Freedom and Fulfillment

Philosophical Essays

Joel Feinberg

• Publisher: Princeton University Press
• Year: 2020
• Print ISBN: 9780691019246, 9780691074122
• eBook ISBN: 9780691218144
• Topic: Philosophy
• Subtopic: Ethics & Moral Philosophy

Dealing with a diverse set of problems in practical and theoretical ethics, these fourteen essays, three of them previously unpublished, reconfirm Joel Feinberg's leading position in the field of legal philosophy. With a clarity and humor that will be familiar to readers of his other works, Feinberg writes on topics including "wrongful life" suits in the law of torts, or whether there is any sense in the remark that a person is so badly off that he would be better off not existing at all; the morality of abortion; educational options; free expression; civil disobedience; and the duty of easy rescue in criminal law. He continues with a three-part defense of moral rights in the abstract, a discussion of voluntary euthanasia, and an inquiry into arguments of various kinds for not granting legal rights in enforcement of a person's acknowledged moral rights. This collection concludes with two essays dealing with concepts used in appraising the whole of a person's life: absurdity and self-fulfillment, and their interplay.

Chapter One

WRONGFUL LIFE AND THE COUNTERFACTUAL ELEMENT IN HARMING

I SHALL BE CONCERNED in this chapter with some philosophical puzzles raised by so-called wrongful life suits.¹ These legal actions are obviously of great interest to lawyers and physicians, but philosophers might have a kind of professional interest in them too, since in a remarkably large number of them, judges have complained that the issues are too abstruse for the courts and belong more properly to philosophers and theologians. The issues that elicit this judicial frustration are those that require the application to borderline cases of such philosophically interesting concepts as acting, causing, and, the one that especially interests me, harming.

I first became interested in the concept of harming in my work on the moral limits of the criminal law, where I had to come to terms with John Stuart Mill’s famous “harm principle”—the principle that it is always a good reason in support of a criminal prohibition, indeed, the only legitimate reason, that it will prevent harm to persons other than the actor. I could not very well criticize that principle until I decided what the word “harm” must mean in its formulation. I gave what I took to be the requisite analysis of harm in my book Harm to Others.² Here I wish to improve that analysis, examine its implications for civil as well as criminal liability, and test it on conceptually hard cases, especially cases of prenatal harming, that is, cases in which the wrongful causative conduct occurs before the victim’s birth, and the harmed state that is its upshot consists in being born in an impaired condition.

HARMING AND INTERESTS

For the purposes of the harm principle, we must think of harming as having two components: (1) it must lead to some kind of adverse effect, or create the danger of such an effect, on its victim’s interests; and (2) it must be inflicted wrongfully in violation of the victim’s rights. There is a broader, ordinary sense of “harm” in which that word refers to any state of adversely affected interest, whatever its cause. In that broader sense, people are often harmed by microbes, unforeseeable eruptions of nature, innocent actions of other persons, and actions of other persons to which they have freely consented. These are all examples of nonwrongful setbacks to interest, or “harms that are not wrongs” to those who suffer them. If the word “harm” as it occurs in Mill’s harm principle had that broad sense, it would be quite implausible.

Similarly, just as one can be harmed (in the broad sense) without being wronged, so one can be wronged without being harmed, that is, without having one’s interests adversely affected, although examples of this are harder to come by. Perhaps a wrongly broken promise that redounds by a fluke to the promisee’s advantage is one kind of example. Again, I trust that no argument is needed to show that the harm principle for determining the limits of the criminal law would be implausible if its use of the word “harm” were broad enough to include such “harmless wrongs.” What I concluded then was that for purposes of the harm principle, “harming” must mean adversely affecting another party’s interest in a way that wrongs him or, alternatively, wronging him in a way that adversely affects his interest.

It is a necessary element in all harming, then, that it have an effect on someone’s interests. The term “interests” is best left undefined here, except to say that interests are distinguishable components of a person’s good or well-being. The language of interests is useful because it allows us to acknowledge the complexity of a person’s good, how it contains various components, some of which may be flourishing while others languish at a given time, some of which might be advanced while others are set back by the same cause. Some interests are more basic or vital than others (I call these the “welfare interests”) in the sense that when they are severely set back, no other interests in a person’s interest-network can advance. Thus, the interest in having a certain minimum of food to eat, for example, is more basic or vital than the interest in being widely admired. Despite the diversity of component interests in any person’s interest-network, and their different degrees of importance to one’s overall good, our concepts seem to commit us to the view that interests can be summed up or integrated into one emergent personal interest. Suppose that Jones’ act sets back one of Smith’s interests thirty units but advances another of his interests twenty units. That would be a net loss of ten units. If interests can be related in such ways, then we can speak of offsetting benefits, and also net harms, or harms on balance, as opposed to component harms, or harms to component interests that can be offset by advancing other component interests. Thus, we speak not only of what promotes or sets back this or that particular interest of a person, but also of what promotes or sets back his self-interest as a whole, and we speak as if overall self-interest could in principle be plotted on a graph, like the profit-and-loss chart of a business corporation.

If we employ the “interest graph” as a kind of metaphorical model, it will be easy to sec that there are various distinct ways of “adversely affecting” a person’s self-interest:

All of them involve a kind of directional metaphor [up or down on the interest chart]. To set back an interest is to reverse its course, turn it away, put it back toward the point from which it started. In terms of its associated goals, it is to reverse its progress, to put it in a worse condition than it was formerly in. To defeat an interest is to put it to utter rout, to set it back conclusively and irrevocably by destroying the conditions that are necessary for its advancement or fulfillment, as death for example can set back some interests once and for all. To thwart (or block or frustrate) an interest is to stop its progress without necessarily putting it in reverse; to successfully oppose it, and prevent it, at least for the time being, from making an advancement or improvement. To impede an interest is to slow its advancement without necessarily stopping or reversing it, to hinder or delay. Common to all these notions is the idea of a starting point or “baseline” from which the direction of advance or retreat is charted and measured.³

To complicate the picture further, the determination of harms and benefits is unavoidably affected by the prior locations, high or low, of interest states on the graph, their directions of movement at a given time, and their “momentum.” If the current point of the interest curve is already near the top of the graph, then an event that has the effect of merely keeping it there has a protective or preservative influence and can be thought of as beneficial. If the point of the interest curve, however, is near the bottom of the chart, then the conduct of another that prevents it from improving can itself be harmful. When a person’s situation is bad enough, simply to maintain it there when one could let it improve, may be to harm that person. Similarly, if another’s conduct has the effect of only weakening upward momentum without actually stalling or reversing it, then I suppose its effect is harmful, though not seriously so, and correspondingly, to weaken an interest’s downward momentum is to confer a benefit of a minor kind. What these examples show is that when we take prior condition, direction, and momentum of movement into account, an interest can be benefited without actually being advanced or promoted, and harmed without actually being thwarted or set back.

HARMING IN THE NORMAL POSTNATAL CASE

I shall mean by the phrase “harmful condition” a state in which a person is handicapped or impaired, a condition that has adverse effects on his whole network of interests. All states of harm, I think, are harmful conditions in this sense, but not all of them are “harmed conditions.” I reserve the latter term for states of harm that are the product of a prior act of harming. In most moral-legal contexts, we are interested in states of harm only when they are also products of acts of harming. To be sure, there is a sense in which “state of harm” is the more fundamental concept, since there can be no act of harming unless a state of harm is its product, whereas we can have a state of harm without there being any prior act of harming as its cause. Still, more is required of an act, for most legal purposes, if it is to be considered an act of harming than that it had a state of harm as its product, else we would assimilate human acts of harming to natural events that incidentally produce harmful effects. I shall now present a rough analysis of harming in this legally relevant sense, and also, derivatively, of a special sense of “victim” that goes along with it, namely, that in which B is a victim of A when and only when A has harmed him in this full sense.

In the sense of the verb that is of interest and use to the law, A harms B if and only if:

1.A acts (in a sense wide enough to include omissions and extended sequences of activity).

2.A’s action is defective or faulty with respect to the risks it creates to B, that is, it is done either with the intention of producing the consequences for B that follow, or similarly adverse ones, or with negligence or recklessness in respect to those consequences.

3.A’s acting in that manner is indefensible, that is, neither excusable nor justifiable.

4.A’s action is the cause of an adverse effect on B’s self-interest (a “state of harm”).

5.A’s action is also a violation of B’s right.⁴

There is in addition to these explicit requirements a further condition of great importance. This additional requirement might at first sight be thought to be implied by the terms “adverse effect” and “cause” as they are used in the fourth requirement, but we shall see that it is in truth an entirely independent condition. We can call this requirement “the counterfactual test,” for it is formulated as follows:

6.B’s personal interest is in a worse condition (usually but not always lower on the interest graph) than it would be in had A not acted as he did.

The subjunctive phrase—“had A not acted as he did”—is the counterfactual clause, for it means “if’, contrary to fact, A had not acted as he did.”

The counterfactual test should be distinguished from what might be called the “worsening test,” which is not always required for an act of harming. The worsening test can be put as follows:

6X.B’s personal interest is in a worse condition (lower on the interest graph) than it was in before A acted.

The counterfactual requirement and the worsening requirement do not amount to the same thing, even though they are often satisfied together. There are numerous examples in which B’s condition is harmed by A even though it is not worsened. (We can think of worsening as putting an overall personal interest down at least one unit on the interest graph.) In these examples of harming, the counterfactual test is satisfied but the worsening test is not, for example, in cases of thwarting or impeding interest without actually setting it back, or in depriving someone of a gain without actually imposing a loss. Suppose a professional model (B) is wrongfully detained by A on the even of the Miss America contest, in which, let us suppose, she would otherwise have won a prize worth over a million dollars in subsequent engagements and opportunities. By the worsening criterion, she is not harmed because she is no worse off than before the detention, but she is much worse off than she would have been if she had not been detained. So by the counterfactual test, she is harmed, but judged by the worsening requirement, she is not.

Not only can one harm a person without worsening his condition; our analysis also implies that one can harm a person by behavior that actually improves his condition (on the overall interest graph). Suppose that doctor A, in giving patient B medical treatment, improves his condition but not to the extent that it would have been improved had the doctor performed up to a higher standard, as he should have. That aspect of A’s behavior that consists of his failure to perform up to a reasonably expected standard did adversely affect B’s interest. A’s subpar performance, however, was better than no performance at all, and B’s health is in a better condition than it would be in had A not acted at all. A’s negligence adversely affected B’s interest even though B is better off from what A did than he would be had A not been on the scene. The sixth condition in the analysis of harming supports the judgment that A harmed B, provided we interpret “as he did” to refer in part to the defective aspects of A’s actions. The example then shows that one can be harmed by an act that does not set back one’s interest on balance, but also does not promote that interest as much as it could and should have done.⁵

CAUSAL OVERDETERMINATION AND THE COUNTERFACTUAL CONDITION

The analysis of harming as it stands is vulnerable from another direction. In cases of causal overdetermination there can be harming that fails to satisfy the counterfactual test itself. In these cases, causing an adverse effect may not be to make a person worse off, on balance, than he would otherwise be. Suppose two schoolyard bullies both race after another child with the intention of inflicting a beating on him. One of the bullies gets to his victim a half-minute before the other, pummels him, thereby inflicting various bodily injuries, and leaves him bloodied and beaten on the ground before the other bully can arrive on the scene. But if, contrary to fact, the first bully had not acted as he did, the victim would have been no better off, at least not for long, for the second bully would then have inflicted at least as bad a beating. (Indeed, the victim may actually be better off if the first bully’s beating was less severe than the beating the second bully was prepared to inflict.) According to our analysis of harming as it is thus far developed, the victim was not harmed by the first bully’s beating because the bully’s action fails to satisfy the counterfactual test. It is false that the “victim” (and the word must for the time being appear in quotes) is worse off than he would otherwise be, and yet common sense would attribute an act of harming to the first bully anyway. Something seems to have gone wrong.

Jurisprudential writers have long been familiar with such examples of the overdetermination of harm. Examples are legion in the literature of both torts and criminal law. A businessman in Sydney takes a taxicab to the airport with the intention of boarding a plane to Perth. On the way to the airport the reckless driving of the taxi driver causes a collision with a truck. The businessman, severely injured, is rushed in an ambulance to a hospital, and thus misses his plane. The plane, however, develops engine trouble and crashes shortly after takeoff, killing all the passengers. Questions of liability aside, did the cab driver harm the businessman by causing him to be injured? Common sense seems to say “yes,” but our analysis of harming, with its counterfactual condition, seems to say “no,” since the businessman’s interest would not have been better off on balance had the cab driver driven more carefully. In fact, he would have been worse off, so it seems, and not simply “not better off,” suggesting that the cab driver’s negligence actually benefited him on balance.

There is a short way with our problem. We could hold that neither the counterfactual condition nor the worsening condition is necessary for there to be an act of harming, since we can think of examples of harming that fail to satisfy one or the other of them, but that the two conditions should be combined into one disjunctive condition. Acts of harming, we might say, must satisfy conditions 1–5 and either the counterfactual condition or the worsening condition. That is a tempting solution since, while it is easy to think of harmings that do not satisfy the worsening condition (e.g., deprivations of gain), and easy to think of harmings that do not satisfy the counterfactual condition (e.g., cases of causal overdetermination), it is much more dif...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Acknowledgments
• Chapter One: Wrongful Life and the Counterfactual Element in Harming (1986)
• Chapter Two: Abortion (1979)
• Chapter Three: The Child’s Right to an Open Future (1980)
• Chapter Four: Sentiment and Sentimentality in Practical Ethics (1982)
• Chapter Five: Limits to the Free Expression of Opinion (1975)
• Chapter Six: Civil Disobedience in the Modern World (1979)
• Chapter Seven: The Moral and Legal Responsibility of the Bad Samaritan (1984)
• Chapter Eight: In Defense of Moral Rights: Their Bare Existence (1990)
• Chapter Nine: In Defense of Moral Rights: Their Social Importance (1990)
• Chapter Ten: In Defense of Moral Rights: Their Constitutional Relevance (1990)
• Chapter Eleven: An Unpromising Approach to the “Right to Die” (1991)
• Chapter Twelve: Seven Modes of Reasoning That Can Justify Overlooking the Merits of the Individual Case—When the Facts Are Right (1991)
• Chapter Thirteen: Absurd Self-Fulfillment (1980)
• Chapter Fourteen: The Absurd and the Comic: Why Does Some Incongruity Please? (1989)
• Index