The Loop Case and Kamm’s Doctrine of Triple Effect
I.
Most nonconsequentialists intuitively believe that it is morally permissible to redirect the
trolley in the
Original Trolley Case: A runaway trolley is headed toward five people where it
will kill the five. The trolley can however be redirected onto another track where
an innocent bystander sits, whereby the five would be saved but the one would be
killed.
At the same time, most nonconsequentialists intuitively believe that it would be
impermissible to do the following:
Push Case: A runaway trolley is headed toward give people where it will kill five
people. We can push an innocent bystander in front of the trolley, whereby the
trolley’s hitting the bystander would stop it, thereby saving the five and killing the
one.
A principle that seems neatly to capture the intuitive judgments in these cases is the
Doctrine of Double of Effect (DDE): There is a moral constraint on intending
evil (such as harm), even when the evil will be used as a means to a greater good.
However, we may be permitted to employ neutral or good means to promote a
greater good, even though we foresee the same evil side effects, if (a) the good is
proportionate to the evil, and (b) there is no better way to achieve this good.
According to DDE, in Original Trolley, because we merely foresee the death of the one
but we do not causally require or intend the one to be hit in order to save the five,
redirecting the trolley is permissible. In contrast, in Push, because the trolley’s hitting the
one is causally required to stop it from hitting the five; and because by pushing the
bystander, we intend that the bystander is hit, according to DDE, our act is impermissible.
Judith Jarvis Thomson has famously challenged DDE on the basis of the
Loop Case: A trolley is headed toward five people, and it can be redirected onto
another track where one innocent bystander sits. However, the track loops back
toward the five. Hence, if it were not the case that the trolley would hit the one
and grind to a halt, the trolley would go around and kill the five.1
As Thomson explains, in Loop, as in Push, the hitting of the one is causally required to
stop the trolley to save the five. Also, Thomson notes that if we redirect the trolley, it
seems that we would be doing so with the intention of hitting the one.2 If so, DDE would
forbid our redirecting the trolley in Loop. However, according to Thomson, intuitively it
1
Let us also stipulate that if the five were not present, the trolley would not go around and hit the one, but
would carry on harmless down the track.
2
Thomson, p. 1403.
seems permissible to redirect the trolley in Loop. As Thomson asks, what difference can
an extra bit of track make?3 Given her intuitive judgment, Thomson argues that we
should give up DDE.
In recent years, Frances Kamm has argued that one can modify DDE so as to
accommodate Loop. In particular, Kamm argues that what she calls the Doctrine of
Triple Effect (DTE) can explain the permissibility of redirecting the trolley in Loop. To
supplement the intending/foreseeing distinction of DDE, DTE distinguishes further
between doing something because an effect will occur and doing it in order that it occurs,
whereby when one does something because an effect will occur, this need not imply that
one intends that the effect occurs. To motivate this distinction, Kamm offers the
Party Case: We intend to throw a party in order to have fun. We foresee though
that this will result in a big mess, and we will not have a party if we will be left to
clean up the mess by ourselves. However, we foresee that if we throw the party,
our friends will feel indebted to us and this will cause them to help clean up.
Hence, we have the party because we believe that our friends will feel indebted
and because we will not have a mess to clean up. However, we do not give the
party in order to make our friends feel indebted nor in order not to make a mess.4
Using the because/in-order-to distinction, Kamm argues that in Loop, when we redirect
the trolley, we also act because we believe that the one will be hit, but not in order that
the one is hit. This means, according to Kamm, that we do not intend that the one is hit.
Consequently, Kamm believes that DTE accounts for Thomson’s intuition that
redirecting the trolley in Loop is permissible.
In this paper, we question both whether DTE applies to Loop, even if it were a
valid principle, and whether DTE is in fact a valid principle. To do this, we begin by
examining more closely why Kamm believes that DTE is applicable to Loop.
II.
Kamm’s analysis of Loop can be divided into four steps. The first is her general
understanding of the structure of Loop. As Kamm sees Loop, initially, the only problem
that faces the five that prompts our act to help them is the trolley’s heading toward them
from one direction (p. 94). When we have redirected the trolley, then, according to
Kamm, we have created a second, new problem, which is the trolley’s heading toward the
five from a different direction.
The second step is her introduction of the because/in-order-to distinction using
Party as an example. On the basis of this distinction, Kamm also rejects a common test
for the presence of an intention, known as the
Counterfactual Test: If we decline to perform an act (e.g. redirect the trolley)
because the act would not bring about the effect (e.g. hitting a bystander), this
means that we intended to produce the effect.
3
4
Thomson, p. 284. (JS)
See, e.g., Kamm, p. 103.
According to Kamm, if we can do an act (e.g. give a party) because we believe that it has
a certain effect (e.g. feeling of indebtedness), or not do an act because we believe that the
act will not have that affect; and yet not intend that effect, this shows that the
Counterfactual Test for the presence of intention is inadequate. If this is right, Kamm
argues that this test cannot be used to show that we intend to hit the bystander in Loop
just because we act on condition of our hitting him.
In the third step of her analysis of Loop, Kamm appeals to Michael Bratman’s test
for intention instead, which has three components:
1) if we intend to bring about x, then we seek means to accomplish the end of
bringing it about.
2) if we intend to bring about x, then we pursue x. This means that if one ways
fails to produce x, we would adopt another way.
3) if we intend x, and our intentions should be consistent in so far as we are
rational, then we will filter out intentions that conflict with intending x.
Kamm argues that we do not meet these conditions in Loop. For instance, Kamm argues
that we fail to meet 1), because we do not survey the field for various ways of hitting the
one. Instead, according to Kamm, we only “notice that what we must do to accomplish
one of our aims, that is, stopping the trolley from hitting the five from the first direction
(that is, from the front), will also, without our doing anything extra, cause the one to be
hit” (pp. 96-97).
Moreover, we fail to meet 2), according to Kamm, because in Loop, we need not
“be committed to hitting the one by other means if the hitting fails to come about” (p.
97). To support this claim, Kamm offers the
Extra Push Case: Suppose the redirected trolley would jump over the one person
on the track and loop back toward the five. We need not be committed to giving
the trolley an extra push, which would be unnecessary to get the trolley away
from hitting the five from the front, but which would be necessary to get the
trolley to hit the one person, supposing that hitting the one is what is causally
necessary to prevent the trolley’s jumping over him and looping back toward the
five (see Kamm, p. 97).
Kamm argues that if we give the extra push in Extra Push, then we would be doing
something that is undertaken especially to accomplish hitting the one, which would
definitely involve intending to hit the one. However, so she argues, in Loop, we need not
be willing or committed to give the extra push. This suggests, according to Kamm, that
we do not intend to hit the one.
Furthermore, we fail to meet 3), Kamm argues, because “it is consistent for
someone who redirects the trolley because he believes that it will hit the one to then try to
rescue the one from being hit” (p. 98). If so, and if intending to the rescue the one is
inconsistent with intending to hit the one, then, according to Kamm, this would show that
we did not intend to hit the one. To motive this idea, Kamm proposes that when we
redirect the trolley in Loop, we may be thinking the following:
We will redirect the trolley and then try to push the one out of the way. For if we
have an opportunity to save the one and do not do so, we would be intending his
being hit. If we fail to rescue the one, we still get the advantage of the five’s
being saved because the one will be hit. If we succeed in rescuing the one, the
five are no worse off and they had some chance of being saved.5
According to Kamm, if in Loop, these are our thoughts, then we can have the intention to
rescue the one, which would mean that we did not intend to hit the one.
In the fourth step of her analysis of Loop, Kamm seeks to justify the moral
significance of the because/in-order-to distinction. As far as we can tell, Kamm is
suggesting that the because/in-order-to distinction can be justified (or at least mutually
supported) by the distinction between primary and secondary reasons for action.6
Although Kamm does not spell it out, implicitly, she appears to be claiming that one
intends x, if and only if x is one’s primary reason for action. To support this idea, Kamm
points out that the primary reason for giving the party in Party is to have fun. The
secondary reason for giving the party is that the undesirable effect of giving the party can
be taken care of by the foreseen evil (our friends’ feeling indebted) that we produce. As
Kamm says, “The bad effect . . . defeats the defeaters of [our] primary reason, and so
maintain the sufficiency of [our] primary . . . reason,” but it is “not, however, [our] goal
in action to produce what will defeat the defeaters of [our] goal” (p. 102).
By analogy, in Loop, the primary reason for redirecting the trolley is to prevent
the five from being hit in the front. The secondary reason for redirecting the trolley is
that the undesirable effect of redirecting can be taken care of by the foreseen evil of
hitting the one. Following Kamm’s reasoning, since our goal in redirecting the trolley is
not to produce what will defeat the defeaters of our goal, our primary reason for acting is
not to hit the one. Therefore, we do not intend to hit the one.
III.
First, in Kamm’s Party, it seems plausible that one did not throw the party in order to
make our friends feel indebted. This is because one can plausibly tell a story to this
effect. This said, it might be worth mentioning that it is not a conceptual truth that one
could not throw a party in order to make someone else feel indebted. For example,
consider the
Election Party Case: Suppose you are running to be elected to the board of your
local country club. You could throw a party in order that your friends feel
indebted and would thereby vote for you in the upcoming election.
However, we contend that the same cannot be said in Loop. Unlike Party, Kamm’s
proposal that we would redirect the trolley just in order to prevent the trolley from hitting
the five from the front just does not sound plausible. There is simply no reason to turn
the trolley except in order to hit the one.
5
See, e.g., Kamm, p. 98.
Kamm says that the primary/secondary reason distinction is “another way of understanding the cases I
discussed” (p. 102).
6
Secondly, Kamm’s appeals to Bratman’s account for intention for support are
problematic. First of all, Bratman’s first condition is too strong. Recall that the first
condition says that 1) if we intend to bring about x, then we seek means to accomplish the
end of bringing it about. Consider the following:
Mortal Enemy Case: At a party, we notice by chance that we could kill our
mortal enemy, who is also at the party. In particular, our enemy has asked us to
pass him some snacks. Unbeknownst to him but known to us, the snacks contains
a kind of nuts to which he is deathly allergic. We give him the snacks at his
request. Previously we had no intention of killing our enemy.
Just like Loop, we do not survey the field for various ways of killing our mortal enemy.
In particular, in Mortal Enemy, we also only notice that what we must do to accomplish
one of our aims, that is, give our enemy snacks at his request, will also, without our doing
anything extra, cause our enemy to die. Nevertheless, it seems clear that when we give
our mortal enemy the snacks, we intend to kill him. If so, 1) is too strong, and the fact
that we do not survey the field for various ways to hit the one in Loop does not show that
we do not intend to hit the one in Loop.
Similarly, Bratman’s second condition is also too strong. Consider
Mortal Enemy Case II: Everything is the same as Mortal Enemy. Further,
suppose that our mortal enemy decides not to eat the snacks for whatever reason,
we would not try again to kill him by other means.
It should be clear that in Mortal Enemy II, we still intend to kill our enemy even though
we are not committed to killing him by other means if he decides not to eat the snacks he
had requested. If this right, contrary to 2), Mortal Enemy II shows one can intend to do x
without trying again and again. If so, Kamm’s argument that Loop is different from
Extra Push is beside the point. Just as we can intend to kill our enemy without trying
again and again, we can intend to hit the one without trying again and again.
Here it is also worth mentioning a problem with Kamm’s discussion of Extra
Push. Kamm argues that in other cases, undertaking an extra act to save the five would
not indicate an intention to hit the one, even if hitting the one is a means to save the five.
In particular, in the
Two Loop Case: Suppose that after being redirected from its initial hit, the
trolley will go around a looping track toward the five, unless it is redirected
again—by an extra push, which is not needed to get the trolley away from hitting
the five from the front, and which will get the trolley to go onto a second track
that loops to the five as well but on which a person sits. The person will be hit
and this will stop the trolley.
According to Kamm, we may permissibly give the extra push in Two Loop, because the
extra push is just like the first redirection in the Original Trolley, namely, we redirect the
trolley the second time to save the five from the second way in which it would hit them,
but we do this only because the one will be hit and stop any further looping.
But now consider the
Two Loop Roller Coaster Case: Suppose that after being redirected from its
initial hit, the trolley will go up a special roller coaster track toward the five,
unless it is redirected again—by an extra push, which is not needed to get it away
from its initial hit, and which will get the trolley to go onto a lower roller coaster
track that loops to the five too but on which a person sits. The person will be hit
and this will stop the trolley.
The Two Loop Roller Coaster is just like Two Loop. So it should be permissible to
redirect the trolley in this manner. At the same time, it is hard to see how the Two Loop
Roller Coaster is different from Extra Push. In both cases, the trolley will go over the
person and hit the five from a different direction unless one gives the trolley an extra
push. The difference between Two Loop Roller Coaster and Extra Push is just a bit of
extra tracks. If, following Thomson, Kamm thinks that an extra bit of track does not
matter in the case of Original Trolley and Loop, it should also not matter here. And
given that Kamm believes that Extra Push involves intending to hit the one, she should
also think Two Loop Roller Coaster involves intending to hit the one. If so, given that
Two Loop Roller Coaster is just like Two Loop, and Two Loop is just like Loop, Kamm
should also think that Two Loop and Loop both involve intending to hit the one.
Moreover, Kamm’s application of Bratman’s third condition to Loop seems to
lead to practical incoherence. Kamm appears to be suggesting that we can knowingly
imperil the one because it is necessary to save the five, and then race off to remove that
peril, which we know will prevent the five’s being saved. However, consider some
variants that heighten the tension among those intentions.
Two Button Case: We can only turn the trolley by pressing Button 1. Right next
to it is Button 2, which sounds a whistle that will give the man on the track plenty
of time to step aside.
Presumably, we should push Button 1, since doing so would enable us to prevent the
five’s being hit from the front. But we will then have the immediate opportunity to push
Button 2, warning the one. If we omit to seize this opportunity, we will, according to
Kamm, be intending to hit the one. Knowing this, we are committed from the outset to
pushing Button 2 after pushing Button 1. But then can we really be intending to save the
five by one action, if we are already committed to performing another action immediately
afterwards that will prevent our first action from having its “intended” effect?
Or consider
Two Button Case II: Again, we control two buttons, this time, Divert and Slow.
Pushing Divert will redirect the trolley from the five toward the one, and pushing
Slow will reduce the speed of the diverted trolley so that it will injure but not kill
the man on the tracks. It will, however, not stop the trolley, which will kill the
five.
According to Kamm, we should push Divert. At the same, following Kamm’s line of
reasoning, it seems that we should then push Slow to show that we do not intend to hit
the one. But this commits us to a course of action that will ensure that the man’s injury is
in vain. It will not prevent the trolley from killing the five; it will merely ensure that our
previous action of pushing Divert does not kill the one. Since we had the option of not
pushing any buttons, letting the five die and sparing the one of any injury, we thus appear
to have injured the one gratuitously. Nonconsequentialists are clearly not committed to
minimizing aggregate harm, but they should be committed to avoiding harm that is
necessary only to allow the agent to act on a set of intentions that allows him to make an
idle gesture toward saving some from harm while avoiding the onus of intending harm to
others.
Finally, it is questionable whether the because of/in order to distinction and the
corresponding distinction between primary and secondary reason are normatively salient.
For one thing, suppose one grants that these distinctions can be made, there is a further
issue about whether we regard the individual as an end in himself when we do an act
because an effect will occur to that individual, that is, there is an issue about our moral
attitude toward the individual. Consider Party. Suppose one grants that we are giving a
party because we know that our friends will feel indebted and will help clean up but not
in order that they feel indebted. Here it seems that there is the concern that we are taking
advantage of our friends. That is, this seems to be a case in which we regard our friends
more as a means to having a party rather than as ends in themselves, which, if true, would
be morally objectionable, as it would be an abuse of the friendship. To make the problem
more vivid, consider the
Dinner Case: We want to have a nice dinner with our friend at a nice restaurant.
We foresee though that this will be expensive, and we will not have this dinner
with our friend if we have to pay. However, we foresee that if we dine at the
restaurant, our friend, who is very wealthy, will be so happy to be invited, and this
will cause him to pay for the meal. Hence, we have the dinner at the restaurant
because we believe that our friends will pay for the meal. However, we do not
dine at the restaurant in order to make our friend pay (that is, our primary goal is
not to cause our friend to lose money).
Again, suppose one grants that we are dining at the restaurant because our friend will pay
but not in order to make our friend pay. It seems that there is still the issue of whether we
are taking advantage of a property that our friend has, namely, his wealth, rather than
regarding him as an end in himself.
To diffuse the idea that we are taking advantage of our friends in Party, Kamm
explains regarding Party that our guests would make us worse off than we would be
without the party (as the mess they produce overrides the fun for us): “Hence, when they
serve [our] interests, they merely eliminate the treat of the mess they themselves present
to [us]. This is unlike improving [our] position from what it would be without their
presence” (p. 103). But arguably, this misses the point of friendship and further suggests
that in Party, we are in fact taking advantage of our friends. For, in friendship, we do not
just aim to break even, so to speak. We often undertake additional burdens for the sake
of the friendship.
If this is right, we can make an analogous point regarding Loop. Suppose that one
grants that in Loop, we are redirecting the trolley because the one will be hit, which will
stop the trolley, but not in order to hit the one. It seems that we are nevertheless taking
advantage of the one’s being on the track, and not regarding the one as an end in himself.
Arguably, this is objectionable even if we grant that there is a distinction between
because of and in order to.
In response, Kamm argues that we do not treat the one as “available” for our
purposes, because “we need not be willing to give the extra push in the Extra Push Case”
(p. 103). But pointing out that we would not give the extra push in Extra Push does not
show that we do not regard the one more as a means rather than as an end. Consider
Dinner Case II: Everything is the same as Dinner, except suppose our rich friend
did not want to go out for dinner for whatever reason, we would not try other
means of getting him to go to dinner.
Just because we are not willing to do other things to get our friend to go to dinner does
not mean that we do not regard him more as a means for picking up the bill (that is, as a
walking check book).
In addition, Kamm faces what might be called the Narrow Because Of Problem.
In particular, Kamm’s notion of ‘because of’ seems quite elastic such that even in clear
cases in which we intend to x, it could be argued that we did not intend to x. For
example, consider
Bank Robbery Case: Sam is trying to rob the bank. To rob the bank, it is
necessary to get rid of the security guard. So, Sam shoots the security guard,
thereby killing the security guard.
Ordinary, we would think that Sam intends to kill the security guard. But, given Kamm’s
understanding of because of, Sam could argue the following: His primary reason in
pulling the trigger was in order to scare the security guard. Without his doing anything
else extra, he also pulled the trigger because it would kill the security guard. Hence,
following Kamm’s line of reasoning, he did not pull the trigger in order to kill the
security guard – at best, as a secondary reason, he pulled the trigger because it would kill
the security guard. Therefore, using Kamm’s reasoning, one could Bank Robbery a case
in which Sam did not intend to kill the security guard, even though Bank Robbery seems
to be a clear case of intending to kill. Moreover, it seems that one can redescribe any
case of intending to x as a case in which one acted because of x rather than in order to
bring about x. If this is right, Kamm’s notion of “because of” may simply be too be
elastic to be of normative use.
[Do we need a section about why Loop might be impermissible?]
[Do we need a further section about why Original Trolley is impermissible? Though I’m
inclined to think that it is permissible.]
IV.
Kamm has argued that DTE can explain the permissibility of redirecting the trolley
toward the one in Loop. In this paper, we argued that even if DTE were a valid principle,
it does not apply to Loop. Moreover, we questioned whether DTE is a valid principle.
The upshot is that we are skeptical that the permissibility of Loop can be justified by
DTE.