J Value Inquiry DOI 10.1007/s10790-014-9479-0

The Doctrine of Double Effect and the Trolley Problem Whitley R. P. Kaufman

 Springer Science+Business Media Dordrecht 2015

It is widely held by moral philosophers that J.J. Thomson’s ‘‘Loop Variant,’’ a version of the Trolley Problem first presented by her in 1985, decisively refutes the Doctrine of Double Effect (‘‘DDE’’) as the right explanation of our moral intuitions in the various trolley-type cases.1 The consensus position, as stated most bluntly by psychologist Joshua Greene, is that Thomson’s Loop case is a ‘‘showstopper’’ for Double Effect.2 The Loop case is supposed to show that it is permissible to switch 1 See Bruers and Brackman, ‘‘A Review and Systematization of the Trolley Problem,’’ Philosophia 42:2 (June 2014): 251–269; T. Scanlon, Moral Dimensions: Permissibility, Meaning, Blame (Cambridge, MA: Harvard University Press, 2008); Peter Singer, ‘‘Ethics and Intuitions,’’ Journal of Ethics 9:314 (2005): 331–352, p. 340; Matthew Liao, ‘‘The Loop Case and Kamm’s Doctrine of Triple Effect,’’ Philosophical Studies 146:2 (2009): 223–231; H. Sauer, ‘‘Morally Irrelevant Factors: What’s Left of the Dual Process Model of Moral Cognition?,’’ Philosophical Psychology 25:6 (2012): 783–811, p. 797. Frances Kamm suggests the DDE can be saved from the objection, but only by radically revising it into a doctrine of ‘‘Triple Effect’’ (Intricate Ethics: Rights, Responsibilities, and Permissible Harm (New York: Oxford University Press, 2007)); I take it that this position concurs with the consensus that the Loop problem refutes the DDE. It should be noted that Thomson’s original article on the subject does not actually discuss the DDE, but instead focuses on the Kantian idea that one may not treat people as a means (J.J. Thomson, ‘‘The Trolley Problem,’’ Yale Law Journal 94 (1985): 1395–1415 (reprinted in Rights Restitution and Risk (Cambridge, MA: Harvard University Press, 1986)). However, the Loop variant raises the same problem for the DDE’s focus on intention, and it has become standard in the literature to treat Thomson’s argument as if it is directed against the DDE (see e.g. Liao 2008). It is my view that the Kantian position is in practice identical to the idea developed in the DDE (a view I defend in Justified Killing: The Paradox of SelfDefense (Maryland: Lexington Books, 2009)). 2

Joshua Greene, Moral Tribes (New York: Penguin, 2013), p. 230. Though his intended meaning is clear, in fact Greene has confused his metaphors. A ‘‘showstopper’’ is a term from the theater, referring to a musical number so well received that the audience’s wild applause temporarily stops the performance. Thus a showstopper indicates a smashing success, not a failure.

W. R. P. Kaufman (&) Department of Philosophy, University of Massachusetts Lowell, Lowell, MA, USA e-mail: [email protected]

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the trolley even though to do so would be to use the fat man’s death as a means to save others, thus contradicting the DDE. A few philosophers have suggested possible ways out of this dilemma for the DDE: Liao argues that the Loop case should be dismissed as an anomaly, insufficient to call into question the DDE.3 McMahan and Otsuka have argued that we should use the DDE to override our intuitions, thus making it impermissible to switch the trolley in the Loop case. In this essay, I argue for a different approach to the Loop case, one that shows that our uncertain intuitions in the Loop case in fact match up very well with the Double Effect principle. This issue is part of a much larger debate about the validity of Double Effect both as explanation of our moral beliefs and practices and as a plausible normative principle. Defenders of the DDE have long cited the trolley cases as an important body of evidence supporting the intuitive plausibility of the DDE. But opponents of the DDE point to the Loop case as providing a decisive counterexample to the DDE, sufficient to reject it completely. As Jeff McMahan relates: ‘‘Between 200 and 2007, when I was one of the editors of Ethics, I reviewed a number of submissions by junior philosophers in which Double Effect was relegated to a footnote and dismissed as an exploded view that no reasonable person could take seriously.’’4 On a personal note, I am quite familiar with the question ‘‘Hasn’t Thomson’s Loop case disproved the DDE?’’ from philosophers at conferences and from anonymous reviewers at philosophy journals. I have defended the DDE elsewhere in detail as the best account of our moral practices and as a powerful normative principle as well.5 In this essay I limit myself to an attempt to demonstrate that the Loop case does not refute the DDE. Of course, given that the Loop case has long played a central role in the case against the DDE, this question has obvious and important implications for a defense of the DDE in general.

1 Double Effect and the Trolley Cases: Standard Case, Fat Man Case, Loop Case Briefly, the Doctrine of Double Effect holds that there is a fundamental moral distinction between an action that involves intending harm to others and an otherwise permissible action that involves foreseen but not intentional harm to others. An action involving intentional harm is morally forbidden, but an action that results in foreseeable but not intentional harm may in certain cases be permissible.6 This distinction appears to explain, and arguably to be the only plausible explanation of, the near-universal moral intuitions regarding the two paradigm trolley cases: the Standard case and the Fat Man case. In the Standard case, a trolley is careening out of 3

Liao, Wiegmann, Alexander, and Vong, ‘‘Putting the Trolley in Order: Experimental Philosophy and the Loop Case,’’ Philosophical Psychology 25:5 (2012): 661–671.

4

Jeff McMahan, ‘‘Intention, Permissibility, Terrorism, and War,’’ Philosophical Perspectives 23 (2009): 345–372, p. 345.

5

Kaufman 2009, op. cit.

6

This is a highly simplified version of the DDE sufficient for purposes of this essay; a full account of the DDE is provided in Kaufman 2009, op. cit.

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control down the tracks towards five people who will almost certainly be killed, unless you decide to turn the trolley onto a side track. However, if you do so, there is one person on the side track who will be killed. The vast majority of people think it is permissible to switch the trolley in this case. The data from the online Moral Sense Test, collected from thousands of people from all around the world, indicate that 90% of people think it is permissible to switch the trolley.7 The Fat Man case is similar to the Standard case, except that the only way to save the five people on the track from the trolley is to push a very large man off of a bridge onto the track so that his body will stop the trolley, killing him in the process. From a utilitarian perspective, the case would appear to be identical to the Standard case: a choice about whether to sacrifice one to save five lives.8 However, moral intuitions sharply distinguish this case from the Standard case; 90% of respondents hold that it is impermissible to push the fat man in front of the trolley.9 Most people however are unable to articulate any plausible moral principle that could distinguish the two cases. What could explain these sharply diverging intuitions? Proponents of the DDE point out how economically it can explain these results. In the Standard case, you intend to save the five people, but you do not intend to harm the one. The death of the one is merely a foreseen result of your action, regrettable but not intentional. In contrast, pushing the Fat Man in order to save the five is wrong because it involves intentionally causing harm to the fat man, using him as a means to save the five lives. Contrary to utilitarian moral principles, morality is not merely reducible to overall consequences. One’s intention plays an essential role in assessing the moral validity of an action. However, J.J. Thomson challenged this position in 1985 by introducing the Loop variant, in which the side track loops back around to the main track in such a way that, even if you turn the trolley away from the main track, it will return and kill the five people when it loops back onto the main track. Thomson wrote: Let us now imagine that the five on the straight track are thin, but thick enough so that although all five will be killed if the trolley goes straight, the bodies of the five will stop it, and it will therefore not reach the one. On the other hand, the one on the right-hand track is fat, so fat that his body will by itself stop the trolley, and the trolley will therefore not reach the five. May the agent turn the trolley?10 7

Marc Hauser, Moral Minds (New York: Harper Perennial, 2008), p. 128. The use of Marc Hauser’s research data of course raises the problem of its reliability given his removal from Harvard in 2011 based on scientific misconduct. However, the alleged misconduct seems to have been limited to Hauser’s studies on monkeys and animal cognition and Hauser’s questionable interpretation of monkey behavior. There is no evidence of which I am aware that it extends to the evidence collected from online surveys of peoples’ responses to the trolley problems, which does not involve similar problems of interpretation. The online Moral Sense Test is still active, being run by other members of the Psychology Department at Harvard. Cf. also Edmonds 2014 p. 200: ‘‘there has been no suggestion that there was anything untoward about the published results’’ in the area of trolley problems.

8 I assume here an act-utilitarian theory (seemy Honor and Revenge: A Theory of Punishment (New York: Springer, 2012) pp. 81–82 for a discussion of the problems with rule-utilitarian theories). 9 10

Hauser, op. cit. Thomson, op. cit., p. 102.

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Thomson argued that this case is in all morally relevant respects identical to the Standard case, and that therefore if it is permissible to turn the trolley in the one case, it must be permissible in the Loop case as well: ‘‘we cannot really suppose that the presence or absence of that extra bit of track makes a major moral difference as to what an agent may do in those cases, and it really does seem right to think (despite the discomfort) that the agent may proceed’’ (id). Yet, she thinks, the case seems indistinguishable from the Fat Man case: in both cases, you are using the fat man as a means to save the lives of the five people. Thus, Thomson concludes, we need a new way of accounting for our intuitions in these cases. This argument has become widely viewed as a decisive counterexample to the DDE. For the DDE seems to hold that one may not switch the trolley in the Loop case, for it would count as intending harm to the fat man, not merely foreseeing it. After all, it would be pointless to switch the trolley if he were not present to stop the train. And yet, on Thomson’s view, if we are permitted to switch the trolley in the Standard case, then we are entitled to switch it in the Loop case, since the cases are equivalent in all relevant respects. As Peter Singer explains: ‘‘To divert the trolley around this loop does use the stranger as a means to saving the lives of the other five, but most people consider it would be right to do so. They thus judge this case as closer to the standard case of throwing the switch than to the case of pushing the stranger off the footbridge.’’11 Thomas Scanlon concurs: it ‘‘seems permissible to switch the trolley in the ‘‘Loop’’ case…but it is at least quite plausible to maintain that if it is permissible to turn the trolley onto the sidetrack, then it is permissible to do this in the second case as well.’’12 Bruers and Braeckman also hold that the loop case is ‘‘the major problem with the DDE,’’ though for a slightly different reason. They ask ‘‘is the death of the person on the side track intended or merely foreseen’’ (2013), implying that the problem is that the DDE cannot provide a clear answer to this problem (rather than that the DDE’s answer conflicts with our intuitive answer). So is the Loop case a counterexample to the DDE? And in what respect does it violate the DDE?

2 Can Hypothetical Cases Provide Reliable Intuitions? Beginning with Phillipa Foot’s invention of the original trolley problem in 1967, there has been a profusion of new, complex, and ingenious variations on the original trolley problem, spawning a virtual industry that has been called ‘‘trolleyology.’’13 This sometimes excessive development has been followed by a backlash against reliance on hypothetical cases as a way of doing ethics. Cass Sunstein’s reaction is indicative: ‘‘I believe that some philosophical analysis, based on exotic moral dilemmas, is inadvertently and even comically replicating the early work of 11

Singer, op. cit., p. 340.

12

Scanlon, op. cit., p. 18.

13

Two new books have recently appeared as accounts of the trolley problem for a popular audience: David Edmonds, Would You Kill the Fat Man?, and Thomas Cathcart, The Trolley Problem: or Would You Throw the Fat Guy Off the Bridge?.

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Kahnemann and Tversky: uncovering situations in which intuitions, normally quite sensible, turn out to misfire.’’14 I have argued elsewhere for a middle ground in this debate, that hypothetical cases can and should play an essential role in moral philosophy in allowing us to isolate the key variables that make a moral difference, the same way experiments in science aim to eliminate the ‘‘noise’’ and identify relevant variables.15 It is just this feature that provides a crucial test of the DDE; its explanation of the intuitive distinction between the Standard trolley case and the Fat Man case demonstrate that it is an extremely widely shared moral principle, even if only implicitly recognized by most people. Thus if Loop generates a conflict between our intuitions and the DDE, that is a strong reason to question the DDE. At the same time, hypothetical cases cannot be wholly trusted to produce reliable moral intuitions unless they remain grounded in realistic scenarios with some relation to ordinary experience. Hypothetical cases that are too ‘‘exotic’’ (to use Sunstein’s word) provide a dubious test of ordinary moral reactions, either because they are so wildly unrealistic or because they are so complex and convoluted that one may not be able to comprehend them sufficiently to generate a clear intuition, or may even misunderstand the overall scenario altogether. If this is correct, it is legitimate to wonder whether the Loop variant is too convoluted to count as a legitimate test for the DDE.16 There are a few reasons to take this view: to begin with, a railroad track that is looped back on itself that way is, I expect, rather unusual. It is also somewhat awkward to stipulate that each of the five people must be so thin that individually they would not stop the trolley, yet when packed tightly together they would stop it (and moreover that a single large man is by himself heavy enough to stop the trolley). It is highly unlikely that anyone would be able to make this determination at the moment of decision whether to switch the trolley. Yet Thomson needs this condition, otherwise one might reason that not switching the trolley would result in the death of the five and the death of the fat man. If so, one might well reason that, if the fat man is going to die anyway, one might as well at least save the five people. One might reasonably argue that, even if this violates the DDE, switching the trolley in Loop counts as a legitimate exception to that principle. Or one might reason that failure to switch the trolley would be using the five people to save the one person, just as much as switching it would be using the one to save the five. If so, one might hold that if one is going to act immorally in either case, one might as well switch it to minimize the number of lives lost.17 Given these complexities, it is at least plausible that the Loop variant might not provide a reliable intuition. Liao takes something like this position, noting that 14 15

Cass Sunstein, ‘‘Moral Heuristics,’’ Behavioral and Brain Sciences 28 (2005): 531–573, p. 541. Kaufman2009, op.cit.

16

Otsuka for example notes that, unlike many other examples used in ethics, ‘‘looping cases are not modelled on any real-world cases with which we are familiar’’ (M. Otsuka, ‘‘Double Effect, Triple Effect and the Trolley Problem,’’ Utilitas 20:01 (2008): 92–110, p. 109). Of course, Trolley and Fat Man are also somewhat artificial, even if less so than the Loop case. 17 Additionally, since Thomson does not say how large this loop is, one might reason that one would have cause to switch the trolley even if the fat man were not present, just because it buys time to try to get the five people off the track. If so, one is not intending the death of the fat man, or so one could argue.

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people’s responses to the Loop case are sensitive to the order in which the case is presented, i.e. whether it is presented after the Standard case or the Fat Man case.18 He suggests that ‘‘Loop intuitions cannot legitimately play the evidentiary role that they were supposed to play in Thomson’s argument against the DDE’’ (id.). Further support for questioning the evidentiary validity of intuitions in the Loop case is found in the survey data on this case, again provided by the Moral Sense Test. Notwithstanding Peter Singer’s claim that ‘‘most people’’ would consider it permissible to switch the trolley in the Loop case, in fact Moral Sense data show that intuitions are split 50/50 on the question.19 A plausible interpretation of this split might be that the case is so complex as to produce essentially random intuitive responses. Another possibility is that the case is, though somewhat convoluted, may be producing a genuine intuitive moral disagreement about what is right to do in this case. If so, we need to explain what it is about the case that makes people disagree so sharply on whether it is permissible to switch the trolley. Further, what are the implications for the DDE of this disagreement?

3 The DDE and the Loop Case The two premises in Thomson’s argument that the Loop case refutes the DDE are as follows: 1. 2.

Moral intuitions hold that it is clearly permissible to switch the trolley in the Loop case The DDE clearly indicates that one may not switch the trolley in the Loop case.

As to the first premise, we have already seen reason to doubt it, based on the survey data indicating that for most people, intuitions do not give a clear answer at all in this case. Moreover, a close look at Thomson’s argument reveals that it does not seem to rely on Premise One above, contrary to the assumption of most philosophers. Thomson does not in fact claim that intuitions clearly support switching in the Loop case; rather, her argument is that, whatever one’s intuitions on the matter, ‘‘we cannot really suppose that the presence or absence of that extra bit of track makes a major moral difference.’’20 That is, it seems the permission to switch the trolley is based on the demand for consistency in one’s moral principles, regardless of one’s intuitions. The only difference between the Standard case and 18

Liao et alia 2012, op. cit., p. 229.

19

Hauser, op. cit., p. 128. Hauser uses a slightly modified version of the Loop case, but there is no reason to believe that it changes the case in any important respect. It is not clear who Singer is referring to when he says ‘‘most people,’’ nor does he provide any evidence to back up his assertion. It is notable however that an online poll of philosophers gave very different results from the Hauser poll: 67% of philosophers said that it is permissible to redirect the trolley in the Loop case (though the sample size is small: only 76 participants) (http://ethics-etc.com/2007/08/11/ the-loop-case-poll/). Otsuka plausibly suggests that philosophers’ intuitions may be biased by the powerful influence of Thomson’s initial article (op. cit., 2008, p. 109). We might also speculate that the widespread hostility to the DDE may have influenced philosophers into accepting her conclusion in the Loop case. 20

Op. cit., p. 102.

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the Loop case is a little bit more track, she says, and surely that cannot be morally relevant. Hence if one can switch in the Standard case, one can switch in the Loop case. In fact, the argument is fallacious. The question is not whether the presence of more track is in itself determines the permissibility of switching the trolley; no one would ever claim that the presence or absence of a section of railroad track is in itself morally decisive. The question is whether the presence of that extra track changes the moral nature of the action: that is, does it affect who will live and who will die as a result of one’s choices, as it certainly does.21 It is as one were to say that there is no moral difference in firing a gun at a tree versus firing it at a person, since a few degrees of difference in the angle of fire surely can’t make a moral difference. In any significant moral action, there will always be material factors that, while in themselves not intrinsically morally salient, will become so because of their impact on morally significant factors such as physical harm to people. If the presence of the loop makes the fact of switching the trolley pointless unless the fat man is present to ensure that the five people on the track will not die, then the moral nature of the action has changed. To suggest that the difference between Trolley and Loop is merely the presence of an extra section of track is to commit a category error. But if the attempted deductive argument fails, what of the inductive argument from moral intuitions in the Loop case? In fact, a close look at Thomson’s original argument suggests that her own intuitions are far from univocal in the Loop case and even lean towards the impermissibility of switching the trolley. Thus Thomson says that ‘‘Some people may feel more discomfort at the idea of turning the trolley in the loop variant’’ than in the Standard case, and that ‘‘It really does seem right to think (despite the discomfort) that the agent may proceed.’’22 That is, her reaction to the case is apparently one of ‘‘discomfort’’ at turning the trolley (a word she uses in consecutive sentences), implying that her intuitions if anything make her want to reject turning the trolley. It is the (purported) rational principle that overrides the intuitive discomfort, for Thomson. Interestingly, Scanlon’s version of the argument shows the same pattern. He says ‘‘the answer in this [the Loop] case may be less clear than in the original [Standard] case, but it is at least quite plausible to maintain that if it is permissible to turn the trolley onto the side track in the first case, then it is permissible to do this in the second case as well’’ (2008, p. 18). That is, presumably what makes the case ‘‘less clear’’ is that the Loop case produces some sense of discomfort or at least uncertainty, but for Scanlon as for Thomson rational consistency is invoked to guide or override prior intuition. Neither Thomson nor Scanlon identify the source of their discomfort at switching the Trolley in the Loop case. But it is plausible to suggest that this ambivalence is rooted in the intuition that killing the fat man in the Loop case is uncomfortably close to the Fat Man case, which clearly does involve killing someone as a means (intending their death as a means). Once we reject Thomson’s consistency 21 Note that Thomson actually writes that the extra feet of track can make no ‘‘major’’ moral difference. It is unclear what this qualification is supposed to mean. 22

Thomson, op. cit., p. 102.

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argument, then we are left with the intuitive ‘‘discomfort’’ in the Loop case, a discomfort not found in the Standard case. Of course, ‘‘discomfort’’ is not the same thing as clear intuitive disapproval. This ambiguity in our reactions to the Loop case is evidenced by the fact that the Moral Sense Test indicates widespread disagreement on how to think about this case. It is also supported by the experimental findings of Liao et alia,23 who show that peoples’ responses to the Loop case vary significantly depending on whether they are shown the Standard case first or the Fat Man case. A natural interpretation of this result is that people do not have firm intuitions on the case, and that they can be influenced to assimilate it either to a case of permissible switching or impermissible switching. Some philosophers have not only rejected Thomson’s argument, but taken the very opposite position that in the Loop case it is clearly impermissible to switch the trolley. McMahan says that this case ‘‘seems to me virtually indistinguishable morally from’’ the Fat Man case.24 However, his argument for this conclusion is curiously tentative: he says that, while the Loop case does bear close similarities to the Standard case, ‘‘one’s intuition might be different if one were to focus more on the similarities to the’’ Fat Man case (id.).25 Otsuka takes a slightly different approach, calling for philosophers to ‘‘reject, as a moral illusion, the intuition that it is permissible to divert in looping cases.’’26 He suggests that this (illusory) intuition may be an artifact of the way the Loop case was first presented in the context of Thomson’s article, in which the Loop case is assimilated to the Standard case. Otsuka also suggests that, whatever the cause of this intuition among philosophers, it ought to be rejected as an anomaly in favor of the overwhelming importance of the moral principle that one ought not kill someone as a means to an end, and that the Loop case would be a violation of that principle. But even Otsuka seems to suggest a certain ambivalence about the case; he argues that the Loop case can be assimilated either to the Standard or the Fat Man case, and that our decision on this issue should be decided by the ‘‘cost’’ of assimilating to one or the other, i.e. the cost to our stable moral principles.27 It is thus notable that both McMahan and Otsuka seem to leave some room for the possibility that the Loop case generates no clear intuition at all, a position consonant with Hauser’s results. Whether we adopt the Moral Sense Test data, indicating that intuitions are evenly split, or the McMahan/Otsuka argument that our intuitions ought to reject the permissibility of turning the trolley in loop, either way we are led to reject Premise One: that intuitions clearly support turning the trolley. Still, that leaves us with a problem: if Premise Two is correct, and the DDE indicates one may not switch the trolley, then why are the intuitions, at least of non-philosophers, split 50/50? This would still raise a problem for the DDE, even if not as decisive a problem as the current consensus thinks (based as it is on the faulty premise that it is clearly permissible to switch in Loop). If the DDE is a good theory of our moral principles, 23

Liao, op. cit.

24

McMahan, op. cit., p. 359.

25

He also does not explain the qualification ‘‘virtually’’ indistinguishable.

26

Otsuka 2008, op. cit., p. 110.

27

Ibid., pp. 108–109.

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and if the DDE clearly entails that one may not switch the trolley in the Loop case, then why are people so uncertain in their intuitions on this case? Let us turn to the question of how to apply the DDE to the Loop case, which we will see is not as simple as it might first appear.

4 What Does the DDE Say About the Loop Case? While it is widely assumed that the DDE would clearly prohibit turning the trolley in Loop, this assumption needs to be situated in the context of widespread rejection of the DDE among moral philosophers, as Jeff McMahan (referenced above) has pointed out. Thus for example Thomas Scanlon’s discussion of the Loop case appears in a chapter entitled ‘‘The Illusory Appeal of Double Effect.’’28 It is therefore worth asking whether the consensus view is an accurate interpretation of the DDE. As someone who is strongly sympathetic to the DDE, the present author may of course be accused of precisely the opposite bias, in favor of the DDE. Nonetheless there are good arguments to doubt whether the DDE does in fact clearly prohibit switching in the Loop case. The standard argument since Thomson’s article is that, since the death of the fat man is necessary to save the five lives, then it is wrong to switch the trolley since that would be to intend his death as a means to save the lives of the five others (or, in Kantian language, to use him as a means). However, there is another way to think about the Loop case. Here we might go back to Thomson’s argument that adding in the extra feet of track cannot make a moral difference. While I argued above that the argument is unsuccessful as stated, nonetheless there is something right about her intuition in this case. This extra track now puts the bystanders at risk unless the fat man is there to stop the trolley. There is a sense in which this looping possibility is a distinct and separable fact about the case, separate from the initial decision to switch the trolley despite knowing the fat man will be killed. That is, one could interpret the Loop case as involving two separate causal chains, each of which could lead to the death of the five bystanders.29 First, there is the path down the main track; with respect to this causal path, the death of the fat man is merely foreseen. Second, there is a secondary causal path around the loop and hitting the five bystanders from the other side; this danger to the five people is the result of one’s deciding to turn the trolley. With respect to this new harm, the death of the fat man is necessary in order to prevent it. So does that mean that knowledge of the necessary death of the fat man in regards to the second causal chain trumps the merely foreseen death of the fat man in regards to the first causal chain? One could interpret Thomson’s intuition, that the loop can’t change the moral nature of the original action, as a way of seeing these two causal chains as distinct, so that the existence of the loop does not ‘‘infect’’ the first causal chain by making the death of the fat man intended not foreseen (this is of course to take Thomson’s idea and draw the precise opposite conclusion than she did). 28

Scanlon, op. cit.

29

Greene 2013, op. cit., p. 231, makes a similar argument.

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This issue returns us to the complexity problem as discussed above; depending on how one parses the problem, one might draw a different conclusion as to permissibility. Is the decision to switch the trolley a decision to save the five, or is it necessarily also a decision to use the one to save the five? Is one thinking of the case as a single whole, or as effectively two different problems contained in one scenario? Suppose one has chosen to switch the trolley in order to save the five: does one’s failure to undo that decision in light of the presence of the fat man count as intending or foreseeing his death? Suppose the trolley were already heading on its own towards the fat man: could one reason that one has no obligation to switch it away – and that therefore in Thomson’s Loop case if one switches the trolley simply in order to save the five, one similarly has no obligation to change that decision given the presence of the fat man and the loop? If one were to reason: the only reason I am switching the trolley is to use the fat man to save the five, then clearly this is a wrongful act. But if one were rather to reason, I’m switching the trolley in order to protect the five people from an immediate threat, and though I notice that the presence of the fat man is necessary to save them from an additional, secondary threat, morality does not require me change my original decision and let the five be killed – then the decision to switch is not so obviously wrong. In short, failing to retract or change one’s decision to switch because one notices the (necessary) presence of the Fat Man is arguably morally different from positively acting to ensure he is in the path.30 In short, what makes Thomson’s Loop variant so ingenious is that it creates an ambiguous borderline case, a case midway between the Standard case (clearly foreseen harm) and Fat Man case (clearly intended harm). In effect, it incorporates both cases into one, with the key change being that one need not positively act to push the Fat Man into the path of the trolley; the presence of the Fat Man is necessary to save the five, but one did not bring it about (or even intend) that he be there. This is Thomson’s way of making the death of the Fat Man seem as far from intended as possible, even while it is in actuality necessary to save the five. This potential ambiguity in the problem could account for the results of Liao, finding that one’s response to the Loop problem are partly dependent on whether one sees the Standard trolley problem first, or the Fat Man problem. But if the case can be understood as presenting an ambiguity between intended and foreseen harm, then the proper interpretation of the Loop case under the DDE is that the DDE gives no clear, determinate result.31 Reasonable people could reasonably disagree. If so, the DDE would predict that peoples’ intuitions will be indeterminate on this case, just as turns out to be the case in the Moral Sense Test data: people are split 50/50 on whether it is permissible to switch the trolley. If this analysis is correct, then the 30

McMahan raises the question as to whether, once one has switched the trolley, one is morally required to try to get the Fat Man out of the way (op. cit. 2009, p. 359). If one passed up on an easy opportunity to save him, it seems to me that McMahan is correct that one is now acting morally impermissibly. But it does not seem to me that this entails that one is acting impermissibly in the more likely scenario, that there is no easy way to get the Fat Man to move away from the train. 31 One might see Kamm’s attempt to draw even more subtle distinctions in the nature of intention as another way of suggesting that the case does not clearly fall under either side of the dichotomy, intended versus foreseen (Kamm, op. cit.).

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Loop case clearly does not refute the DDE; indeed, our response to it is quite consistent with the doctrine. One might however object that it is unsatisfactory in principle to allow that the DDE may give no determinate answer in the Loop case. This is the argument made by Bruers and Brackman, who announce that they ‘‘prefer a moral rule that works like a kind of algorithm; that is, a clear procedure applicable to all dilemmas, which provides an unambiguous answer as to whether action is allowed or not, and without reference to fuzzy or ambiguous concepts.’’ Hence their major objection to the DDE is precisely that it cannot tell us whether in the Loop dilemma ‘‘the death of the person on the side track [is] intended or foreseen.’’32 However, these authors give us no reason to demand that the DDE, or any plausible moral theory, should be expected to function in such an algorithmic manner. Indeed, the existence of borderline cases is a feature of most areas of philosophy, not just moral philosophy. To use a standard example, the concept of baldness is perfectly legitimate, even if we cannot say precisely at one point in one’s hair loss one can be considered bald. There is no obvious reason to hold a moral theory to a higher standard; the fact that it does not produce a clear answer in borderline cases could rather be seen rather as a virtue of a theory. Once we free ourselves of the implausible algorithmic assumption of Bruers and Brackman, we can see that their analysis of the Loop case ends up supporting the argument we have made here, for, contrary to the majority of moral philosophers, their ‘‘objection’’ to the DDE is that it cannot handle the Loop case because the death of the fat man is not clearly either intended or foreseen. But in that case, the DDE is doing its job exactly as it should.

5 Conclusion We have seen three possible answers to the claim that the Loop variant refutes the DDE. One is that of McMahan and Otsuka, who assert the impermissibility of switching the trolley and argue that the Loop case should be treated just like the Fat Man case. Another is that of Liao, who suggests that the Loop variant be dismissed as an anomaly that, for whatever reasons (perhaps its complexity) cannot generate reliable intuitions with which to undermine the DDE. I have here argued for a third position, that of rejecting both premises in the argument. On this view, intuitions do not give a clear answer in the Loop case, and neither does the DDE. If so, far from undermining the DDE, the Loop case arguably even provides support for the validity of the DDE as a description of our moral beliefs and as a plausible normative principle. Whichever of these strategies is correct, I have argued that it can no longer be assumed that the Loop case is a clear counterexample sufficient to discredit the DDE as a whole.

32

Op. cit., p. 255.

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