Deontology, Paradox, and Moral Evil



Deontology, Paradox, and Moral Evil

Critics of deontology have long noted that its proscriptions seem paradoxical

since, in contrast with welfare utilitarianism, they forbid some

acts that maximize welfare overall. Recently some philosophers have

suggested that deontology harbors a special paradox; that thinking certain

actions morally objectionable—for example, rape—it forbids minimizing

such actions by doing one.' For example, Samuel Scheffler states

the following about a deontological constraint.

[I]t is a restriction which it is at least sometimes impermissible to violate in circumstances

where a violation would [serve to minimize total overall violations] of the very

same restriction,... and would have no other morally relevant consequences.^

The passage suggests that there is something particularly irrational

about forbidding a deontological violation that, if done, would have the

effect of reducing the total number of such violations. To take another

example, if intentionally kilhng the innocent is wrong, it seems irrational

'Samuel Scheffler, "Agent-Centred Restrictions, Rationality, and the Virtues," Mind

94 (1985): 409-19, p. 413 (reprinted in Samuel Scheffler (ed.), Consequentialisni and Its

Critics (Oxford: Oxford University Press, 1988), pp. 243-60). See also his The Rejection

of Consequentialism (Oxford: Clarendon Press, 1982); and "Deontology and the Agenf

A Reply to Jonathan Bennett," Ethics 100 (1989): 67-76. Among recent philosophers

who defend deontology, see Philippa Foot, "Morality, Action, and Outcome," in Ted

Honderich (ed.). Morality and Objectivity: A Tribute to J.L Mackie (London: Routledge

& Kegan Paul, 1985), pp. 23-38; and "Utilitarianism and the Virtues," reprinted in Scheffler

(ed.), Consequentialism and Its Critics, pp. 224-42; F.M. Kamm, "Harming Some to

Save Others," chap. 7 in Morality, Mortality, Vol. II: Rights, Duties, and Status (Oxford:

Oxford University Press, 1996); and "Non-Consequentialism, the Person as an End-in-

Itself and the Significance of Status," Philosophy and Public Affairs 21 (1992): 354-89;

Henry S. Richardson, "Beyond Good and Right: Toward a Constructive Ethical Pragmatism,"

Philosophy and Public Affairs 24 (1995): 108-41; Jorge L.A. Garcia, "Anti-

Consequentialist Moral Theory," Philosophical Studies 71 (1993): 1-32; Christopher

McMahon, "The Paradox of Deontology," Philosophy and Public Affairs 20 (1991): 350-

77; William H. Shaw, "On the Paradox of Deontology," Journal of Philosophical Research

16 (1991): 393-406; Richard Brook, "Agency and Morality," Journal of Philosophy

SS (1991): 190-212.

Scheffler, The Rejection of Consequentialism, p. 80.

© Copyright 2007 by Social Theory and Practice, Vol. 33, No. 3 (July 2007)

431

432 Richard Brook

to forbid killing one innocent person to prevent five murders.

I argue, considering work of Scheffler and others, that thinking deontology

paradoxical in this sense commits one to believing that minimizing

moral evil is a goal distinct from minimizing harm. Although perhaps

correct, I explore what I think to be serious difficulties with this view.

Some preliminaries: I note that orthodox welfare utilitarianism aims

to optimize happiness or pleasure without constraining that aim by conditions

of distributive or retributive justice. However, it is explicit for

Scheffler, and implicit for others I consider, that what is subject to minimization

is undeserved harm. In the text, therefore, "harm" will mean

"undeserved harm." Following Christopher McMahon, I call minimizing

violations, those that reduce the number of identical violations, "preventative

violations."^ I will use "deontology," "common-sense morality,"

and "ordinary morality" interchangeably. "Moral evil," as used here,

characterizes any violation of ordinary moral prohibitions, for example,

those against theft, kidnapping, rape, or murder. And although there are

debates about what constitutes harm, for this essay I count as harm a person's

experienced diminution of welfare.

Scheffler, however, expresses deontology's "air of paradox" in two

ways. Responding to an essay by Jonathan Bennett,^ Scheffler writes

about his earlier book. The Rejection of Consequentialism:

I was concemed with the air of paradox surrounding the idea that it is morally impermissible

to minimize morally undesirable activity, the idea, more specifically, that because

certain kinds of acts are so objectionable, one must not perform one such act even if that

means that more acts of the very same kind will be performed or that other equally undesirable

events will transpire.'

"Fqually undesirable events" denotes equivalent harm naturally or accidentally

caused. Scheffler further comments:

He [Bennett] rightly notes that deontological restrictions do not apply only to cases in

which, for example, killing an innocent person oneself is the only way to prevent more

numerous killings committed by other people (call these 'A-type cases'); they also apply

to cases in which killing an innocent person oneself is the only way to prevent a greater

number of deaths due to natural causes ('B-type cases').^

He claims, with respect to A-type cases, that if we're concemed, pace

'McMahon, "The Paradox of Deontology," p. 350.

"•For a conception of harm that doesn't require victims of harm to suffer, see Joel

Feinberg, "Harm to Others," in The Moral Limits of the Criminal Law (New York: Oxford

University Press, 1984), particularly chap. 1.

'Jonathan Bennett,"Two Departures from Consequentialism," Ethics 100 (1989): 54-

66.

'Scheffler, "Reply to Bennett," p. 73.

'Ibid., pp. 73-74.

Deontology, Paradox, and Moral Evil 433

Bennett, with people making bad things happen, then it seems rational to

do one making—a preventative violation—to minimize such makings. In

B-type cases, the issue of "makings" vs. "allowings" (of violations) obviously

doesn't arise. But nothing here suggests that A-type cases are

paradoxical in a different way from B-type cases. However, in a later

essay, commenting on work of Philippa Foot, Scheffler expresses ordinary

moral constraint's paradoxical character in the following way:

"How can the minimization of morally objectionable conduct be itself

morally objectionable?"^ No mention is made of harm "caused by

equally undesirable events." Scheffler's point against Foot is that even if

one grants that conceptions of morally better and worse lack meaning

outside the dictates of ordinary morality, a principle of maximization

comes into play. For Foot, optimizing welfare overall, aside from expressing

the particular virtue of benevolence, is not morally overriding,

say, against actions that express the virtue of justice. Scheffler concedes

this for the sake of argument but contends that

[a]ll we need is the recognition that fewer violations will occur if I act one way rather than

another, together with the idea that such violations are morally objectionable, in the ... sense

that it is morally preferable that no such violations should occur than that any should.'

Scheffler's concession (for the sake of argument) to Foot disallows

him from conceiving constraints as problematic simply because they forbid

some violations that are optimific. But the fact that he still thinks deontology

paradoxical suggests that A-type cases (stealing, for example,

to minimize the number of thefts) have a special status. Preventative violations

now appear paradoxical not simply because prohibiting them diminishes

harm, but because such prohibitions conflict with a general

teleological principle that Scheffler calls "maximizing rationality" (MR).

The core of this conception of rationality is the idea that if one accepts the desirability of

a certain goal being achieved, and if one has a choice between two options, one of which

is certain to accomplish the goal better than the other, then it is, ceteris paribus, rational

to choose the former over the latter.'"

Forbidding preventative violations, Scheffler thinks, violates a plausible

application of MR, since if certain acts are morally objectionable, it

appears reasonable to do one such act to minimize the number of such

acts. Even in The Rejection of Consequentialism, which doesn't mention

MR, Scheffler claims that the rationality of preventative violations concerns

disvalues other than harm.

'Scheffler, "Agent-Centred Restrictions," p. 250; see Philippa Foot, "Utilitarianism

and the Virtues," p. 159.

'Scheffler, "Agent-Centred Restrictions," p. 250

'"ibid., p. 252.

434 Richard Brook

It makes no difference, in particular, which feature of a violation is singled out as having

a high disvalue: no difference, for example, whether the focus is on the victim of the

violation, the agent, or the relationship between them.

Echoing this point, Henry Richardson, discussing the apparent ubiquity

of the problem, writes: "for paradoxical cases can apparently be invented

that work with any characterization of what is bad about an action

and argue that surely it is better to have less of it than more."

Take a particular kidnapping. I consider the harm to the victim, the

badness of the kidnapper, and perhaps the corruption of the relationship

between perpetrator and victim to be all of disvalue. A preventative violation

minimizes all three. Suppose I could save someone from kidnapping

or another from an accidental but equal and unjustified restriction of

liberty. If I am required to minimize both harm and moral evil I should

save the first. Yet this conflicts with an intuition Scheffler himself suggests

we have about the following case.

Consider two twins, equally innocent. While we are strongly inclined to say that it would

be impermissible to kill the first twin in order to prevent the accidental death of the second

twin, even if that were the only way to prevent the second twin's death, we have no

comparably strong inclination to say that it would be impermissible to prevent the accidental

death of the second twin instead of preventing the murder of the first twin by some

other person, if one could only prevent the death or the killing but not both."

In this example, we assume that a background ceteris paribus condition

is met. The up front distinction is between intentional and accidental

threat, either of which we might nullify. In fact, imagine that the sole

moral dilemma for anyone would be that particular rescue decision.

Thus, the only morally objectionable act committed would be the murder.

Although saving the twin threatened by accident results in a world

with one objectionable action rather than none, that rescue seems permissible.

MR applies here apparently only to preventing a death.'"*

One could argue that preventing the murder deprives the prospective

killer of the satisfaction of killing, and therefore is right to do. But we

could design the case in which the villain mistakenly believed he succeeded.

In fact, although I don't pursue it in detail, an argument can be

made to prevent the accidental death. For the murder to be evil it must be

freely chosen. Under a libertarian conception of freedom, there is a real

"Scheffier, The Rejection of Consequentialism, p. 89.

'^Richardson, "Beyond Good and Right," p. 118.

"Scheffler, The Rejection of Consequentialism, p. 109.

"'Thomas Nagel appears to take this view. "Admittedly," he writes, "the wickedness

of the murder is in some sense a bad thing; but when it is a matter of which of them there

is more reason to prevent [murder or accidental death] the murder does not seem to be a

significantly worse event, impersonally considered." The View From Nowhere (New

York: Oxford University Press, 1986), p. 178.

Deontoiogy, Paradox, and Morai Evil 435

as opposed to merely epistemic probability that the prospective murderer

won't kill. Thus a real possibility exists that by preventing the accident,

no lives are lost. Of course, epistemic probability might be all we have.

The murderer has a track record sufficient for the epistemic probability

of the murder being equal to the probability of accidental death. But

there is something odd in combining an assumption that the murder will

occur if the accident is not prevented and as well thinking the murder a

moral evil. The assumption treats the prospective murder much like a

natural threat.'^

Two more recent papers explicitly take the view that ordinary morality

contains a paradox other than prohibiting some optimific actions.

Christopher McMahon believes that both a violation's moral evil and

consequent harm are prima facie relevant to rescue decisions. He asserts

that "[c]ommon-sense morality regards the disvalue of the violation of a

deontological constraint as different in kind from, and greater than, the

disvalue of the accidental production of its effects."'* "Murder," he

writes, "makes the world a worse place from everyone's point of view."'^

Therefore, in the twin example, apparently anyone would have at least

prima facie reason to prevent the murder. Yet McMahon, as a utilitarian,

thinks it irrelevant which death we prevent. Given apparently contradictory

beliefs, he presents himself with the following project.

We need only explain why the fact that a murder makes the world worse from everyone's

point of view than an accidental death—and worse in a way that we could prevent does

not translate into a stronger reason to prevent it than to prevent an accidental death.''

McMahon's "explanation" involves a theory of rectification; the murder,

he thinks, can be "repaired after the fact." Rectification nullifies its special

disvalue by denying the violator benefits gained by her action. I

don't consider this argument, though I think it has limited application. Of

more significance, McMahon gives no reason for thinking that common-

"Bemard Williams's discussion of a blackmail case illustrates the problem of considering

causing moral evil both as a real choice and akin to a natural disaster. A person

(Jim), as a guest in a South American town, is honored by a sadistic army captain by

being allowed to pick one of twenty terrified natives to kill. If he refuses, the captain will

kill all twenty. Although Williams doesn't propose a clear answer about what Jim should

do, he suggests that one's intuitive reluctance to support Jim's killing expresses the significance

we give to agency; that we should be properly concemed about our own actions

in a way that is different from our concern about the free agency of others. Yet Williams

also requires the assumption that the captain will in fact kill twenty if Jim doesn't kill

one. Bernard Williams, "Utilitarianism and Integrity," in J.J.C. Smart and Bernard Williams,

Utilitarianism, For and Against (Cambridge: Cambridge University Press 1973)

pp. 96-117.

""McMahon, "The Paradox of Deontology," p. 353.

'^Ibid., p. 352.

Ibid., p. 353 (emphasis in original).

436 Richard Brook

sense morality, even as a prima facie guide to rescue choices, sums (or

should sum) two kinds of disvalue, the moral evil of a transgression, and

the harm caused.

McMahon offers another, perhaps intuitively stronger, example to

show a violation's moral evil and harm caused are prima facie additive.

He writes: "More than three times as many people died in the epidemic

of Spanish influenza following World War I as died in the Holocaust, yet

intuitively, the Holocaust is a much worse thing to have happened."^'^ He

claims that since the Holocaust was a "worse thing to have happened"

there is prima facie reason for anyone, given a choice, to prevent the

Holocaust.

William Shaw claims that deontology harbors a special paradox only

when preventative violations are forbidden. No paradox occurs simply

because the constraints of common-sense morality forbid some optimific

actions. He writes: " when ... the good is defined so as to include the absence

of actions of a sort forbidden by the deontological theory, then a

paradox begins to emerge."^" In Shaw's view then, deontology becomes

paradoxical only when it forbids minimizing moral evil, and not simply

because it prohibits action that would reduce harm however caused.

Again the point is that if doing A is evil, why isn't it rational to permit A

if, without other moral effect, that minimized the doings of A? Why not,

Shaw asks, echoing Robert Nozick, use someone as a means if that

minimized the number so used?^'

We should remember, however, that the question of minimizing constraint

violations only arises because they cause harm. Future attempts at

violations, assuming that they will fail and have no welfare consequences,

don't demand minimization though for some they are evil as successes.

We might even think missed opportunities at murder—you've set up

your machine gun at Market and Main, but the victim doesn't appear—as

bad as murder itself.^^ So those like Shaw and MacMahon, who evidently

think common-sense morality paradoxical in a special sense, must take

both the harm and evil of violations to be subject to minimization.

Yet this raises a problem. If the disvalues of harm and moral evil are,

in fact, additive, the question arises how to sum them for rescue decisions.

Perhaps a given murder can only be balanced by ten accidental

deaths. We compare the harm of a constraint violation with harm natu-

"ibid., p. 352 (emphasis in original).

^"Shaw, "On the Paradox of Deontology," p. 394 (my emphasis).

^'ibid., p. 396. See Robert Nozick, Anarchy, State, and Utopia (New York: Basic

Books, 1974), p. 32.

^•^Some philosophers believe what I've called "failed attempts at violations" to be, in

fact, constraint violations. David McNaughton and Piers Rawling take this view in "Deontology

and Agency," The Monist 76 (1993): 81-100, p. 92.

Deontology, Paradox, and Moral Evil 437

rally or accidentally caused. If harm and moral evil are in fact commensurable,

one might think about rescue choices that a point exists where

naturally or accidentally caused harm balances the moral evil plus harm

of a violation.

Of course, even if these disvalues are additive, no precise point of

balance may exist. Perhaps there is a threshold above which a violation

(like the Holocaust) is so reprehensible that preventing it trumps a rescue

that minimizes much greater naturally caused suffering. But thoughts

about where that threshold lies seem, at least in many cases, ineluctably

subjective. They need include not only how to rank the immorality of

constraint violations, but of more difficulty, I think, how to rank the

amount of naturally caused harm that even roughly balances the moral

evil of violations. Although perhaps possible, it is difficult to envision

how this calculus would work.

On the other hand, these parameters may be incommensurable and

nonadditive. No common coin permits summing them. This is consistent

with noting that harm, for example, the loss of your manuscript, may be

caused by theft. But it might be caused by a natural event; the wind blew

it in the river. In either case, others might have an equal though defeasible

obligation to prevent the loss. Under this view, we begin, in rescue

decisions, with the aim to minimize harm. That the harm results from

theft simply reflects the circumstances of its origin. In some cases we

might say, "it's odd to forbid doing something morally objectionable if

that reduces the number of identically objectionable actions." But the

description of the latter actions—"that they are morally objectionable" as

opposed to the description "causing harm we have reason to prevent"—

may have no pride of place. Similarly in rescue choices, the fact that one

threat is by human intention and the other by nature or accident may be

irrelevant. Unless the demand for minimization applies to moral evil itself,

it is not clear that the causal origins of preventable harm should affect

rescue choices. On this view, MR would apply in rescue cases but

again only, as in the twin case, at the level of minimizing harm.

The view, then, pace Scheffler and Richardson, that paradox arises

for deontology about "any characterization of an action's disvalue" is

mistaken unless moral evil itself is subject to MR. If it isn't, then forbidding

preventative violations causes no difficulty for ordinary morality

distinct from prohibiting some optimific actions. Deontology forbids intentionally

killing one person to save two either from murder or accidental

death.

A recent argument for thinking that, for deontology, rescue decisions

should favor potential victims of violations rather than those threatened

by nature or accident stems from the belief that if ordinary moral constraints

are universalized in what Philip Pettit calls the "straightforward

438 Richard Brook

way," then preventative violations appear to be rational. He writes:

As a would-be non-consequentialist thinker, my initial claim must have been that the

point is to instantiate P [e.g., not murdering] in my own life, not promote it generally. But

I countenance the general claims of the P-pattem when I universalize in the straightforward

way: I prescribe general conformity to that pattern, not just conformity in my own

case. Thus it now seems that what I must think is that this general conformity is to be

promoted, even if that means not myself instantiating the pattern in my own behaviour or

psychology or relationships.

The "straightforward way" of universalizing is that each agent should

think about every agent including herself that she not violate constraints.

I, for example, hold about each agent including myself that he shouldn't

intentionally kill innocent people. However, it is not clear what follows

from this. Suppose that if I don't intentionally kill an innocent person,

each of five other people intentionally kills one. I refuse; consequently

five are murdered. Unless we beg the question in favor of consequentialism,

what follows is simply that five people have violated the constraint

and I haven't. It is difficult to see how universalizing in the "straighforward

way" commits one to an overriding concern to promote the "general

conformity" to constraint adherence. By overriding here I mean a concern

that permits violating a constraint simply to minimize identical violations.

Obviously, if universalizability entailed moral symmetry between

duties not to harm and duties to prevent harm, or entailed that my responsibility

for my own actions equals my responsibility for the actions

of others, it would be right to murder one to prevent two murders. But

that symmetry, even if true, isn't entailed by the requirement that we

must think about any common-sense moral constraint that no agent

should violate it.

To see this, suppose we phrase Pettit's puzzle as follows: if I think it

bad that (unjustified) harm, regardless of its cause occurs, shouldn't it be

rational to bring about some harm to minimize the total amount of harm?

But at that level of generality the genesis of the harm drops out as significant,

and we are back to the conflict between deontology and welfare

utilitarianism. Pettit's presentation suggests, then, that there is, for him.

"Philip Pettit, "Non-Consequentialism and Universalizability," Philosophical Quarterly

50 (2000); 175-90, p. 183 (my emphasis). In a recent essay, Scheffler gives an independent

moral argument for the greater moral gravity of doing harm than allowing harm

to occur. I note, however, that doings in general are not always, qua doings, subject to

constraints, but rather intentional doings, or something comparable like using someone as

a mere means. Rightly or wrongly, merely foreseen harm by one's action, say, collateral

damage in war, is considered often subject only to constraints of proportionality. Yet

such harming does exemplify what Scheffler calls the "primary manifestation" of one's

agency. Perhaps Scheffler believes only an agent's intentional doings are subject to what

he calls the "norms of responsibility." But we would want to know the reason for that.

See Samuel Scheffler, "Doing and Allowing," Ethics 114 (2004): 215-39.

Deontology, Paradox, and Moral Evil 439

something morally distinctive about cases in which I might minimize a

kind of wrongdoing by committing an instance of that wrong. This echoes

Scheffler's contention that if some actions are so objectionable that

no one should do them (as he says, "as a first order strategy"), it seems

irrational to forbid a minimizing violation (as a "second order strategy").

This does single out A-type cases—in which harm and moral evil are

joined—as of special concern.

Perhaps a case can be made that we are obliged to minimize moral

evil and not just naturally caused harm. But the mere requirement of universalizability

is inadequate to justify that claim. A given agent A prefers

that for all P (including A) P not kill an innocent person. It doesn't follow

that S overridingly prefers a world in which there is as little killing

of the innocent as possible. I might think, for example, that each person

including myself should eat more fruits and vegetables for her own good.

It doesn't follow simply from that thought that I should believe as many

people as possible should eat more fruits and. vegetables for their own

good, certainly not that I should eat less to insure that a greater number

eat more for their own good. For deontology, universalizing a course of

action is a necessary condition for its permissibility, and that condition

can certainly be satisfied without thinking preventative violations are

permissible. A person, in fact, can successfully universalize the following:

Each agent, including herself, should not violate a constraint simply

to minimize constraint violations.

Conclusion

Although this paper isn't a defense of deontology, I have argued the following:

If deontology contains a special paradox, one distinct from prohibiting

some optimific actions, then preventing moral evil would be a

proper goal of action in addition to preventing harm. That may well be

true, and if so, would be an important result. In fact, such a result would

undermine deontology itself, since general commitments to constraints

would entail permission to violate them simply to minimize the number

of identical violations. However, if, to get a total measure of an act's

badness, we must sum the moral evil and harm of constraint violations,

then there should be some account of how to do that. Why again

shouldn't the badness of one murder equal the badness of ten or fifteen

accidental deaths? Why not save one triplet from murder rather than her

two sisters threatened by an avalanche? We wish to know, even roughly,

how much moral evil trumps prospective harm in rescue decisions.^'*

^""Scheffler briefly mentions, without endorsing, a possible consequentialism that

would minimize murders rather than deaths. The Rejection of Consequentialism, p. 108.

440 Richard Brook

True, MacMahon's example of the Holocaust vs. the influenza epidemic,

unlike Scheffler's case of the twins, suggests that we think we have some

obligation to prevent evil although as a consequence a great deal more

naturally caused harm results. But the general problem remains. We need

some credible argument to show that in making rescue choices, the moral

evil of a transgression adds weight to the harm caused. Absent that argument,

deontology appears to harbor no paradox beyond forbidding

some actions that would reduce harm overall. The etiology of that harm

again would not be significant. This doesn't mean deontology is out of

the woods. But the woods, in this case deontology's conflict with welfare

utilitarianism, are old-growth timber.

Richard Brook

Department of Philosophy

Bloomsburg University of Pennsylvania

dchardb@

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