The Journal of Value Inquiry (2007) 41:15–29 DOI 10.1007/s10790-007-9060-1

Ó Springer 2007

The Act—Omission Doctrine and Negative Rights INGMAR PERSSON Department of Philosophy, Gothenburg University, Box 200, SE-405 30, Gothenburg, Sweden; e-mail: [email protected]

1. The Involvement of Rights in the Act—Omission Doctrine According to the proponents act—omission doctrine, there are kinds of harms such that to actively cause instances of them is morally worse, or harder to justify morally, than to let them happen. Hence, there are circumstances in which it would be wrong to actively cause the harms, but permissible to let them occur. For example, it is wrong to kill people in some circumstances in which it would be permissible to let them die or be killed. Thus, while it is wrong to kill one person, by running him over, in order to have time to save two, it is generally permissible to let one die, by leaving him by the roadside, in order to have time to save two. There is, however, a related doctrine which, as much as the actomission doctrine, seems to be a part of common sense morality, the morality we pre-reflectively believe in. This is a doctrine of negative rights, according to which the general rights we have are negative. We have rights against all other beings capable of recognizing rights that they do not deprive us of our lives, limbs and property. We have, however, no general right against them to positive aid that enables us to sustain our lives, limbs, or property. It has been claimed by Philippa Foot that such a doctrine of rights underlies the act—omission doctrine.1 A belief in negative rights could indeed explain why killing is harder to justify morally than failing to sustain life, since only killing would then violate a right. It can also be used to explain why the causing of certain sorts of harm, like death, but not other sorts, such as preventing somebody from getting a coveted prize, is harder to justify: while causing death violates a right, competitors have no rights to the prizes for which they compete.2 Furthermore, the hypothesis that we believe in a doctrine of negative rights can also be used to explain why it is not wrong to kill a person in order to save others when he will otherwise kill them or autonomously consents to being killed for their sakes. For such a person forfeits and waives, respectively, his right to life.

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However, it seems that negative rights cannot account for the whole of the act—omission doctrine. It cannot account for the fact that we are not justified in violating one right to life, by killing one person, to prevent more rights to life being violated by more people being killed by others. To explain this feature of the act—omission doctrine, we have to take it that, in addition to a belief in negative rights, the act-omission doctrine involves something like the idea that we regard ourselves having a greater moral responsibility for what we actively cause than for what we passively let happen.3 This idea, according to which responsibility is dependent upon causality, implies that we hold ourselves to be more responsible for violating rights than for letting them be violated by others. It would however be a mistake to suppose that the act-omission doctrine consists in nothing but this causal conception of responsibility. It would then follow that, as Jeff McMahan puts it, ‘‘the significance of the distinction between doing and allowing should be reversed in cases in which the outcome is good rather than bad. If doing harm is worse than allowing harm to occur, actively benefiting someone should, in general, be better than merely allowing someone to be benefited.’’4 Even though it is true that actively benefiting someone is in some sense better, or more praiseworthy, than allowing someone to be benefited, it seems undeniable that there is not reversibility in the sense that, as a rule, we have as strong a duty to benefit or do good actively as we have not to harm actively. We do not have as strong a duty to save lives actively as not to kill. If we had had such a strong duty to benefit actively, it would be as wrong to refrain from actively benefiting as to harm actively. But then the act—omission doctrine would evidently be undercut. To grasp the rationale of this doctrine, we must introduce something that could account for why the moral significance of the distinction between doing and allowing is not fully reversible with a shift from bad to good outcomes, as the causal conception of responsibility would imply. We must find something that explains why, when we can actively cause an outcome that is good for the recipients, we do not in general have a moral obligation, though we may have weaker moral reasons, to benefit actively as we have an obligation not to harm actively. In the absence of such a factor, we should expect that we would be required to kill one as a necessary means of saving at least two, since by committing this killing we would actively save more people than we kill.5 This factor is the doctrine of negative rights. But although the reasons for doing good in the shape of saving lives are appreciably weaker than the reasons against harming in the shape of killing, it might be held that they could mount up to a point at which they outweigh them. If we could save sufficiently many lives by means of

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killing one person, it might reasonably be held that it is permissible for us to kill the person in question.6 The asymmetry between actively doing good and actively doing harm can then be explained if we take the act-omission to involve, alongside a causal notion of responsibility, a theory of rights, according to which our general rights, as opposed to our special rights, are negative rather than positive.7 General rights are rights had against everyone capable of recognizing rights. The rights we are thought to have to ourselves, to our life and limbs, and to the property we acquire are examples of general rights. Their negativity comes out when we spell out what they are rights against others that they do, since this is, roughly, that they do not interfere with us or our property in any harmful way. If they had been positive, they would have been rights against others to have their positive assistance in maintaining ourselves and our property. The doctrine of negative rights presupposes that we have some measure of power or control over ourselves and our property and, hence, are not in need of assistance in order to maintain them in the ordinary course of events. The rights to ourselves and our property are obviously rights of the socalled claim sort rather than of the so-called liberty sort. According to the familiar analysis of Wesley Hohfeld, claim-rights correspond to duties or obligations in the sense that if a person has a right against another person, the other person has a duty or obligation towards the first person, whereas someoneÕs having a liberty-right to something merely consists in him not being under a duty to refrain from this. Accordingly, corresponding to the general, negative rights to ourselves and our property are negative duties not interfere with us or our property in any harmful way rather than positive duties to help us to preserve ourselves and property. In contrast to our general rights, our special rights might well be positive. While general rights are rights that right-holders have against all individuals capable of recognizing rights, special rights are created by acts against right-holders performed by those persons who are subject to the correlative duties. Thus, by performing the act of promising to aid somebody, we place ourselves under an obligation to aid the promisee and endow the individual in question with a positive right to receive this aid from us. While the ground for special rights in this fashion lies in acts of those under the corresponding duties, general claim-rights, to ourselves and our property, have instead in the Lockean tradition been thought to be grounded in acts, of first occupancy or appropriation, of the rightholders. The ground of liberty-rights is instead the absence of claimrights, acquired by first occupancy. If we take it that the act—omission entails such a theory of rights, we have an explanation of why ‘‘the significance of the distinction between

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doing and allowing’’ is not ‘‘reversed in cases in which the outcome is good rather than bad,’’ as McMahan puts it.8 The explanation is that when we cause certain bad outcomes, such as ones involving the death of people, we violate a general right to life, whereas when we do good, by preventing death, we do not, in the absence of special relations to the patients, discharge any obligation that we would fail to discharge were we to fail to do this good, since general rights are negative rather than positive. At most, we merely set aside weaker moral reasons of charity. According to the hypothesis that the act—omission doctrine presupposes such rights, the kinds of harm to which this doctrine applies will be harms that involve the violation of some right. As already indicated, there are other kinds: we might gravely harm somebody by winning a prize when he would have won it if we had not. The reason that depriving somebody of a victory, in contrast to depriving him of life or property, might be permissible is that normally nobody has a claim-right to win a prize. The act—omission doctrine does not entail that it is worse to harm somebody by taking a victory from him than by refraining from helping him to win. Likewise, against a background of rights, the qualifications that are usually added to make a killing wrong also become intelligible. Many people believe that we could permissibly kill a person in self-defense. If the attacks on our lives are responsible, the aggressors forfeit their rights to life. We cannot violate the aggressors by killing them in self-defense. Such aggressors are not morally permitted to defend themselves against our lethal self-defense. In contrast, people who through no fault become threats to our lives, innocent threats or innocent shields to threats, are permitted to defend themselves against our self-defense. They have not forfeited their rights to life. For the same reason, bystanders are not permitted to side with us in our self-defense against them. Another sort of case in which killing people could reasonably be held not to be wrong is when they autonomously consent to being killed. They might then be said to have waived their right to life; hence, it cannot be infringed. Waiving this right is what we do when we permissibly, and supererogatorily, kill ourselves to save our comrades or, less heroically, to save ourselves greater suffering. It is also what we do when we ask for euthanasia, or for a risky operation when death is otherwise certain. Thus, to the qualification that the people whom it is wrong to kill must not be a threat, or a part of a threat, to our lives, it should be added that they do not autonomously consent to being killed. The explanation of why these qualifications concerning the victims are necessary to make a killing of them wrong is that without them, the rights to life of the victims will not be violated.

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2. Wrongfully Allowing Death and Permissibly Causing it We are in a position to see that there are exceptions to the implication of the act-omission doctrine that it is always harder to justify morally killing, or causing the death of, non-threatening, non-consenting people than to let them die or be killed. Such exceptions are, however, obscured by a tendency to misdescribe cases of wrongfully letting die or be killed as killings and cases of permissibly killing or causing death as instances of letting die or be killed. We will consider first cases in which people are wronged by being allowed to die or be killed because this violates some special right they have. Let us suppose we have caused the victim to be vulnerable in some way and, as a result, have a special duty to aid him. We might then do wrong by failing to discharge the special duty we have to the individual by not saving him. Thus, by having caused it to exist, a mother has a positive obligation to feed and take care of her infant and, as a consequence of this, the infant might be said to have a correlative positive right against its mother to be fed and provided for by her. Hence, there is a special duty against the infant that the mother fails to discharge when she omits feeding it. This makes her omission wrong just like a killing is when it violates the general negative right to life. Consequently, just as we have an intuition that it is wrong to perform an action that kills one person, but saves two people who have no special right to be saved by the agent, we have the intuition that it would be wrong of a mother to let her infant die in order to save two strangers to whom she has no life-saving duty. Frances Kamm, however, gives an argument for holding that dying as a consequence of being denied aid to which someone has a special right is not to face as great a wrong as being killed: ‘‘When the former happens, our links to other people are in jeopardy.... When the latter happens our separateness and, often, independence from others is in jeopardy. This may be more important...because independence supports the boundaries of our separateness, and there must first be separate entities, before they are linked.’’9 The case of the mother and her baby can be used to show, however, the falsity of the claim that there must first be separate entities, since the separate existence of the baby does not precede the link between it and its mother which is supplied by the motherÕs act of causing the baby to exist. Unfortunately there is, as for instance McMahan notes, a tendency to misdescribe the woman as having killed her infant when she refrains from feeding it, in an ordinary way.10 McMahan seems right that this is a case of letting die or be killed. A definition of the following sort supports his intuition. We let something be a fact at a certain time if and only if first,

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this will be a fact at the time unless some change is made to the way we then correctly take things to be; secondly, we know, or correctly believe, that we can, in an all-in sense entailing both ability and opportunity, prevent this from being a fact at the time by causing some change; thirdly, we choose or decide not to cause any such change at the time; and, fourthly, because we make this choice or decision, this becomes a fact at the time.11 In contrast, we are actively causing something to be a fact if and only if it becomes a fact because we or, more precisely, some facts about us, are causing some change. According to this definition, when we let something happen, we make a decision with respect to what happens, such that if the decision had not been made or implemented, it would be as though we had made no decision, even as what we allowed would nevertheless take place. In this sense, our decision makes no difference when we let something happen or be a fact. When we let something happen, we make a decision the implementation of which leaves things with respect to what happens as they would have been if we had not exercised our capacity to decide and behave accordingly, or had not even possessed this capacity. Our decision causes no change with respect to this happening, as would have been the case had we intentionally caused what happens to occur. The above definition implies that the woman lets her baby die from starvation for the reason that her decision not to feed it makes no essential causal contribution to the infantÕs death in this sense: the baby would have died just the same if instead she had made no decision with respect to it, because she was, for instance, unconscious. McMahan speculates that people who describe her behavior as a killing are misled by the fact that it is as wrong as a killing. It should be added, more specifically, that they are misled by the fact that the motherÕs letting the baby die violates its right to receive life-sustaining aid to describe it as a killing, which generally is something that violates a right to life. The claim that the mother lets her baby die is as wrong as her killing it, or causing its death is, however, compatible with it being the fact that, because of the causal sense of responsibility, she would feel more responsible for its death in the latter case. Therefore, it may be harder for her to kill it than to let it die. As we shall see, however, McMahan himself seems to make the opposite error of regarding some instances of permissibly causing the death of people as instances of letting them die.12 Let us imagine that we remove for our own use some life-sustaining protection, which belongs to us and which we need to survive, from someone who is using it without our permission, and whose life we have no special duty to sustain, with the result that she dies. Then we are causing this person to die but, according

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to common sense morality, we do not act wrongly, since we are permitted to use our own protection to save ourselves. Since we have retained the right to dispose of the aid as we see fit, our removal violates no right and is therefore not wrong. According to the definition above, this is clearly not an instance of letting die or be killed, but of actively causing death through a change in the situation, namely the removal of protection. McMahan, however, takes a different view: ‘‘If a person requires or is dependent for survival on further aid from or protection by an agent, and if the person dies because the agent fails to provide further aid or withdraws his own aid either while it is in progress or before it comes operative, and if the agent is not causally responsible for the personÕs need for aid or protection, then the agent lets the person die.’’13 Kamm puts forward a similar doctrine: ‘‘If an agent terminates aid and so allows a potential cause of death actually to kill someone, but it is aid that the agent himself was providing, or aid that belongs to the agent then we have a letting die.... This will be true even though it is an act rather than an omission that removes the aid.’’14 Thus, suppose that to prevent a patient from dying of some disease, someone hooks up the patient to his body, thus making himself a provider of life-support in McMahanÕs terminology. If the provider then disconnects himself, thereby becoming a remover of life-support in his terminology, with the result that the patient dies of the disease, then, on KammÕs and McMahanÕs view, he merely lets the patient die, though he has actively freed himself.15 Despite its initial plausibility, KammÕs and McMahanÕs view has some peculiar consequences. Let us suppose the provider of aid refrains from removing the aid that the patient receives. The provider then clearly lets the patient live on, by letting the aid remain where it is. But it is peculiar that the alternative to his letting the patient live on consists in nothing but what is on their view his letting the patient die. It would follow, on their view, that some situations are such that however one acts with respect to some state of affairs, the person either lets it obtain or not obtain. But as the definition above implies, the alternative to letting something be the case must consist in an action, in causing some change that prevents the state of affairs from being the case. Kamm and McMahan agree that this would be so if the remover of aid were distinct from the provider of it, at least if the remover is not authorized by the provider to remove aid, as a doctor is when she disconnects the provider from a patient at the providerÕs request.16 They agree that the alternative to the removerÕs letting the patient survive by letting the aid be would then consist in her causing the patient to die. But there is a solid sense in which what the remover does is the same, irrespectively of her relation to the provider, just as there is a solid sense in

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which what a woman does in abstaining from feeding a baby, with the result that it dies, is the same irrespectively of her relation to its mother. What such relations affect is the rights-situation and, thereby, the morality of the conduct. If the remover is identical to the provider, the aid might be hers to withdraw permissibly, and if the non-feeding woman is identical to the infantÕs mother, she has a special duty to feed it which it is wrong not to discharge. It seems, then, that in classifying some cases of active withdrawal as instances of letting die, McMahan is guilty of a mistake he himself warns against, being guided by a moral evaluation of the item classified. Just as the mother is described as having killed her baby because she violates a right with fatal consequences, so McMahan classifies instances of causing death as instances of letting die because of conditions which ensure that no right is violated. In the present context, these are crucial misclassifications, since they obscure the facts that rights enter into the act-omission doctrine, by packing them into the distinction between killing and letting die, and that it is not the act—omission distinction but the distinction between violating and not violating any rights that is morally significant According to McMahan, whether the withdrawal of operative life-aid counts as killing or letting die depends upon whether the aid has become ‘‘a self-sustaining form of aid’’ or whether it is still in progress, requiring ‘‘more from the agent.’’17 This difference might appear to be purely factual, a matter of whether further action from the agent is required to keep the life-support going. However, McMahan explicitly states that lifesupport can be in progress, although no ‘‘further action from the agent is required.’’18 It is enough if it consists in ‘‘resources that properly belong to the Provider.’’19 But this is what a rights-theorist would say makes the removal permissible because, if the aid is his, the remover of it is likely to act within his right when he withdraws it. Hence, this alleged condition of letting die is a right-relevant condition. The same may be said for McMahanÕs condition that the aid is not yet operative, like a check that has been sent off to a welfare organization, but has not yet arrived. McMahan maintains that if the person who has signed the check stops it on its way, she lets die just as she would have done if she had refrained from signing it. Again, a rights-theorist would hold that the signerÕs act is permissible because she acts within her rights, since her right to the check has not yet been transferred to the recipient. Thus, it appears that, without realizing it, McMahan classifies certain withdrawals of aid as instances of letting die because they are permissible by not violating any rights. To display further counter-intuitive consequences of KammÕs and McMahanÕs account, the case of suicide is useful, since while it admits of

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the distinction between killing and letting die as defined above, we hardly have any rights against ourselves whose violation could distort the distinction. If we try to kill ourselves, we must consent to this, and the duty not to kill non-consenting people does not apply. Nor do we here face the need of having to distinguish the cases in which a provider retains the right to the aid from the cases in which it has been transferred to a victim, since the provider and victim are identical. All of us need aid or protection from ourselves for survival. In some cases, were we to fail to provide further aid to ourselves, we would clearly let ourselves die. Let us suppose, for instance, that we stop eating and drinking. We then let ourselves die of starvation or dehydration. But suppose instead that we fail to provide ourselves with further oxygen, or withdraw from the supply of it, by diving to the bottom of the sea. This is, contrary to what the view of Kamm and McMahan implies, a case of killing ourselves rather than of letting ourselves die. The reason is that in this case we actively do something to deprive ourselves. Likewise, if someone stamps out a fire which he has kept burning by feeding it with wood, he might cause himself to freeze to death. In contrast, he lets himself freeze to death if, having stamped it out, he decides not to restart the fire, assuming that he knows he could restart it. If instead of stamping out the fire, he throws away the firewood that he will soon need to keep the fire burning, he does not let himself freeze to death, though this what McMahanÕs account seems to imply, since the firewood is potential aid not yet in operation. He is, instead, causing it to be the case that he cannot escape death. On the views of Kamm and McMahan, the distinction that Christopher Boorse and Roy Sorensen draw between ducking and sacrificing is an instance of the act-omission doctrine. If a person ducks, with the result that a lethal projectile hits somebody behind him, he is withdrawing protection, whereas sacrificing somebody means causing somebodyÕs death by using him as some sort of shield or protection. The analysis offered here is more concordant with how Boorse and Sorensen diagnose their distinction when they characterize it as ‘‘an act—omission analogue within the realm of acts.’’20 When a person ducks, she is causing somebody to be killed rather than merely letting it occur, as she would do when she avoids stepping into the path of a projectile. Thus, when she ducks she will be more responsible for the ensuing death, according to the causal sense of responsibility. She will then be squarely in the realm of acts. But the analysis offered here also accounts for the respect in which the distinction between ducking and sacrificing is an analogue of the distinction between acts and omissions. In both cases the moral significance of the distinction derives from a theory of rights. Ducking is generally permissible because

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we can do it without violating any rights, whereas we violate rights if we sacrifice people by forcing or deceiving them to act as shields. When sacrificing involves no right-violation, as when we destroy unowned natural resources by using them to shield our own property, it is no worse than destroying them by the removal of the protection our property offers, this being a counterpart of ducking. Despite the difference in opinion over some cases of withdrawal of lifesupport, Kamm and McMahan would agree with the ambition to present a ‘‘nonmoral criterion’’ for whether something is a killing or a letting die.21 Accordingly, they recognize that letting die can be wrong, as in the case of the mother and her baby. Kamm also regards a remover who is in no way a provider of the aid removed, but ‘‘who has a right to terminate lifesaving aid’’ as having committed a ‘‘morally permissible killing.’’22 However, she believes that these facts are compatible with it being true that killing and letting die differ morally per se. However, we should not give up the principle that, if a distinction has moral significance per se or in itself, it must have this significance in every context in which it is present. Instead, the above facts show that what is of intrinsic moral significance is the distinction between violating a right and not violating any right. Contrary to this ambition to offer a non-moral criterion, Judith Jarvis Thomson contends that ‘‘the difference between killing and letting die is not wholly nonmoral.’’23 She proposes the following as a necessary condition of letting a patient die: the agent ‘‘has a liberty-right to engage in the behavior (action or inaction) that issues in the patientÕs death.’’24 If this is a necessary condition, it follows that the mother does not let her baby die. The mother is not at liberty not to feed her baby. It is her duty to do so. Although this makes ThomsonÕs distinction between killing and letting die extensionally more discordant with the distinction offered here than KammÕs and McMahanÕs distinctions are, it is preferable to theirs in one respect. Since ThomsonÕs analysis of the distinction explicitly refers to rights, it does not efface their involvement in the act—omission doctrine.

3. The Act-Omission Doctrine and Causal Responsibility The doctrine of negative rights, then, is necessary to account for the actomission doctrine, but it is not sufficient. The causal conception of responsibility is also needed. Although this conception of responsibility might normally be understood to be implied by the theory of negative rights, it is logically separable from it. Given such a separation, a right to life that takes the negative form of being a right not to have a personÕs life

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harmfully interfered with by other responsible agents would impose upon such agents not merely negative obligations not to interfere harmfully with the lives of right-holders, but equally strong positive obligations to prevent, as far as possible, responsible agents from harmfully interfering with the lives of right-holders. If so, it would have been permissible to violate a right to life by killing one person to prevent responsible agents, perhaps including oneself at other times, from violating more rights to life by killing more people. According to proponents of the act—omission doctrine it is, however, not permissible to violate a right to life even if by this means the violation of more rights of this kind can be prevented, at least provided the rights are not too numerous. Adherents of this doctrine do not think that we should aim to minimize violations of rights. They instead think that in such circumstances we have a duty not to kill, even though we would thereby let more right-violating killings be perpetrated.25 The rationale for this belief is that they uphold a causal conception of responsibility in addition to, or as a part of, the doctrine of negative rights. A duty is something that we must feel strongly responsible for failing to discharge but, given this conception of responsibility, we do not feel strongly responsible for failing to prevent agents from responsibly killing, as for not avoiding to kill with our own hands. A causal conception of responsibility is evidently consonant with the doctrine of negative rights because what this doctrine declares wrong is part of what, according to a causal conception of responsibility, we are especially responsible for. There would be a dissonance in our moral beliefs if, in accordance with the doctrine of negative rights, we believed that we had general duties not to kill, but no general duties to positively sustain life, and contrary to a causal conception of responsibility, we believed that we would be as much morally responsible if someoneÕs death occurred as the result of our omission to aid as if it were the result of our active causal power. The inclusion of a causal notion of responsibility in a practice of ascribing rights and duties serves to make this practice workable, since if we had had as stringent duties to prevent others from responsibly violating rights, we would find ourselves violating rights most of the time. It might be suggested that it is this consequence of the practice otherwise being too demanding rather than the causal notion of responsibility which explains why we do not take ourselves to have equally stringent duties to prevent others from violating rights. But it seems that this interpretation makes our impression that we are less responsible for the right-violations of others far too intellectual and reflective. This is an impression that spontaneously occurs to us at a fairly early age, long before we are

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capable of assessing the consequences of various practices of ascribing rights and duties. It may, however, be that the explanation of why a common sense morality which features the doctrine of negative rights also features causal responsibility is that this inclusion makes the doctrine of rights workable. Without it this doctrine would not have survived the test of everyday use. To understand that part of common sense morality which the actomission doctrine has been taken to codify, we must then appeal to two asymmetries. There is the asymmetry as regards responsibility between actively causing and passively letting be the case, expressed by the causal conception of responsibility. There is also the asymmetry, which is the contribution of the doctrine of negative rights, between actively causing kinds of harm which is right-violating and not causing good things which generally is not right-violating. There is, however, a respect in which the causal conception of responsibility needs to be qualified. If we cause somebody to be killed and, thus, his death, by causing another agent to kill him responsibly, we have not killed the victim, and are not as strongly responsible for his death as we are when we do the killing ourselves. Since we are not in these circumstances described as having killed, killing is only a species of the genus of causing to kill or be killed. Causing another agent to kill responsibly by happening to mention a fact which this agent regards as a good reason to kill is a case in point. We are then not described as having killed, as we are when we cause a poison or bullet to kill. Nor are we held to be as strongly responsible for death as is the killer proper. The following case shows, however, that our degree of responsibility does not hinge upon whether our act qualifies as a killing. This may be fortunate, since it seems very difficult to characterize what marks off killings within the class of causing to kill. Let us suppose somebody, an initiator, infects a victim with some deadly disease. A provider then supplies some aid which holds the infection in check. When a remover removes this aid, he actively causes the victim to die. But it does not seem right to say that the remover kills the victim. It is rather the initiator who kills the victim. The remover causes the initiatorÕs act of infecting the victim to lead to his death, or it to become a killing of the victim, or the victim to be killed by the initiatorÕs act of infecting him. It is the infection which kills the victim. This is what we would single out among the relevant causal conditions as the cause of his death. The cause of a death appears to be a type of change which, as a rule, directly causes death, or at least the beginning of a process of dying. This change, and an agent who, like the initiator in question, directly produces it, are what kills. But, even though the remover might not

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strictly speaking be said to kill the victim, he may be as much responsible for the victimÕs death as the initiator, and his action may be as wrong as the initiatorÕs because both violate the victimÕs right to life. However, when we causally initiate the responsible killing of another agent, it is generally false to say not only that we kill, but also that we are as responsible for the ensuing death, and have acted as wrongly, as the killer.26 Then it is not us, but the other responsible agent, who shoulders the responsibility for having infringed the victimÕs right to life. In opposition to this, when the causal influence of an agent upon other agents is powerful enough to reduce or eliminate their responsibility and, thus, to count as coercion or duress, there is a tendency to describe the influencer as a killer. This seems to be what happens when we say that people in power, like Hitler and Stalin, killed people whom their henchmen strictly speaking killed. This is another example of how moral evaluation can distort conceptual classification: we describe the leaders as killers because we think they are at least as responsible, and have acted at least as wrongly, as the killers proper. Corresponding to the distinction between killing and causing to be killed, there is a distinction between letting die and letting be killed. Like causing to be killed, letting be killed is the broader notion since, whenever we let something die, we let it be killed by some cause or other. But, just as we may cause something to kill without killing it, we may let an organism be killed without letting it die. If a person refrains from stopping another person on his way to kill a victim, he lets the victim be killed by the second person, but he does not let him die. It is only when the second person has, for example, stabbed the victim that the first person might let him die, by not stopping the bleeding. Letting a victim die appears to presuppose that the cause of death is already in operation, leaving the victim dying or struggling for his life. But, as in the case of the distinction between killing and causing to kill, we need not dwell on this distinction, since it is in itself of no moral importance. Here, too, it is only when we let somebody be responsibly killed that the distinction assumes moral importance. Let us consider a situation in which we have a positive duty not to let somebody be killed by responsible agents, as distinct from a positive duty not to let somebody die, like the babyÕs mother has. Let us suppose a person is someoneÕs bodyguard, but that out of negligence she lets an assassin responsibly kill her employer. Then, even though, by her passivity, the bodyguard has violated a special right that her employer holds against her, there is another responsible agent upon whom we can pin the violation of the general right to life. We are therefore unlikely to make the mistake of saying that the bodyguard has killed her employer. Things would stand differently if the

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agent whom she lets kill is not responsible, like a rabid human being or dog. We would then be as likely to say, albeit erroneously, that she has killed her employer as we are to say of the mother that she killed her infant. 4. Conclusion The part of common sense morality that the act-omission doctrine has been thought to represent is more precisely to be understood in terms of two doctrines, the doctrine of negative rights and the doctrine that we are more responsible for what we cause, through no other responsible action, than for what we let happen. The reason why it is generally worse to kill non-threatening, non-consenting people than to let them die is that, generally, such killings violate a right, whereas such cases of letting die do not, since the general right to life is negative. It is, however, not always true, according to this theory of rights, that killing, or causing the death of, such people is morally worse than letting them die. But this fact is obscured by a tendency to misdescribe permissible killings and wrongful instances of letting die as instances of letting die and killing, respectively. Moreover, the reason why it is not permissible to violate a right to life in order to prevent the violation of a larger number of rights to life is the conception of responsibility which ties it to causation. Let us note, however, that this is meant only as an elucidation of a part of common sense morality, not as a justification of it, since no attempt has been made to justify rights or the causal sense of responsibility. Although these ideas are firmly supported by our moral intuitions, we should not take it for granted that they are justifiable.27 But we first have to lay bare the content of common sense morality before we can ask whether it is justified. To execute the first task, we must try to tap our moral intuitions. This is not an easy matter, but it is an indispensable component of moral philosophy. Our intuitions are what give substance to our notion of morality and provide us with common points of reference when we discuss morality. They are as indispensable as conceptual or linguistic intuitions are in other branches of philosophy.28

Notes 1. See Philippa Foot, ‘‘Killing and Letting Die,’’ in Phillippa Foot, Moral Dilemmas, (Oxford: Oxford University Press, 2002). 2. See Shelly Kagan, The Limits of Morality (Oxford: Oxford University Press, 1989), pp. 106–111.

THE ACT—OMISSION DOCTRINE AND NEGATIVE RIGHTS

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3. See Jeff McMahan, The Ethics of Killing (New York: Oxford University Press, 2002), p. 461. 4. Ibid. 5. Kagan, op.cit., pp. 121ff. 6. Ibid., pp. 50–51. 7. See H. L. A. Hart, ‘‘Are There Any Natural Rights?’’, in Theories of Rights, Jeremy Waldron, ed. (Oxford: Oxford University Press, 1984). 8. McMahan, op.cit., p. 461. 9. F. M. Kamm, Morality, Mortality, vol. II (New York: Oxford University Press, 1996), pp. 114–115. 10. See McMahan, op.cit., pp. 236–237, & 386. 11. See Ingmar Persson & Julian Savulescu, ‘‘McMahan on the Withdrawal of LifeProlonging Aid,’’ Philosophical Books, 46 (2005), pp. 12–13. 12. See also Persson and Savulescu, op.cit. 13. Jeff McMahan, ‘‘Killing, Letting Die, and Withdrawing Aid,’’ Ethics 103 (1993), p. 261. 14. Kamm, op.cit., pp. 28–29. 15. See ibid., p. 29. See also McMahan, ‘‘Killing, Letting Die, and Withdrawing Aid,’’ pp. 252–253. 16. See McMahan, ‘‘Killing, Letting Die, and Withdrawing Aid,’’ pp. 264–265 and The Ethics of Killing, p. 382. 17. McMahan, ‘‘Killing, Letting Die, and Withdrawing Aid,’’ pp. 265–266. 18. McMahan, The Ethics of Killing, p. 381. 19. Ibid, p. 381. 20. See Christopher Boorse and Roy Sorenson, ‘‘Ducking Harm,’’ in Ethics: Problems and Principles, John Martin Fischer & Mark Ravizza, eds. (Orlando, Fla.: Harcourt Brace Jovanovich, 1992), p. 88. 21. Kamm, op.cit., p. 28. 22. Ibid., p. 29. 23. Judith Thomson, ‘‘Physician-Assisted Suicide: Two Moral Arguments,’’ Ethics 109 (1999), pp. 504–505. 24. Ibid. p. 504. 25. See Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 28–29. 26. See H. L. A. Hart and Tony Honore´, Causation in the Law, 2nd ed. (Oxford: Oxford University Press, 1985), pp. 42–44. 27. Cf. Foot, op.cit. 28. I would like to thank Jeff McMahan, Derek Parfit, Julian Savulescu, and Paul Snowdon for discussions on the topic of this paper.