Taking and Saving Lives

TAKING AND SAVING LIVES Eric Rakowski* TABLE OF CONTENTS INTRODUCTION ............................................... 1063 I. PRELIMINARIES ......................................... 1068 II. TREATING PEOPLE AS ENDS AND NOT MERELY AS MEANS... 1071 III. KAMM'S PRINCIPLE OF (IM)PERMISSIBLE HARM ............ 1084 IV. THOMSON'S Two APPROACHES TO THE TROLLEY PROBLEM. 1090 A. The Significance of Redirecting Harm .............. 1091 B. Thomson's Appeal to Rational Advantage .......... 1097 C. Doubts and Unanswered Questions ................ 1099 V. JUSTIFICATION BY HYPOTHETICAL CONSENT AND FAIRNESS . 1104 A. Rights Not to Be Killed ............................ 1104 B. Conditions of Waiver: Actual and Hypothetical Consent ........................................... 1107 C. The Circumstances of Hypothetical Choice ......... 1123 D. Fairness and Mandatory Participation in Maximizing Schem es .......................................... 1129 E. A Lifeboat Example ............................... 1141 F. The Problem of Overlapping Groups ............... 1144 G. Ought or May Agents Maximize Lives Saved? ....... 1145 H. Additional Applications ............................ 1146 I. Legal Implications ................................. 1150 J. Saving Without Killing ............................. 1154 CONCLUSION ................................................. 1155 INTRODUCTION Sometimes it is morally imperative, or at any rate morally permissible, to keep alive as many people as possible. If rescue workers must choose between groups of thirty and five equally blameless people trapped in mine shafts, or caught in a burning apartment building, or floundering in the sea, most people think they ought to save the larger group straightaway. Or at least most think that the rescuers earn no censure if they aid the larger group simply because that will save more lives. The same is generally true if a runaway trolley will kill five workers unless a bystander shunts it onto a side track, where it will kill but one: the right course-certainly in most cases an irreproachable * Acting Professor of Law, University of California at Berkeley (Boalt Hall). For helpful written comments, I would like to thank Roger Crisp, Meir Dan-Cohen, Kent Greenawalt, Sanford Kadish, Robert Post, Judith Thomson, and Jeremy Waldron. I am also grateful to participants in Columbia Law School's Legal Theory Workshop for criticisms and suggestions. HeinOnline -- 931063 Colum. L. Rev. 1063 1993 1064 COLUMBIA LAW REVIEW [V9ol. 93:1063 course-is to divert the train. But the number of lives saved is not al- ways all that matters. Suppose that a surgeon can anesthetize a healthy visitor to her office and remove his vital organs to save five dying pa- tients. Nobody, to my knowledge, would condone trading one life for five.I Why may, or must, the number of survivors be maximized in some instances but not others? The answer, I suggest, is fundamentally the same for cases in which one or more people must be killed so that others may live and cases in which only some of those imperiled can be saved but none must be slain to preserve the rest, as when a rescue ship can save the passengers of only one of two capsized boats. The killing of an innocent human being ordinarily cannot be justified, in my view, 2 by reference to some greater good that his death might accomplish. 1. The so-called "trolley problem"--the problem of explaining why it is morally permissible to turn the trolley toward the single worker even though it is ordinarily impermissible to kill one person to save five others, as in the organ transplant case-has generated a voluminous literature. See generally Judith Jarvis Thomson, The Trolley Problem, 94 Yale LJ. 1395, 1409 (1985) (advocating saving the greater number when the means do not violate the victim's right not to be killed);JudithJarvis Thomson, The Realm of Rights 176-202 (1990) (appealing to the parties' antecedent advantage in deciding how to act); Philippa Foot, The Problem of Abortion and the Doctrine of the Double Effect, in Virtues and Vices and Other Essays in Moral Philosophy 19-32 (1978) (emphasizing the moral difference between positive and negative duties); Michael J. Costa, The Trolley Problem Revisited, 24 S.J. Phil. 437 (1986) (defending the Principle of Double Effect); MichaelJ. Costa, Another Trip on the Trolley, 25 SJ. Phil. 461 (1987) (modified defense of the Principle of Double Effect); F.M. Kamm, Harming Some to Save Others, 57 Phil. Stud. 227 (1989) (claiming that the causal proximity of acts to harms and benefits is morally crucial); James A. Montmarquet, On Doing Good: The Right and the Wrong Way, 79 J. Phil. 439, 446-49 (1982) (stressing the moral difference between originating and redirecting threats); Warren S. Quinn, Actions, Intentions, and Consequences: The Doctrine of Doing and Allowing, 98 Phil. Rev. 287 (1989) (stressing the moral distinction between initiating and permitting harm); Warren S. Quinn, Actions, Intentions, and Consequences: The Doctrine of Double Effect, 18 Phil. & Pub. Aff. 334 (1989) (analyzing the moral appeal of the Doctrine of Double Effect); Don Locke, The Choice Between Lives, 57 Philosophy 453 (1982) (defending a version of the Doctrine of Double Effect); Michael Gorr, Thomson and the Trolley Problem, 59 Phil. Stud. 91 (1990) (criticizing Thomson and Montmarquet's distinction between redirecting and creating harmful forces); B.C. Postow, Thomson and the Trolley Problem, 27 SJ. Phil. 529 (1989) (criticizing Thomson's account of the right not to be killed); John M. Fischer, The Trolley and the Sorites, 4 Yale J.L. & Human. 105 (1992) (attempting to "dissolve" the trolley problem by denying the moral difference between switching the trolley and compelling lethal organ transplants). John Harris dissents from this philosophical enterprise. He argues that mandatory organ transplant schemes that effect a net saving of lives can be justified in certain circumstances if donors are selected randomly. See John Harris, Violence and Responsibility 82 (1980); John Harris, The Survival Lottery, reprinted in Killing and Letting Die 149 (Bonnie Steinbock ed., 1980). A doctor's haphazard choice of a donor from among the people in her waiting room, however, would probably not be random enough to win Harris's approval. 2. Nevertheless, the defense of oneself or of those for whom one has special concern, even were it not to secure an objectively greater good, would often justify or excuse killing. The line between justification and excuse is frequently hazy and not one HeinOnline -- 93 Colum. L. Rev. 1064 1993 19931 TAKING AND SAVING LIVES 1065 However, if somebody would reasonably have favored killing under certain circumstances-because, for example, that course would tend to maximize the number of lives saved and thus antecedently reduce her own risk of dying- then killing that person to save others is morally permissible, or even commendable. In addition, people may, I argue, be killed to save a larger number of others if several conditions are met: (1) a majority of those affected by a life-saving decision either endorsed a policy maximizing the number of lives saved or would have welcomed that policy in the circumstances in which they found themselves were they aware of their moral and religious beliefs, their desires and aversion to risk, and their personal abilities and history, but ignorant of whether they would be killed or saved under the policy; (2) those who dissent or who would have dissented for either moral or religious reasons (and not so that they could ride free) under the counterfactual condition just described, and who would be killed if the greater number were saved, could not fairly have been excluded from the benefits of a maximizing scheme; and (3) the dissenters' chances of staying alive would have been boosted by the prior adoption of a maximizing policy.3 This view evinces a deep respect, Kantian in inspiration,4 for people's freely formed preferences consistent with the demands of fairness to all whose lives are threatened. Acting towards those in danger as they would have wanted one to act-not as imaginary rational people with programmed wishes would have chosen, but as these actual per- sons would have preferred-is, I maintain, the appropriate way to rec- ognize their individuality and autonomy as responsible agents. The principles and reasoning that underlie mainstream accounts of the ac- ceptable limits to paternalistic intervention may be extended to justify acting towards a person in the manner he would have chosen had he been free from the pressures of his life-threatening predicament. Indi- vidual autonomy is not, however, the sole value at stake in deciding whether to kill some to save others. Allowing a majority's reasonable preference for a policy that would maximize the number of lives saved to subordinate the contrary preferences of others, if those others can- I wish to explore here. For helpful discussion, see Kent Greenawalt, The Perplexing Borders ofJustification and Excuse, 84 Colum. L. Rev. 1897, 1898 (1984) (arguing that "Anglo-American criminal law should not attempt to distinguish between justification and excuse in a fully systematic way"); George P. Fletcher, The Right and the Reasonable, 98 Harv. L. Rev. 949, 954-57 (1985) (comparing the concepts of justification and excuse in the civil law and common law traditions). 8. See infra Parts V.G-D. In the far rarer case in which all members of a group will be killed unless an agent kills some smaller subset, I argue that killing people chosen randomly from among the entire group's membership is justified so long as at least one member of the group favors that course. 4. See Immanuel Kant, Groundwork of the Metaphysic of Morals 95-96 (HJ. Paton trans., 1964) (1785). HeinOnline -- 93 Colum. L. Rev. 1065 1993 1066 COLUMBIA LAW REVIEW [Vol. 93:1063 not be exempted without abandoning the policy, seems to me a disqui- eting but unavoidable implication of people's moral equality. Similar considerations should guide decisions to save one of two or more groups of people when no one need be killed but some must be left to die.

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