What ethical responsibility cannot justify: A discussion of ronald dworkin's justice for hedgehogs

Boston University Law Review

Volumn 90, Issue 2, 2010, Pages 691-713

  Kamm, F M ^a,b  

^a HARVARD UNIVERSITY   (United States)

^b HARVARD UNIVERSITY   (United States)

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EID: 77954335731     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (156)

1. See RONALD DWORKIN, JUSTICE FOR HEDGEHOGS (forthcoming 2010) (Apr. 17, 2009 manuscript at 128, on file with the Boston University Law Review). Presumably one should think of oneself as objectively and intrinsically important only if one really is. I do not think Dworkin proves we have this importance. Rather he indicates that we believe we have this importance by showing, for example, that we blame ourselves if we waste our lives and we think it is important that we find correct values according to which to live.
2. Id. (manuscript at 128-30).
3. See id.
4. See id.
5. See id. (manuscript at 134) ("Living well means not just designing a life, as if any design would do, but designing it in response to what one takes to be objective ethical value ....").
6. Presumably, one should view things as having objective ethical value only if they have it. Is Dworkin's view that if there were no objective ethical values (no objectively successful ways to live) and one knew this, one could not have dignity? That is, if one thought that one was objectively important, but also thought that none of life's options had objective ethical value, would one not have dignity?
7. DWORKIN, supra note 1 (manuscript at 124-27) (discussing the distinctions between living well and living a good life, and using the example of a Medici prince who has led a good life but, through his immorality, has not have lived well). Dworkin thinks the problem of moral luck affects how good one's life is, not whether one has lived well.
8. See id. (manuscript at 126) ("Someone may have a bad life in spite of living well because the goodness of his life does not depend entirely on his own decisions and efforts: it depends critically on his circumstances and luck as well."). He says that the person who faultlessly kills a child has had a less good life, but has not lived less well.
9. Id. (manuscript at 127) (describing a bus driver who feels sorrow after faultlessly crashing and killing a dozen children, which thus decreases the goodness of his life). The person may regret what happened in his life but not blame himself for it.
10. Id. ("I can . . . regret that my life was spoiled by the fact that but for my blameless acts a tragedy would not have happened.").
11. Cases such as this one may, however, raise problems for Dworkin's view that living well is more important than having a good life. For what if the person's doing something morally wrong would have prevented him from accidentally killing the child? For example, suppose his stopping at a bar, and thus driving intoxicated, would have caused him to arrive too late to get in an accident. Is this a case in which it would be reasonable to prefer to have lived less well and had a better life? If how one interacts with others can affect how good one's life is, there may be many cases in which, for the sake of others, one should prefer to have lived less well and had a better life. And if one did not live less well and have a better life, one will regret that fact, even if one will not blame oneself for it.
12. See id. (manuscript at 124-27) (explaining the possibility of living a good life, but not living well, by making immoral decisions). Dworkin wishes to affiliate his views about ethics with those of Aristotle on the good life.
13. See id. (manuscript at 13). However, Aristotle claimed that the good life had to include success as one part; if one lived morally and wound up on the rack or had bad luck, one would not have achieved the good life.
14. See ARISTOTLE, THE NICOMACHEAN ETHICS bk. XIII, at 14 (N. Kretzmann et al. eds., Hippocrates G. Apostle trans., D. Reidel Publ'g Co. 1975) (c. 384-322 B.C.E.) (explaining that suffering terrible luck precludes happiness).
15. Since Dworkin argues that one can have lived well in the absence of success and in the presence of much bad luck, it seems to me that Dworkin's ideal of living well differs from Aristotle's ideal of the good life. Dworkin's idea of a good life (which may not be a life well-lived) may correspond in some ways more closely to Aristotle's ideal. For example, Dworkin says that "[w]hether people have lived well is not affected by what happens after they have ceased to live at all....But whether someone has had a good life can be influenced after his death by anything that adds or takes away from its achievements or hopes." DWORKIN, supra note 1 (manuscript at 127). Aristotle famously includes postmortem events in deciding how good a life one has had.
16. See ARISTOTLE, supra, at 14-15 (discussing the contribution of postmortem events to one's happiness).
17. DWORKIN, supra note 1 (manuscript at 128) (explaining how the two components of dignity, self-respect and authenticity, "are ethical principles about how to live [and not just] moral principles about how to treat other people").
18. In his view, it is important that morality not be merely a component of an ethical life where the content of the component is derived independently of ethics.
19. Id. ("If moral values are best understood as integrated with rather than simply incorporated in ethical responsibility, then we might hope to capitalize on the connection in a more powerful interpretive exploration of moral conviction.").
20. Dworkin wants ethics, when described independently of morality, to play a role in deriving the content of morality (which may then play a role in characterizing the ethical life).
21. See id. This is connected with his interpretive view of normative components, according to which our understanding of each component should be formed in the light of the others. See
22. id. This is Dworkin's way to eliminate conflicts between the different normative components. It is also connected with his views about metaphysics. For example, Dworkin claims that moral truth is not about discovering what views correspond to independent moral entities (which he refers to as "morons").
23. Id. (manuscript at 8-9) (explaining that while some believe the existence of "morally charged particles or morons ... can make a moral judgment true," the only way to "'earn' the right to think that some moral judgment is true" has nothing to do with these morons). Apparently, he thinks that if there were conflicts between moral virtues such as kindness and honesty that could not be eliminated by proper interpretation of each virtue, this could only be because there were such morons corresponding to each virtue. This was part of his response to Richard Fallon's presentation at the Boston University School of Law Symposium.
24. See Ronald Dworkin, Response to Panel II: Interpretation at Justice for Hedgehogs: A Conference on Ronald Dworkin's Forthcoming Book (Sept. 25-26, 2009) (transcript on file with the Boston University Law Review) (responding to Richard Fallon's remarks and pointing out that we may not be successful in being both kind and honest, but that if we were to say conflict is inevitable, "that seems to me dangerously close to believing in morons"). I think Dworkin is wrong to believe that ineliminable normative conflicts have this metaphysical implication.
25. See DWORKIN, supra note 1 (manuscript at 165) (explaining the "Kant principle": the perspective of "a person who recognizes the objective importance of his life going well and therefore the equal objective importance of any life going well").
26. Id. (manuscript at 15).
27. Dworkin says that he is not concerned with whether the ethical ideal of living well is or should be a motive for moral action,
28. id. (manuscript at 122), but with whether "we can sensibly assume that our ideas about what morality requires and what best serves the right human ambition should reinforce one another."
29. Id. (manuscript at 123) (emphasis added). And he thinks that the question "why be moral" is "more profitably understood... as asking how we can account for the appeal of morality that we already feel."
30. Id. (manuscript at 12).
31. Note that Dworkin says that it is not out of bounds to say that one's dignity is threatened if one could not live with oneself if one did something immoral.
32. Id. (manuscript at 122).
33. But in such a situation, one's dignity does not help one derive the content of morality; the content of dignity is just conceived as requiring that one be moral. It thus involves incorporation of morality into dignity, not the integration of the two that Dworkin says he seeks.
34. See id. (manuscript at 128); supra note 8.
35. See DWORKIN, supra note 1 (manuscript at 167) (arguing that if, as Kant says, moral duty is isolated from other moral values, then ethics cannot explain moral duty, and implying this is not the case because "Kant's argument begins... with ethical demands that match the two principles of dignity").
36. Id. (manuscript at 165).
37. Id.
38. Id. (manuscript at 176). This weighing of self versus others to determine one's moral obligations to others occurs after one has decided what constitutes a successful life for oneself. Dworkin's view allows that one could consider the interests of others in deciding what constitutes success in one's own life, but not because one morally owes them this.
39. Id. (manuscript at 175-76).
40. For example, one might consider whether helping others would make one happier and so more successful. Suppose one is choosing a career as a model or a brain surgeon and is undecided on the grounds of personal satisfaction in these fields. The fact that one could help others as a brain surgeon could be taken to be an additional source of satisfaction. However, this is different from the moral thought that, because it would make no difference to my satisfaction overall, helping others gives me a moral reason to be a brain surgeon rather than a model. Stating that one should reasonably decide among life projects in the first instance by taking account of moral considerations would be an objection to Dworkin's view. Professor Appiah raised such an objection in his conference presentation.
41. See Kwame Anthony Appiah, Dignity and Global Duty, 90 B.U. L. REV. 661, 669 (2010) ("[Dworkin's] formulation continues to imply that the perspective of ethics permits me to utterly ignore the needs of others in conceiving of my success; that is, it ignores the possibility... that I ought to take account of the deep need of others in defining what it is for my life to go well.").
42. DWORKIN, supra note 1 (manuscript at 178) ("I show indifference to the importance of human life when I refuse aid that I could provide with no dent to the success of my own life, but not when I refuse aid that would seriously threaten my own success as I have identified it.").
43. One might, of course, argue that being willing to give up a penny to save someone's life is sufficient to show that one is not indifferent to his life. This could be true even if one would give no more to save his life even though giving more would not dent one's success. I shall assume that Dworkin is concerned with more than minimally ruling out indifference.
44. Id. (manuscript at 177).
45. Id. (manuscript at 174-75) (explaining that interfering with others' lives to attempt to make them successful would not show respect for their dignity).
46. See id. (manuscript at 165, 174-75);
47. id. (manuscript at 176) ("I do not show contempt for human life even when I refuse to make more admirable sacrifices....I would not imply that I regarded the lives of others as intrinsically less important than my own if I refused to [make such sacrifices].").
48. Id. (manuscript at 177). Dworkin says this is true at least if there is a just distribution of resources.
49. Id. Although this is not currently true, he does not say whether or how our duties are different when the distribution is unjust.
50. Id. (manuscript at 176).
51. Suppose your responsibility is to someone else, not to yourself. The fact that the other would suffer a significant loss and has not waived his right against you to fulfill the responsibility may constrain you from doing a supererogatory act for a third party. But if the person to whom you have the responsibility is willing to suffer a large loss, as you are in doing the supererogatory act, neither of you may be failing to perform an ethical duty to yourself that should stand in the way of the supererogatory act.
52. See, e.g., 2 F.M. KAMM, MORALITY, MORTALITY 311-48 (1996) [hereinafter KAMM, MORALITY];
53. F.M. Kamm, Supererogation and Obligation, 82 J. PHIL. 118 (1985) [hereinafter Kamm, Supererogation]. These earlier works dealt with moral duties in conflict with supererogation; here we are talking about what Dworkin calls an ethical duty and its relation to supererogation.
54. DWORKIN, supra note 1 (manuscript at 176-77).
55. Notice I have not here argued that there is no responsibility to oneself because I, to whom a duty would be owed, could always release myself from it.
56. DWORKIN, supra note 1 (manuscript at 178).
57. Id. In his presentation at the Symposium, Professor Appiah dismissed the idea that Dworkin thinks that physical distance in itself matters morally (and also the idea that it could matter).
58. See Appiah, supra note 16, at 669 (explaining that, "[l]ike Dworkin I think that... almost all of us are directly confronted with people who need help to have a chance at a life of dignity," and that "[p]roximity of the relevant kind is epistemic, not geographical" (footnote omitted)). I think Appiah is wrong on both counts.
59. See DWORKIN, supra note 1 (manuscript at 179).
60. See id. (manuscript at 178) ("[The confrontation scale] is more difficult to state and justify, but it is real and distinct, and we cannot make sense of much common moral understanding unless we find place for it.").
61. Id. (manuscript at 179).
62. See, e.g., F.M. KAMM, INTRICATE ETHICS 345-97 (2007).
63. Id. at 347-49.
64. See id. at 368-97.
65. DWORKIN, supra note 1 (manuscript at 178).
66. KAMM, INTRICATE ETHICS, supra note 31, at 368-97.
67. DWORKIN, supra note 1 (manuscript at 179).
68. For arguments that reach this conclusion, see Kamm, Supererogation, supra note 24.
69. See also 1 F.M. KAMM, MORALITY, supra note 24, at 304-30.
70. DWORKIN, supra note 1 (manuscript at 179).
71. Id. (manuscript at 184).
72. Id. (manuscript at 185).
73. Id.
74. Id. (manuscript at 184) ("[I]t cannot be the objective importance of human life that you offend when .. . you shoot the stranger [to save your own life]. The same preference for your own life is still at work and is still compatible with Kant's principle [of the objective value of persons].").
75. Dworkin also seems to believe that maximizing the number of lives saved by shooting some people to save others is compatible with valuing life and showing respect for that value.
76. See id. (manuscript at 188). He does not argue that this is required by valuing or respecting life, because he does not argue that the value of respecting life requires us to count the numbers of lives we save.
77. (For example, he argues that if we cannot save both one person on one island and five on another island, it is not necessarily disrespectful of human life to give each person an equal chance to be saved rather than saving the greater number.) The fact that Dworkin thinks that shooting someone to save other lives is consistent with valuing and respecting the objective value of life suggests that he takes a view about life resembling a view held by some about rights. That is, it has been argued that it is (at least) consistent with valuing rights that one deliberately transgress some rights in order to prevent the transgression of additional comparable rights, as in a case where one shoots a bystander to prevent someone else from shooting more bystanders.
78. See KAMM, INTRICATE ETHICS, supra note 31, at 288.
79. Some have even argued that if such minimizing transgression is impermissible, the reason cannot be concern for rights but concern for a duty that an agent has that he not transgress someone's right.
80. Id. at 268
81. (citing Jeremy Waldron, Introduction to THEORIES OF RIGHTS (Jeremy Waldron ed., 1984)).
82. Similarly, Dworkin argues that concern for the value of life cannot be the reason why we should not take life to save lives; rather, an ethical duty must be appealed to.
83. See DWORKIN, supra note 1 (manuscript at 187-90).
84. For discussion of views about minimizing rights violations, see 2 KAMM, MORALITY, supra note 24, at 237-58.
85. However, it is possible, contrary to what Dworkin says, that it is the objective value of human life that grounds a right to one's body. For killing someone out of a concern for human life (e.g., one's own) need not mean that one's acts are consistent with respect for the value of human life. As noted above,
86. see supra text accompanying notes 17-19, Dworkin interprets respect for any human life as not being indifferent to it, giving it enough weight.
87. DWORKIN, supra note 1 (manuscript at 193).
88. However, this may not be a complete or even appropriate idea of respect for human life. (It is certainly not Kant's.) Alternatively, it is possible that it is not the objective value of human life that is crucial to having a right to one's body, but rather the nature of the person. I shall not pursue this matter here.
89. By contrast, I think that acting to terminate life-saving aid that we are providing is a case of not aiding, though our act causes death.
90. DWORKIN, supra note 1 (manuscript at 185).
91. Id. (manuscript at 135).
92. Id. (manuscript at 188-92).
93. See id. (manuscript at 189).
94. Id.
95. Id. (manuscript at 190). Such nondeliberate harm may still be the effect of a deliberate act undertaken for other reasons.
96. Id. (using as an example rerouting a trolley to save five people while in the act allowing another to get killed).
97. Id.
98. Id.
99. Dworkin thinks his views explain and not merely coincide with the DDE: Other philosophers say that it is always wrong to aim at someone's death....But that explanation simply restates the problem. If someone's motives are good - to save as many people as possible - why should it matter whether he actually aims at the death of a smaller number or simply knowingly produces their death? Once again we find a more plausible answer .... The second principle, which requires that I take responsibility for decisions that define my living well, distinguishes between . . . bad luck... and cases of usurpation that do contradict it.
100. Id. (manuscript at 189).
101. Id. (manuscript at 135).
102. Id.
103. See id.
104. Id. (manuscript at 188-92).
105. Id. (manuscript at 191).
106. Id.
107. Id. ("[People's] reactions depend, I suspect, whether they conceive of the proposed switch as a switch away from five people or a switch toward a buffer person.").
108. See, e.g., KAMM, INTRICATE ETHICS, supra note 31, at 91-122.
109. Id.
110. For more detailed discussion of the because of/intending to (or in order to) distinction and the Party Case, see generally id.
111. See id. at 272-75.
112. See id. at 274 (referring to the same scenario as the Two Diseases Case).
113. See DWORKIN, supra note 1 (manuscript at 190).
114. Dworkin also believes that causing the hit because we see it as good, in relation to saving five people, will involve usurping a person's ethical responsibility to decide what is a good use of his life.
115. Id.
116. ("The large man, in an act of near incredible heroism, might throw himself on the track [to prevent the trolley from hitting others]. He might think, as Sydney Carton did in making the same sacrifice, that that would be a far better thing than anything else he could do with his life. But no one else is permitted to make that choice for him."). Above, I argued against the view that even intentional harm for the good of others must involve ethical paternalism.
117. See Ronald Dworkin, Response to Panel IV: Morality: Aid, Harm, and Obligation at Justice for Hedgehogs: A Conference on Ronald Dworkin's Forthcoming Book (Sept. 25-26,2009) (transcript on file with the Boston University Law Review).
118. Rather his aim was to show that it was a problematic case just because it seemed to involve doing what is ordinarily ruled out, namely, overriding a person's own conception of his good.
119. See id. One of my points, however, is that the Loop Case may be problematic because it is mistakenly taken to involve intending something bad for someone. This is because people may think, as Dworkin does, that intending the hit is entailed by acting (or omitting) on the ground that the hit would be useful.
120. Id.
121. I have tried to show that there need be no such entailment. I have also tried to argue that redirecting the trolley because hitting the one is good for the five does not involve overriding a person's own conception of his good in a way that conflicts with Dworkin's notion of ethical responsibility
122. DWORKIN, supra note 1 (manuscript at 191).
123. See id.
124. IMMANUEL KANT, CRITIQUE OF PURE REASON 578-86 (Werner S. Pluhar trans., Hackett Publ'g Co. 1996) (1781 & 1787) (arguing that existence is not a predicate of anything and therefore not a predicate of God).
125. For more hypothetical cases with this structure, see KAMM, INTRICATE ETHICS, supra note 31, at 91-122 (discussing examples such as the Store Case, the Munitions Grief Case, and the Secondary Transplant Case).
126. DWORKIN, supra note 1 (manuscript at 191).
127. Id. (manuscript at 169).
128. Id. (manuscript at 172).
129. See id. (pointing out that the veil of ignorance may serve participants' "interests because it allows them to concentrate on the crucial question of what treating everyone's life as having the same objective importance requires").
130. See supra Parts II-III.
131. DWORKIN, supra note 1 (manuscript at 188).
132. Id. (manuscript at 189).
133. See T.M. Scanlon, Contractualism and Utilitarianism, in UTILITARIANISM AND BEYOND 127 (Amartya Sen & Bernard Williams eds., 1982);
134. see also F.M. Kamm, Should You Save This Child? Gibbard on Intuitions, Contractualism, and Strains of Commitment, in RECONCILING OUR AIMS: IN SEARCH OF BASIC ETHICS 120-46 (Allan Gibbard ed., 2008) (discussing interpretations and arguments for and against ex ante reasoning).
135. See DWORKIN, supra note 1 (manuscript at 128).
136. See supra Part II.
137. See DWORKIN, supra note 1 (manuscript at 176).
138. Id. (manuscript at 177).
139. See id. (manuscript at 167-68, 209).
140. Someone might not perform his duty because he got the wrong answer when he independently decided on whether he had the duty. He would then not have decided in a way that was in accordance with a component of human dignity, according to Dworkin.
141. Id. (manuscript at 176). Alternatively, someone might not perform his duty because he independently decided not to act on his knowledge of his duty.
142. Id. (manuscript at 191).
143. Id.
144. See id.
145. See id.
146. See id.
147. Id. (manuscript at 135).
148. See supra Part II. 93 DWORKIN, supra note 1 (manuscript at 191).
149. See 2 KAMM, MORALITY, supra note 24, at 297-98.
150. Id. at 298.
151. Id. at 294.
152. Id. at 293-94. I would now add: at a time when it was still in his interest to do the act that kills him.
153. Id. at 300-02.
154. Id. at 300.
155. Id. at 301-02. I would also add that it may be of moral significance in legitimating this agreement that there is (potential) reciprocal sacrifice.
156. For a more complete discussion of my view about the right explanation, see id. at 290-310 (analyzing the permissibility of various agreements).