Deontology, Paradox, and Moral Evil

Deontology, Paradox, and Moral Evil
Critics of deontology have long noted that its proscriptions seem paradoxical
since, in contrast with welfare utilitarianism, they forbid some
acts that maximize welfare overall. Recently some philosophers have
suggested that deontology harbors a special paradox; that thinking certain
actions morally objectionable—for example, rape—it forbids minimizing
such actions by doing one.' For example, Samuel Scheffler states
the following about a deontological constraint.
[I]t is a restriction which it is at least sometimes impermissible to violate in circumstances
where a violation would [serve to minimize total overall violations] of the very
same restriction,... and would have no other morally relevant consequences.^
The passage suggests that there is something particularly irrational
about forbidding a deontological violation that, if done, would have the
effect of reducing the total number of such violations. To take another
example, if intentionally kilhng the innocent is wrong, it seems irrational
'Samuel Scheffler, "Agent-Centred Restrictions, Rationality, and the Virtues," Mind
94 (1985): 409-19, p. 413 (reprinted in Samuel Scheffler (ed.), Consequentialisni and Its
Critics (Oxford: Oxford University Press, 1988), pp. 243-60). See also his The Rejection
of Consequentialism (Oxford: Clarendon Press, 1982); and "Deontology and the Agenf
A Reply to Jonathan Bennett," Ethics 100 (1989): 67-76. Among recent philosophers
who defend deontology, see Philippa Foot, "Morality, Action, and Outcome," in Ted
Honderich (ed.). Morality and Objectivity: A Tribute to J.L Mackie (London: Routledge
& Kegan Paul, 1985), pp. 23-38; and "Utilitarianism and the Virtues," reprinted in Scheffler
(ed.), Consequentialism and Its Critics, pp. 224-42; F.M. Kamm, "Harming Some to
Save Others," chap. 7 in Morality, Mortality, Vol. II: Rights, Duties, and Status (Oxford:
Oxford University Press, 1996); and "Non-Consequentialism, the Person as an End-inItself and the Significance of Status," Philosophy and Public Affairs 21 (1992): 354-89;
Henry S. Richardson, "Beyond Good and Right: Toward a Constructive Ethical Pragmatism,"
Philosophy and Public Affairs 24 (1995): 108-41; Jorge L.A. Garcia, "AntiConsequentialist Moral Theory," Philosophical Studies 71 (1993): 1-32; Christopher
McMahon, "The Paradox of Deontology," Philosophy and Public Affairs 20 (1991): 35077; William H. Shaw, "On the Paradox of Deontology," Journal of Philosophical Research
16 (1991): 393-406; Richard Brook, "Agency and Morality," Journal of Philosophy
SS (1991): 190-212.
Scheffler, The Rejection of Consequentialism, p. 80.
© Copyright 2007 by Social Theory and Practice, Vol. 33, No. 3 (July 2007)
432 Richard Brook
to forbid killing one innocent person to prevent five murders.
I argue, considering work of Scheffler and others, that thinking deontology
paradoxical in this sense commits one to believing that minimizing
moral evil is a goal distinct from minimizing harm. Although perhaps
correct, I explore what I think to be serious difficulties with this view.
Some preliminaries: I note that orthodox welfare utilitarianism aims
to optimize happiness or pleasure without constraining that aim by conditions
of distributive or retributive justice. However, it is explicit for
Scheffler, and implicit for others I consider, that what is subject to minimization
is undeserved harm. In the text, therefore, "harm" will mean
"undeserved harm." Following Christopher McMahon, I call minimizing
violations, those that reduce the number of identical violations, "preventative
violations."^ I will use "deontology," "common-sense morality,"
and "ordinary morality" interchangeably. "Moral evil," as used here,
characterizes any violation of ordinary moral prohibitions, for example,
those against theft, kidnapping, rape, or murder. And although there are
debates about what constitutes harm, for this essay I count as harm a person's
experienced diminution of welfare.
Scheffler, however, expresses deontology's "air of paradox" in two
ways. Responding to an essay by Jonathan Bennett,^ Scheffler writes
about his earlier book. The Rejection of Consequentialism:
I was concemed with the air of paradox surrounding the idea that it is morally impermissible
to minimize morally undesirable activity, the idea, more specifically, that because
certain kinds of acts are so objectionable, one must not perform one such act even if that
means that more acts of the very same kind will be performed or that other equally undesirable
events will transpire.'
"Fqually undesirable events" denotes equivalent harm naturally or accidentally
caused. Scheffler further comments:
He [Bennett] rightly notes that deontological restrictions do not apply only to cases in
which, for example, killing an innocent person oneself is the only way to prevent more
numerous killings committed by other people (call these 'A-type cases'); they also apply
to cases in which killing an innocent person oneself is the only way to prevent a greater
number of deaths due to natural causes ('B-type cases').^
He claims, with respect to A-type cases, that if we're concemed, pace
'McMahon, "The Paradox of Deontology," p. 350.
"•For a conception of harm that doesn't require victims of harm to suffer, see Joel
Feinberg, "Harm to Others," in The Moral Limits of the Criminal Law (New York: Oxford
University Press, 1984), particularly chap. 1.
'Jonathan Bennett,"Two Departures from Consequentialism," Ethics 100 (1989): 5466.
'Scheffler, "Reply to Bennett," p. 73.
'Ibid., pp. 73-74.
Deontology, Paradox, and Moral Evil 433
Bennett, with people making bad things happen, then it seems rational to
do one making—a preventative violation—to minimize such makings. In
B-type cases, the issue of "makings" vs. "allowings" (of violations) obviously
doesn't arise. But nothing here suggests that A-type cases are
paradoxical in a different way from B-type cases. However, in a later
essay, commenting on work of Philippa Foot, Scheffler expresses ordinary
moral constraint's paradoxical character in the following way:
"How can the minimization of morally objectionable conduct be itself
morally objectionable?"^ No mention is made of harm "caused by
equally undesirable events." Scheffler's point against Foot is that even if
one grants that conceptions of morally better and worse lack meaning
outside the dictates of ordinary morality, a principle of maximization
comes into play. For Foot, optimizing welfare overall, aside from expressing
the particular virtue of benevolence, is not morally overriding,
say, against actions that express the virtue of justice. Scheffler concedes
this for the sake of argument but contends that
[a]ll we need is the recognition that fewer violations will occur if I act one way rather than
another, together with the idea that such violations are morally objectionable, in the ... sense
that it is morally preferable that no such violations should occur than that any should.'
Scheffler's concession (for the sake of argument) to Foot disallows
him from conceiving constraints as problematic simply because they forbid
some violations that are optimific. But the fact that he still thinks deontology
paradoxical suggests that A-type cases (stealing, for example,
to minimize the number of thefts) have a special status. Preventative violations
now appear paradoxical not simply because prohibiting them diminishes
harm, but because such prohibitions conflict with a general
teleological principle that Scheffler calls "maximizing rationality" (MR).
The core of this conception of rationality is the idea that if one accepts the desirability of
a certain goal being achieved, and if one has a choice between two options, one of which
is certain to accomplish the goal better than the other, then it is, ceteris paribus, rational
to choose the former over the latter.'"
Forbidding preventative violations, Scheffler thinks, violates a plausible
application of MR, since if certain acts are morally objectionable, it
appears reasonable to do one such act to minimize the number of such
acts. Even in The Rejection of Consequentialism, which doesn't mention
MR, Scheffler claims that the rationality of preventative violations concerns
disvalues other than harm.
'Scheffler, "Agent-Centred Restrictions," p. 250; see Philippa Foot, "Utilitarianism
and the Virtues," p. 159.
'Scheffler, "Agent-Centred Restrictions," p. 250
'"ibid., p. 252.
434 Richard Brook
It makes no difference, in particular, which feature of a violation is singled out as having
a high disvalue: no difference, for example, whether the focus is on the victim of the
violation, the agent, or the relationship between them.
Echoing this point, Henry Richardson, discussing the apparent ubiquity
of the problem, writes: "for paradoxical cases can apparently be invented
that work with any characterization of what is bad about an action
and argue that surely it is better to have less of it than more."
Take a particular kidnapping. I consider the harm to the victim, the
badness of the kidnapper, and perhaps the corruption of the relationship
between perpetrator and victim to be all of disvalue. A preventative violation
minimizes all three. Suppose I could save someone from kidnapping
or another from an accidental but equal and unjustified restriction of
liberty. If I am required to minimize both harm and moral evil I should
save the first. Yet this conflicts with an intuition Scheffler himself suggests
we have about the following case.
Consider two twins, equally innocent. While we are strongly inclined to say that it would
be impermissible to kill the first twin in order to prevent the accidental death of the second
twin, even if that were the only way to prevent the second twin's death, we have no
comparably strong inclination to say that it would be impermissible to prevent the accidental
death of the second twin instead of preventing the murder of the first twin by some
other person, if one could only prevent the death or the killing but not both."
In this example, we assume that a background ceteris paribus condition
is met. The up front distinction is between intentional and accidental
threat, either of which we might nullify. In fact, imagine that the sole
moral dilemma for anyone would be that particular rescue decision.
Thus, the only morally objectionable act committed would be the murder.
Although saving the twin threatened by accident results in a world
with one objectionable action rather than none, that rescue seems permissible.
MR applies here apparently only to preventing a death.'"*
One could argue that preventing the murder deprives the prospective
killer of the satisfaction of killing, and therefore is right to do. But we
could design the case in which the villain mistakenly believed he succeeded.
In fact, although I don't pursue it in detail, an argument can be
made to prevent the accidental death. For the murder to be evil it must be
freely chosen. Under a libertarian conception of freedom, there is a real
"Scheffier, The Rejection of Consequentialism, p. 89.
'^Richardson, "Beyond Good and Right," p. 118.
"Scheffler, The Rejection of Consequentialism, p. 109.
"'Thomas Nagel appears to take this view. "Admittedly," he writes, "the wickedness
of the murder is in some sense a bad thing; but when it is a matter of which of them there
is more reason to prevent [murder or accidental death] the murder does not seem to be a
significantly worse event, impersonally considered." The View From Nowhere (New
York: Oxford University Press, 1986), p. 178.
Deontoiogy, Paradox, and Morai Evil 435
as opposed to merely epistemic probability that the prospective murderer
won't kill. Thus a real possibility exists that by preventing the accident,
no lives are lost. Of course, epistemic probability might be all we have.
The murderer has a track record sufficient for the epistemic probability
of the murder being equal to the probability of accidental death. But
there is something odd in combining an assumption that the murder will
occur if the accident is not prevented and as well thinking the murder a
moral evil. The assumption treats the prospective murder much like a
natural threat.'^
Two more recent papers explicitly take the view that ordinary morality
contains a paradox other than prohibiting some optimific actions.
Christopher McMahon believes that both a violation's moral evil and
consequent harm are prima facie relevant to rescue decisions. He asserts
that "[c]ommon-sense morality regards the disvalue of the violation of a
deontological constraint as different in kind from, and greater than, the
disvalue of the accidental production of its effects."'* "Murder," he
writes, "makes the world a worse place from everyone's point of view."'^
Therefore, in the twin example, apparently anyone would have at least
prima facie reason to prevent the murder. Yet McMahon, as a utilitarian,
thinks it irrelevant which death we prevent. Given apparently contradictory
beliefs, he presents himself with the following project.
We need only explain why the fact that a murder makes the world worse from everyone's
point of view than an accidental death—and worse in a way that we could prevent does
not translate into a stronger reason to prevent it than to prevent an accidental death.''
McMahon's "explanation" involves a theory of rectification; the murder,
he thinks, can be "repaired after the fact." Rectification nullifies its special
disvalue by denying the violator benefits gained by her action. I
don't consider this argument, though I think it has limited application. Of
more significance, McMahon gives no reason for thinking that common"Bemard Williams's discussion of a blackmail case illustrates the problem of considering
causing moral evil both as a real choice and akin to a natural disaster. A person
(Jim), as a guest in a South American town, is honored by a sadistic army captain by
being allowed to pick one of twenty terrified natives to kill. If he refuses, the captain will
kill all twenty. Although Williams doesn't propose a clear answer about what Jim should
do, he suggests that one's intuitive reluctance to support Jim's killing expresses the significance
we give to agency; that we should be properly concemed about our own actions
in a way that is different from our concern about the free agency of others. Yet Williams
also requires the assumption that the captain will in fact kill twenty if Jim doesn't kill
one. Bernard Williams, "Utilitarianism and Integrity," in J.J.C. Smart and Bernard Williams,
Utilitarianism, For and Against (Cambridge: Cambridge University Press 1973)
pp. 96-117.
""McMahon, "The Paradox of Deontology," p. 353.
'^Ibid., p. 352.
Ibid., p. 353 (emphasis in original).
436 Richard Brook
sense morality, even as a prima facie guide to rescue choices, sums (or
should sum) two kinds of disvalue, the moral evil of a transgression, and
the harm caused.
McMahon offers another, perhaps intuitively stronger, example to
show a violation's moral evil and harm caused are prima facie additive.
He writes: "More than three times as many people died in the epidemic
of Spanish influenza following World War I as died in the Holocaust, yet
intuitively, the Holocaust is a much worse thing to have happened."^'^ He
claims that since the Holocaust was a "worse thing to have happened"
there is prima facie reason for anyone, given a choice, to prevent the
William Shaw claims that deontology harbors a special paradox only
when preventative violations are forbidden. No paradox occurs simply
because the constraints of common-sense morality forbid some optimific
actions. He writes: " when ... the good is defined so as to include the absence
of actions of a sort forbidden by the deontological theory, then a
paradox begins to emerge."^" In Shaw's view then, deontology becomes
paradoxical only when it forbids minimizing moral evil, and not simply
because it prohibits action that would reduce harm however caused.
Again the point is that if doing A is evil, why isn't it rational to permit A
if, without other moral effect, that minimized the doings of A? Why not,
Shaw asks, echoing Robert Nozick, use someone as a means if that
minimized the number so used?^'
We should remember, however, that the question of minimizing constraint
violations only arises because they cause harm. Future attempts at
violations, assuming that they will fail and have no welfare consequences,
don't demand minimization though for some they are evil as successes.
We might even think missed opportunities at murder—you've set up
your machine gun at Market and Main, but the victim doesn't appear—as
bad as murder itself.^^ So those like Shaw and MacMahon, who evidently
think common-sense morality paradoxical in a special sense, must take
both the harm and evil of violations to be subject to minimization.
Yet this raises a problem. If the disvalues of harm and moral evil are,
in fact, additive, the question arises how to sum them for rescue decisions.
Perhaps a given murder can only be balanced by ten accidental
deaths. We compare the harm of a constraint violation with harm natu"ibid., p. 352 (emphasis in original).
^"Shaw, "On the Paradox of Deontology," p. 394 (my emphasis).
^'ibid., p. 396. See Robert Nozick, Anarchy, State, and Utopia (New York: Basic
Books, 1974), p. 32.
^•^Some philosophers believe what I've called "failed attempts at violations" to be, in
fact, constraint violations. David McNaughton and Piers Rawling take this view in "Deontology
and Agency," The Monist 76 (1993): 81-100, p. 92.
Deontology, Paradox, and Moral Evil 437
rally or accidentally caused. If harm and moral evil are in fact commensurable,
one might think about rescue choices that a point exists where
naturally or accidentally caused harm balances the moral evil plus harm
of a violation.
Of course, even if these disvalues are additive, no precise point of
balance may exist. Perhaps there is a threshold above which a violation
(like the Holocaust) is so reprehensible that preventing it trumps a rescue
that minimizes much greater naturally caused suffering. But thoughts
about where that threshold lies seem, at least in many cases, ineluctably
subjective. They need include not only how to rank the immorality of
constraint violations, but of more difficulty, I think, how to rank the
amount of naturally caused harm that even roughly balances the moral
evil of violations. Although perhaps possible, it is difficult to envision
how this calculus would work.
On the other hand, these parameters may be incommensurable and
nonadditive. No common coin permits summing them. This is consistent
with noting that harm, for example, the loss of your manuscript, may be
caused by theft. But it might be caused by a natural event; the wind blew
it in the river. In either case, others might have an equal though defeasible
obligation to prevent the loss. Under this view, we begin, in rescue
decisions, with the aim to minimize harm. That the harm results from
theft simply reflects the circumstances of its origin. In some cases we
might say, "it's odd to forbid doing something morally objectionable if
that reduces the number of identically objectionable actions." But the
description of the latter actions—"that they are morally objectionable" as
opposed to the description "causing harm we have reason to prevent"—
may have no pride of place. Similarly in rescue choices, the fact that one
threat is by human intention and the other by nature or accident may be
irrelevant. Unless the demand for minimization applies to moral evil itself,
it is not clear that the causal origins of preventable harm should affect
rescue choices. On this view, MR would apply in rescue cases but
again only, as in the twin case, at the level of minimizing harm.
The view, then, pace Scheffler and Richardson, that paradox arises
for deontology about "any characterization of an action's disvalue" is
mistaken unless moral evil itself is subject to MR. If it isn't, then forbidding
preventative violations causes no difficulty for ordinary morality
distinct from prohibiting some optimific actions. Deontology forbids intentionally
killing one person to save two either from murder or accidental
A recent argument for thinking that, for deontology, rescue decisions
should favor potential victims of violations rather than those threatened
by nature or accident stems from the belief that if ordinary moral constraints
are universalized in what Philip Pettit calls the "straightforward
438 Richard Brook
way," then preventative violations appear to be rational. He writes:
As a would-be non-consequentialist thinker, my initial claim must have been that the
point is to instantiate P [e.g., not murdering] in my own life, not promote it generally. But
I countenance the general claims of the P-pattem when I universalize in the straightforward
way: I prescribe general conformity to that pattern, not just conformity in my own
case. Thus it now seems that what I must think is that this general conformity is to be
promoted, even if that means not myself instantiating the pattern in my own behaviour or
psychology or relationships.
The "straightforward way" of universalizing is that each agent should
think about every agent including herself that she not violate constraints.
I, for example, hold about each agent including myself that he shouldn't
intentionally kill innocent people. However, it is not clear what follows
from this. Suppose that if I don't intentionally kill an innocent person,
each of five other people intentionally kills one. I refuse; consequently
five are murdered. Unless we beg the question in favor of consequentialism,
what follows is simply that five people have violated the constraint
and I haven't. It is difficult to see how universalizing in the "straighforward
way" commits one to an overriding concern to promote the "general
conformity" to constraint adherence. By overriding here I mean a concern
that permits violating a constraint simply to minimize identical violations.
Obviously, if universalizability entailed moral symmetry between
duties not to harm and duties to prevent harm, or entailed that my responsibility
for my own actions equals my responsibility for the actions
of others, it would be right to murder one to prevent two murders. But
that symmetry, even if true, isn't entailed by the requirement that we
must think about any common-sense moral constraint that no agent
should violate it.
To see this, suppose we phrase Pettit's puzzle as follows: if I think it
bad that (unjustified) harm, regardless of its cause occurs, shouldn't it be
rational to bring about some harm to minimize the total amount of harm?
But at that level of generality the genesis of the harm drops out as significant,
and we are back to the conflict between deontology and welfare
utilitarianism. Pettit's presentation suggests, then, that there is, for him.
"Philip Pettit, "Non-Consequentialism and Universalizability," Philosophical Quarterly
50 (2000); 175-90, p. 183 (my emphasis). In a recent essay, Scheffler gives an independent
moral argument for the greater moral gravity of doing harm than allowing harm
to occur. I note, however, that doings in general are not always, qua doings, subject to
constraints, but rather intentional doings, or something comparable like using someone as
a mere means. Rightly or wrongly, merely foreseen harm by one's action, say, collateral
damage in war, is considered often subject only to constraints of proportionality. Yet
such harming does exemplify what Scheffler calls the "primary manifestation" of one's
agency. Perhaps Scheffler believes only an agent's intentional doings are subject to what
he calls the "norms of responsibility." But we would want to know the reason for that.
See Samuel Scheffler, "Doing and Allowing," Ethics 114 (2004): 215-39.
Deontology, Paradox, and Moral Evil 439
something morally distinctive about cases in which I might minimize a
kind of wrongdoing by committing an instance of that wrong. This echoes
Scheffler's contention that if some actions are so objectionable that
no one should do them (as he says, "as a first order strategy"), it seems
irrational to forbid a minimizing violation (as a "second order strategy").
This does single out A-type cases—in which harm and moral evil are
joined—as of special concern.
Perhaps a case can be made that we are obliged to minimize moral
evil and not just naturally caused harm. But the mere requirement of universalizability
is inadequate to justify that claim. A given agent A prefers
that for all P (including A) P not kill an innocent person. It doesn't follow
that S overridingly prefers a world in which there is as little killing
of the innocent as possible. I might think, for example, that each person
including myself should eat more fruits and vegetables for her own good.
It doesn't follow simply from that thought that I should believe as many
people as possible should eat more fruits and. vegetables for their own
good, certainly not that I should eat less to insure that a greater number
eat more for their own good. For deontology, universalizing a course of
action is a necessary condition for its permissibility, and that condition
can certainly be satisfied without thinking preventative violations are
permissible. A person, in fact, can successfully universalize the following:
Each agent, including herself, should not violate a constraint simply
to minimize constraint violations.
Although this paper isn't a defense of deontology, I have argued the following:
If deontology contains a special paradox, one distinct from prohibiting
some optimific actions, then preventing moral evil would be a
proper goal of action in addition to preventing harm. That may well be
true, and if so, would be an important result. In fact, such a result would
undermine deontology itself, since general commitments to constraints
would entail permission to violate them simply to minimize the number
of identical violations. However, if, to get a total measure of an act's
badness, we must sum the moral evil and harm of constraint violations,
then there should be some account of how to do that. Why again
shouldn't the badness of one murder equal the badness of ten or fifteen
accidental deaths? Why not save one triplet from murder rather than her
two sisters threatened by an avalanche? We wish to know, even roughly,
how much moral evil trumps prospective harm in rescue decisions.^'*
^""Scheffler briefly mentions, without endorsing, a possible consequentialism that
would minimize murders rather than deaths. The Rejection of Consequentialism, p. 108.
440 Richard Brook
True, MacMahon's example of the Holocaust vs. the influenza epidemic,
unlike Scheffler's case of the twins, suggests that we think we have some
obligation to prevent evil although as a consequence a great deal more
naturally caused harm results. But the general problem remains. We need
some credible argument to show that in making rescue choices, the moral
evil of a transgression adds weight to the harm caused. Absent that argument,
deontology appears to harbor no paradox beyond forbidding
some actions that would reduce harm overall. The etiology of that harm
again would not be significant. This doesn't mean deontology is out of
the woods. But the woods, in this case deontology's conflict with welfare
utilitarianism, are old-growth timber.
Richard Brook
Department of Philosophy
Bloomsburg University of Pennsylvania
[email protected]
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