Deontology, Individualism, and Uncertainty: A Reply to Jackson and Smith
Ron Aboodi, Adi Borer, and David Enoch
1.
The Problem, and Two Examples
Discussions of deontological moral theories typically focus on the advantages and
disadvantages of deontological constraints, rules to the effect that some actions should
not be performed – at least sometimes – even when performing them will maximize
the good. And, of course, the jury is still out on whether deontological constraints can
be defended.
But in their recent paper "Absolutist Moral Theories and Uncertainty", Frank
Jackson and Michael Smith1 emphasize not the general and well-known challenges to
deontological constraints, but a more particular difficulty relating to what
deontologists2 should say about cases of uncertainty. In their key example, a skier is
about to cause the death of ten people by causing an avalanche. Jackson and Smith
assume that whether or not it is morally permissible (and presumably also – given the
possibility of saving the ten – morally required) to kill the skier (this is the only way
of saving the ten) depends, according to a typical deontological theory, on whether or
not he intends to kill the ten: If so, then he can permissibly be killed in self- (or other) defense. If not, then it is presumably impermissible to kill him, for presumably a
1
Frank Jackson and Michael Smith, "Absolutist Moral Theories and Uncertainty", Journal of
Philosophy 103 (2006), 267-283; all page references in the text are to this paper.
2
Jackson and Smith put their challenge as a challenge not to deontology in general, but rather to
absolutism (plausibly considered a particular instance of deontology). We explain why reading their
challenge as a challenge to deontology in general is more interesting below, in footnote 5.
deontological constraint forbids the killing of an innocent person, even in order to
save ten innocent people from dying in an avalanche3.
The problem, though, is that you don't know for sure whether or not the skier
intends to kill the ten. In other words, the probability – p – of him being innocent (that
is, of him not intending to kill the ten) is lower than 1, but higher than 0. The typical
deontological view Jackson and Smith argue against forbids killing the skier to save
the ten if p=1, and permits (and perhaps also requires) to kill the skier if p=0. But
what does such a theory have to say about other values of p? The view according to
which the constraint applies in all its force for any p>0 is highly implausible, for this
view entails – in practical circumstances, where certainty is almost never present – the
most extreme form of pacifism. The view according to which the constraint doesn't
apply unless p=1 is a highly implausible understanding of deontology, for this view is
– in practical circumstances, where certainty is almost never preset – extensionally
equivalent with typical forms of consequentialism (without certainty, the constraint
will just never apply). What else, then, can the deontological view say about cases
with intermediate p?
This is, of course, already a theoretically important question. But given that in
the real world we hardly ever have certainty in such matters, this is also a practical
problem. A deontological theory that has nothing to say about cases with 1>p>0 really
has nothing to say about practically all real-life cases. The severity of the problem
thus cannot be overstated.
3
We are not going to quibble over the details here: In the context of the theory of self-defense, it is
highly controversial whether innocent aggressors can be justifiably killed. But nothing in Jackson and
Smith's argument – or in our reply to it – depends on the details of the example of the target
deontological theory.
If you're not yet convinced, think about another example, one that is – unlike
Jackson and Smith's skier example – entirely practical, and to which we will return
below: The example of criminal punishment. Retributivists about criminal punishment
– typically if not always deontologists – believe that there is a deontological
constraint against punishing (or "punishing") the innocent, and so that at least
sometimes it is wrong to "punish" an innocent person even when doing so promotes
the good. But what do such theories have to say about the required burden of proof in
criminal trials? If we are to require a certainty burden of proof, we will have a highly
implausible theory of criminal punishment, according to which punishment is – in
practical circumstances, where certainty is almost never present – never justified. If
we say the deontological constraint against "punishing" the innocent only applies
where there is no chance at all of guilt, we effectively take all content out of this
deontological constraint. So what should a retributivist say about the appropriate
burden of proof in criminal trials?4
2.
The Threshold View
Jackson and Smith consider several possible deontological replies, and reject
them all. We will not address all of them in this reply. Rather, we are going to limit
ourselves to just what seems to us the initially most promising deontological attitude
towards uncertainty, and Jackson and Smith's most interesting argument against it.
4
Here's one possible reply to this question: "Retributivism (although not necessarily retributivists) is
mute on how high standards of proof ought to be; …" (Jeffrey Reiman and Ernest van der Haag, "On
the Common Saying that It Is Better that Ten Guilty Persons Escape than that One Innocent Suffer: Pro
and Con", in Crime, Culpability, and Remedy (Paul, Miller and Paul eds.) (Basil Blackwell, Oxford,
1990), 242-3.
We do more to place this argument in the context of Jackson and Smith's paper in a
footnote5.
One of the possible solutions Jackson and Smith consider is the one they call
"the threshold version of absolutism" (275)6. We take this to be the obvious thing for
the deontologist to say: In the skier example, for instance, there is a certain threshold
5
Throughout, Jackson and Smith make the mistake of modeling deontology (or absolutism – we return
to the distinction between the two shortly) in very consequentialist-friendly ways. For instance, they
consider understanding deontology as (just about) a consequentialist theory that places infinite negative
value on constraint-violations, or just very large finite value on such violations. But this will not do, of
course, because deontologists don't have to play the consequentialist value-game at all; they are, after
all, deontologists.
Also, Jackson and Smith choose to argue just against absolutist moral theories – theories, that is,
according to which there are some constraints it is never justified to violate. But this restriction reflects
a surprising – and disappointing – choice, for hardly any (secular) contemporary deontologist is an
absolutist. Contemporary deontologists are typically "moderate deontologists", deontologists who
believe that deontological constraints come with thresholds, so that sometimes it is impermissible to
violate a constraint in order to promote the good, but if enough good (or bad) is at stake, a constraint
may justifiably be infringed. By restricting their target theories to just absolutist theories, Jackson and
Smith lose just about all initially plausible targets. And indeed, some of Jackson and Smith's arguments
do not work against moderate deontological views (in particular, their argument against the "Big Bad
Number" view (273-5) essentially relies on the target view being absolutist and not moderately
deontological).
But some of what Jackson and Smith say can be abstracted from these worrying problems. The
problem mentioned in the previous section is, of course, a serious cause of concern for any
deontologist, and the problem they raise for the threshold view – the problem discussed throughout
most of this reply – is also generalizable in this way.
6
It is perhaps worth saying that the thresholds relevant here are different from the ones mentioned in
footnote 5: Here these are probability-thresholds; there, they are thresholds regarding how much good
(or bad) can justify infringing a deontological constraint.
value for p, such that when p (the probability that the skier does not intend the deaths
of the ten) is over that threshold value the deontological constraint applies in all its
force, whereas when the value of p is below that threshold, the constraint doesn't
apply at all. Let's call this threshold value "moral certainty". Our deontologist says,
then, that if we know to a moral certainty that the skier intends the deaths of the ten, it
is morally permissible (and perhaps also required) to kill him in order to save them,
but if our (justified) confidence in the skier's murderous intentions does not rise to the
level of moral certainty, we ought not to kill him even to save the ten7.
Applied to the example of criminal punishment: The analogous threshold
version of retributivism holds that we are only allowed to punish someone if we are
confident to the point of moral certainty that she is guilty. If our confidence level is
lower than moral certainty, we shouldn't punish, even if "punishing" promotes the
good. Perhaps the traditional burden of proof in criminal trials – beyond a reasonable
doubt – is meant to capture something like this view.
3.
7
Jackson and Smith's Argument against the Threshold Version
The term "moral certainty" has a substantive part to play neither in Jackson and Smith's official
statement of the problem, nor in our suggested solution. All that matters is that there is some threshold
as described in the text. We use the term "moral certainty" only to simplify the wording later on. But
note that Jackson and Smith seem to be using it in a way that renders true the judgment that it is
morally permissible to kill the skier whenever we lack moral certainty that he is innocent (that is, that
he does not intend to kill the ten). We, on the other hand, use it to render true the inverse judgment:
namely, that it is morally impermissible to kill the skier unless we know to a moral certainty that he
intends to kill the ten. We think that our use of the term is more in line with commonsensical intuitions
as well as deontological tradition. And seeing that nothing hinges on this point here – both Jackson and
Smith's argument and our reply can be stated without using the term "moral certainty" at all – there can
be no objection to this choice of words on our part.
Enter Jackson and Smith again, this time with the two-skier example. Assume two
symmetrical skiers, X and Y, each in a position identical to that of the skier in the
one-skier example with which we started: each, that is, about to cause an avalanche
that will kill ten (different) people. And assume that we know to a moral certainty that
X intends the deaths of "his" ten, that we know to a moral certainty that Y intends the
deaths of "his" ten, but – as is surely possible8 – that we do not know to a moral
certainty that both intend the deaths of the relevant ten. It then follows from the
threshold version just described that we should (or at least that it is permissible to) kill
X, that we should (or at least that it is permissible to) kill Y, but that it is
impermissible to kill X and Y – for we do not know to a moral certainty that both
intend to kill the (respective) ten, so the deontological constraint against killing the
innocent applies.
So the threshold version violates, at the very least, Agglomeration – the
requirement that if one ought to Φ and one ought to Ψ then one ought to (Φ-and-Ψ).
And as if this is not bad enough, the threshold version may be committed here to a
highly implausible moral dilemma: For there is no way in which a conscientious agent
can both, say, shoot X, shoot Y, and avoid shooting-X-and-Y. So the threshold
version has highly implausible implications, and should therefore be rejected.
4.
8
A Way Out
Suppose that moral certainty lies at a probability of 95%. And assume that the probability of X being
innocent (that is, not intending the death of the ten) is 4%, and that the probability of Y being innocent
is 4%. The probability that at least one of them is innocent is then roughly 8% (1-(.96*.96). In such a
case, we know to a moral certainty that X intends the death of the ten, we know to a moral certainty
that so does Y, and we don't know to a moral certainty that both do.
In order to explain our way out, it may be useful to start with a simple example.
Assume, then, a deontological theory according to which all and only deontological
constraints are grounded in rights of individuals. According to such a deontological
theory, for instance, the deontological constraint against killing innocent people is
grounded in the right innocent people have not to be killed. And in order to avoid the
accusation of having nothing to say in the real world, where 1>p>0, assume a
threshold version of such a deontological theory, so that we are not allowed to kill a
person (even in order to maximize the good) if we don't know to a moral certainty that
she is liable to lethal self-defense (because, for instance, impermissibly attacking
others).
How will such a deontological theory fare in the face of Jackson and Smith's
two-skier example? Unproblematically, it seems to us. X has a right not to be killed
when innocent, but we know to a moral certainty that he intends to kill the ten, and so
it is permissible – indeed, given the other features of the example, probably morally
required – to shoot X. Similarly for Y. How about shooting-X-and-Y? Well, X-and-Y
– presumably the mereological sum of X and Y – is not a right-bearing creature
(perhaps rights can be had by entities other than individual persons, like maybe a
family, or a nation; but surely to attribute a right to a mereological sum of persons is a
category mistake). So there is no deontological constraint that directly requires that
we not shoot X-and-Y. So the question whether we know to a moral certainty that
both intend the deaths of their respective ten is simply morally irrelevant. Of course,
there is no harm in aggregating duties: If we ought to shoot X, and we ought to shoot
Y, then we ought in this case to shoot X and Y; and if we want, we can put this point
by saying that we ought to perform the complex action of shooting-X-and-Y. But this
way of putting things should not stop us from seeing that this complex action is
normatively epiphenomenal: Its normative status is completely determined by the
normative status of the more simple actions of which it is composed. So according to
the kind of theory sketched here, in the two-skier example we ought to shoot X, and
we ought to shoot Y, and (in a normatively epiphenomenal sense) we ought to shoot
X-and-Y, and this result is not problematic, even though we do not know to moral
certainty that both X and Y are attempting murder.
Or consider a sort-of-contractualist deontological moral theory, according to
which an action is impermissible (under a deontological constraint) iff someone can
reasonably object to its performance9. According to such a view, so long as we know
to a moral certainty that X intends the deaths of the ten, X cannot reasonably object to
us shooting him, and so we are allowed to shoot him. Similarly, of course, for Y. How
about shooting X-and-Y? Well, we know that X can't reasonably object to us so
acting, and the same goes for Y. Who else could object? If X-and-Y were a morally
significant entity, perhaps X-and-Y could object. But, of course, X-and-Y is not a
morally significant entity. So no one can reasonably object to the action of us
shooting X-and-Y10. And again, this is simply because shooting X-and-Y is
normatively epiphenomenal on the actions of shooting X and of shooting Y.
What these examples show, we think, is that Jackson and Smith's argument
can be rejected in the following way: The normative status of the complex action
shooting-X-and-Y is completely determined by the normative status of the more basic
9
This is very loosely based on Scanlon's contractualism. See Scanlon, T. M., What We Owe to Each
Other (Cambridge, MA: Harvard University Press, 1998).
10
This point is an analogue of the much-discussed issue of aggregation in Scanlon's theory. In that
theory one can only reasonably reject principles on individualist grounds. See, for instance, Sophia
Reibetanz, "Contractualism and Aggregation", Ethics 108 (1998), 296-311; F. M. Kamm, "Aggregation
and Two Moral Methods", Utilitas 17 (2005), 1-23.
actions shooting-X and shooting-Y. Though we can talk about the complex action as
well, it is normatively epiphenomenal, and so no deontological constraint applies to it,
and so the question of uncertainty at this level doesn't even arise. When we shoot
both, there is no particular person whom we kill while lacking moral certainty of his
murderous intentions11. And this is sufficient to show that our action does not violate
the relevant deontological constraint.
Jackson and Smith consider and quickly reject something like this suggestion
(278). They say that the threshold version cannot deal with the two-skier example by
saying that only the status of each action counts, because then whether or not we are
allowed to shoot X-and-Y will depend on whether we're using two bullets (one for X
and one for Y, in which case each shooting is allowed, and so so is the complex
action) or just one powerful bullet to kill both (in which case this is the basic action,
and it is wrong, because it violates a deontological constraint). It is important to notice
that this reply doesn't apply to the line of thought sketched earlier. We do not claim
that what matters is the number of actions performed. We claim, rather, that what
matters is the nature and grounds of the relevant deontological constraint. Under the
assumption (of which more shortly) that the relevant deontological constraint has
something to do with X's moral status, or with Y's moral status, and that the
mereological sum X-and-Y has no similar moral status, our solution holds. So what
11
At one point Jackson and Smith put their target theory thus:
R'': "it is absolutely forbidden to form the intention to kill someone you believe with degree of belief
p* or above to be innocent." (280)
But, contrary to their suggestion, and in line with the thought in the text, R'' is not exposed to the twoskier problem. If a potential shooter follows R'' in the two-skiers case, there is no particular someone
whom she believes sufficiently confidently to be innocent. Of course, she is sufficiently confident that
at least one of X-and-Y is innocent. But this is not in violation of R'', as X-and-Y is not a "someone".
do we say about the one-powerful-bullet-for-both-skiers example? Jackson and Smith
are right in insisting that there cannot be a morally significant difference between
killing both X and Y with one bullet and killing both, each with his own bullet. And
we already know that we are allowed to kill both with two bullets (because we are
allowed to kill each, and because there is no entity X-and-Y which is a right-bearer, or
can object to actions, or some such). So it is also morally permissible to kill both with
one powerful bullet. This action is permissible, because it doesn't violate any
deontological constraint: there is no one person whom we kill even though we lack
moral certainty of his intending to kill others.
The thing to say, then, about the two-skier example is that – at least for what
are arguably the most plausible deontological theories (more on this restriction
shortly) – what matters are actions towards X and towards Y. So long as there is no
one person whom we kill when lacking moral certainty that they intend the deaths of
the ten, the probability that at least one of the relevant group of persons is innocent is
not relevant to the applicability of the relevant deontological constraint12.
12
Jackson and Smith (276-7, fn 10) draw an interesting analogy between their problem for deontology
and one version of the lottery paradox: In this version, a threshold view of (perhaps justified) belief is
seen not to be able to adequately deal with a case of a conjunction of many propositions, each above
the threshold; the conjunction itself can still be below it. And then a threshold view of (justified) belief
arguably leads to inconsistency.
Interestingly, we do not think that an analogous reply to the one in the text works for the case of belief:
For the reply in the text relies on the fact that not any conjunction of normatively significant factors or
classifications is itself an independently normatively significant factor or classification (shooting-X is
normatively significant; shooting-Y also is; shooting-X-and-Y is not, except insofar as some
significance follows from the simple actions of which it is composed). But precisely this claim doesn't
work for beliefs. The conjunction of any two propositions is itself a proposition, and one about which
we can most sensibly ask whether we should believe it.
5.
Intending and Foreseeing
But how can this be so? Isn't it still true that on our suggested way out your action –
say, shooting X and Y with one powerful bullet – will amount to an intentional killing
of someone whose innocence is not ruled out to a moral certainty? And isn't this
precisely what the deontological constraint was supposed to rule impermissible?
To see this worry more clearly, think of criminal punishment again. Our
suggested solution, when applied to the criminal punishment case, reads something
like this: If we "punish" an innocent person (or one in whose guilt we lack moral
certainty), this person is entitled to complain, to object to us doing so, her right has
been violated. But if we make sure never to punish someone unless we know to a
moral certainty that they are guilty, no one is entitled to complain on account of us not
knowing to a moral certainty that all those we consider punishing are guilty. The
moral permissibility of the general punitive policy is just the by-product of the moral
permissibility of each of its (normatively significant) components.
But this, of course, raises the following worry: Suppose that beyond-areasonable-doubt denotes moral certainty, the threshold distinguishing between where
the deontological constraint applies in all its normative force and where it doesn't.
Then the policy of punishing people when their guilt has been proved beyond a
reasonable doubt is – according to our analysis here – morally permissible. But with
sufficiently many criminal trials, this policy is virtually bound to lead to the
"punishment" of innocents. Indeed, the only way to avoid such cases is, it seems, to
avoid punishing altogether. But if we do punish – say, after proving guilt beyond a
reasonable doubt – the situation is not merely the analogue of the two-skier example,
where we lack moral certainty that they are both guilty. Rather, in the criminal
punishment case we know – to a moral certainty, easily – that we will punish some
innocent people. But then how can our suggested way out possibly work in the
criminal punishment case? Surely, if we know that a criminal punishment policy will
lead to the punishment of the innocent, and if there is a deontological constraint
against punishing the innocent, we shouldn't endorse this policy?
We suggest that the deontologist rely here on the distinction between
intending and foreseeing (or on some closely related distinction). If we decide to
punish someone we know to be innocent (or just don't know to a moral certainty that
she is guilty), we intend her "punishment" (say, as a means for deterrence). And so we
violate the relevant deontological constraint. But if we adopt a policy that – we know
– will result in the punishment of innocents, their punishment is not intended but
merely foreseen.
To see how this helps, think of other deontological constraints. Deontologists
who believe in a constraint against harming people typically do not believe in a
constraint against acting in ways that foreseeably harm people. Of course, that an
action foreseeably harms someone is a morally relevant feature of that action, but it
doesn't render it a violation of a deontological constraint against harming people as
usually understood. To be a violation, the action has to intentionally harm someone.
Similarly, then, for the case of punishment. The fact that implementing just about any
criminal punishment policy foreseeably leads to the punishing of innocents is morally
relevant. But this alone doesn't suffice for a violation of the constraint against
punishing the innocent. What would be necessary for this is a case of intentionally
punishing an innocent person. But implementing a criminal punishment policy that is
bound to lead to the punishment of some innocents does not amount to intentionally
punishing an innocent person (certainly not so long as we require proof to a moral
certainty – beyond a reasonable doubt – of guilt as a precondition for punishment)13.
Getting back to the question at the beginning of this section, then: that you
cannot rule out to a moral certainty that your action in the two-skier case (shooting
both with one bullet) will amount to an intentional killing of an innocent person is
something you foresee, not something you intend. The deontological constraint
doesn't apply.14
13
For the suggestion that it's a crucial part of justifying punishment that the foreseen cases of punishing
innocents are merely foreseen and not intended, see Alan Wertheimer, "Punishing the Innocent-Unintentionally," Inquiry 20 (1977): 45-65, at 53-4.
14
There is nothing unique here in treating intentions as themselves foreseen and not intended.
Discussions of the paradox of deontology and related issues often invoke scenarios where you foresee
that (intentional) violations of a deontological constraint will follow your refusing to violate it now.
We cannot discuss here in full some possible complications. For instance, perhaps the deontologist can
help herself to the distinction between an ex-ante and an ex-post perspective on things. In terms of an
entitlement to complain, in the punishment example no one is entitled to complain ex-ante, though of
course the innocent person who is wrongly punished (despite proof beyond reasonable doubt) is
entitled to complain ex-post. Armed with this distinction, perhaps the deontologist no longer needs also
the intending-foreseeing distinction to get the desired results here. Nevertheless, we use the intendingforeseeing distinction in the text, for the following reasons: First, though some other distinction may do
the work here, it seems like there are going to be cases where nothing but the intending-foreseeing
distinction will do. (Consider, for instance, the distinction between someone employing a criminal
justice policy merely foreseeing the conviction of some innocents as a side-effect, with someone
intending such wrong conviction as a means for making the system more efficient). Second, as we say
in the text, the intending-foreseeing distinction (or some distinction very close to it) is one
deontologists probably need anyway, regardless of the discussion of uncertainty. And third, we suspect
that the ex-ante – ex-post distinction derives its normative weight – if it has such normative weight
from something very much like the intending-foreseeing distinction.
Of course, the moral significance of the intending-foreseeing distinction is
neither uncontroversial nor unproblematic15. But there is good reason to believe that
any deontological theory needs something like this distinction anyway, even
regardless of its attitude towards uncertainty16. So by relying on this distinction here
the deontologist doesn't lose any further points17. If, in other words, you don't believe
the intending-foreseeing distinction can be defended conceptually and normatively,
most likely you weren't a deontologist even before reading Jackson and Smith.
6.
How General Is Our Way Out?
So this is how we suggest to save the threshold version of the deontological theory
from Jackson and Smith's argument: The things that really count are the violations of
individual constraints, or the violations of individual rights; and while aggregative and
future violations are foreseeable, they are not intended, and so do not already
constitute a violation now18.
But it is important to note that this way out does not apply to all deontological
constraints, and so nor is it available to all deontological theories. The second part of
15
For discussion and references, see David Enoch, "Intending, Foreseeing and the State", Legal Theory
13 (2007), 69-99.
16
Ibid., appendix.
17
Jackson and Smith consider intentions in the context of an attempt to amend the target theory by
saying that what is morally forbidden is not in the first place actions but rather intentions. They rightly
reject such a way of attempting to deal with uncertainty. But their reasons for doing so do not apply to
the way intentions are used in the text here (as a part of employing the intending-foreseeing
distinction).
18
And notice that this line of defense applies to absolutist theories – those Jackson and Smith explicitly
argue against – just as it does to more reasonable deontological theories.
this way out – relying on the intending-foreseeing distinction, or on some distinction
very close to it – does seem to be one all deontologists can help themselves to (again,
not because such distinctions are unproblematic, but rather because deontologists
need them anyway). But the first part of this defense is not as universally available.
Let us elaborate.
What our solution relies on is the assumption that the relevant deontological
constraints are grounded in individualistic patient-based considerations. In other
words, we assumed – as is most clear in the examples of deontological theories we
used in section 4 – that the relevant deontological constraints are grounded in
thoughts about what individual people are entitled not to have done to them. Without
this assumption, we no longer have a way of establishing our main claim in reply to
Jackson and Smith, namely that – in the two-skier example – what is of moral
significance are only the actions against each skier, not the complex action against
both. But not all deontological theories offer this kind of support for their
deontological constraints. Think, for example, about a deontological theory according
to which we ought not to lie (even to promote the good). And assume that the
rationale offered for this constraint has nothing to do with the rights or interests of the
one lied to, but rather with the wholeness of the soul of the potential liar. Now
construct an analogue of the two-skier example: Say, I'm pretty sure of two statements
X and Y that they are true; about each, I am confident to a moral certainty that they
are true, but about their conjunction I am not. Am I allowed to make these statements?
Here too, as in Jackson and Smith's original example, it seems like it is permissible to
make statement X, it is permissible to make statement Y, but it is impermissible to
make both. But now our line of defense no longer applies: If the rationale of the
constraint against lying has nothing to do with the one lied to, then the statement X-
and-Y is a perfectly legitimate candidate for moral relevance, and the moral theory
has to give an independent answer as to the permissibility of stating it.
Or consider a patient-based view that nevertheless allows for unproblematic
aggregation. According to one example of such a view, if you impose a 0.5 risk on me
of being (unjustifiably) killed, I have, as it were, half a reasonable objection at hand;
and if there are two people in my situation, then together we have a full reasonable
objection, and so the relevant action is wrong. According to such a view it's quite
possible that X-and-Y have available to them together a reasonable objection that
neither has on his own, and then it's no longer true that the moral status of shootingX-and-Y is normatively epiphenomenal, and then our way out fails, and this
deontological theory is again vulnerable to Jackson and Smith's argument. So in order
to take advantage of our reply to Jackson and Smith the deontological theory has to be
not only patient-based, but also individualistic, that is, it must disallow the kind of
aggregation above19. And notice that the kind of aggregation it must rule out is subtly
different from the kind of aggregation more commonly discussed. The issue of
aggregation is usually brought up when there is no uncertainty, but rather (certain)
relatively small harms to a number of individuals, and the question is how to weigh
19
We want to – and think we can – remain silent on the following interesting question: Is what's
important here the number of individuals whose rights (say) are violated, or the number of rights
violated? Assume a constraint against lying. If what's important here is the number of people whose
rights are violated, then if I contemplate telling two distinct lies – L1 and L2 – to the same person, the
category L1-and-L2 is a relevant category (the person lied to can complain about each lie, but also
about both). If what matters is the number of violations, then each of L1 and L2 is a violation, and L1and-L2 is epiphenomenal. Different deontological theories are going to answer this question
differently, and their answer will determine whether they can be defended against Jackson and Smith's
argument by employing the defense in the text.
this against a (certain) significantly greater harm to one individual. In our case,
though, the aggregation is of probabilities, or of expected harm20. So there is room in
logical space for a view that rules out aggregation in the more common sense, but
allows for the aggregation of probabilities in the specified way. Such a view too,
however, cannot utilize our solution to the problem raised by Jackson and Smith (and
is arguably implausible anyway21).
Let us not overstate this point. For our solution to apply, it is not necessary to
assume any specific deontological theory. What is required, though, is that the
relevant deontological theory be one that grounds constraints in individual patients
(for instance, in what rights people have, or in what they are – individually – entitled
to object to, or something of this sort).
So Jackson and Smith's argument retains its force against some possible
deontological theories (at least, our argument in this paper doesn't show otherwise).
But individualistic patient-based deontological theories are off the hook. And seeing
that these are arguably the more plausible deontological theories anyway, this result is
not without interest. Indeed, Jackson and Smith's argument can be seen – given our
reply – as an argument for the claim that if you're going to be a thresholddeontologist, the deontological constraints you believe in had better be grounded in
patient-based, individualistic considerations.
7.
20
Remaining Problems
If all that matters is expected value (see some discussion in the final section, below), then the two
kinds of aggregation are effectively one.
21
On such a view, for instance, and given plausible background assumptions, a deontological
constraint against punishment would entail that no criminal punishment system (bound as it is to lead
to the punishment of some innocents) is morally permissible.
With regard to a wide range of deontological theories, then, a threshold version of the
view can satisfactorily deal with Jackson and Smith's argument. But the problem
raised in Jackson and Smith's paper can be seen as a particular instance of the
following family of problems: How should moral theories – deontological or
otherwise – deal with uncertainty? We hope to have more to say about this wider
issue on other occasions. Here, though, we wish to conclude by hinting at some of
these related problems.
One rather predictable difficulty – one anticipated and set aside by Jackson
and Smith (276) – is another problem for threshold views. It is the problem of finding
a non-arbitrary way of placing the relevant threshold. But we are not convinced this is
a genuine problem, and a special one in this context (rather than an instance of the
most general problem of vagueness), and so let us not say anything more about it
here.
But consider another problem. Jackson and Smith's paper deals with
uncertainty about the nature of one's action or its results. But what if our ignorance
runs deeper than mere uncertainty? What should we say of cases in which one of the
things we don't know is the very distribution of probabilities over the relevant
possibilities?22 Perhaps we can often deal with uncertainty by estimating the expected
value of possible actions. But what can we do when – because of such deeper
ignorance – we cannot even estimate expected values?23
22
There are well-known reasons to think that not all cases of such deeper ignorance are somehow
reducible to cases of usual probabilistic uncertainty. See, for instance, Donald A. Gillies, Philosophical
Theories of Probability (Routledge: 2000) 37-49.
23
Notice that this is a problem for consequentialists as well as for deontologists. This is an important
point, because the problem Jackson and Smith focus on is not, of course, a problem for
And what should we say if the ignorance involved is not of the relevant (nonmoral) facts (like whether the skier intends to kill the ten) but rather of moral facts?
Suppose I know that the skier is in fact an innocent aggressor. And suppose that –
having read much of the literature on self-defense – I am just not sure whether killing
an innocent aggressor is morally permissible. How should a moral theory deal with
this kind of uncertainty? 24 On the one hand, both in this case and in the skier case I
end up not knowing for sure whether or not I should kill the skier. On the other hand,
there does seem to be a morally relevant difference between factual and moral
ignorance or uncertainty. But what is it?
Return now to non-sophisticated, probabilistically quantifiable uncertainty
about non-moral facts. Is it really plausible to say that only expected value counts? In
Trolley, you have to decide whether to divert a runaway trolley from a track on which
it is about to kill five, to another on which it will kill one. In Trolley* the situation is
similar, except the trolley, if not diverted, is expected with probability of 0.5 to kill
ten (and with probability of 0.5 not to kill anyone). In Trolley**, the undiverted
trolley will for sure kill 5, but if diverted it will kill 10 with probability of 0.1 (and
will kill no one at all with probability of .9). In Trolley*** there are 5 on the original
track, but on the other track there are 10, each with an independent probability of 0.1
consequentialism at all, and so one may get the impression that consequentialism faces no serious
difficulties in dealing with uncertainty. The point in the text shows that this is not so.
24
For some discussion, see Ted Lockhart, Moral Uncertainty and Its Consequences (New York and
Oxford: Oxford University Press, 2000); Jacob Ross, "Rejecting Ethical Deflationism", Ethics 116
(2006), 742-768. For a discussion of this point in the context of a discussion of moral responsibility and
blameworthiness, see also Gideon Rosen, "Culpability and ignorance", Proceedings of the Aristotelian
Society, 103 (2003), 61–84; Alexander A. Guerrero, "Don't Know, Don't Kill: Moral Ignorance,
Culpability, and Caution", Philosophical Studies 136 (2007), 59-97.
of dying if the trolley is diverted onto that track. If only expected value counts in
cases of uncertainty, there is no morally relevant difference between Trolley,
Trolley*, Trolley**, Trolley***, and numerous other probabilistic versions of
Trolley. But is this a plausible claim?
So it is not at all clear how moral theories – deontological and consequentialist
alike – should take uncertainty into account. This topic deserves much more research
than it has hitherto received. The fact that Jackson and Smith's argument against
deontology can be dealt with does not take anything away from the importance of
drawing the attention of moral philosophers to this interesting host of issues.