BP is a worry about a theory’s extension. The worry is not about how a theory picks out the things it judges right and wrong or good and bad, but only with the sorts of things that are picked out as right and wrong or good and bad. BP threatens wherever there is a
derivatively normative entity that ought to be treated as though its normativity were
underived.
The most general sort of bypass problem--of which every other bypass problem is a species--is simply the problem of immorality: in many circumstances derivative justifications of morality permit us, require us, or otherwise provide reason to be immoral.
A familiar example of the problem of immorality is what has come to be called the ‘problem of injustice’. Perhaps the most famous versions of the problem of injustice are put forward by Plato’s Lydian Shepherd, Hobbe’s Foole, and Hume’s Sensible Knave. Though these problems are different in some of their details3, they share a common basic structure. This version of the problem of injustice arises on egoistic defenses of morality, where the rationale for acting justly is the advantage it will bring to the individual agent. The thought of both the Humean knave and Hobbes’ Foole is that only by acting justly can one make oneself fit to partake in, and benefit from, the mutually advantageous convention of justice.
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(The Lydian Shepherd, once he has acquired the ring of invisibility, does not act justly of course. But his immoral behavior [and its apparent reasonableness] following the acquisition of his great power is part of an argument for justice based on individual advantage.) If one acts unjustly, the argument goes, inevitably one will earn the reputation for being unjust, and will be excluded from mutually beneficial interactions. So one had better act justly. The perennial problem with argument is that even if acting justly is often or usually productive of an individual's good, it may not always be so productive; what if one can act unjustly without anyone finding out about it, thereby keeping one's reputation for being just intact? Or what if one is powerful enough to act unjustly without suffering the usual consequences? Put in the terms I have been using, the worry is that there will arise many instances in which it will make sense--given the derivative status of justice--to bypass its requirements in favor of promoting one's own good directly.
Plato, Hobbes, and Hume posed the challenge of injustice against an egoistic, subjectivist defense of justice. A parallel problem of injustice can arise, though, also where the reason given for being just is agent-neutral. For instance, the problem of injustice is a notorious stumbling block for classical act-utilitarianism. A well-worn act-utilitarian strategy is to argue that justice and utility will coincide in the long run: acting justly in a given case is more likely to produce the best consequences than acting unjustly. However, various compelling counterexamples to this claim can be generated. For instance, it is certainly unjust to kill one relatively healthy patient and harvest his organs in order to save the lives of five others, or to push a corpulent gentleman in front of a trolley in order to derail it and save one hundred others--however, we can imagine that these actions could be
to justify discrimination based on race, sex, or class, and perhaps could even be used to justify slavery, since, despite obvious negative consequences, systematic sorts of oppression
might produce better results on the whole than any other social arrangement. Here again, the problem is usefully understood as a bypass problem. For act-utilitarianism, too often it makes sense to bypass the merely derivative rules of justice in favor of promoting general utility.
Again, these are all examples of teleological accounts of justification, which to some would appear no accident. The thought would be that teleological theories are uniquely susceptible to BP in virtue of the status that an instrumentalist mode of justification confers upon their objects of justification. Since normative dependents there are so often more effective ways of responding to the normativity of a given instrumentalist source than by taking the prescribed channels, much of morality can apparently be bypassed if doing so will just as effectively or more effectively promote this source. But it is not clear, the thought runs, how this same problem presents itself for deontological theories.
The first thing to note is that, whenever some x is defended as normative because of its relationship to some further justifying ground y, x is derivatively normative. An act that is right just in virtue of being permitted or required by a deontological principle, then, would be a derivatively normative act. Such an act derives its normativity from its controlling
principle. So instrumentalist justifications are not alone in their capacity to bestow a
derivatively normative status on their objects. Still, perhaps only instrumentally “derivative” objects are vulnerable to BP. Can deontological justification block the bypass threat?
Like (many) consequentialist theories, many deontological theories would like to save our commonsense moral intuitions as much as possible. Sometimes this is done in a
‘deontological’ way: morality, or some part of morality, is justified because it is elected or chosen by an appropriately situated moral agent. But it is not clear how this sort of election is supposed to confer a robustly independent sort of normativity upon its objects such that these objects cannot be bypassed. Such value “conferral”, as discussed by, for instance, Christine Korsgaard4, appears vulnerable to the bypass threat. If the source of the value of conferred objects is some moral agent, why not just respond to her normativity (whatever that may require) instead of the objects she has chosen? Whatever value an elected object might have on a deontological view, it is likely to have less value, or more generally less normativity, than its source. Kant explicitly claims, for instance, that rational nature is never to be sacrificed in favor of the objects of rational choice5; and many deontological theorists would make a similar claim.
Of course, another option for deontological theories is to employ instrumentalist justification in some limited role, but this just puts deontologists in the situation of their teleologically-minded counterparts. Kant’s previously mentioned defense of the humane treatment of animals, where we are not to treat animals inhumanely because doing so increases the probability that we will treat (rational) human beings badly, is a classic case in point. The alleged connection between inhumane treatment of animals and humans is purely contingent, and unlikely to hold in every particular case. And even if it did, a more effective way of treating humans humanely might—who knows?—require the brutal treatment of animals. Where treating animals inhumanely does not dispose us toward cruelty toward human beings, why not bypass the general injunction against inhumane animal treatment?
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See Chapters 4 and 5 for a fuller discussion of Korsgaard’s view.
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