Tort's Wrongs, Part 1: Loss of a Chance

Tort embodies the odd distinction of being one of the branches of law least recognisable by name, while actually being one of the top contributors to stereotypes of lawyers and the law. It is the law of civil wrongs, encompassing most cases of people suing each other for wrongdoing (as opposed to breach of obligations under contract). The ideas of 'ambulance chasing' and 'no win no fee' arise from tort law.

The basic idea behind tort law is to restore people who have been wronged against to their previous position (or as far as money will go to that end) at the expense of the one who wronged them. Judges insist that, with very few minor exceptions, tort law does not have a penal function; it is compensatory, while penalty is left to the criminal law. This should immediately strike one as somewhat odd. The fact that the compensation comes from the tortfeasor (the one who commits the tort) rather than anyone else must be punishment as it is a negative consequence inflicted due to the wrongdoing. I will try to show that the attempt to avoid penalising tortfeasors inevitably leads to a tort law which appears and is unjust and contradictory.

I will use three major examples of injustice before coming to my main point and drawing them together. My first will be liability for loss of a chance.

To establish liability in tort the facts upon which it rests must be shown to be true 'on the balance of probabilities,' which means more than 50% likely to be true. This can be contrasted with the standard of proof in the criminal law of 'beyond reasonable doubt,' which might mean something like 95% or 99% likely to be true. To receive compensation for my negligence, you will have to show on the balance of probabilities things like it being foreseeable to me that my actions might hurt someone like you and (at issue here) that my actions did, as a matter of fact, cause your harm.

This becomes very tricky in a number of cases. The first is where medical negligence damaging someone's chances to avoid a harm (loss of a chance) like in Hotson v East Berkshire, but only reducing those chances by less than 50%. Because then the chance that they caused the harm will be less that 50%, there is no liability. None at all. If they are 45% likely to have been the cause they will have to pay nothing, while if they are 55% likely to have been the cause they will have to pay the whole amount for it.

Another situation is cases where multiple factors may have caused the harm like in Fairchild v Glenhaven. Where each causes a bit of the harm this is no problem, but where only one of them did, the probabilities become tricky. A classic scenario will involve multiple employers negligently exposing an employee to asbestos, leading to him contracting mesothelioma. Causally, only one will have been responsibly for the harm, but each individual may be only be 30% or 40% likely to be responsible. Following the orthodox approach, none should have to pay anything. However, in this case the Law Lords responded to the patent injustice by creating an exception to the rule: If you add up all the tortious causes and they come to over 50%, then the tortfeasors together are liable for the whole amount, in proportion to the likelihood of each being responsible. This may look fair, but in Wilsher v Essex there was a new twist to the tale. Here multiple tortfeasors were not liable, and the best explanation appears to be that it is because the harm was not all caused by the same 'agent' i.e. asbestos fibres! This is almost universally recognised as patently absurd.

What becomes clear from these cases is a devotion to all or nothing liability. It may appear extremely odd that no-one has suggested apportioning liability in accordance with the percentage chance of having caused the harm. In the Hotson case, why not make the doctors liable in proportion to the chance of them having caused the harm? If someone is 45% likely to have caused harm, charge them 45% of the loss, and if 55% likely, charge them 55%. In the Fairchild and Wilsher cases, make each tortfeasor responsible for their share of the chance of harm they caused, rather than arbitrarily splitting between cases where full compensation will be awarded and where none will be. This instinctively appears the most just solution. So why is it not adopted?

The best answer appears to be because this would no longer be compensating based on actual causal responsibility for the harm. It will be penalising for wrongdoing (contributing to a risk of harm) and then using the proceeds to compensate the victims of this. This is truly penal in that it is sensitive to the degree of responsibility and sees causing risk as wrong, even if the risk did not in actual fact come about. It is recognising that people should not get away with such actions simply because of statistics in their favour.

A classic thought experiment is put forward to explain the results of the current approach (minus the Fairchild exception). It imagines a nuclear facility which negligently increases the risk of leukemia among nearby children, increasing the number of cases of leukemia so that 40% of cases are due to its negligence, and for any particular ill child there is a 40% chance that their leukemia is due to the negligence. On orthodox, Hotson principles, the facility is not liable for a thing. If on the other hand the percentage was 60%, it would be liable for the entire damages of every child with leukemia in the area. To me, the just thing to do would be to penalise it for causing the risk, forcing it to pay to each child with leukemia the percentage of its losses, 40% or 60%, in proportion to the chance of its responsibility. But tort law as it is just can not cope with this.

If it were to be remedied as I suggest, the system would appear much more just and would, for me, actually be more just. To the non-legal observer, it may seem incredible that this is avoided for the sake of keeping tort law 'non-penal.' However once you accept that the causal link is not sacrosanct, you start to unravel the foundations of the discipline. I will continue to explain why this is in my next post.

Torture: Ethics v Law

In the previous post I explained my broad theory of the moral limits of the law. It can be summarised in this way: The moral limits of the law should not depend on the subject-matter in question, but on the peculiar nature of the law which is to enforce it. I put forward the principles of effectiveness (balancing the goals of the law to come up with an effective system) and certainty (coming up with a reasonably clear set of rules so as to allow conduct to be guided and prevent judges from having too much control over matters best left to the individual conscience) in determining how law should enforce morality. I also explained that freedom of speech meant that offence (including disgust and outrage), although a (mild) moral harm, should be discounted by the law - policing it would infringe too deeply on freedom of speech.

I will now turn my analysis on a very different, and substantially more controversial topic - torture. I will argue that it some rare cases, torture can be morally justifiable from the individual point of view, but that the law must draw one of its clear lines to say that it never accepts it as justifiable. There is a parallel with the popular hypothetical case of stealing to feed one's family. In both cases the fact that the action was justifiable in the individual case suggests that punishment is harsh. Nevertheless the alternative is handing to courts a decision which they should not have the power to make.

The suggestion that torture can rarely be justified comes from the much-vaunted ticking bomb scenario. In this situation a bomb will soon kill hundreds of innocents if a terrorist is not tortured to reveal its location. As a hypothetical it is simplistic and it is often meant to use such a rare instance to justify a whole edifice of torture through a wedge strategy. Nevertheless, the scenario might have something to it.

The problems of the scenario are large and obvious. How are we to know that the person we have is the real terrorist? Will torture actually effectively get us the bomb's location? However, hidden in the centre of all this is the fact that from the interrogator's point of view, it might well seem both possible that torture will work, and certain that the person in question is the perpetrator. Now, I am firmly against abusing basic rights of innocents (ie. torturing or killing them) for the 'greater good'. However the situation is much less clear with the non-innocent. We are willing to allow killing in self-defence or defence of others if necessary. Why not allow torture on the same footing? As long as constrained strictly to those who are actively trying to kill others (or similar) and to where necessary to prevent such evil, it would seem morally difficult to allow one but not the other.

If the leap is difficult to stomach, imagine this. A man has a bomb strapped to him in a crowded place. The timer ticks down with each of his heartbeats. The only way to stop the detonation is to shoot him dead, stopping the countdown. On a simple preservation of others principle, this can be justified. Now imagine that the man has the same set up but the man and bomb are separate, remotely linked. The man is in custody when you discover that his heartbeat will still detonate the bomb. The only way to stop it is to kill him. It would seem that since the only real thing that has changed is proximity, it must still be okay to kill him. Which brings us to the ticking bomb scenario. Once again, the only way to diffuse the bomb is to violate one of the man's basic rights. Unless we are willing to argue that torture is so absolutely awful that it cannot be allowed even where killing can (an argument I am loathe to accept here), we must accept that torture could here be morally justified on the same principle as killing the prisoner in custody.

Hopefully now it will be clear why an interrogator might legitimately feel morally justified in torturing, at least in a rare number of cases where they are certain of the person's guilt. So what should the law's response to this be? Firstly, consider efficiency - that the law must balance its legitimate aims. Whatever the rare good that can be done by torture, many aims point against the use of torture: Upholding the reputability of the law and keeping society generally opposed to the concept of torture; ensuring as little as possible harm is done to innocents (where torture is allowed, more innocents will end up tortured); and avoiding fruitless punishment (often torture will fail to yield anything, merely adding more harm to the equation). There is a very real danger that once torture is introduced for extreme cases it will become increasingly normalised, on a slippery slope towards routine use to make suspects confess rather than to save lives.

Secondly, remember certainty - the value of ending up with clear cut rules which it is safe to give to judges to adjudicate. It is true that clear cut rules could be set down, only authorising torture when people's lives or bodies could be saved by it, and where there is overwhelming certainty of guilt. It could even be required to be no more than necessary and appropriate to the situation, although that would be difficult to define. The first big problem with such a situation is that it allows the interrogators or police to act as judges or juries. It will require them to judge on those issues, and give a legitimacy to their decisions. Even if there are special investigators appointed to make decisions, the pressure from police will impinge on any standard of unbiased decision making. An emergency judgement from a proper court might improve this, but the constrained time will still have corrosive effects. Judges will inevitably be tempted to find for the interrogators for fear that unlike torture, killing is irreversible. The evidence may not justify such a finding, but it becomes more and more likely.

But what about the easy cases? The case where the perpetrator is gloating about what is going to happen? Firstly, if such actions were likely to lead to torture, such people would simply stop gloating and instead post anonymously or give tip-offs to police without any documentation of the fact. It would become more difficult to find anyone guilty under such a standard. Secondly, however, the situation has become so amazingly hypothetical as to become almost irrelevant as a legal standard. Someone would have to willingly admit that they were party to actions likely to cause death or serious injury to authorities they knew would be likely to torture them for it. There would have to be time to take them before a judge where they would have to again admit to such knowledge. Only then could torture take place. It seems unlikely that such an event would ever take place, and if it did the culprit seems more likely to be a psychotic masochist keen to be tortured than someone with any actual information. For this case, should the law be willing to risk all the other aims above, especially the risk of the spread of torture to less worthy areas? It would seem implausible.

What is generally advocated is more akin to torturing those reasonably suspected of being terrorists until either they confess or seem unlikely to have anything to know. The harm caused by the law permitting anything near this level suggests that it is unthinkable, and this is not affected by the fact that in certain mostly hypothetical cases, it might be morally acceptable.

Law and the Harm Principle

One of the biggest issues straddling the areas of ethics, law and politics is how far ethics should be implemented as law. Of course not all law attempts to implement pre-existing moral duties. Often the law itself can help inform people of considerations which will alter their moral duties (as with some health and safety laws) and at other times it has a crucial regulatory function, imposing a uniform standard which is no better than another for the reason that there needs to be some standard (the classic example is a law requiring all to drive on one side of the road). However the bulk of law is meant to enforce pre-existing morality, so it is crucial to know how far this should go - in other words, what are the moral limits of the law.

For liberals, the traditional standard is the harm principle. The Wolfenden Report which eventually led to the legalisation of homosexuality in the UK suggested a private sphere of morality into which the state should not intrude. But modern liberals see this in a different light. Homosexuality should be legal not so much because it is private, but because it is not immoral. The harm principle decides what is in fact immoral, not which immoralities should be criminal. Nevertheless there clearly are some immoralities we believe should remain legal, like adultery. The principle behind this needs further exploration.

However at the same time, the harm principle as applied to ethics does lead to difficult questions. The distinction between acts only harming oneself and acts harming others is tenuous. Although drug use, masturbation, contraception and homosexuality are examples of private acts with no direct impact on those who do not consent, all if discovered can cause offense and distress to others, particularly loved ones who disapprove. Even those with no connection to the individuals in question can feel anger and outraged at the presense of the phenomenon in their society. Liberals would have no problem that such moral outrage should not count as actionable harm - that such mere offence should be discounted from the harm principle. The problem is justifying this.

The best definition of harm appears to be detriment of any kind, and this would seem clearly to include offense, outrage and distress. An immediate reaction may be to draw a line between physical harms and mental harms. However this is a worrying distinction. On the mental side of the line would also be fear due to intimidation as well as any number of mental illnesses. It would be unjust to say that causing such ailments does not violate the harm principle. The distinction is also unjustified. Mental harms can cause as much, if not more, misery than physical and are by no means necessarily easier to 'get over' - such an idea is discredited by modern understanding. So how do we explain why offense should not be treated as harm?

I think that the answers to this problem and the problem of translating morality into legisaltion are intertwined, and must be understood together. The crucial answer to the offense problem is to realise that offense and related ailments are indeed harms to be factored into our moral considerations. For this reason, it can be morally wrong to swear in front of those who it will offend, or insult someone for no reason. Crucially however, harms must always be balanced against the benefits of action. If we reasonably minimise the chances of people getting offended by our private actions and the benefits justify what small risk there is left, it can still be morally permissible to do those acts. While homosexuality may disgust some and offend others, engaging in homosexual activity can still be justified by the following factors among others: The negative effects of repressing orientation in terms of emotional health and fulfilment, the happiness brought to oneself and ones partner(s) by engaging in it and the benefit to society of encouraging more openness and acceptance. Offence in cases like this is taken into account but outweighed by the positives. It is further submitted that our right to self-determination is also a good which should be weighed against restrictions. As long as mere offence is considered a low-level factor to be taken into account (as opposed to more weighty concerns like physical harms and more profound mental harms) there is not a problem.

In the case of criticising the beliefs of others, this calculation must include considerations of the public good of free debate. It may be wrong to simply mock and ridicule another's beliefs just to upset them. However reasonable criticism is vital to our society, and the good of allowing ideas to be questioned can easily outweigh temporary offence at the criticism. Whether criticism is morally justified must very much be considered on a case-by-case basis.

This sounds dangerous when it comes to the application of law, however. If we were to leave it to judges to determine what is and what is not reasonable criticism, free speech would be left to the personal opinions of individuals with their own agenda and their own criteria. It is a question much better left to the individual conscience to determine. This is because the nature of law requires that we filter morality in certain ways before imposing it on the public. This is the crucial insight which should make us read the Wolfenden Report in a different light. It is not that law should be different from morality due to some problem with coercing others to behave morally (the harm principle deals with this at the stage of determining what is moral), nor due to some distinction between private and public morality. Rather, the very nature of law requires that morality be filtered in certain ways before application. A couple of the key principles of that filtering will now be set out.

Effectiveness - Where law attempts to uphold morality, it is useless if it has no effect and counter-productive where it actually encourages the wrong or wrongs it seeks to prevent. Laws making thought crimes fail not just because such laws may be wrongheaded in their subject matter, but also because they are impossible to police and so encourage disrespect for the law as a whole. Moreover a society which criminalises drugs may find that this drives them underground, causing vast harm in other ways. Effectiveness should be considered in terms of the legal order as a whole: Where a law is effective against one wrong but actually increases another, it must be considered whether the tradeoff is worthwhile. Where it isn't the law should be removed, even though the act in question might still be wrong.

Certainty - Certainty is crucial to any system attempting to guide behaviour. People must be able to stay clear of prohibited actions. At the same time liberty must not be restricted more than necessary. The result is a need for clear, somewhat simplistic guidelines. Unfortunately, morality does not provide us with such guidelines. Ethics tirelessly requires us to assess the individual situation and weigh up competing factors, which gives it an unavoidably personal element. Giving such a decision to the courts to decide increases the uncertainty of those who are considering how to act. Different judges may weigh factors differently and come to different moral decisions on the same set of facts. Legal certainty therefore dictates that morality be simplified down to a reasonable number of bare rules. The question of whether killing is wrong or not in a certain situation can be difficult, but the law makes it simpler - killing a person is always wrong, with a few clear exceptions. The reason why we might all agree that stealing food to survive might be morally permissible but should remain illegal is that otherwise the court would have to examine the socio-economic circumstances leading to the theft, whether there was any other way to get food, whether the person from whom it was stolen had more need of it etc. Courts are simply not best placed to make such assessments - they must remain for the individual conscience to determine. What the courts and the legislature do is balance fairness with simplicity to come up with rules to be applied depite the fact that they may lead to unfortunate consequences in individual cases.

So these principles of effectiveness and certainty must be used to determine in what way and to what extent the law should enforce morality. Now, as mentioned above, free speech and debate is crucial for a healthy democratic society to function. The principle of effectiveness therefore indicates that there should be extremely strong reasons wherever they are to be curtailed. Certainly when it comes to useful debate, offence and outrage are not sufficiently strong reasons, especially as they constitute an ordinary and expected part of reasonable discourse. However then the principle of certainty comes in. It cannot be for judges to simply decide for themselves whether a certain type of speech serves a sufficiently useful role to justify offence. Therefore, offence has to be removed from consideration as a harm from the law's point of view. Even when from an individual point of view, it would be wrong to offend someone, a judge must not be allowed to determine this because to do so would allow free speech to be subject to the will of the court. Much better is the judgement of the people as a whole who can accept or reject any ideas contained within the discourse.

People can have horrendous views. Sometimes, hearing them, it is difficult to imagine how they can morally justify to themselves promulgating such views. However what I submit is that we must never think that it is for the courts to put an end to such views. They must be judged by public opinion, a public open to hearing and determining any issue.

Self-Corruption and Legal Obligation

In my previous post I discussed self-corruption and how it should influence our view of morality and the harm principle. Here, to begin my reflections on the relationship between law and morality, I shall explain why self-corruption grounds a prima facie moral obligation to obey the law. The following was submitted to Oxford's Law Society for an essay competition and it is therefore in a slightly different format from my normal posts, and repeats much of the groundwork for the concept of self-corruption as laid out in the previous post.

Self-Corruption and the Moral Obligation to Obey the Law

Introduction

The question of a moral obligation to obey the law, straddling as it does the fence between legal and moral philosophy, must appear one of the more imminent and relevant aspects of jurisprudence to the legal outsider. Most of us will have encountered a situation where we could break a law of some kind without any apparent chance of punishment or harm arising. Is there a moral dimension which arises here, encouraging us to act in accordance with the law despite it seeming to serve no coherent moral aim? I will argue that there is. Specifically, that in a reasonably just society, there will always be a prima facie obligation to obey the law.

Nobody would defend the position that there is an absolute duty to obey the law, at least not since the morally horrific yet legally binding norms of the Nazi German state. Instead, I would argue for a prima facie duty: A duty-creating reason which can be bolstered or displaced by other considerations. In this way there is a prima facie moral duty not to kill which may, in select situations like self-defence and possibly euthanasia, be displaced. The duty to obey the law will serve as scant defence to those who committed Nazi horrors, since there are clear and overwhelming reasons ensuring the overall moral balance is against obedience.

Raz’s argument against the prima facie obligation

Philosophers epitomised by Joseph Raz however argue emphatically that even such a prima facie obligation cannot exist. Raz argues that we would label as immoral anyone who refrained from murder because it was illegal, rather than for other reasons. Therefore any ‘prima facie obligation’ would there be dead (1). I submit that this is a confused way to consider moral obligations. Raz implicitly assumes that moral obligations can be added up in specific situations to give an overall moral weighting, rather like adding up the costs and benefits of a business transaction in purely economical terms. On this view, the obligation to obey the law does indeed not seem to add any weight to strong moral reasons against murder. However, we do not look at moral obligations in the way that he suggests.

Let us consider the moral obligation to uphold a promise made. Once again it would seem clear that this cannot be an absolute obligation (considering promises to do wrong). Nevertheless there are good moral reasons for upholding a promise which would need to be displaced in specific circumstances: Since society depends to an extent upon people being able to rely on the word of others, every broken promise damages the society in which it takes place. As long as that society is worth preserving (a reasonably just society) this will underpin a prima facie duty to uphold promises. Now, imagine that after some terrible slight I am moved to kill an enemy, but promise a good friend of mine that I will not. Still, I go ahead and do the deed. Clearly from an objective point of view the promise can be excluded from consideration of my moral wrong. It has been swallowed up in the heinous act of murder. Nevertheless, I would argue that the obligation to obey my promise still existed, running concurrently with the obligation not to murder and merely eclipsed by it. Certainly, it would seem absurd to argue that because in this case other considerations make the promise practically morally irrelevant, there is not a prima facie obligation to obey promises. Exactly the same is true with the obligation to obey the law. It is eclipsed by more pressing moral matters, certainly, but it still exists, Raz’s assertion notwithstanding.

The bad example argument

Despite the failure of this argument, it is still for me to make my case in favour of the duty. I must express gratitude to Raz and Smith here in aptly dismissing a number of unsatisfactory positions (2). I will focus on the sole ground for a duty which I do not believe they succeeded in demolishing: The ‘bad example’ argument which is helpfully summarised by Raz (3).

It states that in a reasonably just society, there will be many laws with which it is better to comply simply because they are laws. Raz accepts this in the cases of the government having better expertise over regulations than (most) individuals and the government co-ordinating collective action which would fail without the government’s intervention. Therefore, the argument goes, there is a prima facie obligation to obey all laws, even those not falling under these categories, since to do otherwise would set an example of contempt for the law, discouraging others from obeying the law even in worthwhile cases. This will be damaging for a society which, as reasonably just, we wish to preserve.

Raz respects the argument but says that it is insufficient to ground a general duty as it requires the possibility and likelihood of setting a bad example in every single case. He gives the counter-examples of horrific murders, which will actually strengthen feeling in favour of obedience, and running red lights when there is no-one about, which provides no example at all. It is submitted that he has missed some crucial points. Regarding the murder situation, one cannot know in advance what effect a crime will have on other people’s opinions of crime. It may encourage or discourage them from it. Nevertheless, the balance is always in favour of encouraging, because instances cumulatively bring an act closer to general acceptance. Also, the shaking up of people’s perceptions of the act always carries a risk of desensitising them to it. Far more difficult to answer is the traffic lights situation. The central argument of this essay is an attempt to answer it.

Self-corruption

Imagine that I am a forgetful person who must remind myself to do things by a system of notes. One night I promise my friend to buy him something the next day and write a note to that effect. However just before bed the friend annoys me. In anger I throw away the note, aware that this will ensure that I forget my promise. Imagine further that I well know that I tend to forgive (or forget!) wrongs in my sleep so that had I seen the note the next day, I would almost certainly have obeyed its contents. My acts the next day in failing to uphold the promise are not wrong. Who can blame me for failing to remember something when it is outside of my control? Indeed, I would be blameless if some rogue, and not I, had dispensed with my note. The wrong was done last night. In effect I manipulated events so that I did harm (breaking the promise) the next day. Although I did not breach the harm principle in the immediate timeframe, I did so in an inchoate way: I pushed myself to cause harm in the future.

Why the slightly far-fetched example? I am trying to show that setting myself up to cause harm in the future is in itself a wrong. This seems relatively clear in this memory case. Now consider a new scenario. Imagine that I am fed up with people being mean to me. In order to gain some respect, I train myself to respond automatically to taunts and teasing with disproportionate physical violence. As a result I later cause terrible injuries to people who fall foul of my training. I would imagine it relatively uncontroversial to hold that, as in the memory example, I was doing something wrong in training myself thus. Even before I actually harmed anyone, I was influencing myself so as to cause harm at a later date, and this must be wrong.

In essence, I am arguing that whatever formulation of the harm principle people go by, this kind of inchoate harm must be included. Just as I do wrong in persuading my friend to harm another, I do wrong if I ‘persuade’ myself to do so. I will call this ‘self-corruption’. Both of the examples so far involved deliberate choices to cause harm in the future, but the principle seems to logically extend to where causing harm in the future is a logically foreseeable consequence or risk of my actions now. Of course, such actions may still be justifiable by other means: A soldier at war may develop a violent character but this might be justified by the circumstances of war. This makes avoiding self-corruption which makes harm more likely a prima facie duty which would need to be displaced in individual cases.

Self-corruption and the bad example argument

Now recall the traffic light example that I considered earlier. In running red lights when no other vehicles or pedestrians are around we might well not risk any real harm nor set any bad example to others. However surely we are setting a bad example to ourselves. Every time we break the law we lessen our respect for its normative force, and make it more likely that we will break the law again. There is a close parallel with promises here. It may well be possible to break a promise and get away with it without anyone ever knowing or getting harmed. However, in doing so we reduce our respect for promises as a whole, making it more likely that we will breach promises in the future. In both cases it seems quite reasonable to assume that our diminished respect for the concept (law or promise) makes it more likely for us to breach it again, even where it is uncontroversially wrong to do so.

There are two levels to this. The first is that once we break a law or promise without anyone else knowing or being affected, we are more likely to do so again in ways which do harm people due to the promise or law having existed (as well as Raz’s situations when law itself creates moral duties, people also rely on both law and promises in ways which can make it wrong to violate them). This is a direct step from harmless breach to harmful breach. On the indirect level however, once we break a law or promise without anyone else knowing or being affected, we are more likely to do so again in ways which set bad examples to people around us. They are then more likely to break laws and promises in ways which harm people due to the promise or law having existed. On both direct and indirect levels, disobedience of even trivial laws risks leading to harm.

It is submitted that this must therefore be prima facie wrong, as it is an example of self-corruption. Remember that self-corruption is influencing oneself so as to cause or risk causing harm in the future. Breaching promises or trivial laws risks us causing harm both ourselves and through the medium of other people through bad example. Therefore there is a prima facie obligation not to breach laws and promises. Of course as earlier conceded, this can be displaced where there is a good reason for the breach. Nevertheless the obligation always exists.

Conclusion

My conclusion that there exists a prima facie obligation to obey the law in reasonably just societies rests on just two new foundations. One is empirical: Breaching the law without causing harm or setting a bad example for others makes it more likely that we will breach the law where it has created a moral obligation and / or where it sets a bad example for others. The other is moral: It is prima facie wrong to influence ourselves so as to make us more likely to cause harm in the future. If these two stand, as I believe they do, then an obligation exists after all. In fact given the level of truth Raz has conceded to the classical formation of the bad example argument, it would seem difficult for him to deny my extension of the argument through self-corruption.


Notes:

1. ‘The Obligation to Obey the Law’, Chapter 12 in Raz, J. (1983) The Authority of Law. Oxford University Press.
2. See especially Smith, M.B.E. (1973) “Is There a Prima Facie Obligation to Obey the Law?” Yale Law Journal 82:5. p. 950.
3. ‘The Obligation to Obey the Law’, Chapter 12 in Raz, J. (1983) The Authority of Law. Oxford University Press.

Self-Corruption

In my opinion, the harm principle is often construed far too narrowly to adequately encompass the whole range of moral wrongs. I submit that the biggest common omission is self-corruption, and that this should cause us to somewhat re-evaluate liberal moral theory. Self-corruption, put simply, is acting so as to make oneself more likely to do harm in the future. Accepting that this is wrong can lead to potentially quite radical conclusions.

It is almost unnecessary to point out that there is widespread consensus that encouraging another to do wrong is itself wrong. Various incitement laws express our deep-seated belief that encouraging a crime is, morally speaking, committing the act itself only through an agent. Indeed, even if the event never occurs I am doing wrong in increasing the probability of harm. This need not be constrained to clear encouragement. By lying about a person to another I may encourage the latter to get angry and hurt the former without ever so much as mentioning the idea. From an ethical point of view and as long as there is the necessary guilty mindset, clearly this action is also wrong.

What I want to suggest is that there is no reason to constrain this to interactions with others. Our choices today can foreseeably alter our future actions and cause us to do real harm at a later date. Although our initial actions do not directly cause harm they increase the risk of it and, unless this can be justified (by weighing it against other factors), this must also be wrong.

But what do I mean by choices altering our future actions? An easy example would be a forgetful person choosing to throw away a note written to himself so that he will not remember to fulfil a promise. Failing to remember something does not look like a moral wrong, but acting earlier so as to cause this does. We can alter our future actions in a way which is wrongful right now.

However the central case of self-corruption is acting so as to change our character in some way. If doing so makes us more likely to cause harm in the future, then these early actions are themselves violations of the harm principle (even if harm does not in the end arise) unless they can be justified - they are prima facie wrong. To see what this means, I will first consider the example of promises.

It is sometimes suggested that unless there is a special meta-physical property to promises (in a 'thou shalt not lie' kind of way), there can be nothing wrong with violating them unless doing so also causes harm. While one might say that any breach of trust damages the sanctity of promises as a whole and so potentially society at large, this would only appear to be true where others might find out about the breach. Therefore a promise to a dying relative may often later be broken without appearing to damage anyone's trust in promises.

However self-corruption suggests a different conclusion. Every time we break a promise, we would appear to damage our own view of the inviolability of promises. Each time we break a promise, we make it more likely that we will do so again in the future, even when in these cases to do so would certainly cause harm and disappointment. We to some extent self-corrupt ourselves, altering our character in a negative way.

At this point I should point out that I am not arguing that upholding our promises is an absolute duty. Other considerations can well justify us not doing so, perhaps even making it immoral to do so. If I promise a dying relative to marry someone I do not wish to, it is probably most sensible to break this promise as to uphold it could cause unnecessary misery and harm. It may nevertheless still have been morally permissible to make the promise as a way of putting the dying relative's mind to rest. Moreover the situation may change after a promise so as to make performance gravely immoral. All I argue is that in all cases, self-corruption must be figured into considerations. Where there are no sufficiently weighty countervailing considerations, there is a duty not to self-corrupt. In fact, as long as self-corruption is constrained to cases where there are powerful reasons for it, the self-corruption will be less potent - less likely to cause us to act wrongfully when these reasons do not apply.

None of this, however, looks in the slightest bit radical. If it helps us see that there is always a prima facie obligation to uphold our promises then this does not seem to upset liberal moral theory. However what might do so is its implications for moral 'thought crimes'. Orthodox harm principle theory suggests that mere mental activity cannot generally be wrong. Only where it actually prepares for physical behaviour leading to harm does it violate the principle. I suggest this is misguided.

If thinking in a certain way or subjecting ourselves to certain stimuli changes our character so as to make us more likely to harm others then doing so is wrong. Imagine that I know that I become violent and am liable to hurt people after watching violent films. In this case it would seem that I am under a duty not to do so, at least not when I am likely to be around people afterwards. The situation is no different to drinking alcohol when I know that this makes me violent. In either case, it is wrong for me to risk other people's safety for no good reason.

What this means is that we should consider carefully the question of to what media we should expose ourselves. If violence really does make us more violent or pornography make us more likely to commit sexual offences, then unless there are suffiencient moral benefits to outweigh this, we should refrain from exposing ourselves to them. Now I am of the opinion that in most cases the benefits will outweigh this risk: Exposure to violenct media often allows us to vicariously release violent tendencies and exposure to pornography often allows us to similarly release potentially aggressive sexuality. However in certain cases, individuals may find that they respond negatively and take steps to avoid exposure.

As for the legal consequences of this argument, this is not a call for censorship. The result of the highly personalised account of the morality of violent and pornographic media set out above is that it must be judged on the individual level. However on the the moral level, my intention is to point out that we must be aware of the possibility that behaviour which looks purely private may well in fact mask violations of the harm principle through self-corruption. The idea of private activity should be carefully thought through before it is used as a general shield from criticism.

Racism and the Pro-Life Connection

I recently read a pro-lifer suggest that the pro-life position would one day come to be seen as the anti-racism position now is. It got me thinking about the connection between the two, and I came to a very different conclusion. Obviously I understand his point - both extend protection to more human beings than previously. Nevertheless actually I think if we look a bit deeper, we will find that a pro-choice position (certainly one which does not demand equal rights from conception) is the true heir of the anti-racism movement. To be clear, in no way do I suggest or believe that pro-lifers tend to be racist. However, I think that the very success of anti-racism suggests that the pro-choice position is to be preferred.

The reason for this is that the most widely-held intellectual justification of racism was that people of certain skin colours or ethnic origins are inherently inferior in some way to people of the favoured skin colour (usually white). Slavery was justified by the idea that black people were not worthy of protection as they were not like the slave owners. Now, as we know, skin colour is a genetic varient. The suggestion was that we can determine who is worthy of protection by genetic facts. The repudiation of the racist viewpoint is therefore a rejection of the idea that looking to genetics is enough. They were found to be wanting as an adequate explanation for why people are worth protecting.

On a superficial level the shift was from protection for whites to protection for humans. However, humanity is equally a genetic fact, albeit more widespread. If the shift was merely from one genetic fact to another then there appears to be no real justification for it. Why should we prefer one genetic fact to another? Was there any principle to the shift? Of course there was. People recognised that protection was needed because of the ability to suffer and feel pain or to grow and flourish. This is common to all colours and unifies our conception of those worthy of moral consideration. In short, the success of anti-racism was the success of a consideration of the characteristics of beings as beings, rather than merely their genetic make-up.

The pro-life movement (narowly defined as those who desire protection from conception) denies this shift. It argues that what is important is the genetic fact of humanity and nothing else. Thus all those genetically human must be protected whether or not they have any capacity for consciousness, pain or pleasure. They eschew any consideration of beings as beings. While they would use the wider genetic fact of humanity as their criterion, they fail to move past its arbitrary nature and merely insist that it is intuitively true, just as white supremacy was once intuitively true for so many people.

The shift from a genetic criterion to a beings as beings criterion was one from arbitrariness to principle. It expanded the scope of protection in some ways, to those of different colours. However it also excluded those who only fulfilled the biological condition of humanity without any of the characteristics (faculties and consciousness) of beings worthy of protection. Those desperate to protect such zygotes rely on a purely genetic argument in a way which, if accepted, would damage the coherence of the anti-racism movement. In the end, the pro-choice lobby is the heir of anti-racism.

Non-Religious Pro-Life

In this post, Jeremy who is guest blogging at Philosophy et cetera argues that the pro-life argument is not necessarily religious. I have said before that the sanctity of life view rests on a worrying religious contention (that our value is based on being God's property). But is there any other way this view can be upheld?

I will deal purely with the abortion question here, and take pro-life to mean someone who disagrees with the killing of an embryo from the point of conception (the usual, if not only, meaning). I will accept that there are theoretical ways to be pro-life which do not rest on God, but will assert that holding these views to any degree of consistency is either ridiculous, or in no way representative of any significant part of the pro-life community.

Note: It is difficult to distinguish religious from non-religious arguments. Jeremy suggests whether an argument is based on religious revelation or not, but I believe this is insufficient. If I make an argument based on the premise that during Holy Communion the bread and wine physically becomes the body and blood of Jesus (transubstantiation) then that is still a religious argument because the premise only makes sense with a religious underpinning. However, since everything eventually must lead to some unsupported underpinnings, I will say that a non-religious argument is one whose premises can eventually be tracked back to observations about the empirical world but not the existence of God. (This last requirement is necessary because an argument for God could itself be non-religious by relying on the world rather than revelation, like the argument from design. If this was used then one could collapse the religious / non-religious distinction.) An argument involving transubstantiation relies on faith in God, and so is religious. Any premises have to be tracked back to see if they could rely on the empirical world without belief in God. Only if so can they be non-religious.

Here, therefore, are the possible non-religious foundations for the pro-life view:

It is always wrong to kill

This argument would hold that killing anything with the criteria of life is wrong. If this was held then the problems with the pro-life view disappear. However, this is a radical view. Since it is not based on faculties, it requires upholding the right to life of a cabbage to the same extent as a human. Certainly, this would justify protection of a newly created embryo. But at the same time it would make life incredibly difficult to live. It would essentially require the Fruitarian lifestyle of only eating what dies naturally. I do not believe that any realistic portion of the pro-life community is represented by this view. Moreover, I do not believe that the belief in the sacredness of all life can survive without religious underpinning. The mere facts of being able to grow and reproduce appear to have no more importance ethically than the colour of one's skin. Only by having a God who gives special value to them can life in and of itself be ethically prejudiced.

If this cannot be a consistent non-religious ethical basis, then we must find some criteria which distinguishes the newly conceived foetus from a cabbage.

We must value things based on their potential

This is the only argument here that can be based on faculties. The only other change of ethical importance which happens to the embryo is that it will become able to survive on its own without constant help. If we take this latter as the important potential point, then this would exclude from the argument any child doomed to die in its first few years. This is because although after birth a child will not be bodily dependent on the mother in the same way, it will still be unable to live without constant care for many years. I am pretty sure that no pro-lifer would argue this way, so I will assume that the key to potentiality is faculties that will naturally develop.

Potentiality basically involves treating beings as they will naturally become. I say naturally because that seems to be the only way to treat it. Clearly it makes no sense to treat beings as they could possibly be, given the right conditions. This would require treating a sperm and egg as a person, because in the right circumstances they could be. The 'naturally becoming' test is the least bizarre potentiality requirement. However, this is clearly difficult to identify. Natural cannot mean 'without outside influence' because embryos require outside influence to grow into the beings we are considering. The only way in which it seems that embryos naturally grow into children and then adults is through pure probability, which seems a very odd way to identify their moral status!

The big problem however is that no-one takes any kind of potentiality truly seriously. It is a cliche to point out that no-one treats an acorn as an oak, but it is true. No-one treats a law student as a lawyer (or at least they are foolish if they do, believe me!). But let's move on to fully moral issues. It is possible to say that certain classes of people will probably and quite naturally become criminals and commit many crimes. Potentiality would presumably therefore have us treat them as criminals. But what if a very intelligent person is in that category, with the potentil either to become a criminal or a brilliant doctor. Are we obliged to ethically treat them as both - worthy of punishment and praise? This all seems ridiculous, but this is the reality of potentiality. It is not applied consistently by, I believe, any significant slice of the pro-life community.

Humans have souls

Jeremy asserts (in the comments) that souls are not necessarily a religious creation. However, I would take issue with this. There is no direct evidence for souls in the world, as I'm sure Jeremy would admit. We cannot see, hear or touch souls. The only arguments for them come from the incidents of those who supposedly have them. They rest on certain special qualities and abilities of those with souls, like the ability to think and reason. However, by basing evidence for the soul on faculties, we deny souls to those without those faculties, and this includes newly conceived embryos.

In order to include these, many say all humans and only humans have souls. However, by doing so they concede almost all of the arguments in favour of souls: Animals live and move but apparently they do not need souls to do so. Therefore the only evidence for souls must come from religion. Alternatively, if we argue that life itself is the incident of souls, and grant souls to all living beings, we are brought back to the first heading above. If destroying souls is wrong, then it must be wrong to kill any living thing. More than that however, there is absolutely no need for a soul in our understanding of, say, a cabbage. We understand how they work much better than complicated higher animals where there may, somewhere, be room for explanation by soul. The declaration that all life has a soul therefore can only rely as evidence upon religious belief.

There is of course an alternative like that suggested at the beginning of this section - the idea that there are different levels of soul according to faculties. However since an embryo has no more faculties than a skin cell, it cannot demand a soul on this arguement.

I have argued therefore, that there are three key ways to argue from a pro-life perspective without being explicitly religious: The wrong-to-kill argument, the potentiality argument and the souls argument. In all three cases, the arguments either require resort to religious backing or require massive changes to ethical systems in a way completely unrepresentative of any significant slice of the population as a whole, let alone pro-lifers. It is possible to consistently be pro-life for non-religious reasons, but I confidently believe that almost no-one is.

Divine Command

I have now featured in the Philosopher's Carnival twice (here and here), and hope to continue submitting posts to it despite confining my knowledge of and real interest in philosophy to a few areas (ethics, law, politics, religion). I would greatly recommend having a look - although I tend to confine my interest to the ethics section, the submissions are generally quite thought provoking.

A good example is this post from Daylight Atheism. It says what I have always felt about morality based on divine command - that it is often dangerous, easily manipulated and irrational. It may be more difficult to base morality on rationality, but it is a far safer and more successful to do so. The following paragraph is crucial:

By accustoming people to unquestioning obedience, religion cripples their skills of moral reasoning, often resulting in a sort of induced "ethical dyslexia" where they are unable to recognize evil for what it is, even when it is staring them in the face. Just consider how many Christian apologists continue to defend the atrocities recorded and praised in their own Bibles.

This is very true. I have heard Christians defend the actions of Abraham, ordered by God to kill his own son, with horror. I think ethical dyslexia is a brilliant term for this kind of mindset.

However, I do have one big quibble with the post. It seems to implicitly suggest that all or most theists follow the divine command theory of ethics, while atheists do not. I think this is unfair. Many, many believers follow rationality and merely supplement it with religious ethics, or build rational systems out of religious ethics. Many will have trouble with the story of Abraham. On the other side, many atheists are seduced by theories like societal ethics, whereby what is right and wrong is determined by what is generally thought to be, a sort of command. If Daylight Atheist had made this clearer, I would happily agree with pretty much everything he says here.

Before and After the Person

Now that I am finished with my posts about Peter Singer I feel ready to explain my position on some of the issues which came up in this debate. While I have explained my basic position on abortion in some detail, the issue of pregnant women causing birth defects divided pro-choicers. And even on the side which thought that it was wrong (including me), the further issue of harm caused after a victim's death is controversial. I will examine both questions here.

Birth Defects

The salient points about causing birth defects are these: Whether due to the intake of drugs or other acts, the actions occur and the harm is received well before birth. However, the effects are still felt some time after birth. The question is whether the acts can be said to be wrong, assuming that the harm principle holds, (as I do, although I interpret the principle widely).

Again I will have to distinguish myself from many pro-choicers who focus solely on the difference between persons and non-persons. This line is generally drawn after birth, and I would agree that that makes sense. However, as I have explained before, I think far more important is the nature and extent of the interests of any being, person or not. Late-term foetuses have interests which it is generally wrong to violate. However, the specific circumstances of a pregnancy and the effects on a woman's autonomy and dignity can justify the minimum necessary harm to the foetus while ending the pregnancy (as humane as possible abortion before viability, or induced birth afterwards).

However, when it comes to actions which will have a negative effect on this foetus, the situation is different. A woman's autonomy and dignity is sufficiently protected by allowing abortion. There is no similar argument preserving her moral right to take drugs which harm that foetus. Her autonomy is not affected in anything like the same way, this requirement being a prohibition and not a requirement. Indeed, in choosing to continue the pregnancy we can see her as having taken on even some, reasonable, positive obligations to the foetus, such as to stay reasonably healthy.

Moreover, I would say that this applies equally to actions done to early term foetuses with no interests at all, where the harm is actually felt later once interests have developed. I think even those who disagree that foetuses should have any rights should be in accord on this one. There is no question that taking thalidomide harms the person the foetus will become, in comparison to how their life would have been otherwise. It robs them of opportunities and abilities. However, the actual effects, when the damage is done, precede the development of any interests. Is taking thalidomide wrong?

The question can be taken out of the context of tricky interest / personhood issues. Can actions taken before the existence of a being with interests which later hurt that being be wrong? Ignoring abortion entirely, is it wrong to set a trap which will harm someone not yet conceived? I would say that it most certainly is. If someone does an action likely to harm someone, that is prima facie wrong regardless of when the victim is conceived or born. What matters in when the harm or effects are felt, not when the physical action took place. Just as the trap setter is wrong, so is someone who damages a pre-interest foetus such as to cause harm to the person it will be.

This may look odd considering that I see absolutely no moral problem with killing pre-interest foetuses. However, crucially there will never be any being with interests capable of receiving any harm. This is dramatically different from the situation in question. In my opinion, the conclusion that causing harm to beings not yet existing is wrong should be clear to both pro-choice and pro-life alike.

Harm After Death

Richard proposes that the fulfilment or otherwise of our desires at any time impacts our welfare. He argues that if someone's wishes are violated after they die, their welfare has been damaged. This is predicated on the view (which he expresses in the comments of the linked post) that "all moments exist equally, just like all places do." Thus, once there is a person there is a person, regardless of the time at which we are talking. That person exists even if not born yet. Thus the person's interests can be harmed at any time. It is this which leads him to agree with me on the birth defects question - the person is harmed regardless of temporal issues.

I however would say that timing is important - the time that the harm is received, rather than when the harmful act takes place. With the example of setting a trap as previously put, we do not harm the victim when we put down the trap - if we were to have a change of heart and remove it no harm would be done. The harm occurs when the trap strikes. (Nevertheless, the wrong is done when the trap is set with the requisite mental state. We can only redeem ourselves by removing it, not prevent the wrong from ever happening. Removing it would make it one of the class of wrongs without harm, as it was intended to make harm likely or did in fact make harm likely. This is why I interpret the harm principle widely.) With the burning of a dead man's precious library, there is no person to receive the harm (we are discounting upset relatives and heirs, for simplicity's sake).

The reason for my assertion is not that harms must be felt to be harms at all. I do not believe this. If we steal from someone and they never notice, they have been harmed. If we cause someone brain damage so that they can never realise that their mental abilities have been reduced, we have still harmed them. This is because one important type of harm is deprivation. I've explained before that this is the wrong of painless killing - depriving us of numerous abilities, faculties, interests and memories. Actual mental distress is not always necessary. Loss of something like options is enough, (even, I would argue, if they are options which would never be chosen). Harms which are unrealised may be less serious than those which are, but they are harms nevertheless. This is the only way to make sense of a large number of our intuitions. Imagine we lock someone in a room while they sleep, but they choose to remain there when they wake up without realising they can leave. Are they not harmed by the imprisonment at all, if they are removed again before they realise? Imagine that later they found out that they had been trapped. Would they feel that their interests had been violated, or merely that they had been at risk of violation? I say it must be the former.

So realisation and even ability to realise what has transpired is not necessary for harm. Nevertheless, I say that dead people cannot have interests which can be violated. They have no options to be taken away from them, no ability to experience which can be abused to cause suffering. Everything which marks a person as a moral object has disappeared. Nothing more can be done to violate their interests, as their interests have disappeared. They can receive no more harm. My great ancestor may have wished for a possession to stay in the family, but I need not take his concerns into account before I sell it.

I think the difference of opinion between me and Richard is not about all moments existing equally or not. It is that he thinks that it is generally good for our preferences to be upheld. I think that it is generally good for our preferences to be upheld because that allows us to make choices about our lives and increase our own happiness, options and abilities. Preference fulfilment is facilitative of all kind of other goods. Once someone is dead, however, it is facilitative of nothing as far as that person goes. I think that this accords with common sense and an interests-based view of ethics.

Acts and Omissions

My final critique of Peter Singer (for now) will focus on one of his less publicised but more striking claims. This is that there is a moral obligation on everyone in affluent countries to give very generously to charities helping poor and sick people in less fortunate countries, up to the limit at which it seriously impinges on our own welfare. In essence, he demands that we give up luxuries and donate all money beyond that spent on essentials.

There is much to be said for the consequences were this view taken seriously. We really could have a profound effect on world poverty if we donated to anything like this extent. Without doubt, it would be profoundly moral to give charitably in this manner, but I take exception to the claim that it is a moral obligation.

Singer's conclusions derive from one central premise - if we can prevent suffering without sacrificing anything of comparable moral significance (1), we are obliged to do so. He suggests that having money cannot be comparible to having basic necessities to live without suffering. In fact, he suggests that for his conclusions to work all that is necessary is that we be obliged to prevent suffering where nothing of moral significance at all is sacrificed (2). The difference between these principles would seem to be exemplified by following example: A man whose foot is trapped in a railway switch can push it to divert a train away from a child who would otherwise die, but at the cost of his foot. Singer would presumably accept that the foot is of at least some moral significance. Therefore on the less harsh test (2) the man would have no duty to push the switch as it would sacrifice something of moral significance. However, on the harsher test (1) we would have to consider whether the foot is of comparible moral significance to the child's life. Since it probably is not, he would have a duty to make this sacrifice.

Before considering the bulk of the argument, I will first argue that position (2) cannot lead to Singer's conclusions, and that he will have to stick to position (1). After that I will argue that both positions are profoundly misguided.

The idea that we have a duty to prevent evil where nothing (morally) significant must be sacrificed seems appealing. After all, it would seem that such a sacrifice cannot be too onerous upon us. It seems strange therefore that such a supposedly soft requirement could lead us to give up all luxuries. The reason for this is that Singer has an odd idea of what is morally significant. He would need to argue that giving up potentially huge sums of money is not morally significant. But money widens our options and choices in a unique way. While giving a small amount may indeed be close to insignificant, as the amount goes up the deletarious effect it has on our life options increases dramatically. This is why it is seen as a sacrifice, just like giving up our foot. It seems especially odd for a preference utilitarian like Singer to ignore the importance to people of autonomy. Even beyond essentials, what he derides as mere luxuries are expressions of autonomy which is subjectively intensely valuable. As one of the key points of liberalism, one might expect Singer to recognise this. In fact, almost everyone agrees that theft of money does a moral wrong to the owner, so it would seem odd for there to be no moral sacrifice if such money was given away!

In fact, this goes further. Singer talks about passers by seeing drowning strangers and claims that nothing of moral significance is lost in requiring them to go in and rescue the strangers. But this is not so. Indeed, the cost of replacing damaged clothes may be minor (although depending on the person's means, it may not) but if the watcher is compelled to save the drowner, all of their other options are prohibited to them, a loss which again is at least morally significant. This is the reason that omissions are rarely crimes in most countries - to force positive actions is a massive infringement of autonomy.

It would seem that the idea of morally insignificant sacrifices is very weak, at the least. Any such sacrifice would have to involve no significant reduction in autonomy. At most this might extend to small amounts of money from those who have an over-abundance of which they will not miss small amounts. It will certainly not go anywhere near the levels necessary to end world poverty as Singer dreams.

The only way for Singer to maintain his thesis is by sticking to position (1), that we are obliged to prevent suffering where such sacrifice as is necessary is not comparable to the suffering prevented. This seems much more plausible in support of Singer's conclusions. One could use Maslow's hierarchy of needs as a starting point for working out moral comparibility. So in order to allieviate basic deficiencies like illnesses and early deaths, we should be prepared to make sacrifices up to the point where to go further would be to subject ourselves to such things. This seems to go even further than Singer asking us to give up luxuries, but at least it would certainly justify that stance. Losing the autonomy money can provide would almost certainly not compare with the suffering in parts of the world, as losing autonomy briefly in order to rescue a drowning man would not compare with his death. On this model, if people were to do the right thing then countries would eventually equalise in terms of the welfare of their peoples, and people would always have to prevent harm to others unless they were likely to incur similar or greater harm in doing so.

However, I will say that this view is nonsense, going against almost every ethical intuition we have. To start with, an example. Say I earn some money and buy myself two apples. One is enough to sate my hunger but if I eat the other one, I will be pleasantly satisfied. My friend however has not earned any money, and is also hungry. Am I morally obliged to give him one of the apples? Clearly the sacrifice of the satisfaction is not comparable to his hunger (remembering that my hunger will be sated either way). If I have a duty to give him an apple, then what about the next day? And the next? Do I have a duty to feed him each day, because I work but he does not? Let me stress that I do not believe the more needy are by any means usually in that position due to any lack of effort or fault. I just mean to show that the principle seems insecure even to start with. The further away from illness and famine we move, the more ridiculous it seems.

Do we really think that the stranger who passes a random man drowning has a moral obligation to save him as long as there is no peril? Some have argued for a legal obligation in this direction, like Andrew Ashworth. However, I say that this view is actually out of line with general moral considerations, because of its view of moral obligations. When we think of such obligations, we consider them as being in some way incurred, or inherent. Incurred obligations like contracts can be of all kinds of different nature. However, here we are dealing with inherent obligations, and these are usually reserved for obligations not to impinge on the interests and freedoms of others. Indeed, they appear more like prohibitions from the wrong rather than obligations at all.

Imagine that the drowning man is able to send a message to a whole town telling them of his plight. It would seem ridiculous to argue that there is any difference between anyone who hears the message and the original walker. So who is now obliged to help him? Everyone? Must they all rush to help him, despite the damage to the town's economy and widespread chaos of all their positions being left? Are all these people responsible for helping the man? I would imagine we would not think so. Those responsible for alleviating suffering are normally those responsible for it in the first place, so the obligation is on those who cause the suffering.

In order to determine causation, we look at the situation had the person's actions not occured (this happens in law all the time). We can only conceivably find them responsible if the situation would have been significantly different without them. And this is the logical standard to follow, not that everyone is responsible if they could do something. The primary way for someone to become positively morally obliged is if they are causally responsible for the state of affairs in some way. Now with the right state of mind, such causation might mean that their actions leading to the state of affairs were morally wrong. Even if not, I would say that there is a positive moral obligation to right those wrongs for which we are causally (if innocently) responsible.

If this were not true, then it would not make sense to demand that people compensate others for harm. If responsibility for cure rests with those who can best achieve it, then merely committing the harm would remain morally irrelevent. Instead, we rightly expect those responsible for harm to be made to pay compensation as far as reasonably possible.

What does this all mean? It means that I am not morally obliged to help a stranger I see drowning - although it would be morally good to do so, it would not be morally wrong to fail to do so. However, if I inadvertently tripped a stranger into water, I would then have a moral obligation to help, at least as long as I would not have to sacrifice anything of comparable moral significance (ie. my life and possibly my good health). As for the poor and sick, we do not owe as great a duty as Singer imagines.

I would not deny that we have some obligation in that direction, however. I would say that apart from this normal way of incurring obligations, we can also do so by profiting from wrongs and injustices. Since a lot of western wealth is based on injustice which has led to the poverty and illness is developing countries, there is still a degree of moral responsibility we should bear. However, I will save this idea for a later post, and conclude that Singer is far from justified in assuming that we are morally obliged to help wherever we can.

Update:

In the comments, Richard correctly points out that I have not made explicit my view on whether act / omission is a morally valid distinction. Mea culpa - I will quote the my view as I set it out in the comments: "In point of fact, I believe that the act / omission distinction is not morally important, although it is a good rule of thumb for a valid moral distinction: Whether one is causally responsible for a state of affairs. Thus an omission to correct something harmful I have (perhaps innocently) started is as bad as an act."