Abstract
S. Matthew Liao and Christian Barry argue that the patient-centered approach to deontology that I have developed—the restricting claims principle (RCP)—‘is beset with problems.’ They think that it cannot correctly handle cases in which a potential victim sits in the path of an agent doing what she needs to do for some greater good, or in which a person’s property is used to benefit others and harm her. They argue that cases in which an agent does what would be permissible but acts on a malicious reason show that agent intentions, rather than patientclaims, are fundamental to deontology. And they claim that the RCP presupposes the means principle in a way that shows that it is not really offering anything new. I argue here that all of these charges are mistaken. Doing so allows me to offer important refinements to the RCP, to highlight two common mistakes in reasoning about cases, and to set challenges for agentcentered approaches to deontology.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
Law and Philosophy 39 (2020): 503–526.
Gerhard Øverland, ‘Moral Obstacles: An Alternative to the Doctrine of Double Effect’, Ethics 124 (2014): 481–506; Alec Walen, ‘Transcending the Means Principle’, Law and Philosophy 33 (2014): 427–464; and ‘The Restricting Claims Principle Revisited: Grounding the Means Principle on the Agent-Patient Divide', Law and Philosophy 35 (2016): 211-247 (hereinafter RCPR).
New York: Oxford University Press, 2019.
Though Critique was published in 2020, over a year after MOC, our publications sailed past each other, like emails missing in the ether. Given that they submitted Critique for publication in 2018, I cannot blame them for not responding to MOC.
The one criticism in Critique that I do not address here is that I am too ready to dismiss intuitions as unreliable. Critique, pp. 517–521. I defend my methodology with regard to intuitions in MOC, pp. 21–22, and I stand by that discussion. I admit here, however, that there were instances in which I was too ready to accept a counter-intuitive position because I was making a substantive mistake. I try to clear up those mistakes here.
Øverland used the term ‘costs’; in earlier work, I referred to them as the patient-analog of the externalities an agent might impose on others. For simplicity, I here adopt his term.
MOC, p. 87.
For convenient pronoun reference, I treat the generic agent as female and the generic patient as male.
I argue that negative patient-claims are stronger than positive ones, all else equal, in MOC, pp. 58–59.
I defend the idea that claims can aggregate in this way in MOC, pp. 50–52.
She is not required to turn it because she has her own agent-claim not to have to act as a tool that responds to the balance of patient-claims on her.
MOC, pp. 90–92. One mistake I made in an earlier treatment of the case, connected to my defense of a counter-intuitive position, was to offer squeamishness as the source of an error theory. RCPR, p. 246. Given my current substantive views, it can be cast aside as an unfortunate error.
Critique, p. 509, n. 17.
Critique, pp. 523–524.
For the complement to this case, one showing that property claims over one’s body can be as weak as those over a tool, see Massive Man Tool, MOC, p. 92.
MOC, p. 93 (I now use ‘tightness’ rather than ‘directness’ of the connection).
If competing interests are strong enough, it may be morally permissible to use a person as a means even at the cost of his life. But permissibility then registers as a matter of threshold deontology, outside what I call ‘the space of rights.’ MOC, ch. 4, § 3.
MOC, p. 93. The other person would have to be one who didn’t have a special claim on the owner, that she use it on his behalf, such as a child who needs the drug owned by her parent.
RCPR, p. 231.
RCPR, p. 232.
Critique, p. 524. They also criticize it on the ground that I appeal to his purpose in owning the tool, which they think is inconsistent with a patient-centered account. Ibid, p. 523. In my new version, I no longer appeal to his purpose in owning the tool, only his need for it. But see section IV below on why it is not a problem for me to appeal to intentions or purposes in some ways.
MOC, pp. 127–134.
They call the case Enemy 10,000 to 1. Critique, p. 512.
Critique, p. 524–525. Part of their argument focuses on an Øverland case called Armor. I will say here only that they fail to appreciate how having a successful restricting claim imposes costs that give rise to duties that others, who have imposed no such costs, would not have.
MOC, p. 87.
An anonymous reviewer for Law and Philosophy asks if this focus on autonomy implies that infants, who lack autonomy, may be used as a means. I think animals, because they lack autonomy, may be so used; their claims are limited to restricting and empowering claims based on their welfare interests. But there is good reason to grant infants property rights, on the ground that they can be expected to grow to have autonomous moral agency. For those marginal humans who cannot be expected to become autonomous, I think we also have reason to treat them with most of the same protections, but it is a reason grounded in our sentimental attachment to them, not in their intrinsic moral status.
See MOC, pp. 47 and 115.
Critique, p. 526.
Acknowledgment
I would like to thank Kimberly Ferzan and an anonymous reviewer at Law and Philosophy for very helpful comments on earlier drafts.
Author information
Authors and Affiliations
Corresponding author
Additional information
Publisher's Note
Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.
Rights and permissions
About this article
Cite this article
Walen, A. In Defense of Patient-Centered Theories of Deontology: A Response to Liao and Barry. Law and Philos 41, 627–638 (2022). https://doi.org/10.1007/s10982-021-09412-y
Accepted:
Published:
Issue Date:
DOI: https://doi.org/10.1007/s10982-021-09412-y