The Generalized Structure
of Moral or Ethical Dilemmas

Dererjenigen unter den Menschen, die nach Gundsätzen verfahren, sind nur sehr wenige, welches auch überaus gut ist, da es so leicht geschehen kann, daß man in diesen Grundsätzen irre und alsdenn der Nachteil, der daraus erwächst, sich um desto weiter erstrechkt, je allgemeiner der Grundsatz und je standhafter die Person ist, die ihn sich vorgestetz hat.

Among men there are but few who behave according to principles -- which is extremely good, as it can so easily happen that one errs in these principles, and then the resulting disadvantage extends all the further, the more universal the principle and the more resolute the person who has set it before himself.

Immanuel Kant, Observations of the Feeling of the Beautiful and Sublime
[translated by John T. Goldthwait, University of California Press, 1960, p.74; German text, Beobachtungen über das Gefühl des Schönen und Erhabenen, Vorkritische Schriften bis 1768, 2, Werkausgabe, II, Suhrkamp Taschenbuch Wissenschaft 187, 1977, p.849]

The most common question I'm asked by such non-legal characters as cross my path, or get talking to me over a glass in Pommery's Wine Bar, is how you can defend a customer when you know he's guilty. Well, the answer is, of course, that you don't. Once the old darling tells you that he did the deed, you've got to advise him to plead guilty, admit all and take the consequences. If he refuses to agree, then you must leave him to his own devices.

Horace Rumpole [John Mortimer, "Rumpole for the Defense," The Second Rumpole Omnibus, Penguin, 1988, p.24; image of the statue of Justice atop the Old Bailey, which contains the Central Criminal Courts, London; see discussion of professional confidentiality]

E nelle azioni di tutti li uomini, e maxime de' principi, dove non è iudizio a chi reclamare si guarda al fine.

In all men's acts, and in those of princes most especially, it is the result that renders the verdict when there is no court of appeal.

Niccolò Machiavelli, The Prince [Daniel Donno translation, Bantam Books, 1981, p.64; Italian text, Il Principe, Nuova edizione a cura di Giorgio Inglese, Giulio Einaudi editore s.p.a., Torino, 2013 e 2014, p.127]

Note that a distinction can be made between moral dilemmas, whose terms are based on natural or rational principles of morality or justice, and ethical dilemmas, whose terms may involve contractual or legal principles germane to the artificial or constructed situations of certain professions (with their own "ethics") or kinds of transactions. This generates dilemmas of great interest where moral and ethical obligations may conflict, as in cases of legally recognized confidentiality. A principle of contract law is that an agreement for an illegal purpose is void and unenforceable, yet lawyers and priests can legally conceal knowledge of crimes, about which ordinary citizens may otherwise be obliged to offer testimony. Indeed, the lawyers and priests may be legally required to conceal knowledge of crimes. We must consider the justification of such things in turn.

Many moral dilemmas are dilemmas because of a certain kind of conflict between the rightness or wrongness of the actions and the goodness or badness of the consequences of the actions. In the list of moral dilemmas in the ethics textbook I used for many years [Victor Grassian, Moral Reasoning], the paradigmatic lifeboat example (where some must be tossed overboard to save the others), the fat man in the cave (where the fat man, stuck in the entrance, must be killed to save the others), and several other dilemmas, including the "Trolley" cases widely discussed by moralists, are of this kind. I call this the conflict of "the right vs. the good":  Our duty is to do what is right; but as a practical matter, we would just as soon have things turn out as well as possible -- as we see in the quote from Machiavelli in the epigraph above, where "it is the result that renders the verdict."

Hence the dilemma:  If doing what is right produces something bad, or if doing what is wrong produces something good, the force of moral obligation may seem balanced by the reality of the good end. We can have the satisfaction of being right, regardless of the damage done; or we can aim for what seems to be the best outcome, regardless of what wrongs must be committed. This pattern of dilemma is illustrated in the chart.

Noteworthy are the concentration camp or Sophie's Choice type dilemmas, which do not occur by ordinary chance but are intended to present unacceptable choices either way:  They depend on the possibility of constructing such dilemmas. The natural possibility of such dilemmas means that they can be constructed with bad intentions. The Nazis were not trying to teach moral lessons. They were simply trying to get people to cooperate (to do wrong for fear of bad consequences), to break down their sense of right and wrong ("You are so high and noble, what is the right answer to the dilemma?" -- their inspiration there was Nietzsche), and to distract people from the malevolence of the Nazis themselves. Nevertheless, I have had students indignantly assert that if the the Nazi guards killed more people because certain prisoners did not cooperate, then it was the fault of the prisoners. Some students would even walk out of class in protest. They might have considered that the guards who did the shooting, not the prisoners, would be the ones on trial at Nuremberg. Nevertheless, some people, like these students, apparently would consider it proper to kill people so that the Nazis would (or might) kill fewer. But should they survive the camp, they might face other survivors accusing them of murdering for the Nazis.

Another complication is knowledge. If one is going to do what is right, and take a stand on principle, despite undoubtedly bad consequences (like everyone in the lifeboat drowning),
Among men there are but few who behave according to principles -- which is extremely good, as it can so easily happen that one errs in these principles, and then the resulting disadvantage extends all the further, the more universal the principle and the more resolute the person who has set it before himself. [Immanuel Kant, Observations on the Feeling of the Beautiful and Sublime, 1764, translated by John T. Goldthwait, University of California Press, 1960, p.74]
then one better be pretty damn sure that the principle is true. Otherwise, many may die for nothing. Parents who wish to withhold blood transfusions from their children, or even from themselves, for religious reasons, must balance a grave risk of death against no more than the certainty of their faith. Various jurisdictions may not allow such scruples where the life of children is at stake.

A similar problem occurs over the goodness of the consequences. Tens of millions of people died in order to bring about a communist "workers' paradise," a society without want, greed, crime, or even government, in places like the Soviet Union, Maoist China, Cambodia, etc. Such an ideal has existed in many forms, but rarely with the belief that it could be effected by mass murder and slavery. In this case, it depended on no more than a certain theory of economics and history (i.e. Marxism). The end evisioned seemed so good and humane, that this theory made it possible to rationalize murder, torture, and slavery on the ground that these were only wrongs from a "bourgeois" point of view, and so in fact "revolutionary justice." Thus, the "end justifies the means" really became a way of denying that the means were even wrong.

Such moral dilemmas with a conflict between means and ends cannot simply be "solved." Ethical theories that seem to provide clear cut solutions will leave out some aspect of moral life:  teleological theories leave out the dimension of the moral judgment of action, while deontological theories may deny that consequences are of any concern. Human action, in general, does go for the best consequences; but there also come times when bad consequences must be accepted because we must do the right thing. And sometimes the right thing, to everyone's surprise, actually produces the best consequences. Thus, standing up in opposition under a communist regime would usually just get one, and possibly one's whole family and friends, arrested and possibly executed; but in 1989, the spontaneous protests of many in Czechoslavakia and Romania swiftly brought down the regimes. Large scale evils require the cooperation of many, of whom a large number are just going along with the crowd and afraid of being different and victimized. If even one example can give heart to those, then right action can suddenly produce the best effects.

If there is no real "solution" to the conflict of the right with the good, in the sense that a solution usually seems to be expected, as by Utilitarianism, for instance, or other historical schools and theories of ethics, there is a lesson in it about the nature of ethics and of value. And that lesson is the polynomic theory of value:  Moral value and the value of non-moral good ends can vary independently.

I am not aware, and I doubt, that modern academic philosophers are conscious of the lesson to be found in the existence of moral dilemmas. Thus, in a review of the book of ethical theory, On What Matters, by Derek Parfit [Oxford University Press, Volumes I & II, 2011], in the New York Review of Books [April 26, 2012], we find the reviewer, Samuel Freeman, a Professor of Philosophy at the University of Pennsylvania, making some revealing statements. His review begins thus:

Philosophers have long sought to formulate a theory that explains the purposes of commonsense moral rules and provides principles enabling us to resolve the frequent moral dilemmas we encounter. [p.52]

We are thus told that a goal of philosophical ethics is to figure out how to resolve moral dilemmas. This leaves unasked whether it is possible to resolve some or all or any of such dilemmas, and then what it would mean if we cannot. We get no clue in the rest of Freeman's review that he, or the philosophers he mentions, has considered this. One curious thing about this presumption is that, should dilemmas indeed be things that we encounter frequently, the need for a philosophical resolution would contradict the popular principle of Wittgenstein that "ordinary language is perfectly ordered." Not ordered enough, apparently, to dispense with philosophers to deal with matters like this. But if Freeman and Parfit are no Wittgensteinians, so much the better. Nevertheless, they might have paused to reflect on this point.

Later in the review Freeman says that, according to Parfit critic Allen Wood, "unrealistic Trolley-like thought experiments are 'worse than useless for moral philosophy'" [p.54]. Summing up, Freeman himself says, "If Parfit's commentators are correct, and nothing he says refutes them, it's doubtful that Trolley-like thought experiments tell us much about the general moral principles we should observe" [ibid.]. I think that this is, as far as it goes, true. However, it rather misses the point. The rules of morality do not resolve the dilemmas anyway. The lesson of the dilemmas is about the structure of ethics and of ethical value, which is what in itself is responsible for the dilemmas. So the lesson is more of meta-ethics than of ethics as such. That is what everyone has been missing. The existence of the dilemmas means that there are in fact no "general moral principles," if we mean the principles of the whole system of ethics, that can be applied without conflict.

In life, the existence of moral dilemmas throws our evaluation back to the deeper level of action:  to the character and intentions of the persons -- covered now by the study of virtue and the part of ethics, largely derived from Aristotle, based on this. Thus, in Sophie's Choice, Sophie is an appealing person because she wants to do what is right and is emotionally torn by the moral dilemmas in which she finds herself. We do not blame her for them. If, however, she were a morally callous person who didn't care about the dilemmas or about what she did, then it would not be an appealing or tragic story, as it is. The whole project of examining moral dilemmas is a relatively modern one. We don't find it in Plato or Aristotle. With them, as in life, what we really want to know is what a person is like morally -- are they a good person or a bad person? Do we describe them with virtues or vices? If they are a good person, we know they will try to do the right thing, and the occurrence of dilemmas, and whatever conscientious choices they make between the right and the good, does not subtract from their goodness.

This carries us back to another level of dilemma that is embodied in the traditional maxim, "The path to Hell is paved with good intentions." Sophie's good will and good intentions are simply a given when the dilemma involves the conflict between the right and the good. However, the paradox of good intentions is that they may contribute nothing to the determination of what is right or the goodness of the consequences that may follow, whether the person acting does what is right or not. Good intentions are not sufficient to determine either what is right or what is the best outcome, both of which call for different considerations. The maxim about good intentions is meant to assert not just that good intentions alone are not enough, and that those with good intention may actually be blinded by them to the extent of not paying sufficient attention to what is right, or to the perhaps boring practical and factual issues of what the consquences of one's actions may be. So "Hell" means an outcome where there is a failure to give any attention to the way that bad results follow, or even what right action might be in the circumstances. So we may get the worst of both worlds:  Wrongful action and the worst consequences.

Thus, it is beyond dispute that the motives of those designing and running the "War on Poverty" in the Johnson Administration were well intentioned. Who could be against ending poverty? However, it had long been observed that giving people money removed the incentive for them to earn any. Thus, Benjamin Franklin had said:

In my youth I travelled much, and I observed in different countries, that the more public provisions were made for the poor the less they provided for themselves, and of course became poorer. And, on the contrary, the less was done for them, the more they did for themselves, and became richer. ["The Encouragement of Idleness," 1766]

President Johnson's people were not insensible of this, as the Roosevelt Adminstration had not been at the time of public relief during the Great Depression (which was refused by many people at the time out of pride). Thus, a motto of the War on Poverty was, "Not a handout, just a hand." However, it was quickly observed that the War on Poverty programs did not work, if the purpose was to get poeple into gainful employment; and very soon the principle was voiced, not so much by the Administration as by activists, that there were "welfare rights," in the sense that handouts were a right that was owed to anyone in need.

Despite misgivings about such notions, their political appeal to certain voters and certain intellectuals was undeniable and unavoidable -- although a majority of Americans were actually outraged by them (earning accusations of callousness, racism, etc.). The results were indeed Hell, as is most clearly embodied today in Detroit, where much of the city has been abandoned, as people have fled the joblessness, crime, hostility to business, and failure of public institutions. The riots in Detroit, among the worse of the 1960's, were ironically in a city where black unemployment and black poverty were unusually low. The "solution" to the riots was a government of Democrats that drove business out of the city, allowed crime to soar, and left much of the populaton, black and white, little recourse but to leave, even when abandoning homes and property. Baltimore and Chicago in 2016 seem to be in tight competition to emulate Detroit, even as Detroit has improved somewhat under State supervision.

Thus, two approaches to poverty, the "hand" and the "handout," were both tried; and neither worked. But you would never know it from much of public discourse, certainly not on the Left. In the light of such a history, doubts are raised about the continuing good will of the agents and activists involved in these ideas and programs. They begin to look more like rent seekers than like disinterested benefactors. It is noted that the dependence of voters on the largesse of politicans and bureaucrats renders them politically beholden to them, making said activists and politicians richer themselves, far more so that those relying on welfare and living in devastated and crime-ridden neighborhoods (and from which they cannot be released by payments that merely maintain them in their situation). The dynamic is the same as it was in Detroit:  a sense that business is wicked, public income better, and that the greater incomes of the "rich" are reprehensible, while those of the political class are worthy and noble (as they are worthy and noble, from not dirtying their hands with buying, selling, and profit). The transparent dishonesty, let alone folly, of this seems to escape many voters, and curiously, many of the best "educated" -- which may tell us something about the nature of their education.

Of course, the lesson here may just be corruption. Good motives and well motivated actions begin the story. Then it lapsed into less well motivated, in fact discreditable, actions. The failure of either approach, with reflection on the status serendipitously achieved by the agents and activists, results in an erosion of motive, to the point where the "educated" begin to regard Cuba and Venzuela as, remarkably and appallingly, paradigms of good government and economics -- all because they give dictatorial power and privilege to the bien pensants. This dynamic has of course been embodied in the maxim about those "who came to do good and ended up doing well." The Clintons (and many other politicians), on modest public salaries, have become millionaires without what might be regarded as the prerequisite of productive employment. Only recently has it become an issue of public debate that "insider trading" laws did not apply to Members of Congress, who have freely used knowledge gained from even secret Congressional testimony to anticipate influences on markets. "Progressive" opinion was curiously uninterested in this dynamic. But as a tale of corruption it is very different from the dilemmas where good intentions are starkly faced with with choices between a wrong whose consequences are good and right action whose consequences are bad. The most important lesson, however, for the nature of ethics is that the valences of motive and action vary independently.

Dilemmas similar to or involving moral dilemmas can occur with different domains of value. Is good art always morally good? Certainly not. Thus, film schools commonly feature study of the films of Leni Riefenstahl (1902-2003) -- Triumph of the Will (1935) and Olympia (1936) -- which are classics of documentary film making. Unfortunately, they were also Nazi propaganda films, and Germany prohibited Riefenstahl from making movies after World War II because of her history with the Nazis. Without a doubt, however, the films are great art, whose aesthetic appeal is even copied in films that are certainly anti-Nazi, like Indiana Jones and the Last Crusade [1989], where we have a Nuremberg party rally, just like in Triumph of the Will, reproduced in loving detail. Fortunately, Riefenstahl's work is the exception rather than the rule for Nazi era art -- which generally was very bad, sparing us the need to confront this problem very often.

Closer to home, we have the films of D.W. Griffith (d.1948). In 1915, Griffith made a movie out of a play, The Clansman, and two novels by a friend, Thomas Dixon, Jr. The Clansman was about how the Ku Klux Klan had saved the South after the Civil War. When Griffith showed the movie to the new President of the United States, Woodrow Wilson, Wilson is supposed to have suggested what became the title of the movie, Birth of a Nation. The storm of protest over the racism and pro-Southern sentiments of the movie moved Griffith to make his next movie, Intolerance [1916], which detailed various historical examples of religious or political oppression. In other words, the protest against Griffith's celebration of lynching and racism was supposed to be the equivalent of the St. Bartholomew's Day Massacre of 1572 (when French Protestants were slaughtered). Griffith seems to have been a very morally confused person.

In modern Hollywood, however, reproductions of the Babylon set from Intolerance (shown at left and below) can now be inspected at the corner of Hollywood Boulevard and Highland Avenue, next to the (former) Kodak (now Dolby) Theatre, which has become the permanent site for the Oscar telecasts. Thus, only partially in jest, I like to say that movie business liberals have built a monument to the Ku Klux Klan at Hollywood and Highland. Similarly, in Forrest Gump [1994], Tom Hanks is digitally inserted, as Nathan Bedford Forrest (the founder of the Klan), in Klan robes, into an actual film clip from Birth of a Nation. Griffith's films are beyond doubt of artistic and historical importance (and so examples of the truth of aestheticism), but his racism (like Wilson's) is less often noted.

Political control is for political ends rather than for artistic ends, and political control also becomes impatient with mere artistic and aesthetic criteria. Thus, political art easily degenerates into really bad art, which is what generally characterized the Nazi regime. This preserves us from facing the dilemma of morally bad but good art very often. A similar dynamic is evident in the Soviet Union, which attracted political enthusiasts who were genuinely good artists in the 1920's and then tended to kill or exile them, in favor of politically reliable hacks. The Soviet equivalent of Leni Riefenstahl might be Sergei Eisenstein (1898-1948), whose Battleship Potemkin [1925] is one of the real classics of movie history, from which scenes turn up even in unlikely places like The Untouchables [1987]. Eisenstein suffered from the tides of Soviet politics, as his anti-German Alexander Nevsky [1938] was first suppressed in 1939, after the Nazi-Soviet pact, and then released again in 1941, after the German invasion. His three part Ivan the Terrible [1943, 1946, incomplete] didn't make it past part two, which was suppressed because Ivan turned out to be rather too much like Comrade Stalin. It was only released in 1958, as part of Khrushchev's de-Stalinization. In the same year, however, Khrushchev forced Boris Pasternak (1890-1960) to turn down the Nobel Prize for Literature, because his novel, Doctor Zhivago, had been published abroad after being rejected for publication in the Soviet Union. "The development of literature and art in a socialist society," said Khrushchev, " directed by the Party." With guidance like this, Soviet art, in general, became just as bad as Nazi art, for the same reasons. An attempt to stage an "unofficial" art show in a vacant lot in the late 70's, after Jimmy Carter's "Helsinki Accords" supposedly established certain freedoms of expression in the Soviet Union, actually ended with government bulldozers mowing down the paintings. Nothing independent, unofficial, or unauthorized was going to be tolerated. Despite an internationally successful movie version in 1965, the winner of multiple Oscars, Doctor Zhivago was not published in the Soviet Union until 1987.

The independence of morality from religious value is also evident in the many crimes that can be attributed to organized religion -- from the Spanish Inquisition to the Terror of revolutionary Islâmic Irân and the Sunni Jihadists of what is called the "Islamic State" (IS, ISIS, or ISIL). This is commonly taken to mean that morally bad practices and actions refute the value or validity of a particular religion, or of all religions. But those who thought that the abolition of religious superstition would lead all by itself to justice and happiness were in for a shock in the 20th century, when secular ideologies, like Fascism and Communism, killed far more people than can be attributed to previous religious atrocities -- even to all of them put together.

Nevertheless, this is a hard lesson, both for the religious, who tend to see themselves as morally superior (and who, in some ways, are actually right about that, at least in terms of prudence), and for the anti-religious, who often use deceptions like "separation of church and state" to actually attempt to suppress free speech, freedom of association, and the practice of religion. Sometimes public school officials have gotten the idea that the prohibition of (official, required) prayer at the public schools meant that they could prohibit students from praying. The Courts, so far, have improved their understanding of the matter. The proper judgment is that the doctrines of religion, although they may contain moral teachings, are actually independent of moral judgment, which may conflict with them. Moral reasoning is a rational matter, which is over and against religion -- something that even St. Thomas Aquinas agreed with, though he did not think that conflict could arise. It does. Thus, religion sometimes needs to be morally corrected -- as must the judgment of secular ideologues.

These kinds of dilemmas, whether conflicts in action or involving art or religion, thus give us important clues about the nature of value, where the solution is the polynomic theory of value. But we also must reflect on a curious feature here, which is that the Left rarely uses the atrocities of Terrorist organizations like ISIS or the Tâlibân to impeach the religion of Islâm, despite the manner in which they appeal to Islâm to justify their practices. This reluctance is certainly because that would be "Islamophobia," which is a political crime in terms of the anti-American and anti-capitalist international cause. Christians are vilified in the United States for morally condemning homosexuality, but Iran executes homosexuals with little notice and no more than faint objection from the West. We also see the claim, by no less than Barack Obama, that slavery is the "original sin" of the United States, even while little is said about Radical Islâm reinstituting slavery, including sex slavery -- things that are fully consistent with Islamic Law. In those terms, the common apologetic cannot apply, which is that ISIS, etc., are not practicing "real" Islâm. According to Islam Law, they are.

In the examples of moral dilemmas, not all of them fit the pattern of the right versus the good, or of intention and action. The callous passerby, especially -- where a random person is faced with what to do about the plight of a drowning boy -- is about something else, and it also strikes many people as no dilemma at all. What complicates the issue, as it happens, is the difference between duties of omission and duties of commission. The most easily understood moral duties are those not to do something, i.e. don't murder, don't rape, don't steal, etc. (giving others the "negative rights" or immunities to be left alone). The callous passerby, however, would seem to have a duty to do something -- jump in the water and save the boy.

There are some fundamental differences between the two kinds of duties. For a duty of commission to be binding, the agent must be able to carry it out. If the passerby cannot swim, then he cannot be expected to jump in the water. Similarly, for a duty of commission to be binding, the agent cannot be expected to excessively endanger himself. This is related to ability, since excessive danger means that it may not be possible to effect the action. Ability and possibility, however, are often problematic and matters of judgment. This blurs the nature of such duties, despite the cases, like the callous passerby, that we can set up to be clear and unproblematic. Ability could be expressed on a scale of the probability of carrying out the duty, while danger could be expressed on a scale of the probability of being injured or killed in the process.

Matters get worse if we want to makes duties of commission matters of law, as in some laws improperly called "good samaritan" laws. The breach of a duty of omission results in a wrong of commission, and this usually results in some physical evidence -- a dead body, broken locks, missing property, abused victim, etc. This makes it relatively easy to know that a crime has been committed, and also provides relevant evidence of the crime. However, a breach of a duty of commission only results in a wrong of omission, which by its very nature may produce no causal effects due to the agent. This means we often will never even know that a wrong has been committed. If the callous passerby walks on, and nobody notices, then the coroner's report will simply read "accidental drowning," and no one, apart from the passerby, will ever think that a wrong was involved.

This is important point to consider in relation to the nature of law. Someone who is prosecuted for not being a "good samaritan" is not more guilty than the unnoticed callous passerby but is simply more unlucky, in not being noticed. Legal sanctions should not fall more heavily on the unlucky than on the guilty. That makes for a bad law. Duties of commission, however, where we do not know about a prior positive obligation (as from a contract, parenthood, office, etc.), are about matters that by their nature may produce no evidence, or even evidence that a wrong has occurred, which means we can never know how many of the guilty, evenly grossly guilty like the callous passerby, escape. This means we cannot even know how much of a problem this crime would be, i.e. how often such wrongs occur and how many would be successfully found out by the law. It is more unusual that the fact of a murder, say, escapes notice. Furthermore, since ability and possibility cloud the nature of duties of commission, it becomes very easy to distort the evidence or to unfairly second-guess an agent who, on the spot, must often make snap judgments about what he can do in life-endangering situations. Prosecutors, as they now operate, go for convictions rather than the truth (although this is a breach, albeit typically unsanctionable, of their professional ethics), and they would be perfectly happy to portray a dangerous rescue in a stormy sea by Walter Mitty as no more difficult than an Olympic swimmer pulling a baby out of a wading pool. A jury, maliciously stacked with nitwits, may even believe them.

We see the potential for abuse of these ideas in the example of the last episode of Seinfeld. Since the victim of the robbery himself exclaims that the robber has a gun, Jerry, Elaine, et. al. are under no obligation to endanger themselves by trying to stop the robbery. Afterwards, they have a duty to remain as witnesses to the robbery, but whether they would do this or not is not even put to the test. The policeman who arrives at the scene arrests them for not having interfered with the crime. This, indeed, is a case of a breach of duty by the policeman, who should be pursuing the robber, not arresting bystanders. But we also see a possible motive:  the policeman is unlikely to be shot by the bystanders, but, if the robber really had a gun, the policeman might get shot by the perpetrator. This dynamic may also be evident in what seems to be the preference of police to arrest usually harmless and passive marijuana smokers, rather than the often violent and armed speed-freaks, angel dust users, and others.

While laws sometimes exist requiring bystanders to render aid, true "good samaritan" laws are properly designed to protect bystanders from liability if they do attempt to render aid. Thus, in The Incredibles [2004], Mr. Incredible is ruinously sued by someone he saved from a suicide attempt. A Good Samaritan law would have shielded him. Note that in the United States, even the police are not legally required to protect people from crime.

Another case provides us with some different circumstances. In a poisonous cup of coffee, we again have a difference between a wrong of commission, Tom poisoning his wife, and a wrong of omission, Joe not giving his accidentally poisoned wife the antidote. Here the motive is the same in each case -- murderous malice. It is not a matter of Joe being merely a "good samaritan." But there certainly is a legal difference between the two cases. Tom's action requires malice and forethought, the conditions for first degree murder, while Joe's action is on the spur of the moment, presumably without forethought, making it a case of second degree murder. Morally, the difference between commission and omission seems less important, given the motive and intimacy of perpetrator and victim. But, for the legal case, Joe's omission will not be without evidence. If the police discover the presence of the antidote, Joe is going to have some awkward explaining to do; and if he destroys the antidote, then this is a positive action, not an omission, to cover up the effect that he did intend, the death of his wife. Crimes are often proven with after-the-fact actions. And there may be evidence of the purchase of the poison and antidote -- before the fact. Nevertheless, although this situation is more grievous (because of the motive) and more provable (because of the evidence) than the callous passerby, Joe's omission may make the case harder to prove, or even discover, if the investigators are not alert and suspicious.

All of these examples that hinge on duties of commission are not really dilemmas, with alternatives in balance, but get included because the complications that attend such duties make it more obscure what the requirements of morality are. The dilemma is one of understanding rather than of choice. More dilemma-like, but for extra reasons beyond those of the conflict of the right with the good, is a case like the principle of psychiatric confidentiality. As a psychiatrist or a lawyer, it is one's legal, as well as moral, duty to report the intention of a patient or a client to commit a crime. The difficulty for the psychiatrist is evaluating the seriousness of the intention. A psychiatrist cannot go running to the police to report every fantasy, but he is going to be fallible when it comes to picking and choosing. Mistakes are going to happen, with tragic consequences. Thus, the psychiatrist who reportedly was told by Charles Whitman of his idea of shooting people from the library tower of the University of Texas did not report this, because, he said, it was a common fantasy among his patients. Unfortunately, Whitman was the one who acted out his fantasy, killing 16 people on 1 August 1966. Such errors of evaluation are unavoidable, although some psychiatrists might be sued for negligence if their judgments seem incompetent.

Less challenging legally, but more challenging morally, is the general circumstance that a lawyer or a priest is prohibited from divulging confidences about past crimes. A defense lawyer whose client confesses must go into court and do everything in his power to win the case, or a conviction may actually be reversed on grounds of attorney misbehavior or incompetence (British practice, as we see in the Rumpole quote above, appears to be different). The movie The Devil's Advocate [1997] presents the view that a lawyer (Keanu Reeves) who does his professional duty to defend a client he knows to be guilty has done wrong to a degree that may open him to Satanic (Al Pacino) temptation. However, Reeve's determination at the end of the movie not to defend his client so competently is what is wrong, as a breach of professional ethics. His knowledge of his client's guilt is professionally and legally irrelevant. Matters are different in the story of The Firm [book by John Grisham, 1991; movie, 1993], where duties of confidentially and the liability of being (insensibly) involved in a criminal enterprise, result in a real and severe dilemma, where a lawyer (Tom Cruise, in the movie) apparently faces a choice between disbarment for violating confidentiality and prosecution as a criminal accomplice.

For priests and lawyers the ordinary requirements of morality are modified on the basis of a "greater good" in our familiar "right versus good" pattern. The greater good for the priest is salvation and divine justice. This easily trumps considerations of earthly justice. The priest need not worry that a perpetrator will get away with anything. Before God, justice will be done. A lawyer may be less certain that justice will be done, but his professional confidentialty is based on what is needed to protect the innocent, i.e. ensure the best defense for innocent suspects. It is not enough that the priest or the lawyer gain their knowledge of guilt just because of the agreement not to divulge it, for in any other case no mere promise of confidentiality is enough to override the duty to report crime and see that justice is done (as in the value of a promise). A contractual agreement to conceal knowledge of a crime would be an invalid contract (to be enforced, it would have to divulge the existence of the crime) and could well make the contractor an accomplice after the fact, if he takes some positive action to help conceal the truth. The considerations for priests and lawyers must therefore be weightier, and they are. In the case of the lawyer, the moral imperfections of this arrangement are similar to the considerations for duties of commission:  not every duty makes for good law, and not every wrong can be fairly redressed by laws. The human condition, which is ignorance and fallibility (especially for those in authority, deceived by their own, as Shakespeare says, "insolence of office"), is what makes the presumption of innocence a good principle, what makes good samaritan laws (in the distorted sense considered) bad laws, and what makes attorney confidentiality a good basis for the protection of the innocent, allowing that the lay citizen will have the protection of the law beyond his own familiarity or understanding of it. These are the kinds of dilemmas that arise from our limitations, not from the structure of value itself.

Yet accepting the professional ethics of the Bar does open one to moral problems that a lawyer might actually want to avoid. Thus, Grover Cleveland, as a lawyer, refused to accept guilty clients. However, in American courts, defendants sometimes appear without a lawyer, because they cannot afford one, and the Public Defender may inform the judge that no lawyer is available for the defense of this person. A judge is within his powers to designate a lawyer, often one who by chance is present in the courtroom, to represent the defendant pro bono. Any lawyer, as a Officer of the Court, may be called upon to do this. The guilt of the defendant does not constitute an exemption. This could have happened to Grover Cleveland, who would have had no choice but to provide the best defense. Even "Rumpole of the Bailey," who we see above denying that he will defend a guilty client, often finds himself at pains, in the remarkable books by the actual barrister John Mortimer (1923-2009), discouraging clients from admitted their guilt to him. Thus, he will defend a guilty client, as long as the client does not admit his guilt. This seems a subtle evasion, but no such evasion is needed in American courts. If Keanu Reeves, at the end of The Devil's Advocate, approaches the judge asking to be removed from the case, for reasons that he is not really at liberty to divulge, it is almost certain that the judge would not allow it. Even if Reeves, improperly, confessed his scruple about a guilty client, this would not be grounds for removing him. We might thus suspect that, unlike The Firm or "Rumpole for the Defense," with John Grisham or John Mortimer, respectively, Reeves's movie was not written by a lawyer (it was based on the novel, The Devil's Advocate [1990] by novelist, not lawyer, Andrew Neiderman).

Duties imposed by contractual arrangements do not always, of course, change the existing characteristics of moral duty. Thus, the problem of the partiality of friendship is stated without even taking into account the duty that Jim has to protect the interests of "his firm." He has a fiduciary responsibility. It is not just that he should be "impartial," but that he should be partial as a representative of his employer. Maybe he doesn't like the employer. Maybe his doesn't like his job. Maybe he thinks that a business is something that nobody needs to be loyal to, in which case he should promote the interests of his friend. Such attitudes, however, will not be good for the business, and Jim might end up getting fired for not doing a good job (unless his job is in France, where it is difficult to ever fire anyone). Since his friend would get fired along with him, he has not done anyone any good.

Another unmentioned aspect of this situation, however, is that Jim knows his friend and thus knows things about him that he would not know about another applicant, even if the paper qualifications of the other applicant look better. In economics, "knowledge costs" means the cost or the difficulty of acquiring knowledge about relevant things, like the abilities of a worker. Since Jim knows his friend, he may know that the friend is reliable and a good worker, which may be harder to know about the other applicants -- especially when businesses have stopped mentioning negative things in their recommendations, for fear of getting sued. Jim's personal knowledge thus can be a very valuable thing and can make hiring his friend a prudent move for his firm. On the other hand, if Jim knows that his friend is not a reliable worker, and simply wants to hire him as a way of bestowing a benefit on a friend, then he violates his fiduciary responsibility to his employer.

But again, if the business is Jim's (wholly owned) business ("his firm"), then he can do whatever he likes. He can give the job to the friend, even knowing that the friend is not a very good worker, just because he does want to bestow a benefit on a friend. This violates no duty, but may simply be an act of imprudence. It will not even be that if Jim otherwise runs the business in a prudent and profitable way. Jim may simply wish to use some of his profit margin to help his friends, or relatives, as other businesses give some of their profits to charity. We have a version of this in Atlas Shrugged by Ayn Rand [1957], where the industrialist Hank Rearden refuses to give his brother Philip a job. As it happens, Rearden already supports his mother and his brother. He refuses his brother a job because he knows that Philip wants the job just so he can boss people around, being devoid of any real abilities. He doesn't need the money. Actually, I think that in such cases the relative is traditionally offered a job in the mail room. But that is not what Philip wants.

In such cases, again, the dilemma-like quality of the problem is clarified when the nature of the obligations involved are understood. This was ambiguous in the way the partiality of friendship is presented.

Would You Kill the Fat Man?
The Trolley Problem and What Your Answer Tells Us about Right and Wrong
, by David Edmonds, Princeton University Press, 2014 [sic]

David Edmonds, with a PhD in Philosophy, is a "senior research associate" at the Uehiro Centre for Practical Ethics of Oxford University. Thus, although his book is largely in a popularizing vein, and lacks the tortured and often irrelevant detail of a lot of writing in academic philosophy, we can assume that he has met that writing head on and is current with the state of the academic literature and the philosophical debate.

He is not, however, current with The Proceedings of the Friesian School; and this is evident when we consider one of the final statements of the book:  "The Fat Man quandry highlights the stark clash between deontological and utilitarian ethics" [p.182]. The "Fat Man" in this case is not the fat man of the fat man and the impending doom, but the fat man of the trolley problem, where in one variant we are tempted to push a fat man off a bridge in order to stop a trolley and save people tied to the tracks. As it happens, we learn that both dilemmas go back to the same philosopher, Philippa Foot, who introduces the first fat man before we are given the Trolley Problem.

If Edmonds were familiar with, say, this webpage, which has been on line since 1996, he might have considered that the "stark clash" between deontological and utilitarian ethics actually means that they are both true, that the means and the ends both count in our evaluation of action, but that their separate values can vary independently of each other. I think that this is a very simple idea, but it is clear from the book that Edmonds and the philosophers he considers, particularly Foot, would prefer that the dilemma be resolved, that there be one right answer, and that eventually we will figure it out. Or something. In discussing virtue ethics, he also does not consider that it may complement, rather than replace, a concern with moral rules of action. There is thus a sort of insensible reductionism at work, although this is characteristic of the field.

At times, Edmonds also seems a little confused. For instance, towards the end, we get the suggestion that doses of the drug propranolol can reduce the emotional affect that prevents people from pushing the fat man off the bridge [pp.154-155]. It is only emotion, we might think, that gives people some consideration for the rights and autonomy of the fat man; and this view of ethics is explicitly associated with Hume (in the Scottish tradition of moral sentiment), leaving us to understand that utilitarianism is more "rational" and dispassionate than a moral consideration for individuals. However, Edmonds is clearly aware that the principal theorist of deontological individualism is Immanuel Kant, who also exalts reason above any other philosopher. Also, after leaving the impression that it might be good to drug everyone to be good Utilitarians, Edmonds ends the book with the admission that he would not kill the fat man [p.182]. Is this just irrational sentiment? Or a Kantian Imperative? We are not told [note].

Edmonds also seems at times to overlook relevant features of a situation. Thus we learn that Judith Jarvis Thomson is responsible for the dilemma of a poisonous cup of coffee, where one husband (Thomson's Alfred) deliberately poisons his wife, while another (Burt) accidentally poisons his wife but then lets her die [p.36]. Edmonds mentions this dilemma without discussing it but then returns to a similar problem later, where greedy uncles want their rich nephews to die. One, Smith, actively drowns the nephew, while the other, Jones, merely allows him to drown after the boy has slipped in the bathtub and knocked himself out. Edmonds says,

It doesn't look as if there's a moral distinction between Smith and Jones, even though Smith acts whereas Jones merely fails to act (lets die). And we can thus conclude, runs the argument, that there is no fundamental moral difference between acts and omissions. [p.52]

Edmonds does not really dispute this. He never mentions the moral difference that would emerge in the cases if we consider the legal difference that would inevitably emerge. The uncle who acts can be charged with first degree murder because he acted with malice and forethought. The uncle who benefits from the accidental drowning, which he allowed to culminate, may only be guilty of second degree murder because the event does not prove forethought. As it happens, Edmonds stipulates (with divine knowledge) that Jones enters the bathroom intending to drown his nephew, which would make him guilty of forethought, but it may be difficult to produce evidence of this in court. Indeed, if Jones quietly leaves the bathroom and returns later, it may be difficult to impossible to prove that he knew of the drowning at all before the nephew was dead. The police and prosecutor might have suspicions, but the evidence may indicate nothing more than an accident. Indeed, it would be difficult to believe that the nephew just happened to slip and fall just as Jones was entering the room with murderous intent. This sort of thing doesn't happen very often. On the other hand, in the poisoning dilemma, we don't get the stipulation that the second husband ever intended to poison his wife.

The moral role of forethought goes back to Aristotle. It is regarded as a misuse of reason, which is worse than actions that result merely from passions. Thus, Dante divides Hell in three, with "incontinence," moral weakness, the mildest form of sin, characterizing the upper circles, then "violence," which is intentional but passionate, below, and finally "fraud," which is a misuse of reason, characeristic of the lowest circles. The image of Paolo and Francesca, carried around on a wind, as they had been carried away by their passion, fits into Dante's realm of incontinence, but violence also involves being "carried away." Fraud and forethought, however, are cold, purposeful, and deliberate. This figures in the legal distinction.

We suspect that Edmonds may be ignorant of some other legal niceties when he says that the difference between murder and manslaughter is intent. No. The difference is malice. There is still intent to kill in manslaughter, but it is done without malice or forethought. If someone's actions unintentionally result in death, this is wrongful only if there is negligence -- a case of negligent homicide. But Edmonds does not discuss such problems; and his treatment of the issue of duties or wrongs of commission and omission does not get into it in anything like a satisfying manner. He never notes, for instance, that the problem with duties of commission or wrongs of omission, absent a contractual obligation, is that it may be impossible to tell whether a breach of duty or a wrong of omission has ever occurred. The challenge of prosecuting the husband who allows his wife to die of an accidental poisoning is that there may be no evidence that he was ever in a position to take timely action about it. He can pretend that he came into the kitchen a few minutes later, as in fact he might well have. This deception does not lessen his moral guilt, but it does demonstrate that the difference between commission and omission is practical as well as moral. This is a very significant feature of a moral system that we endeavor to translate into practical legal terms. For someone who works at a "Centre for Practical Ethics," Edmonds' neglect here seems like a grave oversight.

Edmonds also displays some carelessness in some other of his comments. For instance, most people regard the failure to save a drowning child, for trival reasons (e.g. soiling a $500 Versace skirt), as a grave breach of duty:

Yet few of us respond to letters from charities who point out that similar amounts of money could save lives on the far side of the world. [p.142]

What is a "few" here? Does this mean that Edmonds does not respond to such letters? Speak for yourself, Dave. He does not consider the volume of charity that is actually directed to humanitarian causes, particularly from the United States. Indeed, Europeans do less of this than Americans, and American "liberals" do less of it than conservatives, since "liberals" think it is the job of the government to take care of people -- and they already pay their taxes for that. Perhaps Edmonds does not want to admit, although there have been books written about it, that Americans or conservatives are not among the many he reproaches. He may also not want to consider that "letters from charities" do not always solicit money to effective or even honest causes, while the "liberals" who rely on foreign aid from their government would not want to admit that such money is typically wasted or even stolen by the regimes to which it is directed. So Edmonds, with a suspicious hint of self-righteousness (repeated later), touches on an issue to which he actually devotes no serious consideration and about which we may reasonably suspect that he is grossly uninformed or misinformed.

Another area where Edmonds could pay some more attention is to method. All the judgments about morality involve moral "intuitions." How these work does not come in for discussion, except for the occasional caution about "whether our intuitions can ever be relied upon" [p.93] -- since surveys involving moral judgment can vary by culture, let alone by philosopher (as we know already). However, for the reliability of "intuitions," Edmonds need go no further than Socrates. The answers people give to the questions asked by Socrates are almost always defective, and the purpose of this is, as it happens, to demonstrate their ignorance, by which Socrates vindicates the god at Delphi. Plato looked at it a little differently. The truth could be achieved by examining, sifting, and systematizing the sorts of answers that Socrates obtained. This was Plato's version of Socratic Method, whose effect was supposed to be different from the negative result always obtained by Socrates himself. Such a method became part of the doctrine of the Friesian School through its practice by Leonard Nelson. Thus, "intuitions" do not need to be reliable, but they have a prima facie credibility that we then examine. Like Socrates, all we can do is test them for consistency; and where no result is satisfactory, we must suggest new theories to try and achieve a coherent doctrine. This process does not end, as we can always continue the testing, looking to falsify any suggested theories.

With emphasis on the "clash" between deontological and utilitarian (teleological) ethics, or between Kant and Bentham, and passing mention of several other issues, such as commission and omission, Edmonds otherwise places considerable emphasis on a theoretical apparatus that I have not otherwise considered. This is the "Doctrine of Double Effect" of St. Thomas Aquinas, which is cited by Philippa Foot and which in the end Edmonds himself seems to think "has powerful intuitive resonance" [p.177]. The idea with this is to differentiate between a wrongful action and another, morally acceptable action, which nevertheless may have the same effect as the wrongful one. Thus, a person engaged in self-defense may kill their assailant, which morally is very different were the assailant to succeed in killing them. One effect is the killing, but the other, morally innocent, is self-defense. Thus, in many of the dilemmas, one does not have the intention to kill the one innocent person, but rather to save the many others, in terms of which the former death is merely "foreseen" rather than intended. Actually, this seems like a bit of sophistry, as Edmonds later admits. If you push the fat man off the bridge, it is hard to say that you don't intend to kill him, given your understanding of the situation. And to a Utilitarian, none of that matters, since the one death is preferable to the multiple deaths otherwise. Having only one death is better than several. On the other hand, if the fat man fell and stopped the trolley without getting killed, we would rejoice; and this does mean in a sense that we were not aiming at the death of the fat man as such. So perhaps we can make a distinction between "foreseen" and intended; but in fact the linguistic scruple is beside the point.

Since anyone willing to push the fat man to his death is clearly thinking in teleological terms, it is unnecessary to split hairs and distinguish between what is "intended" and what is merely "foreseen." The "double" that counts in the case is not between two effects but between cause and effect, i.e. between the intended action, which may be killing, and the tended purpose or outcome, which is self-defense, on the one hand, or saving multiple lives, on the other. So what the issue really adds up to is a problem of means and ends, not of what is "foreseen" in terms of collateral damage or negative externalities. The death of the fat man is not "intended" only because the fat man's body is merely the means to saving the lives of the others, in which his death is likely; but then it is intended because pushing the fat man to probable death is the means that have been selected for our ends. If the fat man has a right not to be used for our edifying purposes, then the action would be wrongful, pushing him off the bridge is precluded, and we could not use it as the means to save the people on the tracks. Taking it upon ourselves to dispose of the life of the fat man violates a version of Kant's categorical imperative, for we have used the fat man as a means only and not as an end also. We have acted just as though we were pushing a sack of concrete or a pile of bricks onto the tracks.

I am not sure this clears things up quite enough. The principle of St. Thomas (and Foot) suffers from the same kind of problem that I have elsewhere considered in Roman Catholic ethics in general, namely the failure to make relevant distinctions. The "Double Effect" simply conceals a relevant distinction between means and ends. If I am being assaulted and intend to defend myself, this is the end and purpose of my actions. In order to defend myself, I must fend off the attacker, and I am morally and legally entitled to use sufficient force to do that, including deadly force. Now, it is an important moral principle that if one wills the ends, then one must will the means. Thus, my intention indeed is to use the force sufficient to fend off the attack. If this can be done without deadly force, fine, but deadly force is intended as much as any other kind of force to the extent necessary in the circumstances. And we must consider the case of a small woman being attacked by a large man. If she is armed, deadly force, used immediately, may be her only recourse to prevent rape and/or murder. She should not hestitate. Once the man has his hands on her, it will probably be too late. Thus, the scruple that we do not "intend" to kill the attacker in our self-defense is both false and beside the point. It is trying to introduce the wrong distinction, about whether something is "intended" or "foreseen," in a problem where another distinction is more appropriate.

What is missing in Edmonds in terms of these considerations, therefore, is a more profound analysis of means and ends. Although this relation is mentioned in the book, it is not given a thorough examination in its own right. And although the subtitle of the book includes the statement, "What Your Answer Tells Us about Right and Wrong," we actually seem to hear very little about "right and wrong," let alone that these terms apply particularly to acts or to means and not so much to ends or consequences, which we may call "good and bad." This obscures the moral terms of the situation and leaves the "Doctrine of Double Effect" as a relatively muddled principle. Fewer deaths will always be better. The problem is how that end is to be achieved; and taking action that kills someone who would not otherwise die is what raises moral alarm, not about the end or even the intention, but about the acceptable means that may be employed. Using someone against their (innocent) will, especially when their death results, is probably what repels the 90% of people who say they would not push the fat man. It does not need to be feeling or emotion for the fellow. It can be Kantian respect for his dignity and for his autonomy.

Edmonds' book is not a bad book, and I think it is very helpful and informative about the state of the discussion in academic philosophy on moral issues. However, it does reveal the shortcomings of these very debates and the manner in which fallacies of moral reasoning continue to be perpetuated. Edmonds does not even treat of the independent variation of intention and action, that the rightness or wrongness of action is independent of good or bad intentions. This cannot be from ignorance, since everyone knows that the path to Hell is paved with good intentions, but he does not consider the larger implications of that truth, which is part of the polynomic theory of value. Similarly, we see nothing of the dilemmas of good art that represents evil causes. In those terms, a book about moral dilemmas doesn't even open up such dilemmas in all their generality. For that, Dr. Edmonds needs the Friesian School.

Some Moral Dilemmas

Robert Heinlein (1907-1988), The Libertarian in the Lifeboat

The Polynomic Theory of Value

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Would You Kill the Fat Man? Note

While Kantian respect for other persons need have nothing to do with how we feel about them, it is noteworthy that serial killers characteristically seem lacking in any sympathy or fellow-feeling for their victims. Their callous lack of affect would seem to make it easier to treat others as things, and with murderous contempt. In those terms, it is perhaps not surprising that Confucius, who otherwise seems very Kantian in tone and substance, nevertheless holds that , "kindness," is the basis of all morality and that what this means is , "Love others" [Analects, XII:22].

What this can add to is our understanding of Kant's own moral typology, where different motives for right action not only may characterize different persons but actually serve to complement and reinforce each other in the same person. Thus, acting from principle to observe the dignity of other persons is good in itself, but "goodhearted impulse" and sympathy for others adds to the force of this. Hopefully, a rational moral understanding would prevent sympathy, in turn, from becoming uncritical and gullible about the needs of others. "Spare the rod and spoil the child," after all, has become public policy in the welfare state, which has blighted or ruined the lives of many people whom it was ostensively to help. Similarly, Kantian considerations of honor or prudence contribute what can be equally corrective of bad tendencies.

Consequently, it may not be the right idea to see sympathy as unrelated or opposed to Kantian duty. They are each needed for the best expression of the other. The last thing, we need, at the same time, is a drug that would reduce affect in the hope the people would be better Utilitarians. Since Edmonds would himself not push the fat man off the bridge, he is presumably not in the market for such a drug himself.

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