Culpability and the definition of deontological constraints

Law and Philosophy

Volumn 27, Issue 2, 2008, Pages 105-122

  Oberdiek, John ^a  

^a and law in the military   (United States)

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[No Author keywords available]

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EID: 38349116797     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1007/s10982-007-9012-8     Document Type: Review

References (41)

1. See Philippa Foot, 'The Problem of Abortion and the Doctrine of Double Effect', in Virtues and Vices, new edition (New York: Oxford University Press, 2003).
2. See Frances M. Kamm, Intricate Ethics (New York: Oxford University Press, 2007), p. 22.
3. See also the Loop variation on the traditional trolley case, as described in Judith Jarvis Thomson, 'The Trolley Problem', in William Parent (ed.), Rights, Restitution and Risk (Cambridge, MA: Harvard University Press, 1986), pp. 101-102, which strongly suggests that intentionally harming another as a means to saving yet others is permissible.
4. Michael S. Moore, 'Patrolling the Borders of Consequentialist Justifications', Law and Philosophy, DOI 10.1007/s10982-007-9011-9 (hereafter "Patrolling the Borders").
5. Moore refers to deontological constraints as "agent-relative prohibitions" - the ideas are one and the same. Thus Stephen Darwall writes, "[a] central issue in the debate between consequentialist theories or right and deontological theories such as contractualism has been whether a satisfying philosophical rationale can be provided for agent-relative restrictions ('deontological constraints')." Darwall, The Second-Person Standpoint (Cambridge, MA: Harvard University Press, 2006), pp. 36-37.
6. Michael S. Moore, 'Torture and the Balance of Evils', 23 Israel Law Review 281 (1989),
7. reprinted in Michael S. Moore, Placing Blame: A General Theory of the Criminal Law (New York: Oxford University Press, 1997). All citations to this article refer to the reprinted version.
8. Ibid., p. 700.
9. Ibid., p. 704.
10. T. M. Scanlon, 'Intention and Permissibility I', Proceedings of the Aristotelian Society, Supp. Vol. 74 (2000), pp. 301-317,
11. and T. M. Scanlon, 'Moral Assessment and the Agent's Point of View', (unpublished manuscript).
12. Scanlon, 'Intention and Permissibility I', ibid., p. 307.
13. Scanlon most clearly observes this in 'Moral Assessment and the Agent's Point of View', supra note 7.
14. Scanlon, 'Intention and Permissibility I', supra note 7, p. 311.
15. Judith Jarvis Thomson writes, "the question whether it is morally permissible for a person to do a thing just is not the same as the question whether the person who does it is thereby shown to be a bad person." Judith Jarvis Thomson, 'Physician-Assisted Suicide: Two Moral Arguments', 109 Ethics (1999): p. 517.
16. See also Jonathan Bennett, 'Morality and Consequences', The Tanner Lectures on Human Values, Vol. II, S. McMurrin, ed., (Salt Lake City: University of Utah Press, 1981), p. 99.
17. Both are referred to in Scanlon, 'Intention and Permissibility I', pp. 305 and 306.
18. Ibid., p. 312.
19. This example is derived from one in Scanlon, 'Moral Assessment and the Agent's Point of View', supra note 7, which is itself derived from an example suggested to Scanlon by Thomson.
20. T. M. Scanlon, What We Owe to Each Other (Cambridge, MA: Harvard University Press, 1998), p. 19. Cast in terms of epistemic reasons, Scanlon characterizes the distinction thusly: "There is a difference between asking what reason there is for believing that P and asking what a given person's reason for believing it was." Ibid. The former reasons are normative while the latter are operative.
21. Moore attributes the claim to Joseph Raz, who apparently articulated it in a seminar taught with Moore in 1989. See Moore, 'Patrolling the Borders', Law and Philosophy, DOI 10.1007/s10982-007-9011-9. Moore does not discuss Scanlon's view in particular.
22. Moore, 'Patrolling the Borders', Law and Philosophy, DOI 10.1007/s10982-007-9011-9.
23. Ibid.
24. Ibid.
25. Ibid., p. 23.
26. Ibid.
27. Alternately, the concern might be that the remaining stock of normative reasons will be insufficient to justify the existence of options or an agent-centered prerogative, that is, the permission to refrain from acting in ways that do not maximize the good. See Samuel Scheffler, The Rejection of Consequentialism (New York: Oxford University Press, 1982).
28. Joseph Raz, Value, Respect, and Attachment (Cambridge, UK: Cambridge University Press, 2001), p. 114.
29. It is worth emphasizing that the death-causing activities that Moore believes would be prohibited by a too-constraining constraint are best described as risky activities. For this reason, it is perhaps best to approach the permissibility of such activities by delineating standards of permissible risk imposition. Scanlon himself sketches the outlines of such an approach. He maintains, "the cost of avoiding all behavior that involves risk of harm would be unacceptable. Our idea of 'reasonable precautions' defines the level of care that we think can be demanded: a principle that demanded more than this would be too confining, and could be reasonably rejected on that ground." Scanlon, What We Owe to Each Other, supra note 14, p. 209.
30. For a development of Scanlon's position, see John Oberdiek, The Morality of Risking: On the Normative Foundations of Risk Regulation (Ph.D dissertation, University of Pennsylvania, 2003), pp. 91-193.
31. The rejection of such a conception might be justified on multiple grounds. A conception of morality that so thoroughly pitted morality against the good life would be too alien a force to have any authority in the practical deliberation of those whom it purports to bind. If this authority is to be preserved - no doubt a significant desideratum of an account of morality - then any account of morality (including constraints) that undermines that authority must be rejected for this reason as well. See Samuel Scheffler, Human Morality (New York: Oxford University Press, 1992).
32. See also, Moore, 'Torture and the Balance of Evils', p. 706.
33. Christopher Hitchcock makes a related point in discussing the implications of settling controversies over whether one event in fact causes another in a range of cases: 'Yet I invite the reader to ask herself whether anything of import hinges upon the answer to this question.... Would we be better placed to assign praise or blame? The answer . . . is a resounding 'no'.' Christopher Hitchcock, 'Of Humean Bondage', 54 British Journal for the Philosophy of Science (2003): p. 9.
34. Moore, 'Patrolling the Borders', Law and Philosophy, DOI 10.1007/s10982-007-9011-9.
35. The violinist case is introduced in Judith Jarvis Thomson, 'A Defense of Abortion', 1 Philosophy and Public Affairs (1971).
36. Ibid.
37. For discussion of agent-neutral reasons that are nonetheless indexed to particular agents, see Joseph Raz's discussion of "action reasons" in The Morality of Freedom (Oxford: Oxford University Press, 1986), pp. 145-46.
38. Raz traces the roots of the idea to a distinction within agent-neutral reasons first drawn by Derek Parfit in Reasons and Persons (Oxford: Oxford University Press, 1984), p. 104.
39. Moore, 'Torture and the Balance of Evils', supra note 4, p. 720.
40. Williams introduces his hypothetical case in Bernard Williams, 'A Critique of Utilitarianism', in J. J. C. Smart and Bernard Williams, Utilitarianism: For and Against (New York: Cambridge University Press, 1973), p. 221.
41. I would therefore reject Jeffrey Brand-Ballard's claim that a defense of constraints must be "either agent focused, patient focused, or neither." See Jeffrey Brand-Ballard, 'Contractualism and Deontic Restrictions', 114 Ethics 269 (2004): p. 276. An account of constraints that is interpersonal in the way that I have suggested it must be is both agent- and patient-focused. It is worth noting, too, that I reject Brand-Ballard's more specific claim that Scanlonian contractualism is patient-focused: Scanlonian contractualism is, in my view, plausible in part because it is interpersonal and not (merely) patient-focused.