Reading the article and filling the form.

CONDUCT AND CHARACTER

Readings in Moral Theory

FIFTH EDITION

Mark Timmons University of Arizona

THOMSON .j.,.,...

\NADSVVORTH

Australia • Canada • Mexico • Singapore • Spain United Kingdom • United States

Copyright 2006

i4 ST. THOMAS AQUINAS

all things seek after{Hence, this is the first precept of law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based upon this; so that all the things which the practical reason naturally appre- hends as man's good belong to the precepts of the natural law under the form of things to be done or aVOided.)

Since, however, good has the nature of an end, and evil, the nature of the con- trary, hence it is that all those things to which man has a natural inclination are naturally apprehended by reason as being good, and as objects of pursuit, and their contraries as evil, and objects of avoidance Therefore, the order of the precepts of the natural law is according to the order 0 n tural inclination9 For there is in man, first of all, an inclination to good in accordance with tne nature which he has in common with all substances, inasmuch, namely, as every substance seeks the preservation of its own being, according to its nature; and by reason of this inclination, whatever is a means of preserving human life, and of warding off its obstacles, belongs to the natural law. Secondly, there is in man an inclination to things that pertain to him more specially, according to that nature which he has in common with other animals; and in virtue of this inclination, those things are said to belong to the natural law which nature has taught to all ani- mals, such as sexual intercourse, the education of offspring, and so forth. Thirdly, there is in man an inclination to good according to the nature of his reason, which nature is proper to him. Thus man has a natural inclination to know the truth about God, and to live in society; and in this respect, whatever pertains to this inclination belongs to the natural law: e.g., to shun ignorance, to avoid offending those among whom one has to live, and other such things regarding the above inclination ....

All these precepts of the law of nature have the character of one natural law, inasmuch as they flow from one first precept ....

Whether the Natural Law is the Same in All Men? ... As We have stated above, to the natural law belong those things to which a man is inclined naturally; and among these it is proper to man to be inclined to act according to reason. Now it belongs to the reason to proceed from what is com- mon to what is proper .... The speculative reason, however, is differently situated, in this matter, from the practical reason. For, since the speculative reason is con- cerned chiefly with necessary things, which cannot be otherwise than they are, its proper conclUSions, like the universal principles, contain the truth without fail. The practical reason, on the other hand, is concerned with contingent matters, which is the domain of human actions; and, consequently, although there is neceSSity in the common principles, the more we descend towards the particular, the more frequently we encounter defects. Accordingly, then, in speculative mat- ters truth is the same in all men, both as to principles and as to conclUSions; althOugh the truth is not known to all as regards the conclusions, but only as regards the principles which are called common notions. But in matters of action, truth or practical rectitude is not the same for all as to !? p;!!"Qcular, but only

THE NATURAL LAW THEORY 65

as to the common principles; and where there is the same rectitude in relation to particulars, it is not equally known to all.

It is therefore evident that, as regards the common principles whether of speculative or of practical reason, truth or rectitude is the same for all, and is equally known by all. But as to the proper conclusions of the speculative rea- son, the truth is the same for all, but it is not equally known to all. Thus, it is true for all that the three angles of a triangle are together equal to two right angles, although it is not known to all. But as to the proper conclusions of the practical reason, neither is the truth or rectitude the same for all, nor, where it is the same, is it equally known by all. Thus, it is right and true for all to act according to reason, and from this principle it follows, as a proper conclusion, that goods entrusted to another should be restored to their owner. Now this is true for the majority of cases. But it may happen in a particular case that it would be injurious, and therefore unreasonable, to restore goods held in trust; for instance, if they are claimed for the purpose of fighting against one's coun- try. And this principle will be found to fail the more, according as we descend further towards the particular, e.g., if one were to say that goods held in trust should be restored with such and such a guarantee, or in such and such a way; because the greater the number of conditions added, the greater the number of ways in which the principle may fail, so that it be not right to restore or not to restore.

Consequently, we must say that the natural law, as to the first common princi- ples, is the same for all, both as to rectitude and as to knowledge. But as to cer- tain more particular aspects, which are conclusions, as it were, of those common principles, it is the same for all in the majority of cases, both as to rectitude and as to knowledge; and yet in some few cases it may fail, both as to rectitude, by reason of certain obstacles (just as natures subject to generation and corruption fail in some few cases because of some obstacle), and as to knowledge, since in some the reason is perverted by passion, or evil habit, or an evil disposition of nature. Thus at one time theft, although it is expressly contrary to the natural law, was not considered wrong among the Germans, as Julius Caesar relates.

THE ETHICS OF NATURAL LAW C. E. Harris

C. E. Harris is professor of philosophy at Texas A &> M University, In the selection below he presents a version of the natural-law theory, including a discussion of the principle of double effect, which plays an important role in modern natural-law thinking.

From Applying Moral Theories, 3rd edition by Harris © 1997, Reprinted with permission of Wadsworth, a division of Thomson learning:

00 L. 1::.

The Natural-Law Moral Standard WHAT IS NATURAL LAW?

The name natural law can be misleading. It implies that ethical laws are like "laws of nature" or scientific laws. An example of a scientific law is Boyle's law in physics, which states that the product of the pressure and the specific volume of a gas at constant temperature is constant. But scientific laws are descriptive; they state how phenomena in nature do in fact always behave. Ethical laws, on the other hand, are prescriptive; they stipulate how people should behave, whether or not they do so. Natural-law theorists assume that human beings have free will and that they can decide whether to act as they ought to act. This discussion implies that the word law has more in common with civil laws than with natural laws, because both civil and ethical laws can be disobeyed. Natural phenomena presumably always act according to the laws of nature, whereas people are not necessarily compelled to behave legally or morally.

But the analogy with civil laws can also be misleading, for the point of the term natural is to contrast ethical laws with the laws of governments. When the Roman jurists were looking for legal concepts that could apply throughout the Roman empire, they turned to the philosophy of natural law precisely because it proposed that certain ethical laws are "natural" rather than "conventional;" that is, they apply equally to all human beings, regardless of the conventions, customs, or beliefs of their particular society. These natural laws for all human behavior thus could serve as a basis for judging the actions of people throughout the Roman empire. Therefore we can say that natural law refers to ethical guidelines or rules that stipulate what people ought to do rather than what they in fact do and that apply equally to all humanity because they are rooted in human nature itself.

The term natural law can be misleading because it inevitably brings to mind some kind of ethical legalism-the belief that hard-and-fast gUidelines cover every possible detail of conduct. This characterization, however, is unfair to the natural-law tradition. The greatest exponent of natural law, Thomas Aquinas (1225-1274), believed that the basic outlines of proper human behavior are rela- tively clear. But he also taught that, the closer we come to particular moral judg- ments, the more prone we are to error and the more room we make for differences of opinion. Some contemporary natural-law theorists even believe that natural law has a historical dimension, so that what is right in one epoch may not be right in another. Whether or not this view is accepted, the lively discussions of ethical issues in the Roman Catholic Church, where natural-law thinking is especially prominent, show that natural-law theorists by no means believe that all ethical problems have already been solved. The word law merely refers to the prescrip- tive character of the rules that should govern human behavior.

The natural-law theorist does, however, believe in an objective standard for morality: Moral truth exists just as scientific truth exists. The natural-law theo- rist cannot be a radical ethical relativist or an ethical sceptic .... He generally believes we know the basic outlines of this standard, but this belief does not mean we have interpreted the implications of this standard correctly in every case. In ethics, as in science, human beings continually search for truth. The belief in

THI:: NAIURAL LAW IHI::UKY of

objective truth should be no more stifling of human freedom and creativity in . ethics than it is in science.

Human Nature and Natural Inclinations

What is that standard of truth in ethics? As an approximation we can say that the standard is human nature. People should do whatever promotes the fulfillment of human nature. How then do we determine what human nature is?

Let us consider some anafogous situations that difficulty in describing human nature. We often find it useful to describe something's nature in terms of its function, the purpose it serves. For example, we can describe the nature of a pencil in terms of its function of enabling humans to make marks on paper. A "good" pencil is one that performs this function well, without smudging or scratching or breaking, for example. Similarly, if an automobile's function is to provide transportation, a good automobile is one that provides comfortable and reliable transportation. The function of a tomato plant is to produce tomatoes, and a good tomato plant is one that produces many high-quality tomatoes.

We can also determine the function of human beings if we confine a person to one particular social role. The function of a farmer is to grow food, and a good farmer produces food efficiently and with proper care for the animals and the land for which he has responsibility. By similar reasoning we can say that a good father is one who attends diligently to his children's welfare. But now let us take human beings out of their social roles and ask simply "What is the function of a human being?" Here we see the problem faced by those who attempt to base ethics on human nature. Generally speaking, the more complex the animal, the more varied its behavior and presumably the less clearly defined is its function. The freedom of action possessed by human beings makes it plausible to argue, as some philosophers have, that human beings are characterized precisely by the fact that they have no set nature or function. How can we make sense out of nat- ural law in the face of these problems?

Fortunately we can take another, more promising approach to discovering what human nature is like. One way to determine a thing's characteristics is to observe its behavior. In chemistry, we learn about the nature of iron by observing how it reacts with other elements. Perhaps we can find out what human nature is like by ascertaining those "natural inclinations," as Aquinas put it, that human beings have in common. To phrase it another way, perhaps we can discover what human nature is by identifying those goals that human beings generally tend to seek. These values would presumably reflect the structure of our human nature, which natural law directs us to follow. Therefore we shall propose the following statement as the moral standard of natural law:

MS: Those actions are right that promote the values specified by the natural inclina- )j,... tions of human beings.

How do we find out what these natural inclinations are? We might first consult psychologists, sociologists, or anthropologists. Some contemporary natural-law

7

6766

theorists use studies from the social sciences to defend their conclusions. However, the natural-law tradition developed before the rise of the social sciences, and a more informal method of observation was used to discover the basic human incli- nations. Most natural-law theorists would maintain that these observations are still valid. We can divide the values specified by natural human inclination into two basic groups: (1) biological values, which are strongly linked with our bodies and which we share with other animals, and (2) characteristically human values, which are closely connected with our more specifically human aspects. (We will not call this second group uniquely human values because some of the inclinations that point to these values, such as the tendency to live in societies, are not unique to human beings.) We can summarize the values and the natural inclinations that point to them as follows:

1. Biological Values a. Life-From the natural inclinations that we and all other animals have to

preserve our own existence, we can infer that life is good, that we have an obligation to promote our own health, and that we have the right of self- defense. Negatively, this inclination implies that murder and suicide are wrong.

b. Procreation-From the natural inclination that we and all animals have to engage in sexual intercourse and to rear offspring, we can infer that pro- creation is a value and that we have an obligation to produce and rear chil- dren. Negatively, this inclination implies that such practices as steriliza- tion, homosexuality, and artificial contraception are wrong.

2. Characteristically Human Values a. Knowledge-From the natural tendency we have to know, including the

tendency to seek knowledge of God, we can infer that knowledge is a value and that we have an obligation to pursue knowledge of the world and of God. Negatively, this inclination implies that the stilling of intellectual curio- sity and the pursuit of knowledge, inclUding the pursuit of the knowledge of God, is wrong. It also implies that a lack of religion is wrong.

b. Sociability-From the natural tendency we have to form bonds of affec- tion and love with other human beings and to form groups or societies, we can infer that friendship and love are good and that the state is a nat- ural institution and therefore good. We thus have an obligation to pursue close relationships with other human beings and to submit to the legiti- mate authority of the state. We can also infer that war can be justified under certain conditions if it is necessary to defend the state. Negatively, this inclination implies that activities that interfere with proper human relationships, such as spreading slander and lies, are wrong. Actions that destroy the state's power are also wrong, so natural law finds a basis for an argument against revolution and treason, except when the state is rad- ically unjust.

These natural inclinations are reflections of human nature, and the pursuit of the goods they specify is the way to individual fulfillment. Aquinas himself makes

THE NATURAL LAW THEORY 69

it clear that his enumeration of basic values, which closely parallels our account, is incomplete; other natural-law theorists have expanded the list to include such things as play and aesthetic experience. However, the list given here has had the greatest historical influence, and we shall assume it is basically complete.

The more important issue raised by this list is the potential for conflict between the various values. What should we do when our need to defend our- selves requires that we kill someone else? What should we do when sterilization is necessary to prevent a life-threatening pregnancy? What should be done when contraception seems necessary to limit family size so that families can properly educate the children they already have? In each of these examples, one aspect of natural law seems to conflict with another, and the question arises whether these values have a hierarchy on which a decision can be based. The answer to this question brings into focus one of the most important and controversial aspects of natural law-namely, its moral absolutism.

Moral Absolutism and Its Qualifying Principles MORAL ABSOLUTISM

Suppose you are on a military convoy from the United States to England during World War II. Your ship is attacked and sunk. Your life raft is carrying twenty- four persons, although it was designed to carry only twenty. You have good rea- son to believe that the raft will sink unless four people are eliminated, and four people on board have been so seriously injured in the catastrophe that they are probably going to die anyhow. Because no one volunteers to jump overboard, you, as the ranking officer on the boat, decide to have them pushed overboard. Are you morally justified in doing so? Many of us would say that under the circumstances you were, but natural-law theorists would say that you were not justified, even if everyone on the raft would have died otherwise.

Consider another wartime example. Suppose you know that some prisoners have information that will save a large number of lives. The only way to obtain the information is to threaten to kill the prisoners, but you know that they will not reveal what they know unless your threat is absolutely serious. To show them how serious you are, you have another prisoner, who has done nothing to deserve death, shot before their eyes. As a result of your action, the information is revealed and many lives are saved. Is this action justified? Many people would say that under these extreme circumstances it is justified, but natural-law theorists would say that it is not.

These examples point out one of the most Significant aspects of natural-law the- ory: its absolutism. Moral absolutism can refer either to the belief that some objective standard of moral truth exists independendy of us (what we have referred to as moral realism) or to the view that certain actions are right or wrong regardless of their con- sequences. Natural law is an absolutist moral theory in both senses, but the second meaning of absolutism is highlighted by our wartime illustrations. Natural-law the- orists believe that none of the values specified by natural inclinations may be directly violated. Innocent people may not be killed for any reason, even if other innocent people can thereby be saved. The procreative function that is a part of our biological

nature may not be violated by such practices as contraception and sterilization, even if these practices are necessary to preserve other values, such as a childs education or even the mothers life. Similarly; homosexuality violates the value of procreation and is prohibited, even if it is the only kind a person can enjoy.

Natural-law theorists believe that basic values specified by natural inclinations cannot be violated because basic values cannot be measured or compared; that is, basic values cannot be quantified or measured by some common unit, so they cannot be traded off for one another. For example, we cannot divide the good of knowledge into units of value and the good of procreation into units of value so that the two can be compared on a common scale. Nor can the good of a single life be compared with the good of several lives; thus we cannot say that a single life may be sacrificed to preserve many other lives. This idea is sometimes called the "absolute value" or "infi- nite value" of a human life, suggesting that a human life cannot be weighed against anything including another human life. Natural-law theorists also make this point by saying that basic values are incommensurable. Because we cannot measure values, we cannot calculate which consequences of an action are more important. Therefore consequences cannot be used to determine the moral status of actions.

Another characteristic of natural law is that it is nonconsequentialist in char- acter, even though it may not rule out consideration of consequences. Natural- law theorists insist that moral judgments must include an evaluation of the intentions ofthe person performing the action. The intention of an action is what a person wants to accomplish or "has in mind," as we say; in performing the action. For example, a person can give money to charity because he wants a good reputation in the com-

The consequences of the action are good, but the person's intention is not morally praiseworthy. Some moral philosophers distinguish between a moral eval- uation of the action and a moral evaluation of the intention of the person perform- ing the action. Using this distinction, we can say that the action of giving money to charity is praiseworthy; but the person giving the money is not to be commended, because his intention was not praiseworthy.

QUALIFYING PRINCIPLES

Because values are incommensurable and may not ever be directly violated, we may find ourselves in a moral dilemma in which any action we could perform vio- lates some value and hence is immoraL For example, self-defense may sometimes require that we override the natural inclination of another human being to self- preservation. If we do nothing, we allow ourselves to be killed; if we defend our- selves, we kill someone else. To avoid the paralysis of action, natural-law theorists have developed two principles that are crucial in making moral judgments: principle of forfeiture and the principle of double effect.

THE PRINCIPLE OF FORFEITURE

According to the principle of forfeiture, a person who threatens the life of an inno- cent person forfeits his or her own right to life. (An innocent person is one who has not threatened anyone's life.) Suppose you are a pioneer tilling his land one morning when two men approach you and say they are going to kill you and your family in order to take your land. Is it morally permissible for you to defend

Hit: NA1 UKAL LAW 11:1J:.URY 71

yourself, even to the point of killing them? Natural-law theorists answer the ques- tion in the affirmative. Even though you might have to kill your would-be assailants, they have forfeited their innocence by unjustifiably threatening your life. Therefore, they have forfeited their claim to have their natural inclination to self-preservation respected. We can make this point by distinguishing between killing and murder. Killing is taking the life of a noninnocent person, whereas murder is taking the life of an innocent person. When you take the life of a person who is attempting to kill you, you are killing him but not committing murder.

The principle of forfeiture can be used to justify not only acts of individual self- defense but also war and capital punishment. A defensive war may be under certain conditions, even though it involves killing other people, because the aggressors have forfeited their right to life. Similarly, murderers may justly be put to death because they have forfeited their right to life by killing others.

THE PRINCIPLE OF DOUBLE EFFECT

According to the principle of double effect, it is morally permissible to perform an action that has two effects, one good and the other bad, if the follOwing criteria are met:

1. The act, considered in itself and apart from its consequences, is good, or at least morally permissible. An act of murder violates this criterion because murder is bad in itself and apart from its consequences.

2. The bad effect cannot be avoided if the good effect is to be achieved. The moral significance of this criterion lies in the belief that if an alternative method that does not produce the bad effect is available and not used, we must assume that the bad effect was intended. This criterion illustrates the important place that consideration of intent has in natural law. An action with improper intent is morally unacceptable even if it does not otherwise violate natural law. Another test must be passed, however, before we can say that an action is unintended. It is embodied in the next criterion.

3. The bad effect is not the means of producing the good effect but only a side effect. If the bad effect is a necessary means of achieving the good effect, the bad effect must be intended along with the good effect for which it is a necessary means, so the action is morally impermissible. This criterion also illustrates the importance of intention in natural law.

4. The criterion of proportionality is satisfied, in that the good effect and the bad effect are more or less equally balanced in importance. If the bad effect of an action is far more significant than any good effect, the action should not be done, even if the other criteria are met.

If these four criteria are met, the violation of a fundamental value may be con- sidered as indirect rather than direct. Although we may still be said to bring about an evil, we cannot be said to do an evil, according to natural law. The best way to explain the principle of double effect is by example, so let us consider several , applications.a"

70

In the first example, a pregnant woman who has tuberculosis wants to take a drug that will cure her disease, but the drug also has the effect of aborting the fetus. Is taking the drug morally permissible? The principle of double effect jus- tifies taking the drug in this case, because all four of its conditions are met.

First, the act of taking the drug to cure a disease is itself morally permissible. In fact, considered in itself and apart from its consequences, it is morally obliga- tory for the mother to take the drug, for she is obligated to do what she can to preserve her own life.

Second, if we assume that the drug is the only one that will cure the disease and that the mother cannot put off taking the drug until after the baby is born, then the bad effect is unavoidable. By this criterion, then, the death of the child is not intended. We must clarify here what natural-law theorists mean. The bad effect is certainly foreseen; the woman knows the drug will produce an abortion. But an effect may be foreseen without also being intended, that is, without being the goal of the action. Ifanother drug were available that would cure her tuberculosis with- out causing the abortion, presumably the woman would take it. Otherwise, it would be difficult to argue that she did not intend to have an abortion.

Third, the bad effect is not the means of achieving the good effect. An abortion is not a necessary step in curing a person of tuberculosis; rather, it just happens that the only drug that will cure the woman also causes an abortion. The abortion is an unfortunate and unintended side effect, due to the particular nature of the drug.

Fourth, a proportionally serious reason exists for performing the abortion. The death of the fetus is at least balanced by the saving of the mother's life. If the bad effect were serious (as in this case), but the good effect were relatively insignifi- cant, the action would not be justifiable by the principle of double effect, even if the other conditions were met.

The criterion of proportionality is an exception to the earlier statement that values are incommensurable and that human lives cannot be weighed against one another. We have seen that it may also be considered an exception to the claim that consequences are not considered moral evaluation. Here, consequences do playa part in natural-law reasoning. But note that consequences can be consid- ered only when the other three conditions have been met. A more accurate state- ment, therefore, is that in natural-law theory, the consideration of consequences occupies some place in moral evaluation, but they are of secondary importance.

Two other examples will further illustrate how the principle of double effect functions. Suppose I want to turn on a light so that I can read a book on ethics, but I know that throwing the switch on the wall that turns on the light will result in the electrocution of a workman on the floor below. Is it morally permissible to throw the switch?

First, turning on a light to read a book on ethics is in itself a permissible-even praiseworthy-action.

Second, the bad effect is unavoidable if the good effect is to be achieved. If another light could be turned on and I deliberately failed to use it, knowing the consequence is the death of the workman, then I cold not argue that I did not intend to kill the workman.

1HI: NA1UKAL LAW 1HI:UKY f.j

Third, the bad effect (killing the workman) is not a means to reading philoso- phy but rather only an unfortunate and unintended side effect. Killing someone is not ordinarily a consequence of turning on a light.

But the fourth condition of the principle of double effect is not satisfied. The killing of a human being is not outweighed by the value of reading a book on ethics. Therefore, turning on the light is not justified by the principle of double effect.

Consider another example. In the process of attempting to deliver a fetus, a physi- cian discovers that the fetus is hydrocephalic. The fetus's large cranium makes nor- mal vaginal delivery impossible; both the woman and the fetus would die in the attempt. Neither the mother nor the fetus would survive a cesarean section, so the only way to save the mother'S life is to crush the skull of the fetus (craniotomy), thus rendering a vaginal delivery of the stillborn fetus possible. Would the craniotomy be justifiable by the principle of double effect?

First, the act of attempting to save the mother's life is morally permissible, even commendable.

Second, there is no way to save the mother's life except by killing the fetus. The bad effect cannot be avoided if the good effect is to be achieved.

Third, the bad effect can only be seen as the means of producing the good effect. It makes not sense to talk about crushing the head of the fetus without also killing it. Because the death of the fetus must be considered the means of

..1 achieving the good effect, the third criterion is not satisfied. Each of the four cri-., teria must be met for the action to be permissible, so we already know that the craniotomy is impermissible. However, for the sake of completeness, we shall consider the fourth criterion.

Fourth, both the fetus and the mother will die if the abortion is not performed; thus, the criterion of proportionality is satisfied. But because the third criterion is not met, the craniotomy may not be performed, and the fetus and mother must both die.

Natural-law theorists admit that this is a tragic case, and various attempts have been made to justify the craniotomy on other grounds. For example, some natural- law theorists argue that the principle of forfeiture can be invoked, because the fetus should be considered an aggressor on the life of the mother. Even though

) , .the fetus is innocent of any conscious motive to harm its mother, the actual effect - of its growth is to threaten the mother's life. Natural-law theorists sometimes say v /' that the fetus, having no malicious intent, is subjectively innocent but not objec- tively innocent, because it does threaten the other's life. Whether this argument "

•111 justifies an abortion will be left for you to decide .

Applying the Ethics of Natural Law We can now apply natural law to some cases involving moral decision ....

CASE 1: AIDS AND CONDOMS

Let us consider the controversy over the use of condoms as a way to prevent AIDS ...

72

Because of the different moral issues that arise in various instances of the use of condoms to prevent AIDS, it will be helpful to treat first the use of condoms to prevent AIDS in heterosexual vaginal intercourse between married couples and then to consider all other uses of condoms to prevent AIDS. We shall refer to this first category of sexual relations as procreative intercourse, because married cou- ples would have intercourse in a context in which procreation would be justified from the standpoint of natural law. Natural-law theorists hold that the natural mode for producing children for human beings is in the context of monogamous heterosexual marriage. Other sexual relationships would include nonvaginal inter- course between married partners, vaginal and nonvaginal intercourse between unmarried heterosexual partners, and oral and anal intercourse between homo- sexual partners. We shall refer to this second category of sexual relations as non- procreative intercourse, because the mode of intercourse is incapable of producing children, or the partners would probably not wish to produce them. To sharpen the issue further, we shall focus on the morality of actually using condoms rather than the morality of advocating the use of condoms.

1. The use of condoms is an "artificial" mode of contraception and a violation of the natural tendency to procreation. Therefore, it is morally illegitimate unless the principles of forfeiture or double effect can be invoked.

2. The principle of forfeiture is inapplicable to either procreative or nonpro- creative intercourse. A person with AIDS has done nothing worthy of death, so he has not forfeited his own right to life.

3. If the use of condoms to prevent AIDS is morally permiSSible, it must be because the principle of double effect is satisfied.

Let us begin by considering procreative intercourse. To apply the principle of double effect, we must describe the action and its effects. In this case, the action is the use of condoms in marital vaginal intercourse. The good or morally desir- able effect is the prevention of the transfer of the HIV virus. The bad effect is the prevention of conception.

a. Married couples who have a long-standing monogamous relationship would not need to use condoms, but we can consider a newly married couple, where one or both of he partners had been sexually active before marriage. Here the use of con- doms would be desirable to prevent the spread of the HIV virus, assuming the cou- ple had not taken the test for its presence, or the test is not reliable, or some suspi- cion exists that the couple might still be sexually active outside the marriage. Although sexual activity outside the marriage cannot be justified by natural law, the use of condoms in marital intercourse is a different issue.

If it makes sense to consider the use of condoms apart from the consequence of preventing conception or the transmission of the HIV virus, then we should consider the action in itself morally permissible.

b. If one partner has the HIV virus, or there is a suspicion that he or she has, then the bad effect of using condoms can be avoided while achieving the good

L1.1... V.nI1.J... 1....C'1..VY 1. (J

effect only by refraining from intercourse altogether. Because natural-law theo- rists usually consider intercourse an obligation of married partners, this alterna- tive is not acceptable. Therefore, if there is reason to believe a partner might have the HIV virus, the use of condoms might be considered unavoidable.

c. The application of the third criterion is controversiaL The prevention of conception is not, strictly speaking, the means of controlling the spread of AIDS. Condoms are used to prevent the entrance of the HIV virus into the other part- ner's body, not to prevent conception. From this perspective, the use of condoms might appear morally permissible. However, in attempting to control the spread of the HIV virus, the transmission of all bodily fluids from one sexual partner to the other must be stopped-including sperm, which carry the virus. Hence, the prevention of the transmission of sperm (and therefore the prevention of concep- tion) must be a part of the means employed. So the use of condoms in hetero- sexual vaginal intercourse by a married couple would seem to violate the third criterion.

d. If we consider the risk of loss of life through HIV infection a greater evil than the violation of moral principles involved in the use of condoms, then the principle of proportionality is satisfied. Because criterion c is violated, procreative intercourse, using condoms to prevent AIDS, is morally impermissible.

Now let us consider nonprocreative intercourse in its various forms. To apply the principle of double effect, we must again describe the action and its effects. In this case, the action is the use of condoms in nonprocreative intercourse. The good or morally desirable effect is the prevention of the transfer of the HIV virus. The bad effect is the provision of a degree of safety that allows nonprocreative intercourse to occur more easily. That is, the bad effect is the encouragement of promiscuity.

a. The use of condoms, considered in itself and apart from its consequences, will again be considered morally pennissible.

b. The transmission of the HIV virus can be prevented by refraining from non- procreative intercourse, so the bad effect is not unavoidable in promoting the good effect.

c. The proviSion of an environment in which intercourse that is impermissi- ble from natural law's standpoint can more easily take place is a means of pre- venting the spread of the HIV virus. Therefore, the bad effect is a means to the good effect.

d. If we consider the risk of loss of life through HIV infection a greater evil than the violation of moral principles involved in the use of condoms, then the principle of proportionality is satisfied. Because criteria band c are violated, non- procreative intercourse with condoms is also morally impermissible.

4. We can conclude that the use of condoms to prevent AIDS is morally imper- missible in both procreative and nonprocreativeintercourse.

74

\....;.1.... J..l.I"!t.J.'\.J.'\.J.'-'

CASE 2: THE MORALITY OF OBLITERATION BOMBING

During World War II, both the Germans and the Allied Forces bombed civilian residential areas, a practice called "obliteration bombing." Probably the two most famous examples of this practice, in which conventional explosives were used, were the German bombing of London and the Allied bombing of Dresden, Germany. Let us confine ourselves to the fire bombing of Dresden and ask whether this action was permissible by the principles of natural law.

1. The focus must be on the killing of civilians in Dresden. This feature of the action makes it an apparent violation of natural-law morality. Hence, we must ask whether the principles of forfeiture and double effect serve to make the bombing morally permissible.

2. The principle of forfeiture raises the conceptual problem of whether the civilians in Dresden should be considered innocent. If we assume that the cri- teria of just-war theory were met-that is, the Allied Forces were fighting a just war and the Germans were not fighting a just war-then the Germans in uni- form were noninnocent, and attacking them was morally justified. But most civilians in large cities were connected with the war effort in a very indirect way. Unless civilians are employed in the production of military hardware, most nat- ural-law theorists would probably count them as innocent. Many Germans may have had little direct knowledge of the reasons for the war; in a nondemocratic state, they certainly had no part in starting it. Therefore, the civilians in Dresden should be considered innocent, and the principle of forfeiture does not justify the bombing.

3. Some have argued that an appeal to the principle of double effect could jus- tify the bombing. According to this argument, the direct and intended effect of the bombing was to destroy war industries, communications, and military installa- tions, whereas the damage to civilian life was unintentional and indirect. But a careful analysis of the conditions of the bombing will not sustain this argument.

a. We shall consider the action under analysis to be the bombing of Dresden, the good effect to be the shortening of the war, and the bad effect to be the deaths of innocent civilians. Bombing an enemy city cannot be said to be intrinsically immoral. We have shown that war can be justified by natural law, and we shall assume that the Allied cause could be defended by just-war criteria. Therefore, the Allies had a right to attack German cities.

b. Let us assume that there was no other way to shorten the war except by bombing cities. If the desirable end is described as "shortening the war," bombing the cities would be unavoidable in achieving that end, so the second criterion of the principle of the double effect is met.

c. The third criterion asks whether the bad effect-namely, killing innocent civilians-was a means to the good effect. Destroying German morale through terror was, on the testimony of military documents themselves, an object of the bombing. And the means of inducing terror and consequent demoralization was

-.LflI:. .L..t'\.VV In.r:.v.n.l II

the deaths of innocent civilians. Therefore, the third condition of double effect is not met.

d. We can also question the allegation that the principle of proportionality was satisfied by the belief that obliteration bombing would shorten the war. That goal was speculative, futuristic, and problematic, whereas the evil effect was definite, immediate, and widespread. Thus, we shall conclude that this criterion is also not met and that the principle of double effect does not apply.

4. Because the allied attack on Dresden involved the destruction of innocent human life, and because the principles of forfeiture and double effect do not excuse it, we must conclude that the action was morally impermissible by natu- ral-law theory.

CASE 3: THE SUPPRESSION OF GALILEO

Galileo Galilei (1564-1642) has a strong claim to the title of founder of modem science. At first he accepted the Ptolemaic theory that the sun and planets revolved around the earth. But his invention of the telescope and the discovery of the satel- lites ofJupiter led him to confess his adherence to the Copernican system in 1610. In 1616, the Office of the Holy Inquisition took the important step of entering the works of Copernicus on the list of forbidden books and declaring his teaching heretical. In 1632, Galileo published his Dialogue on the Two Principal Systems oj the World, in which he contrasted the Ptolemaic and Copernican systems of astron- omy. He thought that, if he merely gave an "objective" account of the differences between the two systems, he would not offend the Inquisition and would thereby avoid persecution.

Galileo's sympathies with the Copernican system were all too evident, howev- er, and the Inquisition banned his book and summoned him to Rome for a hear- ing. After being threatened with torture, Galileo was forced, on June 22, 1633, to go down on his knees and renounce the doctrine that the earth revolves around the sun and to swear that he would cease any further promotion of Copernican astronomy. He lived for several more years under conditions of virtual house arrest but was still able to produce his greatest scientific book. However, the spec- tacle of Galileo's persecution inhibited the advance of science. Can the silencing of Galileo be justified by the principles of natural law?

1. This issue raises the problem of how to properly promote the natural incli- nation to know. Natural law requires that we promote the natural inclination of humans to know, but the question is how best to accomplish this. The leaders of the Inquisition would no doubt have described their action of silencing Galileo as promoting the inclination to know, arguing that they were defending truth against error by defending the astronomical system that seems to be in agreement with Holy Scripture. From our perspective, their action should probably be described as obstructing the inclination to know by silencing free inquiry, which we regard as essential to the discovery of truth.

What is implied by the natural-law requirement to promote knowledge, defending the truths of Holy Scripture or defending free inquiry? In Galileo's

76

''''

time, there were different conceptions of the authority of Scripture in science and the value of free inquiry, and it is not clear that contemporary views are an appropriate basis for evaluating actions that took place centuries ago. However, adopting the contemporary perspective is probably more instructive for us today, so I shall assume that the proper way to promote the natural inclination to know is to promote free inquiry. However, I shall also assume that from the natural-law viewpoint, protecting Holy Scripture has some value as well. Because suppressing free inquiry by this account, a violation of a natural inclination, the only way to avoid the conclusion that the Inquisition's action was morally impermissible is to find an excusing condition in one of the two qualifying principles.

2. Galileo had not threatened anyone's life; he had done nothing to forfeit his own right to life. This consideration is important, because Galileo was threatened with torture and possible death. Natural-law theorists might argue that a person can do other things to forfeit his status as an innocent person, such as teach heretical doctrines that endanger the souls of others. However, this point presup- poses that Galileo was wrong, so I shall assume that the principle of forfeiture is not relevant.

3. To analyze the action of the leaders of the Inquisition from the standpoint of the principle of double effect, we must be able to distinguish an action, a good effect, and a bad effect. The action, as we have described it, was forcing Galileo to renounce his adherence to Copernican astronomy. The good effect was promot- ing Scripture's authority. The bad effect was denying individual freedom to state one's views and seek truth. Can the action of the Inquisitors be justified by the principle of double effect?

a. Forcing Galileo to renounce his public adherence to a scientific view is an act that seems inherendy contrary to the inclination to know; even if we consider the act apart from any future consequences regarding the inhibition of free inquiry. Therefore, I shall assume that the first criterion is not met. There is no need to con- tinue the analysis, because the principle of double effect cannot be used here. But, in this case, it will be instructive to proceed with the rest of the analysis.

b. The Inquisitors would probably disagree with most people today on the question of whether denying freedom of expression was avoidable in promoting Scripture'S authority. However, we shall assume that it was avoidable, so that the second criterion was not met. Denying individual freedom was probably unavoid- able if the authority of Scripture was to be protected, so we shall assume that the second criterion is met.

c. The means used to achieve the end of protecting Scripture was the denial of freedom of inquiry. So this criterion is also not met.

d. The leaders of the Inquisition would probably have said that their action passed the test of proportionality, because the negative consequences of Galileo's suppression were outweighed by the fact that Scripture was defended. But this claim is questionable, because the suppression of opinion (even if it is false) is

I.: !

probably not the best way to defend Scripture. Besides, the test of proportionali- ty is relevant only if the other tests are met. We may conclude that this criterion is also not passed.

4. Because the action of the leaders of the Inquisition violates the value of knowledge by suppressing the right to dissent, and because the two qualifying principles are inapplicable, we must conclude that the Inquisitors' action was

impermissible.

This case illustrates the difference that factual assumptions and conceptual issues can make in the ethical analysis of a case. The Inquisitors had very differ- ent ideas from most of us about the place of free discussion and the authority of Scripture in the pursuit of truth. I shall leave it to you to determine whether, using the ideas prevalent in their time, the Inquisitors could have justified their action from the standpoint of natural law.

Notes 1. This case was supplied by Harry S. Lipscomb, M.D. Used with permission. 2. Gerald Kelly, Medico-Moral Problems (St. Louis, Mo.: The Catholic Hospital

Association, 1958), p. 120. Quoted in Paul Ramsey, The Patient as Person, p. 122.

THE DOCTRINE OF DOUBLE EFFECT Philippa Foot Philippa Foot is Griffen Professor ofPhilosophy Emeritus at the University of California, Los Angeles, and Honorary Fellow of Somerville College, Oxford. She has written many influential essays in moral philosophy and is author of Natural Goodness (2001). Acconling to the doctrine (or principle) ofdouble effect, it is sometimes permiSSible to per- form an action that will knowingly bring about a bad effect so long as one does not direct- ly intend the bad effect. Foot is critical of this doctrine. After explaining why some philosophers have thought that certain problematic cases calling for moral response require that we accept the doctrine, she goes on to argue that (1) those same cases can be understood in terms of the distinction between the negative duty to avoid injury to others and the positive duty to render aid (and so the cases in question do not require accepting the doctrine), and (2) that because there are cases where the doctrine of double effect yields counterintuitive results about what is morally right, we should reject it.

I not, of course, discuss all the principles that may be used in deciding how

to act where the interests or rights of human beings conflict. What I want to do

From "The Problem of Abortion and the Doctrine of Double Effect," Virtues and Vices and Other Essays in Mora! Philosophy (1978). Reprinted by permission of the author,

79