Monday, December 12, 2016

Reconsidering Double Effect

by Michael Dorf

The latest issue of the Harvard Law Review includes an article by Harvard Law Professor Richard Fallon, in which he argues: (1) that Supreme Court constitutional case law with respect to the question of how to evaluate forbidden legislative intent is confused and contradictory; and (2) that in its place the Court should adopt a rule under which forbidden intent by itself is never sufficient to invalidate a statute but allowing that such forbidden intent can, under certain circumstances, be the trigger for the application of heightened scrutiny. The Harvard Law Review Forum--the online companion to the printed volume--includes a short paper by me in which I praise Fallon's descriptive account of the case law and raise a question about his normative proposal.

Before describing my critique, I should say that I have enormous regard for Fallon and his work, which has been instrumental to my own. Fallon and I are co-editors (along with others) of a Constitutional Law casebook. In my recent review of Judge Posner's book Divergent Paths in the  Journal of Legal Education I was especially critical of Posner's critique of Fallon's work. (Posner's response is here. My rebuttal is here.) Fallon's work on constitutional theory played an important role in my own thinking about the subject, as reflected in this 1997 article in the Georgetown Law Journal and in this 1999 California Law Review paper that I wrote in response to Fallon's very helpful article (which I have frequently assigned to seminar students) in the same volume. Accordingly, no one should conclude that the question I raise about Fallon's latest Harvard Law Review article reflects anything but respect.

The question I raise about Fallon's legislative intent argument is this: If Fallon's key argument with respect to legislative intent were generally accepted, would that be potentially disruptive of many settled and sensible doctrines in and beyond constitutional law? Fallon relies on a book by philosopher T.M. Scanlon, in which Scanlon argues against the doctrine of double effect (DDE) and more generally against intent as a basis for evaluating the morality of conduct. Under DDE, an actor may sometimes be justified in knowingly bringing about an undesirable end so long as the actor aims at a permissible one.  Here's how I summarize Scanlon's argument in my paper responding to Fallon. I say that, according to Scanlon, DDE
rests on a confusion between the considerations relevant to whether an act is morally permissible and those relevant to how a moral agent should decide what to do. Take, for example, a doctor trying to decide whether it is morally permissible to administer a lethal dose of sedative to a patient. [DDE] asks whether the doctor intends to kill the patient or merely administer a pain-relieving dose. Scanlon would argue that instead of focusing on her own intentions, the doctor should simply ask whether the benefit (pain relief) justifies the cost (death). 
In my response to Fallon, I bracket the question whether Scanlon is right or wrong as a matter of first-order moral philosophy because I recognize that I am not, by training, a philosopher. Instead, I note that DDE plays a role in many areas of law, including assisted suicide, abortion, anti-discrimination, and the humanitarian law of war with respect to targeting. Intent as an evaluative standard, which is more generally an object of criticism by Scanlon, is ubiquitous in law. I say that if acceptance of Scanlon's argument would destabilize whole bodies of law--as it might--then one ought to proceed with great caution before accepting the argument in any domain, unless one has a sound basis for distinguishing the large numbers of cases in which one is reluctant to accept the argument.

Here I want to put on my amateur philosopher hat and ask whether Scanlon's argument is sound. One way to do so is by asking about a paradigm case. I'll use the law of war rather than assisted suicide, because I think that the latter is controversial--many people think that there should be a right to assisted suicide even apart from double effect while others think that it is morally acceptable for a doctor to prescribe a lethal dose of narcotics to a patient only if the narcotic dose is necessary to treat pain, with death as a side effect, i.e., they rely on double effect. By contrast, few people argue that because it's morally permissible to kill civilians as proportionate "collateral damage" from an otherwise justified attack on a military target, it is therefore permissible to aim at killing civilians if doing so will directly bring about comparable military advantage (say, by demoralizing the enemy, as was standard military practice for millennia).

Sam Harris is something of an exception. In The End of Faith, he argues that torture is not only morally permissible but sometimes morally necessary, reasoning his way there from the acceptability of collateral civilian casualties. However, I don't regard Harris as expressing a view that is widely shared among people who have thought seriously about wartime killings. True, some prominent politicians, such as Ted Cruz and our president-elect, have been cavalier in expressing their willingness to harm civilians, but they were not stating thought-out moral or philosophical views in saying these things.

So, is it morally permissible to deliberately target civilians for killing in wartime if doing so would secure the same military advantage as attacking military targets with the civilian casualties occurring collaterally? No doubt, for some readers, my merely stating this test case suffices to dispatch Scanlon's argument. They will think that targeting civilians cannot be morally permissible and so Scanlon's argument necessarily fails. Indeed, I think I fall into this category. Nonetheless, let's suspend the impulse to reject Scanlon's argument out of hand in order to see where, if anywhere, it goes wrong.

To make things concrete, I'll pose a hypothetical case involving two generals. General A decides to bomb a munitions factory because doing so will undercut the enemy's ability to fight, even though he has reason to think that after taking efforts to reduce civilian casualties, there will still be some. The military lawyers advise him that, given the military advantage to be gained, the expected civilian casualties are permissible. General A orders the bombing, even as he regards the expected civilian casualties as a source of moral regret. General B faces the same choice and receives the same legal advice. However, General B is secretly a sadist and he is secretly delighted by the fact that civilian casualties will result. Indeed, General B joined the military and rose through its ranks precisely so that he would be in the position of ordering actions that result in civilian deaths. His personal motivation is to cause the civilian casualties. He wouldn't order the bombing if it didn't have military value, but not because he cares about the war effort, much less sparing civilian lives. Rather, he abides by the rules prudentially, as Holmes's "bad man" does. General B knows that if he orders civilians to be bombed without a legal military rationale, he risks prosecution for war crimes. At the least, he will be relieved of his command and thus lose future opportunities to cause civilians to suffer and die. Whereas General A orders the bombing despite the likely civilian casualties, General B orders it because of the likely civilian casualties.

If the generals' respective motivations were sufficiently well known (by the discovery of their diaries, let's say), the existing law of war would acquit General A of any wrongdoing and hold General B accountable for a war crime. Scanlon thinks that's a mistake. In each case the action and the result is the same and so if General A's actions were morally permissible so were General B's.

To be sure, Scanlon does not think that intent is completely irrelevant. He thinks that intent is irrelevant to the moral permissibility of an action but relevant to judging the character of an actor. Under Scanlon's approach, there is thus a difference in the blameworthiness of my hypothetical generals. General B's motive to kill civilians makes him blameworthy, whereas General A's motive to secure a military advantage while foreseeably but regrettably killing civilians makes General A blameless.

What shall we make of that conclusion? Some people reject DDE because they think that even actions that are intended to cause a permissible result are impermissible if they foreseeably also cause harm to innocents. As Norman Cantor and George Thomas pointed out in an important 1996 article in the Kennedy Institute of Ethics Journal, the criminal law in general does not require specific intent, i.e., one is guilty of a crime if one intends an act the consequences of which are reasonably foreseeable, where those consequences are the actus reus of the crime. (The abstract of the article is available here, but the full article is behind a paywall. Cornell has a site license, so I've got access to the article. Weirdly, the abstract I just linked lists two additional authors, but the article itself only lists Cantor and Thomas as authors.) Put differently, the law generally rejects DDE as a basis for allowing actions that have particular unintended but reasonably foreseeable consequences.

Here I don't want to defend DDE against the sort of "leveling up" argument put forward by Cantor and Thomas (although I think DDE is defensible against that kind of argument). Instead, I'm exploring whether DDE is vulnerable to the sort of "leveling down" argument made by Scanlon, which says that if General A's decision is morally acceptable then so is General B's.

To my mind, Scanlon's argument is least persuasive in its caveat. Why would an actor be blameworthy for committing an act that is morally justified? One answer might be consequentialist. The sort of person who is motivated in the way that General B is motivated might be acting in a morally justified way in my scenario, but his evil motive makes him likely to commit bad acts in other contexts, and so we should be wary of him. However, in my hypothetical example, General B is a prudential rule-follower, so there isn't this worry.

Moreover, it's not clear to me that one can separate blameworthiness from conduct. In Beating Hearts, Prof. Colb and I say that to make sense of virtue ethics--the ethical system that says that the rightness or wrongness of conduct depends on the character (or virtue) that an actor exhibits when engaging in that conduct--we need to make it parasitic on some external conception of value, such as utilitarianism or deontology. Otherwise, it's hard (I would say impossible) to know whether the act manifests virtue. I think something similar is true of Scanlon's argument. Saying that an actor is blameworthy for engaging in a morally justified act smuggles into the concept of blameworthiness some external conception of what makes the act itself morally permissible or impermissible--unless Scanlon is prepared to rely wholly on the consequentialist assessment of how someone like General B will act in other contexts, but I have stipulated away such concerns here.

Accordingly, I am unpersuaded that Scanlon's exception is justified. It seems to me that if an act really is permissible regardless of the actor's intentions, then those intentions cannot make the actor blameworthy.

Of course, Scanlon could be wrong about his exception but right about the general point. Maybe General B's actions really are no different from General A's. One reason we might reach this conclusion is an aversion to thought-crimes and the like. On this account, the law oughtn't to judge people based simply on their mental states. But this can't be completely right, because one could respect that judgment and still reject Scanlon's argument as a standard for individual moral decision making, quite apart from law.

I think the best argument for Scanlon's view is the one I used simply to describe it: If someone is trying to decide a course of conduct, it's odd for that someone to interrogate his own motivation rather than asking whether the conduct is morally justified.

In the end, I still resist Scanlon's conclusion, but I'm not sure that my resistance is principled rather than ultimately prudential. My caveat about General B--that on prudential grounds he will only engage his sadistic appetites when doing so can be morally justified if the same conduct were undertaken by someone with good motives--is quite unrealistic. In reality, a sadist will engage his sadistic appetite when he can get away with doing so, not just when doing so doesn't violate the law (or the moral standard). Likewise, given everything we know about cognitive biases, a person who wants to engage in an act for a bad reason will likely conclude that the act is objectively justifiable and thus permissible in many circumstances when it really isn't.

In practice, using double effect as an external standard of conduct will occasionally permit someone who acts with bad motives to get away with doing so, because those motives will be difficult to detect. But if I'm right that the sort of person who would engage in harm-causing conduct for the wrong reasons will tend to do so even when the harm-causing conduct is not cost-justified, then eventually such a person will be found out. The prisons are filled with Holmesian bad men.


David Ricardo said...

As one who has never been exposed to this discussion I found this post both provocative and informative. My only quarrel with the discussion is this part here

“By contrast, few people argue that because it's morally permissible to kill civilians as proportionate "collateral damage" from an otherwise justified attack on a military target, it is therefore permissible to aim at killing civilians if doing so will directly bring about comparable military advantage (say, by demoralizing the enemy, as was standard military practice for millennia).”

where I would disagree on two areas.

First of all I think the assertion that ‘few’ people would oppose the killing of civilians to demoralize an enemy is just not correct. Based on no empirical evidence whatsoever I would assert that an overwhelming number of people, regardless of nationality and particularly in the United States would support the killing of civilians in a military action to demoralize the enemy Didn’t the nation just elect a President who espoused that very policy? Isn’t this what this nation did in WWII (both Japan and Germany) an action that surely a majority of Americans approve of today.

Secondly, I think it is incorrect to use the word ‘was’ in the sense that this ‘was’ standard military practice as this implies it is no more. Really? Isn’t this what terrorism as practiced around the world is trying to do? Isn’t this (again) what the U. S. President-elect wants to do? Isn’t this is what is going on in the Middle East, in the Philippines, in Russia, in guerrilla warfare all over the globe? Isn’t this what the war hawks want to do to Iran (and a bunch of other countries)? Isn’t this SOP for all in 2016?

Greg said...

In response to both Prof. Dorf and David Ricardo, I would argue that the entire concept of "military targets" vs. "civilian targets" really represents a set of guidelines on what kinds of targets are likely to have a meaningful effect on the war effort. Generally bombing the naval base will bring about an end to the war, bombing the orphanage won't, so the deaths resulting from bombing the orphanage are unjustified but from bombing the naval base are justified.

However, consider if these underlying assumptions were not true? What if bombing the orphanage would actually end the war far faster than bombing the naval base? Wouldn't that justify bombing the orphanage in order to save the millions of lives lost to continuing the war? Indeed, this kind of calculus seems to be included in the definition of "military target," in areas like munitions factories, which are considered military targets even though the entirety of the casualties from bombing a factory may be civilian.

Interestingly, I think Prof. Fallon's normative proposal may be justified without resorting to DDE, if we allow ourselves to consider the "other contexts" that Prof. Dorf intentionally removes from consideration. If General B is known to be acting for impermissible reasons, that doesn't just make future actions suspect, but it makes the current one suspect. Did General B really make all reasonable efforts to avoid civilian casualties? Did General B really pick a military target intended to further the war effort, or did General B intentionally pick a target that would appear military but would actually have no effect on the war effort, and only result in unnecessary loss of life? It's reasonable to give greater scrutiny to General B's actions given the context of an improper motivation. This is true even if we accept if General B really did take the same actions that General A would take then General B would be equally non-culpable.

It isn't clear to me if heightened judicial scrutiny is a valid proxy, in this context, for the colloquial concept of additional scrutiny. However, using it this way does not seem inappropriate, especially if we are elevating to intermediate scrutiny and not strict scrutiny.

(BTW, I'm not sure I agree with Prof. Fallon's proposal for other reasons, but I don't think this argument dooms it.)

Michael C. Dorf said...

David Ricardo is of course correct that many people, including terrorists, our president-elect, and many of the people who voted for him espouse (and in the case of terrorists, practice) what are very very clearly war crimes. I should have been clearer that I meant few scholars and other serious people who have given the matter careful thought espouse the position I'm describing as a morally acceptable course of conduct.

Shag from Brookline said...

I was 11 years old, living in a Boston Neighborhood, at the time of Pearl Harbor. An expression I soon heard was "All's fair in love and war." The love part I didn't quite understand at that age but the news of WW II laught me a tad about what's "fair" in war. Back then I was not aware of Laws of War in any detail. In my urban neighborhood during the Great Depression and through WW II, we were guided a sort of Marquess of Queensberry informal rules of fairness when involved in street fighting but not always in compliance. I was not exposed to formal Rules of War in law school but had some awareness that such existed, although nor necessarily observed during all - or any - of the wars during my lifetime. Later in life in semi-retirement I audited several political schience courses and learned a fair amout of the then formals "Laws of Ward." These laws had changed over time, including during my lifetime and as recently as post-9/11. I question what's morality got to do with war as it has developed? Whatever the conduct, many will rationalize under some cover of morality. We saw this with post-9/11 "alleged" torture in Iraq and Afghanistan. Terrorists react in ways to compensate for their inequalities as revolutionaries. As a result reactions to such terrorism may outdo the efforts of the terrorists. So it goes on with morally unacceptable courses of conduct, with the losers - but not the winners - sometimes being punished with concepts of due process. Morality and war nowadays may be oxymoronic. And this is sad.

I am not expressing views on DDE in other situations.

Asher Steinberg said...

What if you have two generals, one of which secretly harbors a desire to commit atrocious war crimes if given the opportunity, the other of which doesn't harbor that desire? The first general never has any opportunities to commit any war crimes and conducts his career, as far as war crimes go, quite ethically, in a manner indistinguishable from the second general. You can't say that the first general's conduct is less morally justified than the second general's, but you can certainly say that the first general has a worse, more blameworthy character than the second. If judgments about blameworthiness can make sense in the absence of any morally unjustifiable conduct, I don't see why it doesn't also make sense to say that some particular act is justifiable but that a person's reasons for doing it are blameworthy, i.e., reflect poorly on his character.