THE TROLLEY PROBLEM AND AGGRESSION

¹ Pincione, Guido, “The Trolley Problem as a Problem for Libertarians,” Utilitas 19, no. 4 (2007): 407–429. All references to Pincione are to that article.

² If force is justified and not impermissible, I shall not refer to it as “permissible aggression.”

³ I also think there is a distinction to be drawn between “aggression” and “acting aggressively.” For example, I think one might commit aggression while not acting aggressively because one slowly and lackadaisically applies unjustified force to someone. Aggressively pursuing an end is neither necessary nor sufficient for aggression to occur. (An example of the latter is acting aggressively to stop a flood.)

⁴ Thomson, Judith, “The Trolley Problem,” The Yale Law Journal 94 (1985): 1395–96.

⁵ Pincione, p. 412, footnote 14: “Judith Thomson’s original statement of the Trolley Problem is in “The Trolley Problem,” The Yale Law Journal 94 (1985): 1395–6.”

⁶ Thomson, Judith, “Killing, Letting Die, and the Trolley Problem,” The Monist 59, no. 2 (1976): 206 where she said of the driver of the trolley (whom she named Edward) and the transplant surgeon (whom she named David): “Why is it that Edward may turn that trolley to save his five, but David may not cut up his healthy specimen to save his five? I like to call this the trolley problem, in honor of Mrs. Foot’s example.” In the later article, “The Trolley Problem,” she changed her use of the title, applying it to the contrast between Bystander and Fat Man. I shall return to this point below. I do not think it has been noticed that there are two different references in Thomson’s work for the term Trolley Problem. I first pointed out the double use in my first Tanner Lecture (published in The Trolley Problem Mysteries [Oxford: Oxford University Press, 2015]) and also in “The Trolley Problem,” The International Encyclopedia of Ethics updated edition, H. LaFollette and J. Deigh, eds., 2015.

⁷ Foot, Philippa, “The Problem of Abortion and the Doctrine of Double Effect,” The Oxford Review 5 (1967): 5–15 , reprinted in Steinbock, Bonnie and Norcross, Alastair, eds., Killing and Letting Die, 2nd ed. (New York: Fordham University Press, 1994), 266–79.

⁸ Thomson, Judith, The Realm of Rights (Cambridge, MA: Harvard University Press, 1992).

⁹ Kamm, Frances, Morality, Mortality: Volume II (Oxford: Oxford University Press, 1996). However, sometimes Pincione speaks of the lesser harm being caused by “an act” that has the greater good as its noncausal flip side. (See, for example Pincione, p. 418: “that the greater number was saved . . . is the flip side of the act [e.g., throwing the switch] . . . .” See also pp. 424 and 425.) This is not a correct version of my PPH. When we flip a switch that turns the trolley from the five people toward the one other person, our act causes the trolley to turn and has a causal relation to the greater good. In my view, the turning trolley is both the means that has a noncausal relation to the greater good of the five being saved and what causes harm to the one person. The act of flipping the switch (and so turning the trolley) is not (and for permissibility need not be) a means that has the greater good as its noncausal flip side because it itself does not cause harm to someone. Throughout, where necessary, I will amend Pincione’s wording of the PPH to reflect this correction.

¹⁰ In comments on this essay which Pincione kindly provided, he said: “I wrote on pp. 409–410 in my article, ‘The fact that, as we will see, the negative moral duty not to take an innocent’s life is sometimes outweighed suggests that negative moral duties protecting arguably less valuable things (e.g. the duties that correlate with libertarian rights in external things) are even more frequently outweighed.’ It should accordingly be no surprise that a legal system that mirrors ordinary morality authorizes the government to take small amounts of money from some to save others from serious harm, even if my conditions (a) and (b) are not satisfied, as it happens with the Rich Man Case.” While we agree on this point, I am still concerned with Pincione’s focusing on TP(2) and his attempt (as we shall see below) to show that taxation satisfies conditions (a) and (b).

¹¹ Thomson drew the distinction between unjustifiable transgressions of rights, which she labeled “violations,” and justifiable transgressions of rights, which she labeled “infringements.” See Judith Thomson, The Realm of Rights.

¹² This concern is directed especially to Section IV of Pincione’s article.

¹³ Pincione, 419.

¹⁴ Pincione, 423.

¹⁵ I discuss it in Morality, Mortality: Volume II, among other places.

¹⁶ This case was introduced by Judith Thomson in “The Trolley Problem.” It is a case in which harm to someone is causally required to stop a trolley from returning to hit the five once it has been redirected from them. In his article Pincione considers economic analogies to a case that is like Loop, called Prevented Return (see p. 426). He says the Doctrine of Double Effect (DDE) would rule out the permissibility of turning the trolley in this case because one would be intending harm to the one as a means of keeping the trolley from returning to the five. I have elsewhere argued (in discussing Loop and a case I also called Prevented Return) that these cases need not involve intending harm but only acting because one will cause harm that will have useful further effects. Acting because one will cause useful harm is not the same as acting with the intention to cause the harm. If this is correct, turning the trolley in Loop and Prevented Return need not be ruled out by the DDE. (See my discussion in Intricate Ethics [Oxford: Oxford University Press, 2007].) Pincione also says that the permissibility of redirecting in these cases shows that libertarians cannot appeal to a prohibition on “treating others as mere means.” I agree that these cases show that acting only because harm to someone will be causally useful need not make acting impermissible even when the harm is causally required. However, in these cases the harm that will be a means is brought about in a special way, namely as a consequence of turning the trolley away from its initial hit, so the harm may be seen as the effect of a component of the greater good of the five being free of all threats. That this way of bringing about the harm that is a required causal means may be permissible would not show that other ways of bringing about harm that is a required causal means are permissible. For example, it would not imply that it is permissible to topple the fat man so that he can be a means of stopping the trolley from its initial hit.

¹⁷ Pincione, 419.

¹⁸ Thomson, Judith, “Turning the Trolley,” Philosophy and Public Affairs 36 (2008): 259–74.

¹⁹ She sought to support and extend her conclusion by citing cases not involving killing. She said that if someone did not want to contribute to Oxfam, no other person may take money from him and send it to Oxfam. (I assume she is discussing amounts one has no duty to contribute.) This case, however, involves giving aid to distant people rather than those whom one faces in immediate need as in TP(2). A more appropriate monetary analogy would be taking money from someone without this involving physically interfering with him when the person does not agree to this and when the amount is beyond what he has a moral duty to contribute to save someone drowning near him.

²⁰ She made this point in her oral response to my first Tanner Lecture at the University of California, Berkeley, March 2013. The two lectures, along with her response and those of Shelly Kagan and Thomas Hurka, are in The Trolley Problem Mysteries.

²¹ Judith Thomson, “Turning the Trolley.”

²² I discuss this case at greater length in The Trolley Problem Mysteries.

²³ I first argued for this in Morality, Mortality: Volume II.

²⁴ I discussed this in Morality, Mortality: Volume II.

²⁵ See Kamm, Frances, Intricate Ethics (Oxford: Oxford University Press, 2007), chap. 5, where I develop the Principle of Productive Purity as a follow-up to the PPH.

²⁶ See Foot, “The Problem of Abortion and the Doctrine of Double Effect,” 5–15.

²⁷ Our using means independently in the environment that cause harm would also count as “directly” causing harm. See Frances Kamm, Intricate Ethics and The Trolley Problem Mysteries for more complete discussion of these points.

²⁸ I discuss these further thoughts in my response to commentators in The Trolley Problem Mysteries.

²⁹ See Frances Kamm, Intricate Ethics for my first discussion of this.