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On Doing and Allowing Harm

Interview by Richard Marshall.

Intuitively, there are morally relevant distinctions between different ways of being related to harm. One of these is the act/omission distinction: did the harm happen because I did something or because I didn’t do something? I think the act/omission distinction is different from, but related to, another distinction, the doing/allowing distinction: did I do harm or merely allow it to happen? On my view, you can sometimes allow harm through an action – for example, if you cancel a direct debit to charity you *do* something, but because all you do is to prevent money that belongs to you from aiding, you merely allow the harm.

I’m inclined to think that you wouldn’t be required to break your *own* legs to save the child. This is partly because it would be very difficult to break your own legs or to kill yourself. I think it makes a difference whether the cost would be upfront or a side effect of saving the child. This connects to my claims about the need for protection against normative imposition in order for our bodies and other resources to genuinely belong to us.

It’s obvious that I have a moral reason to run a marathon raising money for a life-saving charity. The potential benefits certainly speak in favour of running. And it might be that there are no strong countervailing considerations. Sure, the training would be hard and it would take up a lot of time, but it would on balance make me healthier, happier and more efficient. But no one thinks they get to require me to justify my failure to run a marathon. I don’t need to feel guilt and no one gets to blame me.’

Fiona Woollard has research interests in normative ethics, applied ethics, epistemically transformative experiences and the philosophy of sex and pregnancy. She has published on topics including the distinction between doing and allowing harm, climate change and the non-identity problem, the moral significance of numbers, pornography and the norm of monogamy. Here she discusses the distinction between acts and omissions and doing and allowing, wicked uncles, Frances Kamm’s argument for the moral relevance of the distinction between doing and allowing, intrusion, Warren Quinn’s arguments for the distinction, substantial facts and presuppositions, Singer’s pond case, Unger and Singer on the Donation case and why it links to the pond case, whether her work helps decide which normative theory we adopt, Parfit’s non-identity argument and the hired gun, and whether all moral reasons give rise to moral obligations.

3:AM: What made you become a philosopher?

Fiona Woollard: It depends what you mean by ‘become’ and ‘philosopher’. In some ways, I think I’ve always been a philosopher. I vividly remember pressing my Dad on personal identity when I was around five. ‘Dad? Where are you? Is your body you or not you?’ I also made myself popular in RE lessons at primary school by pressing our local minister on the Problem of Evil. ‘Mr Armstrong, if God can do anything and he loves everyone, why are people starving?’ This was the same minister I reportedly threw up on at my christening, so he already knew I was trouble.

Of course, most children are natural philosophers. I have just been lucky enough never to have to grow out of it.

I studied Maths and Philosophy at undergraduate and was convinced that I was going to be a mathematician. But in my third year, we covered abortion in an ethics module. This issue touches on some of the most challenging philosophical issues. What gives us moral status? What are the limits of our rights over our own bodies? At the same time, the answer really matters practically. I couldn’t stop thinking about it. (I used to sit on buses muttering to myself about the moral significance of potential.) I did my undergraduate thesis on abortion, but decided I needed to sort out the moral distinction between doing and allowing to avoid an obligation to continually procreate. That took me roughly the next 10 years – during which time I completely changed my mind about the role of the doing/ allowing distinction in the abortion debate.

3:AM: A distinction you’ve explored is that between acts and omissions. Can you first of all sketch out this area of ethics and say something about its history and what the default position is regarding this at present, if there is one?

FW: Suppose something bad happens to someone and if I had behaved differently it would not have happened. Have I done something wrong? Obviously, it matters how bad the harm is: did they break their leg, suffer a mild headache, or die? It matters how much it would cost me to avoid countenancing the harm: would I merely need to lift my finger or would I end up with my own leg broken, lose all my money or lose my own life? But intuitively, these aren’t the only things that matter. Intuitively, it matters how I am related to the harm. Intuitively, there are morally relevant distinctions between different ways of being related to harm. One of these is the act/omission distinction: did the harm happen because I did something or because I didn’t do something? I think the act/omission distinction is different from, but related to, another distinction, the doing/allowing distinction: did I do harm or merely allow it to happen? On my view, you can sometimes allow harm through an action – for example, if you cancel a direct debit to charity you *do* something, but because all you do is to prevent money that belongs to you from aiding, you merely allow the harm. The literature often confuses these distinctions, so we have to be careful!

According to common sense morality treats both the act/omission distinction and the doing/allowing distinction matter morally. In fact, if these distinctions don’t matter, we need to make radical revisions to common sense morality. If helping someone would seriously impact my own life, or affect my relationships, or my key personal projects, we generally think it is okay for me not to help. But we don’t think these kind of considerations would justify doing harm to others. If we reject these distinction, then morality is either much more demanding or much more permissive than we think it is. However, I think the default position among philosophers about both the act/omission distinction and the doing/allowing distinction is suspicion, if not scepticism. In the 1970s and 1980, James Rachels and Michael Tooley used thought experiments to try to show that the distinctions were not morally relevant.

Rachels argued that we only think these distinctions matter morally because it is usually accompanied by other differences: doing harm tends to go with bad intentions, failing to allow harm is usually more costly and more difficult. He tried to show that if we clear away these distractions, and find two case that differ only in that one involves action and the other omission (or one, doing and the other, allowing), then we will see that cases are morally equivalent. Thus, we will see that the action/omission distinction (or the doing/allowing distinction) itself makes no difference. His pair of cases, commonly known as the ‘Wicked Uncles Cases’ involve Smith and Jones who both want their young cousin to die so they can inherit the family fortune. Smith drowns his cousin in his bath. Jones is about to drown his cousin, but the child falls into the water himself, so all Jones has to do is to refrain from pulling the child out of the bath. Tooley gave a similar ‘contrast case’.

These examples have been very influential in the wider philosophical community and are taken by many to show the the act/omission and doing/allowing distinctions don’t matter morally. However, I think this is a bit of a shame. First, there are good arguments from Francis Kamm, Helen Frowe and Richard Trammel that question the claim these cases are intuitively morally equivalent. Second, as Warren Quinn argues, even if they are morally equivalent, that does not mean that the distinctions don’t matter morally. What we should be really interested in is whether doing harm is harder to justify than merely allowing harm (or whether harmful acts are harder to justify than harmful omissions). Are there some costs such that it is permissible to allow harm rather than suffer those costs but not permissible to do harm to avoid suffering those costs? Can I permissibly refuse to save someone if saving would cost me my own life but not permissibly kill someone to save my own life? This could be true even if (a) it is not permissible to allow your cousin to drown when you could very easily save them in order to inherit a fortune and (b) impermissibly allowing your cousin to drown to inherit a fortune is just as bad as impermissibly drowning your cousin to inherit a fortune. Finally, we can find cases where all others factors are keep equal but where there *is* an intuitive difference between doing and allowing. Appeal to intuitions about cases isn’t what I am really interested in. I don’t want to know whether we treat these distinctions as morally relevant. I want to know whether we should treat them as morally relevant. This requires an understanding of what the distinctions are and how they connect to more basic moral concepts.

3:AM: Why don’t you think we could just take it as a basic fact that doing harm is ethically worse than allowing harm but not acting oneself? And if we don’t like that, why not just accept there is no distinction and outside of our prejudiced intuitions? I guess the question is: why philosophise it and seek reasons?

FW: Both those options seem really odd to me. On the one hand, the fact that doing harm is worse than allowing harm doesn’t feel like the kind of thing that could be a basic moral fact. I couldn’t take it as a basic moral fact that it is worse to perform harmful actions on Thursdays rather than Wednesday or to harm people with my left hand rather than my right hand. These suggests seem absurd. How could that difference matter morally? I think the doing/allowing distinction faces a similar challenge: when it is a we’re talking serious harm, when it might be a matter of life and death, how can the doing/allowing distinction make a difference? On the other hand, I think it would be overreacting to immediately retreat to simply accepting that there is no difference. Given the important role the doing/allowing distinction plays in common sense morality, we have to try to see if we can understand and defend it.

3:AM: You defend the notion that the distinction is morally relevant and you do this by introducing the idea of imposition. What is this notion and how does it help make the distinction play the role you defend?

FW: My use of imposition is inspired by Frances Kamm. She notes that the difference between doing and allowing seems to be connected to a difference in order of imposition. She says: ‘If the same efforts had to be made to avoid killing as have to be made in order to save a life, they would be made to prevent the killer from imposing first on an innocent person. In contrast, the efforts made in saving would, in a sense, involve the innocent bystander being imposed on first for the dying person.’ (Morality, Mortality, p. 24). She illustrates this with two examples. In the first example, you swerve to avoid a pedestrian. Kamm claims that in this case you take action to avoid imposing first on the potential victim. In the second example, you save someone’s life by swerving into a tree. Maybe the tree is about to fall on a pedestrian and you drive into it to push it away. Kamm claims that in this case you are imposed on first for the potential victim’s sake.

I think that Kamm’s observation taps into a familiar, intuitive idea. Sometimes what we do or we demand intrudes into another’s sphere. I call this intrusion ‘imposition’. One kind of imposition is casual imposition: as in when your car hits the victim’s body. On my view, casual imposition involves the behaviour of one person substantially affecting what belongs to another. But we can also have what I call ‘normative imposition’. Although the pedestrian does seem to be imposing on you when you swerve into the tree to save him, this isn’t through his actions impacting on you or what belongs to you. He didn’t physically push you into the tree. I think he imposed on you because his needs intruded upon you, placing demands upon you. You were required to use your body and your belongings to aid him.
Drawing on my analysis of the distinction between doing and allowing harm, I argue that when you do harm you casually impose on the victim, but when you allow harm you do necessarily casually impose on the victim. Similarly, constraints against allowing harm normatively impose on the agent, but constraints against doing harm do not, as such, impose on the agent.

Using this connection between doing, allowing and imposing, I show that the moral distinction between doing and allowing can be understood as a protection against both causal and normative imposition. Strong constraints against doing harm are needed to protect potential victims against causal imposition. But we can’t have equally strong constraints against allowing harm, because this would be a normative imposition on the agent. We need permissions to allow harm to protect us as agents against normative imposition.

I then argue that we need this protection against both normative imposition and casual imposition if anything, even our own bodies, is to genuinely belong to us.

3:AM: How does your approach improve on earlier defenses of the distinction, such as that offered by Warren Quinn?

FW: Quinn argues that the distinction between doing and allowing is necessary to recognise that a person’s body and mind belong to her. He uses the idea of positive and negative rights, where negative rights are rights not to be interfered with and positive rights are rights to aid or assistance. He argues that there are three options: negative rights are stronger than positive rights; negative and positive rights are equally strong or positive rights are stronger than negative rights. He then argues that it is incoherent to have positive rights stronger than negative rights. So that leaves two options. But he argues that if negative and positive rights are equally strong, then I don’t have a real say over my own body and mind. What happens to my body and mind is determined by the balance of needs. If cutting off my finger would benefit you more than it would harm me, my finger should be cut off. But then my body does not really belong to me. It’s really common property. So, Quinn concludes, we need negative rights to be stronger than positive rights and thus we need doing harm to be harder to justify than merely allowing harm.

I think Quinn is bang on that the distinction between doing and allowing is necessary for our bodies and minds to genuinely belong to us. However, there are crucial gaps in his argument. As Frances Howard-Snyder has argued, he’s shown that we need some stronger set of rights to prevent the use of my body being determined by the balance of needs. But why negative rights versus positive rights? Why not have right over the top half of my body trumping rights over the bottom half? Quinn doesn’t show the connection between genuine ownership and the doing/allowing distinction. I also have some doubts about whether his own analysis of the doing/allowing distinction connects with positive and negative rights in the way he needs. I fill these gaps by showing that under my analysis the doing/allowing distinction provides protection against imposition which is needed for anything to genuinely belong to me.

3:AM: What is the role of ‘substantial fact’ and our ‘presuppositions’ in your theory?

FW: To explain my notion of a substantial fact, I first have to talk about sequences. The idea of using sequences to analyse the doing/allowing distinction comes from Philippa Foot, who argued that we naturally thing of events as being the upshot of sequences. So if asked you how Jones died, you might say the lightening struck the tree, the tree fell on Jones, Jones’ skull was crushed. You wouldn’t mention all the causally relevant facts. You wouldn’t mention that Jones’ wasn’t wearing a reinforced suit of armour made of reinforced steel, even if had he been wearing such a suit of armour the tree would have bounced harmlessly off. The absence of the suit of armour is merely a background condition. It doesn’t seem to be part of the sequence. I say that a fact is ‘substantial’ if and only if it is suitable to be part of the sequence leading to an outcome rather than merely one of the background conditions of the outcome.

I think that there are various ways that a fact can be substantial. One way is by being positive rather than negative. Negative facts – facts about the absence of something that could have prevented the sequence – are normally not substantial. They are normally merely background conditions. However, our normal presuppositions can make a negative fact substantial – suitable to be part of the sequence leading to harm. So, for example, if Bob pumped all the oxygen out of my bedroom while I was sleeping, the absence of the oxygen would be part of the sequence leading to my death. Bob pumped out the oxygen so there was no oxygen in the room so I died. But the absence of the oxygen is a negative fact. It just tells us that something was not there. I think this negative fact counts as substantial because it is contrary to our normal presuppositions. Our normal presuppositions are the things that we take to ‘go without saying’. We assume them to be true unless told otherwise. Negative facts that are contrary to our normal presuppositions are seen as changes or disruptions to the way that we can reasonably expect the world to be. They are thus substantial facts that are suitable to be part of a sequence.

3:AM: Is Singer right when he says that we are morally obliged to jump into a dirty pond to save a child even if we end up ruining an expensive suit, miss a meeting that costs you £10,000 and break your legs? Am I still morally obliged to act even if I’d have to die to save the child – or if there was a likely chance we’d both die?

FW: I think that you are required to bear substantial costs in situations like Singer’s Pond case. You’d certainly be required to jump in and save the child even if this would ruin your suit. I think you would also be required to miss the meeting or to jump in even if the process of rescuing the child would almost certainly lead to your legs being broken.

However, I’m inclined to think that you wouldn’t be required to break your *own* legs to save the child. This is partly because it would be very difficult to break your own legs or to kill yourself. I think it makes a difference whether the cost would be upfront or a side effect of saving the child. This connects to my claims about the need for protection against normative imposition in order for our bodies and other resources to genuinely belong to us. Normative impositions / requirements to prevent harm put our bodies and other resources at the use of others. I think that our bodies can genuinely belong to us even if we are sometimes required to put them at the use of others i.e. even if we are sometimes required to aid others. However, my belongings need to be substantially enough at my use and not at the use of others. This means that requirements to aid must be limited. The cost of the imposition matters. The more costly the imposition is for me, the more important it is for me to be able to use a given resource, the more of a threat the imposition will be to my authority over what belongs to me We can only be required to make substantial sacrifices to aid others in rare situations. But the way in which the cost comes about also matters. A requirement to let others use my resources seems less of a threat to my authority if that use is innocuous in itself even if it leads to substantial costs further down the line.

I do not think you would be required to sacrifice your own life to save the child or indeed to sustain permanent major physical damage to your body which would leave you severely mentally or physically incapacitated for life. It would probably be morally admirable to do so, but this is not something that can be demanded from people. Requirements to sacrifice yourself in this except under truly exceptional circumstances undermine your authority over your own body.

3:AM: We seem to be in a perpetual situation where we allow people to die of starvation or disease and so on because we choose to hold on to the money that would prevent these tragedies. Peter Singer seems to suggest that we are morally wrong to do this. Some say we are wrong because nothing genuinely belongs to a person. What do you say?

FW: I’ve argued against the use of Singer’s Pond Case to show that we ought to be giving most of our money to combat global poverty. Singer argues that there is no morally relevant difference between refusing to save the child in Pond to save your shoes and refusing to donate £50 to Oxfam. The same arguments applies to the decision to give your next £50 to Oxfam, and to the next £50, and the next, until giving away more would require you to sacrifice something so serious that you could refuse to aid the child in Pond. Peter Unger expands and clarifies this argument in Living High and Letting Die. I argue against Singer and Unger by showing that there is a morally relevant difference between the Pond Case and the Donation case. I argue that for our bodies and other resources to genuinely belong to us we can be required to make substantial sacrifices to aid others only in rare cases. We need some criteria for picking out such cases which leaves them with a low expected frequency. I suggest a criteria built around the agent’s point of view. An agent can be required to make substantial sacrifices when personally involved in an emergency: when the agent is physically close, the only one who can help, or has had a personal encounter with the victim.

However, I also argue that we can be required to make regular non-trivial contributions in response to ongoing aid. If such requirements are sufficiently small, they do not undermine our authority over what belongs to us. Our resources still remain substantially and for the most part at our own use. Most people fall far short of this threshold. Thus most people in wealthy countries should be giving far more in response to global poverty.

An addition complication is that in the actual world, our claims on many of our resources are questionable. I argue that at least one thing must genuinely belong to each person: her own body. I also think that we should have private ownership of at least some other resources. But the division of resources in the actual world is the result of a long tangled history of oppression and exploitation. Even if it is best to uphold people’s claims to what they currently legally own, this certainly weakens the authority of ownership and gives us stronger obligations to use our resources to prevent harm to others.

Relatedly there are big questions about whether our responses to global poverty are best seen as merely allowing harm.

3:AM: Which of the two ethical theories you look at – Scanlon’s contractualism and Hooker’s rule-consequentialism fits your approach best – or doesn’t it matter what kind of normative ethical theory is applied?

FW: I think my defence of the distinction between doing and allowing can be used by either Scanlon’s Contractualism and by Hooker’s rule-consequentialism. I also think both of these theories need this kind of defence of the moral relevance of the distinction. So, although I think it matters very much which normative ethical theory we accept in general, my work here does not help us to decide between them.

3:AM: Do the famous Trolley problem scenarios help us track the ethics concerning the distinctions you’re interested in?

FW: Not really. I think the Trolley Problem presupposes the distinction between doing and allowing harm. If there is no difference between doing and allowing harm it is obvious that we should turn the Trolley. The Trolley Problem is a problem because we normally think it is not permissible to kill one people to save five person, but it looks as if it is permissible to turn the Trolley towards one person to save five others. I think we need some other distinction, which will work in tandem with the doing/allowing distinction, to explain the Trolley Problem.

3:AM: Derek Parfit’s Non-Identity Problem argues that given that we wouldn’t have existed if we hadn’t polluted the world, so our polluting the world hasn’t made people worse off and therefore we don’t harm them by polluting. What’s wrong with his argument?

FW: This argument assumes that we can only harm someone (in a morally relevant sense) if our behaviour makes them worse off. I think we can harm someone in a morally relevant sense without making them worse off. We can see this by thinking about pre-emption examples. Suppose that you are a hired gun and you have been ordered to shoot Victor in the leg. But your boss doesn’t entirely trust you so she sends a back up, Baxter, who will shoot Victor in exactly the same spot if you don’t. Let’s assume that the wounds, length of time in pain etc, will all be the same. If you shoot Victor, you don’t make him worse off, but I think you do harm him. And this harm matters morally and provides you with a reason not to shoot.

However, I think the Non-Identity Problem gets something right. We do sometimes use ‘harm’ in a narrower sense in which someone is only harmed if they are made worse off. We might be tempted to say that you didn’t really harm Victor or that we don’t really harm our descendants by polluting if we don’t make them worse off. Both our intuitions and theoretical considerations pull us in two directions here. Insofar as we want morally to be mainly concerns with making things better, with maintaining welfare, we will be drawn to the narrower understanding of harm. However, insofar as we also think that our relations with people can matter beyond their consequences, we will see the wider notion as morally relevant.

3:AM: Why don’t you think that if I have a moral reason for doing something and I don’t do it (say I’m a pregnant woman(?) who knows I ought to stop smoking and drinking alcohol because they harm the baby) and have no countervailing considerations I should be morally criticised?

FW: There’s a lot to unpack in this question. First, I don’t think that the harm benefit distinction applies easily to pregnancy. So it might not be appropriate to say that smoking and drinking harm the baby. Second, if I know I ought – as in have a moral obligation – to stop smoking and drinking, then of course I can be morally criticised for not doing so. My claim is that not all moral reasons give rise to moral obligations. In fact, not all moral reasons give rise to defeasible duties. If I have a defeasible duty to do something then I have a duty to do it, unless there are sufficiently strong countervailing considerations. Duties play an important moral role, they help us to hold other people to account. So if I have a defeasible duty to do something, and I don’t do it, people can require me to justify this. If I can’t point to sufficiently strong countervailing considerations which defeat the defeasible duty, then people can blame me and I should feel guilty. But I think this realm of duties, the realm in which our behaviour is other people’s business, should be relatively limited. We shouldn’t be required to justify all our decisions to others. Moral reasons speak in favour of a certain course of conduct from the moral point of view. They make behaviour praiseworthy or morally commendable. I can have a moral reason to do something without having a defeasible duty to do.

And in fact this is something we accept quite easily in most areas of life. It’s obvious that I have a moral reason to run a marathon raising money for a life-saving charity. The potential benefits certainly speak in favour of running. And it might be that there are no strong countervailing considerations. Sure, the training would be hard and it would take up a lot of time, but it would on balance make me healthier, happier and more efficient. But no one thinks they get to require me to justify my failure to run a marathon. I don’t need to feel guilt and no one gets to blame me.

I think an area where we tend to get confused about the distinction between reasons and duties is in maternal behaviour. There’s evidence that breastfeeding has benefits for the baby’s health. Many people seem to assume that if this is true then the mother must have a defeasible duty to breastfeed. If women do not breastfeed, they are often required to justify this. On the other hand, many people see discussions of the benefits of breastfeeding as attacks on those who use formula. Talking about the benefits of breastfeeding is supposed to imply that those who use formula should feel guilty. This only follows if we assume that if breastfeeding is beneficial, mothers have a defeasible duty to breastfeed. And that only works, if we either assume that all moral reasons give rise to duties, or assume that the mother has a maximal duty to benefit her child i.e. that she has a defeasible duty to perform any action that might benefit her child. I think both those assumptions are wrong.

3:AM: And for the readers here at 3:AM, are there five books you can recommend that will take us further into your philosophical world?

Jonathan Bennett, The Act Itself

Frances Kamm, Intricate Ethics

Peter Unger, Living High and Letting Die.

Rebecca Kukla, Mass Hysteria.

Susan Moller Okin, Justice, Gender and the Family.

ABOUT THE INTERVIEWER
Richard Marshall is still biding his time.

Buy his new book here or his first book here to keep him biding!

First published in 3:AM Magazine: Saturday, August 5th, 2017.