Dworkin's two principles of dignity: An unsatisfactory nonconsequentialist account of interpersonal moral duties

Boston University Law Review

Volumn 90, Issue 2, 2010, Pages 715-735

  Simons, Kenneth W ^a,b  

^a Department of Law ^*  (United States)

^b BOSTON UNIVERSITY   (United States)

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EID: 77954344914     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (154)

1. RONALD DWORKIN, JUSTICE FOR HEDGEHOGS (forthcoming 2010) (Apr. 17, 2009 manuscript at 128, on file with the Boston University Law Review).
2. Id. (manuscript at 132).
3. Id. (manuscript at 210).
4. Id. (manuscript at 133).
5. Id. (manuscript at 176).
6. Id.
7. Id.
8. Id. (manuscript at 176-79).
9. Id. (manuscript at 180-82).
10. Id. (manuscript at 183-86).
11. Id. (manuscript at 185-87).
12. Id. (manuscript at 183-86).
13. Id. (manuscript at 187-91).
14. Id. (manuscript at 188-91).
15. Id. (manuscript at 187-91).
16. Id. (manuscript at 192).
17. Id.
18. Id.
19. Id. (manuscript at 180-82).
20. Id. (manuscript at 181).
21. Dworkin thinks it obvious that saving two rather than one is the proper default choice, but he does not adequately explain why a weighted lottery (giving the single swimmer a one-third chance of being saved) is not an equally plausible default.
22. See id.
23. Id. (manuscript at 188).
24. Id. (manuscript at 176-78).
25. See id. (manuscript at 180-81).
26. Id. (manuscript at 175).
27. Id. (manuscript at 176).
28. Id.
29. See id.
30. Id. (manuscript at 175-79).
31. See id. (manuscript at 176).
32. Id. (manuscript at 176-77).
33. Id. (manuscript at 177).
34. See also id. (manuscript at 176), where Dworkin asks whether "I have at least a prima facie duty to help a stranger when he is in danger of losing his life or becoming incapable of functioning as a normal human being?" He later answers affirmatively.
35. Id. (manuscript at 177) ("We must ask . . . whether denying him aid will make it impossible for him to pursue value in his life at all.").
36. See id. (manuscript at 162-63).
37. To be sure, there is some ambiguity here in Dworkin's exposition: whatever the magnitude of the harm to the stranger, he says, my duty to prevent it "is greater when I can do so with less risk to or interference with my own life."
38. Id. (manuscript at 177). This might imply that he would require a more extensive duty to aid than is suggested in the text. But he also seems to assume that I only need to act if the harm is "serious."
39. Id.
40. Consider Richard Epstein's early writings. E.g., Richard Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151, 197-99 (1973) (asserting that rejection of common law Good Samaritan doctrine and imposition of a duty to rescue would make it difficult to establish the "limits of social interference with individual liberty").
41. For example, many Kantian theorists endorse a duty of beneficence. Corrective justice theorist Ernest Weinrib once endorsed a limited duty to rescue. Ernest J. Weinrib, The Case for a Duty to Rescue, 90 YALE L.J. 247,251 (1980).
42. Joel Feinberg suggests that a duty of easy rescue is much more justifiable than a generalized duty to benefit others when one can easily do so, because the duty to rescue is one instance of a duty to prevent another from suffering harm. See JOEL FEINBERG, HARM TO OTHERS, 130-50 (1984).
43. Note the criticism of Feinberg by Liam Murphy, Beneficence, Law, and Liberty: The Case of Required Rescue, 89 GEO. L.J. 605,627-30 (2001), who argues that failures to rescue are better understood as failures to benefit.
44. DWORKIN, supra note 1 (manuscript at 177).
45. Id.
46. Id.
47. Dworkin takes this example from T.M. Scanlon, Preference and Urgency, 72 J. PHIL. 655, 659-60 (1975) ("The fact that someone would be willing to forego a decent diet in order to build a monument to his god does not mean that his claim on others for aid in his project has the same strength as a claim for aid in obtaining enough to eat...."). Here, of course, Scanlon is arguing that the idiosyncratic preference of the person in need of aid (rather than the preference of the rescuer) is not morally decisive.
48. It is possible that Dworkin's theory has more bite, however, in situations where A's reason for not aiding is neither (a) that aiding risks causing A significant harm (harm that could interfere with his general pursuit of his life projects), nor (b) that aiding would interfere with some specific project, such as completing his temple on time; but rather, where A's reason for not aiding is just (c) that A does not want to be bothered. Perhaps in such a case, A must rescue, at least if the interference with the rescuee's life plans is serious enough.
49. DWORKIN, supra note 1 (manuscript at 178).
50. Id. (referring to "particularization" and "proximity" as the elements of confrontation).
51. Id. (manuscript at 179).
52. Id.
53. Id.
54. Dworkin's assertion that we would pay "whatever further sums it takes" to save the trapped miner is an exaggeration.
55. Id.
56. We would not spend five-hundred million dollars to save a trapped miner; and we do call off rescues of missing persons when the chance of saving them is extremely low but greater than zero.
57. Id.
58. See id.
59. See id. (manuscript at 178-79).
60. It almost seems that Dworkin embraces the intuition that identifiability of the victim is morally salient just because it is a telling counterexample to what economic analysis would suggest. But, it hardly follows from the fact that economists and consequentialists would oppose a position, that nonconsequentialists should embrace it. The enemy of my enemy need not be my friend.
61. DWORKIN, supra note 1 (manuscript at 19).
62. Id. (manuscript at 179).
63. MARTHA C. NUSSBAUM, HIDING FROM HUMANITY: DISGUST, SHAME, AND THE LAW 1-4 (2004) (warning that the psychological reactions of disgust and shame, although unavoidable, should not be the foundation of legal rules, in part because of the risk this poses to stigmatized groups such as gays and the disabled).
64. Tehila Kogut & Ilana Ritov, The "Identified Victim" Effect: An Identified Group, or Just a Single Individual?, 18 J. BEHAV. DECISION MAKING 157, 157-65 (2005);
65. see also Deborah A. Small & George Loewenstein, Helping a Victim or Helping the Victim: Altruism and Identifiability, 26 J. RISK & UNCERTAINTY 5, 5-14 (2003) (finding that even "weak" identifiability increased the altruism of subjects).
66. See Reed Abelson, Months to Live: Weighing Medical Cost of End-of-Life Care, N.Y. TIMES, Dec. 22, 2009, at Al (referring to estimates that the United States could save $700 billion a year by reducing costs of end-of-life care).
67. See Ronald Dworkin, Keynote Address: Justice for Hedgehogs, 90 B.U. L. REV. 469, 471 (2010) (arguing that we should spend less "keeping people alive" at the end of their lives because people could spend that money on useful activities throughout life instead of financing expensive end-of-life care).
68. See Jim Rutenberg & Jackie Calmes, False 'Death Panel' Rumor Has Some Familiar Roots, N.Y. TIMES, Aug. 14,2009, at Al.
69. See DWORKIN, supra note 1 (manuscript at 178-79).
70. Dworkin's arguments about the scope of our duty to alleviate global poverty are similarly problematic.
71. See id. (manuscript at 179).
72. We do have such a duty, he says, given the high need under the first metric and the low cost under the second, but he believes that the factor of confrontation is still relevant: if we are more vividly aware of African poverty today than in years past, due to extensive media coverage, this "aggravate[s] [our] failure of duty" to respond to the problem, and we should feel more shame when we do not respond adequately.
73. Id.
74. But this view, taken literally, has bizarre consequences - for example, the greater the media coverage of a natural disaster or of a poverty problem, the more funds we are morally required to allocate towards alleviating the problem, even if we know that greater problems exist elsewhere that the media have not highlighted.
75. See id. (manuscript at 187).
76. Kenneth W. Simons, Tort Negligence, Cost-Benefit Analysis, and Tradeoffs: A Closer Look at the Controversy, 41 LOY. L.A. L. REV. 1171, 1188 (2008) (rejecting as "highly implausible" the use of unqualified consequentialist cost-benefit analysis as a criterion of tort negligence).
77. See DWORKIN, supra note 1 (manuscript at 186-87),
78. stating that the Learned Hand test is the correct basic strategy for determining when risk-creation is permissible, but endorsing a restricted version of the test, under which we compare how much the actor's projects and plans are set back by taking a precaution, relative to how much not taking the precaution (and thus causing damage) would set back the projects and plans of others.
79. See supra Part I.
80. In tort law, of course, he would most likely not have a legal duty to compensate them, since liability for emotional harm alone is imposed only in narrow circumstances not present here. See DAN B. DOBBS, 2 THE LAW OF TORTS §302 (2001).
81. For the original example, see T.M. SCANLON, WHAT WE OWE TO EACH OTHER 235 (1998). In Scanlon's version, Jones is trapped under fallen equipment, and, in order to rescue him, we must turn off the transmitter for fifteen minutes.
82. Id.
83. Id.
84. See id.
85. As stated, Dworkin's balancing test does not include such a constraint, though it would be easy enough for him to add one. See DWORKIN, supra note 1 (manuscript at 187).
86. This is not an unrealistic assumption, I think, in light of the maniacal behavior of sports fans around the world.
87. See DWORKIN, supra note 1 (manuscript at 187).
88. Perhaps one could distinguish this second example from the first because the sports fans are not literally the injurers, but are people who benefit from the injurer (the TV station) not taking a precaution. But I am not so sure that this matters. Would it really make a moral difference if the TV station owner also was a rabid sports fan and considered this experience of watching the World Cup final the highlight of his year?
89. Simons, supra note 59, at 1191-92, 1202-08.
90. DWORKIN, supra note 1 (manuscript at 132, 177). Elsewhere in Justice for Hedgehogs, Dworkin's analysis of what political justice does and does not require implicitly employs the idea of an unjust or undeserved subsidy.
91. See id. (manuscript at 221-27).
92. For discussions of this topic in the context of unconstitutional conditions, see Seth Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. PA. L. REV. 1293, 1294-300 (1984);
93. Kenneth W. Simons, Offers, Threats, and Unconstitutional Conditions, 26 SAN DIEGO L. REV. 289, 292-94 (1989);
94. Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV L. REV. 1413,1415-19(1989).
95. DWORKIN, supra note 1 (manuscript at 186).
96. For an analysis along similar lines from a prominent tort scholar suggesting that tort law balances the interests in liberty and security, see Gregory C. Keating, Reasonableness and Rationality in Negligence Theory, 48 STAN. L. REV. 311,382-84 (1996).
97. DWORKIN, supra note 1 (manuscript at 186) ("My goal is to maximize my control; that is what my ethical responsibility for my own life demands.").
98. It is surprising that Dworkin's criterion here employs "maximization," since his purpose is to supply an alternative to the utilitarian "maximization of utility" criterion.
99. Id. (manuscript at 209). To be sure, he wants to maximize "control," not "utility." Still, many nonconsequentialists criticize any form of maximization. Moreover, why does Dworkin focus here on "control"? Perhaps this is a result of his analysis of free will earlier in the book,
100. see id. (manuscript at 137-60), or of his antisubjugation principle, which I discuss in the next Part. But it is unwise to employ an undifferentiated concept of "control" in all of these contexts. Distinct conceptions of "control" are actually at work.
101. Id. (manuscript at 186-87).
102. Id. (manuscript at 186).
103. Kenneth W. Simons, The Restatement (Third) of Torts and Traditional Strict Liability: Robust Rationales, Slender Doctrines, 44 WAKE FOREST L. REV. 1355, 1356 (2009). Similarly, the fact that almost all tort liability is insurable means that even a very expansive negligence or strict liability rule need not be a severe burden on actors.
104. See DWORKIN, supra note 1 (manuscript at 187-88). In some versions of DDE, intentionally causing harm is categorically forbidden.
105. Id. (manuscript at 187).
106. See JORAM GRAF HABER, ABSOLUTISM AND ITS CONSEQUENTIALIST CRITICS 10 (1994) ("[C]onsequentialists hardly think kindly of the D.D.E. convinced as they are that consequences alone determine right conduct.").
107. DWORKIN, supra note 1 (manuscript at 187-88).
108. Id. (manuscript at 188-91).
109. The trolley problem was introduced by Philippa Foot. See PHILIPPA FOOT, The Problem of Abortion and the Doctrine of the Double Effect, in VIRTUES AND VICES AND OTHER ESSAYS IN MORAL PHILOSOPHY 19, 23-31 (Oxford Univ. Press 2002) (1978).
110. Judith Jarvis Thomson made the problem famous. See Judith Jarvis Thomson, The Trolley Problem, 94 YALE L.J. 1395, 1395-415 (1985).
111. DWORKIN, supra note 1 (manuscript at 189)
112. ("[Some] philosophers say that it is always wrong to aim at someone's death no matter what the gain. That explains our reactions to the transplant and trolley examples, they say....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?").
113. See id. (manuscript at 133-34).
114. See id. (manuscript at 188-91).
115. One example is a doctor's duty not to provide medical care to a patient unless she has the patient's consent Id. (manuscript at 189).
116. The person turning the trolley merely diverts the path of a threatening object; but the person pushing the fat man is committed to using or appropriating the victim's body as a means to the end of saving the five. For two recent, valuable discussions that try to refine and more deeply justify this distinction, see F.M. KAMM, INTRICATE ETHICS: RIGHTS, RESPONSIBILITIES, AND PERMISSIBLE HARM 138-76 (2007);
117. T.M. SCANLON, MORAL DIMENSIONS: PERMISSIBILITY, MEANING, BLAME 18-20 (2008).
118. DWORKIN, supra note 1 (manuscript at 191) (emphasis added).
119. Id. (manuscript at 189-90) (emphasis added).
120. Dworkin at one point suggests that what is impermissible is relying on a justification that "suppose[s] my right to decide what it is desirable should happen to you."
121. Id. (manuscript at 190) (emphasis added).
122. But this broad criterion, too, is unpersuasive. Even in the scenario where the actor turns the trolley, this criterion is, in one sense, satisfied: we believe that the state of affairs in which the trolley is turned is a better state of affairs, from either a deontological or consequentialist perspective, than the state of affairs in which it is not turned. Yet this is not the same as deciding that it is desirable that the person on the spur should die or be harmed. And, on a narrower understanding of the criterion, even pushing the fat man does not satisfy it. The actor choosing that unfortunately necessary means to the end might greatly regret that he must use this harmful alternative. And again, it is not the case that the actor who pushes the victim has decided that the best use of the victim's life is to sacrifice him to save five. Rather, the actor has decided to use the victim's body, and presumably would be delighted if the victim survived. Notice, finally, that the likelihood that harm will ensue is not the decisive consideration in deciding which of the courses of actions is morally permissible. Even if the fat man has only a 50% chance of dying, while the person on the spur in the diverted trolley scenario would have a 90% chance, using the fat man's body as a brake arguably is impermissible while diverting the trolley is not.
123. Id. (manuscript at 189).
124. Id.
125. See id. It also has importance in the context of personal ethics.
126. See id. (manuscript at 133)
127. ("We cannot escape influence, but authenticity [the second principle of dignity] requires us to resist domination. The distinction is of great ethical importance: it is the difference between limitation and subordination.").
128. Id. (manuscript at 189).
129. Even in the liver transplant example, arguably the death of the elderly patient need not be intended. The doctor could anesthetize the patient, remove his liver, and then hope against hope that the patient miraculously survives. But many deontologists would concede that in this type of case, what the doctor does intend to do (remove a liver from a patient who needs it to survive) is "close enough" to intending the patient's death that it should be so considered for purposes of DDE.
130. DWORKIN, supra note 1 (manuscript at 188) (emphasis added).
131. Id. (manuscript at 189).
132. Dworkin pairs this example of an impermissible harming with an example of a permissible harming that results in the same consequence, the death of the other. Dworkin supposes that the actor and the other both need the medicine to survive a rattlesnake bite, and the actor merely outruns the other and thus secures the medicine for himself, realizing, however, that this will cause the other to die.
133. See id. (manuscript at 183).
134. Note that in this example, as in the trolley and liver transplant examples, what is problematic is not that the actor improperly supposes that he is the final judge of how another's body or welfare should be used. In both cases, the actor decides to save himself knowing that this will be at the cost of the life of another. If the actor needing the medicine knows that he is very likely to outrace the other, his choice to race and secure the medicine for himself does not, in any meaningful sense, preserve the other actor's right to decide for himself whether his life will be lost.
135. See id. (manuscript at 188-89).
136. Id. (manuscript at 189).
137. Id. (manuscript at 191).
138. Id.
139. Dworkin asserts that the distinctions between killing and letting die, and between deliberate harm and the harm that occurs as a result of legitimate competition, also are explained by the anti-usurpation principle.
140. Id. (manuscript at 183-86).
141. Referring to the rattlesnake bite scenario noted earlier, see supra note 97,
142. Dworkin claims that there is an important moral difference between killing someone to obtain a needed medicine and competing in a race for the medicine with that person: But any general transfer of control over the integrity of my body, particularly to those who do not have my interests at heart, would leave my dignity in shreds. Only when we recognize that connection between dignity and bodily control can we understand why killing someone is intuitively horrifying when letting him die, even out of the same motive as we might have for killing him, is not.
143. DWORKIN, supra note 1 (manuscript at 185).
144. This argument flounders in ways that we have already encountered. Usurpation or control is not the morally relevant difference in these cases. Note, first, that the wrongfulness of killing someone (as opposed to letting someone die) often has nothing to do with the victim's lack of conscious control. A bomb can kill instantly, and thus not affect the victim's ability to control his fate; a failure to save a victim from drowning can result in the victim helplessly flailing in the water for a considerable period of time, and thus measurably compromise his control over his fate. Moreover, a particular killing method could permit the victim some degree of control, and yet the method could thereby be more, not less, horrifying and morally blameworthy. Thus, suppose murderer Marv places you into a contraption that permits you the choice of killing yourself sooner or dying more slowly and painfully. Murderer Max simply kills you suddenly. It is not obvious that Max, by taking away your control, is more blameworthy, but that is what Dworkin's analysis suggests.
145. Dworkin purports to address the problems with a consequentialist account of interpersonal moral duties within his comprehensive "interpretive" perspective
146. . Id. (manuscript at 79-119).
147. have not addressed his interpretive strategy in this Comment. However, I believe that that perspective is much more suitable to understanding legal practice, see RONALD DWORKIN, LAW'S EMPIRE 45-86 (1986), than to solving the problems of metaethics, reconciling free will and responsibility, or justifying moral duties.
148. See KAMM, supra note 86, at 91-224;
149. ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 149-294 (1974);
150. SCANLON, supra note 86, at 89-121;
151. Larry Alexander, Deontology at the Threshold, 37 SAN DIEGO L. REV. 893, 893-912 (2000);
152. Michael S. Moore, Patrolling the Borders of Consequentialist Justifications: The Scope of Agent-Relative Obligations, 27 L. & PHIL. 35, 35-96 (2007);
153. Amartya Sen, Rights and Agency, 11 PHIL. & PUB. AFF. 3, 3-39 (1982).
154. See generally Larry Alexander & Michael Moore, Deontological Ethics, THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Fall 2008), http://plato.stanford.edu/ archives/fall2008/entries/ethics-deontological (discussing the relationship between deontological and consequentialist norms).