Frances Kamm has for some time now been a foremost champion of non-consequentialist ethics.Footnote ¹ One of her most powerful non-consequentialist themes has been the idea of inviolability. Morality's prohibitions, she argues, confer on persons the status of inviolability.Footnote ² This thought helps articulate a rationale for moral prohibitions that will resist the protean threat posed by the consequentialist argument that anyone should surely be willing to violate a constraint if doing so will minimize the overall number of such violations. As Kamm put it in a 1992 article, ‘If morality permitted minimizing violations of persons by violating other persons, then each of those saved as well as those persons used to save others would be less inviolable. It is the permission, not any actual violation of persons, that makes this so.’Footnote ³ Now, as thus baldly asserted, this claim borders on the conclusory. It is almost as if the claim were that morality conferred on persons the following status: that of being protected from consequentialism. One wants to hear in what inviolability consists, in more detail, so that we can understand it independently of the negation of consequentialism. And there is also an opposite problem: if inviolability is a good, then why can't consequentialism take it into account?Footnote ⁴ Hence, one also wants to hear why this would not be the case.

In Intricate Ethics, Kamm makes important progress on both of these fronts. Although she does not devote much space in this long book to the idea of inviolability, she nonetheless gives there a somewhat more detailed rendering of the idea of inviolability that helpfully connects it to the idea of subordination. This link allows us better to grasp the idea as one that, while articulating a certain kind of non-consequentialist commitment, nonetheless does not simply reduce to the idea of non-consequentialism. Furthermore, she argues that morality's dictate that no person shall be subordinated to any other can be understood as supervening upon a set of quite fine-grained causal distinctions that discriminate among different ways in which it is permissible or impermissible to bring about the greater good while incurring a lesser evil*.Footnote ⁵ Because Kamm characterizes consequentialism fairly narrowly, this essential focus on the manner in which certain consequences come about, she takes it, is incompatible with consequentialism.Footnote ⁶

While I thus think that Intricate Ethics makes progress in articulating the idea of inviolability by interpreting it in terms of subordination, I want to suggest that there are two problems with the way that this is worked out in the book's first five chapters. The first problem is one of presentation. The relevant causal distinctions are so fine-grained, and the cases that illustrate them so numerous, that the main ideas are, if I may coin a phrase, ‘Kammouflaged’. That is, they are so overlaid with different patches of detailed differentiation that it is hard to pick out their main contours. In response, I will do my best to highlight them in starker relief. The second problem is one of substance: not all of the causal discriminations upon which Kamm takes the idea of non-subordination to supervene seem morally plausible to me.

I approach this latter issue with considerable diffidence. I have no first-hand experience with runaway trolleys, aerial bombing, or emergency organ transplantation. Many of the crucial nuances brought out by Kamm's cases have probably simply passed me by. In thinking about my role in this symposium's division of intellectual labor, however, I decided to try to treat my lack of facility with her sorts of case as my comparative advantage, one that may correct for Kamm's perhaps excessive love of intricacy. Kamm recommends a method for thinking about inviolability that proceeds in three steps (167): ‘(1) consider the principle that describes appropriate causal relations [including all of the relevant causal distinctions,] (2) find the morally important distinctions that supervene on these relations, and (3) see how they figure in our concept of respect for persons.’ The first of these steps, she writes, ‘is derived from intuitive judgments. If we never come up with morally significant results in this way, we may have to resort to the method of reflective equilibrium which may prune the judgments used as data’ (188 n. 92). For me, however, the method of reflective equilibrium is not a last resort; and, in any case, since I lack many of the intuitive judgments that Kamm reports, mine would have to be pruned and fertilized to come into line with hers. I will suggest, though, that some judicious pruning and adjusting of Kamm's intuitions will make for a more compelling interpretation of inviolability in terms of non-subordination.

I am concentrating, then, on chapter 5: ‘Toward the Essence of Nonconsequentialist Constraints on Harming’. There, Kamm leaves behind the previous chapter's effort to capture the important case distinctions on the basis of a refined state-of-mind theory – her Doctrine of Triple Effect – and instead develops a non-state-of-mind theory that concentrates on distinctions among different causal patterns. Because I here focus on chapter 5's account, I, too, will leave behind state-of-mind theories.Footnote ⁷ In doing so, I do not mean to imply that I agree with Kamm that we ought to give them up. Among the objections that Kamm develops to state-of-mind theories, the one that I find most compelling has also been powerfully put by T. M. Scanlon (developing a thought of J. J. Thomson's). Scanlon finds absurd the suggestion that the permissibility of doing some type of action (for example, administering a pain-relieving drug that will also cause the patient's death) depends on the agent's intentions in doing an action of that type, and he suggests that those who are tempted to think otherwise often mistake the reasons for morally objecting to a type of action with the intentions (the agent's reasons) constitutive of a morally objectionable type of action.Footnote ⁸ Even if we grant these claims of Scanlon's, however, it does not follow that intentions are irrelevant to defining or constituting morally objectionable types of action. The discriminations of Kamm's non-state-of-mind theory bid fair to displace many state-of-mind explanations of what we find objectionable about certain types of action; here, I will confine myself to calling some of these discriminations into question, and leave the broader question of the role of intention in constituting the wrongness of certain types of action for another day.

A crucial piece of Kamm's non-state-of-mind theory in chapter 5 is her general gloss of the idea of subordination, which puts things in terms of causal patterns, as follows:

Morality does permit us to substitute one person for another, as when we divert the trolley in the original Trolley Case or choose to aid the larger group of people; but morality does not permit us to subordinate one person to another, as we would in the Transplant Case, cutting up the one to save the five. I think this makes good sense and is quite compelling. My aim, as I say, is to rescue this thought from the welter of details that enmesh it. I hope that any evil* I incur in so doing will merely be a by-product.

Kamm's main causal discriminations pertaining to permissibility in harming are summarized in what she calls ‘the Doctrine of Productive Purity’ (165). At some risk of mangling it, I will attempt to translate it into my own words, as follows:

Kamm's Doctrine of Productive Purity, then, adapts the traditional distinction between a means and a side-effect by presenting it in non-state-of-mind terms. Among the further distinctions that the Doctrine overlays on this one are the following three:

1. (1) The distinction between producing and sustaining the greater good.

2. (2) The distinction between being caused by a component of the greater good that is working itself out and being caused by something that is merely causally productive of the greater good.

3. (3) The distinction between direct and indirect side-effects.

It would be worth discussing, in the case of each of these distinctions, whether Kamm has articulated a significant difference in causal structure; but I will assume that she has, because I instead want to raise doubts about the moral relevance of each of these three additional distinctions. I will explain my doubts by reference to some of Kamm's cases.

The producing/sustaining distinction is supposed to be at work in the following pair of cases that involve both trolleys and organ transplantation from five to one:

In which trolley-organs case, if either, do you think it is permissible to redirect the trolley? Kamm's position hangs on the fact that directing the trolley away from five people who are about to die anyway does not even begin to be a greater good, whereas directing the trolley away from five healthy people does notionally begin to be a greater good, even if our rescuing them from being crushed by a trolley more or less immediately causes them organ failure. Kamm makes much of the fact that, in a case like the first, the greater good is wholly downstream of the evil* (of the death of the one), whereas in the second, the evil* has an aspect of the greater good upstream of it, namely the trolley being away from the five initially healthy people. In Trolley-Organs II, the death of the one is simply needed to ‘defeat a defeater’ of the greater good, as she puts it elsewhere – here by providing a way to deal with a second problem that we have introduced in redirecting the trolley.

While I think I understand the causal distinction that Kamm is here drawing, I have trouble crediting its moral relevance. Assuming that we redirect the trolley, in each trolley-organs case, one person will die. In the second case, we will in addition cause five healthy people to suffer organ failure. For this reason, my intuitions run in the opposite direction to Kamm's. Even though we will then turn around and reverse the organ failure that we will induce in the second trolley-organs case, this further harming makes redirection seem less permissible than in the first trolley-organs case. Kamm might say, about the five sick people in the first case, that there would have been no prospect of saving them, but for the availability of the one's organs; but, given what redirecting the trolley will, by hypothesis, do to the five in the second case, the same is true of the healthy people there. In these cases, at least, the distinction between producing and sustaining the greater good seems to me not to get any moral traction.

To illustrate the other two distinctions whose moral relevance I want to question, I will discuss several of the aerial bombing cases to which Kamm applies her Doctrine at the end of chapter 5. Each of these is a case of strategic or, as Kamm says, ‘tactical’ bombing, in which bombing a munitions plant will also bring about the deaths of children of a neutral nation who are at school just across the border from the plant. I keep her case numbering and add a couple of variations of my own.

As a case in which an evil* side-effect is directly caused by a component of the greater good that is ‘working itself out’, Kamm offers us

In this case, whether we focus on the destruction of the plant or the lives saved as a result, a component of the greater good lies upstream of the children's deaths. Because the case has this structure, Kamm says, bombing would be permissible in this case. Let me subtract this feature by offering a variant of my own:

In both of these cases, the bombardier's action is completed once the bombs have been released from the airplane. Given the bombers' lack of ability further to intervene in what unfolds, I cannot see what moral difference it makes whether the evil* that is a direct side-effect is, or is not, downstream of some partial realization of the greater good that would justify incurring it.

Finally, what is the distinction between direct and indirect side-effects, and should we take it to matter, morally? Kamm illustrates the distinction by reference to two more of the tactical-bombing cases (174):

In Tactical Case 2, Kamm writes, because the evil* is a direct side-effect of our means, the Doctrine of Productive Purity ‘would rule it out’. In Tactical Case 3, by contrast, because the evil* side-effect is supposed to be an indirect side-effect of our means, the Doctrine might permit it. For my part, I cannot see what moral difference it makes whether our bombs kill the children by sending a shock wave through them, by knocking them into a wall, or by knocking a roof down on top of them. In thinking about Tactical Case 2, with its imprecise bombs, we might be bothered by the possibility that some of our bombs might be landing on the school. I can change the case, though, while I think retaining the crucial feature of directness:

This feature allows us to focus on the directness–indirectness difference: The direct link is explosion → shock wave → death; the indirect link is explosion → shock wave → roof collapse → death.Footnote ⁹ Surely the presence of one more link in the causal chain is a difference lacking moral relevance.

In resisting the moral relevance of these distinctions, I am setting myself at odds with what Kamm has attempted to identify as ‘the essence of non-consequentialist constraints on harming’. I think their essence is simpler than she does, and that what she says about non-subordination well captures it. Before I attempt to sketch a simpler basis for the idea of non-subordination, however, I should come clean about the fact that my positions, here, force me to reject Kamm's valiant efforts to explain the permissibility of redirecting the trolley in the famous Loop Case. In this case, from Judy Thomson's article, ‘The Trolley Problem’,Footnote ¹⁰ if one redirects the trolley away from the five and onto the track with the one, the trolley would loop around to hit the five anyway, were it not for the presence of the one on the track, who will block it but die in the process. (Kamm revises Thomson's Loop Case slightly, stipulating that, unredirected, the trolley would not loop around to kill the one: 122 n. 4.) As Kamm says, ‘Thomson claims that it strikes many nonconsequentialists that it is permissible to redirect the trolley in the Loop Case’ (92). After all, Thomson asks, can we ‘really suppose that the presence or absence of that extra bit of track makes a major moral difference’?Footnote ¹¹

In Intricate Ethics, Kamm spends more space discussing Loop than any other case except the original Trolley Case. Her argument for counting redirection in the Loop as permissible depends upon our taking it that by our redirection we have achieved something such that, if ‘we abstract from further consequences for the five of [the redirection, it] would be the greater good’ (154). In this case, what we have achieved is that we have saved the five from being run over from the front. To be sure, another problem arises, which is the possibility of their being run over from behind, but the obstruction posed by the one's body serves to defeat that ‘defeater’ of our action. In this way, the death of the one serves to sustain the greater good that we have initially partially attained by our redirection. In the Big Guy (or Bridge) variation of the trolley problem, by contrast, when one simply topples someone onto the track so that her body stops the train before it hits the five, one would be using this evil* to produce the greater good.

Now, I have already said that I do not accept the moral relevance of this distinction between producing and sustaining. I also do not find it to be permissible to redirect in the Loop Case. To straighten out this problem, let me straighten out the tracks.Footnote ¹² Specifically, let me propose the following case, essentially equivalent to Loop:

Given Kamm's amendment of Thomson's case, the Bypass Case seems to me to be morally equivalent to Loop. Turning around Thomson's rhetorical question, how can it make a difference whether the threat that dogs the redirection is due to a loop or to a rejoining of tracks? Yet in the Bypass Case, we can no longer say to ourselves, abstracting from the further consequences that include the evil*, that we have saved the five from being hit from the front. We can say that we have saved them from being hit by a trolley that has traveled on the left-hand track; but we might as well paint the trolley green and say that we had saved them from being hit by a red trolley. My own untutored view would be that redirection is impermissible in both Loop and Bypass.

My intuitions thus fail to support a number of Kamm's finer distinctions. Does this mean that I must abandon her account of inviolability as non-subordination? To the contrary: I think a simpler approach lets this account of inviolability shine forth more clearly. As I have mentioned, her account of inviolability as non-subordination centers on a certain type of asymmetry in the way parties are situated, an asymmetry that implies that the description of the subordinated person's position ‘makes essential reference to his usefulness to achieve a good for [the] other person’ (165). The core idea of this account of inviolability is actually quite simple. It hinges on whether or not someone's being harmed is a causal meansFootnote ¹³ to the greater good. It thus stands independently of the discriminations between producing and sustaining, between deriving from a nascent seed of the greater good and deriving from our means, and between direct and indirect side-effects.

Rather than sticking with this core idea, however, Kamm extends her account of subordination. As I would see it, she attempts to stretch the idea to account for some of the finer discriminations she makes. Such a warping occurs, for instance, in her discussion of what she calls the Trolley Tool Case (166). In this case, unless we redirect the trolley to where the one is, a tool that would be useful for saving many lives will be destroyed. Kamm analyzes this redirection as a case of subordination, writing that so to proceed is to endow those potentially saved by the tool with ‘the power to change the value of the things in the world we all share’. She writes that this ‘elevation of a tool over a person, in virtue of its usefulness to others, results in a subordination of the one person to the other people’ (166). But this is not subordination in the intuitively powerful, instrumental sense; I would describe it, rather, as a case of illicit substitution. Perhaps we should indeed resist extending the idea of substituting some lives for others to cover substitutions involving life-saving tools that we might or might not use. We might differently treat mechanisms that would otherwise operate automatically. Either way, this distinction does not help us articulate the nature of inviolability or subordination.

About another case, Kamm expresses some doubt as to how the idea of subordination will apply. Fasten your seatbelts, for this is the most complicated case yet, one that Kamm calls Component Case II. She describes it rather abstractly. Redescribing it as a variant of Bypass, as follows, helps us begin to imagine the causal mechanisms involved:

About this case, if we look at it as a whole, I think we should say that redirection is impermissible because, as in Loop and Bypass, doing so subordinates someone by harmfully putting him in the position of a causal means to the greater good. But perhaps we do not need to look at the case as a whole. About such cases, Kamm comments that the analysis ‘seems to depend on identifying the threat with which we are trying to deal’ (187 n. 85). In defending the permissibility of redirecting the trolley in Component Case II, she factors it into two problems: the deaths of the two on the right-hand branch are not justified by saving the one on the left, but are justified by saving the four who will eventually be saved, thanks to the leg. The paralysis of the one whose leg is hit, by contrast, is justified, on the pattern of the original Trolley Case, by saving the one on the left.

I am worried that this kind of factoring of cases is manipulable; but let me close with a general observation about it. This factoring looks at the case in two different ways, depending on what one is doing: Is one about saving the four below the bypass or the one on the left track – or, perhaps, both? Noticing this, we can see Kamm's general gloss on subordination – the simple one that I have endorsed – as also focusing on what it is that we intentionally are doing. It describes what we do ‘when we do something bad to someone as a causal means to sav[ing] someone else from a threat’ (165). Thus, while Kamm has moved the moral analysis away from the intentions with which we do things, she does not seem to have rested on a purely causal account. Her account in chapter 5 rests, instead, on distinctions pertaining to what we intentionally do.Footnote ¹⁴

I have argued that what emerges from Kamm's account of the essence of non-consequentialist constraints on harming is that we (defeasibly) ought not to subordinate some people to others, which is something that occurs when our harming some is a causal means to the greater good that would alone justify our action. Although Kamm's attaining this insight about inviolability seems to have depended upon her making an intricate set of causal discriminations, I have suggested that this powerful account of inviolability will be all the stronger – less strained and less cluttered – if some of her less plausible discriminations are pruned away.