) is established. If I am correct, all three premises are established, and my reformulation of Hart’s argument is sound. Nevertheless, the traditional double-effect theorist is likely to remain unimpressed. Even if he concedes that the foregoing argumentation is sound and that, therefore, the fetus’s death can be unintended and is not, strictly speaking, the means to saving the mother’s life, he can argue that the argument stops far short of establishing its conclusion. It has not been shown that the craniotomy meets the first condi25. See Anthony Kenny, “Intention and Purpose,” Journal of Philosophy 63, no. 20 (1966): 642–51. 26. Geddes, “On the Intrinsic Wrongness of Killing Innocent People,” 94–95.

D o ub l e E f f e ct a n d E m bryotom y   143 tion of the PDE—that positing the initial cause is morally permissible. Is not the craniotomy intrinsically immoral even if the deadly effect is neither intended nor a means? Presumably, the inherent malice of the craniotomy is grounded in the view that this procedure is essentially a harmful and destructive act; it essentially violates the fetus’s right to life and to bodily integrity. But I have already argued that the fetus’s death can be a side effect and, thus, implicitly that its right to life is not directly violated. Other lesser harms to the fetus can be analyzed in the same way, as can other violations of fetal rights. Thus, in the case under consideration the craniotomy is not essentially destructive; it is essentially an act of changing the shape of the fetus’s dimensions. But the resources of the anti-craniotomy double-effect theorist are not exhausted. He can point out that it has not been demonstrated that the good effect is “immediately” brought about. The argument so far has proceeded on the assumption that the good effect is immediately effected if the bad effect is not a means to it in the strict sense of being that which just as such contributes to its realization. This assumption is not evident, and many double-effect theorists would deny it. The notion of the immediacy of the good effect is meant to also exclude the causal priority of the bad effect to the good effect.27 To answer this objection two issues must be addressed. First, is the bad effect causally prior to the good effect in the craniotomy? Second, should the temporal priority of the bad effect be relevant in determining whether the good effect is immediate? In response to the first question, it should be recalled that in a craniotomy the contents of the skull are removed, and this kills the fetus; then the skull is crushed, and thereby the labor is permitted to continue. The deadly part of the procedure is the first part. Of course, in other cases of embryotomy the deadly deed might very well be simultaneous with the therapeutic effect. 27. See Conway, “Act of Two Effects,” 130–33, for a listing of various traditional formulations of this condition of the PDE; most are susceptible to the understanding I propose but can be read as also excluding causal priority of the bad effect. Henry Davis, SJ, Moral and Pastoral Theology, 6th ed. (London: Sheed and Ward, 1949), 1:13–14, is clear about this: “A good effect also issues from the act, at least as immediately and directly as the evil effect, that is to say, provided that the evil effect does not first arise and from it the good effect.” Germain Grisez, “Toward a Consistent Natural Law Ethics of Killing,” American Journal of Jurisprudence 15, no. 1 (1970): 87–89, argues that the confusion of means/ends relations and cause/effect relations is a major deficiency in traditional formulations of the PDE.

144  A rt i cu l atin g a T he ory o f Natural Law More importantly, this does not mean that the death of the fetus is causally prior; it occurs first. But the state of affairs of the fetus being dead does not contribute to the immediate end—the changing of the shape of the fetus. The deadly deed contributes to this end but not insofar as it is deadly. Thus, the evil effect is temporally prior, but it is not properly causally prior. Moreover, in response to the second objection, a negative response seems in order, even if this entails a revision or clarification of the PDE as usually understood. Surely if one effect is what brings about another, the latter is not immediate. But if two effects are the result of a single cause, the temporal priority of the one does not make the other mediate with respect to it. The fact that a part of the craniotomy procedure has a lethal effect that occurs before the craniotomy is completed and thus is enabled to achieve its good effect of allowing labor to continue does not require that this good effect be mediated by the lethal effect. Perhaps this good effect is mediated by something—for example, by the parts of the procedures insofar as they contribute toward its completion. But surely not by the side effects of these parts.28 In a word, the temporal priority of one effect to another does not by itself make the latter mediate with respect to the former. If the obtaining of one effect contributes causally to the obtaining of another, then the second is mediate with respect to the first. But to be the effect of what brings something about is not to be its cause. This understanding of what is immediate is supported by examples in which actions are justified by the PDE. The just warrior might know in a given case that certain noncombatants would be killed before his military aim could be destroyed. And this would not change the morality of the situation. A cycle-regulating hormone could be known to have contraceptive effect before the cycle was effectively regulated, and so on. Finally, the answers to these objections and the entire argument against the attempt to understand the craniotomy as a case of direct killing can be understood by comparing it to the analysis of killing in self-defense provided by St. Thomas Aquinas. Sometimes, Aquinas claims, it is possible for an act to have two effects, one of which is outside the scope of one’s intention. Such is 28. This point is overlooked by Paul Ramsey in his discussion of examples used to criticize Grisez’s version of the PDE; see Ramsey, “Abortion: A Review Article,” Thomist 37, no. 1 (1973): 214–19.

D oub l e E f f e ct a n d E m bryotom y   145 the case when one justifiably kills in self-defense. There is a single act with two effects—saving one’s life and killing the attacker. One does no wrong in performing this act if one intends only to save his own life and if one has no way of defending himself short of killing his assailant. Aquinas goes on to point out that the death of the attacker may not be morally intended by a private person.29 The structure of the craniotomy case is precisely similar. There is a piece of behavior—the craniotomy—that has two effects: the killing of the fetus and the saving of the mother’s life. The latter alone is intended. The lethal effect of the craniotomy follows causally from the minimum required to save the woman’s life. If the killing of the fetus is a means to saving the mother’s life, then so would the killing of the attacker be a means to saving one’s own life. If either were a means, then the death in each case would necessarily be the state of affairs defining the act. The behavior in one case is the craniotomy, in the other—perhaps—shooting a gun. What is intended in the latter case is one’s self-preservation— what one is doing is defending himself or, more immediately, thwarting an attack. In the other, one’s intention is saving the mother—what one is doing is saving her life—or more immediately changing the dimensions of the skull. I can see no distinction: like the act of self-defense, the craniotomy is an act with two effects—one deadly, one lifesaving. There does seem to be a difference between the two cases, and some double-effect theorists would regard this difference as morally important. The attacker against which one defends himself is guilty of an injustice, whereas the fetus is completely innocent. In response several points must be made: First, St. Thomas, unlike many other scholastic moralists, does not introduce the question of the injustice of the attack into his analysis. What’s more, those who do make use of this feature of the self-defense case use it to justify direct killing—that is, the killing is a means to saving one’s life.30 What is at stake here, of course, is whether the craniotomy is indirect killing, and so the argument about whether the fetus is a “materially unjust aggressor” is not to the point; that argument assumed that if the fetus were 29. ST II-II, q. 64, a. 7. 30. See Joannis de Lugo, SJ, De Justitia et Jure, Disputatio X, Sectio VI, nos. 148–49; here de Lugo states Aquinas’s position on whether one may intend the death of the attacker. He then denies it. See also A. Van Hove, “Circa Quaestionem De Defensione Occisiva Contra Injustum Aggressorem,” Ephemerides Theologicae Lovanienses 6 (1929): 655–64; and the material discussed by Mangan, “An Historical Analysis of the Principle of Double Effect,” 45–46, 54.

146  A rt i cu l atin g a T he ory o f Natural Law shown to be a materially unjust aggressor it could be directly killed.31 It is perhaps plausible to think that the fetus’s being a materially unjust aggressor is grounds for justifying the direct killing of the fetus.32 But it is difficult to see how this could be relevant to the directness or indirectness of the act. In the case of self-defense, it is the threat presented by the attacker and not his guilt or the justice of his attack that enables the deadly deed to have a threat-removing and not a death-dealing intent. Likewise in the craniotomy. No doubt questions of guilt and justice are relevant to determining the morality of the act of removing the threat, but they do not make the effects of the removal directly brought about. If relevant, such considerations would fall under the proportionality condition of the PDE. They might weaken the force of obligation to be more concerned for one’s own life than for that of the attacker—or for the mother’s life than for that of the fetus. Thus, one could concede that the craniotomy is indirect killing and still maintain that special features of the fetus, such as its innocence and dependency, require us not to act against it even indirectly. A consideration of this possibility, however, is beyond the scope of my interest. To sum up: the attempt to treat the craniotomy as a case of direct killing has serious difficulties. I do not see how it can be done. I turn now to consider whether conceding that the craniotomy is indirect killing has the bad consequences that might be supposed.

Implications of Regarding the Craniotomy as Indirect Killing No doubt the assumption that the craniotomy is a case of indirect killing will expand somewhat the class of effects regarded as indirect and contract somewhat the class of effects regarded as direct. Only those effects that as such contribute to the realization of one’s end or are intrinsic to such effects will be directly brought about; the consequences of bringing about such effects, including the immediate causal consequences, are not directly brought about. But does this understanding of what is direct and indirect imply that any act may be described as indirect, thus allowing the end to justify the means and destroying the 31. See Bouscaren, Ethics of Ectopic Operations, 20, 49–52. 32. The arguments against this view are in my opinion compelling; see Bouscaren, Ethics of Ectopic Operations, 49–52.

D oub l e E f f e ct a n d E m bryotom y   147 entire motivation for the use of the PDE? I think not, and will try to show this by considering some examples. In abortion cases, some that have been regarded as direct killings will be indirect if I am right. Some of these are direct abortions—the removal of the fetus is what is therapeutic; but they are not direct killing unless the death of the fetus is part of what is sought or contributes to what is sought.33 Moreover, Judith Jarvis Thomson has made a convincing argument that shows, in effect, that a class of direct abortions that are not properly therapeutic are nevertheless indirect killing.34 The class of abortions Thomson has in mind is that in which the woman exercises her right to remove the fetus from her body—a right that, she emphasizes, is not the same as the right to kill the fetus.35 Thomson thinks that considerations such as these establish that abortion is permissible. But the double-effect theorist need not admit this even if he acknowledges, as I believe he should, that the killing is indirect. In cases of the type discussed by Thomson, it seems that the proportionality condition of the PDE is not met. One’s respect for human life, if properly disinterested, would seem to create an obligation to accept the inconveniences imposed on one’s body by the presence of the fetus within it. This obligation seems especially strict where one has voluntarily accepted pregnancy or the chance of pregnancy. This important point can be illustrated by St. Thomas’s discussion of self-defense. After establishing that the death of the attacker can be outside the agent’s intention, he says: Therefore an act of this type, from the fact that it is the preservation of one’s own life that is intended, does not have an illicit character since it is natural for anyone to preserve himself in being insofar as he can. Nevertheless it can be that a certain act proceeding from a good intention can be rendered illicit if it is not proportioned to the end. And thus if someone in defending his own life uses more force than is necessary, it will be illicit. . . . Nor is it necessary for salvation that he forgo this act of moderate defense to avoid the death of the other because a man is more bound to provide for his own life than for the life of another.36 33. I would apply this type of analysis to ectopic pregnancies; it provides a more plausible analysis, I believe, than Bouscaren, who identifies direct abortion and direct killing; see Ethics of Ectopic Operations, 148–57. 34. This is my way of putting the matter, not Thomson’s. 35. See Judith Jarvis Thomson, “A Defense of Abortion,” Philosophy and Public Affairs 1, no. 1 (1971): 47–66, especially 66. 36. ST II-II, q. 64, a. 7.

148  A rt i cu l atin g a T he ory o f Natural Law Clearly, Aquinas thinks that in addition to the killing’s being indirect at least two other conditions must be met for the deadly act of self-defense to be permissible. Similar conditions would have to be met if the type of abortion Thomson defends is to be permissible. It does not seem to me that such conditions can be met in the cases she had in mind, but showing this will take us far afield. It does not follow from the fact that a certain type of abortion is indirect killing that it is permissible. Furthermore, it is not the case that any abortion can be understood in the way Thomson proposes. There are many types of abortions where the death as such is intended as a means. In cases where the fetus is aborted because it is unwanted or because it is defective or because of its effect on population or in other similar cases, the death of the fetus—or at least getting rid of it, or its nonexistence—is precisely the intention. To intend to get rid of a living thing entails the intention of its death. A consideration of some cases of moral conflict that can be justified only if one assumes that the end justifies the means shows that the analysis of the PDE used in my discussion of the craniotomy case does not imply the acceptance of this assumption. Let us suppose a situation in which terrorists kidnap a number of people and promise to kill them unless some official, call him Jones, whom they particularly hate, is executed by the government. In this case it is precisely Jones’s death that must be brought about to effect the release of the hostages. Bringing about Jones’s death is clearly a means to the desired end. It is Jones’s death as such, or perhaps the government’s bringing about this state of affairs, that contributes to the release of the prisoners. Jones’s death cannot, therefore, be a side effect of the means to effecting the release. It is the means. And it is not a side effect of the act of releasing the prisoners, since this latter is the act of the terrorists and the execution is the act of the government. The distinctness of the acts is shown by the fact that the terrorists could raise the stakes after Jones was executed. Thus, the bringing about of Jones’s death is a case of direct killing and could not be justified by the PDE. Several variations on this case further reveal the difference between it and cases like the craniotomy. Suppose Jones, out of concern for the fate of the hostages, had volunteered to be executed by the government. It seems to me that this alternation does not significantly change the deliverance of the double-effect principle: his execution would still be intended, a case of direct killing, and a means to bring about the release of the hostages.

D o ub l e E f f e ct a n d E m bryotom y   149 The case would, however, be different from the point of view of the PDE, if Jones were willingly given over alive to the kidnappers and not executed by the government. In this case Jones’s death is expected, but neither Jones nor the government need intend his death. His deliverance to the kidnappers is a means to the release of the hostages. It is not a means to Jones’s death except to the extent that his deliverance is the act of the kidnappers who intend it as a means to killing him. A different variation is had by removing the intermediary agency of the kidnappers. Suppose that the kidnappers were able to set up an irrevocable mechanism such that the hostages would be killed by the mechanism unless they are released by Jones’s being attached to the mechanism, and Jones will be killed by being attached to the mechanism. In this case a single event—Jones’s being attached to the mechanism—brings about both Jones’s death and the release of the prisoners. It seems to me that, assuming that Jones is willing to die to save the hostages, this action could be countenanced by the PDE. What Jones is doing is releasing the hostages. His death, though foreseen, is not intended as an end or as a means and is not conceptually connected with either. Rather, it is a causal consequence of what he does. Variations on the well-known trolley case show a pattern similar to that found in the variations on the case just considered. Suppose that a trolley has lost its brakes and is careering toward a group of people who are on the tracks and cannot get off. Someone on a bridge over the tracks sees the situation developing and realizes that the only way to stop the trolley and save the lives is to put a heavy weight in front of the trolley. A fat man happens onto the bridge. May he be forcibly thrown onto the tracks—an act that will surely kill him? Most people would say that it is not morally permissible to forcibly throw the fat man onto the tracks, but it may appear that his death can be unintended and, thus, that this case is quite parallel to the craniotomy. It seems to me that the fat man’s death can be unintended; the aim of stopping the trolley is not the fat man’s death but the lives being saved. The fat man’s demise is not what saves the lives, but—like the death of the fetus in the craniotomy case—it is causally connected with the lifesaving act. But there is more to the trolley case than a trolley-stopping that is both lifesaving and lethal; it also includes the forcible throwing of the fat man onto the tracks. It is not at all clear that one may morally do such a thing. In fact, it seems that one cannot. Moreover, the foregoing

150  A rt i cu l at in g a T he ory o f Natural Law analysis makes clear why we should think very differently about a case in which the fat man had volunteered, or saw the situation himself, and jumped onto the tracks. Likewise, it is not clear that one would be obliged to warn the fat man if he should be on the tracks between the trolley and the endangered group. The difference between these cases and the original one seems to be that in that case the fat man was forcibly thrown onto the tracks. It seems to me, therefore, that it is in this aspect of the original case that the moral intuition of the wrongness of the act is rooted. The other cases show that there is nothing intuitively immoral about a trolley-stopping that is both lethal and lifesaving when it is brought about with only the intention of lifesaving. If the basis for the perceived wrongness of the first case were the directness of the killing, then it would be hard to see how the lethal act might be permissible in the latter cases. Examples could be multiplied, but I think that the relevant points have emerged and could be defended further only by a thoroughgoing discussion of action theory. In those cases that most clearly violate both the spirit of the PDE and common moral intuitions—cases like the killing of Jones to secure the release of hostages—the evil effect must be intended. In cases of this sort, bringing about the evil effect is a means to achieving some greater good or to avoiding some great evil. The evil effect, then, is part of what one intends to do, whereas in cases like the craniotomy and killing in self-defense the evil effect is not intended; it is not part of what one intends to do but is brought about in doing what one does. In those cases in which the evil effect can be unintended but nevertheless seems to be impermissible—for example, the trolley case—there are other moral considerations that bear upon the case. The fourth condition of the PDE can thus be invoked. In sum, the dilemma has evaporated. Although the attempt to show that the craniotomy is a case of direct killing has been found wanting, one can admit that it is indirect killing without destroying the moral basis of the PDE. This admission does not imply that the end justifies the means or that one must radically alter one’s views about what is and is not morally permissible. The PDE is, thus, not an incoherently used piece of sophistry. Objections to it must be substantive objections to the view of intention, to the relation between intention and action, and to the normative theory that it presupposes.



7 / Toward Understanding the Principle of Double Effect

The Principle of Double Effect (hereafter PDE) has long been a mainstay of Catholic moral thinking.1 In recent years, however, the use and discussion of this doctrine have not been limited to Catholics or to theologians.2 The PDE, or propositions closely related to it, have come up for considerable discussion by English-speaking philosophers.3 In spite of this discussion, however, the PDE remains something of a mystery. As I hope to show, its purpose, its essential claims, and its presuppositions are not adequately understood. This lack of understanding is due both to the difficulties and ambiguities in traditional formulations of the PDE and to the fact that its central conceptions are either foreign or contrary to much of contemporary ethics and action theory.4 The work for this essay was begun while on a College Teachers in Residence Fellowship of the National Endowment for the Humanities. I have profited from discussing the issues taken up here with R. M. Chisholm and Alan Donagan. I thank Germain Grisez for help on several drafts of this essay. 1. See Joseph Mangan, SJ, “An Historical Analysis of the Principle of Double Effect,” Theological Studies 10, no. 1 (1949): 41–61; J. Ghoos, “L’Acte à double effet: Étude de théologie positive,” Ephemerides Theologicae Lovanienses 27 (1951): 30–52; and F. J. Connell, “Double Effect, Principle of,” The New Catholic Encyclopedia (New York: McGraw Hill, 1967), 4:1020–22. 2. E.g., Paul Ramsey, the eminent Methodist theologian, makes extensive use of the PDE; see his War and the Christian Conscience (Durham, N.C.: Duke University Press, 1961). For a nontheologian, see G. E. M. Anscombe, “War and Murder,” in War and Morality, ed. R. Wasserstrom (Belmont, Calif.: Wadsworth, 1970), 50–51. 3. See, e.g., Philippa Foot, “The Problem of Abortion and the Doctrine of Double Effect,” in Moral Problems, ed. James Rachels (New York: Harper and Row, 1971), 28–41; Jonathan Bennett, “Whatever the Consequences,” Analysis 26, no. 3 (1966): 83–102, and the ensuing discussion; Alan Donagan, The Theory of Morality (Chicago: University of Chicago Press, 1977), 122–27, 157–64. 4. See Germain Grisez, “Toward a Consistent Natural Law Ethics of Killing,” American Journal of Jurisprudence 15, no. 1 (1970): 73–79, for a critique of certain aspects of traditional formulations.

151

152  A rt icu l atin g a T he ory o f Natural Law The purpose of this essay, therefore, is to state plainly the propositions involved in the PDE and at least some of the propositions concerning intention, action, and moral responsibility that must be true if some version of the PDE is to be defensible and morally relevant. I will not seek to defend or criticize these propositions here. My aim is to state them clearly and thus to make possible a more intelligent and more decisive discussion of the PDE. The classic modern formulation of the PDE is presented in J. P. Gury’s widely used and often revised manual Compendium Theologiae Moralis: “It is licit to posit a cause which is either good or indifferent from which there follows a twofold effect, one good, the other evil, if a proportionately grave reason is present, and if the end of the agent is honorable— that is, if he does not intend the evil effect.”5 In a clarification of this statement Gury makes it clear that the PDE contains four conditions, all of which together are required for the type of act in question to be licit: (1) the agent’s end must be morally acceptable (honestus); (2) the cause must be good or at least indifferent; (3) the good effect must be immediate; and (4) there must be a grave reason for positing the cause.6 The determination of what constitutes a grave reason is a matter of normative ethics that I will not consider here; moreover, it is sufficiently clear that a grave reason is required to bring about an evil state of affairs—one that it would presumably not be licit to bring about except under these conditions.7 The sense of “immediate” in the third condition seems to be that the evil effect may not be a means to the good effect. This is suggested by Gury’s remark that, if the good came about through the evil effect (mediante pravo effectu), good would be sought through evil, and this can never be moral.8 Thus this condition allows that the evil effect should follow from the good effect, or that the evil effect and the good effect should follow independently from the cause, but not that the good effect should follow from the evil effect. The second condition—that it must be morally permissible to posit the cause—suggests that the cause that brings about both effects can be 5. J. P. Gury, SJ, Compendium Theologiae Moralis, 2nd ed., rev. A. Ballerini, SJ (Rome and Turin, 1869), 7. The translation from the Latin is mine. Mangan, “Historical Analysis,” 60–61, provides a translation from the fifth German edition of Gury’s entire treatment of the PDE. 6. Gury, Compendium Theologiae Moralis, 8. 7. This condition can, but need not, be understood in a consequentialist way. It can be understood as requiring that relevant obligations other than those bearing on the directness or indirectness of the bringing about of the evil effect be considered. 8. Gury, Compendium Theologiae Moralis, 8.

T he Pr in cipl e o f Do ub le E ffe ct   153 morally evaluated independently of either of its effects. Thus, we may take the first condition to refer to a human undertaking, the executing of a choice, that can be the subject of moral evaluation independent of the good and evil effects that are brought about. The application of these four conditions to many cases has been widely controverted. But several clear examples show how it is intended to work. The killing of noncombatants in a justified military action is one example used by Gury: the action may be justified—even if it is foreseen that some noncombatants will certainly be killed—if killing them is not a means of achieving one’s military objective, since in this case undertaking the action may be presumed to be in itself good, the bringing about of the deaths is not intended, and there is a grave reason for the action. Gury says that the death of the innocents follows per accidens and is not intended but only permitted. The justification of killing in self-defense is another frequently used but more controversial application of the PDE. According to St. Thomas, one intends only one’s self-defense, the aggressor’s death being outside the agent’s intention—an effect of one’s defensive act and not a means to one’s defense.9 Discussion of the application of the PDE to cases like this is beyond the scope of this essay. Such a discussion presupposes that the PDE is intelligible. A first step in understanding the PDE is the determination of what it is meant to do. Is it meant to show that certain acts that, except under these conditions, would be morally impermissible are, if its conditions are met, morally justified? Or is the PDE meant to be a principle of excuse—that is, a principle that lessens the imputability of a bad act?10 The Catholic moralists who developed this doctrine are none too clear on this point. Gury, for example, in stating the PDE, formulates it as a set of conditions for the licitness or permissibility of a certain action. But Gury in other places and other authors in this tradition write in such a way as to suggest that the PDE is a principle of excuse. They say, in effect, that the unintended consequences of one’s acts are not imputable to the agent, or they suggest that the imputability is diminished or somehow indirect.11 This interpretation is reinforced by the fact that most of 9. ST II-II, q. 64, a. 7. 10. See J. L. Austin, “A Plea for Excuses,” in Philosophical Papers, ed. J. O. Urmson and G. J. Warnock, 2nd ed. (London: Oxford University Press, 1970), 175–77, for an explanation of the difference between justification and excuse. 11. See, e.g., Arthur Vermeersch, SJ, Theologiae Moralis: Principia, Responsa, Consilia (Rome:

154  A rt i cu l atin g a T he ory o f Natural Law these authors deal with the PDE in their treatments of the various kinds of voluntary acts and because of the importance of intention in the PDE. I believe, however, that the PDE should be understood as a principle of justification and that the tradition, even if it is unclear on this point, is most coherently understood in this way.12 There are two reasons for thinking this. First, the unintended evil effect, the bringing about of which is rendered licit by the PDE, is clearly imputable to the agent: he knowingly and willingly brings it about. The scholastics often say that it is permitted or consented to; one could more clearly say in modern English that it is accepted. But permitting, consenting to, and so on are volitional acts, or at least volitional dispositions, even if they are not volitional in the paradigmatic sense of intentional actions.13 There might be a difference in the mode of responsibility one has for what one intends to bring about from that which one has for what one does not intend but willingly accepts. In both cases there might be degrees of imputability, but there is no necessary difference in degree between the two types of willing. What one intends and what one permits are both voluntarily brought about, and thus both are imputable. If what one permits were not voluntarily brought about, and thus ascribable to the agent, the fourth condition of the PDE would have no use. This condition states a requirement for the permissibility of permitting certain effects that one may not intend to bring about. My second reason is a historical consideration. Aquinas’s view of human action and intention forms the background for the distinctions upon which the PDE is based. The moralists who articulate and use the PDE often refer explicitly to his analysis of killing in self-defense, and some of the ancestors of the PDE are the sixteenth- and seventeenth­ century commentaries on Aquinas’s theory of action.14 This is not to say, of course, that modern proponents of the PDE either consistently or clearheadedly develop his action theory. Gregorian University Press, 1922), 1:118. Vermeersch, one of the most important Catholic moralists in the early decades of this century, states the PDE as follows: “Effectus malus qui actionem sequi permittitur, non imputatur, si diversa est efficientia immediata, et permissio ratione proportionata gravi excusatur” (emphasis mine). 12. See William Conway, “The Act of Two Effects,” Irish Theological Quarterly 18, no. 2 (1951): 127–29. 13. See R. G. Frey, “Some Aspects to the Doctrine of Double Effect,” Canadian Journal of Philosophy 5, no. 2 (1975): 265. 14. See John of St. Thomas, Cursus Theologicus, vol. 6, De Bonitate et Malitia Actuum Humanorum, disputatio 11 (Paris, 1885); and Salmanticenses, Cursus Theologicus, vol. 7, tractatus 13, disputatio 10, dubium 6 (Paris, 1877).

T he Pr in cipl e o f Do ub le Effe ct   155 According to Aquinas, an act is, morally speaking, the kind of act it is in virtue of what is intended.15 In other words, Aquinas believes that actions are at least in part defined by the intention with which the agent performs them; intention is an act of volition, and it is necessarily the case that one intend whatever functions as an end or goal in one’s actions;16 one must intend not only the more distant and ulterior goals but also the immediate aim one has in undertaking an action. Thus, one must intend what Aquinas calls the formal object of one’s act.17 In more contemporary language, an action is an undertaking to bring about a certain state of affairs. This state of affairs is intrinsic or essential to the act and is necessarily intended.18 If this understanding of action is applied to the conditions of the PDE, it becomes clear that the first condition is invoked to determine the moral kind of the act that is at issue. In the first condition it is required that the agent’s end be morally acceptable. The end referred to here might be either the immediate object of the act—the state of affairs the bringing about of which defines the act—or it might be a more remote end. In either case, it is among the things one must intend in acting.19 Moreover, as Gury explicitly states, this condition is meant to exclude the agent’s intending the evil effect. If the good effect is intended and the evil effect is not intended, the act will be, morally speaking, a good act. It will be specified by the good effect as a morally good act. The act-defining character of intention is also relevant for understanding the third condition. If the evil effect is brought about as a means to the good effect, then the evil effect must be intended, and the bringing about of the instrumental state of affairs is morally impermissible. The bad effect is intended if it is chosen as a means because it becomes something that the agent is committed to realizing. The bringing about of this instrumental state of affairs is a morally impermissible act because this state of affairs—the bad effect—determines the moral character of the undertaking. Thus, the third condition is implied by 15. ST II-II, q. 64, a. 7: “Morales autem actus recipiunt speciem secundum id quod intenditur”; see also ST I-II, q. 72, a. 1. 16. ST I-II, q. 12, a. 1; De Veritate, q. 22, a. 14. For a discussion of these and other relevant texts, see Boyle, “Praeter Intentionem in Aquinas,” Thomist 42, no. 4 (1978): 649–65. 17. ST I-II, q. 20, a. 4; I-II, q. 72, a. 3 ad 2; I-II, q. 73, a. 1. 18. See G. H. von Wright, Norm and Action: A Logical Inquiry (New York: Humanities Press, 1963; London: Routledge and Kegan Paul, 1963), 39–41; The Varieties of Goodness (New York: Humanities Press, 1963; London: Routledge and Kegan Paul, 1963), 39–41, 123–25. 19. Gury, Compendium Theologiae Moralis, 7.

156  A rt icu l atin g a T he ory o f Natural Law the first condition and the definition of a “means.” This condition does not assume, therefore, that the causal sequence of the effects is itself morally significant, as is often supposed.20 In most cases in which one chooses a certain means, it is because of one’s beliefs about the causal consequences of what one chooses as a means that one chooses it, but what is morally significant about such a choice are the intention and action involved in executing it.21 The first condition and the third, therefore, are attempts to determine exactly what one’s act is in situations where the causal initiative involved in one’s undertaking brings about both good and evil states of affairs. Together with the fourth condition, these conditions constitute a basis for the justification of actions having evil effects: such actions are not themselves evil in kind, and there is grave reason for performing them. The foregoing attempt to explain the PDE as a principle of justification by reference to Aquinas’s theory of action can also accommodate the second condition of the PDE—namely, that initiating the causal sequence must be morally permissible independently of its good and bad effects. If this “positing of the cause” can be determined to be impermissible independently of the evil effect at issue, or of some other evil end, then one is not justified in initiating the causal sequence. To the extent that this condition suggests that it is possible to determine the morality of initiating the causal sequence without reference to any effect, then it is inconsistent with Aquinas’s view of action. But to that extent it is also confused: cause and effect are correlative, and “positing a cause” can be immoral only because it brings about some effect that it is impermissible to bring about. This way of understanding the second condition has the effect of rendering it, strictly speaking, superfluous. If an act is not permissible, then the doing of that act would involve the intention of what is evil, and this is prohibited by the first condition. By this point my attempt to treat the PDE as a principle of justification may appear to be radically revisionist. The second condition is rendered superfluous, and the third is implied by the first together with the definition of a means. The redundancy of the traditional formulations of the PDE, howev20. E.g., by Frey, “Some Aspects to the Doctrine of Double Effect,” 261, 280–81. 21. See Grisez, “Toward a Consistent Natural Law Ethics of Killing,” 87–89, for a critique of traditional formulations of the PDE on this point.

T he Pr in cipl e o f Do ub le E ffe ct   157 er, is understandable if one considers the casuistic purpose for which the PDE was meant to be used and the distinctions the scholastics were accustomed to make. Following Aquinas, the scholastics held that the moral character of an act was determined by the end, the object of the act, and the circumstances in which the act was performed.22 Thus, the first condition could be taken to exclude acts done for an immoral purpose; the second to exclude acts that are intrinsically immoral—that is, whose object it is impermissible to bring about; and the third to exclude immoral means to good ends—an exclusion that is not always covered by the second condition. More concretely, the first condition would exclude, for example, giving someone money in order to get him drunk; the second, making oneself drunk in order to give someone a lesson in the value of sobriety; and the third, giving someone money in order to get him drunk in order to teach him a lesson. In the first case, the “positing of the cause” is permissible, and there is no evil means to a good end, but the aim is evil. In the second case, the aim is good but the cause posited—getting oneself drunk—is evil. In the third case, the final end of the action is good, as is the positing of the cause, but an intermediate means is evil—namely, getting the person drunk. The PDE, then, can be understood as a principle of justification. In its briefest form it can be stated in the following way: it is morally permissible to undertake an action when one knows that the undertaking will bring about at least one state of affairs such that, if this state of affairs were intrinsic to the action undertaken, the action would be rendered morally impermissible, if and only if (1) the state of affairs is not intrinsic to the action undertaken—that is, it is not intended—and (2) there is a serious reason for undertaking the action. This formulation, however, gives rise to further questions. In particular, it gives rise to questions about the distinctions made by the PDE and about the moral significance of these distinctions. First, the PDE as explained here forces one to draw in an odd way the distinction between the objective considerations about the rightness or wrongness of behavior and the subjective considerations relevant to evaluating the moral quality of the agent. One might expect that the question of rightness or wrongness is a question about behavior and its consequences, whereas questions about the goodness or badness of 22. ST I-II, q. 18, aa. 2, 3, 4.

158  A rt i cu l atin g a T he ory o f Natural Law the agent would consider such things as the agent’s motives and intentions as well as factors related to the imputability of his act. The PDE as explained here, however, requires one to regard the question of rightness or wrongness not simply as a question about behavior but also as a question about actions that contain intentions as an essential part. Second, the PDE requires the moral significance of a distinction that, according to many, cannot even be drawn. Many modern philosophers regard the difference between what is intended and what is foreseen and “permitted,” but not intended, as a merely verbal difference.23 Moreover, it is certainly not clear what significance this difference has— supposing it can be drawn—for purposes of the moral evaluation of acts. Even if one admits that acts are defined by the agent’s intentions and distinguished from foreseen consequences that are merely “permitted,” one might wonder why it is that an agent’s acts have a moral significance that is different from—and more decisive than—the moral significance of the foreseen consequences of what he does. It is important to recognize that the PDE does not require that the foreseen consequences of acts be in no way relevant to determining the rightness or wrongness of the agent’s concrete behavior; they are relevant, but only in a subsidiary way. Thus, if the action is itself morally permissible, and if there is a serious reason for undertaking it, then it may be done morally no matter what the foreseen consequences may be. The answers to these questions are based on a factor that has been completely overlooked in discussions of the PDE—namely, the view of voluntariness and responsibility that the PDE presupposes.24 An account of this view goes something like the following:25 There are many different types of voluntary acts; in fact, the notion of “voluntariness” is an equivocal one. There is, however, an order in these senses such that one could say with the medievals that voluntariness is an “analogous” notion, or, in more current language, that there are family resemblances between the various senses of “voluntary.” In this ordered set of meanings of “voluntary” one is paradigmatic —namely, that sense in which it is said of an act that is the execution 23. See Henry Sidgwick, The Methods of Ethics, 7th ed. (New York: Dover, 1966), 202; R. M. Chisholm, “The Structure of Intention,” Journal of Philosophy 67, no. 19 (1970): 636; for a response and reference to other literature, see Joseph M. Boyle and Thomas D. Sullivan, “The Diffusiveness of Intention Principle: A Counter-Example,” Philosophical Studies 31, no. 5 (1977): 357–60. 24. For example, by R. A. Duff, “Absolute Principles and Double Effect,” Analysis 36, no. 2 (1976): 68–80. 25. The following paragraphs are inspired by ST I-II, qq. 6–21.

T he Pr in c ipl e o f Do ub le E ffe ct   159 of deliberate, free choice. In this case, the elements that all voluntary acts have in one way or another are preeminently present;26 no human act is so clearly or properly self-initiated as is an action that executes a free choice. A free choice is a choice in which all the causal factors other than the agent’s choosing are not sufficient to bring about the choice.27 Moreover, in a deliberate choice one knows what one is doing; one considers and reflects upon the options and their various attractions. By contrast, actions that are voluntary in any other sense of the word involve some diminishing of one or both of these components. Nondeliberate acts—for example, actions done out of passion or fear or under duress—will lack the cognitional component involved in deliberate choices. Similarly, habitual acts, automatic reactions, and the actions of children and of those who are not compos mentis are in various ways not self-initiated as free choices are; they are self-initiating, but the self is not in control. Human behavior that carries out deliberate free choices, therefore, is voluntary in the strongest sense of the term.28 Thus it is not surprising that such behavior is often regarded as the primary subject of moral evaluation. Such behavior can be understood in the following way: In deliberating one considers various incompatible practical proposals—one’s bringing about state of affairs P or one’s bringing about state of affairs Q (where P includes non-Q and Q non-P). Choice is one’s selection of one’s bringing about P rather than Q or Q rather than P. The behavior consequent upon a choice is the undertaking to bring about P or to bring about Q. In other words, the agent acts with the intention of bringing about P or with the intention of bringing about Q. Thus, one who, after considering several practical proposals and freely selecting one of them, executes his choice by undertaking to bring about the state of affairs proposed is performing a paradigmatically voluntary act. This performance is, according to this view of voluntariness, a doing of the type that is either right or wrong. 26. The notion of “voluntary act” supposed is Aristotle’s; see Nicomachean Ethics, trans. Sir David Ross (1925; repr. London: Oxford University Press, 1961), 3.1109b.30–1111b.3, and esp. 1111a.22–23: “The voluntary would seem to be that of which the moving principle is in the agent himself, he being aware of the particular circumstances of the action.” 27. Joseph M. Boyle, Germain Grisez, and Olaf Tollefsen, Free Choice: A Self-Referential Argument (Notre Dame, Ind.: University of Notre Dame Press, 1976), 11–23. 28. See ST I-II, q. 6, a. 1: “Whence when a human being most fully [maxime] knows the end of his act and moves himself, then is his act most fully [maxime] voluntary.”

160  A rt icu l atin g a T he ory o f Natural Law But how is this performance to be understood? Should the performance be understood in a formal way—as simply bringing about the state of affairs that it was undertaken to bring about? Or should this performance be taken as a kind of individual, a concrete event with many causal connections that bring about many states of affairs? It seems to me that the controverted ontological question of whether actions are individuals of some sort or the bringing about of certain abstract states of affairs can be set aside for present purposes. If an action is a concretum, then it will be truly described by a number of propositions. The question relevant here, should such an ontological view be accepted, would be under which of the descriptions the act should be morally evaluated in the first instance. The proponent of the PDE would hold that the performance should be understood formally, since the performance is—insofar as it is the type of voluntary act defined previously—the execution of a choice, and the choice is the commitment to bring about a certain definite state of affairs. In other words, while an agent’s performance involves a causal initiative that can have many foreseeable consequences, it is not the performance as a willing causal initiative, together with some set of the effects of that initiative, that is primarily voluntary or the primary subject of moral evaluation.29 A causal initiative—or at least the willful refraining from such an initiative—is part of the notion of a voluntary act in this paradigmatic sense. But it is part of the act only insofar as it executes the choice and not as a concrete event with an indefinite set of effects. This is not to say, of course, that the bringing about of the foreseen effects of one’s performances is not voluntary. It is, but not in the way in which the executions of choices—regarded just as such—are voluntary. The foreseen consequences of one’s potential performances are no doubt a part of what is considered in the deliberation leading to choices. But they are included in this deliberative process in a unique way. Frequently, they do not appear to be of any practical consequence to the person deliberating, and sometimes they are seen to interfere with the achievement of either the state of affairs one is considering bringing about or some further goal with respect to which this state of affairs is taken to be instrumental. In other words, the foreseen consequences of 29. See Donagan, Theory of Morality, 37–52, 112–22, for a contrary view.

T he Pr in c ipl e o f D o ub le E ffe ct   161 one’s bringing about an intended state of affairs are often considered in deliberating, but not as reasons for the action—rather, they are sometimes conditions in spite of which one acts. It is not for the sake of such conditions that one selects an option; it is not these effects to which one is committed in acting. If this is correct, the agent in acting has a fundamentally different attitude toward what he intends and toward what he foresees and consents to or accepts but does not intend. The agent who acts with the intention of bringing about a certain state of affairs makes that state of affairs his goal; he sees it as worthwhile or as instrumentally valuable and commits himself to bringing it about. Clearly, what is thus regarded as valuable is not all that one foresees will come about by his initiative. For example, pain involved in undergoing surgery is not regarded as valuable by the patient. He would avoid it if he could. The agent’s attitude toward such consequences as this is entirely different from his attitude toward what he intends. These consequences need not be seen as good or as desirable; there is no commitment to bring them about; in many cases the agent would avoid them if he could. They are not a part of what one chooses to bring about. This account of voluntary action provides the basis for answering the questions listed previously. Given this account of voluntary action, the distinction between factors relevant to determining the rightness of actions and factors relevant to assessing the moral qualities of agents are properly drawn where the PDE requires. The primary object of the moral evaluation of the act is the bringing about of the state of affairs that the agent is committed to realizing. This action includes and is defined by the agent’s intention. Moreover, this way of drawing the distinction between factors relevant to determining the imputability of the act and factors relevant to characterizing the act to be evaluated allows for the obvious excusing factors. It allows for questions about whether the agent knows the moral character of his undertaking and questions about whether the agent’s choice is free. It does imply, however, that an action will be regarded as if it were a voluntary act even if in fact it is not imputable, because it is only as the execution of a choice that behavior can be characterized as morally significant. Thus, for example, if an omission or piece of habitual behavior is regarded as morally wrong, it is because that omission or piece of behavior would be wrong if it embodied the execution of a deliberate choice. The second question is also resolved by this account of voluntary

162  A rt icu l atin g a T he ory o f Natural Law action; the distinction between what is intended and what is consented to is intelligible in terms of this account. A morally significant act is the execution of a choice. What one chooses is not an indeterminate set of foreseeable results of one’s performance but the bringing about of a definite state of affairs regarded as worthwhile or valuable. Thus, there is a basis for the distinction between what is intended and what is not intended but consented to, or between actions defined by the state of affairs intended and the consequences of actions defined by what is not intended but consented to. Moreover, this account of voluntary action shows why the distinction between what is intended and what is foreseen and accepted but not intended is taken to be morally relevant. Since it is one’s choices and their execution that are primarily voluntary, it is these that are the primary object of moral evaluation. The states of affairs intended in such acts are what the agent, as it were, sets his or her heart on. It is the commitment to these states of affairs that is the basis upon which a person forms his character and makes himself a certain kind of person. Moreover, if moral demands are regarded as unconditional demands upon one’s free choice,30 then it is by choosing and committing oneself to some such states of affairs that one acts morally or immorally. In other words, if moral demands are demands upon one’s free choice and if free choice is the adopting of a proposal that one bring about a certain state of affairs regarded as valuable or worthwhile, then what moral normativeness primarily bears upon—as far as behavior goes—is human action in the sense defined here. This account of the view of voluntary action presupposed by the PDE also throws light on the connection between the PDE and the so­ called absolutism of traditional Catholic ethics. By “absolutism” I mean the view that there are exceptionless moral proscriptions. First of all, absolutism is not required by the PDE. The PDE does not explain how one is to come to the normative judgments presupposed by the first three conditions and enjoined by the fourth. The first three conditions, if met, are sufficient to characterize the act in question as a good type of act. But they do not explain how acts of that type are judged to be morally good. Likewise, these conditions require that the “evil effect” would be a bad kind of act if any of the first three is not 30. See Boyle, Grisez, and Tollefsen, Free Choice, 164–66, for an exposition of this view of moral norms.

T he Pr in c ipl e o f Do ub le Effe ct   163 met and that there must be a grave reason for accepting such an act, but they do not specify what makes an immoral act immoral. This judgment might well be made on the basis of the view that such an act is proscribed by a general exceptionless proscription, but it need not be so based. Any normative theory that allows that there are kinds of acts that are good and bad could be consistent with the PDE and could make use of the PDE. Furthermore, the PDE is not required by all forms of absolutism. An absolutist system such as Kant’s, for example, does not make use of the PDE, and it is possible to use principles other than the PDE to resolve cases of moral perplexity.31 Moreover, an absolutist might limit his exceptionless proscriptions so that cases dealt with by the PDE are either clearly prohibited or clearly allowed by the relevant rule. But there is a vital connection between the PDE and the form of absolutism with which it is usually associated. This form of absolutism does not depend on a set of intuited or commanded absolutes, or a set of absolutes based on generalizations from particular cases, but on moral rules that direct one to respect basic human goods or values. Specifically, moral precepts mandate that these basic goods be promoted whenever possible and that they not be attacked or acted against. This leads to moral norms—including absolute proscriptions—of a very general sort. For example, human life is taken to be a basic human good. The proscription of killing, therefore, will be quite general.32 Moreover, these goods are the basis for deliberation and choice. They are pursued—in the morally relevant way—by voluntary acts and especially by acts executing free choices. The demand that we respect all the human goods—and especially that we not act against them—is a demand on our free choice. This normative view does require the PDE, but not simply because it is absolutist. This connection is not a matter of straightforward implication. The normative theory in question does imply a part of the theory of human agency presupposed by the PDE. Thus, they both imply the same thing. The necessity of the connection between this normative theory and the PDE is established by the facts that (1) the actual world is such that the realization of most human choices is by way of causal initiatives that bring about many states of affairs other than that state 31. See Donagan, Theory of Morality, 149–56. 32. See Donagan, Theory of Morality, 60–65; and, generally, Grisez, “Toward a Consistent Natural Law Ethics of Killing.”

164  A rt i cu l atin g a T he ory o f Natural Law of affairs that the agent intends to realize through his performance, and (2) some of these states of affairs are contrary to one or more basic goods. These facts require that one committed to a normative theory demanding respect for a set of basic goods hold the PDE. Otherwise respecting the goods becomes an impossibility, since any performance can—and many performances do—bring about what is contrary to one or more basic goods. To sum up: the PDE is a coherent doctrine of justification. But it continues to be misunderstood because the theory of agency that it presupposes is ignored. If this view of human agency is false, then the PDE must be abandoned; but if this theory of agency is true, and if the normative theory that makes use of the PDE can be defended, then the PDE is a long way toward vindication.



8 / Intention, Permissibility, and the Structure of Agency

The Rule of Double Effect An agent’s intention in acting appears to affect the permissibility of the action. Indeed, intentions, both the intentions with which a person acts and the intentions constitutive of an action as intentional, are held to affect the action’s permissibility in distinct ways. For example, many of those who accept the norm that “the end does not justify the means” construe the means/end relationship as intentional, and so suppose that acting with the intention to realize a morally important goal does not morally justify taking an impermissible means. Likewise, some think that the intention of an immoral goal renders impermissible taking the means to that goal, even if there is nothing else about that action that would render it impermissible. Another well-known but distinct relationship between intention and permissibility is that invoked in the rule of double effect. This rule holds that it is sometimes permissible to bring about a result that is not intended, which would be impermissible to bring about if it were intended.1 I thank Patrick Lee, Christopher Tollefsen, and Mark Thornton for very helpful comments on a draft of this essay. 1. This formulation is adapted from that of Philippa Foot, “The Problem of Abortion and the Doctrine of the Double Effect,” in The Doctrine of Double Effect: Philosophers Debate a Controversial Moral Principle, ed. P. A. Woodward (Notre Dame, Ind.: University of Notre Dame Press, 2001), 144: “By ‘the doctrine of double effect,’ I mean the thesis that it is sometimes permissible to bring about by oblique intention what one may not directly intend.” Foot makes clear that oblique intention and direct intention are to be understood as referring to unintended and intended elements of actions. Foot’s definition is simpler and more perspicuous than the definitions used by Catholic moralists at the time she wrote and before, but I do not see a difference in the concepts. For a summary and discussion of the Catholic formulations, see my “Toward Understanding the Principle of Double Effect” (chapter 7 in this volume).

165

166  A rt icu l atin g a T he ory o f Natural Law This rule is concerned with the implications of the impermissibility of a kind of possible action a person can consider doing. Its precise focus is on the legitimacy of inferring from the impermissibility of such an action to that of another similar action. The impermissible kind of action from which the inference is made is one that includes an intended bad result, and the similar action to which the inference is made includes an unintended bad result of the same kind. Double effect rules that the inference is mistaken. As the qualifier in the “sometimes” proviso indicates, the rule further directs a consideration of other factors relevant to the permissibility of actions having such unintended results. This supposes that the results considered are bad, contributing to an action’s impermissibility, whether intended or not—and more or less decisively depending on that. This indicates that the difference between the actions compared is not meant to guarantee the permissibility of the second action. In addition to the refusal to settle impermissibility by the fact that the actions share a bad result, other conditions must be met. One of these conditions is that the action, considered independently of the result in question, be permissible.2 Another condition requires that there be proportionality between the importance of the action and the badness of the result. By “result” I mean what any true description of an action as voluntary represents; that includes both any description under which an action is intentional—such as a goal, a means, or a promoted bonus effect—and any description under which an action or any aspect of it, although voluntary, is not intended—such as a side effect. The results of any action are, therefore, extensive and indeterminate. The results that are shared in the possible actions compared in double effect are bad results. This might seem to raise a difficulty, since in one of the actions compared, the action deemed impermissible because the bad result is intended, the circumstance that renders the result a bad one need not be intended. There seem to be circumstances of actions that are necessary for the actions’ impermissibility but do not seem to fall within a description of an action as intentional. For example, it might be impermissible for a private person intentionally to inflict harm on someone, while others acting in public roles might 2. It is in determining whether this condition is met that the theses about good ends not justifying bad means and bad ends corrupting otherwise permissible means might be relevant to double effect.

I n te n tio n, Pe rmissi bi lit y, Agen cy   167 permissibly do this. The private person’s action has a result that is bad because of the circumstance of the status of the agent. That result would not be bad if brought about by an agent having proper status. That circumstance does not appear to figure in the intention of either agent. However, it does render the result a bad one, and intending that result or causing it as an unintended result preserves the sameness in the kind of results compared. What makes a result bad can, therefore, include circumstances that are not included in descriptions of an action as intentional. But it is not necessary for the conception of a bad result that all circumstances and all descriptions of actions as voluntary be included in them. For a bad result is any result that if intended is sufficient for impermissibility, and if not intended will tend to impermissibility and will render the action impermissible unless it is the result of an otherwise good and proportionately important action. Intended bad results sufficient for impermissibility are certainly possible prior to the consideration of everything about an action; and determination of the prior permissibility and the proportionality of an action—including unintended bad results—while possibly involving a wide consideration of circumstances, need not consider all of them to be justified. Double effect addresses impermissible actions that include intending a bad result in the sense just clarified. More precisely, it addresses precisely those actions in which intending the bad result is what makes them impermissible. The central and distinctive thesis underlying the core of the double effect rule is the existence of actions in which this essential connection between intention and impermissibility obtains. The connection has two elements: first, intending a bad result is taken to be sufficient for the impermissibility of the action that includes it; and second, both elements, the intending and the bad result, are taken to be necessary, indispensable ingredients in the sufficient condition for the impermissibility of the action as described. Actions with this sort of connection between intention and impermissibility are required if the rule is to have legitimate application. Plainly, double effect does not suppose that the sufficient condition for the impermissibility of actions generally is their including the intention of a bad result, where both elements are necessary for that condition. Indeed, it explicitly holds that actions including unintended bad results can be impermissible. So, in considering impermissible actions in which a bad result is intended, there is no assumption about the con-

168  A rt i cu l atin g a T he ory o f Natural Law ditions for determining impermissibility and permissibility generally. Rather, the rule has application only with respect to those impermissible actions whose impermissibility is tied to intending bad results in the essential way just specified. The necessity of intending the bad result in the condition sufficient for impermissibility is perhaps the more salient aspect of the actions double effect addresses. Double effect blocks an inference from the impermissibility of one action to the impermissibility of a similar action. The absence of precisely the intention of the bad result in the action to which the inference is made is what blocks the inference from the impermissible action; if this action were impermissible for some reason other than that it included the intended bad result, the blocking would be ungrounded. For inferences from impermissible actions with intended bad results to actions with the same sort of unintended results might be warranted by the other relevant factors present in both. That could happen if the intention of the bad result were but a minor factor in determining the impermissibility of the action and other weightier factors were present in both actions: for example, intentionally killing thousands of innocent people in accord with a deterrence system in which the mere threat to destroy cities failed to deter might be supposed wrong primarily by the sheer slaughter involved. The same number of people might also predictably be killed as a side effect of a useful but not necessary military action. Between these actions, the inference from the impermissibility of the first to that of the second might well be sound. The sufficiency of intending a bad result for impermissibility is also an essential element of what double effect regulates. For, as noted earlier, a bad result does not necessarily include the sum of all the descriptions of an action as voluntary or all of its practically relevant circumstances. On this view, therefore, intending a bad result can make an action of a described type impermissible prior to an all-thingsconsidered judgment. Obviously, double effect deals with actions in which the impermissibility of actions including intended bad results can be determined more readily and straightforwardly than that of actions having unintended bad results. In the latter kind of action, the bad result is taken as counting against the permissibility of the action that includes it, but not decisively: other considerations about the action are needed, for example, whether it is permissible independently of the bad result and

I n te n tio n, P ermissi bi li t y, Agen cy   169 important enough to justify causing such a result. These considerations push in the direction of an all-things-considered evaluation. But in the former, the bad result, as intended, is taken to be sufficient for determining impermissibility. The well-known examples used to illustrate double effect exhibit its having as its subject matter actions with this tight connection between intending a bad result and impermissibility (if only for the sake of argument). For example, the terror bomber is described as intending to terrorize enemy civilians, and this action as described is deemed impermissible. That is by way of contrast with the tactical bomber whose action is delineated as harming civilians but as an unintended result of a military strike. In this example, impermissibility is not settled as it is in the first. Such hypotheticals consider actions abstractly as kinds of actions specified by properties projected in elaborating a case. Sometimes, whether in abstract philosophical discussion or in practical decisionmaking, reflection ends in a judgment that the action as described is impermissible, as often happens when it includes intending a bad result; sometimes, including when there are unintended bad results, the reflection cannot end, because the properties projected do not establish impermissibility; and so further circumstances must be considered to settle the matter. Consequently, at least in considering abstract hypotheticals, the kind of act double effect addresses plays a role. In some of these described actions, intending a bad result is taken to be sufficient for determining the action’s impermissibility. Moreover, what holds for the philosophical consideration of hypotheticals seems also to hold when all the morally significant information is captured in the abstract description, as when one faces a real-life situation that appears to the agent to involve nothing but what is captured in the description: for example, in a real-life analogue of one of the simpler trolley cases. Something similar also appears to hold when some circumstance is recognized as possibly overriding a judgment of impermissibility, but does not obtain. For example, the possibility of supreme emergency, taken by many as overriding the strict rules for killing innocents, might be excluded from consideration in considering military strikes in the normal conditions of international hostilities. There is another, stronger conception of the impermissibility of actions of an intentional kind. That is the view that an intentional action of a described kind—such as intentionally killing an innocent person—

170  A rt icu l at in g a T he ory o f Natural Law is sufficient in principle for its impermissibility, whatever further morally relevant descriptions or circumstances there may be. Such prohibitions are in principle indefeasible, sometimes called “absolute.” Double effect emerged from a normative context in which that conception of how some actions were determined to be impermissible was taken for granted. However, as noted earlier, the evaluation of actions as impermissible because they are of a describable intentional kind does play a role in moral reflection independently of prohibitions that are in principle absolute. That said, however, double effect will not have work to do in practical ethics unless there are prohibitions of actions taken to be indefeasible because they involve intending a bad result. Some prohibitions may be taken to be indefeasible for purposes of reflection and some because of the limitations on possibilities for considering further circumstances, but it remains possible that some prohibitions are absolute in virtue of their normative foundations. Double effect does not establish those foundations; it has work to do in proportion as there are normative foundations that it limits to intentional actions. In short, actions involving the strong connection between intending bad results and impermissibility are distinctive; double effect has application only when that connection obtains. The distinctiveness of double effect’s supposition linking intention and impermissibility is indicated by its logical independence from the theses about intention and permissibility stated in the opening paragraph of this essay. Perhaps the most obvious difference between these theses is that double effect blocks an inference from the impermissibility of one action to another, whereas “the end does not justify the means” and “bad ends corrupt good means” affirm inferences about permissibility and impermissibility from one element to another within a single, individual action. Furthermore, these dicta address relationships between ends and means, not between either means or ends and bad results that are unintended. So, the three theses are logically independent. Similarly, those who hold that intending bad results contributes to making actions harder to justify or worse are not endorsing double effect but ignoring the distinctive kind of action it addresses by rejecting the rule’s supposition about the relationship between intending bad results and the impermissibility of actions including them and endorsing a distinct view—which, I will suggest, has difficulties of its own.

I n te n t io n, Pe rmissi bi lit y, Agen cy   171

On What Could the Core of the Double-Effect Rule be Grounded? Clearly, it is the existence of actions involving distinctively the tight connection between intending bad results and impermissibility that needs grounding. The conditions in the “sometimes” proviso are, rather obviously, necessary for the permissibility of an action with an unintended bad result, since it is plausible that one should not bring about an unintended bad result unless that action were permissible independently of having that result and that one had an overriding reason for doing that action. The distinctive claim about intention and impermissibility, which underlies the core of the double-effect rule, is not so obviously justified as the qualifiers. Likewise, the ruling out of the logically equivalent inference—from the permissibility of bringing about an unintended result to the permissibility of bringing about that result intentionally—does not appear to be any more evidently justified. It is on the justification of this connection between intention and permissibility that I will focus in this essay. Nowadays many philosophers hold that the double-effect rule is a way to account for differences in commonly held intuitions about cases that are similar in outcome and differ apparently only in intention: for example, the differences in intuitive responses to the strategic bomber (who wittingly but unintentionally kills civilians) and the terror bomber (who intentionally kills civilians to demoralize the enemy) hypotheticals. But the ability to account for such differences in intuitions about cases is by itself hardly sufficient to justify the core requirement. For the differences in intuition might be explained by something other than the double-effect rule, as has been suggested by several recent critics of double effect.3 Of course, if there is something ethically significant 3. Foot, “Problem of Abortion and the Doctrine of the Double Effect,” 149–54, held that for all its strengths double effect was substantially reducible to a rule about doing and allowing, paired with the difference between positive and negative rights. She later argued that the intention/foresight and the doing/allowing distinctions were both important and irreducible; see Foot, “Morality, Action and Outcome,” in Woodward, Doctrine of Double Effect, 67–82. See also Alison McIntyre, “Doing Away with Double Effect,” Ethics 111 (2001): 219–55; T. M. Scanlon, Moral Dimensions: Permissibility, Meaning, Blame (Cambridge, Mass., and London: Harvard University Press, 2008), 28–36, proposes a normative account of the military cases and the transplant cases that does not include intention. This follows a refutation of the connection double effect supposes between intending bad results and impermissibility and an error theory to account for the intuitive appeal of the rule.

172  A rt icu l at in g a T he ory o f Natural Law justifying the precise claim about intending bad results and impermissibility that supports the inference-blocking core of the rule, then the weakness of the rule as simply a hypothesis to account for a class of intuitions would be avoided. However, there are relatively few efforts to provide a justification for this underlying view of action, intention, and impermissibility (and, as I will argue here, even fewer successful efforts). A possible reason is that it is unclear where within the complex of factors relevant to the moral justification of an action or kind of action is the ground for the rule’s central, underlying claim. Clearly this ground is not among the normative factors particular to determining the permissibility or impermissibility of an action or of a specific kind of action—such as killing or stealing—since these have application only to the kind of action in question, whereas the doubleeffect rule regulates an inference from the impermissibility of an intentional action that includes an intended bad result as the ground of its impermissibility. Since actions that include intended bad results are of various kinds and the bad results are themselves of various kinds, the normative factors that render particular kinds of actions impermissible are insufficient. This suggests that the ground of justification must be found in something more general to the evaluation of actions than the factors determinative of the impermissibility of acts of certain particular kinds. But obviously the needed generality is not the universality of a fundamental normative principle: the principle of utility, for example, or the categorical imperative. These principles apply to actions of all kinds, and, for those who believe such a principle to be the unique normative principle, it determines their permissibility or impermissibility. Double effect does not deal with all actions but only with those having bad side effects where intending them figures decisively in the action’s impermissibility. Normative principles justify moral norms and judgments, in part by directing us to the factors within actions that are relevant to their assessment as permissible or impermissible. But double effect does nothing so strategic within moral determination: it simply rules out a kind of inference from the impermissibility of an action to the impermissibility or permissibility of similar but intentionally different actions. The rule cannot play the strategic role played by moral principles, for it supposes that, besides considerations about whether a result is

I n te n tio n, P ermissi bi li t y, Agen cy   173 intended or not, there are factors establishing at least a presumption that the actions considered are impermissible. The rule supposes that the bad result that is intended in one action and not intended in the other is relevant to the moral assessment of both. For, in the case where the result is intended, prior considerations are necessary to show that the result is a bad result. Likewise, in the case where the result in question is not intended, the considerations indicated in the “sometimes” qualifier are needed to justify the action in which it is included. Those considerations make reference to such things as the moral importance and permissibility of an action having such a result and its comparison to the badness of the result. Neither the presence nor the absence of intention can settle these determinations. The presence or absence of intention of a bad result is relevant to an action’s permissibility or impermissibility only if other such features are in play. For example, if killing were not morally suspect (whether it was the intentional act of killing or killing as an unintended side effect) then the discriminations adduced in the double-effect rule would not be called for. Given the lack of promise in these straightforward ways of grounding the core of the rule, it might seem more promising to accept that, although it is neither a moral principle nor a normative factor particular to the determination of the impermissibility of a kind of action, it is to be justified like the latter—but for the class of cases addressed by the rule, not for a particular kind of action such as killing or lying. The idea would be that the ground that justifies the core of the double-effect rule is to be found within the mix of normative factors determining impermissibility and permissibility. Like other factors determining permissibility and impermissibility, their relevance will be indicated by normative principles, but that relevance will have wider application than that of the determinants of the permissibility or impermissibility of acts of a particular kind. The obvious question raised by this suggestion is how normative principles would indicate the moral relevance of the presence or absence of the intention of a bad result. One possible answer can be easily set aside. On any moral theory, this absence or presence of the intention of a bad result is a circumstance that might be relevant to the moral assessment of an action. For example, a consequentialist might judge that an agent’s intention of a bad result should count in the assessment of the overall benefit or harm caused by the action. Those judgments address contingencies of situations and persons. While intending a bad result might be morally

174  A rt icu l atin g a T he ory o f Natural Law significant in some situations, it might not be in many others. But this contingent moral significance is much less than the core of the doubleeffect rule supposes—and, indeed, too contingent even for claims about intending bad results as being so far forth worse or harder to justify than unintended bad results. Other answers to the question are not forthcoming. For it is difficult to see how any of the major conceptions of normative principles would indicate the moral relevance of the presence or absence of the intention of a bad result. Why should intending a bad result, as distinct from doing what one knows causes or includes that result, have the decisive effect on impermissibility maintained by the rule? Warren Quinn illustrates the difficulty in answering this question. He developed a doctrine that was clearly inspired by reflection on the double-effect rule. But Quinn did not address the rule in its stark, inference-blocking form. Instead he characterized double effect (or, more precisely, what he found most important and plausible in its first three conditions) as follows: “The pursuit of good tends to be less acceptable where a resulting harm is intended as a means than where it is merely foreseen.”4 The pursuit of good refers to the agent’s having a morally good purpose.5 The comparative normative judgment captured in the thesis that intending harm is less acceptable than bringing it about unintentionally is Quinn’s formulation for the core of the rule. This, however, is a distinct doctrine that replaces the inference-blocking core. Even if one thinks it a preferable formulation of the spirit of the rule, accepting it is rejecting the rule’s core. The two claims appear to be logically independent. The core of double effect excludes an inference and commits only to the comparative judgment that an action with an unintended bad result is better than—that is, not impermissible for the same reason as—the impermissible action with the intended bad result. Quinn rejected his reformulated double-effect doctrine because the key notions from the theory of action are problematic. The distinction on which both his reformulation and the double-effect rule depends— that is, the distinction between an intended means and an unintended result—is generally impossible to draw in a coherent, principled way. Quinn proposed an alternative, which avoided these problems of 4. Warren S. Quinn, “Actions, Intentions and Consequences,” in Woodward, Doctrine of Double Effect, 23, 38. 5. See Quinn, “Actions, Intentions and Consequences,” 38. He sets aside the proportionality condition as uncontroversial.

I n te n tio n, Pe rmissi bi lit y, Agen cy   175 “closeness.”6 His alternative rests on a distinction between different ways in which one can harmfully affect others. One such way is to make others the intentional object of an act that harms them but serves one’s purposes. The alternative is to harm, but not by treating the person as an intentional object. By contrast to the strictly action-theoretic distinctions between intended means and ends and unintended side effects, Quinn’s distinction has demonstrable relevance to the determination of permissibility and impermissibility. On broadly Kantian grounds, making another person the intentional object of one’s action counts against the permissibility of an action, and harming another but without using them in this way is relatively easier to justify.7 The moral of Quinn’s account for justifying the core of double effect is clear: he proposes a distinction evocative of, but clearly distinct from, that used in double effect. His distinction, at least at first blush, has moral significance. Why should the strictly action-theoretic distinction on which double effect rests have any comparable moral significance? Indeed, Quinn’s alternative raises the question of whether double effect rests on any demonstrable connection between intending bad results and impermissibility. Quinn’s account also provides a suggestion for understanding how intending a bad result and causing an unintended bad result are likely to be contrasted if they are found among the normative determinants of impermissibility and permissibility. The suggestion is embedded in the formulation of the doctrine he ultimately rejected for other reasons— namely, that an action done for a morally good purpose including an intended bad result is so far forth less acceptable, harder to justify, than a similarly motivated action, including an unintended bad result. However, the reformulation of the core of double effect as a normative comparison has its own difficulties. The first of these arises from Quinn’s restriction of the comparison to actions done for a good purpose. He adapts this restriction from one of the necessary conditions for the permissibility of doing what includes an unintended bad result. While the role of such a condition in determining the permissibility of what has an unintended bad result is obvious, its role in conditioning 6. See Quinn, “Actions, Intentions and Consequences,” 24–29. Although Quinn’s objection based on the difficulty in distinguishing means and unintended results is a serious one, I am not addressing that issue in this essay. 7. See Quinn, “Actions, Intentions and Consequences,” 29–37. Quinn’s Kantian-inspired account is restricted, since double effect is not ordinarily limited to dealings with other persons.

176  A rt icu l atin g a T he ory o f Natural Law the relative acceptability of intended and unintended bad results is not evident. Why should pursuing a good provide a condition that limits the relative acceptability of intended bad results and unintended bad results? Why should intended bad results not be less acceptable than unintended bad results, even if they are included in acts done for a bad purpose? Suppose there are answers to these questions. It remains possible that an action done for a good purpose and having an unintended bad side effect might be wrong because the purpose, although itself innocent, was too trivial to justify the bad result. Compare that to an action done for the same sort of purpose and including the intention of the same sort of bad result. Is the latter action less acceptable? Now consider the comparative normative acceptability without Quinn’s restriction. This allows addressing two actions that both include a bad result and are impermissible prior to any consideration of the bad result. In one the bad result is intended; in the other it is not intended. Suppose the action is a crime in which bystanders are harmed. In one case people are killed as a means to successfully pulling it off; in the other people are killed unintentionally, perhaps by being knowingly killed as a result of an explosion. These actions are both seriously wrong, and it certainly appears that they are equally seriously so. Likewise, they are both so easily seen to be wrong that it is reasonable to suppose that neither is harder to justify than the other. The main circumstance besides including bad results—that they are caused in committing a crime—is the same. Moreover, there is no intuitive basis in sets of cases such as these for the idea that the intentional harm is somehow worse. Again, consider a vicious assault on innocents with intent to harm them; clearly that is hard to justify. Compare that with an action alike in all morally relevant properties, including that it involves harm of the same kind and on the same scale as the prior action, except that in this action the harms inflicted do not themselves serve the agent’s goal, but rather come about because the agent simply does not care about these awful results. Is the first of these so far forth worse? If so, how could we determine that? How could we sort out the pro tanto judgments from the final assessment of these actions? The considerations of this section go a long way toward showing that the core of the double-effect rule is not to be justified by finding among the determinants of the permissibility or impermissibility of actions the presence or absence of an intention of a bad result.

I n te n tio n, Pe rmissi bi lit y, Agen cy   177

Do Requirements of Agency Imply that Intending Bad Results Is Decisive for Impermissibility? The argument of the previous section concluded that the initially most promising sources for a justification for the core of the double-effect rule cannot provide it. As far as I can see, that leaves only one remaining possibility. That possibility arises from the fact that the normative determinants of permissibility and impermissibility are not sufficient for the impermissibility of an action. They must be brought to bear upon an action, and so its features are included in the determination of permissibility. These normative determinants are general: the benefits and harms, the respect and abuse they indicate in the light of normative principles are not limited to an individual action or kind of action. Without considering the action, these factors have nothing whose permissibility or impermissibility is to be determined. The need to focus these determinants and apply them to a particular action or kind of action creates a logical space in which the core of the rule might find justification. Clearly, considerations about human agency are relevant for assessing a person’s responsibility for what he or she does. Moreover, these considerations are not narrowly limited to matters of excuse and character. For example, in assessing such things as negligence, the responsibility to exercise due care, omissions, and vincible and invincible ignorance, the assessment of whether there was a wrong, something that ought to have happened but did not, includes reference to some general conditions of agency—what the agent could have or should have known, what the person was capable of doing, and so on. Here the “ought implies can” dictum seems to condition the application of the principles and factors determining what is wrong: if one could not have known or could not have acted, we refrain from the judgment that the failure was a wrong instead of an unfortunate happening. The relevance for permissibility and impermissibility of the presence or absence of the intention of a bad result is obviously a different matter than the conditions for voluntary action and omission, but the difference between intending or not intending a bad result reflects elements of human agency that can affect impermissibility and permissibility. One such relationship is that which obtains between practical reason and intending a bad result. This connection was highlighted by

178  A rt icu l atin g a T he ory o f Natural Law Thomas Nagel, who pointed out that intending evil goes against the grain of practical reasoning, which aims at the good. In intending evil one’s action is guided by evil, not good. Nagel addressed the significance of the distinction between intentional harming and harming as a side effect within a clarification of the force of agent-relative deontological constraints. His thought seems to have been that these constraints apply only to intentional actions in which one chooses to harm someone as a means to a good end (or possibly also to prevent some good’s being realized). He disavowed any effort to explain the stringency of these constraints or to provide an account of how they figure in a final judgment that takes account of the other competing moral considerations. For these constraints are often in tension with other agent-relative considerations as well as with agent-neutral considerations about what is the objectively best outcome of an action. Still, Nagel held that this constraint on intending harm has special moral significance to the person acting, since in intending harm one is guiding one’s actions by evil, instead of more properly being repelled by it. This explains why intending evil magnifies it.8 The magnification of evil for one who is intending it seems grounded in the reality of human agency as we experience it; intending a bad result gives its evil a pronounced salience. But the context of Nagel’s account suggests that it will not, and was not designed to, provide anything like a justification for the core of the double-effect rule. In a word, Nagel indicates something special about intending evil. But he does not address what we can reasonably infer from an action that is impermissible because it includes that intention. For Nagel’s account of the magnified evil of intending harm is formulated in a context in which the necessary link between intending a bad result and the impermissibility of the action including it is denied. Suppose, however, that Nagel’s point about the special conflict and tension between practical reason and intending evil can be considered independently of his effort to sort out the force of deontological constraints. Could this conflict ground the core of the double-effect rule, even if it were assumed that practical reason were more unified than he allows? To do this, one would have to suppose that morality and practical reason were more agent-relative than Nagel supposed. Thus, one would not suppose that harming as a side effect emerges as impermissi8. Thomas Nagel, “Agent-Relative Morality,” in Woodward, Doctrine of Double Effect, 44–47.

I n t e n t io n, P ermissi bi lit y, Agen cy   179 ble only when one takes an agent-neutral point of view, when one looks at the matter impersonally and objectively. Rather, one would suppose the bad side effects of a person’s agency are voluntarily accepted, that the agent knows that they are harmful and chooses to do what he or she knows will bring them about. When bringing them about cannot be justified, one’s agency is implicated in the wrong. The wrong involved is not simply “objective” and impersonal. In short, we might for the sake of this argument consider that morality is more agent-relative than Nagel allows and ask whether on that conception of morality and practical reason the core of double effect finds warrant. However, I remain skeptical that the highlighting of evil that is involved in intending bad results, on the ground that this so plainly goes against the essential orientation of practical reason to the good, can justify the core of the double-effect rule. That rule requires a tight connection between intending a bad result and the impermissibility of the action including it and holds that the absence of that intention in an action including the bad result is sufficient to block the inference to its impermissibility from the impermissibility of intending the bad result. I am skeptical because the salience of the evil of intending bad results does not provide that link. From the perspective of the acting person, as Nagel observes, there is something clearly and starkly problematic about harming another as a means toward one’s ends. However, the clarity of the moral difficulty posed in these cases does not imply that otherwise similar unintended harming cannot also be as obviously and seriously immoral from that same perspective. That is suggested by the fact that unintended bad results are knowingly and wittingly brought about. Their evil is perhaps not salient in the way intended results, such as ends and means, are, namely, central to one’s interest and guiding one’s action. But the results and their evil are often known and indeed obvious, as is the fact that the agent is voluntarily bringing them about. This is clearest in cases where bad side effects are caused unfairly to fall on some people because of one’s indifference to their welfare. In such cases, the wrong an agent does to them—the agent’s wronging them— can be as clear to the agent as a wrong he intends. Likewise, actions that are wrong independently of the fact that they include bad results—for example, wrong because they are criminal actions—are further determined in wrongness by the existence of the bad results. Does whether they are intended or not complicate this assessment? Hardly. Similarly, consider an unimportant action that a

180  A rt i cu l at in g a T he ory o f Natural Law person undertakes for the pleasure of doing it but does so understanding that doing it will have seriously bad results for people he does not care about. That indifference to others’ interests might be easy for the agent to push out of view as he pursues his objective, but others see it easily, and explaining it to the agent is easy enough that its practical salience is undeniable: “Look what you are doing to these folks, just to please yourself.” These considerations are sufficient to show that the link between intending bad results and impermissibility cannot be established by this route. The truth of the observation that intending a bad result magnifies its evil cannot establish that the impermissibility of the action including it requires precisely intending the bad result and not simply the badness of the result. In short, Nagel effectively highlights the salience of the evil of intending a bad result because one goes against the stream of practical reason in so acting. But adapting his view to the demands of justifying the core of double effect shows that the rub between intending evil and reasoning governed by the good is not sufficient to justify the strong underlying claim of double effect about the impact of intending bad results on a class of actions’ impermissibility. This conclusion suggests a way forward in exploring how the core of double effect might be grounded in the conditions of human agency needed to apply normative determinants to actions. It suggests that both elements of agency that are relevant—intending bad results and bringing them about as unintended results—must be linked to the normative determinants in ways that constrain the application of these determinants to the actions, including either intended bad results or unintended bad results. Along with some collaborators, I once defended a thesis based on the differential effects on the agent’s moral self of free choices and so of intentional acts, on the one hand, and of accepting unintended results on the other hand. Roughly, in doing the former we constitute our moral selves, since in choosing freely we create the order in ourselves to human beings and to the goods that perfect them. That order is not transient in the way a choice or an action is; it is established in the free choices and lasts as the core of a moral self until a contrary choice is made. By contrast, when we voluntarily accept the unintended results of actions, we do not determine our moral selves as we do in choosing freely. The choice sets our priorities, not the unintended side effects that accompany them. So, unintended results are voluntarily brought

I n te n tio n, P ermissi bi lit y, Agen cy   181 about when they are foreseen or should be, but they are not the point of our action or the focus of moral assessment.9 This view did not start from intending evil as did Nagel’s account, but from implications of aspects of the agency involved in freely chosen intentional action. The idea was that what one freely chooses, precisely the objects of choice and intention, have a moral significance that unintended aspects of our actions cannot have. Intentional human actions are, of course, often done without a choice in the immediate background. But human life, organized as something a person responsibly lives out, is a more or less coherently related set of intentional actions. These express an agent’s moral character because they were at some point freely chosen or related to actions that were. Moreover, it is not options as the entire complex of actions, results, and other circumstances that have this special connection to the person one creates in acting. The goals intended and the means selected are focal to one’s interests and to the relationship one establishes in free choice to goods and persons. Therefore, human actions just as chosen and intended are focal to what agents understand themselves to be about and so also are the focal object of moral evaluation. Although not developed, the supposition was that that difference in the volitional components of a free choice— the object of the choice on the one hand and the results that emerge in deliberation but not as what one is committing to in making the choice on the other—were sufficient to tie intending a bad result tightly to the impermissibility of the action including it, so that its absence in actions including unintended bad results blocks the inference of their impermissibility from that of the action including the intended bad result. Although I believe that this account has elements needed for a justification of the core of double effect, as a general thesis about the different implications for moral evaluation of choices and intentions on the one hand and voluntarily accepting unintended results on the other, the thesis is insufficient. Its insufficiency emerges in the generality of the claim that free intentional actions are the primary objects of moral evaluation and that the relevance of voluntarily accepted side effects is secondary. The view includes the claim that unintended side effects are 9. See Boyle, “Toward Understanding the Principle of Double Effect” (chapter 7 in this volume); “The Principle of Double Effect: Good Actions Entangled in Evil,” in Moral Theology Today: Certitudes and Doubts, ed. Donald G. McCarthy (St. Louis: Pope John Center, 1984), 250–54. See also Germain Grisez, The Way of the Lord Jesus, vol. 1, Christian Moral Principles (Quincy, Ill.: Franciscan Press, 1983), 233–39.

182  A rt i cu l atin g a T he ory o f Natural Law always secondary to what is morally focal—the moral self-constitution of the agent through freely establishing an order between self and human goods. That seems false in cases where the only moral flaw in an action is the fact that it includes unintended bad results. That occurs in actions where proportion between the importance of the action and the badness of the results does not obtain. In such cases the action is wrong, but the wrongness comes substantially from the bad results that are not intended. Consequently, according to this view, the moral wrong is of a secondary sort; it does not constitute the moral self. But that is compatible with the action’s being very seriously wrong, if, for example, the harm was great and affected many people, or if the action included indifference to the welfare of such people. It is hard to see how this kind of indifference, even if not freely chosen, cannot be self-constituting. Consider also someone who does something that is morally wrong in the awareness that doing that will have harmful side effects. Accepting these bad results is obviously morally unjustifiable. However, one does the bad action knowing, and wittingly accepting, that people will be unjustifiably harmed as a result. Again, it is hard to see how accepting these bad results does not, in addition to the immoral action, constitute the moral self of the agent. What these cases suggest is that generally the self-constituting effect of freely choosing an intentional action cannot be limited to the objects of those choices, the intentional action itself, but embraces the acceptance of the morally relevant features of an action that is chosen. At least with respect to the cases I am now discussing, one’s self-constitution in choosing includes the voluntary action, not simply the objects of choice and intention. If the morally central self-constitution of freely choosing intentional actions is to be limited to the order to goods chosen and intended, that limitation needs to be grounded in something more than the order of the self to human goods it freely establishes. There is, however, an aspect of the difference between intentional actions as the objects of free choice, on the one hand, and the unintended results of actions, on the other, that is capable of providing a specification of a class of unintended bad results whose acceptance is not self-constituting. Intentional actions are avoidable in a way that avoiding the unintended results of intentionally acting is not. One can always avoid an intentional action by choosing not to do it (even if in some cases that will be heroically difficult). But one cannot generally avoid side effects, and in many situations cannot avoid bad side effects,

I n te n tio n, P ermissi bi lit y, Agen cy   183 whatever one chooses to do.10 One can, of course, avoid any particular result of a voluntary action by choosing to do something other than the action having this result; but frequently, whatever one chooses to do, a result one would prefer to avoid will be present—if not a bad result of exactly the same kind, one comparable in evil. Diverting impending harms away from some and toward others provides a simple example of the difficulty in avoiding harming someone, however one chooses. This difference in avoidability is obviously relevant to what a person can and cannot do. If we assume that moral obligation exists only when the person can avoid acting, it seems clear that morality can govern intentional actions in a way that it cannot reasonably govern bringing about bad results—results that are avoided only by doing what has other bad results of the same or a comparable kind. So, whenever there are bad results of actions that are in this way unavoidable, their impermissibility will not reasonably be determined by factors that render impermissible actions that are fully avoidable. Although I believe that the unavoidability of unintended bad results is a more widespread part of moral life than one might suppose, I cannot here delineate the extent of their presence and the exact senses in which they are unavoidable.11 Still, the difference between the avoidability of intentional actions and the unavoidability of unintended bad results depends upon a general condition of human agency—the difference between intentional actions and aspects of voluntary actions that are not intended. This condition is relevant to the determination of an action’s impermissibility in accord with the “ought implies can” dictum. Since it is irrational to prohibit as impermissible what is unavoidable, but not what is avoidable, the impermissibility of an avoidable action having an intended bad result does not provide warrant for determining the impermissibility of an action unavoidably having the same bad result. But intentional actions are always avoidable; one can choose not 10. This focus on inevitability began, at least for John Finnis, Germain Grisez, and me, in Finnis, Boyle, and Grisez, Nuclear Deterrence, Morality and Realism (Oxford and New York: Oxford University Press, 1987), 292. 11. I have explored this matter in responses to two very helpful criticisms of my view on the extent of unavoidable bad side effects. See Robert Anderson, “Boyle and the Principle of Double Effect,” American Journal of Jurisprudence 52, no. 1 (2007): 259–72; Adam Bailey, “The Intend/ Foresee Distinction, Moral Absolutes, and the Side Effects of the Choice to Do Nothing,” American Journal of Jurisprudence 56, no. 1 (2011): 151–68; and my responses, “The Moral Meaning and Justification of the Doctrine of Double Effect: A Response to Robert Anderson,” American Journal of Jurisprudence 53, no. 1 (2008): 69–84; “On Defining ‘Side Effects’: A Response to Adam Bailey,” American Journal of Jurisprudence 56, no. 1 (2011): 169–82.

184  A rt i cu l atin g a T he ory o f Natural Law to do them, and one cannot in that way avoid bad results in all choices. For such choices, the inference from the impermissibility of intending a bad result to unintentionally causing it is reasonably blocked. The aim of this essay has been to explore where one might find a justification for the supposition of the double-effect rule that there are actions of intentional kinds that are impermissible and indefeasibly so in virtue of their including bad results and to spell out important conditions that any such justification must meet. I argued that there is reason for holding that intending a bad result is relevant to an action’s impermissibility because one can comply by choosing not to do it. This fact about intention and human agency will be an element in the kind of impermissible action double effect addresses if there are normative considerations sufficient to show that the bad result in question is simply to be avoided. The results are likely morally demanding, but the prohibition, if grounded in sound normative considerations and limited to the intentional action, is a coherent moral norm.12 An absolute prohibition of actions with the same sort of unintended bad results is not a coherent moral norm whenever those bad results are unavoidable. Thus, the connection between intention and impermissibility underlying the rule requires their tight connection in the way some absolute prohibitions indicate. Without addressing the issues I have raised about differences in the power to avoid bad results, Elizabeth Anscombe pointed to the connection between the double-effect rule and absolute prohibitions of some kinds of action; she maintained that what she dubbed “the principle of side effects” was needed to avoid contradictions in the application of absolute moral prohibitions by restricting them to the prohibition of intentional actions.13 If there are such prohibitions, and if bad results are widespread and frequently unavoidable, double effect provides a reasonable ground for constraining their application to intentional actions. The justification of the prohibitions thus constrained is the business of normative reasoning, not of double effect, for which the prohibitions provide the subject matter. 12. Finnis, “Intention and Side Effects,” in Intention and Identity: Collected Essays (Oxford: Oxford University Press, 2011), 2:194–96, provides an elegant statement that integrates the limitation of absolute prohibitions to intentional actions—what we strictly choose—and the normative considerations that show, with the limitation assumed, that there is a normative case for moral absolutes. 13. G. E. M. Anscombe, “War and Murder,” 256–58, and “Medalist’s Address: Action, Intention and Double Effect,” 60–65, both in Woodward, Doctrine of Double Effect. She defines the principle of side effects on page 61 of the latter.

Part 2

Natural Law Theory and Contemporary Moral Problems

• Section 1 / Justice in War

9 / An Immoral Kind of Deterrence

Moral Arguments about Deterrence and Recent Changes in International Relations In Nuclear Deterrence, Morality and Realism (1987), John Finnis, Germain Grisez, and I argued that the social act by which the United States and its Western allies deter the Soviet Union is immoral. To establish this conclusion we argued, in effect, that (1) there is a kind of deterrence that is morally impermissible, namely, one that includes a conditional intention to kill innocents; and (2) the American deterrent (which I will call “the deterrent”) is an act of that kind. Thus, we were not talking about anything as general as nuclear deterrence or deterrence or nuclear weapons, but about a complex yet logically singular action, the social act that we think has been done continuously by the United States since at least the 1960s and is probably still being done. The only kind of action with which we were concerned was the kind that, we argued, the deterrent instantiates: threatening to kill innocents with the conditional intent to carry out the threat. Since, as we argued, the deterrent is an act of an impermissible kind and the reasoning for this judgment included a consideration of the circumstances that might make it acceptable to continue with the deterrent even for a time, we drew the obvious conclusion that the United States should abandon the deterrent. In the context within which we wrote, that seemed a very drastic step indeed. For the deterrent was the cornerstone of Western defense against Soviet power, and abandoning 189

190  C o n te mpo rary Moral Pr o bl em s it in the face of that power seemed tantamount to handing world hegemony over to the Soviets.1 Unilateral abandonment of the deterrent, together with any other steps required for being responsible about abandoning what the deterrent requires, would, we thought, amount to something very much like surrender to Soviet power. For alternatives to the deterrent—such things as purely conventional forces, defensive strategies like Star Wars, and genuinely counterforce deployment of nuclear forces—do not seem capable of deterring or effectively defending against the power of a hostile force capable of final retaliation against population centers.2 Without the deterrent, efforts to deter, contain, or defend against the Soviets looked like an irresponsible invitation to disaster. In spite of these bleak prospects, we thought that the moral course was clear: unilateral abandonment of the deterrent and the implementation of the steps needed to avoid disaster in the absence of deterrence. Of course, the world situation has changed enormously since we wrote Nuclear Deterrence, Morality and Realism in the mid-1980s. The Soviet Union no longer seems capable of or interested in world domination. So, unilateral abandonment of the deterrent does not seem likely to have the bad consequences we expected. Furthermore, the developing international situation leaves room for elaborating alternatives for defense and deterrence that are not of the same moral kind as the deterrent. Still, moral qualms about the deterrent do not seem to have affected American policymakers, and the deterrent, pretty much as we described it, has not been renounced and appears to remain in place. However, given the likely changes in power arrangements during the upcoming years, strategic doctrine will probably develop considerably, and deterrence policy along with it. Surely there will be some change in the words by which deterrent threats are issued and in the military and strategic deeds that back them up and make them credible. These new words and deeds might constitute and express a different moral reality than the deterrent. But they might not. In either case they might serve to disguise and obscure the moral reality of our strategic posture and thus continue a tradition of strategic pronouncements and 1. John Finnis, Joseph Boyle, and Germain Grisez, Nuclear Deterrence, Morality and Realism (Oxford and New York: Oxford University Press, 1987), 70–77, 324–37. Hereafter, this work will be cited as Nuclear Deterrence. 2. Nuclear Deterrence, 147–54.

An Immo ra l K in d o f D et err en ce   191 actions in which the moral issues are systematically, if not deliberately, fudged. This tradition is well established in the Western democracies and goes back at least to the public statements of strategic bombing policy during World War II.3 In any case it seems unlikely that there will be a clear repudiation of the deterrent, and so, given the changes that are sure to occur, it is likely to become much more difficult in the years ahead to morally identify the descendants of the deterrent. In addition to the fact that new doctrine will enhance, not curtail, the possibilities for rationalizing and dissembling on the part of policymakers, strategists, and moralists, its development and implementation will complicate the factors that, in the recent past, made it possible to identify the moral character of the deterrent. For example, talk about counterforce strategies, whether sheer rationalization, wishful thinking, or honest analysis, could a few years ago be shown to be irrelevant to the basic moral issue raised by threats of final retaliation, because such strategies were plainly needed to fill gaps within the ladder of deterrence, the foundation of which had to remain the threat of final retaliation. “Had to” because we faced an enemy itself capable of final retaliation, even if our counterforce power was fully and effectively used. That kind of argument is not available if we face enemies with lesser capacities.4 More generally, many of the “necessities” to which one could appeal in arguing that the deterrent was in fact an act of a murderous kind have themselves been dependent upon the situation of mutual deterrence between powers capable of final retaliation and incapable of safely taking steps toward genuine alternatives to threats of final retaliation. In a word, the new world situation raises the question of whether the argument of Nuclear Deterrence, and perhaps of any moral analysis developed within the context of the Cold War, is now obsolete. Surely, some moral arguments about the deterrent will become or have become obsolete—for example, Michael Walzer’s argument that something like a condition of supreme emergency justifies the Western deterrent,5 or perhaps consequentialist arguments that depend on a precise estimate of the outcomes of keeping or abandoning the deterrent. 3. Nuclear Deterrence, 18–26, 38–44. 4. Nuclear Deterrence, 143–54. 5. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 1977).

192  C o n t e mporary Moral Pr ob l em s As already noted, Nuclear Deterrence included projections about the consequences of abandoning the deterrent and an extensive effort to morally identify the deterrent. Both of these parts of our argument will require substantial revision and explication if the kind of argument we made is to lead to concrete evaluations of likely future developments in deterrence policy. In particular, the effort to identify the moral kind of actions by which the United States deters potential enemies is likely to be very difficult. However, one component upon the context of the Cold War will not require substantial revision—namely, the argument that there is an impermissible kind of deterrence. In what follows I will lay out a version of this argument. I think this is worth doing because abstract arguments against certain kinds of actions have an enduring role in moral discussion and reflection. This is true even if it is difficult or impossible to identify instances of the action. For the kind of social criticism that is one of the tasks of moral philosophy and that requires the effort to identify instances of morally evaluated kinds of action can proceed even in the face of substantial empirical ambiguities, and this kind of social criticism is not the only or the primary purpose of moral analysis. Policymakers and citizens can be guided in their planning and public decision-making by moral considerations, and attending to the moral kinds of actions they might consider doing is surely part of such prospective moral evaluation. This sort of moral reflection does not require the difficult and detailed argumentation to morally identify an act that is needed to convict someone of wrongdoing. The requirements of a quasi-legal argument that seeks to establish from a third-person perspective that someone is doing an act of an impermissible kind are obviously quite different from the considerations that an agent needs to guide her or his decisions. So there is some value in determining whether there is a sound moral argument against a kind of deterrence. To keep the focus clear and make the subject manageable, I will set aside two components of the normative view that underlies the argument: (1) I will not discuss the arguments against consequentialist approaches to the deterrent or enter into the arguments about consequentialism more generally.6 This is an essential part of the dialectic

6. Nuclear Deterrence, 238–67.

An Immo ra l K in d o f D et err en ce   193 by which we defend our overall deontological approach to deterrence issues, but here I will simply assume that approach. (2) I will not try to derive what I think is the basic moral norm governing these matters—the prohibition against intentionally killing the innocent—from more basic normative principles.7 Again, I will assume the truth of this norm and assume that it is an absolute norm. Of course, these assumptions are controversial, as indeed are the attempts to defend them in Nuclear Deterrence. Still, these assumptions form part of the moral outlook of many people, including many who do not reject the deterrent as immoral. Thus, these assumptions do not themselves determine whether there is an immoral kind of deterring. For deterrence is not killing but threatening to kill, and so reasoning is needed to determine whether the threat involved in at least one kind of deterrence renders acts of that kind immoral. Therefore, my effort in what follows is to exhibit that reasoning. While not sufficient to justify the moral evaluation of a kind of act of deterrence, such an effort is necessary and so important for the ongoing discussion of the deterrent.

A Kind of Deterrence I begin the argument by delineating a kind of human action from what seems to me the proper moral perspective: that of the intentions, practical reasoning, and choices of the agents involved. Let us consider, then, a certain kind of act: an act in which one intentionally deters another. What does one undertake when choosing to deter? I take it that one deters when one wants to control the behavior of another in some way— namely, by giving the other a certain kind of reason not to do something one does not want the other to do. The kind of reason one gives the other is the credible threat to do something the other does not want one to do. So, intentionally deterring presupposes the belief on the part of the one who deters that there is an outcome that the other fears and that one can bring about, and the belief that threatening to bring about that outcome will give the other reason not to do certain things. The action of deterring is making the threat so that the other, believing that one will cause the feared outcome if he or she does certain things, will refrain from doing them.

7. Nuclear Deterrence, 297–319.

194  C o n te mpo rary Mo ral Pro bl em s So, here is a possible action someone might take: one commits oneself to achieving the benefit involved in another’s refraining from doing something one regards as harmful. That benefit is what one intends in choosing to deter. That benefit is achieved by causing the other to fear certain things one could do, and so causing that fear is the precise means one chooses to achieve the intended benefit of deterrence. But it is equally clear that the feared action one threatens need not be something one intends, even conditionally, to do. Perhaps one knows that one cannot do the act, but can cause the other to believe that one can. In that circumstance, one’s threat is a bluff in a fairly obvious sense (as when Dirty Harry says, “Make my day,” knowing his revolver is empty). It also is possible that the person issuing the deterrent threat is resolved not to do the act if the conditions calling for it are fulfilled, but thinks she can achieve the benefits of deterrence by causing the other to believe falsely that she will, if necessary, do what is threatened. Here again we have a bluff. And whatever the morality of these kinds of bluffing, they are not acts involving the choice to do the threatened act. If one is not bluffing in making a deterrent threat, there seem to be two possibilities: either one chooses precisely to do the threatened action if the conditions calling for it are fulfilled, or one leaves open for a later choice the question of whether or not one will do the act should the conditions calling for it be fulfilled. In the first of these possibilities the resolve to do the threatened act is clearly part of what one intends in the act of deterrence: one’s choice includes the resolve to do the act if the conditions calling for it are fulfilled. Causing the other to fear something the other believes one could do is, as noted earlier, essential to an act of deterrence, and resolving to do the threatened act if the conditions calling for it are fulfilled is surely one sensible way of contributing to the causing of that fear. This resolve alone will not cause fear, but it surely can help. For the reality of this resolve, if effectively communicated, will help remove the possibility that the other will think the threat a bluff. One way to get one’s threats to be taken seriously is to be ready to carry them out, and so the will to do the feared act is a natural way of realizing the essential deterrent means of causing fear. In the second of these possibilities, the act of deterrence does not include the firm resolve to do the threatened act if called for. In this case what contributes to causing the other’s fear is one’s openness to choose in the future to do the act, however that may be expressed or disguised.

An Immo ra l K in d o f D et e rr en ce   195 So one’s will is not firmly fixed on doing the threatened act if called for. However, the moral significance of this difference in intentional structure is not great—not at least in the context of the argument I am developing. For, as will become clear, what is pivotal in this argument is one’s will toward doing the action one threatens, since it is impermissible to do the threatened act. Although there is a difference between choosing to do such an act if the conditions calling for it are fulfilled and keeping an open mind about whether one will do it, that difference does not mark the line between permissible and impermissible choices. For it is wrong to maintain an open mind about doing immoral things; such possibilities should be firmly rejected.8 There is a difference between maintaining an open mind about future wrongdoing and doing something that has as a side effect the creation of future temptations. In the first case one’s choice is precisely to leave open the possibility of choosing evil, whereas in the second case one’s choice is not to be open to doing evil but to do the act that brings about the temptation. The latter can be compatible with an upright will, but not the former. Still, to make the main moral argument perspicuous, let us set aside this possibility of leaving one’s options open and consider the case in which one deters precisely by choosing to do the threatened action should it be called for. Now it is clear that among the things one might threaten to do in deterring another are some that it is impermissible to do. The kind of act of deterring I will evaluate is one in which the threatened act is the act of intentionally killing the innocent. I use “innocent” in the standard way to refer to those who are neither convicted capital criminals nor engaged in unlawful, violent action.9 I call the threatened killing “intentional” not to indicate that the causing of deaths is itself a benefit, but according to the common usage in which what one does purposefully as part of one’s plan is “intentional” in contrast to what one brings about as a side effect of carrying out that plan. The interlocking intentions of deterrent acts and of the acts threatened in deterrent acts, as well as the relationships between one’s intentions toward what one threatens as one threatens it in deterring and those involved in actually doing the threatened act should deterrence fail, make for considerable difficulty in identifying a threatened act as one of intentionally killing the innocent. I am concerned with the clear 8. Nuclear Deterrence, 110–12. 9. Nuclear Deterrence, 86–90.

196  C o n te mporary Moral Pr ob l em s case in which one does threaten to kill innocents, however one would describe that to oneself or others. It is perhaps worth noting that, although there are some genuinely difficult cases here, there are also some transparent rationalizations in which the threat to kill innocents is plainly present, though not acknowledged. Thus, for example, the long list of strategic statements in which American officials disavow any interest in targeting or destroying cities or attacking civilians. The disavowals are almost always followed by a reminder that, of course, cities and civilians cannot escape destruction. It is clear, therefore, that the fear on the part of the Soviet leaders that these innocents will be killed is part of what American leaders take steps to bring about and apparently want to bring about. Consequently, even if the deaths of these innocents were genuine side effects of the military actions that would carry out the threat if deterrence should fail, these deaths would not fall outside one’s deterrent intentions. For, in deterring, one chooses precisely to cause fear, and what one chooses to cause the other to fear is part of one’s plan and intention.10 The difficult cases arise when (1) the action one threatens is predicted to have effects the prospect of which will contribute to the other’s fear of the threatened act, but (2) one refuses to take steps designed specifically to cause the other to fear just those effects. In this case, one cannot but welcome the fact that the prospect of these effects is fearful to the other, since they contribute to one’s deterrent purposes. And it seems true even if there are other reasons one may not welcome such effects, such as one’s judgment that it is not permissible to act with a view toward causing that fear. This case is difficult, because welcoming what contributes to one’s purpose is often a sign that one intends it, but the refusal to take steps to bring something about is a sign that one does not intend it. Although I am inclined to believe that it is possible not to intend such effects, it seems to me that the only thing to which one can appeal in many cases is one’s conviction that one does not in fact intend them, that one is not interested in them even as a bonus, and that one brings them about only as a side effect of threatening something else. Happily, my argument does not require that the difficulties raised by this possibility be settled. To return to the main argument: I have delineated a certain kind of action—an act of deterring in which one threatens to intentionally 10. Nuclear Deterrence, 91–93.

An Immo ra l K in d o f D e t err en ce   197 kill innocents and in which one is neither bluffing nor keeping open the decision about killing if the threat fails to work, but in which one is resolved to intentionally kill innocents if the conditions calling for the threatened act are fulfilled. This is a kind of act that does include the conditional intention to kill innocents—either because that is precisely what is threatened or because what one wants to cause the other to fear includes the deaths of innocents.

The Moral Evaluation of This Kind of Deterrence This, at last, is a kind of act that it is profitable to morally evaluate. The argument to show that acts of just this kind are immoral seems to me relatively straightforward. The basic premise in the argument for this conclusion is what Gregory Kavka has called the “wrongful intentions principle”: the idea that it is wrong to intend what it is wrong to do. So, it is wrong to intend the deaths of innocents, just as it is wrong to intentionally kill them. This step in the argument seems uncontroversial. The further application of the wrongful intentions principle to conditional intentions is generally uncontroversial. One who intends to rob a bank only if the guard is absent surely has a wrongful intention, and it is seen as such by an uncontroversial application of the wrongful intentions principle. It is the application of the wrongful intentions principle to the case of deterrent intentions that seems abstract and mistaken. Kavka has provided one of the chief reasons for this appearance: in acts of deterring, the conditional intention has what he calls “autonomous” consequences—consequences that arise from forming and expressing the conditional intention independently of whether the threatened action is carried out. Kavka uses this observation to ground a consequentialist argument for blocking the application of the wrongful intentions principle to a class of deterrent intentions. This argument assumes that what justifies the wrongful intentions principle is that intending to do something bad (usually) increases the likelihood that one will do it. It proceeds to claim that in deterrent situations in which the bad outcomes one wishes to prevent are worse or roughly as bad as the evil conditionally intended, one may act with the deterrent intention.11 11. Nuclear Deterrence, 180, 181; Gregory Kavka, “Some Paradoxes of Deterrence,” Journal of Philosophy 75, no. 6 (1978): 285–302.

198  C o n te mpo rary Mo ral Pro bl em s But the assumption of this argument is unavailable to those who wish to proceed with moral analysis on nonconsequentialist lines. For nonconsequentialists, the wrongful intentions principle is not the result of applying the consequentialist method to the causal connections between willed acts and outcomes, but a reminder about what moral evaluation deals with. Moral standards, according to this nonconsequentialist conception, direct people in their use of freedom. Consequently, free choices and their underlying intentions are the main subject of moral evaluation; behavior is not independently significant but morally relevant as the execution and expression of choices. So the wrongful intentions principle does not provide a bridge for connecting a subject of derivative or secondary moral evaluation to the primary subject, but is a reminder that moral norms direct our lives just insofar as our lives are the exercise of our freedom and so apply just as much to choices that are not carried out in overt behavior as to those that are.12 All of us have difficulty in keeping in focus the precise kind of action that Kavka and I are discussing: one that does involve the conditional intention to kill innocents. If the factors that blur this focus are explicitly considered, it becomes plausible to think that the wrongful intentions principle applies. This focus is hard to maintain because some deterrent acts involving this conditional intention are similar to acts having a different intentional structure and because some of them have features that make the presence of this intention less than perspicuous. Some deterrent acts involving a conditional intention to kill innocents are easily confused with actions in which a person does something with the expectation that doing this will give him or her reason at some future time to wrongfully kill—for example, in a bluff in which one recognizes that one might be sorely tempted to carry out the threat. This kind of act is intentionally different than the one Kavka and I discuss. For we are considering an act in which there is not simply an expectation that one might make an immoral choice in the future. One’s choice is already made: one is resolved to do the threatened act if the conditions calling for it are fulfilled. Deterrent acts involving the conditional intent to do what one threatens are also easily confused with acts in which the condition includes some further choice that one has not made. This is the situation 12. Nuclear Deterrence, 78–81.

An I mmo ra l K in d o f D et err en ce   199 in the old example of the monk who decides that if he ever chooses to go to a bordello he will not go in his habit. Since the monk has not chosen to go to the bordello, his will is not fixed on abandoning his habit in the way the will of one deterring with the conditional intention to carry out the threat is fixed on carrying out the threat. What is conditional in this deterrent case is not conditioned on one’s future choices, but on factors that operate independently of it. A deterrent case that is perhaps more like that of the monk is one in which one’s choice is to keep one’s options open, but that, as I said earlier, is not the case under consideration. Even this kind of deterrence differs from the monk’s case in that in the latter there is no will to abandon the habit, since there is no will to fulfill the condition on which that action depends, whereas in the former, the fulfillment of the conditions calling for the threatened action are outside one’s control, and one does have a will to at least remain open to doing what one threatens. I turn now to a consideration of some of the factors that may obscure the presence of the conditional intention to do what one threatens in acts of deterrence in which that intention is ex hypothesi present. One such factor arises when the threat involving the conditional intent is made in circumstances such that the conditions calling for carrying out the threat are not likely to be fulfilled immediately, thus allowing for time to change one’s mind. In such a case it might seem that one cannot be choosing anything more than to keep one’s options open. But a conditional intent to do what one threatens is compatible with having time within which one might change one’s mind. The fact that one foresees that one will be able to change one’s mind has no tendency to show that one had not made up one’s mind in the first place; quite the contrary. Likewise, the fact that one judges it most unlikely that the conditions calling for the performance of the threatened act will be fulfilled might obscure the presence of a conditional intention, but it is compatible with there being such an intention. One can surely resolve to do something if necessary while believing that one probably will not have to do it. And even if the threat containing the conditional intention is made precisely to render the need for carrying it out unlikely, one can make the threat with that intention. Finally, the fact that one does not want to carry out the threatened act can obscure the intentional structure of an act of deterrence but is compatible with threatening with the conditional intention to carry it out. Here the language of intention is perhaps problematic because car-

200  C o n te mpo rary Mo ral Pr obl em s rying out the threat when one does not want to carry it out presupposes that doing the threatened action is not regarded as a benefit and not, in that sense, intended. But people plainly are capable of choosing to do things that they do only reluctantly and with great loathing. Thus, it seems possible to conditionally intend to do something one does not want to do. Indeed, that is what would be going on in the relevant class of deterrent acts, supposing that those who issue the threats do not want to carry them out.13 It is perhaps worth noting that there is a form of reluctance that is incompatible with deterrence, but the incompatibility has nothing specifically to do with the conditional intentions involved in some deterrent threats. If one had overriding reasons not to carry out a deterrent threat and no good reason to carry it out when the conditions calling for it were fulfilled, then not only could one not conditionally intend to carry out the threat, but one could not plausibly threaten it to deter, even as a bluff. To guarantee that a threat is credible as a threat, one must do what one can to exclude the appearances that one is bluffing; and that requires that one foresee and communicate that one will have reason to carry out the threat if the conditions calling for it are fulfilled. So, the kind of reluctance incompatible with the conditional intent to do the threatened act is incompatible with deterrence as such. MAD can’t be literally mad and still work as a deterrent; moreover, there clearly is a motive that one could expect people to act on, even in final retaliation: vengeance. This is not perhaps a good reason, but it is a sufficient motive. In short, many of the reasons for resisting the application of the wrongful intentions principle to deterrent intentions are factors that lead people to suppose that the relevant conditional intentions do not exist. But the case at hand is one in which the conditional intention to do wrong is assumed to be present. There appears to be every reason to apply the wrongful intentions principle here, for the resolve to kill innocents involved in this kind of deterrence is a real willingness and readiness to do it. The will of one doing the act is set. The will to kill is conditional, but the condition is not a further determination of one’s will, but rather the fulfillment of conditions that do not depend on one’s will. Since the wrongful intention principle applies to deterrent intentions, the kind of action I have delineated is immoral. Any act 13. Nuclear Deterrence, 81–86.

An I mmo ra l K in d o f D et err en ce   201 a person contemplates doing that is seen to be of this kind should be rejected as a temptation.

Social Acts and Blurring Now, deterrence by a nation is not the act of an individual, but of a group. This surely complicates the moral analysis—in particular, an analysis that puts so much emphasis on intention and choice. Who is making the choice and forming the deterrent intentions? Steven Lee argues that difficulties in answering this sort of question are the Achilles heel of the argument of Nuclear Deterrence (and indeed of any attempt to apply just-war analyses to policies of deterrence rather than to actual warfare). He thinks these difficulties emerge in our rejection of the possibility that the deterrent is a bluff. He says: The authors adopt a deontological perspective concerned with assessing the intentions of individuals, but then to show that nuclear deterrence cannot be a bluff, they apply this perspective, through the notion of a social act, in such a way that the intentions of individuals become no longer morally determinative.14

Plainly, an argument against a kind of deterrence would be fantastic if its conclusion could be applied to actions of that kind done by a group only by accepting group intentions and choices that are wholly unrelated to the choices and intentions of group members. But the claim that Lee reports by saying that “the intentions of individuals become no longer morally determinative” is not that there are no individual choices that are necessary or sufficient for social actions. We say otherwise: The deterrent, too, is a social act. The U.S. deterrent, for instance, came into being and is kept in being by official acts of presidents, members of Congress, and others, in accord with their constitutional, statutory, or other public responsibilities.15

As this suggests, our claim is that members of a group can make choices and have intentions that are different from and inconsistent with those they make as participants in a group action.16 14. Steven Lee, “Morality and Nuclear Weapons Policy,” Philosophy and Public Affairs 19, no. 1 (1990): 95. 15. Nuclear Deterrence, 122. 16. Nuclear Deterrence, 121–23.

202  C o n te mpo rary Moral Pro bl em s However group actions are to be understood, there surely are such things: teams play games, countries declare war, families go on vacation, universities adopt admission standards, and so on. I take it that the decisions of some within the group under some circumstances are necessary and sufficient to create an act of the group. There is no general way to say whose decisions, made under what conditions, count as the decisions of the group, since the authority structure of groups is variable and more or less formally established. But this indeterminacy does not leave group decisions hanging in the air, independent of anybody’s choices and intentions. Consequently, adding to the act of deterrence evaluated in the previous section, the circumstance that its agent is a group does not put it into moral limbo or, as far as I can see, provide a circumstance that substantially changes its moral character. This general response to Lee’s criticism can be amplified by putting it into the context of Nuclear Deterrence’s argument that the deterrent cannot be a bluff. This argument does not include the claim that social acts cannot be bluffs. They plainly can be. A small group who could and did communicate among themselves that a threat they corporately issued was not to be carried out would be bluffing.17 Variations on this simple possibility suggest the complexities in the relationships between group and individual decisions and point to some of the reasons for thinking that the deterrent cannot be a bluff. Suppose the leader of the group proposes to the others that they engage in a bluff, and the others agree, but the leader is lying and plans to go through with it: is the act of the group a bluff or not? Suppose that it is not the leader who is lying about bluffing but one or another of the members who would have to refrain from carrying out the threat if that were called for: is the group action then a bluff or not? A natural way to resolve these puzzles is to regard as the act of the group the act that is proposed to group members, for endorsement if necessary and for cooperation and compliance. Thus, if a group is asked or told by its authorities to bluff, then those who cooperate are engaged in a common action of bluffing. But if they are asked or told to be ready to carry out a threat, the common action in which they are wittingly cooperating cannot be a bluff. A person might pretend to cooperate in the common action of deterrence while resolving never to do his or her part in carrying out the threat; perhaps we might say that the 17. Nuclear Deterrence, 114.

An Immo ra l K in d o f D et err en c e   203 person is bluffing, but surely that has no tendency to show that the joint enterprise is a bluff. These conceptual points are applied to the deterrent in the following way: what has been proposed by its leaders to the American people for their support and acceptance, and to many Americans for much more active cooperation than that, is not that the U.S. deters by bluffing, or for that matter by keeping our close options open, but that we should be ready and willing to carry out murderous threats. This is what is on the table: what Congress is asked to appropriate money to support, what the military is asked to implement, and what citizens are asked to support. All might wish it were a bluff, and many of those in a position to contribute to carrying out the threat if called for, including perhaps the president, or the president on some days but not others, might resolve not to carry it out. But the social act is not changed by such private resolves. Thus, given the way in which American policy is established, as well as the large and complex nature of the cooperation needed for deterrence, it seems impossible that the public proposal be a bluff—that would be tantamount to announcing to the other side that our threat was just a bluff. To sum up: what provides some room between individual intentions and the intentions that constitute social actions are the protocols for authoritative decision-making in any group and the need for communication of proposals for cooperative action to those who will wittingly cooperate. These facts do not altogether break the link between personal choice and social action, and they do not by themselves rule out the possibility of social acts of bluffing. What rules out the possibility of bluffing in American deterrence policy is the conjunction of these factors with the demands of public decision-making in a democratic society (public in our world even to one’s enemies). Our argument that the deterrent cannot be a bluff was undertaken as part of the effort to block the rationalizations that prevent the correct moral identification of the deterrent. But the necessities to which we appealed in this argument are not a function of the Cold War relationship between the superpowers. The necessities depend on factors that are much less likely to change. So, the discussion of the possibilities of bluffing are of continuing importance if only for the light they throw on the social character of deterrence by a modern democracy. Where does my analysis leave us? With an argument against a kind

204  C o n te mpo rary Mo ral Pr obl em s of deterrence that is certainly a continuing possibility in a world formed by strategic bombing and thirty or more years of deterrence that surely seem to be of that kind. Are all future forms of nuclear deterrence likely to be of that kind? Hardly, or at least not clearly. But the argument suggests some questions to ask ourselves when it is not clear whether we are threatening murderously and points to some of the ways in which we might deceive ourselves. But maybe there will be acts of new moral kinds. For them we will need new moral analyses. So, I doubt there can be anything like a single, final argument against all possible forms of nuclear deterrence.

10 / Traditional Just War Theory and Humanitarian Intervention

Introduction By “traditional just war theory,” I mean the organized set of precepts and their rationale concerning the moral permissibility of engaging in warfare developed by medieval canonists and moral theologians, chiefly from the work of St. Augustine. I do not call this “medieval just war thinking” because it has continued to develop in the modern period, not only in the work of sixteenth­-century scholastics such as Vitoria but also in continuing Roman Catholic teaching and in the reflections of neo-scholastic philosophers and theologians. I do not call this “Catholic just war thinking” because it is not narrowly religious or theological and remains of interest to many non-Catholics. By “warfare,” I follow the older tradition in understanding it to be simply “contending with arms.” So a violent conflict need not be formally declared nor need it be conducted by established polities to be a war: one can go to war with brigands or terrorists, although such wars, like others, can be wrong to undertake or to execute in some ways. An important component of the idea of war in this older just war tradition is that it is a collective action—something individuals cannot do acting alone but only in concert with others, and therefore with some coordination of individuals’ contributing actions by social authority. This further implies as a condition for a war’s permissibility that the authority coordinating the bellicose action be of the right kind. The kind of war to be discussed is an intervention. I understand that interventions are not necessarily by force or its threat; it is only 205

206  C o n te mpo rary Mo ral Pro bl em s interventions that compel by force that I address, and they surely are morally a kind of warfare.1 Interventions are held to be similar to, if not instances of, the kind of aggressive war widely held to be impermissible—indeed, criminal, insofar as it ordinarily involves border crossing and is not undertaken for the sake of legitimate self-defense. But an intervention can be understood to be distinct from aggression when this is defined as a crime and to be possibly justifiable because its purposes do not include an ongoing occupation of the target’s territory or the removal of whatever political independence that nation may have. Thus, to take two of the three kinds of intervention that Michael Walzer identifies, a state’s intervening to support the secession of a people from a larger polity and a state’s intervening in a civil war to balance the interference of other states are not, or at least not obviously, cases of aggression.2 The sort of intervention I will discuss is humanitarian in a narrow sense: namely, intervention undertaken for the sake of protecting or securing noncitizens’ fundamental human rights when these rights either (1) are violated by their government’s own action or by its refusal to prevent other agents from doing so, or (2) are in jeopardy because of an anarchic situation in which no government exists capable of securing those rights—typically the condition of a failed state. This defines roughly the third species of intervention identified by Walzer. One of Howard Adelman’s definitions captures the idea nicely and is sufficient to specify the kind of human activity I will discuss: humanitarian intervention is “the use of physical force within the sovereign territory of another state by other states or the United Nations for the purpose of either the protection of, or the provision of emergency aid to, the population within that territory.”3 It is perhaps worth noting that this definition is of a kind of social act—of warfare undertaken for a certain purpose. Thus, it is not intended to be a definition of an action already evaluated as morally good. According to this relatively descriptive account of humanitarian intervention, a use of force can be wrong even after it is agreed to be a humanitarian intervention.4 1. For some useful reflections on definitional issues, see Jeff McMahan, “Intervention and Collective Self-Determination,” Ethics and International Affairs 10 (1996): 1–4. 2. See Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 1977), 90–100. 3. Howard Adelman, “Humanitarian Intervention: The Case of the Kurds,” International Journal of Refugee Law 4 (1992): 18, 38, cited in Pierre Laberge, “Humanitarian Intervention: Three Ethical Positions,” Ethics and International Affairs 9, no. 1 (1995): 15. 4. Contrast this with Nicholas Wheeler, Saving Strangers: Humanitarian Intervention in In-

J ust War T he ory an d In te rven ti on   207 Relating traditional just war theory and the moral issues raised by humanitarian intervention has more than merely historical interest. Because its focus and vocabulary differ somewhat from those of modern international law and powerful current formulations of just war theory like Walzer’s, this theory offers a practically relevant alternative to those views. The modern international law applicable to the legitimacy of going to war has initial and primary focus on the crime of aggression, on the presumptive impermissibility of border crossings, and on the fundamental importance of states’ mutual respect for one another’s sovereignty and political independence.5 This same focus is central in current just war theory. For example, the casuistic method that arrives at and applies rules for justified warfare begins with widely accepted ideas about the relationships between members of a society and develops analogies to the relationships between states. Developing the relevant analogies plainly requires careful attention to the ways in which states and individuals within a society are different, but states are presumptively free, much as individual members of a society ordinarily should be, to carry on their business unimpeded by other relevant actors. So, political sovereignty and territorial integrity function in international society much as individual rights do within a polity. Walzer has formulated the general results of this “domestic analogy” as what he calls “the legalist paradigm”: a set of norms and normatively interpreted facts that he plausibly holds to be the basis for the significant consensus underlying the legal status quo on the legitimacy of going to war.6 ternational Society (Oxford: Oxford University Press, 2000), 34ff. For Wheeler, a humanitarian intervention has four defining conditions: (1) just cause: a supreme emergency of some noncitizens; (2) last resort; (3) proportionality; (4) promotion of a positive humanitarian outcome. This defines a morally justified action. I prefer to begin more descriptively with an action defined only by its presumptively morally good purpose (roughly Wheeler’s first condition), and then ask under what conditions it can be permissible to undertake and execute such an action. As the tradition would ask of any action correctly described as a war whether it is a morally permissible action, I am asking of a war further described as being undertaken for humanitarian purposes whether it is permissible. 5. This vocabulary and the ideas it represents are on or very near the surface of the UN Charter, especially in Article 2 (4): “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state” and 2 (7): “Nothing in the present Charter shall authorize the U.N. to intervene in matters that are essentially within the domestic jurisdiction of any state.” 6. Walzer, Just and Unjust Wars, 58–64; see J. Bryan Hehir, “Intervention: From Theories to Cases,” Ethics and International Affairs 9 (March 1995): 1–13, for an account of the power and importance of the Westphalian agreement about the structure of international society and its resistance to interventions.

208  C o n t e mpo rary Moral Pr o bl em s In contrast to the focus and vocabulary of international law and current just war theory, the older tradition focused on the common good of a polity and therefore on the (conceptually consequential) question of the authority of those leading a state’s bellicose action and on the justice of the cause for fighting. So, aggression will be wrong not simply because it is a border crossing or a violation of sovereignty, but either because it is substantively unjust if a just cause is lacking, or because it is ultra vires for a state’s leaders to undertake, or because the bellicose actions are not strictly for the sake of the just cause and, more ultimately, for the sake of peace. This difference in focus and vocabulary suggests there may be important moral differences between older just war moralizing and the deliverances of current just war theory and practice. For two reasons I think the suggestion is correct. First, traditional just war theory is an integral part of a larger view of moral and social life. Its casuistry is controlled by moral principle, and its reasoning and norms are integrated with other personal and social moral concerns. If modern just war conviction were equally imbedded in a rich moral framework, it could not have achieved the widespread positive establishment and the consensus surrounding its norms that it actually enjoys. So traditional just war theory has different and likely richer, if also more contentious, resources to bring to the questions raised about humanitarian intervention than do positive legal developments and such moral reasoning as is likely to be widely acceptable. Posing the question about the permissibility of humanitarian intervention in terms of what is legally established or widely acceptable within what Walzer calls the “common moral world” seems unlikely to provide an unambiguous answer. Indeed, the accepted categories raise the question as especially problematic and exceptional. Similarly, seeking resources to answer this question from larger conceptions of international society, whether from those premised on the sovereign independence of states or from those emphasizing their interdependence and mutual interests, moves one very quickly outside the areas in which there is normative consensus. Second, the ideas that dominate traditional just war theorizing—notably the common good, political authority and its limits, and, to a real but lesser extent, justice—certainly appear to be both distinctive and theoretically important for reflection upon the responsibilities of various kinds of communities and of various persons within them. These ideas do not dominate modern discussions of justified war. And if ideas

J us t War T he o ry an d In t erven ti on   209 such as sovereignty and aggression now do the work these concepts once did, it is not clear that the results of reflection carried on in these different vocabularies will turn out to be identical. Even if the normative conclusions justified did turn out to be the same, the differences in the reasoning would likely remain significant.

The Traditional Criteria for a Morally Justified War Thomas Aquinas gathered the teachings of Augustine on the morality of war, by his day widely interpreted and incorporated into canon law, and in a short, clear statement provided what is probably the classic statement of the traditional just war theory. This treatment appears in Aquinas’s best known and most mature work, the Summa Theologiae, in the second part of the second part, which deals with moral problems. The discussion falls within the sins against the virtue of charity because war is presumptively a sin against charity.7 Aquinas maintains that a war can be morally justified if and only if three conditions are met. Those conditions are proper authority, just cause, and right intent. His concern is plainly with conditions for what came to be called jus ad bellum, the moral permissibility of going to war. I believe that all the central norms usually associated with just war, although not their casuistic nuancing, are assumed by or implicit in what Aquinas says here. The jus in bello norms for the conduct of war that have been the center of just war concern about twentieth-century warfare were not explicit until Vitoria’s work, but the normative direction is surely here as well. It is reasonable to think that Aquinas assumes in this discussion that the absolute prohibition against murder—intentionally or wantonly killing innocents—applies in warfare just as robustly as the prohibition against lying, which is explicitly held (in article 3) to remain in force. For, as he makes plain in the discussion of killing, no one can be authorized to intentionally kill innocents.8 But since the main issue at stake today is the moral permissibility of undertaking warfare to defend 7. Thomas Aquinas, ST II-II, q. 40, a. l. There are four articles in question 40: (1) whether some war is licit; (2) whether it is licit for clerics to fight in a war; (3) whether it is licit to lay traps (uti insidiis) in war; and (4) whether it is licit to fight on feast clays. My focus is on article 1, but the set of concerns addressed is important for our subject. The interpretation of Aquinas developed here has been adapted into the interpretation in my “Just War Doctrine and the Military Response to Terrorism,” Journal of Political Philosophy 11, no. 2 (2003): 153–70. 8. ST II-II, q. 64.

210  C o n te mpo rary Moral Pr obl em s or secure human rights, Aquinas’s focus on the conditions for going to war is more useful than concerns about how war is executed.

Proper Authority The first of Aquinas’s conditions is proper authority—that is, only the head of a polity (princeps, often translated as “sovereign”) can properly command the waging of war. Two reasons are given: first, private persons have no business waging war, and public officials lacking the sovereign authority can appeal to higher authority to settle disputes and to remedy injustices; second, only a sovereign, as head of the community, is authorized to bring together the members of that community to fight. What grounds the sovereign’s authority, in both these relationships, is the fact that the care of the community is entrusted to the prince, who has the responsibility to look after its welfare. This responsibility includes authority to use force not only internally against domestic criminals but also against outsiders who harm the polity. It is perhaps relevant to our inquiry that one of the biblical proof texts Aquinas uses here is taken as addressing political leaders as follows: “Rescue the weak and the needy; save them from the clutches of the wicked.” So, war waged without public authority is not permissible. And not any kind of public authority qualifies. Only the authority of one who has the final say for the welfare of a political community may rightly take it to war; by implicit definition, a public official has “final say” when there is no higher authority capable of and authorized to deal with the harm to the polity. The idea seems to be that the welfare of a political community requires care and protection and that sometimes this requires using armed force. Those who are in charge of the community’s welfare are the legitimate primary agents of this force. Those officials who can invoke higher authority within the community are not in this ultimate way in charge of its welfare. Nothing in this analysis requires the sovereign to be a single individual; sovereign authority may be exercised by a constitutional group operating according to some fixed decision procedure, such as a parliament. Nor is there anything in it that prohibits the relevant official or body of officials from having worldwide jurisdiction. Plainly, such worldwide authority as exists in the world today is not the authority of a great polity. Such worldwide authorities as exist, in the United Nations and in the wider UN system, do serve a genuine

J ust War T he ory an d I n t erven ti on   211 common good that has global reach, but that common good appears to be less than an all-encompassing common good that contains the proper goods of the states of the world as subordinate parts. Neither the treaties and customs that normatively bind peoples together nor the technology that allows their extensive interaction and cooperation have yet created the conditions for a superpolity that might allow worldwide officials to care for the welfare of each polity. In other words, in terms neither of capacity nor of normative considerations are officials with some worldwide responsibility in charge of the common good of the whole world. In the older scholastic language: the community of states and any other communities that make up the world politically do not constitute a societas perfecta, capable of definitively settling all things pertaining to all human interactions and so capable of generating law and so being a general court of last resort. My application of Thomistic categories to the normative sources of political authority in the world today cannot resolve the important questions raised by the fact that a state’s or an alliance’s unilateral intervention to protect human rights may be illegal by the terms of the UN Charter or by international law. The claim is only that in traditional just war theory the authority to undertake war lies in the sovereign and that, in the world as it now is, a sovereign is the ruler of a sovereign state, and worldwide organizations are not sovereign states. This complex view is compatible with a very considerable limitation of a sovereign’s authority to undertake war, primarily by way of treaties of the kind that have shaped the modern international system. Such treaty-based limitations might also be extended and reinforced by the normative force of widely held custom. If it were sensible today to think of a renewed jus gentium, it would plausibly contain the expectation that sovereign authorities of a state will not undertake warfare without the consent of international authorities except in conditions in which the common good of the state is imminently and gravely threatened.9 9. Some within the Catholic just war tradition believe that the limitation of the authority of the sovereign rulers of states can, and ideally should, go very far indeed. See Vatican Council II, Gaudium et Spes (December 7, 1965), no. 82: “It is our clear duty then to strain every muscle as we work for the time when all war can be completely outlawed by international agreement. This goal undoubtedly requires the establishment of some universal public authority acknowledged as such by all and endowed with effective power to safeguard on behalf of all, security, regard for justice and respect for rights.” This bold project does not seem to include a hope for a worldwide polity in which sovereign authority would alone reside, but a more modest global authority created by treaty.

212  C o n te mporary Mo ral Pr ob l em s The grounds for some such normative expectation would likely include the developing awareness of the need for impartiality in relations between states, especially when those relations are bellicose. The sovereign of a state cannot be impartial between his state’s interests and those of enemies. The sovereign’s responsibility for the common good of his or her own polity is precisely the ground of the authority to undertake warfare. Nevertheless, the sovereign is bound to act only for a just cause in the service of peace, and justification within the framework of the UN and international law surely contributes to meeting these conditions.10

Just Cause Aquinas’s second necessary condition for the permissibility of a war is that there be a just cause. He gives little justification for what he rightly takes to be an obvious ethical condition; that any action should be done only for a good purpose is, for him, a fundamental requirement of moral life. Nor does he provide a list of just reasons for undertaking warfare; such a list shows up later in Vitoria. But Aquinas does provide something more than the obvious moral requirement. He specifies the just cause needed for a permissible war as arising only in the face of wrongdoing by outsiders and further specifies it as being essentially punitive. He thus goes beyond the self-evident ethical point that a just cause is necessary, and beyond the intuitive requirement that a just war responds to wrongdoing and adds the punitive understanding of that response, bolstering his claim with a reference to Augustine’s authority. He says that those who are rightly attacked must deserve it on account of some wrong they have done. The Augustinian text he cites

10. Thomas Franck, “Legality and Legitimacy in Humanitarian Intervention,” Nomos 47 (2006): 143–57, spells out the importance of what he calls the “jurying” function of the international community in making general norms reasonably applicable to interpretatively difficult situations. This function also serves to guarantee impartiality in situations in which involved parties are unlikely to achieve it. David Rodin, War and Self Defense (Oxford: Oxford University Press, 2002), 173–88, argues that states lack the impartiality necessary to justify anything like the criminal punishment of other states and their citizens. I agree. If the authority to undertake warfare were strictly analogous to that involved in justly administering a criminal justice system, states could not rightly undertake warfare; as Rodin argues, only an international authority could do so. I believe that traditional just war theory holds that the common good of the state is the ground of the authority of its rulers to punish criminals and to defend from aggressors, but that defense against aggressors is not strictly an instance of the punishment involved in criminal justice.

J ust War T he o ry an d In t erven ti on   213 makes plain that this response to wrongdoing is understood to be punitive: “We usually describe a just war as one that avenges wrongs, that is, when a nation or state has to be punished either for refusing to make amends for outrages done by its subjects or to restore what has been seized injuriously.”11 It is important to note at the outset that the punishment Augustine has in mind is just, legal retribution, not an expression of revenge or hatred. One of the major developments of just war thinking in the twentieth century is that many have come to question the legitimacy of this punitive conception of just cause. Recent Catholic thinking—both ecclesial and scholarly—has moved toward a more defensive conception, very much in line with the broader international tendency to treat aggression, even if it could be justified for just punitive reasons, as completely out of line. I will take a few moments to argue that this is a genuine development of the tradition.12 This development marks one very clear aspect in which traditional just war theory is markedly different from contemporary just war theory of the sort Walzer expounds. The right to punish, once a war has been deemed just, is widely thought to be justified by the domestic analogy and so is listed by Walzer among the norms defining the legalist paradigm.13 By contrast, the defensive conception of just cause that now characterizes the Catholic interpretation of traditional just war theory does not allow that war is a proper instrument for imposing punitive sanctions within international society. Harms inflicted incidental to defense are justified and may be understood as punitive, but any further punitive measures are not justified.14 The decisive document that marks the Catholic endorsement of a strictly defensive conception of just cause is the Second Vatican Council’s (1962–65) Pastoral Constitution on the Church in the Modern World (Gaudium et Spes). This document is well known for its condemnation of total war and indiscriminate bombing, but it also gave evidence to 11. St. Augustine, Questions on the Heptateuch, 6.10. 12. John Finnis, “The Ethics of War and Peace in the Catholic Just War Tradition,” in The Ethics of War and Peace: Religious and Secular Perspectives, ed. Terry Nardin (Princeton: Princeton University Press, 1996), 22–23, suggests that the older tradition might not have been as robustly punitive as some of the classical texts suggest. 13. Walzer, Just and Unjust Wars, 62–63. 14. Pratap Bhanu Mehta, “From State Sovereignty to Human Security (via Institutions?),” Nomos 47 (2006): 259–85, takes just war theory to be inherently punitive and then reports the puzzle that arises because of the absence of a superior neutral authority capable of characterizing acts of war as crimes. I think that the puzzle is insoluble but that defense as such is not imposing sanctions.

214  C o n te mpo rary Mo ral Pr o bl em s a wider suspicion by the bishops of modern warfare generally. These Catholic teachers may have been “just warriors” in their political philosophy, but they had recently lived through a war most of them found deeply problematic. So they called for “an evaluation of war with a totally new attitude.”15 Part of that new attitude is the limitation of just cause to defense. The bishops say, As long as the danger of war remains and there is no competent and sufficiently powerful authority at the international level, governments cannot be denied the right to legitimate defense once every means of peaceful settlement has been exhausted. Therefore, government authorities and others who share public responsibility have the duty to protect the welfare of people entrusted to their care and to conduct such matters soberly. But it is one thing to undertake military action for the just defense of the people, and something else again to seek the subjugation of other nations.16

This restriction of just cause may seem to have no deep justification but simply to reflect the revulsion of the bishops at the Council to the horrors of the Second World War and their desire to get Catholic teaching in line with emerging international law and the UN. But I think that this restriction improves traditional just war doctrine by removing tensions in the doctrine and in the wider moral view of which it is part. The restriction of just cause to defense presupposes a distinction between defense and punishment. Punishment can be a means to defense insofar as its prospect deters some from actions for which punishments are prescribed or prevents the punished persons from continuing in their criminal activity. But the choice to defend and the choice to defend by punishing are plainly distinct. The negative effects on those against whom someone rightly defends can perhaps be understood as punishment, but those harms are unavoidable aspects of the defense, many of which the defender need not intend. And defense plainly is possible with no further punitive element than this. Just as a private self-defender may ward off an attack with no punitive authority and no such interest, so may a community. The argument for limiting just cause to defense is that a community 15. Gaudium et Spes, no. 80. 16. Gaudium et Spes, no. 79. Catechism of the Catholic Church, 2nd ed. (Vatican: Libreria Editrice Vaticana, 1997), no. 2309, summarizes the current Catholic understanding of the just war doctrine, including many conditions I have passed over in silence. The limitation to defense in this formulation is definitional. The kind of action to be evaluated by the moral conditions of just war doctrine is said to be “defense by military force.”

J ust War T he o ry an d In t erven t i on   215 and its leaders have the right to defend themselves from aggressors but not the more robust right to punish them. Political officials have authority over their subjects and authority to punish malefactors. They also obviously have authority to order defensive measures against external threats to the polity. There is no account, however, about how the officials of one polity get authority to punish another polity or its subjects. The relationship of officials to the common good of their own polity legitimizes their using force internally to stop and deter criminals. This reasonably includes the right to punish criminals as a means of restoring justice, which also enhances the deterrent and defensive resources of a society. Defending subjects from injuries inflicted by outsiders is also a public responsibility based on the common good. But those who are resisted in that defense do not thereby become subjects of the defending state, subject to the authority of its rulers, as citizens are. Like legal punishment, that defense often has a deterrent effect and can have a deterrent intent. The capacity of a state to defend itself and perhaps others from unjust aggression deters potential aggressors, and this capacity may be developed for this purpose. But deterrence by jusI tified defensive warfare does not provide a distinct just cause that might justify violence beyond the requirements of defense. As already noted, attackers often justly suffer the effects of the violent exercise of the authority of the polity they injure. And when they attack wrongfully, there is more to the exercise of defending authority than its power. Just as any fair-minded observer could address the attacker in moral terms, so too can they who defend themselves or others from injury. This appeal to general standards of decent conduct—“You are out of line and we are within our rights”—appropriately expresses moral condemnation of unjust aggression, but this moral truth does not make the attacker part of the community in a way that justifies anything like legal punishment. To sum up this line of reasoning: the defensive rather than punitive understanding of just cause that has developed in Catholic just war thinking in the twentieth century is a genuine development of traditional just war doctrine. Reflecting on this development makes clear that the grounds for undertaking warfare are very constrained and that, plainly, the exact shape of these limitations will be important for assessing the permissibility of humanitarian intervention. There is further reason for limiting just cause to defense—name-

216  C o n te mpo rary Mo ral Pro bl em s ly, the connection to the sanctity of life theme within natural law and Catholic moralizing. Exploring that reason must await a consideration of the third of Aquinas’s conditions for the permissibility of undertaking a war.

Right Intention Aquinas argues that fighting can be wrong even if there is proper authority and just cause because one can fight with a perverse intention. The citations from Augustine make clear that the kind of bad motives Aquinas has in mind are hatred, revenge, a desire to dominate, and so on. Hence, the existence of a just cause is not sufficient; it must not be a pretext for fighting for other morally questionable purposes. Rather, the just cause must function as the practical principle of the bellicose action. This condition is reasonably understood as ruling out the practical influence of any other motives for undertaking warfare. Thus, even good motives that might justify international actions that are not bellicose do not justify violence or further violence, unless, of course, they are included within the set of reasons encompassed by the just cause. The reason for my interpretation is as follows: the condition of right intention plainly serves to lock tightly together the just cause and the actions taken for that cause. For intention in Aquinas’s view is a volition bearing on the end and making it not simply the object of a wish but a practical goal, by linking the goal to something one can do about it, the means one can choose for its sake. Consequently, a state will act with right intent only if it undertakes bellicose actions for the sake of the just cause and not for any other end. Since the violent activities of warfare would be wrong except when done for the sake of the just cause, doing them for any other purpose is wrong. This assumes that the intention whose rectitude is a condition for undertaking war is the intention involved in the social act of making war and not in the private intentions of individual warriors. Obviously, the motives of revenge and anger, which are in the hearts of many who fight in a morally justified war, compromise their own involvement in that war. But surely the inevitable but essentially private sins of soldiers—unless sanctioned or overlooked—do not necessarily flaw an otherwise justified war. The social act of undertaking war, although related in complex ways to the often mixed and opaque intentions of individual warriors, is an accessible reality within the social world; its intentions

J ust War T he ory an d I n t erven ti on   217 are manifest in that world. The intention of the social act of undertaking war is revealed in the war aims sought and in the specific actions called for to achieve these aims. If a state has a just cause for fighting and undertakes war by proper authority for the sake of that just cause, there will be a state of affairs in which the justice of the motivating just cause will be realized: for example, the victim of unjust attack will have been successfully defended by turning back the enemy. Such a state of affairs, even if it cannot be articulated except vaguely or disjunctively when undertaking the war, is the aim of that war. The bellicose actions planned to realize that aim should be strictly instrumental to it and not taken for the sake of other goals a state might have. The condition of right intention requires that any act of war that serves another or a further goal remains unjustified. A further point is needed here to indicate what is sufficient to meet the condition of right intent: a just war aims at peace, as Aquinas, quoting Augustine, holds. This simple idea has two quite different implications. First, the goods that come from peace may be hoped for as a result of succeeding in achieving morally defensible war aims. Peace and its benefits are rightly intended by those who justly undertake war. But the peace we can hope for and intend is a further goal that war is never alone sufficient to achieve and that war cannot rightly advance, except by seeking to bring about the just state of affairs that will satisfy the just cause. Second, the pursuit of a just cause, even by actions strictly instrumental to it, can fail the condition of just cause if peace is not in sight as a further good. That can happen when a state refuses to take steps within its power to bring about peace—for example, to refrain from oppressing groups some of whose members engage in terrorism. Returning now to the defensive limit on just cause: let us suppose that the intent of a morally justified war is simply to defend, to repel invasion, to stop ongoing violation of property and other rights, and other similar action to thwart international wrongdoing. Such a conception limits the steps that a state defending itself, an ally, or other people or states may take to punish enemies. It limits the kind of rectification of grievances one can seek by warfare. And it avoids a mysterious conception of political authority that allows the leaders of one community to punish outsiders. But it also makes it easier to meet the condition of right intent, since the defensive intention does not allow punitive actions beyond what is immediately involved in defense; punitive acts are often difficult in

218  C o n te mpo rary Mo ral Pr o bl em s practice to distinguish from acts of vengeance. Just punishment should not seek to injure the punished person, but all punishment imposes odious limitations on freedom and often intentional injuries besides. Punishing in this context seems to me incompatible with the further goal of international peace, particularly in the absence of clear authority to punish. Moreover, at the deepest level, aiming precisely to harm people, especially to kill them, is morally problematic. A defensive conception of war avoids that intention and can instead reasonably regard the harms inflicted in defensive action as side effects of that action, in a kind of strategic application of double effect to the social act of undertaking violent defense.

Applying the Just War Conditions to Humanitarian Intervention Violation of Human Rights Constitutes a Just Cause As such, defending and securing human rights is a good thing to do. Certainly, it would be praiseworthy for private persons to act to secure the threatened rights of others in the absence of effective social protections; and even violent activity to defend another person would be morally permissible when grave harm is, or is about to be, inflicted and other options for defense are not available. Securing others from serious injury is one form of helping others. Helping those in need is a positive (and so defeasible) but quite general responsibility of those who are in a position to help. It is an aspect of the general responsibility of neighborly assistance, which is an obvious and immediate implication of the Golden Rule and related principles—for example, the second commandment: love your neighbor as yourself. The question, then, is whether the responsibility of neighborly assistance applies when (1) those to be helped are not fellow citizens and (2) the help includes bellicose actions by one’s polity. I do not see how these circumstances change the praiseworthy character of trying to help. Of course, those to be protected or saved may be difficult to help, and so one’s ability to help may be very limited. Moreover, bellicose intervention requires more stringent justification than more pacific forms of aid, and the other great responsibilities of governments may trump the duty to help. But if a polity really can help the citizens of another polity by the use of force, and if the stringent conditions for using

J ust War T he ory an d In te rven ti on   219 force are met, then, so far forth, it is a good thing—maybe an obligatory thing—to do. The limitation in the developed form of traditional just war theory that force must be used defensively does not mean that a state is limited to defending itself or to defending its allies. In that theory it is human beings’ welfare and interests, not simply the welfare and interests of a given polity’s subjects or allies, that is rightly defended from injury. Any reasonable limitation of defense to self-defense must be based either on a limitation of proper authority or an inability to act with right intention and not on the justice of the cause. There is precedent in traditional just war theory for thinking that humanitarian intervention responds to a just cause. Vitoria, writing in the 1530s, considered all the possible headings under which the Spaniards might have just cause for making war on the American aboriginals. One batch of such reasons is simply set aside as unjust titles for subduing the Amerindians; others are allowed as possible grounds for using force against the American aboriginals. Vitoria did not fully carry through the casuistry to the point of seeking to determine whether any of the possible conditions justifying war were in fact met. But it is plain that he was skeptical that such conditions generally obtained as he wrote.17 Vitoria did appear to think that one of the potentially just grounds for using force did have some application in the de facto situation in the New World. Some aboriginals were believed to practice cannibalism, and Vitoria held that it is morally permissible to stop the practice by force—and presumably by conquest if necessary. So, he held that a violation of the rights of innocents is a justifying cause for war. It is significant that what grounds his view is not blanket moralism—that aboriginal practices are contrary to the natural law—but the fact that innocent humans are being mistreated.18 He states the view succinctly in a Thomistic commentary: The reply to this is that there are some sins against nature which are harmful to our neighbors, such as cannibalism or euthanasia of the old and senile, which is practiced in Terra Firma; and since the defense of our neighbors is 17. See Francisco de Vitoria, “On the American Indians” (1539), in Vitoria: Political Writings, ed. John Pagden and Jeremy Lawrance (Cambridge: Cambridge University Press, 1991), 233–92, esp. 277–92. He concludes the relectio with a consideration of the objection that his position would remove the wealth and power of Spain in the New World. 18. Vitoria, “On the American Indians,” 287–88.

220  C o n t e mpo rary Mo ral Pr o bl em s the rightful concern of each of us, even for private persons and even if it involves shedding blood, it is beyond doubt that any Christian prince can compel them not to do these things. By this title alone the emperor is empowered to coerce the Caribbean Indians.19

It is clear that Vitoria’s limited moralism in this line of reasoning is arguing not simply for the abstract righteousness of the intervention but also for the authority of the Spaniards to intervene. How they get this authority remains unclarified. We will return to this important issue below.

A State Can Engage in Humanitarian Intervention with Right Intention The condition of just cause, understood abstractly as Aquinas and Vitoria understood it, is the most straightforward match between the logic of just war theory and the demands of humanitarian intervention. Considering the matter independently of the question of whether a polity has any business using force in this context, and independently of whether a polity, its leaders, or its subjects are capable of acting precisely for such a purpose, the question about just cause is easily settled in the affirmative. The condition of right intention can also be met in cases of humanitarian intervention, but not easily. Recall that this condition requires that the justifying cause not be a pretext for using force for other purposes and that bellicose action can be undertaken only for its sake. As Walzer has noted, humanitarian intervention will seldom stand as the sole component of the reason justifying going to war.20 Ordinarily, there is reasonable worry that anarchy or tyranny will spill over into international troubles. But the ethically and legally puzzling cases of humanitarian intervention arise when the humanitarian purpose prevails to the extent that other considerations would not alone justify any use of force beyond what the humanitarian requirements indicate. How is a state to undertake the use of force to protect or secure human rights when just this purpose may rightly be in view? Surely, if the norms and sentiments that make humanitarian intervention seem to be 19. Vitoria, “Lecture on the Evangelization of Unbelievers” (1531–32), in Vitoria: Political Writings, Appendix B, 347. 20. See Walzer, Just and Unjust Wars, 101–4.

J ust War T he ory an d I n terven ti on   221 a good, or even obligatory, undertaking were merely moralistic slogans or rules, the motivation to act just for these purposes would be lacking. But helping those in need is not generally mere dutifulness; instead, it is based on some sense of solidarity, some possibility of future friendliness and community, and in many cases on ties that bind people together across international borders. So, solidarity provides intelligible reasons for the people of one polity to help those of another. The prospect of future peace and friendship, to be realized by securing the rights of the oppressed in another country, can be a real motive, one that does not add anything to the just cause but is instead what securing the just cause promises. The more such interpersonal goods can unite those who suffer and those who come to their aid, the greater is the chance that the condition of right intent will be satisfied. The motivational problem is, however, further complicated by the fact that states are not likely to accept losses of their soldiers when anything less than their vital interests are at stake. The moral-psychological story I have just been telling hardly seems sufficient to identify a foreign polity’s vital interests with one’s own. In this situation, it may be nearly impossible to resist the temptation to cut and run, to which the United States seemed to succumb in Somalia in 1993, or to use tactics that minimize casualties but at the price of putting noncombatants unreasonably at risk, as NATO’s bombing in Yugoslavia in the mid-1990s seemed to do. The variations on both possibilities seem to me to evince a failure of right intent. To waver in the face of casualties at a level inherent in military action, but not at a level so great as to signal likely defeat, indicates a lack of commitment to realizing the just state of affairs that is contained in the just cause. To avoid casualties at the price of putting innocent lives at stake may wantonly, even murderously, injure the very people one claims to be rescuing and inevitably makes peace more difficult. Since undertaking warfare for humanitarian purposes without serious expectation of some concrete outcome to which the rescuing state is seriously committed is likely to further harm those who are to be rescued, to weaken international stability, and to impose considerable expense and probable loss of life on the rescuing state, it seems wrong to fail to face this motivational problem fully before intervening. I am not suggesting that the condition of right intention cannot be met by a state undertaking humanitarian intervention. But the difficult

222  C o n te mpo rary Mo ral Pr o bl em s questions this condition raises are not easily answered with the necessary confidence. This is an empirical point, not one of motivational theory. Those who are convinced that states either cannot or should not act except for their own narrow expedience or national self-interest are bound to think that defense of strangers is never what a state could or should do. But traditional just war theory is not based on Hobbesian psychology.

There Can Be Proper Authority to Wage War for Humanitarian Purposes It seems clear that, for traditional just war theory, meeting the condition of proper authority is the main hurdle for humanitarian intervention. This is the theory’s version of the problem that the modern emphasis on sovereignty and political independence poses for humanitarian intervention. The problem is straightforward, and it arises, mutatis mutandis, for intervening states acting unilaterally, for regional alliances, and for actions organized on behalf of the UN. To take the case of an intervening state: the officials of such a state have authority because they are responsible for the common good of their own society. Their authority to conduct war justly, to mobilize subjects and command them to kill, and to expose themselves to being killed—all these come from their responsibility to look after their community. Where the community and its needs come to an end, so too does their authority to wage war. And humanitarian intervention lacks that relationship to a polity’s common good. This problem has an outer-looking and an inner-looking aspect. Those outside the state that is undertaking humanitarian intervention have reason to ask by what right that state meddles in the affairs of others, and those within it have reason to ask by what right their rulers ask them to kill and be killed for a benefit outside the polity’s common good. The fundamental answer must be that in situations that call for humanitarian intervention, morality demands that we consider not only the good of a single polity but also the more embracing good of the human community. As I noted in the previous section, this moral demand is not an abstract moral imposition: the humanity of strangers is of interest to us, since they are potential friends, neighbors, and trading partners. In at least some conditions, the morally compelling appeal

J ust War T he o ry an d In terven t i on   223 of these goods requires that the leaders of a polity serve that universal common good directly, with the only authorization being that which comes from common human morality itself.21 This plausibly happens when a state or group of states can predict a murderous episode, such as the massacre of the Tutsis in Rwanda, and has the resources to prevent it from happening. It seems wrong to stand by and watch in such situations when one can save many lives. The only authority available is the plain demand of morality, but that is all that is required. In moral life generally, obedience to authority and its exercise within the limits of its justification are serious but defeasible obligations. When acting in accord with them plainly prevents the fulfillment of very serious responsibilities that one would have independently of any authority, often the requirements of authority must give way. So, I believe that humanitarian intervention poses a kind of limit case for the exercise of authority. This kind of morally justified overriding of the requirement of proper authority does not undercut the deep rationale for authority: it is the political leader who leads his or her community into war for a common interest, not, in this case, their specific interest as a unique political community but the common human interest of peoples’ welfare. If there were a higher authority to whom the leader could appeal so as to solve the problem, he or she should do that; then the moral demand would be met. The role of enforcer of morality by protecting human rights for all cannot be a standing responsibility of any political leader, but when there is no option, it is right to act. Thus, the duty is exceptional and episodic. Moreover, this responsibility is also limited in the actions it can authorize. The immediate defense of human rights and rescue of oppressed people—such things as stopping massacres and ethnic cleansings—are clear cases. They are the precise object of the moral imperative driving the intervention. On the other end of the spectrum are efforts to remake the social fabric of a failed state or to reconstruct the political life of a tyranny. It is difficult to see how an intervening state 21. Walzer, Just and Unjust Wars, 107, argues in the same spirit. More needs to be said, I think, than he says about the extent of the authority of an appeal to “humanity as a whole.” Similarly, Terry Nardin, “The Moral Basis of Humanitarian Intervention,” Ethics and International Affairs 16, no. 1 (2002): 57–70, argues much as I do that humanitarian intervention has its normative justification in common human morality. Again, the extent of the authority of strictly moral imperatives on relationships structured by authority and more particular goods remains a concern.

224  C o n te mpo rary Mo ral Pr o bl em s could undertake such actions simply within the mandate of universal moral norms. Even if the temptations to act for one’s own interest and to colonize, while wrapped in the mantle of morality, are successfully resisted, it seems that much of the work involved in organizing a polity can be done only by its own citizens and that many steps in setting things right will involve the discretion that only a proper political authority can exercise. Interveners lack that specifically political authority and have only such authority as can be claimed under universal moral law. And that law cannot settle such matters. There may not be a bright line separating these extremes. There is still work for casuists. Similarly, although the leader of a polity has the authority to organize it for war, since the ground here is strictly moral, not the widely discretionary service to the common good that political leaders normally have, it seems that the polity can be rightly led into a humanitarian intervention only if there is a duty for this polity to intervene. That duty will exist when the norm of neighborly assistance applies and when a given state or coalition can help more effectively than others. This is another stringent limitation on authority in this situation: the authority may command subjects rightly only if convinced that their state is morally obliged to rescue or take part in the rescue. These are stringent conditions, but they plainly could have been met if the UN—or, if not the UN, a state or alliance—had been willing and ready to act in Rwanda. These conditions might also have been met in Somalia or in Yugoslavia had the United States and its allies been more resolutely committed to protecting human rights in those failed states. My analysis suggests some objections. I will consider two of them. The first is that much of what I have been arguing is too abstract in one particular way—namely, that the UN Charter, the subsequent development of international law, and many treaties make humanitarian intervention illegal. So, even if in the absence of these developments of positive law my analysis might be interesting, it is completely null in the world today. I am not in a position to dispute the claim that humanitarian intervention is illegal. Arguendo, I will suppose that it is.22 According to most just war theorists, the UN Charter and other international treaties 22. Laberge, “Humanitarian Intervention,” states well the difficulty a nonlawyer must have in sorting this out. He makes a telling case that all of the ethical approaches he considers (all close to the position emerging here) are more or less at odds with the UN Charter.

J us t War T he o ry an d In terven ti on   225 and covenants are important steps toward peace. They have the force of very serious promises about most important matters of life and death for many of the people in the world. It is morally obligatory to keep promises, except in rare circumstances. So, this objection is not legalistic niggling but a profound moral concern. However, the law should track morality at least to the extent of allowing what serious people and groups think there is a grave obligation to do, and, therefore, if situations in which humanitarian intervention is called for continue to emerge, the law should be modified to establish procedures for dealing with such cases by UN action or agreed-upon actions by appropriate states or alliances. Ideally, then, the UN or a similar worldwide authority should be authorized and made capable of executing this humanitarian function on behalf of humanity in an effective and timely way. That would resolve the legal problem caused by the provisions of the charter. It would also go some way toward resolving the challenge that humanitarian intervention presents to political authority at all levels. The common goods of states do not ordinarily include the welfare of the subjects of other states, and the international community is a treaty-based alliance of states. However, an international body such as the UN does plausibly represent humanity in a way that any member state or regional alliance cannot. If the ground for intervention is the common good of humanity, expressed in common morality, the UN has claim to be the authoritative body. But the UN’s track record on such matters is not heartening, as the example of Rwanda indicates. So, then, the challenge returns: what is an alliance such as NATO to do when faced with ethnic cleansing and genocide in a place like Kosovo and no clear mandate from the UN? Here, urgent moral demands can override at least the letter of positive law, and most legal systems allow some mechanism for such an override. Aristotle’s “equity” is such a mechanism, in which reasonable appeal to the legislator’s likely intent provides a legal ground for setting aside the letter of the law. Determining legislative intent in international law is surely complex and uncertain, but reasonable exceptions should perhaps be undertaken and then defended in court to test and build the case law. Positive international law, whether based on customs, treaties, or judicial decisions, must, like all law, be accorded great moral respect. Like other law, international law often tracks and implements serious moral concerns, such as respecting individual and social rights that

226  C o n t e mporary Mo ral Pr ob l em s have moral standing prior to legal enforcement. International law also implements treaties, which, as noted previously, are serious promises about grave matters. Nevertheless, not all provisions of international law are absolutely binding on rulers of states. As already noted, these rulers have grave responsibilities to the common goods of their states, and those responsibilities cannot be completely ceded to international officials who do not have these responsibilities. It follows that in cases of urgent threat that cannot be effectively addressed by internationally sanctioned action, rulers have a duty to act. Consequently, since acting to secure the rights of strangers can become a duty for a state uniquely capable of providing that assistance, such action cannot be simply ruled out by moral considerations, even in the face of apparently prohibitive international law. A second objection is that there is no practical way to distinguish between limited rescue in the face of impending or ongoing atrocity and the kind of intervention that involves remaking a society or operates from an ideological conception of human rights. I have conceded that the line between what is legitimate and what is not is not a bright line and requires casuistry. But I think there is a clear principle for working out the shape of that line; in fact, there are two. First, I have implicitly admitted that any violation of human rights can provide a just cause for warfare because that wrong, taken abstractly, can justify actions to remedy it, including, as a last resort, actions involving military force. But I have also argued that a state, whether acting on its own or as the authorized agent of the international community, cannot easily meet the condition of right intent. The use of military force in this context must be strictly limited; it must aim precisely and only at stopping or preventing a violation of the rights of subjects of another state whose government either violates the rights itself or cannot prevent their violation by others. Consequently, the intervening state may undertake to remedy a violation of rights only when ready to do this properly by committing itself to realizing a just state of affairs that includes a real improvement in the situation of those whose rights are in jeopardy. The prospect of realizing this just state of affairs will not be obtained when the rights to be vindicated are not important enough or threatened enough to sustain shedding blood and accepting other sacrifices by the intervening state. So a fair-minded assessment of the difficulty of securing the rights of strangers, together with the willingness to accept

J ust War T he ory an d In te rven ti on   227 losses to do so, provides a practical limit to the kind of intervention a state may morally undertake. Thus, one realist objection to much moralism in international dealings is a factual premise in an old-fashioned moral argument. It is only when the violation is significant enough to demand and sustain the force of arms necessary to remedy it that it crosses the threshold into the category of grave and intolerable violations of rights. The condition of proper authority is also difficult to meet. Except in the most extreme cases, a state’s military response to the failures of another state’s authorities to accept or live up to widely held ideals of human rights will almost inevitably involve a usurpation of the legitimate authority of the other state’s leaders and of its citizens’ ability to shape their own affairs. As I have already argued, common morality can allow some actions outside established authority, but common morality cannot authorize an intervening state to do what it cannot do, and remaking a regime or, more radically, a constitution and political culture, appear to be among the things intervening powers cannot successfully carry out by warfare and so should not undertake to do. Similarly, when one goes beyond stopping atrocities, preventing ethnic cleansing, protecting refugees, and perhaps deposing a tyrant, what is needed to establish the rights under threat involves many steps and much decision-making. This process cannot be carried out by appeal to the authority of the moral law alone but also requires the discretion and authority of local political leaders.

Conclusion Traditional just war theory has the advantage of coming at current international conflicts in a vocabulary and conceptual scheme that are distinct from much international law and modern thinking about the justification of war, even though it forms part of the background of that thinking. The categories of proper authority, just cause, and right intention put into the forefront of the discussion the concepts of the common good and social authority and insist on war aims limited to the realization of the just cause by actions strictly proportioned to those aims. The application of these concepts to the prospect of intervention for the sake of securing human rights surely does not provide a crisp, decisive answer to this difficult moral dilemma, but it does throw dis-

228  C o n te mpo rary Mo ral Pr o bl em s tinctive light on several of its aspects. Although the violation of rights that provokes humanitarian intervention grounds a just cause, it is the defense of these rights, not the punishment of those who violate them, that is the just cause. The condition of right intention is difficult to meet and likely is not met except in rare circumstances: the intervening state or states must use force only as needed to secure the just cause, and no more. They must also be seriously prepared to do what it takes to secure this just cause in accordance with other conditions limiting violence in warfare. Finally, the condition of proper authority is even more difficult to meet, both for individual states and for members of the international community acting in concert, primarily, but not entirely, because of the UN Charter and the state of international law. But even when the condition of proper authority is met—by agreement in the Security Council or unilaterally by states appealing in an urgent crisis to common human morality—the reality and importance of local political authority set significant limits: the more intervention is limited to defending people and their rights and the less it is extended to taking over the governing of the country whose government violates its people’s rights or cannot secure them, the easier it is for interveners to meet the conditions of right intention and proper authority. In short, traditional just war theory adds to the discussion of humanitarian intervention a sober general assessment that emphasizes the difficulty of justifying intervention and a robust sense of the limitations of what intervening states can rightly seek to do to protect the human rights of outsiders, even when morality and widespread revulsion at oppression call for intervention.

• Section 2 / Private Property and Welfare Rights

11 / Natural Law, Ownership, and the World’s Natural Resources

Introduction “Natural law” is an expression with several meanings in several areas of normative inquiry. I shall use the phrase to refer to the tradition of moral, political, and legal thinking that has developed, particularly within Catholicism, since the time of Aquinas and that regards his ethical and political writings as the classical source. Within a group of thinkers so extensive over time and cultural conditions it is not surprising that there are a variety of emphases and not a little disagreement. Nevertheless, there is enough continuity of language and concepts, of common problematic, and of development of Aquinas’s thought to designate this body of moral thinking as a tradition of moral reflection. This is certainly so on the matter of ownership. For, although there are significant strains in the tradition, the influence of Aquinas’s analysis has continued, and there have been development and refinement of a considerable, coherent doctrine on ownership.1 I am indebted to a number of people for help in preparing this essay: those who attended the Ethikon Conference on Ownership and Distribution of the World’s Natural Resources at California Institute of Technology, October 9–10, 1987, especially Alan Donagan, who commented on an earlier draft of this essay presented there; the participants in the Philosophy and Law discussion group at the University of Toronto Law School; and James Cameron, John Finnis, and Germain Grisez. 1. Aquinas’s mature treatment of ownership is in ST II-II, q. 66, “On Theft and Robbery.” Articles 1, 2, and 6 of this question contain the heart of his analysis. A competent English translation, along with the Latin text and helpful notes, is Thomas Aquinas, Summa Theologiae, vol. 38, Injustice, trans., ed. Marcus Lefébure, OP (London and New York: Eyre and Spottiswoode and McGraw Hill, 1964), 62–85. Lefébure’s “Appendix 2: Private Property according to St. Thomas and Recent Papal Encyclicals,” in Aquinas, Summa Theologiae, 38:275–83, provides a useful introduction to the tradition’s account of property. The relevant teachings of the popes are in a series of encyclicals beginning with Leo XIII’s Rerum Novarum (May 15, 1891) and continuing

231

232  C o n te mpo rary Mo ral Pro bl em s This natural law doctrine of ownership provides the framework for the moral evaluation of contemporary economic arrangements made by popes and other Catholic teachers, and there have been recent efforts to articulate it philosophically as part of a natural law ethics and jurisprudence.2 Still, the natural law conception of ownership is not among the positions established within the current philosophical discussions. This is due in part to the fact that the details of the natural law account of ownership have not been carefully and thoroughly developed. In what follows, I will state the natural law conception of ownership and will indicate the normative foundation of its key claims and some areas where clarification is needed. Then I will sketch several implications of this conception for thinking about ownership of the world’s natural resources.

The Natural Law Conception of Ownership Natural law discussions of property since Aquinas have sought to elaborate a set of moral standards by which decisions of owners and established ownership arrangements could be morally evaluated and the development of better arrangements rationally guided. The natural law evaluation of property is not intended to articulate an ideal property arrangement that satisfies moral principles in a uniquely adequate way. It assumes that different property arrangements are appropriate in different cultural circumstances and that people have important responsibilities regarding property in any regime of property, whether ideal or seriously deficient. The natural law conception of ownership is complex. It is a function of the combination of several more primitive normative considerations. The most basic of these considerations is the claim that the dominion over or use of what Aquinas variously calls “exterior things,” “other creatures,” or “inferior creatures” is natural to human beings.3 to John Paul II’s Laborem Exercens (September 14, 1981). These writings are collected in English translation in Claudia Carlen, ed., The Papal Encyclicals, 5 vols. (Wilmington, N.C.: McGrath, 1981). A useful analysis of the earlier parts of the papal teaching is Jean­-Yves Calvez and Jacques Perrin, The Church and Social Justice: The Social Teaching of the Popes from Leo XIII to Pius XII (1878–1958) (Chicago: Henry Regnery, 1961), 190–225. See also John Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press, 1980), 169–73, 186–88; 2nd ed. (2011). 2. See Finnis, Natural Law and Natural Rights, for a brief but useful philosophical discussion of property. My interpretation of Aquinas relies upon that developed by Finnis. 3. ST II-II, q. 66, a. 1.

Natura l Law, Own ership, Natura l Res ources   233 Aquinas calls this use of exterior things for human purposes “possession,” but he does not mean that the things used by human beings are appropriated as the property of any individuals or groups. This kind of possession is compatible with holding things in common. Thus, the natural dominion of humans over the world of nature is a more elementary notion than that of ownership. The context of Aquinas’s argument for this claim is a theological concern to sort out divine and human prerogatives over the things of the world, and the argument is based on Aristotelian and biblical considerations concerning the nature of human beings as rational creatures and of other creatures as ordered to human use. These arguments suggest that the sense of the proposition that humans have natural dominion over exterior things is that human use of the things of nature infringes on the prerogatives neither of God nor of nature. The proposition may also contain the claim that humans unavoidably make use of the goods of nature. So, as Aquinas’s arguments suggest, the basic component of the natural law conception of ownership is the claim that it is morally proper for humans to make use of exterior things. This first component of the natural law conception of ownership is, therefore, a minimal normative claim. The second component of the conception is stronger; it is called the “requirement of common use.” It is derived by considering the natural dominion of humans over exterior things in the light of moral principles. The sense and the justification of the requirement of common use emerge from Aquinas’s consideration of the question of whether it is licit to possess something as one’s own—“quasi propriam.”4 Aquinas answers this question by distinguishing two aspects of the way in which human beings can relate to exterior things. In the first way they can have the power of caring for and disposing of things (potestas procurandi et dispensandi). In this respect, he asserts, it is permissible that a person possess things as his or her own. This claim is the third component in the natural law conception of property. It will be considered later. Aquinas contrasts this power of caring for and disposing of exterior things with a second aspect of the relation between persons and exterior things; he calls this the “use” of exterior things. The contrast here 4. ST II-II, q. 66, a. 2.

234  C o n t e mpo rary Mo ral Pr o bl em s seems to be based on the distinction between those who have discretion in using exterior things and those for whose sake that discretion should be exercised. Aquinas maintains that the use of exterior things should be common and not proper. In other words, exterior things should be used by those having discretion over them not only for their private advantage but for the benefit of others as well. He puts it as follows: “With respect to this (use) a person should not have exterior things as proper (as his or her own), but as common, namely, so that one should share them readily for the relief of the necessities of others” (ut scilicet de facili aliquis eas communicet in necessitates aliorum). He goes on to indicate that common use does not exclude giving priority of use for one’s own morally legitimate purposes. Generally, he speaks as if the obligation to help others arises when one has more than is needed for one’s purposes and as if one’s discretion over one’s goods must not unreasonably prohibit others from using things.5 Aquinas appears to treat the justification of the requirement of common use as unproblematic. His only nod in the direction of a justification is a claim that divine and natural justice or right (jus naturale) requires that exterior things be ordered so that from them human need may be served.6 Thus, the requirement of common use is an implication of natural justice. Although Aquinas does not exhibit the implication, one can infer something of its character from his conception of natural justice. Natural justice as understood by Aquinas and later natural law theorists is reasonably taken to include a requirement of fairness as impartiality, a prohibition of treating persons differently simply on the basis of one’s differing feelings toward them. Differences in the treatment of persons must have some intelligible basis—for example, differences in one’s relationship to the persons involved or differences in desert or need. The Golden Rule is the normative basis within natural law theory for justice as fairness or impartiality. This principle, clearly, is closely related to the basic moral principles not only of natural law but of the common morality that is rooted in the Hebrew and Christian scriptures.7 5. See ST II-II, q. 66, a. 2, ad 2, ad 3; q. 66, a. 7; q. 32, a. 5, ad 2. 6. ST II-II, q. 66, a. 7. 7. See Alan Donagan, The Theory of Morality (Chicago and London: University of Chicago Press, 1977), 1–9, for an explanation of “common morality,” and 57–66 for a discussion of the principles of common morality, including the Golden Rule. For further discussion, see Joseph

Natura l Law, Own e rship, Natural Res ources   235 This principle is reasonably taken as having application to the dominion of human beings over exterior things. Within natural law theory moral principles have application to actions insofar as they have impact on the fundamental goods of human nature—such things as life, health, friendship, and knowledge. Other goods that are instrumental to such basic goods, or are otherwise closely related to them, are also morally significant because of their relationship to the basic goods. So actions dealing with instrumental goods, like the exterior things that people can use for various human purposes, are governed by principles like the Golden Rule. Considering the natural dominion of human beings over exterior things in the light of the Golden Rule justifies the following norm: the use and the benefits of the use of exterior things should not be denied to any person without a morally defensible reason. This norm requires that the use of exterior things and the benefit of that use not be arbitrarily restricted; it applies to the use of exterior things held commonly and to the use by owners in a condition of appropriation. But natural justice is not simply a matter of fairness. It also includes a requirement that one promote the goods of human persons as one can. Natural law morality surely includes such a requirement; it is closely connected with several of Aquinas’s formulations of the first moral principle. Perhaps the best known of these is the biblical precept that one love one’s neighbor as oneself. Aquinas understands the love referred to in this precept as indicating a will for the good of one’s neighbor. Thus, his basic moral principle can be understood as enjoining a concern and appreciation for human goods that implies a readiness to promote these goods in ways compatible with the other requirements of the basic moral principle.8 This moral requirement is a part of natural justice because the basic moral principle governs all human action—not only individual action, but cooperative and social action, as well. Thus, the organization of political life, including property arrangements, is, to the extent it embodies human decisions and can be altered by them, governed by the basic moral principle. Indeed, natural law includes the requirement that individuals be ready to cooperate with others so as to better proM. Boyle, “Aquinas, Kant and Donagan on Moral Principles,” New Scholasticism 53, no. 4 (1984): 391–408. Donagan’s discussion of property, 94–100, provides an excellent statement of common morality’s evaluation of property. 8. See Donagan, Theory of Morality, 61.

236  C o n te mpo rary Mo ral Pr o bl em s mote human goods. This requirement not only obliges people to form communities and to contribute to the good purposes that their already existent communities serve, it also requires that their common efforts be directed toward the genuine goods of persons.9 It seems to me that the requirement of common use is the conjunction of this requirement of natural justice and the norm that is generated by the application of the Golden Rule to the human use of exterior things. As already noted, the appropriation of exterior things to some individuals, giving them the power of caring for and disposing of them, is the third component of the natural law account of ownership. Two things legitimize this appropriation. The first is the requirement of common use, and the second is the judgement that the requirement of common use will best be served, in most circumstances of human life, if some exterior things are appropriated to some individuals or groups and not held in common. Aquinas provides three reasons that the appropriation to some people of exterior things is necessary for implementing the requirement of common use. They are briefly as follows: first, people tend to be more careful about matters that are their own responsibility than those that are left to the common concern of a group. Second, it would be more orderly if some individual had the responsibility of taking care of something than if everyone were equally in charge of it. Third, it is more conducive to peace if each has his or her own goods to take care of; where people hold things in common and without division, there are often conflicts.10 Aquinas thought that these considerations apply generally to human life, but clearly not to all conceivable situations—for example, within a religious community. Further, he denied that such considerations would apply in the state of innocence that would have obtained had Adam not sinned. In this condition the wills of human beings would be so ordered that they could commonly use whatever fell under their dominion without danger of discord.11 The meaning of the natural law claim that appropriation to some individuals is better than holding them in common needs some clari9. This analysis is indebted to Finnis, Natural Law and Natural Rights, especially the explanation of Aquinas’s conception of general justice, 169–88. 10. ST II-II, q. 66, a. 2. 11. ST I, q. 98, a. 1, ad 3.

Natura l Law, Own e rship, Natural Res ources   237 fication. “Better” in this context does not mean that everybody will be better off, in terms of realizing goods or other satisfactions, if there is appropriation than if there is not. It means, rather, that each person will better be able to fulfill the moral requirement of common use if there is some appropriation than if things were held in common. Although natural law theory gives primacy to the good, this primacy has never been understood as involving a commitment to an agentneutral goal that might provide a standard for what is best or better overall. The norms of natural law are systematically agent-relative. Thus, what is better is understood as what better facilitates each person’s fulfilling the moral norms that govern his or her actions, not what will bring about the best state of affairs. These norms include reference to human welfare, but it is the norms, not their justification, which constitute the end to which natural law arguments judge private property to be a practically necessary means. The later tradition has developed Aquinas’s position in several ways. In particular, it has articulated more fully than he did the connection between appropriation as a necessity in the world as it actually is and the requirement of common use. It has done this by clarifying how appropriation is instrumental to common use. Thus, more recent natural law theorists have emphasized the positive contribution that one’s having discretion over exterior things makes to such human goods as carrying out one’s familial and social responsibilities and expressing and fulfilling oneself in work.12 This important development of the natural theory of property does not, however, provide a moral ground for appropriation that is not subordinated to common use as means to end. It is a mistake, therefore, to interpret the statements by some in the recent tradition, especially Leo XIII’s statements that there is a natural right to private property, as denying the instrumentality of appropriation to common use. These statements recognize this relationship but overstate some aspects of the tradition’s view that appropriation is practically necessary for common use and, in particular, that some appropriation by everybody is especially important for decent human living.13 12. See Calvez and Perrin, Church and Social Justice, 191–94; Finnis, Natural Law and Natural Rights, 169; Finnis emphasizes the contribution of private property to the good of personal autonomy in community. 13. See Calvez and Perrin, Church and Social Justice, 194–200; Finnis, Natural Law and Natural Rights, 170; recent papal statements supporting my reading of the tradition include Vatican

238  C o n t e mpo rary Mo ral Pr o bl em s In sum, the conception of morally justified ownership that has been articulated in this section is closer to the idea of stewardship, or as John Finnis has suggested, to the idea of trusteeship in English law,14 than to the conception of ownership as absolute dominion and discretion over what is owned. Ownership involves responsibility for certain things and considerable discretion over how they are handled, but they are not to be used simply at one’s pleasure. There are moral standards governing this use, in particular, that goods be used for meeting the necessities of other people. This aspect of the natural law conception of ownership may appear to be excessively severe and indeed to lead to servility, since the needs of others make moral claims on how one deals with one’s own possessions. The severity is undeniable. Natural law morality justifies a set of norms that taken together are quite stringent: it is a morality in which one’s life is tightly bound by duties to God and to others. What particular obligations one has and how one is to carry out the obligations one assumes are in some measure matters of personal discernment and choice, but the fit between a mature person’s duties and the fabric of his or her life is very tight. The duties of owners are simply a part of this larger set of obligations. This severity of natural law morality is not in itself objectionable. It can be shown to be such only if its basic normative framework is shown to be defective. But this severity would be objectionable if it were indistinguishable from servility. And that severity will be indistinguishable from servility unless a person’s discretion over his or her life and actions is significantly immune from the enforceable demands of others.15 So, the discretion of owners with respect to their property must be considerable. There do not appear to be absolute limits here, at least with respect to the use of things distinct from the human person. But there do appear to be absolute limits on the demands others can enforceably make concerning a person’s use for others of bodily parts, talents, labor, and so on. What these limits are and how they affect one’s discretion over one’s possessions needs clarification. Council II’s Gaudium et Spes (December 7, 1965), nos. 69 and 71; John Paul II, Laborem Exercens, no. 14. 14. See Finnis, Natural Law and Natural Rights, 173. 15. See Donagan, Morality, Property and Slavery, Lindley Lecture (Lawrence: University of Kansas Press, 1981), 15–22, for an expression of this concern, in the form of an argument that Rawls’s principles are compatible with illiberal social arrangements.

Natura l Law, Own e rship, Natural Res ources   239

The Application of the Normative Account: Questions and Norms Anyone owning something presupposes some set of social arrangements and some institutions. These arrangements appear to be essentially legal. They can be customary and quite informal and so can exist prior to civil society and a mature legal system, but they cannot exist without some human institutions and society or without some of the human invention and decision by which what Aquinas called the “determinationes” of the moral law are made.16 The authority to care for and dispose of exterior things cannot exist unless there is some human determination of such things as the extent and limitations of the right to dispose of things owned, the determination of how and what individuals and groups can appropriate, mechanisms for adjudicating conflicting claims about property, and so on. All these presuppose human decision and some sort of social order. Of course, independently of social arrangements individuals have a quite individualized relationship to such things as the clothes they wear, the tools they use and maintain, and the land they live on. This relationship can be called “possession.” But this is not the appropriation specific to ownership. For it to be appropriation, some human conventions are necessary: that this sort of possession should provide grounds for ownership that others must respect or that it should provide some more or less extensive right of discretion, and so on. Thus, there is relatively little, besides the norms from which the conception of justified ownership is built up, which is “natural” in the natural law conception of property.17 It seems to me that even the requirements for justified acquisition are substantially conventional, supposing, of course, that they are compatible with the prohibitions of fraud and theft and obtain within a regime of property that is just.18 16. See ST I-II, q. 94, a. 5, ad 3; II-II, q. 57, a. 3; q. 66, a. 2, ad 1; see also Donagan, Theory of Morality, 97; on the meaning of “determinatio” in Aquinas, see Finnis, Natural Law and Natural Rights, 281–90. 17. See Finnis, Natural Law and Natural Rights, 171; Donagan, Theory of Morality, 94–95. For a useful account of the diversity of forms of ownership, see Tony Honoré, “Property, Title, and Redistribution,” in Equality and Freedom: Past, Present and Future, ed. Carl Wellman (Wiesbaden: Franz Steiner Verlag, 1977), 107–16. 18. But see Leo XIII, Rerum Novarum, no. 14; Leo holds that labor, presumably upon what is unowned, justifies acquisition and provides what appears to be a Lockean argument. See also Pius XI, Encyclical Letter Quadragesimo Anno (May 15, 1931), no. 52; Pius holds that the “original

240  C o n t e mpo rary Moral Pr o bl em s Natural law theory regards the largely conventional character of property arrangements a factual matter that must be recognized. But since natural law justifies appropriation because of its instrumental value, and because the circumstances of different social conditions may make different property arrangements appropriate, natural law does not regard the diversity of property arrangements as a situation to be overcome or as a sign that something is morally amiss. Instead, natural law directs us to question in several ways both any established ownership relations and any proposed improvements of them. First, natural law raises strictly moral questions about whether owners within any regime of property fail in their obligation of common use. Since any system of ownership must provide for considerable discretion in the use of property by owners, the system of ownership is not necessarily at fault when owners fail in their obligation of common use. Nor are owners excused from this obligation because the system of ownership is more or less flawed. So, natural law provides a basis for the kind of personal, moral criticism of the behavior of those controlling wealth that has been a commonplace in the Hebrew-Christian moral tradition. This is perhaps the most distinctive implication of the natural law conception of ownership. In the extreme cases of failure to carry out the obligations of ownership, natural law provides a normative basis for legal expropriation of property from those who do not or cannot use it in accord with the requirement of common use when there are available alternatives for meeting this requirement. Second, natural law provides a basis for the moral criticism of regimes of ownership. For example, recent popes have criticized individualist capitalism because of its failure to recognize the obligations of common use. They have also urged that serious consideration be given to arrangements of co-ownership, to greater political involvement in the productive process, and to the need for what they call the “socialization” of the means of production. Such statements are frequently accompanied by a warning that socialism fails to recognize the instrumental necessity for some private property.19 It might appear that a moral evaluation of property arrangements acquisition of property takes place both by original occupation and by labor.” For the difficulties of these statements, see Calvez and Perrin, Church and Social Justice, 202–4. 19. John Paul II, Laborem Exercens, no. 14; Gaudium et Spes, no. 71; John XXIII, Encyclical Letter Mater et Magistra (May 15, 1961), nos. 104–16.

Natura l Law, Own e rship, Natural Res ources   241 should raise various questions about distributive justice more directly than natural law allows. But on the natural law conception, questions about whether owners are fulfilling the requirement of common use and whether regimes of property reasonably respond to this moral requirement are questions of distributive justice, and there is no need or use for further questions about fair distribution. For these questions address the complete set of responsibilities of all who have authority over exterior things as well as the moral acceptability of the system within which these responsibilities are defined and carried out. On Aquinas’s view anyone having responsibility for an item within the common stock of goods has obligations of distributive justice with respect to that item. Privately owned things are common in this way, and the regime of ownership itself is for the sake of the common good. Thus, both owners and those responsible for regimes of ownership have obligations of distributive justice.20 Thus, the deliberate effort of political authority to design ownership relationships so as to fulfill the requirement of common use is the simple duty of political leaders, and the intervention of political authority to rectify gross negligence of owners in carrying out their responsibilities of ownership is not robbery but the justified enforcing of moral obligations that owners already have, prior to any consideration of state power. The state’s intervention is thus, ideally at least, a form of subsidiarity, of helping people fulfill the obligations of distributive justice already contained in their ownership of goods.21 Still, it might be objected that natural law is unsatisfactory because it implies that no consideration of how much any person or member of a social group owns or has available to use, relative to what is owned by or available to others, can, by itself, be a ground for judging the arrangement unjust. But such considerations are not irrelevant. For a particular distribution of goods in a particular set of circumstances can be an almost sure sign of failure to carry out the obligations of common use. If there is a situation in which owners are able not only to take care of the necessities of living but also have much in excess, and there are others in communication with these owners who cannot meet the necessities of life, then the former are likely to be failing in their duty toward the latter. There are surely limits to what more wealthy owners can do to help others, but the fact that they have much in excess 20. See Finnis, Natural Law and Natural Rights, 177–86, 194. 21. This line of reasoning is adopted from Finnis, Natural Law and Natural Rights, 186–88.

242  C o n te mpo rary Mo ral Pr o bl em s while others are known to be in dire need strongly suggests that reasonable efforts to help are not being made. Thus, although the natural law conception of ownership is incompatible with egalitarianism or any other view according to which some pattern of distribution of goods is normative, actual patterns of distribution can be important as signs of injustice if other conditions are met. Others might object, on very different grounds, that natural law has no resources for protecting the rights of those who are denied the opportunity to appropriate because of the appropriation of others. When appropriation has this effect, it seems unjust, at least when compensation is not provided to those denied the opportunity to appropriate. The requirement of common use holds whether things are held commonly or appropriated. In the former situation this requirement indicates the rights of people to the use and benefits of use of things commonly held. They have no stronger moral claim to own some portion of them. In a situation in which exterior things are justifiably appropriated, this appropriation is judged to better serve the same norm that establishes people’s claims to use and its benefits in a situation of common holding. Perhaps some will be made worse off by the appropriation, but if so, they are not wronged, and no compensation is required.22 Natural law not only provides grounds for criticizing owners and property regimes but also indicates limits on the actions to be taken against those owners and regimes correctly judged to be unjust. In particular, natural law does not permit those with legitimate grievances against a regime of property rights to ignore established property rights on private initiative and to take what according to the established regime belongs to others. With one possible exception, to be considered later, that can be justified only if the stringent conditions for justified revolution obtain. Short of such situations, those unjustly treated have legal remedies and, if they are inadequate, civil disobedience. According to common morality generally, it is necessary to put up with some level of unjust treatment. Refusal to do this is unjustifiable if it puts others, particularly the defenseless, in greater jeopardy than they must already endure.23 Further, it is usually unfair to other citi22. Donagan argues that common morality judges otherwise. See “Morality, Property and Slavery,” 23–25. He holds that all people have common property rights in unimproved natural resources and appears to base this claim on something like the Thomist proposition that the possession of exterior things is natural to humans. 23. See Donagan, Theory of Morality, 10; Finnis, Natural Law and Natural Rights, 351–66.

Natura l Law, Own e rship, Natura l Res ources   243 zens to accept the advantages of a legal regime while refusing to accept the burdens that it sometimes unreasonably imposes. The exception mentioned earlier applies not to those with grievances but to those in situations of necessity. According to Aquinas, in certain cases of necessity one can take what is another’s without being guilty of stealing or robbery.24 The argument rests on the requirement of common use and takes account of the fact that many people are in a condition of necessity. Since, Aquinas says, not all of them can benefit from the same thing, it is appropriate that the owner should determine how the thing is to be used. But this consideration does not settle the case of extreme and urgent necessity, in which one is in danger of one’s life and has no alternative but to take what belongs to another. Here it is licit to take the needed object. This line of reasoning applies even if the owner’s relation to the thing conforms perfectly to the normative conception of ownership. In such a case the legal ownership of the property is completely justified morally, but in the especially exigent and presumably fleeting circumstances of the situation, the reasons that require others to respect the owner’s discretion fail. Only on this assumption could Aquinas maintain that such taking is not theft. This account of the moral questions natural law raises about property and the norms it establishes for those who have just grievances gives rise to a serious objection: that these questions and norms are simply too general to be morally helpful. The natural law conception of ownership places so much emphasis on the decidedly nonnatural exercise of human decision and discretion that it is hard to see how it can lead to definite evaluations. Indeed, it may seem that any but the most exploitative ownership relations and regimes of property can plausibly meet natural law’s conditions for justified ownership. To some extent this objection can be answered by recognizing that key elements of the natural law account of property need to be developed further. Analysis is needed to answer adequately such questions as “what can be owned?,” “who is capable of owning things?,” and “how can property be rightly acquired?” But even if answers to such questions as these are developed, natural law’s account of property will remain quite general. It is necessary to ask whether this level of generality is a liability. 24. ST II-II, q. 66, a. 7.

244  C o n te mpo rary Mo ral Pro bl em s Obviously, it will be if there is no way to get beyond the generalities and get down to cases. It seems to me that these questions do have concrete application, which in some cases at least can be morally decisive. Some of them have considerable force, even in their general form. This is particularly so in the case of the central question addressed to owners. Can one who has considerable wealth determine that the use of that wealth is in accord with the requirement of common use, supposing one seriously wants to answer that question? The possibilities for rationalization and self-deception here are almost endless, but moral theory is not sufficient for resolving them. And even if the question is honestly faced and answered, the motivation to act in accord with the requirement of common use may not obtain. Natural law lacks a developed theory about how this motivation is to be developed, but it seems to me that any severe, altruistic moral theory is likely to have similar difficulties. But, these qualifications aside, one can answer this question and, in many cases, decisively. Critical questions about regimes of property are more difficult. Here considerable information about economic and social matters and about possible alternatives to established or proposed arrangements is essential. Acquiring this knowledge is not primarily a matter of moral theory but of empirical study and theoretical projection. Natural law does not pretend to provide this information but only to provide a normative framework for assessing it. Here again natural law is simply recognizing what any moral theory should recognize: its limits in helping to deal with human problems.

Natural Law and the World’s Natural Resources There is no developed treatment in the natural law tradition of the moral questions concerning ownership of the natural resources of the world in a situation like that which now obtains—a situation in which they may be considered together as a common resource that can be used for the benefit of all. Still, some of the relevant implications of the natural law account of ownership are easily seen. One of the most obvious, and perhaps most important, is that the application of the requirement of common use is extended by the present economic and social unity of the world. Since those who have control over natural resources are in contact with many people around the world—potentially everyone alive—the requirement

Natura l Law, Own ership, Natura l Res ources   245 of common use demands that owners’ use of natural resources take into account their need and to the extent possible be carried out so as to alleviate it. Modern owners are in a position to know the need of others in different societies and on different continents and frequently to do something about it compatibly with fulfilling other obligations. Formerly such owners were in no position to help such people, but because of present economic and social conditions these owners can help, and the requirement of common use obliges them to do so. The exigence of this obligation is suggested by the fact that there are many people in the world today who, if they were closer at hand, could take what belongs to many of us in the richer countries and do us no moral harm, according to Aquinas’s analysis. There are many in extreme and urgent necessity of the kind that would justify taking from another who had extra. This reality is not avoided by hollow claims that those of us in the richer countries refuse to give to some only because we are using our extra for others in equal plight. In spite of the unity that now exists in the international economic order, there is no international political authority capable of articulating and enforcing a worldwide regime for the handling of natural resources in accord with the requirement of common use. Thus, there appears to be no single plan of action that could be undertaken to rectify the injustice that exists in the use of natural resources. This suggests that some international mechanism with authority to address the worldwide application of the requirement of common use may be in order, particularly if present political and economic arrangements cannot do that. Natural law can, of course, do more than recommend such a remote possibility. For the set of questions about property that it raises can be applied to the ownership of the world’s natural resources. This application can be carried out by considering the various ways natural resources can serve human needs. First, some natural resources fall into the category of things that are plausibly to be maintained as common to all mankind—for example, the open seas. But other natural resources, though best considered common to those living in a given territory—such things as rivers, wildlife, and so on—are reasonably not considered as common to mankind but as appropriated to those in the territory who are in position both to benefit from and take care of these resources. Second, some natural resources have their utility as part of com-

246  C o n te mporary Mo ral Pr ob l em s plex technological processes in which many people around the world must cooperate. The ownership of these resources should reflect this complexity and take into account the interests in the resource by those who must transport, fabricate, and ultimately use the final product. It is surely reasonable for people living where natural resources of this kind happen to exist to have some very considerable discretion over their use. These people are bound to be affected by how the resources are obtained, developed, and used. In many cases there is no reason to think that they are less capable than others of preserving the utility of the resource. Thus, in relation to such resources it might be reasonable for such people, acting in concert through their government, to corporately exercise discretion over the resource. This discretion must, however, be in accord with the requirement of common use. So, it would be wrong for a country to hoard a resource desperately needed by other countries. Because of the interest of others in such a resource, however, the requirement of common use might well demand that this discretion be less than the full and exclusive rights of disposal usually associated with property rights. Third, some natural resources, for example, the land on which people live and on which many depend immediately for their livelihood, are intimately connected with the lives and identities of those people. This kind of intimate relationship does not by itself imply ownership, but is a kind of possession that property arrangements should respect. Further, the utility of such resources seems to lie precisely in the good use to which the person identified with them can make for his or her own purposes. Here, it seems to me, the natural law case for private ownership with very considerable discretion by those directly using the resource is very strong. With respect to resources of this kind and other exterior things like the tools of one’s trade, the natural law tradition favors a wide distribution of ownership. For the use of exterior things is not only for the provision of products that people need to survive and live a full life. As John Paul II has emphasized, labor is not simply for the sake of products, but has aspects of actions done for their own sake. In working, people fulfill themselves and establish their personal identity. The things upon which and with which people work are obviously subordinated to the activity of work, and not just to those aspects of work that are defined by the product. It follows that some rights of discretion over these things are necessary if the “imminent,” self-perfecting values of work

Natura l Law, Own e rship, Natura l Res ources   247 are to be realized25 and if the possibility for functioning autonomously within society is to be protected.26 This sketch of some of the differences between natural resources that are relevant to posing natural law’s questions about property suggests that the category of natural resources might not be a particularly useful framework for moral analysis. Certainly this category does not, on natural law grounds, mark out an area where any special moral considerations apply. The same kind of moral considerations apply to unimproved natural resources and to the most sophisticated products of modern technology. Both are governed by the requirement of common use. Since improvement is very considerable in the case of sophisticated products, fairness demands appropriate compensation, but not an enhancement of property rights beyond the requirements of common use. And since the reasons justifying appropriation are not limited to considerations about improvement of the resource, especially in the use of resources in the first and third categories listed previously, these are often sufficient to justify ownership claims, even when others could better improve the resource. 25. See John Paul II, Laborem Exercens, no. 14. 26. See Finnis, Natural Law and Natural Rights, 169.

12 / Fairness in Holdings A Natural Law Acco u n t o f Propert y a n d W e l fare Righ ts

Introduction In this essay I will try to develop a natural law justification of welfare rights. The justification I will undertake is from the perspective of Catholic natural law—that is, the strand of natural law that has been developed theoretically by Roman Catholic canonists, theologians, and philosophers since Aquinas and affirmed by Catholic teachers as the basis for most moral obligations. Catholic natural law is, therefore, natural law as developed and understood by Catholics or others respecting Catholic traditions of inquiry. It is not, however, primarily or exclusively natural law for Catholics, since the very idea of natural law includes the conviction that it is accessible in principle to anyone. By welfare rights, I mean a species of political rights. I understand rights to be the grounding of duties in the interest or welfare of other people. I understand political rights to be legally recognized and established claims by members of a political society on that society as a community, whose leaders and members have duties based upon the interests of those who have the rights in question. Welfare rights are not simply the claims of some and the duties of others to forbearance, but claims and duties to provide or guarantee the provision of a fair share of those instrumentalities or empowerments important for living good I wish to thank the other contributors to Natural Law and Modern Moral Philosophy for their helpful comments on a presentation of an earlier draft of this essay. I am also grateful to John Finnis, Germain Grisez, James Murphy, Ellen Frankel Paul, and Michael Vertin for written comments on the earlier draft, which revealed many errors and suggested significant improvements.

248

Fa i rn e ss i n H oldi ngs   249 human lives: these include things like education, housing, health care, and welfare support for the elderly, the unemployed, and the underemployed. There are various ways for a political society to guarantee that such needs are met and to organize the provision of assistance to the needy. These ways of giving legal form and social reality to the welfare rights of the needy are themselves, of course, subject to moral scrutiny. However, the thrust of this essay is to establish the moral grounds for the political establishment of welfare rights themselves, not for any particular social arrangement that implements these rights. In particular, I am not arguing that government should presumptively be the provider of assistance for the needy; Catholic natural law suggests that voluntary associations should play this role whenever possible. My argument is, therefore, for the conclusion that political society should use its legal authority to guarantee that the welfare rights of its needy members are recognized. A political society cannot guarantee such support for people in need without some form of taxation, particularly of those not in need. Thus, taxation that is redistributive of wealth in at least this sense is required for welfare rights. The justification of political welfare rights, therefore, must be grounded in moral considerations sufficiently weighty to justify some redistributive taxation. I undertake this justification of welfare rights because some within the tradition of Catholic natural law reasoning, particularly twentiethcentury Catholic moralists and teachers, have affirmed significant welfare rights and have, in effect, held them to be natural by claiming that they are required for human dignity.1 Yet these statements and the 1. The classic statement is Pope John XXIII, Encyclical Letter Pacem in Terris (April 11, 1963), trans. National Catholic Welfare Conference (Washington, D.C.: National Catholic Welfare Conference, 1963), no.11: “Beginning our discussion of the rights of man, we see that every man has the right to life, to bodily integrity and to the means which are suitable for the proper development of life; these are primarily food, clothing, shelter, rest, medical care, and finally the necessary social services. Therefore, a human being also has the right to security in cases of sickness, inability to work, widowhood, old age, unemployment, or in any other case in which he is deprived of the means of subsistence through no fault of his own.” This teaching is continued in Vatican Council II and in subsequent papal teaching; for the most recent statement of this view, see Pope John Paul II, Encyclical Letter Centesimus Annus (May 1, 1991), no. 48. John Paul rejects what he calls the “welfare state,” but his reasoning makes plain that this position is meant to be consistent with welfare rights. Papal teaching does not stipulate the specific forms or organizational structures that respecting welfare rights requires; it affirms welfare rights as social responsibilities that political society has the responsibility to enforce and rejects socialist remedies that either deny private property or remove individual and nonpolitical group initiative. For earlier defenses of welfare rights by Catholic moralists in the natural law tradition, see

250  C o n te mpo rary Mo ral Pr obl em s body of theoretical literature supporting them do not appear to contain a philosophical explanation of precisely how such rights are justified. Lacking such an explanation, one might be led to suppose that such talk on the part of Catholic exponents of natural law is overstated or is simply an arresting way of restating traditionally held obligations that are really social rather than political. This supposition appears to be supported by the tradition’s classic sources. Catholic exponents of natural law, at least since Thomas Aquinas, have emphasized the common obligation of every person, as his or her capacity allows, to assist those in need. This obligation, however, is a responsibility, at least initially, of individuals, and perhaps of small communities like families, neighborhoods, or parishes—it is not a responsibility of political society. There are warrants within Catholic natural law thought for transferring individual and small group responsibilities to the ambit of political communities; notable among these warrants is what is nowadays dubbed “the principle of subsidiarity” (to be explained in the section “Welfare Rights and Social Conditions” to follow). But I am not aware of any detailed application of such warrants to the specific case of welfare rights. Within the Catholic strand of natural law thinking, then, there is a lack of developed analysis showing how welfare rights emerge from more fundamental moral principles, and there are perhaps even some significant tensions between a characteristic natural law affirmation of property rights and a willingness to allow redistributive taxation. I will take a few steps toward filling in this lacuna and reducing the apparent tensions. I propose to do this by (1) recounting Aquinas’s account of property rights and their limits; (2) considering whether and to what extent this account is compatible with welfare rights; and (3) arguing that very basic natural law principles, applied to certain conditions of modern social life, imply social obligations that are properly coordinated by political authority. This political action has the effect of making actual, in the form of enforceable entitlements, the right to assistance from the better off that the needy already have. I believe that this implication secures welfare rights that are natural in a limited but important sense.

John A. Ryan, Distributive Justice: The Right and Wrong of Our Present Distribution of Wealth, new rev. ed. (New York: Macmillan, 1939), 87–113, 268–81; and Johannes Messner, Social Ethics: Natural Law in the Western World, trans. J. J. Doherty, rev. ed. (St. Louis: B. Herder, 1965), 646–55.

Fa i rn e ss i n H oldi ngs   251

The Thomistic Account of Property Aquinas presents his fullest account of property and its justification in his most thorough and systematic discussion of stealing. The account he presents is consistent with and complements other things that he says about property rights.2 It begins with an argument that the human possession of nonhuman realities or “exterior things” is natural. The sense of “natural” in this context is indicated by the Aristotelian and biblically based arguments Aquinas presents for his conclusion: “natural” does not mean anything like “biologically inevitable” or “in accord with laws of nature”; rather, it means “appropriate or morally justified.” The human possession that Aquinas holds to be natural is said to be such because (1) humans, as rational creatures, are capable of the use of nonhuman realities for human benefit; (2) such use is not, as such, an affront to God’s dominion over the universe; and (3) such use is no affront to nonhuman things themselves, which, as less perfect, are properly ordered to human benefit.3 The second and third of these reasons are likely to be controversial, and I cannot defend them here. However controversial, they provide an idea of what Aquinas means by saying that the possession of or dominion over what he calls “exterior things” is natural for humans: the possession he has in mind is use for human benefit, and that use is natural—that is, morally justified.4 This analysis does no more than normatively situate humans before the array of nonpersonal realities by arguing for the legitimacy of human use, for human purposes, of all such things. It does not address questions concerning the fair distribution of such things or of the fair distribution, among humans, of the benefits of using these things. Aquinas does not say here, nor does he provide premises for concluding, that the subpersonal realities he calls “exterior things” (which I will simply call “things” in the remainder of this essay) are limited to 2. For a discussion of all the relevant texts, see John Finnis, Aquinas: Moral, Political, and Legal Theory (Oxford: Oxford University Press, 1998), 189–96. Finnis explains the textual nuances and complexities that my shorter recounting slights. 3. Thomas Aquinas, ST II-II, q. 66, a. 1. The second part of the second part of the Summa Theologiae contains Aquinas’s mature doctrine on specific moral issues. The first part of the second part contains his ethical theory and moral psychology, including his general treatment of natural law. Question 66 of the second part of the second part is his question on stealing; it is part of the discussion of injustice. 4. The English word “possess” does not seem to capture precisely the relationship to things that Aquinas is after here. Nevertheless, he uses the Latin noun “possessio” and the Latin verb “possidere.” I do not know why he did not use the word “usus.”

252  C o n te mpo rary Mo ral Pr o bl em s things undeveloped by human initiative. The plain sense of his arguments is that all things—whether straight from the hand of God, such as trees and rocks, or developed by humans, such as farmlands and artifacts—are to be used by humans. If human improvement affects things in a way relevant to fairness, it is not at this level of natural possession. Nor does Aquinas say or suggest that things are in some way the common property of all. His analysis does not concern the relationships between humans that arise because of the common human need to use things; instead, it concerns the relationships between humans as such, on the one hand, and God and things on the other. If his analysis implies anything at all about common possession of such things, it is simply that, as things, they are to be used to serve needs that are characterized only generically as human needs. Questions about the relationships among humans that arise because of their common need to use things are addressed by Aquinas in his discussion of whether it is permissible for anyone to possess something as his or her own (quasi proprium). In Aquinas’s terminology, “proprium” (or “proper”) is simply the contrary of “common.” Hence, this discussion is not concerned solely with individual or private possession, but with any assignment of things to smaller groups or individuals within a community—to a corporation or religious community within a polity as well as to individuals within a family or region. However, Aquinas’s language and argumentation both suggest that his focal case for this discussion is individual ownership. To answer the question he poses, Aquinas distinguishes two aspects of the human possession of things: the authority to take care of and distribute things and their actual use. He maintains that in respect to the first aspect, possession may be—and in some situations needs to be—proper and not common; in respect to the second aspect, he says that possession should be common. Both elements of this position require some explanation. Aquinas holds that it is licit for some individuals to have the authority to take care of and distribute (potestas procurandi et dispensandi) things, by which Aquinas means the authority over how they are to be used; I will refer to this authority as “ownership.”5 He appears to 5. ST II-II, q. 66, a. 2. The verb “dispensare” also means “to weigh out or pay out” and “to manage.” Having the power or authority both to take care of something and to distribute it or its benefits seems very close to the idea of being in charge of something and being responsible for its use. Ownership may suggest a stronger claim on a thing, so my usage has a stipulative component.

Fa i r n e ss i n H oldi ngs   253 think that this claim is uncontroversial once it is distinguished from his thesis that things, in respect to their actual use, should be held in common. The limited character of Aquinas’s claim about ownership is taken by him as sufficient to remove objections that this norm is egoist. Moreover, the considerations of the kind that he thinks show that there is necessity for individual authority over useful things also plausibly establish, a fortiori, its permissibility. Aquinas lists three reasons for the claim that ownership authority over things is necessary. The first reason is that a person is more careful with things that he alone is expected to care for than he is with things that are held in common. Supporting this is the observation that when dealing with things that are commonly held, people avoid labor and leave things to others; we see this happen when a multitude of officials supervises the same activity. The second reason is that human affairs are conducted in a more orderly way when different people are in charge of different things; confusion arises if all are in charge of everything. The third reason is that social life is more peaceful if the authority over things is divided among people. A cause of quarreling is avoided if people are satisfied with their own things.6 The first of these reasons seems to be based on the purpose of possession—to use things for human benefit. This purpose will be significantly compromised, at least among humans likely to flee labor, if holdings are common. The third reason seems to be based on the requirements for harmony among people: as long as people are tempted to quarrel about things held commonly, harmony requires a division of ownership of things. The second reason seems to hover between these considerations, for the confusion that arises when all are in charge of everything could be considered objectionable because it impedes the effective use of things or because it inhibits harmony among people. Whichever considerations support the second reason, however, the result is the same: the second reason, like the first and third reasons, supports giving people ownership authority over things. Aquinas does not explain precisely how strongly these considerations are meant to support the necessity of ownership, nor does he specify the exact moral significance of that necessity. His reasoning suggests that the necessity in question is that of a necessary means to the morally defined ends of human utility and harmony. This would seem to make a division of things into those owned by some and those 6. See ST II-II, q. 66, a. 2.

254  C o n te mpo rary Mo ral Pr o bl em s owned by others an implication of moral principle—of the natural law. Yet Aquinas nowhere affirms precisely this, and several times he denies that any particular ownership arrangement is required by the natural law.7 No doubt he was concerned to allow for the early Christian practice of common life, as well as the practice of consecrated poverty in which the vowed religious, like himself, owned nothing. He was also taking note of the possibility that circumstances could arise in which humans would not be tempted to shirk work or quarrel over things—circumstances that he thought existed before the fall of Adam.8 Therefore, he likely regarded the necessity of dividing things by ownership as characterizing most, but not all, situations of human life. Whenever the factors requiring such a division do not obtain, the obligation to establish a regime including private ownership does not exist. As a practical matter, however, this condition is rarely fulfilled. Thus, some sort of property arrangement is morally required in most societies. The character of the necessity that makes ownership a moral requirement does not, of course, settle the details of a regime of property. These details are settled by custom and legislation, which determine, in the light of principles of fairness, such things as the protocols for the acquisition and disposal of property, the limits of owners’ authority over their property, and so on. Aquinas has little to say on such matters. More fundamentally, neither the character of this necessity nor the set of powers, permissions, and proscriptions that define a property regime implementing this necessity has, by itself, a fixed moral position in relation to other normative considerations. Aquinas’s discussion of the second aspect of possession—use—establishes this position. Aquinas introduces the statement that use should be common as if it were unproblematic. He simply says that “with respect to this [use] a human being should not have exterior things as his or her own, but as common, that is, so that someone may readily share them for the necessities of others,” and then cites St. Paul’s letter to Timothy as support.9 7. Among other places in Aquinas’s discussion of possessio quasi proprium, see ST II-II, q. 66, a. 2 ad 1. See Alan Donagan, The Theory of Morality (Chicago: University of Chicago Press, 1977), 99, for a generalization from this text to the effect that Aquinas represents the Hebrew-Christian moral tradition here in denying that there is any natural right to private property. However, I do not think that this Thomistic text or any other denies that some division of property among groups or individuals—as opposed to a detailed, specific division—is a requirement of moral considerations prior to human decision and therefore a matter of the natural law. 8. See ST I, q. 98, a. 1 ad 1. 9. ST II-II, q. 66, a. 2. The translation is mine. Aquinas’s Latin for what I translate as the last clause reads “ut scilicet de facili aliquis eas communicet in necessitates aliorum.”

Fa i rn e ss i n H oldi ngs   255 This suggests a sense of “common” that is more robust and morally specified than that which was present in Aquinas’s earlier discussion of the natural status of human possession. In the context of possession, “common” was merely a reference to who has ownership authority over the things in question; deciding who was to receive the benefits derived from the use of things had not yet been addressed. When Aquinas specifically addresses use, we find him using “common” to refer to the particular beneficiary of the thing being used—that is, the term indicates a contrast between the “common” beneficiary and the “proper” owner. Owners—that is, those who are in charge of something—should make it (or its fruits) available to relieve the necessities of others. This norm regulating the relationships between human beings with respect to things is clearly meant to serve the welfare of all humans, not just the welfare of those who happen to be in special relationships toward things. Consequently, this norm falls within the domain of justice. Aquinas’s claim here is that things are to be used in a fair way to serve human utility and that a regime of property rights can be, and usually is, required to serve that moral end. This goal implies the requirement of common use. Aquinas and the wider Christian moral tradition have focused on a specific implication of the requirement of common use— namely, the obligation to help those in need. Common use does not deny the legitimacy of ownership, but indicates the scope of owners’ responsibilities. Consequently, an owner’s use of her things to serve her own needs or to carry out familial obligations does not violate the requirement of common use unless her use of her things is in some way unfair to others. This becomes more explicit in Aquinas’s discussion of taking others’ property in cases of extreme necessity, in which he says that such takings can be permissible and that permissible takings of this sort are not examples of stealing. In discussing the extreme necessity cases, he begins to spell out his account of the relationship between the natural and the conventional aspects of the human use of things. The natural aspects imply that things should be used to relieve human necessity; this seems to be a specification of the requirement of common use. The conventional aspects are the basis for dividing and apportioning things among various owners. This division of things by human law need not prevent their use for relieving human need. Quite the opposite: the natural law requires owners to use anything residual or superfluous to

256  C o n te mpo rary Mo ral Pr o bl em s help the needy.10 This norm is to be distinguished from the charitable counsel that people should consider nonobligatory generosity from resources needed for their own good purposes. That counsel surely is part of Christian tradition, but the norm here states a distinct obligation to use what is extra for others. The context of this norm suggests the beginning of an implicit definition of what is surplus or extra: this definition includes permission for owners to use their property initially to meet their own needs, as well as the requirement that they carry out basic vocational responsibilities, such as taking care of their families, before attending to others in need. Additionally, owners retain discretion over how to use their property to help the needy, since, as Aquinas observes, many people are in need, and this need cannot be met from a single thing. It is only in cases of extreme and immediate need that Aquinas believes that necessity overrides ownership. In discussing this issue, Aquinas seems to accept the dictum that in cases of necessity, all is common.11 This is not a general declaration that in extreme circumstances moral norms do not apply, but a claim that in conditions of urgent necessity, the requirement of common use—that is, fair use of things for human benefit—overrides the reasons and conventions that support claims of ownership. In these circumstances, a person in need or one helping him or her may justly take what law assigns as the property of another, if that legal condition is the only moral bar to taking it.12 The reasons com10. See also ST II-II, q. 32, a. 5. Here, Aquinas treats giving alms as a moral obligation. That is, he maintains that giving alms falls under a precept, not a counsel of perfection, when one has more than one needs. He goes on to define what is superfluous and makes clear that taking care of one’s own necessities and providing for those in one’s care is not superfluous and is ordinarily the prior responsibility. Finnis, Aquinas, 190–93, details the nuances of Aquinas’s understanding of what is superfluous. 11. See ST II-II, q. 66, a. 7, sed contra. At least in the Summa, this part of a Thomistic article is usually an authority with whom Aquinas largely agrees. Here, however, no authority is cited— there is simply the dictum—in necessitate sunt omnia communia. This dictum was likely a canonical commonplace. Aquinas affirms this sentence unambiguously elsewhere; see, for example, ST II-II, q. 32, a. 7, ad 3. But here at ST II-II, q. 66, a. 7, ad 3, he qualifies the dictum by saying that necessity renders the thing taken the property, not of everyone, but of the person in need. 12. Finnis, Aquinas, 191–93, provides the details of Aquinas’s position on this matter. Although Aquinas’s discussion appears to emphasize the duties of owners rather than the rights of the needy in these situations, it seems to me that because these duties are chiefly grounded in the needs of the needy, it is reasonable to refer to these duties as rights that the needy possess; see note 16. For the canonical background of Aquinas’s discussion, which suggests that some canonists recognized the existence of the rights of the needy in these situations (and that some canonists considered the possibility of enforcing these rights via ecclesiastical authority), see Brian Tierney, The Idea of Natural Rights (Atlanta, Ga.: Scholars Press, 1997), 73–75.

Fa i rn e ss i n H oldi ngs   257 mon use overrides ownership in these cases are morally decisive considerations of fair and rational utility. Ordinarily, these considerations are served by ownership, but not in extreme circumstances. This very brief recounting of Aquinas’s treatment of property indicates that several characteristic features of Thomistic moral theory combine to ground an account of property that sees it as an instrument for securing aspects of the human good. Ownership of useful things ordinarily facilitates the good use of those things. Initially, the owner and those for whom the owner is responsible benefit, and then, if utility remains and the owner acts responsibly, others in need benefit. The effect of the Thomistic analysis is to give to those who have charge of some useful things considerable discretion over how these things or their fruits will be used. This discretion, however, exists within a framework of strict moral obligations. Within this normative framework, this combination of discretion and obligation is not a surprise. The Thomistic version of natural law is perfectionist: a good life is one that reason shows to be perfective of persons. The reach of a good person’s reason into his or her life goes very far, farther than general moral considerations, because right reason should shape the whole of a person’s life into that of a virtuous character. Thus, although there is little or no room within this perfectionist morality for valuing autonomy (that is, merely doing just as one pleases), the discretion of individuals with respect to property (and other aspects of life) is justified for the reasons Aquinas adduced. However, as later natural law theorists have held, it appears that on a natural law conception of human life, this discretion is not simply an effect of social arrangements based on other considerations, but is itself a necessary means to or component of several aspects of the human good.13 Without some discretion over property and other aspects of life, a person’s ability to maintain life and health, to work creatively, to respond to others generously, to worship God appropriately, and to create a morally good character are seriously limited. If discretion with respect to property is a necessary means to or an element of the human good, then that is another reason, besides those presented by Aquinas, why natural law grounds the judgment that a person should own some 13. Catholic social teaching since Pope Leo XIII (1810–1903) emphasizes this element of value in private property: it is the ground for Catholic judgments that property should be widely held and not concentrated in the holdings of a few. See “Natural Law, Ownership, and the World’s Natural Resources,” chapter 11 of this volume, and the sources cited there.

258  C o n te mpo rary Mo ral Pr o bl em s things. I will assume in what follows that the natural law account of property includes the idea that ownership not only facilitates the proper use of things and promotes harmony, but also provides a form of discretion that is a component of many dimensions of a good life, including virtuous living itself. I believe that this element of the natural law account is important in thinking about welfare rights and their limits.14

Property and Welfare Rights There are several ways in which one might think that Aquinas’s account of property is incompatible with welfare rights. One global form of this argument is the claim that the Thomistic account of property, like natural law positions generally, is formulated in terms of the authority and responsibilities of various people in social situations and that this normative outlook is so different from modern conceptions of rights as to make them conceptually incommensurable. According to this claim, even though Aquinas’s language might be understood as implying the defeasible property rights of owners, the far more important thrust of his analysis is to elucidate the responsibilities of owners and others. I think it is true that most modern conceptions of rights are in some deep ways opposed to premodern theories of natural law. However, the point of opposition is not, I think, in the very concept of rights and its relations to more traditional deontic conceptions, but in several distinctively modern values associated with rights—in particular, with the connection between rights and autonomy understood as doing what one pleases.15 The concept of rights itself is not incommensurable with 14. I am not supposing that all natural law accounts of property and political society would be consistent with welfare rights. Stoic natural law theory—at least as represented by Cicero, whom Aquinas read—would likely have rejected welfare rights as incompatible with the importance of political society’s respect for private property. See Cicero, De Officiis, trans. Walter Miller (Cambridge, Mass.: Harvard University Press, 1913), bk. II, chap. 73: “For the chief purpose of constitutional state and municipal governments was that individual property rights might be secured. For although it was by Nature’s guidance that men were drawn together in communities, it was in the hope of safeguarding their possessions that they sought the protection of cities.” See also chapter 79. For Aquinas, political society is natural in a way that property—and certainly ownership—are not. Yet even modern natural law theorists whose normative views are more like Aquinas’s than Cicero’s reject welfare rights; see Henry B. Veatch, Human Rights: Fact or Fancy? (Baton Rouge: Louisiana State University Press, 1985), 177–97, and Douglas Rasmussen, “Economic Rights Versus Human Dignity: The Flawed Moral Vision of the United States Catholic Bishops,” in The Catholic Bishops and the Economy: A Debate, by Douglas Rasmussen and James Sterba (New Brunswick, N.J.: Transaction, 1987), 45–84. 15. For evidence that Aquinas had a conception of human rights, see Finnis, Aquinas, 132–38.

Fa i r n e ss i n H oldi ngs   259 deontic concepts of obligation or responsibility. As I indicated in the first section, rights, including welfare rights, can be reasonably understood as grounds of certain obligations—that is, as grounds of duties that people have toward others because of these others’ needs or welfare. The issue at hand is a good example: if those capable of helping a needy person have a duty to help that is grounded in the welfare of the needy person, then the needy person has a right to that help grounded in need.16 I am not suggesting here that the idea of welfare rights as political rights existed in the thought of a medieval writer such as Aquinas. As I will argue, the very possibility of political welfare rights presupposes a modern organization of society. But as Aquinas’s discussion of the responsibilities of owners and the rights of those in extreme need makes plain, he does have the essential idea that some duties of individuals are based upon the needs of others. The differences between political welfare rights and Aquinas’s conception of the duty to help the needy remain very clear. The requirements of common use, including the requirement that things a person owns should be shared to relieve the needs of others, are plainly a distinct moral proposition from those involved in the affirmation of modern political welfare rights. As articulated by Aquinas, this requirement is a responsibility of individual owners, one generally to be carried out at their discretion even when the requirement is a strict obligation. The duties that exist under modern political welfare rights are carried out in ways that are not similarly individualized and discretionary. The duties are not simply those of individuals but of the polity as a community, and they are carried out by taxation, which is not discretionary for the taxed—paying one’s taxes is ordinarily morally obligatory and enforced by public authority. Nevertheless, political welfare rights are logically and practically compatible with ownership; indeed, fairly widespread private ownership ordinarily provides the tax base needed to finance welfare rights. Other systems of ownership may be less able to accommodate both welfare rights and ownership rights. For example, more thoroughly socialist arrangements—even if they could fund welfare 16. See Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1987), 166: “Definition: ‘X has a right’ if and only if X can have rights, and, other things being equal, an aspect of X’s well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty.” Raz deals here with the general concept of a right, not with specific issues created by the legal establishment of rights. I assume that Raz’s general account of rights is silent about the moral principles needed to move from a person’s need to others’ duties.

260  C o n te mpo rary Mo ral Pro bl em s rights from publicly owned resources—would, to whatever extent they deny people significant rights of ownership, run afoul of the natural law considerations that support ownership. The tensions between political welfare rights and property as justified by Aquinas’s arguments are between welfare rights and some values (such as owners’ discretion and effective use of things) secured by ownership conventions. They are not tensions between welfare rights and common use as such, for political welfare rights are a way of securing one aspect of common use—sharing resources with the needy. Even as a way of implementing the moral responsibility of common use, a system of political welfare rights will fail morally if it ignores Aquinas’s reasons favoring ownership, for these reasons indicate that ownership ordinarily serves common use. Thus, if the establishment of welfare rights undercuts the effectiveness that ownership provides in securing human benefit from things, causes disharmony among people, or deprives people of the discretion needed for living a creative and morally good life, then establishing these rights will be morally questionable. However, a society’s program to implement welfare rights need not run afoul of the reasons supporting ownership. I shall offer three arguments by way of explanation. First, as noted previously, such a program should not seek to replace ownership as the basic way humans make good use of things. Rather, a program should provide a way of sharing resources and the benefits from their use with those in need. Their use of the resources provided to assist them in meeting their necessities is a good use of resources and, in some cases, at least, puts them in a position to act as productively as they can. Of course, some of the needy will abuse the help that they are given and squander the resources or irresponsibly wait for another handout—this outcome of a program of welfare rights is probably an unavoidable side effect of any undertaking of this kind. This bad side effect can be minimized by those designing and administering the programs implementing these rights. Even if a program is ineffective at stopping such side effects, however, one can ordinarily undertake important initiatives having bad side effects if accepting those bad side effects is not excessively harmful to those affected by the initiative. Therefore, unless the abuse of welfare rights by some is very harmful to either the abusers or to others, the welfare of the needy prevails, and it is reasonable to tolerate this side effect. Second, the use of a system of welfare rights to carry out the responsibility of sharing surplus with those in need is not inherently a cause

Fa i rn e ss i n H oldi ngs   261 of disharmony. The specific source of quarrels that Aquinas thought common holdings caused does not exist, for under systems of welfare rights, goods are not treated as common but as the property of owners or of the needy to whom they are provided as a matter of right. Welfare rights are not a form of access to a commons—rather, they are grounds of duties, held by those controlling resources, to use those resources fairly to benefit the needy. A system of welfare rights can contribute to resentments of various kinds—enforced support makes owners resent the needy, and their own dependency makes the needy resent the owners. However, unless we assume the moral rectitude of such resentments, they can hardly be decisive factors as we set up social forms that facilitate the moral use of things. Furthermore, if these resentments are not taken as decisive, then they are really just side effects of welfare rights and therefore can be minimized and accepted unless they are so great as to make social cooperation impossible. Third, a system of welfare rights is compatible with providing people a level of discretion over their lives that is needed for developing a virtuous and creative life. Indeed, it provides the needy with some of the resources that are necessary for exercising discretion in the same way as better-off owners. Surely, however, there is a danger, when administering plans of welfare rights, of reducing the taxpaying part of the citizenry to a kind of moralistically based servility. There is no bright line that indicates when this has happened, but there are some relevant considerations. For example, if many of the ordinarily law-abiding citizens begin to feel morally justified in cheating on their taxes because they think that an excessive amount goes to help others, then the line has probably been crossed. When this line is crossed, the other values at stake in ownership—the good use of things and social harmony—are also likely to be compromised.17 This is because resentment at unreasonable levels of taxation and the government’s apparent indifference to whether the recipient used the funds productively will affect taxpayers, while recipients will suffer demoralization caused by servility. Therefore, there is a significant limit on the extent to which a polity can provide welfare rights. A regime that impoverishes its citizens to 17. Cicero, in De Officiis, bk. II, chap. 79, details the moral and social effects of unjustified expropriation and redistribution of property. Any regime of welfare rights requiring the sort of expropriation Cicero describes would run afoul not only of Cicero’s theory of property, but also of Aquinas’s more limited and circumspect approach.

262  C o n t e mporary Mo ral Pr ob l em s maintain welfare rights beyond levels that the society can afford would likely be unstable. Such a regime would also violate the requirement of common use, since it would undercut the capacity of owners to fulfill their obligations, including that of sharing their holdings or the fruits thereof with the needy.18 Still, the experience of modern polities indicates that it is possible for societies to tax at levels that provide significant help to the needy without removing from taxpayers’ lives the discretion that they need for virtuous living. This, of course, presupposes that such societies are wealthy enough that many of their members can reasonably be taxed for welfare purposes; this makes sense morally only if (1) many members of these societies have surpluses that they can share, and (2) doing so will not compromise members’ discretion over their lives.

Welfare Rights and Social Conditions The requirement of common use—that things are to be used to serve human utility in a fair way—is a very basic principle of the natural law. Common use includes the prescription that things are to be used for human benefit—that is, as instruments for the individual and communal action by which people perfect themselves by choosing to live good lives. Common use also presupposes that people are facilitated in living good lives when those capable of exercising responsibility for their own lives (and for those too immature or infirm) have a level of authority sufficient to allow them to carry out their responsibility. Ownership makes this kind of authority possible, and for this and other reasons, ownership implements common use, with the rider that any excess of goods must be shared with those in need. A mature person’s responsibility to take care of himself or herself and those near and dear expands over time to include more people. This happens as one comes to identify with others (neighbors and coworkers, for example) and to include their welfare as part of one’s own good. It can also happen in a more straightforwardly moralistic way whenever a person recognizes that, solely because of his feelings of indifference or hostility, he is denying others the benefits that he secures for those in his circle of affection or responsibility. Furthermore, one’s 18. For an earlier statement of mine of this limitation on welfare rights, see Joseph Boyle, “Catholic Social Justice and Health Care Entitlement Packages,” Christian Bioethics 2, no. 3 (December 1996): 284–86.

Fa i rn e ss i n H oldi ngs   263 circle of affection or responsibility can also enlarge when application of the Golden Rule causes one to adjust one’s feelings as reason demands—at the very least, such application of the rule may cause one to choose to set aside unreasonable emotional limits when deciding how to act.19 This dynamic of expanding affection and moral concern has no natural limit short of including everyone. Yet, a reasonable way of identifying a limit is to focus on feasibility. One might formulate a moral norm for dealing with neighbors: that all are obliged to provide assistance to those in need whom they are capable of helping. This capacity to help is limited in two major dimensions. First, when one can provide aid, there are limits as to what one may permissibly do. One goes beyond neighborly assistance when one tries to meddle in or take over responsibility for someone’s life. Assisting someone in need by providing encouragement, advice, and the means for that person to solve his own problems is helpful. Doing more than this is likely to be futile and morally problematic. The second limit on the capacity to help involves proximity, but is more carefully stated as capacity. The relevant consideration here is that the needy are within reach of one’s assistance. Yet a person or community’s capacity to help those in need is not just a matter of physical proximity. The capacity to help is more complicated than that. For example, one might be morally incapable of giving neighborly assistance even to someone close at hand, if one’s other obligations preclude such aid. Because of this, obligations of neighborly assistance necessarily allow for significant discretion over how one should respond to the needy whom one encounters. But this justifiable discretion does not release us from providing assistance when we have surplus funds, even when those in need are at some distance. We should try to help if we can reach these people and if our assistance might be productive. The dynamics of the expansion of the obligation to assist others in need and the limits of this obligation are each affected by technology and the character of a community’s social organization. These dynamics require using available methods to embrace more people and to 19. The Golden Rule has historically been taken as a principle, or as closely related to a principle, in natural law; I cannot defend the status of the Golden Rule here. For a brief exploration of some of the historical and conceptual issues, see Donagan, Theory of Morality, 57–66. For an account of the logic of the Golden Rule, see Germain Grisez, The Way of the Lord Jesus, vol. 3, Difficult Moral Questions (Quincy, Ill.: Franciscan Press,1997), 861–70.

264  C o n te mporary Mo ral Pr ob l em s serve them better when that is possible; technology and social organization can change the de facto limitations on one’s capacity to help. Therefore, one’s responsibility for others reaches further to the extent that technology and social organization expand one’s capacity to help without bringing other limits to capacity into play. When those conditions obtain, one’s duty to help becomes a duty to make use of the technology and social organization at hand. It is recalling a truism to note that modern society is based on a division of labor unheard of in earlier agricultural and urban societies. Functionally differentiated professions and occupations make possible a far more effective and efficient pursuit of various human goods, including easier provision of very elementary empowerments such as food, health care, shelter, and education—the things the needy most often lack and that others can provide. Within this differentiated and technologically developed condition of society, people can pay specialists to do many of the things that they formerly did for themselves, thus freeing them for other pursuits. Similarly, people today can assist others by providing funds to charitable organizations. Thus, the full use of the resources of modern society can help the needy in ways not dreamed of in earlier centuries. Moreover, modern social organization can extend the reach of helpers to many who were formerly beyond reach. Modern communications and the fungibility and mobility of money also allow us to reach many needy individuals who were formerly out of sight. The preceding two points lead one to the conclusion that the obligation of neighborly assistance is transformed and extended by the conditions that define modern society. Modern owners routinely fulfill their own personal and familial responsibilities by making use of the resources that society provides, and they ordinarily judge themselves duty-bound to do so. Since these resources are the very same instruments that are needed to assist the needy, and because the Golden Rule plays a major role in determining the extent of the responsibility, it follows that those who have these resources and use them for their own benefit are also required to use them to fulfill their duty to share with the needy. Therefore, the requirement of neighborly assistance cannot, in modern societies, be limited to the direct and face-to-face help of those in need. Moreover, it is hard to imagine the resources of a modern society being used rationally and efficiently without both significant common action by cooperating groups and some level of regulatory action by

Fa i r n e ss i n H oldi ngs   265 various authorities. Plainly, voluntary associations, such as the United Way or Catholic Charities (both based in the United States), do much to create and channel common action for the sake of the needy. The social organization of voluntary groups to help the needy appears to be common in most societies. Moreover, on natural law grounds, an individual’s cooperation with such organizations by joining them and giving them resources is frequently more than a voluntary and charitable action—it is an obligation. Such an obligation exists when a person is obliged to provide assistance, but cannot do it (or do it well) without cooperating with others. Thus, although the underlying obligation is, and remains, an obligation of each owner, common action is often the most efficacious course in modern society. Consider a voluntary charitable association of owners in a region who are dedicated to meeting the needs of the poor living among them. Suppose that this organization frees the owners to do other good things with their time and resources, allows them to reach many more of the poor, lets them secure the needs of the poor more fully, and yet does not have such a high subscription fee that owners cannot pay without failing in their other responsibilities. It seems to me wrong for an owner not to join, particularly if one’s refusal is based on the ground that one favors other ways of serving the poor that are less beneficial. Such favored ways of helping the needy may, of course, have side benefits that are not included within the category of “things.” Sometimes, for example, face-to-face help is valuable, not only because of the material help it provides the needy person, but also because it makes possible a kind of community and even friendship between the needy person and the owner. These human goods are not embraced by a consideration of what means will best provide the material necessities of life to the needy with the least negative impact on other things that owners should be doing. But focusing too much on individual acts of charity in the condition of modern society would leave far too many needy people unattended. Also, it would overlook the social and personal benefit of anonymous charity. While personally engaged solidarity with the needy can be good, it is above all necessary to see to the needs of people, especially those whom one cannot personally and directly befriend but still can help. The responsibility to provide the necessities of life for those who lack them is not trumped by the propriety and goodness of seeking a personal relationship with those whom one helps. Most of us will have a responsibility to help the needy, both in

266  C o n te mpo rary Moral Pr obl em s directly personal ways and in less personal but more far-reaching and effective ways. This natural law picture of people using their resources as a part of their efforts to live virtuous lives requires a robust sense of responsibility to assist the needy on the part of each person capable of providing that assistance. The reach of this responsibility is extended by the technological opportunities available within a society and by the possibilities of cooperating with others in common action to relieve need. But I am assuming that welfare rights are entitlements established by political society, and the argument I have developed so far does not show that there is a ground for establishing politically the social obligation for which I have argued. The Golden Rule considerations on which my argument has depended show that the duty to assist the needy is an extensive social responsibility, but not that it is the responsibility of political society. Therefore, I must address a further question: how can we justify not simply the move from individual to social obligation, but the additional move from morally required nonpolitical group action to political action? I believe that this second move is justified because in modern developed societies, conditions exist in which carrying out the individual and social obligation to assist the needy requires the specific form of social coordination provided by political action.20 There are two major reasons the needy in modern politics need the action of political society in order to secure the assistance to which they have a prepolitical right. First, political society properly has regulatory powers over much of the complex organization that characterizes modern life. Voluntary organizations normally lack regulatory power unless it is mandated by government recognition and backed by government enforcement. Such regulatory power makes a unique contribution to aiding the needy; for example, the municipal regulation of rents and the regulation of the pharmaceutical industry to allow the marketing of generic drugs each provide benefits to the needy that voluntary organizations could match only with great expense. The second reason that the needy require the action of political society is that political society has the capacity to compel public sup20. My earlier formulation of this argument did not attend sufficiently to the role of voluntary associations in fulfilling the responsibility of common use; see Boyle, “Catholic Social Justice,” 286. Here I recognize that voluntary associations are presumptively the proper vehicle for providing social assistance to the needy, but argue that the specific coordination of common action, which only the authoritative action of political society can provide, is also necessary.

Fa i r n e ss i n H oldi ngs   267 port through taxation. Even if limited to providing tax deductions or credits for charitable donations to organizations such as United Way, taxation would be redistributive. Such deductions or credits have two important benefits. First, enacting such tax breaks guarantees a higher level of predictable support. Second, with tax breaks as an incentive, the morally responsible are less likely to be the only contributors to the needy, for the greedy now have an incentive that they lacked in a purely discretionary system. Tax breaks motivate both the virtuous and the weak-willed to provide the help that they should and to guarantee to the needy at least some of what is due them. If political action (1) regulates for the sake of facilitating assistance to the needy, (2) subsidizes other social organizations, or (3) directly supports the needy through tax support, then there exists a system of political welfare rights in the sense that I am defending. That is, legally enforceable entitlements exist, not just duties of owners based on the welfare of the needy. The precise form and extent of such an entitlement system depend on such factors as the wealth and organization of a society and the capacity of its voluntary associations to assist the needy. But whatever the precise form of the system of welfare rights, the duty of owners to use their surplus to assist the needy—a duty grounded in their need—is politically enforced through taxation and regulation. These are the minimum conditions for establishing welfare rights in the sense that I am defending. I do not believe that all societies are equally able to use political action to help secure welfare rights. The requirements of capacity—including moral capacity—that limit the extent of one’s personal responsibility to assist others also apply to common responsibility, including political responsibility. In societies without money or significant division of labor, an organized social effort supported by political action would likely serve the needy no better than could individuals or informally organized groups. Such societies would likely lack professional organizations, the ability to enact significant regulation, and the resources to tax its members or to distribute the funding needed for assisting those in need. More importantly, some societies may not be able to actively assist the needy without violating other grave political responsibilities. For example, some societies could not support the needed taxation without reducing taxpayers to servility. As noted previously in the section “Property and Welfare Rights,” this provides a real moral limit to this form of government action.

268  C o n te mporary Mo ral Pr ob l em s In advanced societies, the existence of political welfare rights does not change the nature of the underlying human obligation: this remains an obligation of individual owners in the society to use their surplus for the needy. When a society engages in political action to create a public entitlement, it does this to assist its property-owning members in carrying out part of this underlying obligation and to help the needy receive what is their due. This political action in support of individuals’ carrying out their prepolitical obligations is justified in twentieth-century Catholic natural law theorizing by reference to what is called the “principle of subsidiarity.” This so-called principle is really a gathering of several elements of the normative outlook of natural law theory to illuminate the relationships that should obtain among interlocking communities and between any community and its members. The principle can be understood as comprising two moral norms and their rationale. The first of these norms precludes larger and more powerful communities (in particular, political societies) from taking over from individuals and less powerful communities activities that individuals can do on their own. The second norm allows and sometimes requires assistance from larger and more powerful communities for the needed actions of individuals and small groups, when individuals and small groups alone are incapable of doing what is required. The rationale for both norms comprising the principle of subsidiarity is the perfectionism of natural law: the aforementioned claim that people live good lives by carrying out, in their freely chosen actions, the projects and commitments in which they find their personal and communal fulfillment as human beings. On this view, the purpose of organized communities, such as political society, is to facilitate the flourishing of individuals. The first of the norms of subsidiarity is perhaps the better known. It blocks actions of political society that threaten to take over or usurp, rather than assist, individuals and voluntary associations in carrying out their proper responsibilities. One violates this norm when one seeks to take over people’s lives. For example, political ownership of productive property is usually judged by natural law theorists as violating this norm. The second norm justifies the political action involved in establishing welfare rights. This norm holds that activities of political society affecting matters initially within individual or small-group responsibility

Fa i rn e ss i n H oldi ngs   269 are permissible and sometimes required when those activities provide needed help for the proper functioning of individuals and voluntary associations.21 Generally, political society can offer its members an irreplaceable form of assistance by establishing authoritative and legally enforceable coordination of actions that allow its members to live responsible lives and to cooperate with others within and without the polity. In the specific case of welfare rights, political society uses its specific legal authority to set up social conditions, primarily regulations and redistributive tax laws, in which owners are facilitated in carrying out a basic social responsibility that could not otherwise be carried out so effectively. This is a proper application of subsidiarity, for here the individual responsibility that political action facilitates is connected in the proper way with the common good of political society. The proper use of things and the fair distribution of resources is initially the responsibility of individuals, families, and voluntary associations, but their actions in dealing with these matters are appropriately directed by the actions of political society, which alone has the impartial and legal standing to settle authoritatively the disputes that emerge when individuals and associations have discretionary power over their own actions. Thus, political society has the responsibility to protect owners’ rights and to adjudicate property disputes. Likewise, it has the responsibility to see to it that the requirement of common use is not systematically subverted by the conventions that protect owners’ discretion. The social responsibility of owners, I have noted, is rooted in their having a surplus and in the welfare of the needy; even before there are any voluntary or political initiatives to assist them, the needy have a moral right to the help that can be given to them. By requiring owners to pay taxes, political society enforces this right of the needy against owners who might otherwise refuse to act responsibly; in this way, political society vindicates the rights of the needy and gives their entitlements legal form. Thus, political society does no wrong to irresponsible owners who resent or seek to evade the tax, since their prepolitical duty to the needy already included giving what reasonable taxation requires (and probably then some). Nor does it wrong the law-abiding, who accept this political action as a needed way of coordinating the adminis21. See Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press, 1980), 146–47, 159; and Grisez, The Way of the Lord Jesus, vol. 2, Living a Christian Life (Quincy, Ill.: Franciscan Press, 1993), 356–59.

270  C o n t e mporary Mo ral Pr ob l em s tration of an important responsibility connected to their membership in political society. Indeed, the need to coerce the irresponsible, in order to vindicate the rights of those harmed by their irresponsibility and to secure for the law-abiding the benefits of their own social responsibility, is an important reason the development of welfare rights is a proper political action. Legal coercion is a form of the coordination of social action that only political society can properly perform.22 As we have seen, there is an important moral limit to what a polity can require from its citizens: since political society is not entitled to enforce obligations that a person might not have, and because it cannot know the extent of each individual’s various moral obligations, it must respect the discretion needed for responsible living. In a fair regime of redistributive taxation, then, considerable discretion will remain. Many people, however, have a responsibility to help the needy that is not completely fulfilled once they have paid their taxes. In other words, while there are limits on what political society can reasonably do to establish legal welfare rights, this political limit is not a moral limit on what any given owner may owe to his or her neighbors. Political welfare rights implement the underlying moral responsibility—they do not exhaust it. Regardless of whatever policies political society imposes, one is morally obligated to do what one can to help one’s needy neighbor, and this will be a function of one’s capacity to help as determined by one’s resources and one’s other responsibilities. Thus, wealthier owners have a greater obligation to help the needy than do the less well off, and this greater obligation is usually not met merely by paying higher taxes. We can generalize this point to the larger society, too: the level of assistance that a political society is obligated to provide its needy members is higher in a wealthy society than it is in a less wealthy society. Thus, just as there is no universal standard for what an individual owes another, there is also no universal standard for what a society owes its needy. Finally, it should be noted that political welfare rights, as something a society can organize itself to provide, are significantly limited to political society. The underlying obligation to neighborly assistance and the moral right that underlies this obligation are natural and thus exist in all human societies. However, the authority of a polity is limited 22. For Aquinas’s account of the common good of political society and of the specific form of coordination provided by its legal actions, see Finnis, Aquinas, 247–52.

Fa i rn e ss i n H oldi ngs   271 in many ways by its borders, so that it cannot collect taxes or establish meaningful entitlements beyond them. Worldwide versions of the United Way and Catholic Charities probably deserve the support of owners in wealthy countries, and perhaps the support of those countries as well. But without a worldwide polity, there cannot be the political coordination of action that is needed to make the welfare rights served by these groups into legally established rights for all human beings.

Conclusion In this essay, I have developed a natural law argument, based on Catholic tradition, for welfare rights. The argument may be summarized as follows: The importance of the ownership of things within Aquinas’s conception of social life does not compromise his characteristically Christian concern for helping those in need. This concern is generally met when owners have responsibility for things. Yet this same concern, when formulated as a norm of neighborly assistance and applied in modern social conditions, requires a system of welfare rights if society can support such a system without rendering its members servile by depriving them of discretion over their lives. In the conditions of modern life, prosperity, advanced technology, and social differentiation expand the number of people who can benefit from neighborly assistance and increase the quality of the benefits that people can provide for themselves and others. Political society has the competence to guarantee welfare rights because the fair use of things is an element of society’s common good that can only be obtained through the use of political society’s legal authority.

• Section 3 / Bioethics

13 / Personal Responsibility and Freedom in Health Care A C o n te mpo rary Natura l Law P e r s pe ct iv e

Introduction Natural law theorizing about moral and social problems is rooted in the ethical and political writings of Thomas Aquinas. Aquinas’s theorizing, in turn, is indebted to Greek philosophy, especially Aristotle, and to Christian morality as expressed in the scriptures and the earlier tradition, especially as articulated by Augustine and the other fathers of the church.1 Thomistic natural law theory provides one of the most sophisticated and historically important interpretations of what Alan Donagan calls “common morality,” that part of Hebrew-Christian moral tradition that is nonreligious in two ways: (1) it is comprised of precepts guiding actions that are not religious but secular—that is, its subject matter is actions affecting oneself and other human beings, not God; and (2) these precepts are held to be knowable by human reason without religious revelation or theistic conviction.2 Philosophers and theologians working within the natural law tradition have not articulated a developed account of the moral issues surrounding personal freedom and responsibility in health care. But the tradition does contain a general account of personal freedom and 1. Joseph Boyle, “Natural Law,” in The New Dictionary of Theology, ed. J. Komonchak, M. Collins and D. Lane (Wilmington, Del.: Michael Glazier, 1987), 703–8. 2. Alan Donagan, The Theory of Morality (Chicago: University of Chicago Press, 1977), 6–8, 26–31.

275

276  C o n te mpo rary Moral Pr obl em s responsibility that has implications for the exercise of personal discretion in health care. In this essay, I will try to spell out some of these implications. Part of the interest of this exercise is that natural law provides a distinctive and nowadays unfashionable picture of individual and social existence: all of individual and social life is tightly governed by moral norms, and little room is left for persons to do simply as they please. But moral norms are not, on that picture, external constraints on action but requirements of practical reason that become embodied in the lives of virtuous people in such a way that what they want and what is morally required come to be the same. Virtuous living requires not only the acceptance of responsibility but considerable personal discretion about how to integrate and carry out responsibilities. Developing the implications of this picture of human life that bear upon the problems of personal responsibility and freedom in health care matters is not likely to generate a list of moral judgments and a rationale for them that will command wide acceptance. Nevertheless, the exercise of drawing these implications should be of some normative interest. For natural law theorizing is continuous with a developed body of casuistic thinking that has sought to bring the norms of traditional morality to bear on moral and social problems. These norms are bound to remain part of bioethical discussion, and the effort to bring them to bear on questions of personal freedom and responsibility in health care is likely to reveal morally relevant aspects of the issues that other moral approaches overlook or downplay. In this essay, I will not focus on two issues that usually receive considerable attention in discussion of personal freedom and responsibility in health care matters: suicide and abortion. These issues have been thoroughly discussed, and the natural law thinking about them is much better known and developed than that on other relevant matters. Furthermore, the discussion of abortion from the natural law perspective is complicated by the fact that it is regarded not simply as a matter of the health, bodily integrity, or life of the pregnant woman, but as a conflict of rights or interests between two persons. Suicide also differs from most other matters involving a person’s care for his or her life, health, and bodily integrity. For in the case of suicide, the outcome of the successful act does not require further actions and the endurance of further miseries; the suicide no longer exists. Whereas in the case of many other acts and omissions plausibly

P e r so na l Re spo n sibil i t y in He alth C ar e   277 governed by a person’s responsibilities toward his or her health and bodily integrity, the outcomes of these actions often do require further actions and, in the cases where these responsibilities are not fulfilled, the endurance of significant miseries that often affect others and call for their response.3 Another closely related consideration further differentiates the moral issues raised by suicide from those raised by other decisions about one’s life, health, and bodily integrity. In the clearest cases of suicide, the agent intends his or her death; usually the suicide chooses to bring about his or her death so that, being dead, he or she will no longer undergo the evils being alive involves. But people do not have a similar interest in being unhealthy. The harms to health that people often bring upon themselves are not ordinarily (and perhaps not ever) thought of as benefits, even instrumental benefits. There are possible cases of mutilation that approximate the intentional structure of suicide, but these are rare—as, for example, a person who chooses mutilation to make money from his or her mutilated condition as a beggar, circus attraction, or eunuch. More generally, one’s position on the moral or social acceptability of suicide does not appear sufficient to settle the character of one’s personal and social obligations toward one’s body and health, nor do these obligations appear sufficient to fix a determinate position on suicide. Donagan, for example, holds a rather permissive position on suicide and a rather strict and traditional position on a person’s responsibilities toward his or her own health.4 Inferences from either set of obligations to the other are chancy at best. My discussion of personal freedom and responsibility in health care will be carried out in four steps. First, I will discuss some aspects of what is often called “patient autonomy.” I maintain that there is a judgment about the allocation of decision-making authority in health care matters that is so widely accepted that it can be treated as a considered judgment of reasonable people. Second, I will propose a natural law account of this considered judgment. This account includes two components: (1) a view about the special status of the human body and the moral implications of this status, and (2) a view about how decision3. For a discussion of Aquinas’s analysis of suicide, see Boyle, “Sanctity of Life and Suicide: Tensions and Developments within Common Morality,” in Suicide and Euthanasia: Historical and Contemporary Themes, ed. Baruch A. Brody (Dordrecht: Kluwer Academic, 1989), 221–50. 4. Donagan, Theory of Morality, 76–81.

278  C o n te mpo rary Mo ral Pr o bl em s making authority and discretion are to be handled socially. Third, I will consider the limitations on patient autonomy that this account justifies in virtue of considerations about (1) the direct impact of a person’s health care decisions on others, (2) more paternalistic and moralistic considerations, and (3) the commercialization of the use of the human body. Fourth, I will conclude by briefly considering how the natural law approach is to be evaluated in comparison with other approaches to the issues of personal responsibility and freedom in health care and how it can be expected to make a contribution to current discussions.

A Considered Judgment about Patient Autonomy The literature of bioethics contains a great deal of analysis of the right of competent, adult patients to refuse medical treatment and of the closely related obligation on the part of health care personnel to get informed consent from those they assist. Much of this literature focuses on the limits of this right and obligation and on their application to decisions in which the refusal of treatment will predictably lead to death. But discussions of the limits, applications, and possible extensions of this right and this duty presuppose that there is considerable agreement about some central aspects of patient autonomy. I think such agreement exists and that it can provide a useful starting point for reflection upon personal freedom and responsibility in health care. Most of us think that it is the responsibility of a competent adult to seek out health care at his or her discretion and to accept or reject the advice of physicians and others asked to provide diagnosis and treatment. Health care professionals are not, nor do we think they should be, anything like health care police who have authority to command people to seek out appropriate health care or to accept the health care that the professionals think best, or to prosecute those who fail in these regards. Indeed, not only do we think that health care professionals should not act in these ways, we also think that nobody else should either, including political authorities. We believe, I think, that a competent adult’s decisions about his or her own health care are not generally a matter for public decision and that among the private parties involved in such decisions, the person whose health is at stake should have the final say. The health care professionals are seen as agents or helpers of the person seeking health care assistance: we seek their help when we think we need it, and they

P e r so nal Re spo n sibil i t y in He alth C ar e   279 provide it at our request. They are, in effect, our employees, to whom we are related as to anyone else with whom we would contract for a job. We perhaps feel compelled to give the health care professionals more discretion than we would to others with whom we contract and to put more trust in their professional judgment, but the relationship is contractual and not like that between one who has authority and one who is bound by that authority. This picture plainly includes a right of competent adults to refuse medical treatment and an obligation on the part of health care professionals to seek informed consent of those they treat. If those seeking health care had no right to refuse treatment, the professionals would, in effect, be authorities in this matter, and if the professionals were not obliged to get informed consent, the relationship could hardly be contractual. Some of these ideas about patient autonomy can be gathered in the following proposition: there is generally no authority governing the decisions of a competent adult concerning his or her own health care. I believe this proposition to be a considered judgment of reasonable people and so a useful starting point for the analysis of personal freedom and responsibility in health care. My proposition contains the notion of authority as understood within the natural law tradition. But this does not disqualify it from expressing a considered judgment of reasonable people generally. On the natural law account, one person has authority over another whenever the other has a moral obligation to act in accord with the authority’s decision in a matter concerning which the person under authority would otherwise (that is, in the absence of the decision taken to be authoritative) be free to do as he or she sees fit.5 Thus my proposition means that other persons, including family members, health care professionals, and legal or political authorities, do not ordinarily have authority in these decisions; the person whose health is at stake has the final authority, which in natural law terms means there is no authority, except insofar as others are obliged to respect the person’s decision in their actions related to his or her treatment. Putting things in this way does not disqualify my proposition from being a considered judgment, because the idea it expresses is close 5. John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), 233–34 (2nd ed. 2011); Yves Simon, Philosophy of Democratic Government (Chicago: University of Chicago Press, 1951), 7–35.

280  C o n t e mpo rary Moral Pr o bl em s enough to other ways of stating core aspects of what most people would accept in the idea of patient autonomy that the needed implications between such alternative expressions could be developed. Thus, there is no objection to formulating the matter in terms of rights, just as long as this formulation is not theory-laden in a way that would either beg theoretical questions or overstate what is agreed to by most people. The evidence for the claim that my proposition qualifies as a considered judgment cannot in the nature of the case be decisive. If someone has reason to judge the proposition false or knows others who do, then the claim potentially is in need of revision. I have three reasons for this claim. First, this proposition does not appear to be significantly contested in the bioethical literature or by the views or attitudes of most who have dealt with these decisions either theoretically or practically. This seems to be a matter about which there is surprising agreement, though not, of course, concerning the precise formulation I have given it. Such paternalistic attitudes as exist among physicians and other health care professionals either do not reach as far as this core of patient autonomy or are quite implausible if they seek to do so. Second, those who seek to restrict the range of patient autonomy do not deny this proposition, but others. Third, this proposition expresses ideas that have acceptance not simply in the context of modern health care and bioethics but in a rather long legal tradition, as well as within traditional morality. Each of these considerations needs a bit of development. Concerning the first, some health care professionals surely are paternalistic, but it is not clear that even those with paternalistic attitudes would extend them so far as to deny my proposition if starkly presented to them. Many may not want to be bothered about more than the legalistic minimum concerning informed consent, but that does not involve the rather extravagant claim to authority that denying my proposition would involve. Further, some health care professionals may oppose patient autonomy because they do not want to acquiesce in a view of their role that makes them mere technicians, totally subservient to the will of the patient. But my proposition does not have this implication. Patients have the obligation to take seriously the expert advice of health care professionals, and the latter are not ordinarily required to cooperate in actions they feel to be immoral or contrary to good medical practice. Medical personnel and others are not prohibited by my proposition, nor

P er so nal Re spo n sibil i t y in He alth C are   281 by any other obvious moral principle, from seeking to persuade competent adults to choose the health care options they think best. Concerning the second consideration, the well-known essay of Kenney Hegland is instructive. Hegland argues for restricting the application of the right to refuse treatment in cases in which the refusal of treatment will lead to death. But he does not deny the core ideas of patient autonomy or anything like my proposition. Indeed, he accepts them as the framework for his argument. He says: Common law recognizes the right to refuse medical treatment at least in the non-emergency situation. Tort liability is imposed on the physician who renders treatment without his patient’s authorization, or having once obtained it, goes beyond it by rendering treatment different from or more extensive than that authorized.6

This quotation is also relevant to the third consideration: something like my proposition is well established in the legal tradition. One classic statement is the 1914 decision of Benjamin Cardozo while still on the New York bench: Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.7

A similar position is also to be found in the moral tradition as represented by statements of Pope Pius XII during the 1950s. Pius said: First of all, one must suppose that the doctor, as a private person, cannot take any measure or try any intervention without the consent of the patient. The doctor has that power over the patient which the latter gives him, be it explicitly, or implicitly and tacitly.8

Similarly, some years later, Pius said: The rights and duties of the doctor are strictly correlative to those of the patient. The doctor, in fact, has no separate or independent right where the pa6. Kenney F. Hegland, “Unauthorized Rendition of Lifesaving Medical Treatment,” in Biomedical Ethics, ed. Thomas A. Mappes and Jane S. Zembaty, 2nd ed. (New York: McGraw Hill, 1986), 355. 7. Schloendorff v. Society of New York Hospital, 105 N.E. 92 (N.Y. 1914). 8. Pius XII, “The Intangibility of the Human Body” (Allocution to the First International Congress of Histopathology, September 13, 1952), in Papal Teachings: The Human Body, ed. The Monks of Solesmes (Boston: Daughters of St. Paul, 1960), 194–207, 201.

282  C o n t e mporary Mo ral Pr ob l em s tient is concerned. In general he can take action only if the patient explicitly or implicitly, directly or indirectly, gives him permission. . . . The rights and duties of the family depend in general upon the presumed will of the patient if he is of age and sui juris.9

Pius goes beyond what is central to patient autonomy in holding that the patient has duties—that is, moral responsibilities—concerning his or her health. But this further claim is consistent with the aspect of patient autonomy expressed in my proposition. His statements can reasonably be presumed to assume that normally the acceptance or rejection of health care by a competent adult are not public matters in which legal authorities can rightly interfere. Thus, the view of the moral tradition he represents is, not surprisingly, quite similar to the common law view expressed by Cardozo.

A Natural Law Account of Patient Autonomy The account of this core of patient autonomy that emerges from natural law considerations can be developed by considering the idea of bodily intangibility suggested by Cardozo’s statement and prominent in the common law tradition. The idea seems to be that, except in rare circumstances like public emergencies and police activity against people who are acting improperly, human beings should not be touched without their own permission or that of someone qualified to give permission. An account sufficient to explain and justify this idea of bodily intangibility could be developed by conjoining a claim about the special status of the human body with a claim about the appropriate locus of decision-making authority for actions concerned with human bodies. I believe that the natural law tradition contains, at least implicitly, an account of this kind.

The Unique Status of the Human Body According to natural law tradition, the human body has a unique status among the things in the physical universe. The reason for this special status is that the person’s body is taken to be a part of the person. Aquinas, although holding for the existence of a nonmaterial soul, held 9. Pius XII, “The Prolongation of Life” (An Address to an International Congress of Anesthesiologists, November 24, 1957), The Pope Speaks 4 (1958): 397.

P e r so nal Re spo n sibil it y in He alt h C are   283 a version of Aristotle’s view that the human soul, analogously to the souls of other living things, is the substantial form of the bodily human individual. He takes it for granted that humans are animals—rational animals, but animals nonetheless. Not surprisingly, he explicitly denies that a person’s self can be identified with his or her soul: A human being naturally desires the salvation of his or her very self, but the soul, since it is part of the human body, is not the entire human being, and my soul is not myself; whence although the soul achieves salvation in another life, neither I nor any human thereby does so.10

There are surely contrary strains of thought in Christianity, especially in the theology and spirituality influenced by neo-Platonism. But Aquinas represents the tradition accurately; the doctrine of the resurrection of the body, that St. Paul was discussing in the text on which Aquinas was commenting in the above quotation, indicates a regard for the human body that many Christians influenced by neo-Platonism strained to accommodate and often failed to explain satisfactorily. But they accepted it. For this doctrine is surely one of the ways in which the early church separated its views from those of the more “spiritual” philosophers and sects. Christian regard for the body shows up in other contexts as well, as, for example, in the idea of the importance of bodily contact with Christ that underlies the Eucharist, in the idea that the human body is the temple of the Holy Spirit, which is used as a premise in St. Paul’s rejection of fornication and for his judgment that sexual sin has a special malice (1 Cor 6:15–19), and in the doctrine that marriage is an image of the relation between Christ and the church (Eph 5:32). The human body has special status in natural law thinking, and this reflects very basic Christian beliefs. This special status and importance have surely been part of the justification within the natural law tradition of moral obligations toward human bodies and toward human bodily life, including an individual’s obligations toward his or her own life and health. The rejection of most kinds of killing, including, at a fairly early period, the rejection of suicide, the strict sexual morality of Christianity, and the contention of Pius that individuals have duties toward their body relevant to decisions about health care, are all examples of this. It would be a mistake to suppose that this evaluation of the human 10. Aquinas, Super Primam Epistolam ad Corinthios Lectura, XV, lect. ii, in Super Epistolas S. Pauli Lectura, vol. 1, ed. R. Cai (Turin: Marietti, 1953). Author’s translation.

284  C o n te mpo rary Mo ral Pro bl em s body is strictly religious. Unlike Locke’s duty of self-preservation, which is a duty to God,11 natural law theory and common morality more generally regard one’s responsibilities to the human body, including one’s own, as responsibilities grounded in the respect for human beings. Respect for others’ bodies is a part of the respect owed them as rational creatures, and respect for one’s own body, though not a matter of justice, is similarly grounded. It is among the duties to oneself.12 Thus, according to common morality and natural law, failing in one’s duties toward one’s health is an offense against God, but is sinful because it is immoral, because it is in some way a failure to be reasonable. This idea that there are responsibilities to oneself may seem odd and indefensible to many: the very ideas of duty and obligation suggest a social context. Thus, Mill appears to hold that in the private arena in which personal health care decisions are made moral sanctions are inappropriate. But common morality, including natural law, appears to have a somewhat different view of the purpose of moral sanctions than does Mill. For, according to common morality, moral judgments are the implications of being thoroughly practically reasonable and can come into play whenever there are choices to be guided. So morality is not limited to constraints on individual behavior for the sake of social benefit and cooperation. Furthermore, in the natural law tradition in particular, the goal to which practical reason directs the actions of individuals is their full flourishing as human beings insofar as they can achieve that by voluntary action. A central part of that flourishing is living a life in accord with the virtues, and these are not simply other regarding. Donagan states succinctly the central moral norm in common morality’s view of a person’s responsibility for his or her bodily welfare: Since man is a rational creature who is a rational animal, respect for man as the rational creature he is implies respect for the integrity and health of the body. Hence it is impermissible, according to the first principle [of respect for rational creatures], for anyone to mutilate himself at will, or to do at will anything that will impair his health.13

11. Eric Mack, “The Alienability of Lockean Natural Rights,” in Persons and Their Bodies: Rights, Responsibilities, Relationships, ed. Mark J. Cherry (Dordrecht: Kluwer Academic, 1999), 143–76. 12. Donagan, Theory of Morality, 79–80. 13. Donagan, Theory of Morality, 79.

P e r so nal Re spo n sibil it y in Health C ar e   285 Thus, human beings are to be respected because of their rational nature, but Donagan does not think that this means that only rationality has intrinsic value. Human beings have it. Donagan and the philosophical tradition he represents are making no simple mistakes in thinking that although humans are to be respected in virtue of their rationality, it is not simply the rationality of humans but they themselves who are to be respected.

Decision-Making Authority and Discretion If one’s own bodily welfare is taken as a ground for moral obligations toward oneself, the question arises as to why these obligations should not be subject to authority in ways incompatible with the idea of bodily intangibility and my proposition about patient autonomy. This question can arise in the following way: surely, some of the norms that flow from the special status of bodily life are properly enforced by authority—for example, some of those governing actions in which one person harms the person of another. And some of these norms surely imply limitations on bodily intangibility—for example, when a person is treated against his or her will because public authorities judge the treatment necessary for the public welfare. Many people, including natural law theorists, would regard such authoritative limitations on personal discretion justified. But natural law theorists have a special problem to deal with here. Why should authority in health care matters not be extended further, beyond decisions having a clear public impact? For natural law has not provided a clean, clear line between the areas of public authority and private discretion,14 and political leaders are not the only legitimate authorities on the natural law account. Even more importantly, natural law, as already noted, presents a thoroughly moralized view of human life and relationships in which the room for acting simply as one pleases, without regard to some moral responsibilities, is quite limited. What grounds compatible with such a view could justify demarcating a sphere of personal discretion that is virtually immune from the authority of others? To answer this question, it is useful to consider the natural law account of property. Aquinas and the tradition following him simply assume that only nonhuman things can be property. The things over 14. ST I-II, q. 96, aa. 2–3.

286  C o n te mporary Mo ral Pr ob l em s which humans have natural dominion and thus can rightly possess either in common or individually are res exteriores, not human beings. The indefensible statements about slavery in much of the older tradition did not assume that slaves were the property of the owners, but generally assumed the paternalism of Aristotle’s views about natural slaves. Similarly, the natural law tradition contains no concept of self-ownership. The idea that the relationship of a person to one of his or her parts could be like the relationship of use that defines ownership relationships is incompatible with the special status the tradition gives to the human person, including the human body. According to natural law theory, particular property arrangements are established by human convention as a way of implementing several general moral requirements. The most basic of these is the requirement of “common use.” Property is not to be used simply for the advantage of the owner but also for the advantage of others as well—those whose needs might be fulfilled by the use or the fruits of the use of the item in question. But the most relevant of these requirements for present purposes is the idea that use of the things of the world best serves human needs if some individuals have responsibility for the use of some of these things and discretion over how they are to be used. Aquinas thinks that in the world as it actually is, some sort of determination of who has charge over various things is necessary for an orderly and just realization of the goods that can be realized by their use.15 In dealing with property and while maintaining the assumption that the actions involved are tightly bound by moral considerations, the natural law tradition holds that there should be room for individual discretion and freedom of action. The natural law view about the discretion of owners is an application of the natural law view of the principles for allocating decisionmaking responsibility and discretion within any group of people. According to this view, decision-making authority on any given matter should be located in those people who are in a position to act effectively concerning that matter. Such people are ordinarily those who must perform the actions and who are in a position to know the facts, complications, and possibilities for action. Those removed from the situation calling for action are not ordinarily in a position to act according to 15. ST II-II, q. 66, aa. 1–2; Boyle, “Natural Law, Ownership, and the World’s Natural Resources,” chapter 11 in this volume.

P e r so nal Re spo n sibil it y in Health C ar e   287 the requirements of practical wisdom, what Aquinas called prudentia. Perhaps more importantly, if those who are removed from the situation should impose their decisions on those who are more immediately involved, then the latter are deprived of the opportunity for actions that carry out their responsibilities and fulfill them as persons. Recent natural law theorists discuss this general view under the heading of the principle of subsidiarity. The word is derived from subsidium, which means help, and the idea it expresses is that larger communities such as a political society should relate to smaller communities and individuals in such a way as to help them fulfill their responsibilities, not to take over these responsibilities. Another side of this principle is that political authorities do have under certain circumstances the authority to command actions that will contribute to the fulfillment of individual responsibilities.16 This account of the principles for allocating decision-making involves a move from a person’s responsibility to the responsibilities of others to allow that person to carry out his or her responsibility. But it does not include the general thesis that Eric Mack criticizes: that for every duty a person has, others have a corresponding duty to allow the person to carry it out.17 The natural law move is not underwritten by a supposed conceptual connection between duties and rights, but on more general considerations about the point of acting responsibly and the nature of human cooperation. These considerations plainly do not require that all of a person’s duties imply corresponding rights of noninterference. It should now be clear why the discretion of property owners is an application of natural law’s general view about the allocation of decisionmaking authority. The use of some things is needed for people to carry out their responsibilities, meet their own needs, and fulfill themselves. Discretion by persons capable of making good use of certain things is therefore appropriate. The claims of this discretion are clearly defeasible on the natural law conception, and the extent and character of the discretion are based on reasonable convention, but discretion by owners is necessary in the world as it exists. The natural law view of the principles for allocating decision-making responsibility is also part of the natural law account of bodily intangibility (the other part being the personal status of the human body). Most 16. Finnis, Natural Law and Natural Rights, 144–47, 159. 17. Mack, “Alienability of Lockean Natural Rights.”

288  C o n te mpo rary Mo ral Pro bl em s generally, a person’s capability of moving around in an unhampered way within some limits is a necessary condition for fulfilling almost any responsibility and achieving anything at all through human action. Part of what property rights protect is this capability, but bodily intangibility protects it more radically. The application of this consideration to the case of actions undertaken for the health and bodily welfare of a competent adult is especially compelling. Two related lines of reasoning clarify this application. Both depend upon the definition of health. I assume that health refers to well-integrated, harmonious, psychosomatic functioning. As such it is the perfection and flourishing of the bodily life of a human being. Thus, it is a condition of the person, not simply an extrinsic instrumentality. Clearly, health has instrumental value as a condition for many other worthwhile human activities. But this instrumental value is limited: some goods can be pursued in conditions of less than adequate health, and ill health provides a context for the pursuit of some goods—as, for example, developing the virtues of patience and courage. Still, as a condition of the person, in which a dimension of the human self is perfected, health has, at least in most circumstances, features of goods that are sought for their own sake. In addition to its instrumental value, it seems that being healthy is a goal worth pursuing. These considerations about the nature and value of health underlie the application of the idea of bodily intangibility to decisions about the health care of competent adults because they are basic premises in an argument for the conclusion that only these persons are capable of knowing how health concerns reasonably fit into the whole set of commitments, obligations, and concerns that make up their lives as human undertakings. My comments about the nature and value of health suggest that health should have some place within the life plan of an upright person. But they do not, except in a very general way, suggest what that place should be. For the instrumental value of health in any person’s life will be dependent on its relation to other valued activities and will be limited by the play and conflict between these values, including those for which health is not especially important. Even insofar as health is recognized as a noninstrumental benefit, its place in an upright person’s life plan is not settled in a determinate way. For it is surely not the only thing that people seek as an ultimate

P e r so nal Re spo n sibil it y in Healt h C are   289 benefit and plainly can be accorded a status that is unreasonably high. People can become too concerned about feeling and looking good, about avoiding risks to life and health and staving off old age and death. It is useful to distinguish two kinds of relativity here. First, health is surely part of the good about which the virtue of temperance is concerned. This virtue, according to Aquinas, regulates desires in accord with “the necessity of this life.”18 Desires for food, drink, rest, and other bodily satisfactions, although related to life and health, are not necessarily in line with these goods, but can spontaneously move us to inadequate fragments or appearances of them, like feeling or looking good. So, temperance requires that desires relating to bodily life be moderated by consideration of their proper purpose. But other virtues come into play as well—most obviously, courage. A person’s emotional make-up, general state of health, and cultural circumstances obviously are relevant to determining what actions are temperate and courageous, and such factors as these vary considerably. Secondly, even if temperance and courage provide rational structure to the pursuit of health and related bodily goods, there is the further question of how these goods, even rationally pursued, fit into the larger framework of a person’s life. This more architectonic relationship is rationally structured by the virtues of prudence and justice. Here again the demands of the relevant virtues are relative to a number of personal and circumstantial factors. Since people reasonably have different commitments, life plans, and opportunities for action, there are many patterns, compatible with virtuous living, for integrating health with the other goods of life. Thus, responsible concern for health and bodily well-being demands rationally directing our feelings about these things, so that the genuine goods are promoted, and fitting our concerns about health into a larger pattern of human concerns. In both respects, the patterns of responsible action can vary greatly. It is very difficult, therefore, for others to say with confidence whether a person’s placing of health within his or her overall life plan is reasonable or whether the actions a person chooses to take or refuse are in fact properly governed by the relevant virtues. Surely, there is no general norm or set of norms that might give others a basis for decisively criticizing a competent adult’s judgment about such matters. 18. ST II-II, q. 141, a. 6.

290  C o n te mpo rary Mo ral Pro bl em s Thus, for example, perhaps health care concerns could reasonably rank rather low in the life of a person who is healthy by nature or luck or in the life of someone who lacks immediate responsibilities for a family or who feels called to some important but risky or unhealthy occupation; perhaps they should rank somewhat higher in the life of one having serious family responsibilities or one called by one’s profession to provide a good example about health matters to other people. And perhaps actions that seem to others required by a rational concern for health are not in fact compatible with temperance or courage. The second reason for thinking that the person whose health is at stake should be the one to judge what health care is appropriate depends upon another aspect of the nature of health. Since, as I am assuming, health is a harmony of organic and psychic functions, the person whose functions these are has a unique chance to affect them for good or ill. Furthermore, since these are functions that go on throughout life and that are always subject to disequilibrating factors, the protection and promotion of health are generally ongoing undertakings, not objectives that can be realized more or less definitively by a set of actions that can be completed and forgotten. These undertakings are closely connected to other activities that form most of the fabric of everyday social and personal life, such as one’s eating, sleeping, working, and recreation patterns. In short, the fundamental responsibility for the health and health care decisions of competent adults is necessarily their own. Only the individual is capable of exercising the needed virtuous judgments. Furthermore, the individual’s unique position of being the one who experiences his or her own good or bad health and his or her unique capacity to affect it for good or ill, together with the fact that steps to heal, protect, and promote it are ongoing and so intimately tied up with the basic actions that form the fabric of a person’s life, make this conclusion inescapable. Analogous considerations suggest why parents, family members, and close friends are appropriate proxies when people cannot make these decisions for themselves.

The Limits of Patient Autonomy The preceding account of the grounds for bodily intangibility and its application to the case of decisions about the health care of competent adults might appear insufficient because it seems to include such

P e r so nal Re spo n sibil i t y in Health C ar e   291 grounds for overriding or limiting patient autonomy that my proposition about patient autonomy is not justifiable. The objection might be developed as follows. According to the natural law conception, there appear to be grounds for defeating any of the normal presumptions about the allocation of decision-making authority. This is clear in the case of property. There are a variety of morally defensible property arrangements, and the rights of owners are defeasible. The same appears to hold more generally, and so also in the case of patient autonomy. So, one must conclude that nothing as general or normatively powerful as modern conceptions of bodily intangibility and patient autonomy or their applications to health care decisions can be justified on natural law grounds. But the analogy of patient autonomy to property rights is weak in two respects. The first is that the requirement of common use that is the ground for the defeasibility of property rights has no application to persons and their parts (which are what bodily intangibility protects). Property rights may rightly be overridden on the natural law account only when the use of the things owned plainly does not serve human needs in a reasonable way. This can occur in situations in which one person, faced with necessity, must take the property of another who has no similarly exigent need for the thing taken, and it can happen as a matter of public policy when a government changes property arrangements to better serve the common good. So, the basic ground for overriding property rights depends on the fact that they are in things that have a use. But persons and their bodily life and activity cannot be reasonably added to the category of things to be used; they are the ends for whose sake the use of nonhuman things should be made. Thus, even if one’s decisions about one’s health are tightly bound by moral norms, including norms demanding service to others, one’s bodily life and health are not simply things to be used for other’s purposes. It is one’s own responsibility to judge how one is to fulfill these responsibilities. The second disanalogy between property rights and patient autonomy lies in the fact that the contingency of property arrangements upon reasonable convention does not hold in the case of patient autonomy. Property arrangements depend upon reasonable convention because there is no unequivocally best way for all cultural and social conditions to allocate the responsibility for things of the world and the goods that can be developed from them. But this kind of contingency does not obtain when it comes to allocating decision-making authority for health

292  C o n te mpo rary Mo ral Pr obl em s care. Technology plainly changes the possibilities for actions in pursuit of health, but does not affect the basic considerations that make the application of bodily intangibility to these matters so compelling. So, the analogy between property rights and patient autonomy as conceived on natural law grounds does not provide convincing grounds for supposing that patient autonomy can be easily overridden. But perhaps there are other reasons for thinking so. One such reason is suggested by the fact that one of my arguments for applying bodily intangibility to a competent adult’s health care decisions appeals to the rather ideal condition of a virtuous person who has a developed, rational life plan. Could not the autonomy of those less virtuous and integrated be rightly set aside in favor of some authority? Two factors count against such an effort. First, people can have authority only where there is some real possibility that the actions they can command are likely to promote the goods at stake more effectively than if there were no authority. For the reasons indicated in the second argument for locating this responsibility in the person whose health is at stake, it seems unlikely that another authority could be effective in significantly promoting the health of a competent but irresponsible adult. Good luck or unhealthiness seem to be the prospects for such persons. For similar reasons, moralistic motivations for the use of authority to coerce the irresponsible to act responsibly are unrealistic. Taking over health care responsibilities from individuals would seem to involve taking over the responsibility of much of their daily lives, and that can hardly be thought to be helping a person to act responsibly. Secondly, authorities are not generally in a position to distinguish between those who are virtuous and those who are not with respect to health care matters. The variability of possibly reasonable attitudes and decisions about health care matters is one of the things that makes personal responsibility for them so compelling, and this very factor puts putative authorities in a difficult epistemic position. Still, these two factors do not exclude all attempts to introduce authority into decisions about the health care of competent patients. For there are some steps compatible with them that at least public authorities might take. There are some positive and negative norms that govern a person’s health care that are of general application and sufficiently clear to enforce—for example, laws prohibiting some unhealthful activities, such as taking certain drugs, or requiring the use of seat belts in automobiles, or a requirement that everybody get an annual checkup

P er so nal Re spo n sibil it y in Health C ar e   293 (assuming that this service were readily and cheaply available as it is in Canada). Furthermore, if people have obligations toward the health of others, as natural law theory surely implies, then there may be other enforceable requirements that, although compatible with the limitations for which I argue in the previous two paragraphs, would constrain patient autonomy substantially. The natural law account I have been developing does not exclude all such uses of authority, but admitting this adds little to the limitations on patient autonomy that are widely accepted; for example, public authority can override the refusal of treatment if it is reasonably judged that the refusal will put others in danger or cause the person refusing to fail in fulfilling an important social duty.

Limits Based on Concern for Others The widely accepted limits to patient autonomy are not based on a concern for the competent person’s health but on the impact of the person’s decisions on others. There is likely to be dispute about the cases in which these limits are invoked as a ground for overriding patient autonomy, but when it is clear that the exercise of patient autonomy will place others in real danger or cause important social responsibilities to go unmet, the use of public authority appears to be operating within its proper sphere and to be justified. For in both cases public authority is commanding what those commanded already have a responsibility to others to do and does so in conditions under which the failure to command would be unfair to those who depend upon public authority to protect the common good. Thus, for example, requiring inoculations for everyone can be justified when there is strong reason to think that failure of some to be inoculated will put others at significant risk. The most common and plausible limitations on individual freedom justified by this line of reasoning are those in which bodily intangibility and patient autonomy are not violated or are violated only in minimal ways—for example, activities that cause various forms of pollution, spread disease, or put others’ life and health at risk. Still, as the inoculation example suggests, there is here a rationale for some limitation of a person’s discretion concerning medical treatment. It is important to note that this line of reasoning justifies only the use of public authority to command actions contrary to a person’s exercise of his or her discretion. This kind of authority cannot be exercised

294  C o n te mporary Mo ral Pr ob l em s by those acting in a private capacity, because the common good that justifies the exercise of authority is the responsibility only of public officials acting in their public capacities. So, unless we are to suppose that health care professionals are public authorities, they cannot on their own override patient autonomy on these grounds. The supposition that health care professionals are public officials seems indefensible because of the kind of work they are expected to do. Thus, the authority to command actions incompatible with patient autonomy is very restricted. But public officials are not limited to protecting the common good from obvious harm; they can take actions to promote it. So, if people have obligations to the health of others, public authorities can surely command some of them. And natural law supposes that people do have obligations to other people. The obligations of parents bearing on the health of children and family members are perhaps clear enough, but there also are neighborly responsibilities toward the health of others. The common vulnerability and need for help of those who are sick, together with considerations of fairness based on the Golden Rule, establish an obligation on the part of all people to help others who are sick insofar as they can do so compatibly with other responsibilities. The number of people each of us is obligated to help is potentially great. And this number can be enlarged by way of social cooperation through such mechanisms as socialized medicine and health insurance. But the kind of help we might be obliged to provide cannot be such as to take over people’s responsibility for their health care. For that, as I argued earlier, is beyond our power. So, the assistance we are obliged to give is neighborly, not familial—that is, not like the obligations of parents toward their minor children. Thus, while we might have an obligation to pay for someone’s health care, we are not thereby entitled to tell them what health care to get. Nor, for the same reason, do public officials have any such entitlement. This general responsibility for the health care of others has some pointed implications that bear on our discretion toward our own health: we should be ready to give blood, to donate our organs when we have died, and sometimes even to donate organs while alive. Could any of these and similar responsibilities be proper objects for the commands of public authorities? If adequate provisions are made for those who conscientiously object to the use of cadaver organs, there might be justification for the use of public authority in this area. No person

P e r so na l Re spo n sibil it y in Healt h C are   295 is touched; patient autonomy is not violated; and there is an obvious good at stake that might best be served by public action. But the other cases involve actions that do involve touching people and overruling patient autonomy. The requirement that people give blood might be reasonable in emergency situations, but as a general regulation it would seem to be a potentially disruptive intrusion into people’s lives. Its enforcement would be even more intrusive. Any sort of general social requirement that a person give his or her extra kidney, or part of a liver, or bone marrow appears to involve just the sort of ignoring of how such actions and their effects will fit into the person’s life as only personal discretion can remedy. Furthermore, if the distinction between persons and things is to be maintained in practice, and the status of persons as ends of use and not items for the use of others is to be maintained, such actions as these cannot be commanded. One who, quite literally, gives of oneself, either out of generosity or a sense of duty, is not being treated as a thing to be used, but is fulfilling himself or herself through responsible action. But one whose very self is invaded, without regard for his or her judgments about the matter, does appear as being treated as a mere source of materials for use by others. In short, while natural law theory includes the idea that individuals have positive and negative responsibilities for the health of others, it seems that the only positive responsibilities that can be reasonably commanded by social authority are those that do not violate bodily intangibility and patient autonomy, and that the only negative responsibilities that can be reasonably commanded are either those that do not violate bodily intangibility or prohibit actions that clearly pose a danger or other harm to others. Responsibilities to others, including to the health care of others, do not provide grounds for significant limitations on patient autonomy.

More Paternalistic Limitations? For many people, no doubt, a consideration of such direct responsibilities to others would be the end of any consideration of what might be legally commanded in the matter of health care. For many assume something like the harm principle, which would rule out any consideration of the use of political authority in self-regarding acts such as a person’s decisions about his or her own health. But natural law theory

296  C o n te mpo rary Moral Pr obl em s does not contain a rationale, such as the harm principle, for a sharp and clean division between the public domain where legal enforcement is ruled out of bounds. According to Aquinas, some acts of all the virtues can be commanded by public authority on the condition that they can be ordered to the common good of political society either immediately or mediately. He says: But law, as was stated above, is ordained to the common good. Therefore there is no virtue whose acts cannot be prescribed by the law. Nevertheless, human law does not prescribe concerning all the acts of every virtue but only in regard to those that are ordainable to the common good—either immediately as when certain things are done for the common good, or mediately as when a legislator prescribes certain things pertaining to good order (bonum disciplinam) whereby citizens are directed in the upholding of the common good of justice and peace.19

This draws a line between the public and the private domain that is much less obvious, permanent, and sharp (though not, I think less intuitively plausible) than that drawn by the harm principle. And it raises the question of whether legal authority might command some actions that appear to benefit primarily the person doing the action and prohibit some actions that appear to harm primarily the person who would do them. The cases, mentioned earlier, of requiring seat belts and regular medical checkups exemplify the first possibility, and the case of prohibiting some unhealthy activities like taking certain drugs exemplifies the second. Someone might suppose that my examples are all cases in which authority is justified, if at all, on exactly the same grounds as in the cases discussed previously: because of the direct social impact of following or violating the regulation in question. But that seems implausible. For surely the people who will derive the greatest benefit, most immediately, from such laws are the persons whose life and health are protected by obeying them. The significant impact on others, if there is any, will come as a result of this benefit. And, equally surely, the motivation for deliberating seriously about making such matters subject to public authority is at least partially paternalistic. So it is necessary to consider whether such paternalistically based legislation, which appears to go beyond what could be justified by the harm principle, can be justified 19. ST I-II, q. 96, a. 3; author’s translation.

P e r so nal Re spo n sibil it y in He alth C are   297 on natural law grounds, presumably because of its indirect connection to the common good. Plausibly, a person’s concern for his or her health is related to the common good. For one’s responsibility for one’s health has a twofold social dimension: (1) health is instrumental to carrying out one’s commitments, and thus maintaining health affects others; and (2) ill health makes moral demands on others because of the responsibility of all to provide assistance to the sick. And the commanding of some actions might plausibly contribute to people’s developing a responsible concern for these social aspects of their own health. So, personal health concerns plausibly have some connection to the common good of a political society and so would seem to be subject to public authority. But this is not sufficient to justify the use of public authority in this context: considerations in favor of bodily intangibility and its application in patient autonomy also need to be taken into account. Only one of my examples involves health care personnel and the need for one person to touch another. The others simply involve respectively a person’s routinely doing a simple act and a person’s refraining from doing certain kinds of things. And it is the case of the mandatory checkup that is the most doubtfully justifiable; this requires some initiative, more disruptive than fastening a seat belt, and would seem to justify public scrutiny of a person’s life that could prove to be even more disruptive. Thus, I think that on natural law grounds authoritative interventions for the sake of a competent person’s health should be limited to prohibitions of certain actions and to the prescriptions of certain actions that are easily undertaken without any significant disruptions of one’s life. The actions that might plausibly fall into either of these classes, but especially into the latter category of prescribed actions, are likely to be small. Consequently, such paternalistic interventions as might be justifiable will not simply swamp the idea of patient autonomy and render the qualifier “generally” only a functional term in my formulation of people’s considered judgments about patient autonomy. Moreover, the reasons underlying bodily intangibility and patient autonomy themselves provide a direct limit on how many actions could reasonably be authoritatively commanded or prohibited. For if there were a great many actions commanded and prohibited, even if each command demanded doing only fairly simple and routine things and each prohibition avoiding some definite performance, there would be

298  C o n te mporary Mo ral Pr ob l em s significant interruption of a person’s life and a compromise of the discretion appropriate in living it. A closer look at the relevant positive and negative duties makes clear how short the list of actions that might plausibly be commanded or proscribed by public authority actually is. The positive responsibilities of a person toward his or her health are to do actions or undertake projects that are described in fairly general terms—such things as taking appropriate exercise, learning and making use of up-to-date information about health matters, developing habits of personal hygiene, and so forth. Such generally described acts and projects are difficult to justly command, because it is not clear what counts as obeying the command. So the basic general responsibilities themselves are not good candidates for enforcement. The more specifically described and discrete actions by which people carry out these responsibilities are a more plausible subject for command—things like getting an annual checkup or inoculations. But none of these more specific and discrete actions is sufficient for fulfilling the general obligation it implements, nor, in many cases, is it strictly necessary. These facts put in question both the utility and the fairness of commanding actions to implement people’s positive obligations toward their health. Furthermore, many of the discrete actions that might be commanded, such as brushing one’s teeth, bathing, or eating regularly, would be actions within the flow of everyday life whose disruption public authority can justify with great difficulty. The plausible candidates here are, on examination, very few. With respect to the negative responsibilities to one’s health there is an analogous difficulty also rooted in the character of the general obligations. In Donagan’s language, we are not to impair our health or mutilate our bodies at will. But the actions that this norm excludes are not easily distinguished from morally justified actions. The actions that are excluded are much less easy to identify by public criteria than actions like murder, adultery, theft, and perjury. For example, we should, no doubt, avoid eating foods that are harmful to health, but social responsibilities or other good reasons may require us to eat what we know is harmful and accept that harm as a side effect. So, when the issue is avoiding harms to health or risks of such harms, the norm must prohibit avoidance when there is not good reason to perform the action. And it is generally difficult for outsiders to say when this condition obtains. Thus, legal prohibition of taking some drugs, to the extent that it is based on a concern for the health of the drug taker, must assume

P er so nal Re spo n sibil it y in Health C ar e   299 that there is no good reason for taking them. I think that condition can be met, but not for many activities that affect one’s health negatively. Mutilations might seem to be an exception to this and perhaps would be if anything as general as Kant’s rejection of mutilation were justifiable. But natural law theory in the twentieth century has rejected the older absolutism of common morality about this. This rejection is expressed in the so called “principle of totality,” which allows the removal of an organ that is dysfunctional, or even the removal of an organ that is itself healthy but whose removal is necessary for proper biological function. This principle made clear that removal of the organ as such was not the morally decisive factor. Proper respect for the human body is preserved by doing what one can to preserve organic functioning of the whole human body.20 This focus on organic function as distinct from considerations of simple bodily integrity became the basis for justifying the removal of organs for transplant. This can be justified, according to the natural law account, if functioning is not compromised. So, one who gives up a kidney that is not needed is not sacrificing function but merely accepting a risk to good functioning in the future for the sake of helping another. The case would be different if one wished to donate a cornea while still alive, since both eyes are needed for proper sight. This, it seems to me, is not justified on natural law grounds. Still, this line of analysis vindicates Donagan’s judgments about mutilation that “the only conditions on which most people would be inclined to submit to it coincide with those in which it is permissible according to the first principle to do so.”21 There is a notorious exception to Donagan’s observation in the natural law tradition: the rejection of contraceptive sterilization. It seems to me that the traditional Catholic position, though increasingly disputed within Catholic circles, draws the correct implications from natural law principles. Nevertheless, given that this judgment concerns so personal and so controversial a matter, there is no likelihood that it could become a matter for legal prohibition. In short, the possibility that the list of negative responsibilities toward a person’s health that could reasonably be prohibited by public authority might become oppressively long is not significant. 20. John Gallagher, “The Principle of Totality: Man’s Stewardship of His Body,” in Moral Theology Today: Certitudes and Doubts, ed. D. McCarthy (Braintree, Mass.: Pope John Center, 1984), 217–42. 21. Donagan, Theory of Morality, 79.

300  C o n te mpo rary Mo ral Pr o bl em s Limitations Based upon Commercialization of the Body It is possible to sell body parts and to otherwise make use of the human body commercially, as, for example, by surrogate mothers who on the basis of a contract help a couple to bear a child in one or another way, and people who under exigent circumstances mutilate themselves to obtain a job or beg. Some aspects of such activities have already been considered, but it is worth considering some of these cases separately because they raise difficult questions for any approach that recognizes the discretion that competent adults should have concerning their own health and bodily life. I assume that whenever commercialization of the human body is morally wrong there is good reason for legal prohibition, since buying and selling are public activities that need some form of regulation. But even here the reason is not necessarily decisive. Authorities might reasonably judge that the side effects of prohibiting some commercial transactions are too high—for example, that enforcement costs are too high or that unacceptable black markets are created. For our purposes the most interesting cases of commercialization of the human body are those in which the action involved is morally objectionable, if at all, because of the commercialization. Selling blood, bone marrow, or a kidney are examples. Many people think that commerce in these items is a bad idea, even though giving blood and donating organs is or can be a very good thing to do. And very many appear to think that it would be preferable not to commercialize these activities even if there are no decisive moral objections to doing so. There are specific objections to selling one or another of these things: that the chances of contaminated blood are too great if it is treated as a commodity, that commercializing organ donation provides an undue inducement for the poor to take health risks that they can least afford, or that commercialization is simply a way for the rich to exploit the poor. Questions of these kinds are difficult to answer and need to be addressed before social decisions about selling body parts are settled. Much of the thinking needed to answer them is not moral analysis. Still, the issue of undue inducements and exploitation calls for some philosophical comment. First, let us consider the matter from the point of view of the potential donor in such an arrangement. I see no ground for thinking that it would necessarily be wrong for such a person to sell his kidney (or perhaps a slice of his liver or some bone marrow). There is nothing wrong

P e r so na l Re spo n sibil i t y in Healt h C ar e   301 with such a person’s donating his kidney to his son to save the child’s life: he chooses to have his kidney removed not to impair his functioning but for a good purpose, and he accepts the risk to his health as a side effect. Now let us consider a different case: suppose his son, who does not have renal problems, will starve to death unless he gets some money and can get it only by selling his kidney. The structure of the action is the same as that of the first scenario except that there is one more step in the instrumental reasoning: it’s getting the money that saves his son’s life. Furthermore, he is still saving someone’s life more immediately by his donation—the purchaser’s. And this, as we have seen, is something he might well have a reason, indeed a morally compelling reason, to do. This suggests that commercializing the donation of organs might facilitate cooperation in health care matters. So commercialization as such cannot fairly be designated as an inducement for people to act irresponsibly in regard to their health. Now let us consider the matter from the perspective of the purchaser. This person can surely have a good and morally compelling reason for acquiring an organ by way of a transplant. Presumably he can seek to get it in any way compatible with his whole set of moral responsibilities. So using financial resources available for such a purpose is not necessarily wrong. But is he exploiting the donor? Surely, not necessarily. For the donor can consider the proposition and, unless we make the elitist supposition that those ready to sell organs are not capable of exercising rational discretion, can consider it responsibly. Among the things to be considered is his own obligation to take some risks to help others. Natural law theory, like common morality more generally, is not indifferent to the exploitation of the poor by the wealthy, but it cannot underwrite an absolute objection to a social arrangement based on abuses that that arrangement makes possible. Thus, it is difficult to see how the objection to selling organs based on the dangers of undue inducements and exploitation can simply rule it out. But there is a deeper and more general objection to selling blood and organs, which surely underlies Kant’s horror at the idea of selling even one’s finger. That, of course, is the idea that the human body is different from other things, that as a part of the human person it has a dignity that makes putting a price on it a kind of defilement and falsification of its status. But does selling blood or organs imply that they are property and so things to be used, not parts of the person? Once they are distinct from the person’s body, they are very like

302  C o n te mpo rary Mo ral Pr obl em s other things. There does not seem to be moral objection to using hair that is shorn from a person for various purposes, and even to putting a price on it; so also, it would seem in respect to blood or organs. So the problem must be in the taking itself. And taking such things is not itself incompatible with respect for the human body, since organs and blood can rightly be taken. So, the objection must lie in their being taken to be sold. Is taking blood or an organ from the body so that it can be sold treating that part of the person as a mere thing? It is plausible to think that if such things are taken against the will of the person from whom they are taken, the answer must be affirmative. But that is not the case under consideration. For the issue concerns any example of voluntarily selling one’s organs, and the best of these cases are more like the situation in which a person gives of himself or herself to benefit others out of a sense of duty or generosity. In these best cases, the seller has morally compelling reasons to sell his or her organ, and so the only difference from donation without payment seems to be that some of the benefits are mediated by the payments received. Thus, I think that if selling organs necessarily shows disrespect for the human person by treating a human part as if it is a subhuman thing, then the argument has not yet been made. Selling organs sometimes might involve this sort of disrespect, for example, when done without any regard for one’s bodily welfare, but it is hard to see how giving organs can be permissible and selling them always wrong. The case of surrogate motherhood is somewhat different and more difficult. No doubt, one’s views about the legitimacy of contractual relationships in this area will depend on one’s moral evaluation of such things as artificial insemination and third-party-involved procreation. But even if we set these opaque matters aside, the use of a woman’s body to carry a baby under contract raises special problems. For there are imaginable cases in which it seems that one woman could rightly carry the baby of another. Thus, if techniques were developed that would allow the transferring of an embryo from one woman’s womb to another’s, there would seem to be cases in which performing the transfer would be morally justifiable—for example, to save a fetus from a spontaneous or deliberate abortion. Could such a transfer reasonably be the object of a contract for money? Here the thing being used is not what was formerly a part, but has been made distinct from one’s bodily self and its vital activities that are one’s own functions. In other words, here what is being sold is not

P e r so nal Re spo n sibil it y in Health C are   303 a thing like an organ but a service; it is more like contracting for a job than selling something. And the service a woman sells here is not a definite action or a set of performances that can be done like the tasks that make up a day’s work. The service seems rather to be a portion of her living over a period of time. So any such contract would seem to give others a claim over the woman’s bodily life that is potentially quite intrusive. An analogy to slavery, admittedly of short term and somewhat limited scope, comes to mind. For the woman is putting much of her living under the discretion of others. But these considerations are not obviously decisive: if one can perform such a service legitimately without pay, then the very business of putting one’s life under this kind of discretion of others need not be wrong, and that surrender of discretion is central to the analogy to slavery. Think of an altruistically minded woman who wants to provide this service on a regular basis on the analogy of running a very early foster home for babies, but who needs compensation to support herself and do the job. If the resources of natural law do not run out here, my ability to make use of them does. Finally, there are the uncommon but unsavory cases in which people are tempted by financial gain to mutilate themselves to make themselves appear freakish or pitiable. It seems wrong for people to mutilate themselves for such reasons, but at the same time it is easy to excuse them. For people would not consent to such mutilations unless they were in dire circumstances. It is also clearly wrong for others to induce them to do such things by paying them. So, such inducements are reasonably prohibited by law. But in some cases the financial inducement need not be provided by another: consider the case of the desperately poor person who believes that crippling himself to beg more efficiently will greatly increase his chances of survival. Perhaps political society has a duty to keep people from this kind of desperate situation, but if it cannot do this, then it is hard to see how it can justly prohibit people from doing what they need to do to stay alive. In short, the limitations on the discretion of competent adults concerning their health that is provided by considerations of commercialization seem to be rather fewer than one might expect.

Concluding Comments The argument of the first three sections of this essay can be summarized as follows. The presumption in favor of the discretion of competent

304  C o n te mpo rary Moral Pr obl em s adults in decisions concerning their own health care is a very strong one. Indeed, at least one aspect of this discretion can be formulated in a proposition that is plausibly taken as a considered judgment of reasonable people: that there is generally no authority governing the decisions of a competent adult concerning his or her own health care. Natural law theory provides an account of this judgment, an account that allows us to understand the point of bodily intangibility and patient autonomy within a larger framework of moral obligations and social relationships. This account does allow that there are limitations on bodily intangibility, but these limitations do not go beyond what people are generally willing to allow, and they surely do not contradict relevant considered judgments. These limitations are not established by the application of a general principle but by casuistry that brings a host of moral considerations to bear on proposals for limiting patient autonomy. This line of argumentation does not, of course, show that the natural law approach to these matters provides the best account of them. To determine that, two very large questions would need to be addressed: (1) whether other normative approaches can provide an account of patient autonomy, and (2) how natural law and alternative moral theories would stand up in the larger dialogue about ethical theory. I cannot enter into these complicated matters here. Suffice it to say that it is not clear that natural law will fare badly in either of these comparisons. For example, it is not clear that utilitarianism does provide an account of patient autonomy. More generally, it is not clear that anything like the harm principle can be justified on utilitarian grounds or that the harm principle marks the correct line between the area of private action and the area where legislation and public sanction are appropriate. Locke, by way of contrast, does seem to have an account of patient autonomy, but his account includes the notion of natural rights as side constraints and sharply separates considerations based on the good and on individuals’ personal responsibilities from considerations about rights and social relationships. The sharp dichotomies that these claims introduce into moral and social life seem to many to be problematic and surely raise fundamental issues in moral theory. The more integrated approach of natural law theory avoids these difficulties, though, of course, it has plenty of its own to face. So in the dialectic between moral traditions and theories, natural law is not without resources. One of these resources that emerges clearly in the effort to deal with

P e r so nal Re spo n sibil i t y in Health C ar e   305 questions of individual discretion in health care matters is the capacity of natural law theory to deal with the important objection that it is blind to contemporary concerns about personal freedom. As noted at the start of this essay, natural law theorizing includes a highly moralized view of social relationships and moral life, which many believe to be overly moralized and authoritarian. It is true that natural law leaves little room for action based simply on personal desire or preference. But if natural law does provide a reasonable justification for patient autonomy within an account that makes room for significant individual discretion and limitation upon the authority of political leaders and others having social status, then at least this objection to its relevance to contemporary discussions can be set aside. Ethical approaches that emphasize the moral perfectionism required by a life of virtue are surely in conflict, at a deep level, with those that assume that there must be considerable room for people to do just as they please. But if the argument of this essay is on the right track, these perfectionist approaches cannot be dismissed as simply authoritarian or paternalistic.

14 / A Case for Sometimes Tube-Feeding Patients in Persistent Vegetative State

“Persistent Vegetative State” (PVS) is the name, coined by physicians and now widely used, of a specific condition of drastically impaired consciousness. That condition is characterized as “vegetative” on the basis of the behavior of patients, not of their underlying neurological disorder or disorders.1 This behavior includes the following features. The patient has periods of wakefulness and sleep, in contrast to patients in coma who are in a sleep-like condition. During the periods of wakefulness the patient exhibits reflex actions and can swallow small amounts of food and water by mouth, but does not exhibit voluntary action or psychologically meaningful interaction with the environment. Patients in a vegetative state breathe spontaneously.2 Vegetative state can be transient, but it can persist. This persistence becomes medically and morally significant when the vegetative state continues long enough to justify an expectation that it will be permanent—that is, if the vegetative state continues to the point that there is no medical prospect that treatment will have any effect on the patient’s severely impaired consciousness. The medical judgment that the vegetative state of any given patient is permanent is based on prospective trials and clinical observation; it depends on such considerations as the age and condition of the patient and the cause of the neurological disorder, not on direct observation of this disorder.3 I assume that this medical 1. Bryan Jennett, “The Case for Letting Vegetative Patients Die,” Ethics and Medicine 9, no. 3 (1993): 40. 2. Institute of Medical Ethics Working Party on the Ethics of Prolonging Life and Assisting Death, “Withdrawal of Life-Support from Patients in a Persistent Vegetative State,” Lancet 337, no. 8733 (1991): 96–97. 3. Institute of Medical Ethics Working Party, “Withdrawal of Life-Support,” 96–97; Jennett, “Case for Letting Vegetative Patients Die,” 40–44.

306

T ube-Fe e din g Pati en ts i n PVS   307 judgment can be confidently made and that the central moral issues surrounding the treatment of patients in vegetative state arise only when the judgment of permanence has been properly and confidently made. The persistence of PVS suggests another of its aspects—namely, that patients in this condition can continue to live, some for years, if they are provided with food and water by way of a nasogastric tube or gastrostomy and are provided with other care routinely given to severely disabled persons. In other words, these patients are not dying, at least in one clear sense of that term. In contrast to patients who are expected to die within days or weeks from their illness or injury no matter what steps medical professionals take, many patients in PVS are not likely to die if the care indicated is provided.4 Another feature of patients in vegetative state is especially relevant to the moral discussion—namely, the belief that they are not capable of experiencing pain. Unlike the behavioral characterization of the vegetative state, this belief is based on anatomical and biochemical evidence concerning neurological activity.5 While there might be philosophical and evidential questions about the basis for this belief, it is not unreasonable, and I will proceed on the presumption that patients in vegetative state cannot, in any humanly important sense, experience pain. This brief characterization of PVS leads to the moral questions about the care of patients in PVS that have puzzled medical practitioners and health care decisionmakers and have led to widespread bioethical debate. On the one hand, the persistence of the vegetative state suggests that efforts to sustain the lives of patients in PVS have about them a kind of futility. But on the other hand, the decision to forgo these efforts, in effect to let these patients die, seems without precedent, since the patients can be kept alive without apparent harm to them or excessive burden to others. In short, there is reason to consider withdrawing the care that keeps patients in PVS alive, and there is reason to resist that consideration. The discussion of the care of patients in PVS has focused upon the artificial provision of food and water by way of either a gastrostomy or a nasogastric tube, which are necessary for prolonged survival.6 Plainly, 4. Institute of Medical Ethics Working Party, “Withdrawal of Life-Support,” 97. 5. F. Plum, “Artificial Provision of Nutrition: Medical Description of the Levels of Consciousness,” in Critical Issues in Contemporary Health Care, ed. R. Smith (Braintree, Mass.: Pope John Center, 1989), 57–58. 6. Institute of Medical Ethics Working Party, “Withdrawal of Life-Support,” 97.

308  C o n te mpo rary Mo ral Pr o bl em s the normative question concerns not only these artificial methods for delivering food and water, but any actions that prolong the patient’s life, including spoon-feeding.7 Nevertheless, I will focus upon the provision of food and water by these artificial means, unless I explicitly note otherwise, but I will avoid repeating explicit references to these methods for delivering food and water. Of course, not all will recognize some reason on each side of the decision to withdraw these forms of care. For the precedents that cause resistance to the consideration of withdrawing them presuppose that withdrawing care and letting people die can be morally distinguished from intentionally killing them, which is taken to be impermissible and presupposes that they are persons. Those who believe that patients in PVS are not persons, or that killing them is permissible even if they are, are not likely to be troubled by the lack of precedents having such presuppositions. Positions on the treatment of patients in PVS have been developed by those accepting such beliefs; they are controversial.8 But these beliefs are marginal to the perplexities and debates about how to care for patients in PVS. These perplexities and debates take place within and between the minds of people sufficiently formed by the assumptions of traditional medical ethics that the lack of precedent for withdrawing food and water from patients in PVS is a consideration to be taken seriously. So, while recognizing that there is a more radical approach to these questions, I will consider the controversies about the care of patients in PVS that arise from within the more traditional perspective of those who assume that patients in PVS are persons who may not be intentionally killed and therefore believe that withholding this kind of care can be justified only if it can be squared with the precedents according to which doing so is distinguishable from intentional killing.9 Within that perspective a set of possible moral positions on withholding these forms of care emerges. At one end of this spectrum is the position that withdrawing them is a moral obligation—that is, that aspects of the condition of PVS or of the necessary requirements for the care of people in PVS are by themselves sufficient to establish a moral 7. J. M. Finnis, “Bland: Crossing the Rubicon?,” Law Quarterly Review 109 (1993): 331. 8. Joseph Boyle, “The American Debate about Artificial Nutrition and Hydration,” in The Dependent Elderly: Autonomy, Justice, and Quality of Care, ed. Luke Gormally (Cambridge: Cambridge University Press, 1992), 32–33. 9. Institute of Medical Ethics Working Party, “Withdrawal of Life-Support,” 97.

T ub e-Fe e din g Pati en ts i n PVS   309 requirement to withdraw food and water. A weaker position is that it is morally permissible to withdraw these forms of care from patients in PVS. Since these two positions are not clearly distinguished in the current discussion, and since the arguments for them are so similar, I will consider only the weaker position according to which withdrawing these forms of care is morally permissible. At the other end of the spectrum is a second position—that it is never permissible to withdraw food and water from a patient in PVS. Between these extreme positions are, thirdly, a spectrum of positions according to which some circumstance of the patient (beyond the fact that he or she is in PVS) or the overall situation of the patient’s care (beyond the necessary requirements for caring for such patients) provide reasons why the withdrawal of these forms of care is permissible or even obligatory. I will consider in detail the first of these normative positions, which I will seek to refute, and then briefly the other two, with a view toward indicating where I believe the correct normative position lies.

The Benefits of Continued Treatment The reasoning that supports the view that a patient’s being in PVS is by itself sufficient morally to justify withdrawing care, and in particular the provision of food and water, starts with the apparent futility of providing such care and seeks to show that the precedents that cause resistance to that line of reasoning do not in fact do so, but may indeed support it. This reasoning proceeds most simply if there is simply no benefit for these patients in their continued life. It is clear that, by any estimate, the benefits of keeping a person alive who has no prospect of recovering from the radically impaired consciousness of PVS are small. The condition of these people is one of extreme deprivation; their condition, though stable, is one of radically impaired functioning; and they cannot experience any benefit from their continued existence. However, these uncontroversial judgments are not equivalent to the judgment that continued life is of no benefit to patients in PVS. And the inference from the former to the latter has not been shown be valid. If one accepts the view that a person’s life has value only instrumentally insofar as it allows the person to engage in further human activities, then this inference would be straightforward. Since the benefit of life is instrumental, it lacks value when the purposes it serves

310  C o n te mporary Mo ral Pr ob l em s are unachievable. But a person’s life cannot simply be instrumental to other goods of that person. For a person’s life is not something other than his or her very self, and so the living human organism, however deprived, cannot be separated from the person in the way an instrument can be separated from the purposes for which it is used. The value of a person’s life, therefore, cannot be reduced to its role as a condition for realizing other goods of the person.10 Consequently, the straightforward inference to the conclusion that continued life is of no benefit to patients in PVS is not valid. If elements from the radical view according to which patients are not persons were admitted to the controversy at this point, then the straightforward inference might be shored up. But the further questions to which this view leads in this context make clear that it is a perspective foreign to the concerns that frame the controversy. If patients in PVS are not persons, then why should it be wrong intentionally to kill them? If these patients are not persons, then on what grounds are they to be treated differently from corpses? Questions like these might interest philosophers, but are not part of what puzzles those who are concerned practically with how to treat patients in PVS. But there are other reasons for inferring that continued life is not a benefit to patients in PVS. One of these is the view that it is a necessary condition for something’s being a benefit that the beneficiary experience it. This view is part of an account of the nature of benefits and does not appear to presuppose a dualistic distinction between the living human organism and the person. But this view is false. Surely one person can act to benefit another and succeed in providing the benefit without the other’s ever knowing about the action or the benefit. Perhaps the necessary condition for something’s being a benefit can be restated to accommodate this possibility. A candidate would be the following: nothing can be a benefit to a person unless it contributes to some good in which the beneficiary consciously participates. But the restatement also seems false: Jones speaks well of Smith to Robinson, so as to improve Robinson’s opinion of Smith. Jones succeeds, but Robinson does not act on this knowledge and tells no one. Jones’s action does not contribute to Smith’s conscious interest in maintaining his reputation, but it is not obvious that there is no benefit to Smith. Another example: John is distracted by illness and fails to pay his bills. 10. Finnis, “Bland: Crossing the Rubicon?,” 334.

T ube-Fe e din g Pati en ts i n PVS   311 His friend Bill pays them, but before discovering this, John dies. While alive, John had an interest in paying his bills, although he was too sick to pay attention to it, and they were paid, but he did not discover this fact. He was the beneficiary of Bill’s action, but never knew it. Further difficulties in the view that benefits are essentially related to the experience of the beneficiary emerge by considering the fact that those incapable of experience can be harmed. This is acknowledged by all who address the issue of the care of patients in PVS from within the perspective of traditional medical ethics. Indeed, some who argue that withdrawing the means for providing food and water is permissible appeal to the harm involved in keeping them alive as a premise in their argument.11 Patients in PVS can be harmed by being killed, by being treated as spectacles or sex objects, by being used improperly for experimental purposes, and so on. Most of these and other potential harms to patients in PVS fall into the category of indignities—that is, of actions and omissions that harm by failing to respect the patient as a person. If indignities are harms to patients in PVS, then actions taken precisely to prevent or remove these indignities must be benefits to them. And so too must other actions taken precisely for the sake of respecting the personal dignity of these patients. The beneficial character of such actions appears to be acknowledged by some of those who do not believe that continued life support is a benefit to patients in PVS. For example, some of those who support the withdrawal of food and water also indicate the continuing need to maintain oral hygiene.12 If maintaining oral hygiene can be a benefit to a patient in PVS, presumably because this kind of care shows respect for his or her personal dignity, then it is not clear why continuing the person’s life, which can be done for this same reason, cannot also be a benefit. In short, a consideration of the nature of benefits, far from showing that the unconscious cannot receive them, strongly suggests that continuing their lives can be a benefit to them. This consideration is not meant to settle the moral issue in favor of continuing the provision of food and water, but to undermine one of the straightforward ways of showing that withdrawing this care is generally permissible. However, this consideration indicates something further about the 11. Jennett, “Case for Letting Vegetative Patients Die,” 43. 12. Institute of Medical Ethics Working Party, “Withdrawal of Life-Support,” 97.

312  C o n te mpo rary Mo ral Pr obl em s benefit of continuing to provide food and water to patients in PVS. The care of a person in need ordinarily includes an intention to maintain human solidarity with that person. That intention manifests love and respect for the person in need, and the benefit it anticipates is interpersonal, a good realized not only in the person cared for but within the community of patient and caregivers. Frequently, this intention is not articulated as a distinct purpose for care, but included within the intention to restore functioning or alleviate suffering. But as the possibility of successfully doing either of these things diminishes, concerns for respecting and promoting the patient’s dignity, including maintaining solidarity with him or her, come to the forefront. In the extreme case of patients in PVS, they are virtually the only considerations in play. It follows that providing food and water to patients in PVS does not have a purely symbolic significance, as if it were a kind of gesture. It is done to show respect for them as persons, and it does that in part by maintaining solidarity and refusing simply to leave them to their fate.13 In short, the claim that continuing life and the provision of food and water are not benefits to the patient cannot be sustained, and so the position that withdrawing these forms of care is permissible cannot be based on that claim. The argument must, therefore, be that these benefits, though real, are so small that they cannot justify the burdens of providing the care—that is, that the benefits are disproportionate to the burdens.

The Harms or Burdens of Continued Treatment Many of the normal burdens to patients that justify the decision to forgo medical care are not present for patients in PVS. The pain, suffering, and interference with the pursuit of valued activities that often provide reasons for discontinuing treatment are not possible for patients in PVS. Consequently, the burdens to the patient that might be relevant in determining that care is disproportionate to its benefits fall into two categories: the already discussed category of indignities and the category of actions that are harmful because they are against the patient’s will. To take the second category of harms first, a person’s declaration that he or she does not want to be kept alive by being fed and hydrated through a nasogastric tube or gastrostomy is surely a morally relevant 13. Boyle, “American Debate about Artificial Nutrition and Hydration,” 38–39.

T ub e-Fe e din g Pati en t s i n PVS   313 circumstance of his or her overall condition, and it is not unreasonable to think that ignoring such a declaration would be a harm to the patient. But most people in PVS have not made such declarations, and so this is not a general circumstance of patients in PVS. Some suggest that this fact is not important, because most people would reject such treatment if they had considered or were capable of considering the matter.14 However, guesses and inferences from surveys about public attitudes toward life in PVS do not provide evidence about what a given person decided or would have decided, and speculations about what reasonable people would prefer if in PVS presuppose certain controversial answers to questions at the heart of this dispute. Of course, if providing food and water by gastrostomy or nasogastric tube were itself an indignity to the patient, then there would be reason, independent of the patient’s will in the matter, for withdrawing these forms of care. But this condition is not fulfilled. These are forms of care routinely used for patients with a variety of ills and are used in the care of patients in PVS precisely to show respect for their human dignity.15 The rejoinder to this claim is that continued life in PVS is itself an indignity, and so acting to continue it is a wrong. But here the indignity in question has shifted from actions or omissions that fail to respect the person to the condition of PVS itself. As already noted, this is a condition of grave disability that no one would desire for himself, herself, or another. But when such a condition exists people can and morally must continue to act toward that person in ways that respect his or her inherent human dignity. The deprived and perhaps undignified condition of the person’s life does not change that requirement and would by itself justify withdrawal of treatment only if death were judged better for the person than such an existence. It is not clear how this comparative judgment could be known to be true, and how, if it were accepted as a practical judgment for deciding life-and-death questions, it would be limited so as not to justify killing patients in PVS, much less those whose lives are filled with pain and misery. In short, the burdens or harms to patients in PVS of keeping them alive by providing food and water do not establish a general ground for thinking that withdrawing them is morally permissible. Consequently, 14. Jennett, “Case for Letting Vegetative Patients Die,” 41, 43. 15. Finnis, “Bland: Crossing the Rubicon?,” 336.

314  C o n te mporary Mo ral Pr ob l em s if the burdens of treatment are to function as a reason for this judgment, the burdens in question must be those imposed on others. There are two kinds of such burdens: the suffering of family members and friends who must live with and experience the tragic condition of their loved one and the overall costs of keeping these patients alive. The suffering of family members of patients in PVS is in many cases a serious concern to which caregivers must attend. But some family members at least appear to think that their suffering is justified by their effort to provide some level of care and contact with the patient, including the provision of food and water. So, this circumstance will not be a factor in all cases. Moreover, it is not clear how concerns for the welfare of family members should be factored into decisions about the care of patients in PVS. If the family is being ruined financially or prevented from carrying on its essential business, say of work and raising children, then the concern about their welfare is part of the larger question of costs. But if family members are distraught primarily because of the permanently debilitated condition of the patient and a decision is taken to withdraw care to deal with this concern, then the decision seems to be a decision to get things over with, perhaps to end the patient’s life as a means to that, or at least a decision to end the care that binds them to the patient. The specific costs of providing food and water by gastrostomy and nasogastric tube to patients in PVS are not high, particularly in comparison to the costs of other medical treatments. But the overall costs of caring for these patients, particularly over time, are high and could be higher still if they were treated aggressively.16 It is the latter, overall costs that have figured in the discussion, and this raises the troubling question of whether withdrawing these forms of care is undertaken as perhaps the least objectionable way of withdrawing the patient from all care or of ending the patient’s life as a way to avoid having further to care for him or her. Nevertheless, given the resource limitations of families and of health care systems in even the wealthy Western societies in which the care for patients in PVS is a serious question, there is certainly a legitimate question as to whether the resources used for the maintenance of such patients should be better used.17 Still, families and societies differ in the level of support they can reasonably provide for patients in PVS, and since these patients do not 16. Boyle, “American Debate about Artificial Nutrition and Hydration,” 40. 17. Finnis, “Bland: Crossing the Rubicon?,” 335.

T ube-Fe e din g Pat i en ts i n PVS   315 require hospitalization but can be cared for at home, avoiding much of the cost of caring for them is possible without withdrawing food and water and other forms of basic care. In other words, it does not follow from the fact that providing food and water by gastrostomy or nasogastric tube is initiated as part of medical care, ordinarily before the permanence of the vegetative condition is established, that they cannot also be part of the care appropriately given to people after specifically medical intervention is properly discontinued.18 In short, the arguments for the normative view that it is generally permissible to withhold food and water from patients in PVS, because of the condition itself or the general requirements for treating it, are not successful. These arguments do, however, suggest some of the factors—for example, the limited benefits of continued life and care, the patient’s will in the matter, and the overall costs of the care—which appear to justify withdrawing food and water in some cases.

The Morally Relevant Circumstances The moral relevance of these factors is rejected by those who believe that withdrawing food and water from patients in PVS is necessarily wrong. This normative position has several foundations. One is the conviction that withdrawing these forms of care is morally equivalent to killing patients in PVS, and another is the conviction that these are forms of elemental human care that are always required. It seems clear that withdrawing life-sustaining treatments can be a way of killing people, particularly when they are deliberately withdrawn for the sake of ending the patient’s life.19 Some have denied this, but at the high price of attributing to the distinction between intentional actions and omissions with identical intentions a moral significance with no rational foundation.20 There surely is a rational basis for distinguishing some decisions to withdraw life-sustaining treatments from actions (and omissions) chosen for the sake of ending life. But this does not justify attributing moral significance to the mere behavioral difference between actions and omissions or between killing and letting die.21 18. Finnis, “Bland: Crossing the Rubicon?,” 335. 19. Boyle, “American Debate about Artificial Nutrition and Hydration,” 35–37. 20. Finnis, “Bland: Crossing the Rubicon?,” 331–33. 21. Germain Grisez and Boyle, Life and Death with Liberty and Justice: A Contribution to the Euthanasia Debate (Notre Dame, Ind.: University of Notre Dame Press, 1979), 414–19.

316  C o n te mporary Mo ral Pr ob l em s The weakness of the position that withdrawing food and water from patients in PVS is inevitably intentionally killing them is that such conduct need not be undertaken with the intention of ending life. Perhaps that sometimes is the intent of those taking such a decision,22 but such decisions can be taken because the limited benefits do not justify the costs involved. In such cases the patient’s death is not intended but is accepted as a side effect of a decision made for other reasons. The argument that withdrawing food and water from patients in PVS is always wrong because these are obligatory forms of care also fails. There surely is an obligation to provide debilitated people with care that shows respect for their human dignity and maintains solidarity with them. But this general obligation does not settle the kind or level of care that must be provided. That must be determined by considering the capacities, resources, and other responsibilities of those providing the care. The limitation of care based on these considerations does not involve a violation of the general obligation to care. For no moral obligation requires that people do what is strictly beyond their capacity to do, and this obligation does not require levels or kinds of care that can be provided only by setting aside other serious responsibilities. In short, the general obligation to provide care requires only that those responsible for providing it do what they can, and what people can do depends in part on their entire set of responsibilities. The generality applies to the case at hand: providing food and water by gastrostomy and nasogastric tube might sometimes be more than care providers can do for patients in PVS. It follows, therefore, that circumstances of the particular case will be the decisive moral considerations in arriving at the moral judgment about the level of care to be provided to any patient in PVS. The condition itself and the essential requirements for caring for people who suffer from it are not sufficient to show either that withdrawing food and water is permissible or required or that continuing to provide them is required. As already suggested, the fact that a patient indicated prior to being in PVS that he or she did not want food and water artificially provided is one such circumstance. The cost of the care, in relation to the capacities, resources, and other responsibilities of caregivers, is another. The prior rejection of the artificial provision of food and water by 22. Boyle, “American Debate about Artificial Nutrition and Hydration,” 37.

T ube-Fe e din g Pati en t s i n PVS   317 the patient appears decisive—that is, it establishes a requirement to withdraw this form of care. The reason prior refusal should be honored is that continued care is significantly, if not completely, motivated by the intention to maintain solidarity with the patient and show respect for his or her human dignity. The decision to limit care drastically on the basis of the patient’s refusal, therefore, has an altogether different human significance from withdrawing it without such direction. In the former case, care is withdrawn precisely out of respect for the patient, whose reasons for refusal need not be suicidal but can be based on the desire to remove from others the burdens of care. Respecting the generosity of a person’s waiving his or her claims on others in no way shows disrespect for that person. In the latter case, the patient is removed from human care by the decisions of others, and generosity exercised for one who cannot speak for himself or herself is not, in fact, generosity but imposition. Thus, when not justified by other considerations, withdrawal of these forms of care can be abandonment of the patient and a refusal of the solidarity that respect for human dignity requires.23 The factor of cost, in relation to the capacities, resources, and other responsibilities of caregivers, also can be morally decisive in some cases. Indeed, in one respect it has relevance to many, if not most, cases. For considerations of cost, broadly considered, ordinarily require that patients in PVS should not be maintained permanently by acute hospital care. There is little that expensive hospital care can do for these patients, since they cannot be restored to good health and do not experience suffering. The resources of acute care hospitals are plausibly better used elsewhere. It follows that those who bear responsibility for these patients should take them home or provide some similar form of care for them. They should, of course, do what they can to provide care for these patients, and that might include continuing to provide food and water by way of a gastrostomy or nasogastric tube. But if a family, for example, could not, without expense and effort that would prevent the fulfillment of other serious responsibilities, continue to maintain the artificial means for providing food and water, then they could be rightly withdrawn. But a level of care that can be provided compatibly with other responsibilities is morally required. Thus, the relevant mor23. Boyle, “American Debate about Artificial Nutrition and Hydration,” 41–44; in Germain Grisez, “Should Nutrition and Hydration Be Provided to Permanently Comatose and Other Mentally Disabled Persons?,” Linacre Quarterly 57, no. 2 (1990): 33–34.

318  C o n te mporary Mo ral Pr ob l em s al rule is that we must do what we can to care for patients in PVS and to maintain the human ties with them that show our respect for their human dignity. But the application of this rule to the situation of different people with different resources and varying forms of social support must inevitably lead to different concrete moral judgments as to what it is right for them to do.

15 / Against “Assisted Death”

Introduction I am honored by and grateful for the invitation to deliver this year’s Anscombe Memorial Lecture sponsored by the Anscombe Bioethics Centre. I was lucky enough to have known Professor Anscombe and to have had the benefit and pleasure of discussing philosophical, and especially moral, issues with her. I continue to benefit from rereading and wrestling with her thoughts about intention, double effect, and the ethics of killing. My thinking about today’s subjects, assisted suicide and voluntary euthanasia, has been deeply influenced for many years by her profound work on these matters. I hope this hour will constitute a worthy contribution to the philosophical work she undertook on these matters—one that will properly honor Professor Anscombe’s moral commitments, Catholic faith, and philosophical rigor. As the recent, almost annual, parliamentary votes on assisted suicide in your country indicate, the ruling standards of practice in endof-life care are nowadays challenged by many: in particular, it is said, the prohibitory elements of traditional and ruling practice must be eliminated in favor of a standard of practice that incorporates either physician-assisted suicide or voluntary euthanasia, or both. That revision is called for, say the advocates of what they equivocally call “assisted death,” so as to respond adequately to the demands of competent patients to reduce their “intolerable” suffering. In response to this call for revision, I will argue that, while the received practice is, like any practice, susceptible to abuse, it is a coher[Editors’ note: This lecture was presented at The Anscombe Bioethics Centre, Oxford, England, in October 2015. Boyle passed away the following September. Had he been able to prepare this essay for publication himself, he no doubt would have added more footnotes, including more engagement with other scholars.]

319

320  C o n te mpo rary Mo ral Pr obl em s ent, stable, and justly compassionate approach to addressing suffering at the end of life. My argument is not, of course, meant to be a fullfledged refutation of the “assisted death” proposal, but a defense of the established practice. But it does highlight an important component of that refutation—namely, the open-ended discretion the “assisted death” regime will require concerning how to apply interminably controversial concepts such as “consent” and “intolerable suffering.”

The “Assisted Death” Critique of the Ruling Practice of End-of-Life Care The ruling practice includes a prohibition against any intentional killing of innocent persons by others. Critics claim that, within modern jurisprudence and commonsense morality, there exist two significant precedents for qualifying this blanket prohibition. First, suicide is not a crime, nor any sort of wrong cognizable by the state. This provides, it is said, at least some kind of right to suicide. Second, the right of a competent person to refuse any medical treatment for any reason, or none, provides, it is said, at least a restricted right to die that is in obvious tension with the prohibition against intentional killing. And, the argument goes, that tension runs very deep in traditional practice; it is on display in the very structure of end-of-life care. For those expecting death in weeks or months and suffering greatly, the relief of that suffering provides an alternative to interventions for the sake of extending life, even if the interventions should promise a nontrivial extension of life. Facing this option, many patients, family members, and caregivers opt for the relief of suffering while recognizing that that might mean a shorter life. Such life-shortening decisions are common, and most people accept them as in principle morally correct. But, as a result of these decisions, life is deliberately shortened—and shortening life is not unlike killing. Moreover, in addition to forgoing life-extending treatments as part of palliative care, patients sometimes have been offered, and have sometimes accepted, medical interventions aimed at easing suffering even when they understood that such interventions risk shortening their lives. Here the decision can cause or risk an earlier death, which is even less unlike killing and so is even harder (it is said) to square with the prohibition against intentional killing than is declining fur-

Ag a in s t “Assi s t ed D e ath”   321 ther treatment. Yet everybody accepts the moral legitimacy of such decisions, even as they seem to have become comparatively infrequent in end-of-life care. Defenders of the ruling practice will respond that these decisions are consistent with the prohibition against intentional killing of one person by others. That consistency clearly depends upon the limitation of the prohibition against killing to intentional killing. Both terms in the expression have been, and have to be, invoked to preserve consistency: “killing” and “intentional.” Some defenders of the ruling practice hold that what counts is that in “assisted death” actions are involved, whereas in forgoing treatment the patient is allowed to die. This distinction between killing and letting die is thought to be in itself morally significant and to provide a basis for distinguishing palliative care from killing. However, I think this is a mistake. Decisions to withhold life-extending treatments include responsibility for the patient’s dying earlier than he or she otherwise would die: in withholding life-extending treatment one knows that if one had chosen otherwise the patient would live longer; one did not prevent something one could have prevented. That may well not be a paradigm case of causing, but it connects the earlier death with a person’s decision to step aside in a way that clearly involves responsibility for the outcome. Thus, in cases where treatment is withheld, precisely for the sake of shortening a life, the prohibition against intentional killing obviously applies, as in cases in which hydration and nutrition are withheld as part of terminal sedation, to “get it over with” faster. The intentions in decisions not to act are often opaque, and this opacity defines an area where the received practice has been abused. But, as I will indicate, the opacity can be penetrated and the abuses can in principle be exposed. I propose, in other words, that what establishes consistency between the prohibitions and the permissions within the ruling practice is the role of intention. Intention distinguishes a kind of action that is exceptionlessly prohibited from other decisions that shorten life. These latter are sometimes, even often, permissible. The former includes and the latter do not include the intention of “earlier death.” However, according to many contemporary philosophers, this is work that intention cannot do: intentions are not to be found among any plausible survey of impermissibility-making factors. These philosophers’ conclusion is that the prohibition against killing cannot rea-

322  C o n te mpo rary Mo ral Pr o bl em s sonably rule out beneficent decisions for competent patients who are suffering greatly as they die; the prohibition must be substantially qualified to be consistent with our commitment to the suffering. I have been summarizing a multifaceted objection to the prohibition against intentional killing—an objection that constitutes an important public argument for “assisted death.” For the noncriminal status of suicide and the right to refuse medical treatment are widely accepted within the law and commonsense morality. Moreover, the tension between benevolent concern to reduce suffering and the prohibition against intentionally killing others can be eliminated without introducing new and controversial ethical notions—simply by rejecting a part of commonsense morality that seems to many to be particularly indefensible. This, in bare bones, is the critique to which I will respond.

Response to the Assisted Death Critique Is There a Right to Suicide? Suicide is not legally a crime. It follows that people are at liberty to commit suicide. One might suppose that this liberty implies a right to commit suicide and that this right shows that the legal prohibition against intentional killing is already qualified. One might suppose further that the right in question is sufficiently important to allow others to cooperate in suicide. However, this further supposition is inconsistent with the legal prohibition of all third-party involvement in suicide—a prohibition that has continued long after suicide was decriminalized. Moreover, the supposition that there is a robust right is in obvious tension with the widely accepted permission of others to interfere with suicide attempts. Generally, third parties have no right to help and may, or are even encouraged to, interfere. So, the liberty is very restricted. Furthermore, the historical grounds for decriminalizing suicide seem not to have included public endorsement of suicide, but rather recognition of the limits of criminal law in dealing reasonably with suicide. To the extent that this is the positive legal ground for excluding suicide from liability for criminal sanctions, the liberty is compatible with substantial social disapproval of suicide and forbidding third parties to participate. But many nowadays think that, however the positive law may have developed, there is a moral right to commit suicide, because the way one ends one’s life is central to one’s identity as an autonomous per-

Ag a in s t “Assi s t ed D e ath”   323 son. As a group of eminent philosophers argued in a submission to the United States Supreme Court in 1997: Just as it would be intolerable for government to dictate that doctors never be permitted to try to keep someone alive as long as possible, when that is what the patient wishes, so it is intolerable for government to dictate that doctors may never, under any circumstances, help someone to die who believes that further life means only degradation. The Constitution insists that people must be free to make these deeply personal decisions for themselves and not be forced to end their lives in a way that appalls them, just because that is what some majority thinks proper.1

Some courts agree: the Supreme Court of Canada in Carter v. Canada (2015) said earlier this year: This is a question that asks us to balance competing values of great importance. On the one hand stands the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition. On the other stands the sanctity of life and the need to protect the vulnerable.2

These statements clearly move away from asserting a precedent for “assisted death” in established positive morality; at best they interpret positive morality and established law, or seek to create it, in ways that go beyond robust consensus. And even if such claims succeed in identifying a genuine personal value, they do not show that suicide is more than a merely personal matter, nor that suicide is something that others reasonably may, and even should, assist or carry out at the suicidal person’s request. To generate an entitlement allowing or requiring support by others, it is not enough that some people value the option for which the cooperation of others is desired. That cooperation is a matter of entitlement only if concerns about its effects on the just interests of other persons and on a fair social order are satisfied. Significantly restricting a socially important prohibition, such as the prohibition against intentionally killing another person, is surely such a concern. Consequently, personal value alone does not warrant the entitlement to get help in committing suicide. The Carter decision of the Supreme Court of Canada also provides an example of how far judges might go to manufacture from estab1. Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon, and Judith Jarvis Thomson, “Assisted Suicide: The Philosophers’ Brief,” New York Review of Books, Mar. 27, 1997, 41–47. 2. Carter v. Canada (Attorney General) [2015] 1 SCR 331, 2.

324  C o n t e mpo rary Mo ral Pr o bl em s lished law a more robust right to “assisted death.” The Court accepted the following finding by the trial judge in the case on appeal: “that the prohibition on physician-assisted dying had the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.”3 A right to life now becomes, not just a claim against others that they not kill one (nowadays a claim renounceable or revocable at one’s will), but also a claim against the government that it not put or keep in place any law that will lead—“force?”—one to kill oneself at a certain time. As this extravagance suggests, there is no precedent value for assisted death in the noncriminal status of suicide. It is perhaps also worth noting that the right invented here is a right to euthanasia, not simply to assisted suicide, as your recently defeated bill was.4 The homemade Canadian right is more extravagant than any right to assisted suicide, but is unlikely to be resistible by legal fiat once a people has accepted the premises of assisted suicide.

Is the Right to Refuse Treatment a Precedent for Assisted Death? As with the law on suicide, someone might argue that the right of competent persons to refuse medical treatment implies a social endorsement of a person’s decision precisely to end his or her life. But that is not so: the right of a competent person to refuse medical treatment is a reasonable allocation of the authority over medical decisions generally, not only decisions at the end of life, to the person who must live with the treatment and its results, and, who, if competent, is best able to assess their meaning for his or her life. The core provision in this right is the requirement that other private persons not touch one without one’s permission; this requirement articulates a realm of autonomy by empowering the right holder to refuse unwanted interference in his or her bodily self. Someone might use this empowerment to commit suicide—to choose precisely to shorten his or her life—but that is not the point of the empowerment, and in the eyes of those who believe suicide to be immoral, it is an abuse of the entitlement. In this respect, the right is similar 3. Carter v. Canada (Attorney General) [2015] 1 SCR 331, 57; see also 58–63. 4. [Editors’ note: Boyle here refers to Assisted Dying (No. 2) Bill 2015–16, whose aim was to make legal in certain circumstances the provision of medical assistance for the terminally ill for bringing about their own death. The bill failed to pass its second reading in the British Parliament on September 11, 2015. See http://services.parliament.uk/bills/2015–16/assisteddyingno2.html.]

Ag a in s t “Assi s t ed D e ath”   325 to other all-purpose empowerments, such as property or privacy, which are susceptible to abuse. Its precedent-value, therefore, is thin: the idea that the right to refuse treatment that will shorten life gives evidence that suicide is socially acceptable is not warranted by the autonomy it uncontroversially protects, and the idea that honoring such a refusal is a precedent for “assisted death” will be sound only if intentions are not morally significant. Those who honor the refusal may act out of respect for the established empowerment, without intending to shorten the life of the person refusing treatment—and this can be true even if they know the person refusing treatment does intend to shorten his or her life.

The Rejection of the Prohibition against Intentional Killing The third element of the critique of the ruling practice targets just this reliance on the distinction between intentional actions and their unintended side effects. The practice takes for granted that the former can be simply prohibited without prohibiting the latter. The most common form of the objection is that intentional actions must be clearly distinguishable from their unintended results, but that it is difficult or impossible to do so. There are actually two objections here. The first is that rationalizing abuse of the idea of intention cannot be controlled. In a nod that acknowledges the precise moral role intentions play in existing thought and practice, those wishing to evade moral and legal responsibility for a questionable action commonly redescribe what they do so as to suggest that the wrongful elements are mere side effects, as does the hypothetical euthanizing doctor who says his only goal is eliminating suffering, and so the patient’s death is only an unintended side effect. Professor Anscombe exposed the emptiness of this rationalizing dodge in Intention, paragraph 25: For after all we can form intentions; now if intention is an interior movement, it would appear that we can choose to have a certain intention and not another, just by saying, e.g., within ourselves: “What I mean to be doing is earning my living, and not poisoning the household” or “What I mean to be doing is helping those good men into power; I withdraw my intention from the act of poisoning the household, which I prefer to think goes on without my intention being in it.” The idea that one can determine one’s intentions by making such a little speech to oneself is obvious bosh.5 5. G. E. M. Anscombe, Intention, 2nd ed. (Cambridge, Mass.: Harvard University Press, 2000), para. 25.

326  C o n te mpo rary Mo ral Pr o bl em s I’d add only that making a speech, even a quiet one to oneself, is a human action— that is, it is itself an intentional act—with what intention we might wonder. So, as Anscombe says in “War and Murder,” “It is nonsense to pretend that you do not intend what is the means you take to your chosen end.”6 The pretense is made possible by a rationalizing distortion of the idea of intention—one that reflection, such as Anscombe’s, can unmask for what it is. The second objection emerges sharply once this pretense is exposed: how can we distinguish analytically the action descriptions under which an action is intentional from those under which it is voluntary but not intentional? If we cannot do that, the distinction between what we intend and cause as a side effect vanishes as a serious notion of moral analysis. Philippa Foot, who introduced the problem of the “closeness” of these action descriptions, seems to have thought that in the famous obstetrical cases from Catholic casuistry the results, contrasted as intended and as unintended, were simply too close to be sorted out, but that other cases allowed for clear discrimination of means and side effects. Others are not so sure that there are clear cases.7 Professor Anscombe provided a general strategy for addressing this question in Intention, paragraphs 5–7; her strategy was forensic, and (if I may render it without some important nuances) it goes as follows: if asked why one did something under a certain description, and one honestly refuses the question, one did not intend the action under that description; if the question is accepted and answered, the action is intentional under that description. She illustrated some of the complexities but also the power of the strategy in her famous example of pumping poisoned water.8 Even if Anscombe’s strategy cannot give answers for all cases of “closeness,” it does plausibly deal with the cases raised by the practice of end-of-life care. If a doctor does not refuse the question of why he provided a drug dose sufficient for killing a suffering patient and answers the question by saying he did it to end the patient’s suffering, 6. Anscombe, “War and Murder,” in Ethics, Religion and Politics: Collected Philosophical Papers (Minneapolis: University of Minnesota Press, 1981), 3:59. 7. Phillipa Foot, “The Problem of Abortion and the Doctrine of Double Effect,” in Virtues and Vices (Berkeley: University of California Press, 1978) 19–32. Originally published in Oxford Review 5 (1967): 5–15. 8. Anscombe, Intention, 23–26.

Ag a in s t “Ass i s t ed D e ath”   327 it is fair to ask how doing just what he did—giving precisely that dose of drugs—served the purpose he acknowledges. If the connection is left mysterious, we are rightly suspicious that, while his action was aimed at relieving suffering as an end, it also included killing the patient as a means, and so as intended. To take a withholding treatment example: if hydration and nutrition are withheld as part of a regime of terminal sedation, then one can ask why the doctor chose to refrain from these actions. If the answer is to get it over with, then a description of the decision not to act under which it is intentionally shortening life—morally speaking, intentionally killing—applies to the decision. If the answer is that the patient cannot absorb hydration and nutrition in her condition, or that any assimilation will make no difference to the patient’s life or welfare, then the intention is to avoid harm or waste. I summarized the more profound objection to the role of intention earlier in my summary statement of the “assisted death” critique; the objection targets the grounds for the work intention is asked to do. That work is to rule out two inferences—namely, (1) the prohibition of intentional killing implies the prohibition of actions causing death, and (2) conversely, the permissibility of some actions that cause death implies the permissibility of intentional killing. This is precisely the connection between intention and permissibility that is challenged as lacking foundation. I respond to this, first, by noting that the inference blocked by reference to intention cannot be an inference from any sort of prohibition. I set aside other kinds of prohibition, distinct from the kind to which the special role of intention is meant to apply in traditional practice. The prohibitions in which intention plays the role specified are those satisfying two conditions: first, they prohibit an action because of its description as an action of a certain kind, independently of factors articulated in further descriptions of the action; second, the description under which the action is prohibited picks out the features in virtue of which the action is indefeasibly impermissible. For an action wrong in virtue of features included in its description as such and such a kind of action contains a ground for an inference about the wrongness of an action with features of that kind. In her several discussions of double effect, Professor Anscombe suggested why actions that are simply prohibited must be intentionally causing a result and not simply voluntarily causing the result. In “War and Murder” she noted:

328  C o n t e mpo rary Mo ral Pr o bl em s The distinction between the intended, and the merely foreseen, effects of a voluntary action is indeed absolutely essential to Christian ethics. For Christianity forbids a number of things as being bad in themselves. But if I am answerable for the foreseen consequences of an action or refusal, as much as for the action itself, then these prohibitions will break down. If some innocent will die unless I do a wicked thing, then on this view I am his murderer in refusing: so all that is left to me is weighing up evils. Here the theologian steps in with the principle of double effect and says: “No, you are no murderer, if the man’s death was neither your aim nor your chosen means, and if you had to act in the way that led to it or else do something absolutely forbidden.”9

Anscombe’s larger concern here, and in a handful of similar statements, was with the breakdown of absolutist moral theory into incoherence or toward consequentialism when the role of intention is excluded. This concern tends to overshadow a more elementary point embedded in these arguments. Anscombe supposes that (1) murder is absolutely prohibited, and, for the sake of the argument, (2) the prohibition does not discriminate between intentional actions of killing and causing death as a side effect. Clearly, the prohibition against killing breaks down if a choice that causes death as a side effect is a refusal to intentionally kill; and it would also break down if the action one refused to do were a distinct kind of wicked action that also had the side effect of killing. Anscombe made this point in a collection of Catholic writings about modern warfare. But her point about limiting absolute prohibitions to intentional actions concerns the logic of prohibitions generally and thus applies to any ethical or legal system that includes indefeasible or exceptionless prohibitions of actions of a specified kind. Because this is a claim about the nature of absolute prohibitions, it applies to religiously based prohibitions, to those based on rational (or natural law) ethics, and to publicly promulgated legal prohibitions. If there are grounds for positive, legal prohibitions sufficient to justify ruling out some actions just because they are of such and such a kind, they too must be limited. But why, one might ask, limited by the presence of the intention of the evil result? I do not know that Anscombe treated this question explicitly, but I think there is a general reason why the distinction between intentional actions and the unintended side effects of different intentional actions 9. Anscombe, “War and Murder,” 58.

Ag a in s t “Assi s t ed D e ath”   329 provides a reasonable limitation of absolute prohibitions. Very generally, and without the qualifications in a full account, the reason is that intentional acts are avoidable—one can choose not to do them. But bad side effects are not avoidable in this way. Sometimes whatever you do in accord with moral principle, a bad side effect will come about, as Anscombe’s hypothetical from “War and Murder” shows. That is a general point about human agency and its limitations, not a particular moral evaluation. This account is an essential part of the background of the ethical rationale for end-of-life care. Palliative measures, even those that risk shortening life, are obviously permissible, and presumptively the duty of care providers; certainly, intentionally causing patients to suffer would be simply wrong. Choosing to address that suffering at the risk of shortening life accepts this risk as a side effect of doing something of considerable moral importance, which is sometimes obligatory for some people (although, as the foregoing suggests, not unqualifiedly obligatory). Moreover, the reality of these responsibilities does not justify killing patients to relieve their suffering: for when the choice is precisely whether or not to kill, one has the power not to do that. The constraint on our power to avoid either contributing to suffering or shortening life as side effects of all the options available does not obtain when the choice is to kill. That is not a side effect. In short, the prohibition of intentional killing does not imply the prohibition of any decision that shortens life, and the permissibility of causing death as a side effect does not imply the permissibility of intentional killing. Considerations about the intentions of one’s actions are not arbitrary constraints on overcoming suffering.

Excluding Discretion about Killing Innocents Of course, this role of intention in absolute prohibitions does not establish the truth of the prohibitions themselves, but controls what we can infer from them. The ground for the prohibition against intentional killing is a further matter. Clearly, traditional morality prohibits intentionally killing the innocent. It plainly has affected commonsense morality and the law. However, since many people nowadays reject traditional morality as the basis for legal norms, it might not suffice for public argument about legally regulating peoples’ interactions to invoke the sanctity of human

330  C o n te mpo rary Moral Pr obl em s life or similar traditional principles. Let us consider whether there are distinct grounds for a very stringent public prohibition against killing innocents, a prohibition robust enough to prohibit doing anything we can avoid doing that will kill others. Many academic philosophers reject absolute prohibitions generally in favor of the position that all prohibitions are merely prima facie until shown in an all-things-considered judgment to be applicable in the circumstances. Anscombe noted and decried the dominance this view had already achieved when she wrote “Modern Moral Philosophy” almost sixty years ago. However, in spite of its continuing popularity when stated at this high level of generality, this conception of moral judgment does not easily square with the method of considering hypothetical cases that defines modern philosophical casuistry—made famous in various runaway trolleys and in the variations on bomber pilots and transplant doctors. These discussions strongly suggest that real-world instantiations of some abstractly described cases are thereby shown to be simply impermissible and that our judgment will not be changed in moral valence so long as they continue accurately to be described in the terms that define the abstract case: “As long as it is a case of terror bombing (or torture), it is simply wrong.” Or for some, “As long as it is terror bombing, except for rare cases very likely to stop the murder of millions, it is simply wrong.” Both these prohibitions are indefeasible, the second a qualification of the first. Thus, in actual moral and legal reasoning, norms are often taken to be indefeasible, prohibiting without exception. Indeed, in the case at hand, “no intentional killing by private persons (including doctors),” is being rejected; more precisely it is being qualified by redrawing its boundaries. Its replacement by a merely prima facie prohibition that would be balanced against other moral considerations case by case is not what is on order in current public debates. Thus, the “assisted death” amendment moves toward another narrower, indefeasible prohibition, something like “no intentional killing by private persons other than doctors acting under certain specified conditions such as consent and level of suffering.” Building an exception clause into a more generally stated prohibition retains the indefeasibility of the qualified rule. So, the issue before us is not whether our law and morality will contain an indefeasible prohibition against intentional killing; it is whether to make an exception for a category of private persons—doctors—acting

Ag a in s t “Ass i s t ed D e ath”   331 with discretion in the light of accepted criteria. Since, even if we accept the new exception, it seems widely hoped that we will retain an absolute prohibition, it is useful to reflect, independently of issues about exceptions, on why we have any such stringent prohibition against killing one another. The demands of the common good—in particular, public safety and security—create a presumptive case for a stringent prohibition against one private person intentionally killing another. That reason is enhanced by the interest in avoiding the complications raised by the need for widespread deliberation in applying moral assessment to actions having immediate and vital significance for so many people and such importance in making possible the interactions of a cooperating group of people. Thus, independently of moral principle such as the sanctity of life, most do favor prohibitions on killing, and rather clear and stringent ones at that—clear and stringent enough to deter the tempted from looking for loopholes. Those tempted to kill need to know unequivocally that these actions are impermissible, and others need readily to understand what they can do and not do in response. The interests served by maintaining an indefeasible prohibition are therefore socially significant and widely shared. Such a prohibition serves the interest of society in protecting innocent life and the interest of all its members in not being victims of murder, an interest noted but downplayed in the Supreme Court of Canada’s Carter decision as the sanctity of life. For the Canadian justices in Carter, it is not the interest of all people in keeping private killing strictly limited that is at stake in the prohibition of assisted death; the purpose of that prohibition is narrow: “to protect vulnerable people from being induced to commit suicide in a moment of weakness.”10 This prohibition serves the interest of the medical professions and of those using the medical system, who are almost by definition in a vulnerable position, by creating confidence in the latter that they will not be killed. It also frees the medical profession from the very real burdens on the profession and political society of developing and implementing protocols for killing and for supervising and regulating it. Such considerations provide the normative source for absolutely prohibiting intentional killing of others and at the same time for permit10. Carter v. Canada (Attorney General) [2015], 1 SCR 331.

332  C o n te mporary Mo ral Pr ob l em s ting actions and omissions for relieving suffering, even if they shorten life. Weakening the prohibition harms important public interests, while permitting these actions and omissions is generally not socially disruptive, provided that reasonable guidelines are in place to prevent abuses. Still, it remains that such considerations do not settle the exact kind of killing to be prohibited. If one accepts the limitation to intentional killing (argued previously), what remains is to identify whose killing whom might be reasonably excepted from a prohibition against anyone’s intentionally killing another, and for what reasons. A traditional and widely accepted answer, which Anscombe endorsed, is that public officials acting for the common good may and sometimes must kill the non-innocent—namely, those doing evil or guilty of it, precisely for the sake of protecting that common good. Those who accept this exception to the public prohibition against killing others accept it because it has seemed required by the very interests and public goods the indefeasible prohibition is intended to protect. I am not so sure about this. But clearly, even if not permitted intentionally to kill, those authorized to defend the common good—our safety, security, and basic rights—are permitted to use deadly force in ways others are not, except in the most extreme of circumstances. There is no comparable rationale for extending the exception to the prohibition against intentional killing to doctors killing their patients at their request—the interests of those wanting to be killed or helped in doing so themselves are their private interests. The requirement of fair treatment for those suffering does engage an important public interest, which is magnified in modern, socialized health care systems. But the requirement for fair treatment does not imply that the patient’s demand simply overrides the reasons favoring a limitation of the “services” on offer in light of the common good. A further point emerges here: even in the case of the use of deadly force by public authorities, there is clearly a public interest in limiting its use and preventing even unintentional abuse. Plainly, the kinds of factors, personal and situational, that can skew the discretion of police and soldiers in using deadly force will also, mutatis mutandis, affect the discretion of doctors and their supporting and regulating organizations if they are permitted to intentionally kill patients when certain conditions are fulfilled. No doubt these dangers can be significantly regulated—but at significant public cost if the regulations are to take seriously the stakes in

Ag a in s t “Ass i s t ed D e ath”   333 allowing more discretion precisely in killing other persons. The burdens of that regulation are bound to be significant, particularly if the actions regulated are complex and involve considerable discretion on the part of doctors and regulators. If these burdens are serious enough, anticipating and avoiding them provide a further reason for, and part of the point of, an absolute prohibition. I believe these to be very serious and so to provide a further public reason for refusing the proposed exception for doctors. The burdens of that discretion include not only the ongoing need to develop and maintain protocols and regulation commensurate with the seriousness of killing another person, but the real risks of undermining respect for human life more broadly, as more and more killing seems to be justified by the rationale for assisting death. The criteria for eligibility for “assisted death” usually include a request from a person competent to consent, who is suffering “a grievous and irremediable medical condition”—that is, irremediable, according to the Supreme Court of Canada—and in no way acceptable to that person.11 Sometimes terminal illness, itself specified by estimated time until death or by the presence of a life-ending illness, is used to specify the kind of suffering involved; but plainly irremediable suffering that is months or years away from a person’s expected death will appear sufficient for eligibility, as the Canadian cases brought by those suffering from progressive degenerative diseases, such as ALS or Lou Gehrig’s disease, show. Some patients in such conditions want assurance that they can be killed when the worst of the disease has begun to take hold to the point that they can no longer kill themselves, but before the worst ravages of the disease are manifested. Clearly, deliberation about how to apply the relevant ideas is bound to be complex and indecisive—even in an assisted suicide amendment such as recently defeated here in the UK.12 By comparison, the casuistry and discretion included in the ruling practice of end of life care are bounded and straightforward. Rulings by doctors or judges will inevitably lead to disagreement and pushback, especially from those denied eligibility. This in turn will likely destabilize the amended practice of end-of-life care by appealing to the underlying values of autonomy or suffering reduction to criticize 11. Carter v. Canada (Attorney General) [2015], 1 SCR 331. 12. Assisted Dying (No. 2) Bill 2015–16. See footnote 4.

334  C o n te mpo rary Mo ral Pr o bl em s restrictive protocols. Since there is nothing beyond positive fiat preventing taking either of these values as being sufficient for eligibility for “assisted death,” the removal of significant restrictions can proceed very far. Some assisted death advocates openly acknowledge this. I understand that this will seem like a very thin basis for maintaining an indefeasible prohibition against intentional killing even by doctors asked to kill them by suffering people facing death—those who, in the words of the Supreme Court of Canada, want to end life as a way out of a “grievous and irremediable medical condition.”13 By their own judgment, their continuing life is no longer a good but an evil, and applying to their situation a prohibition that serves many others, but not them, is simply not just. However, in response, it should be noted that such persons do not fairly object to the general and robust prohibition against killing from which they and those they care about benefit. They also could not fail to note that many others in positions similar to theirs—and many caregivers—object to killing and want no part of anything as troubling to those left behind by suicide or euthanasia. And they would hardly object if, should the exception they favor be accepted, safeguards were required to guarantee that they, or others in their situation, not be wrongfully or mistakenly killed. Those very safeguards will often exclude from eligibility for “assisted death” some whose judgments and interests are just like their own. In short, although such persons believe that their own continued living is bad, not good, they can also notice that their interest in assisted death is very personal, and therefore necessarily limited in the demands it can make on others. But we might not be able to persuade some people that this is so. Practitioners of palliative care can address the suffering of such persons as morally possible and can live through it with them, even when it is horrible. For, while we cannot literally share a person’s physical sensations, including horrible pain, we can share their suffering, which is not a sensation. Practitioners must do this recognizing that suffering persons can refuse the help offered—in many cases rightly; and that they can—albeit, as many of us think, wrongly—commit suicide. But the efforts at solidarity with them can help ease their suffering. Their pain and the suffering it leads to as they face death are often awful evils and may in some ways be literally “irremediable”; but suffering is not 13. Carter v. Canada (Attorney General) [2015], 1 SCR 331.

Ag a in s t “Ass i s t ed D e ath”   335 literally “intolerable,” except in the sense that a person resolves not to tolerate it. That exercise of autonomy, by itself, makes little claim on us when the stakes for us as a community, including the stakes for others who are vulnerable or who suffer horribly, are so high, and when we can do so much more to accompany our parents, our loved ones, and our not-so-future future through their, and our, suffering.

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Index

abortion, 12, 147, 148, 276, 302 absolutism: and double effect, 106, 162–63; intention and, 328; mutilation and, 299 action, 10–11; cognitivism and, 39–41, 50–60; and destruction of goods, 86, 103–5; incommensurability of options for, 68–72; intention and, 105–6; noncognitivism and, 41–50; practical reason and, 69, 112; and Principle of Double Effect, 140, 161–62; reasons for, 38–60; and rule of double effect, 166–70, 174–75, 182–83; side-effects and, 105–6; value and, 69–70. See also reasons for action Adelman, Howard, 206 affirmation: determinism and, 24–26, 33; justification and, 30–31; self-refutation and, 28–29 agency: choice and, 46, 50, 54, 69, 73–74, 181; end-of-life care and, 329; future and, 54; Principle of Double Effect and, 149, 163–64; rule of double effect and, 177–84; selection and, 69, 73–74; suicide and, 277 alms-giving, 256n10 Anscombe, G. E. M., 115n11, 325–28, 330 appetite: choice and, 73–75, 77; in cognitivism, 53n7; motivation and, 99–100; sensory vs. rational, 99–100; volition and, 73–74; volition vs., 53n7 Aquinas, Thomas, 275; appropriation in, 243; distributive justice in, 241;

free will in, 27; goods in, 57, 64, 85, 92; intention in, 216; just war theory in, 209–10, 212–13, 216–17; “New Classical” Natural Law Theory, 1; ownership in, 231, 232–34, 236, 239, 252–53, 256n12; Principle of Double Effect in, 144–46, 154–55; property in, 14, 251–58, 285–86; reason and order in, 3; self-defense in, 147–48; temperance in, 289; virtue prescribed by law in, 296 Aristotle, 3, 6, 28, 86, 107, 115n11, 225, 233, 251, 275, 283 assisted death: critique of end-of-life care, 320–22; eligibility for, 333–34; intention and, 321–22; intentional killing and, 325–29; and killing of innocents, 329–35; and right to refuse treatment, 324–25; and suicide as right, 322–24 Augustine, 205, 209, 212–13, 216–17, 275 authority: in health care, 285–90, 293–94; in just war theory, 210–12, 222–27; ownership, 253; patient autonomy and, 293–94 autonomy, patient, 277; assisted death and, 324–25; and commercialization of body, 300–303; considered judgment on, 278–82; limits of, 290–93; natural law account of, 282–90 benefits: goods and, 63–64; motivation and, 52–58, 63; in persistent vegetative state, 309–11. See also value

353

354  i n d e x Bentham, Jeremy, 79 Blackburn, Simon, 8 bluffing: deterrence and, 194, 201–4 bodily intangibility, 287–88, 291, 293, 297–98 body, human: commercialization of, 300–303; unique status of, 282–85 Bouscaren, T. L., 135n6 Boyle, Joseph M., Jr., 1–2, 4, 7–17 Buridan, Jean, 80–81, 94 capacity: authority and, 211; choice and, 7, 25–26, 30–37; deliberation and, 44; deterrence and, 215; incommensurability and, 102; practical reason and, 112; and reasons for action, 8, 51, 63; welfare rights and, 263, 267 capitalism, 240 Cardozo, Benjamin, 281 Carter v. Canada, 323–24, 331 casuistry, double-effect, 106. See also Principle of Double Effect; rule of double effect Centesimus Annus (John Paul II), 249n1 Chang, Ruth, 62n2 choice, free, 3–4, 9; agency and, 46, 50, 54, 69, 73–74, 181; appetite and, 73–75, 77; in children, 72–73; compatibilism and, 46–47; defined, 26; deliberation and, 43–45; determinism and, 24–28; free will vs., 27; good and, 61–82; incommensurability and, 93–98; incomparable option and, 72–82; incompatibilism and, 46–47; integral directiveness and, 118–20; intention and, 182–83; morality and, 110–11; moral responsibility and, 28, 46–47; norms and, 31–37; practical reason and, 110–20; and Principle of Double Effect, 163–64; selection and, 73–74; as unintelligible, 34; value and, 80–81; volition and, 27, 48, 119 Christ: and unique status of human body, 283 Cicero, 258n14, 261n17

cognitivism: appetite in, 53n7; language and, 43; motivation and, 39–41, 50–60 coma. See persistent vegetative state commensurability, 61–62, 65, 79, 93–94 Commentary on Aristotle’s Nicomachean Ethics (Aquinas), 3 commercialization, of body, 300–303 common use, 233–34, 237, 254–55, 262 comparability, 61–62 compatibilism, 46–47, 78 Compendium Theologiae Moralis (Gury), 133–34, 152 consequentialism, 4, 86, 88–90, 192, 197–98, 328 courage, 289 “craniotomy case,” 135–46 Davidson, Donald, 76n11 Davis, Henry, 143n27 defection, 106 deliberation, 43–47, 49–50; desire and, 49–50, 59, 76; in Grisez, 72–73; incommensurability and, 97; morality and, 110; practical reason and, 121; reflection and, 115–17; value and, 94 de Lugo, Joannis, 145n30 deontology, 87, 106, 201 desire: deliberation and, 49–50, 59, 76; good and, 92, 113; motivation and, 43–44; in noncognitivism, 42, 44–45; and options for action, 70–71; selection and, 77–78; subjectivity and, 58; value and, 70 determinism: affirmation and, 30–31; assent and, 24–25; choice and, 24–28; consequentialism and, 192–93; fatalism and, 34; moral responsibility and, 27–28; rationality and, 35; relativism vs., 23–24; as self-refuting, 23–37; skepticism vs., 23–24 deterrence: bluffing and, 194, 201–4; consequentialism and, 192, 197–98; counterforce strategies and, 191; defined, 193; future and, 194–95; intention and, 194–96, 198–201; just war

i ndex   355 theory and, 215; moral arguments about, 189–93; moral evaluation of, 197–201; social acts and, 201–4 dignity: persistent vegetative state and, 311, 313; welfare rights and, 249–50 directiveness, integral: defined, 114–18 distributive justice, 241 Donagan, Alan, 234n7, 238n15, 242n22, 254n7, 275, 284, 298–99 double-effect casuistry, 106. See also Principle of Double Effect; rule of double effect Duff, R. A., 141 embryotomy, 134–46, 135n6 end-of-life care. See assisted death; persistent vegetative state Ephesians, 283 equality: incommensurability and, 96n5 Eucharist, 283 euthanasia. See assisted death fatalism: determinism and, 34 Finnis, John, 1, 6n13, 13, 86, 87n2, 97n6, 101n8, 107n1, 108–9, 111–13, 115, 117, 125–27, 184n12, 189, 213n12, 232n2, 237n12, 238 1 Corinthians, 283 Foot, Phillipa, 138–39, 165n1, 171n3 Franck, Thomas, 212n10 free choice. See choice, free Free Choice (Grisez and Tollefsen), 7 freedom, personal: in health care, 275–305 free will. See will, free future: deterrence and, 194–95; motivation and, 54–55, 91 Garcia, J. L. A., 81n15 Gaudium et Spes (Vatican Council II), 211n9, 213–14 Gibbard, Alan, 8 goals: as directive, 112; goods and, 117–18; motivation and, 53, 99 Golden Rule, 102–3, 125, 218, 234–35, 263

good(s): apparent, 64; in Aquinas, 57, 64, 85, 92; basic human, 56; benefits and, 63–64; commensurability and, 93–94; consequentialism and, 88–90; desire and, 92, 113; destruction of, and actions, 86, 103–5; double-effect cases and, 106; goals and, 117–18; in Grisez, 66–67; health as, 288–89; hierarchy of, 66–67; incommensurability of basic human, 63–68; incommensurable, choosing among, 85–107; incommensurable categories of, 61–82; judgments of, 75–76; morality and, 87, 94, 106; motivation and, 54–59; natural law and, 237; in noncognitivist account of action, 42; practical reason and, 55, 65–66, 114–15, 117; in Principle of Double Effect, 133–34; and prohibition of killing, 331; rule of double effect and, 174–76; in Simpson, 66–67; value and, 75–76 goodness, moral, 129 Grisez, Germain, 1–2, 4, 7, 13, 61, 66–67, 69–70, 72–73, 87n2, 117, 125–26, 128, 189 Gury, J. P., 133–34, 152–53 Hart, H. L. A., 136–37 health: bodily intangibility and, 288; and common good, 297; courage and, 289; defined, 288; as good, 64–65, 288–89; responsibility for, 290, 298–99; temperance and, 289 health care: decision-making authority in, 285–90, 293–94; discretion in, 285–90; paternalism in, 280, 295–99; patient autonomy and, 277–90; personal freedom in, 275–305; refusal of treatment in, 279, 281. See also assisted death Hegland, Kenney, 281 Hehir, Bryan, 207n6 human body: commercialization of, 300–303; unique status of, 282–85 human fulfillment, integral, 109–10, 126–29

356  i n d ex humanitarian intervention: authority in, 222–27; intention and, 220–22; just war theory and, 206–7, 218–27 human rights: authority and, 227; humanitarian intervention and, 206, 211, 223, 226–27; ideological conception of, 226; just war theory and, 218–20 Hume, David, 8, 41, 47 incommensurability: of basic human goods, 63–68; in categories of good, 61–82; choice and, 93–98; and choice between goods, 85–107; as concept, 62; constraints emerging from, 101–7; deliberation and, 97; equality and, 96n5; of options for action, 68–72; responses to, 98–101; selection and, 95n4; value and, 80–81, 93–98, 100–101 incompatibilism, 46–47, 78n12, 80 integral directiveness: choice and, 118–20; defined, 114–18; practical reason and, 118–20, 127 integral human fulfillment, 109–10, 126–29 intention, 10–11; absolutism and, 328; action and, 105–6; in Aquinas, 216; assisted death and, 321–22, 325–29; choice and, 182–83; deterrence and, 194–96, 198–201; humanitarian intervention and, 220–22; in just war theory, 216–18, 220–22; morality and, 179–80; and persistent vegetative state, 316; practical reason and, 177–78; and Principle of Double Effect, 137–38, 141–42, 155–56; rule of double effect and, 165, 167–74, 176–84 internalism, 8, 51n6, 55–56 international law, 207–8, 211–12, 214, 224–28 John XXIII, 249n1 John Paul II, 16, 246, 249n1 Jordan, James N., 23n1

just cause: in just war theory, 212–16, 218–20 justice: common good and, 208; criminal, 212n10; distributive, 241; modes of responsibility and, 125–26; natural, 234, 236; punishment and, 215 justification: affirmation and, 30–31; Principle of Double Effect and, 154, 156–57; rule of double effect and, 171, 173, 175 just war theory: in Aquinas, 209–10, 212–13, 216–17; authority in, 210–12, 222–27; casuistic method in, 207; defining terms in, 205–6; deterrence and, 215; in Gaudium et Spes, 211n9, 213–14; humanitarian intervention and, 206–7, 218–27; human rights violations and, 218–20; intention in, 216–18, 220–22; just cause in, 212–16, 218–20; neighborliness and, 218–19; solidarity and, 221; traditional criteria in, 209–18; in Vitoria, 219–20 Kant, Immanuel, 127, 163, 175, 299, 301 Kavka, Gregory, 197–98 killing, 104–5, 108, 126, 136, 146–50, 153, 315–16, 320–21. See also assisted death Konyndyk, Kenneth, 36–37 Korsgaard, Christine, 8 Laberge, Pierre, 224n22 law: international, 207–8, 211–12, 214, 224–28; suicide and, 322–24; virtue prescribed by, 296. See also natural law Lee, Steven, 201–2 Leo XIII, 237, 239n18, 257n13 Life and Death with Liberty and Justice (Boyle and Grisez), 15–16 Locke, John, 284 Mack, Eric, 287 Mackie, John, 8, 40n2, 42–43, 50, 53n7, 55 marriage, 64, 283

i ndex   357 Marxism, 4 McIntyre, Alison, 171n3 medicine. See health care Mehta, Pratap Bhanu, 213n13 Mill, John Stuart, 284 “modes of responsibility,” 125–26 morality: agency and, 178–79; choice and, 110–11; cognitivism and, 58; deliberation and, 110; deterrence and, 189–93; good and, 87, 94, 106; integral directiveness and, 114–20; integral human fulfillment and, 126–29; intention and, 179–80; “master principle” of, 108–9; norms and, 32, 35, 110; and persistent vegetative state, 315–18; practical reason and, 108–20; property and, 240–41; right reason and, 108–9; rule of double effect and, 172–73; teleological conception of, 90; value and, 86, 106. See also permissibility moral language: “error theory” of, 43 moral responsibility, 27–28, 46–47 motivation: action and, 39–41, 68–69; appetite and, 99–100; benefits and, 52–58, 63; cognitivism and, 39–41, 50–60; deliberation and, 43–45; desire and, 43–44; future and, 54–55, 91; goals and, 53, 99; good and, 54–59; integral directiveness and, 116; noncognitivism and, 41–43, 48; objectivity and, 58–59; practical reason and, 109n6, 122; reflection and, 48, 59; sensory, 123–24; value and, 90–91 murder. See assisted death mutilation, 277, 284, 298–300, 303 Nagel, Thomas, 178, 181 Nardin, Terry, 223n21 natural law: appropriation and, 242; bodily intangibility and, 287–88; defined, 231; good and, 237; human body in, unique status of, 282–85; natural resources and, 244–47; ownership in, 232–38; patient autonomy

and, 282–90; and personal freedom in health care, 275–305; property and, 248–71; welfare rights and, 248–71 natural resources, 244–47 NCNLT. See “New Classical” Natural Law Theory neighborliness: just war theory and, 218–19; welfare rights and, 262–64 neo-Platonism, 283 neo-Thomism, traditionalist, 4 “New Classical” Natural Law Theory (NCNLT), 1–6 noncognitivism: deliberation and, 44–45, 49; desire in, 42, 44–45; motivation and, 41–43, 48; reasons for action and, 41–50; refutation of, 45–50 noncontradiction, 55, 113 normativity, 25, 163–64, 170, 176 norms: consequentialism and, 89–90; and constraints on action, 88; free choice and, 30–37; moral, 32, 35, 110; ownership and, 239–44 Nuclear Deterrence, Morality, and Realism (Finnis, Boyle, Grisez), 13, 117, 189, 191–93, 201–2 objectivism, as term, 40 objectivity, motivation and, 58–59 “On Life-Sustaining Treatments and Vegetative State” (John Paul II), 16 ownership: in Aquinas, 231, 232–34, 236, 239, 252–53, 256n12; authority, 253; common use and, 233–34; moral criticism of regimes of, 240; natural law conception of, 232–38; natural resources and, 244–47; necessity overriding, 254–57; normative account of, 239–44; property and, 240; welfare rights and, 260 Pacem in Terris (John XXIII), 249n1 pain: in persistent vegetative state, 307 palliative care, 320, 334–35. See also assisted death

358  i n d e x paternalism, in health care, 280, 295–99 patient autonomy, 277; assisted death and, 324–25; and commercialization of body, 300–303; considered judgment on, 278–82; limits of, 290–93; limits of, based on concern for others, 293–95; natural law account of, 282–90 Paul, 283 PDE. See Principle of Double Effect performativity, 28–30, 160–61 permissibility: deterrence and, 189; just war theory and, 208; rule of double effect and, 165–71, 173, 176–84. See also morality persistent vegetative state (PVS): benefits of continued treatment in, 309–12; burdens of continued treatment in, 312–15; defined, 302; dignity in, 311, 313; family members and, 314; harms in, 311; morally relevant circumstances in, 315–18; pain in, 307; and patient will, 312–13; permanent, 306–7; persistence aspect of, 307 physician-assisted suicide. See assisted death Pius XI, 239n18 Pius XII, 281–82 practical reason, 4–5; action and, 69, 112; choice and, 110–20; deliberation and, 121; good and, 55, 65–66, 114–15, 117; integral directiveness and, 118–20, 127; intention and, 177–78; morality and, 108–20; motivation and, 109n6, 122; principles of, 111–14; right reason and, 108–9; rule of double effect and, 177–78; unfettered, 120–26 pregnancy, 135–46, 302 Principle of Double Effect (PDE), 11–13; absolutism and, 162–63; actions and, 140, 161–62; agency and, 149, 163–64; in Aquinas, 144–46, 154–55; choice and, 163–64; defined, 133–34, 152; embryotomy and, 134–46; intention and, 137–38, 141–42, 155–56; justifi-

cation and, 154, 156–57; performance and, 160–61. See also double-effect casuistry; rule of double effect principle of totality, 299 property: in Aquinas, 14, 251–58, 285–86; body as, 285–86; moral evaluation of arrangements of, 240–41; natural law account of, 248–71; ownership and, 240; patient autonomy and, analogy between, 291–92; welfare rights and, 258–62. See also ownership propositions, self-referential, 29 psychological determinism, 4 PVS. See persistent vegetative state Quadragesimo Anno (Pius XI), 239n18 Quinn, Warren, 174–76 rationality: determinism and, 35 Raz, Joseph, 39n1, 96n5, 259n16 reason: in Aquinas, 3; practical, 4–5; and responses to incommensurability, 98–101; right, 108–9. See also practical reason reasons for action, 38–60; cognitivism and, 39–40, 50–60; communication of, 38; deliberation and, 43–45; ethics and, 38–39; future and, 54–55; and incommensurability of basic human goods, 63–64; motivational element in, 39–41; noncognitivism and, 41–50; objectivity and, 58–59; reflection and, 48; selection and, 46. See also motivation reflection: deliberation and, 115–16, 116–17; motivation and, 48, 59 refusal of medical treatment, 279, 281, 324–25 Regan, Donald, 80 relativism: determinism vs., 23–24 religion: as good, 129n21 Rerum Novarum (Leo XIII), 239n18 resources, natural, 244–47 responsibility: agency and, 177; for bodily welfare, 284; for health, 290,

i ndex   359 298–99; in health care, personal, 275–305; moral, 27–28, 46–47 Rodin, David, 212n10 rule of double effect: agency and, 177–84; defined, 165; grounding of, 171–76; practical reason and, 177–78. See also Principle of Double Effect

Tollefsen, Olaf, 2, 7 totality principle, 299 trusteeship, 238

Scanlon, T. M., 8, 55n10 Schroeder, Mark, 8 Second Vatican Council, 211n9, 213–14, 249n1 selection: action and, 46; appetite and, 73; desire and, 77–78; incommensurability and, 95n4; volition and, 77 self-contradiction, 34 self-defeating, 29–30 self-defense, 147–48, 153 self-falsification, 29 self-referentiality, 29 self-refutation: as concept, 28–29; determinism as, 23–37; performativity and, 29–30 sensory appetite, 53n7 sensory experience, 122–24 side-effects: action and, 105–6. See also Principle of Double Effect; rule of double effect Simpson, Peter, 62n2, 66–67 skepticism: determinism vs., 23–24 sociality: as good, 129n21 solidarity, 221, 265, 312, 316–17, 334 subjectivism, 40n2 subjectivity: desire and, 58 subsidiarity, 241, 250, 268–69, 287 suicide, 276–77, 322–24. See also assisted death Summa Theologiae (Aquinas), 14, 64, 251n3. See also Aquinas surrogate motherhood, 302

value: commensurability and, 79; deliberation and, 94; free choice and, 80–81; goods and, 75–76; incommensurability and, 80–81, 93–98, 100–101; judgments of, 79–80; morality and, 86, 106; motivation and, 90–91; and options for action, 69–70. See also benefits Vatican Council II. See Second Vatican Council vegetative state. See persistent vegetative state Vitoria, Francisco de, 219–20 volition: appetite and, 73–74; appetite vs., 53n7; choice and, 27, 48, 119; selection and, 77; value and, 80

teleology, 86–92, 98, 101, 107 temperance, 289–90 Thomas Aquinas. See Aquinas Thomson, Judith Jarvis, 11, 147

United Nations Charter, 207n5, 211, 224–25 use, common, 233–34, 237, 254–55, 262

Walzer, Michael, 191, 206–7, 213, 223n21 war. See just war theory welfare rights: capacity and, 267; in Cicero, 261n17; defined, 248–49; dignity and, 249–50; in John Paul II, 249n1; in John XXIII, 249n1; natural law and, 248–71; neighborliness and, 262–64; ownership and, 260; political society and, 266–67; property and, 258–62; social conditions and, 262–71; subsidiarity and, 268–69 Wheeler, Nicholas, 207n4 will, free: free choice vs., 27; incompatibilism and, 47; moral responsibility and, 27–28; persistent vegetative state and, 312–13. See also choice, free Williams, Bernard, 8, 41, 51, 55–57 World War II, 103

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