Other Cases of Harmless Wronging

In the introduction to this section, I said the Safety Condition’s principled extensional accuracy in reply to cases of preempted harm and pure risk is the primary virtue of the Safety Condition that I want to stress in this thesis. Though preemption and pure risk are the focus of this thesis (for reasons explained in chapter 1, section 5, and chapter 8, section 2.2), the Safety Condition helps explain other cases of harmless wronging. This gives us more reason to endorse the Safety Condition.

3.2.1 Suboptimal Benefit

Consider the following case of what we can call suboptimal obligatory benefit.

Surgeon. Surgeon is operating upon Patient. Patient will die without the sur-gery. Because Surgeon has taken a disliking to Patient, she does not want to help Patient survive. But she knows that her superiors will be suspicious if Patient were to die and so performs the operation, though not to the best of her ability. The operation is successful, though not as successful as it would have been had Surgeon performed the operation to the best of her ability.

Intuitively, Patient has a right against Surgeon that she performs the operation to the best of her ability. Yet, because Patient is no worse off than she would have been had Surgeon not acted as she did, Patient is not harmed by Surgeon. Because of this, Patient’s wellbeing is not of sufficient weight to place Surgeon under a duty to perform the operation to the best of her ability.

One might amend the Counterfactual Account of Harm to deal with Surgeon. For example, Feinberg says that A harms B if ‘B’s personal interest [must be] in a worse state than it would be had A acted as he should have instead of as he did’ (Feinberg 1986, 150). Patient is worse off than she would have been had Surgeon performed the operation as she should have (that is, properly). Given Feinberg’s amended condition, Patient is harmed by Sur-geon. On the canonical statement of the Interest Theory, Patient can be attributed a right.

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Feinberg’s condition will not do—it is viciously circular for our purposes. If we do not know whether Patient has a right that Surgeon perform the operation to the best of her ability, we do not know how Surgeon should perform the operation. But, if we do not know how Surgeon should perform the operation, we cannot say that Patient is worse off than she would have been had Surgeon performed the operation as she should have. We have lost the harm that Feinberg’s condition identifies.¹⁴⁴

While Feinberg’s condition will not do, the Safety Condition is satisfied: Patient is worse off in the actual world than she would have been in the close counterfactual world in which Surgeon performs the operation to the best of her ability. Accordingly, Patient can be attributed a right.

3.2.2 Suboptimal Supererogation

Consider the following case of suboptimal supererogation. As the names suggest, subop-timal obligatory benefit and subopsubop-timal supererogation differ in that the benefit is oblig-atory in suboptimal obligoblig-atory benefit. Partly because of this, let me flag that it is more controversial that any wrong (let along any wronging) is done in cases of suboptimal super-erogation.

One/Two Arm. Beth is about to lose both of her arms. Ann can save Beth’s left arm by pressing Button 1, though at a substantial cost to herself. Ann can save both of Beth’s arms by pressing Button 2, though at a trivially greater cost to herself than pressing Button 1.¹⁴⁵

144 Things might be more complicated if there is some undirected duty that Surgeon is under, a duty whose existence could break the circle (e.g., an undirected duty because of the Hippocratic oath). However, we could use a case without this noise. And, in any case, see the discussion of deontic normality from chapter 4, section 2.2. We might add the following complaint to Feinberg’s condition: in a similar way to my ob-jecting to building normality into harm, sure, Surgeon leaves Patient worse off than she should have been given Surgeon’s undirected duty; yet, it is unclear why this matters to whether she has been harmed by Sur-geon.

145 (Pummer 2016; Horton 2017; Pummer 2019; Muñoz forthcoming). For discussions in different contexts, see: (Parfit 1982, 131; 2011b, 225; Kagan 1989, 16; Tadros 2011b, 162). Cf. (McMahan 2018; Sinclair 2018), though note these authors object only to the range of cases in which it is wrong to act in the subop-timal way. Though I stick with the following usage for ease of exposition, it might be misleading to say

“suboptimal supererogatory act” since one might think an act cannot both be supererogatory and wrong.

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Suppose that the cost to Ann is substantial enough to make it permissible for Ann not to act—Ann’s acting is supererogatory. We might nevertheless think that it would be wrong for Ann to save only Beth’s left arm. So, while it would not be wrong for Ann not to act, it is wrong for her to act in the suboptimal supererogatory way.

Since the verdict that it is wrong to act in the suboptimal way is somewhat controversial, let me offer two arguments for this claim.One argument runs as follows (Pummer 2016).

Perhaps the basis of Ann’s moral option not to act lies in the costs, for Ann, of acting (Kagan 1989; Scheffler 1994). If the only way that you can save a drowning child is by subjecting yourself to some sufficiently large harm, intuitively it is not wrong for you not to save the child. But, if the costs are trivial, intuitively it is wrong for you not to save the child. Appealing to costs in a similar way explains the verdict of our case of suboptimal supererogation above. While there is a sufficiently great cost to ground Ann’s moral op-tion not to act, there is no sufficiently great cost to ground Ann’s having the moral opop-tion to save only one, rather than both, of Beth’s arms.

A different argument for why Ann acts wrongly by saving only Beth’s left arm starts from the following idea (Horton 2017): if our actions are not reasonably justifiable to the people whom they might affect, those acts are wrong (Scanlon 1998; Parfit 2003). And, while Ann might be able to reasonably justify her not acting by appealing to the costs, she can-not reasonably appeal to costs to justify her saving only one, and can-not both, of Beth’s arms—

the additional costs are too trivial. So, it is wrong to save only Beth’s left arm.

Now, while it has been argued in the literature that it is wrong to act in the suboptimal way, it seems intuitive that, if Ann were to save Beth’s left arm, Ann does not merely act wrongly but wrongs Beth. For example, if Ann is about to save Beth’s arm, Beth may demand of Ann that she not save only her left arm; if Ann saves only Beth’s left, she may demand of Ann an explanation of what Ann did, perhaps even an apology for saving only one arm when she could so easily have saved both. Appealing to the fact that Ann has

(Thanks to Joe Horton for this worry.) Instead, we could say, “the suboptimal act that otherwise would be supererogatory…” However, crucially, even if acting in the suboptimal way is not, strictly speaking, super-erogatory, acting is still supererogatory in the strict sense, since it is both permissible not to act and permis-sible to act (namely, it is permispermis-sible to act in the optimal way).

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wronged Beth straightforwardly makes sense of these demands. But, if we think Y wrongs X only if Y violates a duty she owes to X, this means Ann’s duty not to save only Beth’s left arm is owed to Beth.

However, this is hard to square on the canonical statement of the Interest Theory.¹⁴⁶ Beth is no worse off than she would have been had Ann not acted as she did—in fact, she is much better off. Since Beth is no worse off than she would have been, Beth’s wellbeing is not of sufficient weight to place Ann under a duty not to save only her left arm. So, Beth cannot have a right against Ann that Ann not save only her left arm.

The Safety Condition makes sense of One/Two Arm. Beth’s wellbeing is sufficiently weighty through comparison of the world in which Ann saves only Beth’s left arm with the world in which Ann saves both of Beth’s arms to place Ann under a duty not to save only her left arm.¹⁴⁷

(Suppose one does not accept the claim that it is wrong for Ann to save only Beth’s left arm. I think one should still think it a virtue of the Safety Condition that it can make sense of the following conditional claim: if it is wrong to act in the suboptimal way, the wrong is directed (due to a directed duty not to act in the suboptimal way). The canonical state-ment of the Interest Theory cannot make this conditional claim.)

In this subsection, we have seen that the Safety Condition has extensional accuracy in two further cases of harmless wronging in addition to preemption and pure risk. This, along with the Safety Condition’s extensional accuracy in reply to the Problem of Preemption, as well as the reasons that rights respond to modality introduced in subsection 3.1, gives

146 Recall, even if we endorse Weak Correlativity, so think Ann could owe this duty to Beth without Beth holding a correlative right against her, the Interest Theory (Canonical) explains what it is for one to owe a duty to another (chapter 1, section 4.2).

147 This verdict holds only if the world in which the actor performs the optimal act is sufficiently close to the world in which she performs the suboptimal act. Since these cases of suboptimal supererogation tend to be cases in which the optimal act is minimally costlier than the suboptimal act, this is a plausible assumption.

But perhaps there are counterexamples in which the optimal act is performed only in worlds that are not sufficiently close for the Safety Condition. This would mean the Safety Condition does not explain subop-timal supererogation but accidentally gets the right verdict in cases like One/Two Arm.

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us good reason to endorse the Safety Condition. (At least, good enough reason to stick with me for another few chapters.)