Can a Nonconsequentialist count lives?

Philosophy and Public Affairs

Volumn 31, Issue 1, 2003, Pages 71-94

  Wasserman, David ^a   Strudler, Alan ^b  

^a UNIVERSITY OF MARYLAND   (United States)

^b UNIVERSITY OF PENNSYLVANIA   (United States)

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[No Author keywords available]

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EID: 33644925801     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.2003.00071.x     Document Type: Article

References (62)

1. JohnTaurek, "Should the Numbers Count?" Philosophy & Public Affairs 6 (1977): 293-316.
2. See, for example, Derek Parfit, "Innumerate Ethics, " Philosophy & Public Affairs 6 (1978): 285-301
3. Gregory Kavka, "The Numbers Should Count, " Philosophical Studies 36 (1979): 285-94.
4. See Frances Kamm, Morality, Mortality Vol. I: Death and Whom to Save From It (New York: Oxford University Press, 1993), chap. 6
5. Frances Kamm, "Precis of Morality, Mortality Vol. I: Death and Whom to Save From It, " Philosophy and Phenomenological Research 58(1998): 939-45
6. Rahul Kumar, "Unanimity and Aggregation" (Unpublished ms.)
7. Rahul Kumar, "Contractualism on Saving the Many, " Analysis 61 (2001): 165-70
8. Thomas Scanlon, What We Owe To Each Other (Cambridge: Harvard University Press, 1998), chap. 5.9.
9. See also Rahul Kumar, "Defending the Moral Moderate: Contractualism and Common Sense, " Philosophy & Public Affairs 28 (1999): 275-309.
10. We will not consider all the nonconsequentialist arguments that have been raised in the recent literature. In particular, we will not consider arguments that the greater-numbers rule is binding because it would be chosen behind a veil of ignorance, since that argument has been rejected by most nonconsequentialists who have considered it, for instance
11. Kamm, "Precis, " p. 941
12. Eric Rakowski, Equal Justice (Oxford: Clarendon Press, 1991).
13. Nor do we consider Kamm's Consistency Argument, which concludes only that we are permitted (but not necessarily required) to save the greater number because "in saving the greater number, we would not be overriding fairness or goodness for the sake of good consequences" ("Precis, " p. 941). We see this conclusion as overly modest.
14. See, for example, Derek Parfit, Reasons and Persons (Oxford: Clarendon Press, 1984), part 4
15. Samuel Scheffler, The Rejection of Consequentialism (Oxford: Oxford University Press, 1982)
16. Larry Temkin, "Rethinking the Good, Moral Ideals, and the Nature of Practical Reasoning, " in Reading Parfit, ed. Jonathan Dancy (Oxford: Blackwell, 1997), pp. 290-345
17. Jeff McMahan, "Wrongful Life: Paradoxes in the Morality of Causing People to Exist, " in Bioethics, ed. John Harris (Oxford: Oxford University Press, 2001), pp. 472-75.
18. Kavka, "The Numbers Should Count, " pp. 291-92.
19. Shelly Kagan, "The Additive Fallacy, " Ethics 99 (1988): 5-31, at 26 expresses general doubts about "transport arguments, " which assume that a given factor, such as the failure to save a life, has an invariant moral weight that can simply be transported from one context to another. But although Kagan regards this assumption as unjustified, he does not suggest, as we do, that the saving of an additional life has different moral significance in conflict and nonconflict settings.
20. Consider a lifeguard who can rescue drowning swimmers only by tossing them a large, bulky raft, which requires considerable exertion to heft. On Kavka's view, he would commit the same wrong in failing to toss the raft to a lone swimmer drowning off the beach (first case) as he would in tossing the raft to four swimmers drowning off one end of the beach instead of five drowning off the other end (second case), even if the total effort in getting the raft to the five in the second case would be no greater than the effort in getting the raft to the lone swimmer in the first case (so that the marginal effort in getting the raft to the five rather than the four in the second case would be less than the total effort in getting the raft to the one swimmer in the first case). Assume that the reason for his failure would be the same in the two cases-that he would have sprained his neck if he tossed the raft at all in the first case, or if he tossed it the greater distance to the five swimmers in the second, although he would be virtually certain in either case to get the raft to the swimmers). For Kavka, there would be no moral difference between the two cases: in both, the lifeguard would waste a life, displaying a grossly deficient concern for that life.
21. Kamm, Morality, Mortality, p. 101.
22. None of the nonconsequentialist authors we discuss suggest that their accounts yield a different prescription than certain types of consequentialism in pure-numbers cases. This raises the following question: If balancing, for example, is extensionally equivalent to a form of consequentialism in this context, what is its significance? It explains the appeal of consequentialism, we think, yet diminishes that appeal. Balancing provides an alternative explanation for the strong conviction that the numbers count in simple conflicts among lives, and thereby denies consequentialism the intuitive foothold it appears to have in pure numbers cases. If the balancing approach explains the Tightness of saving the greater number in those cases, it may also explain why consequentialism gets the right answer: that rightness in these cases requires what consequentialism happens to prescribe. But this coincidence would not make consequentialism a less problematic basis for moral reasoning. One would generally do better to reason in terms of deontological notions than to rely on consequentialism, which at best accidentally endorses nonconsequentialist prescriptions in limited contexts, and hence cannot reliably provide a correct solution to moral problems in other contexts.
23. Kamm, "Precis of Morality, Mortality, pp. 940-41.
24. Scanlon, What We Owe to Each Other, p. 232.
25. Pursuant to his general project of understanding morality in terms of the search for principles that people motivated to justify their conduct toward each other could not reasonably reject, Scanlon looks for a principle that would pass muster in forced choices among (unequal numbers of) lives. A principle that permitted the rescuer to save either the larger or smaller group, such as an equal- chances principle, would not give each individual's life the same importance. The principle would permit someone, faced with the choice between saving one stranger⋯ and saving two other strangers from the same fate, to save only the one. In such a case, either member of the larger group might complain that this principle did not take account of the value of saving his life, since it permits the agent to decide what to do in the very same way that it would have permitted had he not been present at all, and there was only one person in each group The fate of the single person is obviously being given positive weight, he might argue, since if that person were not threatened then the agent would have been required to save the two. And the fact that there is one other person who can be saved if and only if the first person is not saved is being given positive weight to balance the value of saving the one. The presence of the additional person, however, makes no difference to what the agent is required to do or how she is required to go about doing it. This is unacceptable, the person might argue, since his life should be given the same moral significance as anyone else's in this situation⋯ the reason presented by the needs of a second person in one of these two groups must at least have the power to break this tie.
26. Elizabeth Anscombe, "Who Is Wronged?" Oxford Review 5 (1967): 16-17.
27. Frances Kamm, "Owning, Justifying, and Rejecting, " Mind 111 (2002): 323-54.
28. We can surely imagine cases where a rescuer balances some, but not all, the members of the larger group, but these are cases of negligent or biased balancing. The rescuer may, for example, dutifully balance the individuals on both sides, and be left with one extra person on the larger side who happens to be a Black or a Jew, and the rescuer, a racist or anti-Semite, takes no account of his life and tosses a coin. In standard conflict cases, in contrast, the rescuer who declines to save the greater number does not disregard anyone in particular.
29. The position that only the unbalanced members of the larger group are wronged would also imply that a rescuer who saved one rather than six would wrong five people, while a rescuer who saved five rather than six would wrong only one person. But even if we consider the rescuer as having committed a greater wrong in the former case
30. (see "A Parting Challenge, " supra), we do not think he has wronged more people.
31. Kamm, Morality, Mortality, p. 119.
32. Each imperiled individual would have the same kind of complaint as citizens entitled to vote on a particular issue that their leader instead resolved by a coin toss: All would have been slighted by a departure from a procedure that respected their equality, regardless of how congenial they find the result. Ultimately, the question of whether the members of the smaller as well as the larger group have a complaint may be a matter of "standing"-of whether an individual must actually be harmed to have a complaint. If not, all the imperiled individuals have a complaint; if so, then even the members of the larger group lack a complaint if the coin toss happens to go their way.
33. Kamm appears to favor the latter understanding. She maintains that "what each person is owed is to have his presence fully taken into account and this implies that what each is owed is to be weighed against an equal and opposite number"
34. (.Owing, Justifying, and Rejecting, p. 347).
35. Scanlon, however, does not explicitly endorse balancing as the procedure that uniquely satisfies this obligation.
36. Kamm accepts, as an "ideal procedure, " a proportional-chances rule in certain types of conflicts among lives, where it is possible to save both the larger and smaller group but not possible to save the latter only
37. (Morality, Mortality, pp. 122-34).
38. In the present article, however, we are considering only conflicts in which it is not possible to save everyone, for which Kamm favors the direct choice of the larger group over proportional chances.
39. Scanlon, What We Owe to Each Other, p. 234.
40. Dan Brock, "Ethical Issues in Recipient Selection for Organ Transplantation, " in Organ Substitution Technology: Ethical, Legal, and Public Policy Issues, ed. Deborah Mathieu (Boulder: Westview Press, 1988), pp. 86-99.
41. Kamm, Morality, Mortality, p. 117.
42. Kumar, "Unanimity and Aggregation, " p. 29
43. Kamm, "Equal Treatment, Equal Chances, " Philosophy & Public Affairs 14 (1985): 177-94, at 181.
44. Kamm, "Equal Treatment, Equal Chances, " p. 181.
45. But in this case, the islanders would face abandonment only as the waters rose, and the only advantage of an equal-chances rule would be that it preserved their chances, and hopes, of rescue somewhat longer. If each already had an equally small chance of being on the larger island in an archipelago that followed a greater-numbers rule, each would have simply gotten his chance earlier rather than later. Does the demand for equal chances at the last possible moment place an excessive premium on the here-and-now?
46. But perhaps it is illicit to invoke the proportion of people abandoned by the competing rules.
47. We should note, although we cannot adequately consider, a threshold challenge to balancing as a truly nonconsequentialist justification for the greater-numbers rule: that it implicitly involves the aggregation of individual claims.
48. In "Scanlon and the Claims of the Many Versus the One, " Analysis 60 (2000): 288-93
49. Michael Otsuka contends that "the Kamm-Scanlon argument for saving the greater number considers C's claim in combination with B's claim so that they together tip the balance in favor of saving B and C" (p. 291). The appearance that Kamm and Scanlon are appealing to C's claim alone is, Otsuka insists, "an illusion: C tips the balance in favor of saving B and C only when C's claim is
50. Kumar responds to this challenge with an interpretation of balancing on which it does not involve the combination of the claims of individuals on the same side but rather the removal of successive pairs of opposing claims from the scale, until one claim is left without an opposing one to balance ("Contractualism on Saving the Many, " Analysis 61 [2001]: 165-70).
51. But the justification for removing each balanced pair of claims from the scale, rather than placing all claims on the scales at the same time, remains obscure. Kumar hints at a justification in describing the opposing claims as "neutralizing" each other and the additional claim(s) as "undefeated"-if the claims are neutralized or defeated in being balanced against each other, they lose their weight and are appropriately removed from the balance. But the description of the opposing claims as neutralizing or defeating each other seems more appropriate to combat than balancing; in ordinary balancing, after all, an object does not lose its weight in being paired against another of equal weight. And if the claims are in combat, why assume that their mutual defeat is a foregone conclusion? Moreover, the suggestion that the opposing claims are neutralized or defeated seems at odds with Kamm's view that they retain enough additional weight or force to prevent the resolution of the conflict by a trivial claim on one side or the other; by what Kamm calls an "irrelevant utility" (Morality, Mortality, chap. 6, 8). If Kumar's account is not satisfactory, however, it is incumbent on those who use balancing in a nonconsequentialist justification of the greater-numbers rule to improve on it.combined with B's claim" (p. 292). While we do not find the language of combining claims transparent in this context, we acknowledge that Otsuka poses a difficult challenge for the proponent of balancing.
52. Some of the appeal in balancing one against only one may come from the idea that allowing the claim to one person (Ed) to balance the claims of more than one other (Ted and Fred) would treat the claims of Ted and Fred as having less weight than the claim of Ed, and therefore treat their lives as having less value. But this appeal is illusory. Nothing in the proposed treatment of Ted and Fred implies the lesser value of their lives. If their claims have lesser weight in virtue of being balanced by Ed's claim, that lesser weight is not "portable"; if either of them were to find himself alone, confronting more than one person, then his claim could also have greater weight than the claims of those opposing him. Any individual-Ed, Ted, or Fred-can just as plausibly insist that his claim balances more than one opposing claim. The weight of any individual's claim would be the same as any other's in the same circumstances, and this is arguably all that equality requires.
53. Although Scanlon cautions that "it is important not to rely on the slippery metaphor of weight"
54. (What We Owe to Each Other, p. 397, n. 35)
55. it is not clear how he can avoid such reliance and still maintain that in one-on-one conflicts, the fact that one person can be saved only if the other is not "is being given positive weight to balance the value of saving" the other.
56. Kamm, Morality, Mortality, chap. 8.
57. Kumar, "Contractualism on Saving the Many, " p. 167.
58. One might look for the source of one-against-one balancing in the same understanding of equality that arguably informs the requirement of one person, one vote, a possibility Kamm explored in "Equal Treatment, Equal Chances." There appears to be a close parallel to balancing in the paired departure of voters with opposing positions on a given issue, a procedure that preserves the majority and if carried through to the end leaves only voters supporting the majority position. The paired opponents balance each other out; their serial confrontation culminates in a unanimous residue. There are two different sorts of problems with the analogy to one person, one vote, depending on how close an analogy it is intended to be. It might be argued, as Kamm did in "Equal Treatment, Equal Chances, " that the rescue claims of the imperiled individuals on each side could be treated as votes for the rescuer to go to their side. If their claims are construed as votes, the rescuer flouts majority rule if he flips a coin or goes to the smaller side. This analogy, however, contains serious flaws. One, which Kamm partially recognized, is that in a vote about whom to save, the majority would not necessarily vote for its own survival. While it might not be unfair for the rescuer to go to the smaller side if that were the unanimous choice of the larger group's members (the case Kamm considers), it would be unfair for some coalition of members from both groups to get a majority vote for the rescue of the smaller group, if that group was outnumbered by the dissenting members of the larger group-if, for example two of the four people on one side of Taurek's island were relatives of the sole person on the other side and voted together with that person for the rescuer to go to his side. The proponent of a greater-numbers rule would still insist that the rescuer go to the larger side, with two individuals seeking their own rescue, rather than to the smaller side, with only one. And the proponent of an equal-chances rule would insist that even if majority rule were generally an appropriate way to make collective decisions, it would not override important rights, such as the right not to be surgically sacrificed, or, in this case, the right to an equal chance of rescue.
59. Rakowski (Equal Justice, pp. 286-88)
60. also objects that to allow majority rule in a forced choice between lives would be to consign the smaller group to a "permanent minority." But the fact that if the members of the smaller group lost this vote, they would never get to vote again, does not seem to pose a serious objection to majority rule. This would be true of any potentially terminal vote in a democracy, for instance, on whether to disband the polity. What is objectionable about being in a permanent minority is the indignity of being on the losing side on every important decision, not the frustration of losing the final vote.
61. Kumar, "Unanimity and Aggregation, " p. 35.
62. Kamm, Morality, Mortality, pp. 117-18.