Even if Rawls' views are incorrect, I see no positive reason to accept (2). Suppose, then, it is false – the correct moral principles for assessing institutional behaviour need not be ‘closest equivalents’ of the correct moral principles for assessing personal conduct. It may still be that both sets of principles derive from some common set of more fundamental moral considerations.9 These fundamental considerations would serve as the justifying grounds for both personal and institutional moral principles.
This possibility suggests an alternative way of arguing from (PPR) to (IPR). One could hold that the fundamental moral considerations which would make (PPR) correct, if it is correct, also make (IPR) correct. To spell out the argument in full,
I shall say that when some set of fundamental moral considerations makes a moral principle correct, it grounds (and constitutes the ground for) that principle. If (5) were true, then we might expect to be able to identify some set of considerations that grounds both (PPR) and (IPR). That is to say, we might expect to find some putative ground for (PPR) which both (i) succeeds in grounding (PPR), and (ii) also grounds (IPR). In the remainder of this section, I shall consider in turn what I take to be the six most promising putative grounds for (PPR), asking whether any satisfy both (i) and (ii).
V.1. Bad attitudes
- Cyclist I.
Anne is cycling in her usual reckless fashion one day when she collides with Ben, a pedestrian, knocking him to the ground. She considers stopping to help him up, but elects not to.
It is plausible, in this case, that Anne's failure to aid Ben is wrong. One natural way of explaining its wrongness adverts to Anne's attitude towards her earlier unjustifiable harmdoing. Anne's failure to aid Ben might be taken to express an objectionable indifference to, or even a re-assertion of, that harmful act.
These thoughts suggest that (PPR) might be correct for the following reason: when people fail to rectify harm they have wrongfully caused, they express the wrong sort of attitude towards their earlier harmful actions (or towards the resulting harm, or towards the harm's victim); on the other hand, when they fail to aid some person whom they have not harmed, they express no similarly objectionable attitude.
There is, however, an obvious problem with this putative ground for (PPR): it is not clear that a failure to favour one's victim need express indifference, or any other objectionable attitude. Here is a variant of Cyclist I:
- Cyclist II.
All is as in Cyclist I except that this time, while Anne knocks Ben to the ground, Claire, a nearby pedestrian, is felled by a strong gust of wind. Anne is equally well placed to help both Ben and Claire, but she can help only one. Suppose further that Claire's injuries are pretty much the same as Ben's. Anne decides to help Claire.
In this case, as in Cyclist I, Anne presumably fails to comply with (PPR). Thus the proponent of (PPR) will judge that she has acted wrongly. But it is not clear that the wrongness of Anne's action is attributable to some objectionable attitude of hers. In this case, it is possible that Anne is indifferent to Ben's plight. But it is also possible that she is simply equally concerned about Claire's situation. If this is her reaction, it is hard to see how it expresses indifference to Ben's situation (there may be no such indifference to express).
It might be objected that even if Anne's action does not express an objectionable attitude, it nevertheless fails to express some good attitude, such as an attitude of remorse or regret for her earlier harmdoing. Perhaps this is so. But here is a further example:
Now it is clear that Anne does express remorse and regret. Nevertheless, she fails to comply with (PPR), and the advocate of that principle must therefore say that she acts wrongly. But the wrongness of her action cannot be grounded on the fact that it fails to express regret or remorse.
Admittedly, there is a different kind of attitude which could be at issue here. It could be argued that even in Cyclist III, Anne's action expresses disrespect for Ben's special moral claims on her. However, Anne's action expresses disrespect only if Ben has a special claim on Anne which Claire lacks. But if we are in a position to assert this, then, plausibly, we are already in a position to assert (PPR). There is no need to advert to the attitudes of the harmdoer. So can (PPR) be grounded directly on the special claims of those who have suffered unjustifiable harms?
V.2. Special claims and rights violations
Here is the suggestion: when A is wrongfully harmed by B, A acquires a special claim to rectification, whereas when A suffers a natural misfortune, A acquires no special claim to aid. Perhaps others have some reason to provide aid. But the victims of natural misfortune have no claim, or no special claim, to the aid.
In seeking grounds for (PPR), this seems a promising start. However, the question now arises why the victims of unjustifiable harms should acquire a special claim to rectification while the victims of natural misfortune acquire no similar claim to aid. Perhaps the most obvious answer would be that the victims of unjustifiable harms have had their rights violated, whereas the victims of natural misfortune have not; nature is not the sort of thing that can violate someone's rights. Perhaps it is having one's rights violated that generates the special claim to rectification. Again, however, this response simply defers the problem, for it is surely legitimate to ask why rights violations should generate special claims while natural misfortunes do not. To ground (PPR) it seems necessary to identify some consideration which establishes the special link between rights violations and special claims to rectification without also establishing a similar link between natural misfortunes and special claims to aid. I am not aware of any consideration capable of doing this which does not also directly support (PPR) – that is, support (PPR) without requiring the mediation of rights or rights violations. Consequently I shall not consider further the question of whether victims of unjustifiable harms have had their rights violated.10 Instead, I turn to consider alternative means of directly grounding (PPR).
V.3. Nullifying past actions
One such alternative means is based on the widely held principle that it is more important not to harm than to aid. This principle of non-harm might be formulated as follows:
This principle is sometimes discussed in close proximity to (PPR); both principles are often grouped together under the banner of non-consequentialism, since both assert that what agents should do depends not just on what outcomes will result, but also on how the agents contribute to those outcomes.11 However, we should not allow (PPR) to bathe in (PNH)'s reflected glory. It seems quite possible to reject (PPR) while accepting that it is more important not to harm than to aid. (PPR) simply has nothing direct to say about the relative moral importance of not-harming and aiding. It governs only responses to pre-existing harms, including harms one has previously caused.
Nevertheless, (PNH) may, in combination with other considerations, ground (PPR). It might be held that if you harm another, imposing some loss with disvalue x, and then you rectify this harm by providing your victim with benefits of value x, then you have effectively done nothing. Your rectification nullifies the act of harm. On the other hand, if you impose a loss of disvalue x on one person, and give some benefit of value x to another person, you have not nullified your initial act. Instead, you have performed two distinct acts, one morally bad act of harming, and another morally good act of aiding. Moreover, if we accept (PNH), then the act of harm will be more morally bad than the act of aid is good. Thus it will be morally worse to harm one person and aid another than to do nothing. So starting from the position of having caused harm, you should rectify the harm you have caused, rather than aiding some third party. In rectifying the harm you have caused you would make it the case that you have effectively done nothing, whereas in aiding the third party you would not.
Even leaving aside doubts about (PNH), this attempt to ground (PPR) on it seems dubious. To harm someone and then offset the resulting loss is not, of course, literally to do nothing. Rather, the thought is that it is morally on a par with doing nothing. But is this true? Suppose I have recklessly caused a minor injury to someone who as a result loses £100 in income and suffers incapacity and inconvenience which he values at negative £150. Plausibly, I offset this loss if I pay my victim £250 in compensation. But it is not at all clear that my causing this injury, then compensating to the tune of £250, is morally equivalent to my not causing the injury. I can think of only one reason for supposing that it is: my victim's well-being is the same, following my provision of compensation, as it would have been if I had not injured him in the first place. But no one who grounds (PPR) on (PNH) can assume this. In affirming (PNH), one rejects the view that the morality of an action is to be determined only by its effects on well-being: its nature or its relation to changes in well-being is also relevant.
Anyone who accepts (PNH) presumably does so in the belief that acts of harming have some pro tanto wrongness in addition to that which they have in virtue of their consequences for the victim (this non-instrumental wrongness may derive from the fact that they constitute rights violations). One need not suppose that this non-instrumental wrongness is offset by negating the act's consequences. It seems possible, then, that someone who inflicts a harm and then negates its consequences acts just as badly as someone who inflicts a harm and then negates some other equally bad consequence. Both persons have committed acts whose non-instrumental wrongness may remain unmitigated, though both have also performed a series of acts that is morally neutral in consequentialist terms.
There may be some cases in which rectifying a harm does nullify the non-instrumental wrongness of the initial harmful act, as, for example, in cases of theft in which the thieves subsequently return what they have stolen to its owners. In such cases at least some of the non-instrumental wrongness of the original act may be captured by the fact that it alienates someone's property. It seems possible that this wrongness is at least partially negated by the act of restoring the property, since we can then say that assessing the perpetrators' actions together, they have committed no rights violation. This may, however, be a special case. Not all acts of harm rectification can be construed merely as attempts to restore someone's alienated property. Often the rectification instead amounts to an attempt to compensate others for irrevocable damage to their property (including their persons) by providing some other form of valuable property, as in the reckless injury case in the previous paragraph. In cases like this, it is much less clear that the act of rectification does anything to negate the non-instrumental wrongness of the original harmful act; plausibly, that is a kind of wrongness about which nothing can subsequently be done. Even in these cases, an act of rectification does, of course, do some good: it lifts a burden borne by another through misfortune. But so too would providing aid to a victim of natural misfortune.
V.4. Reducing the compliance costs of morality
An alternative attempt to ground (PPR) treats that principle as a means of appropriately limiting the compliance costs of morality. Whenever we accept a moral requirement to lift burdens borne by others, we thereby accept potential costs to our future selves. One way of limiting these costs would, of course, be to restrict the circumstances in which we are required (or strongly required) to lift such burdens, and (PPR) could be seen as the result of an attempt to restrict the compliance costs of morality in precisely this way: it maintains that we are required to lift burdens only when in doing so we rectify a harm we previously wrongfully caused. Perhaps morality would simply be too demanding if there were (strong) requirements to lift burdens we had not wrongfully imposed.
We should consider, however, whether there is any good argument for regarding (PPR) as capturing an appropriate restriction of the compliance costs of morality. At first sight, it seems idiosyncratic and possibly unfair to limit the requirement to lift burdens borne by others to cases in which doing so also counts as an instance of rectification. If a (strong) requirement to lift the burdens borne by all disadvantaged persons would be too demanding, then why not simply weaken that requirement so that it is acceptably demanding? This strategy would avoid the need to treat persons bearing similar disadvantages differently.
Proponents of (PPR) can avoid this difficulty by adopting an approach sometimes taken by proponents of (PNH). It has been argued that we should accept this principle because though the expected benefits of accepting a requirement not to harm and of accepting a requirement to aid would be similar, the compliance costs of a requirement to aid would be much greater. Hence, it is claimed, to balance the compliance costs of morality with its benefits, we should accept a stronger requirement not to harm and a weaker requirement to aid.12 Perhaps similar considerations ground (PPR). If it could be shown that it is generally less costly to rectify than to aid, then one could run an argument for (PPR) which parallels precisely the above-mentioned argument for (PNH).
There are, I think, at least two reasons for thinking that it will generally be less costly for people to rectify harm they have wrongfully caused than to provide similar benefits in the form of aid to a third party. First, those whom they have harmed will typically be physically close to them. It is true that technology and international markets now enable us to harm distant persons. But we still harm those who are near to us with disproportionate frequency. Secondly, in rectifying harm they have caused – especially wrongfully caused – harmdoers are likely to be aided by feelings of regret and remorse. Thus relatively little psychological effort may be required to rectify the harm. In aiding persons whom one has not harmed, however, feelings of regret and remorse are likely to be either absent or greatly attenuated. Providing aid may therefore require greater psychological effort.
However, merely showing that rectifying harms is, on average, less costly than providing aid does not establish (PPR). Suppose rectification is, on average, less costly than aid, but the average cost is lower only because in some cases the harm-rectifier will be motivated by feelings of remorse. Why not, then, accept the following remorse principle as a way of constraining compliance costs?
Alternatively, suppose it is on average less costly to rectify than to aid because the beneficiaries of rectification are frequently nearby. This suggests the following proximity principle:
Of course, there may be some cases in which a person is motivated by remorse to lift some burden, or is physically proximal to the person bearing the burden, but it would nevertheless be costly to lift that burden. We could focus directly on the costs of aid, adopting the following low cost principle:
(RP), (PP) and (LCP) all appear to be more efficient ways of limiting the compliance costs of morality than (PPR). Perhaps one could object to (LCP) on the ground that it is generally difficult for individual persons to determine in advance the costs of lifting a burden, whereas it is relatively easy to determine whether one has wrongfully harmed the bearer of a burden. However, no similar objection could be made to (RP) or (PP). It is typically at least as easy for me to determine whether I am motivated by remorse to lift a burden, or whether I am physically proximal to the burden-bearer, as to determine whether I have previously wrongfully harmed that burden-bearer.
I now turn to consider the possibility that (PPR) might be grounded on considerations of deterrence. A moral requirement on individual persons to rectify harms they have wrongfully caused would, if widely known, and if known to be backed by moral sanctions such as blame, deter people from wrongfully harming others. On the other hand, no similar benefit would derive from a general requirement to aid the disadvantaged, since there is usually nothing the prospective aid-provider could have done to prevent the disadvantage suffered by the aid-recipient. Thus, it might be argued, we should accept a (strong) requirement to rectify wrongful harms, but no (similarly strong) requirement to aid the disadvantaged in general. It would plausibly follow that people should prioritize rectification over aid.
One could challenge this attempt to ground (IPR) by questioning whether moral principles, as opposed to legal principles, can ever be grounded on considerations of deterrence. But even leaving aside such concerns, the attempt remains problematic, for it is not clear that a requirement to rectify harms one has wrongfully caused would be more effective at deterring harm than would a less directive requirement. Suppose anyone who wrongfully harmed another person came each time under a moral requirement either to rectify that harm or to aid some other similarly placed person. This moral requirement might seem strange. But it would deter the imposition of unjustifiable harm to precisely the same extent as a straightforward requirement of rectification, provided that supplying the aid is precisely as burdensome as rectifying the harm. From the point of view of harm-deterrence, what is important is that moral sanctions are imposed on harmdoers. The precise nature of those moral sanctions is unimportant.13
V.6. Preserving agency
A final putative ground for (PPR) is suggested by the work of the legal theorists Tony Honoré and Stephen Perry.14 Honoré and Perry are interested in the grounds of the moral (and, ultimately, legal) obligation which those who harm others may have to rectify those harms. For both, a concept of responsibility plays a central role.
If I harm another, I am causally responsible for the resulting disadvantage suffered by my victim. I may also be morally responsible for it, either in the sense that I am blameworthy for having imposed it, or in the sense that morality requires me to rectify it. But Honoré and Perry focus on a further possibility: that I am outcome-responsible for the disadvantage. Though neither author gives a clear account of what outcome-responsibility consists in, the thought seems to be that to be outcome-responsible for some state of affairs is to be regarded as owning it: it is to be attributed or allocated to the agent. If I am outcome-responsible for some outcome, then it is my outcome.
Being outcome-responsible for a harm does not, for either Honoré or Perry, amount to the same thing as being under a requirement to rectify that harm. Nor is it alone sufficient to establish the presence of such a requirement.15 Nevertheless, both authors do claim that whether you are morally required to rectify some harm depends, in part, on whether you are outcome-responsible for imposing it. Outcome-responsibility is an element in the ground of this requirement, but a further element is required. (Both authors hold that the ground is completed by the addition of fault. You are required to rectify a harm if you are outcome-responsible for it, and also caused it wrongfully.16)
Moreover, both Honoré and Perry claim that people ought generally to be assigned outcome-responsibility for their own actions, and for the consequences of those actions. This claim is grounded on a concern to protect agency: we must, they claim, be assigned outcome-responsibility for our actions and the outcomes they produce, for if we were not, we would cease to be agents and, perhaps, persons. Honoré puts it as follows:
outcome-allocation is crucial to our identity as persons.... If actions and outcomes were not ascribed to us on the basis of our bodily movements and their mental accompaniments, we could have no continuing history or character. There would indeed be bodies and, associated with them, minds. Each would possess a certain continuity. They could be labelled A, B, C. But having decided nothing and done nothing these entities would hardly be people.17
If we are indeed outcome-responsible for the consequences of our actions, then a fortiori we are outcome-responsible for harms we impose on others. If we also imposed those harms wrongfully, then we are, according to Honoré and Perry, morally required to rectify them.
On the other hand, it seems doubtful whether we are outcome-responsible for harms or burdens we did not cause. Certainly, considerations of agency would not support such attributions of outcome-responsibility. People need not be assigned outcome-responsibility for burdens they did not impose in order to protect their agency. Indeed, if anything, assigning outcome-responsibility in this way would threaten our agency – or at least, our self-identity as agents. Holding us outcome-responsible for burdens we did not impose might undermine our ability to see ourselves as acting upon the world, causing some events and not others.
It appears, then, that the considerations invoked by Honoré and Perry cannot ground a requirement to aid those we have not harmed. On the other hand, they may ground a requirement to rectify harms we have wrongfully caused. (Whether they succeed in doing this is not something I can adequately assess here.) Perhaps, then, there is a requirement of rectification, but no requirement to aid persons we have not harmed. It would follow that people should prioritize rectification over aid.
The considerations invoked by Honoré and Perry may thus ground (PPR). But it seems doubtful whether they could also ground (IPR). The reason for assigning outcome responsibility to persons was that doing so is (allegedly) necessary to protect the agency of those persons. But it is not clear that institutional schemes possess the sort of agency that Honoré and Perry have in mind here. Arguably, for an entity to qualify as an agent it must be capable of engaging in intentional action, rather than merely unintentional behaviour, but it is not clear that institutional schemes possess the required intentionality. Perhaps this is why we tend to use the word ‘behaviour’ in preference to ‘action’ when describing institutional events.
The difficulty I am raising here can be decomposed into two parts. First, it is not clear that individual institutions, as opposed to individual persons, can act intentionally. Some might argue that a government or a company, say, can act intentionally, but such claims would be controversial. Secondly, and more problematically, it is not clear that institutional schemes, which are collectives of institutions, can act intentionally. Here there are questions about whether collectives of agents themselves constitute agents (questions that also arise in relation to the question of whether groups of persons can be agents). But there is also the problem that not all of the elements in an institutional scheme can plausibly be described as agents. Perhaps governments and companies possess agency, but it is much less clear that laws or democratic procedures do.
Finally, even if institutional schemes are agents, it remains obscure why any value should be assigned to their agency.18 One of the main reasons for thinking that personal agency is valuable is precisely that almost everyone values it. Another reason is that it allows us to achieve other ends which we take to be valuable – like happiness, completion of our projects, and meaningful relationships. Perhaps it is even true to say that we cannot conceive of ourselves as anything other than agents. But it is doubtful whether any of these reasons applies at the institutional level: most of us would attach no value to the (possible) agency of institutional schemes; whether institutional schemes possess agency seems irrelevant to how successful they will be in bringing about further goods (such as the goods that follow from regulated co-operation); and it is certainly quite possible for us to conceive of institutional schemes as non-agents. It thus remains obscure why we should assign outcome-responsibility to institutional schemes. Even if Honoré and Perry's argument succeeds in grounding (PPR), it appears unable to ground (IPR).