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Harming, Not Aiding, and Positive Rights
Author(s): Frances Myrna Kamm
Reviewed work(s):
Source: Philosophy & Public Affairs, Vol. 15, No. 1 (Winter, 1986), pp. 3-32
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Harming, Not Aiding,
and PositiveRights
FRANCESMYRNA KAMM
There has been much philosophicaldiscussion of the claim that killing
andletting die aremorallyequivalentperse (henceforth,Thesis E). There
has been some discussion of the claim that harmingand not aidingwhen
less than life is at stake are morallyequivalentper se (henceforth,Thesis
GE). In this article
I
shall be concerned primarilywith how broad the
implicationswould be if these two equivalenceswere true. That is, I will
be concerned with what new rights people could be shown to have if
Theses E and GE were true. In particular,I shall be concerned with
whether Thesis GE can have the very radicalimplicationthat it would
be wrong to deny anyone any type of thing that it would be wrong to
take away from someone.
I will arguethat therearetwoversionsof Theses E and GE,one version
having broaderimplicationsthan the other.To do this it will be necessary
toexplorethe notionof moralequivalence,andtodiscuss the methodology
of testing for it. I will further argue that even if the broadversion of
Theses E and GE were true, the need to apply them to cases that are
equivalentin all respects limits the extent to which they can be
used to
derive new duties to aid or claims to have things. I
will
also consider
some ways in which the cases that are typicallyused in the discussions
Versionsof this articlewere presentedto the New YorkUniversityLaw and Philosophy
Seminar
(I982),
the New Jersey RegionalPhilosophicalAssociationmeeting (November
I982),
the AmericanPhilosophicalAssociationmeeting, Pacific Division
(I983),
and the
Society for Ethical and Legal Philosophy
(I984).
I am indebtedto the comments of the
participantsin these meetings, including my officialcommentators,Douglas Husak and
LizabethRechtin. I am also gratefulto DerekParfitand the Editorsof Philosophy
&
Public
Affairs for philosophicaland editorialsuggestions. Workon this articlewas supportedby
an AmericanCouncil of LearnedSocieties Grantand a New
YorkUniversityResearch
Challenge Fund Grant.
Philosophy
& Public
Affairs
4
of Theses E and GE differfrom cases to which one might be tempted
to
applythe Theses, andhow these differencesalso
limitourabilityto derive
new duties to aid and claims to have
things. Althoughthis articleis not
intended to deal primarilywith whether
Theses E and GE are true, some
of the discussion will unavoidablybroachthis
issue.
I
Those who supportThesis E often try to demonstrateit with so-called
comparablecases of killing and letting die. These are cases
in which all
factors besides killing and letting die (e.g.,
motive, intent, amount of
effort required to aid or not to kill) are supposed to
be held constant.
Killing is identified (roughly) as someone's
doing something to alter a
course of events from what
it would otherwise have been so that, inde-
pendent of anyone else's doing something later,
he causes a person's
death. Lettingdie is identified
(roughly)as someone'sfailing to do some-
thing
which would have altereda course of events that is alreadyleading
to someone's
death. The followingwhich I call "Bathtub"(B) cases,
are
commonly
takento be examplesof comparablecases of killingandletting
die:
(B
I)
I
drowna child in a bathtubby pushing him down in the
water.
I do this
in orderto inherit his fortune. No great effortis involved
in
not drowninghim.
(B2)
I see a child who through no fault of mine is drowning
in a
bathtub. I do not make the minute effortnecessary to save him,
since
I want to inherit his fortune.'
When presented with these cases, we
are
supposed
to judge that the
particularletting die is as morallybad (or
as innocuous), as wrong (or
as right), as the particularkilling. On
the basis of this it is argued that
killingandletting die aremorallyequivalentper
se, the assumptionbeing
that only moralequals will promptequai
responseswhen placedin equal
contexts.
i. These cases are based on ones presentedby James Rachelsin his article"Active
and
Passive Euthanasia,"reprintedin Killing and Letting Die, edited by Bonnie
Steinbock
(Englewood
Cliffs,NJ:Prentice-Hall,
I 980).
Noticethatthefailureto get the child's
fortune
is not counted as a great sacrificenecessary to aid or refrainfromkilling,
as the loss of a
fortunefromsome othersource,when it is to be used orforegoneto save the child,
would
be.
5
Harming, Not Aiding,
and Positive Rights
Questions arise aboutThesis E and the argumentin its support.One
is what it means to be
morallyequivalentper se. A second question is
whether cases like (Bi) and
(B2)
reallydoholdallfactorsconstantbesides
killing and letting die. A third question
is whether only equals in equal
contexts could promptequal
responses.2
(i) It has not been noticed, I
believe, that there areatleast twodifferent
answers to the first question. In tentative
versions, one answer is that
killing and letting die are morallyequivalentper se if there
is
no
property
which is both conceptuallyrequiredin cases of the one but not
concep-
tually requiredin cases of the other,andwhich makes the cases in which
it is
present morallydifferentfrom cases with only the conceptualprop-
erties of the
other. A second answer to the first question is that killing
and
letting die are morallyequivalentper se if there is no propertywhich
is both
conceptually requiredin cases of the one but conceptually ex-
cludedfrom cases
of the other, and which makes the cases in which it
is presentmorallydifferent
fromthe cases with onlyconceptualproperties
of the
other.3
The first analysis implies that
killing and letting die are not morally
equivalent per se if a
propertywhich is conceptuallytrue of one of the
behaviorsmakes a moraldifferencein
cases which the other behavior's
conceptual propertiesdo not
make, even while the effect of the rest of
the first behavior'sconceptual properties
is the same as those of the
second behavior'sconceptual
properties.
The
second analysisimplies that
killing and letting die are not
morally equivalent per se if
a
property
which is conceptually true of one behaviorbut conceptually excluded
from cases of the other makes a moral difference in cases which the
conceptualpropertiesof the contrastingbehaviordonot
make,
even while
the rest of the first behavior'sconceptualpropertieshave the same effect
as those of the second behavior'sconceptualproperties.
2.
A detaileddiscussion of these questions, on which the present discussion is based,
can be found in my paper"Killingand LettingDie: Methodologyand Substance,"Pacific
PhilosophicalQuarterly(Winter
I983),
andin my thesis"Problems
in the Moralityof Killing
and
Letting Die,"(MIT,
I980).
3. An
even stricternotion of moralequivalence(which usually lies behind the ones I
have described)requiresthat conceptualpropertiesof one termdo not producea different
moral
outcome from the conceptualpropertiesof the other term becausethere is no dif-
ferencein the
rolethatthese conceptualpropertiesplay.Thisis in contrastto the conceptual
propertiesof one term
having moraleffects that differfrom the effects of the conceptual
propertiesof the othertermbut the outcomesbeing the same because, in effect, there are
differentbut functionallyequivalentroutes to the same moraloutcome.
6
Philosophy& PublicAffairs
The first analysis of moralequivalenceimplies that kiRlingand letting
die could be
nonequivalentper se even if a case of killingdoes not differ
morallyfroma case of
letting die, because, forexample,the case of killing
contains a propertywhich
is conceptuallytrue of letting die but not of
killing. (That is, the
conceptual propertyis "exportable.")The second
analysishoweverrequiresfor
inequivalencethat,forexample, some con-
ceptual propertyof killing which
could not be present in a case of letting
die (a nonexportableproperty),make a moral
differencebetween killing
and letting-die cases.
(ii) These two differentanalyses of "morallyequivalentper se" (about
which I
shall say morebelow) go alongwith two differentanswers to the
second
question, about what makes killing and letting-die cases "com-
parable"
ones forpurposesof testing whether killingis morallyequivalent
to letting die
per se. They also go alongwith differentviews of how broad
the
implications
of
Thesis E would be.
As already
indicated, given the first analysis of moralequivalence per
se, it might be possible to construct a case of
killing which had morally
significant conceptualpropertiesof
letting
die in
it, and which provided,
therefore, an instance of killing which was morally
equivalent to an
instance of letting die, even though killingand
letting
die
differedmorally
per se. For example, it seems to be
conceptuallytrue
of
my letting die
(though not of my killing) that the person I let die
loses out on life he
would have had via my aid.4We could constructa killingcase which
had
this property,even though the propertyis not conceptuallytrueof killing.
For
example, I kill (directlystab) someone who is alreadyreceiving life-
saving
aid from
me. This case of killing may be morally equivalent to
letting
the
person die, other things being equal (at least when I did not
interferewith
someone else helping him to begin with who would have
continuedto
help him),
and
maybe moreacceptablethan killingsomeone
in a second case otherwise
the same except that the conceptualproperty
of letting
die
is
missing (that is, killing someone who is imposing on me
the same loss I suffer in
aiding,
but who
never needed my aid and does
not need my aid, and who in being killed would lose more than life
he
4. I
assume
that
refrainingfromkillingsomeoneis not alwaysconstruableas aidinghim,
so if I kill
someone he does not necessarilylose only what he would have had thanks to
my "aid"of not
killinghim. Notice that "losingout on (only, no more than) life he would
have had if I had aided"
is not the same as "losingout on life he wouldhave had only via
my aid."
The formeris consistentwith severalpeoplebeing able to but refusing to aid, the
latteris not.
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