Guest Post by Danny Frederick, http://independent.academia.edu/DannyFrederick
In Part 1 we considered the following example.
HIKER. A hiker on a back-packing trip in the high mountain country is beset by an unanticipated blizzard which strikes the area with such ferocity that her life is imperilled. She stumbles onto an unoccupied cabin, locked and boarded up for the winter, clearly somebody else’s private property. She smashes a window, enters, and huddles in a corner for three days until the storm abates. During this period she helps herself to her unknown benefactor’s food supply and burns his wooden furniture in the fireplace to keep warm.
It is permissible for the hiker to do as she does, even though she thereby infringes the property rights of the cabin-owner (throughout, ‘permissible’ means morally permissible). However, in virtue of infringing the cabin-owner’s rights, she owes him appropriate amends, where what amends are appropriate depends upon the full circumstances of the infringement.
This does not entail that it is always permissible to infringe a right so long as one makes appropriate amends. For example, consider someone who burgles for excitement but always fully compensates his victims, even adding a sincere apology to the compensation. His apology is sincere because he is genuinely sorry for the discomfort he causes his victims, but he burgles them anyway because, in his opinion (and perhaps in fact), the benefit to him of the excitement is far greater than the inconvenience, mental and physical, to his victims, and he will compensate them for that in any case. This burglar still does wrong because it is impermissible to infringe a person’s rights for fun even if one makes full amends, and even if the sum total of human happiness is increased thereby. Why should that be so?
Rights imply moral duties. Our moral duty is what Kant calls a Categorical Imperative: it tells us the thing to be done, no matter what we want. The rights of a person to her home and its contents give the burglar a moral duty not to enter her home and not to remove any of its contents. If this is the burglar’s moral duty, the fact that he enjoys burgling is irrelevant, even if his enjoyment far outweighs the dissatisfaction of his victim, and even if he makes appropriate amends which include full compensation to the victim. Thus, the fact that a permissible right-infringement demands appropriate amends does not imply that it is always permissible to infringe a right if one makes appropriate amends. There are only special circumstances in which it is permissible to infringe a right.
However, if the moral duty corresponding to a right were always a Categorical Imperative, there could be no circumstances in which it is permissible to infringe a right (because, recall, a Categorical Imperative tells us the thing to be done). Since we have accepted that it is permissible for the hiker to infringe some of the cabin-owner’s rights, it follows that a moral duty of ours that corresponds to another’s right need not be our moral duty. The following example, from Judith Jarvis Thomson (1990, pp. 158-59), can illustrate:
BRAKE FAILURE. Judith is driving, and her brakes have just failed. If she continues straight, she drives into and kills Lewis. Her steering wheel is constricted, so her only alternative to continuing straight is turning to the right. But if she turns to the right, she drives into and kills Michael.
It is permissible for Judith either to continue straight or to turn right. It is therefore permissible for her to infringe Lewis’s, or Michael’s, right not to be killed. Here, Judith has two duties which conflict. Where duties conflict, one ought to perform that which is most stringent. In BRAKE FAILURE the duties are equally stringent, which is what gives Judith a choice. Because duties can conflict, the Categorical Imperative must be interpreted so that it is always the most stringent duty that is our moral duty or, in case of a tie, one of the tied duties.
So we can make sense of permissible infringement of a right in cases where there is a conflict of duties. It is permissible for Judith to kill Lewis (Michael) because it is the only way she can fulfil her (equally stringent) duty to Michael (Lewis). In contrast, it is impermissible for the burglar to burgle his victims, because he has duties not to burgle, but no conflicting duties. In his situation, the duties not to burgle are Categorical Imperatives. The fact that it is fun for him to burgle is irrelevant, no matter how much fun it is for him. How does this help us to understand HIKER?
It is not the case that the hiker raids the cabin because it is fun to do so. Her action is not like the burglar’s. Yet it seems different to Judith’s too. For, it seems as if the hiker’s only duties in the situation are to the cabin-owner. If that is so, then the rights of the cabin-owner imply a compound Categorical Imperative not to break into the cabin and not to consume any of its contents. But, if that is so, it is impermissible for her to enter the cabin even if she afterwards makes full amends to the cabin-owner. How can we avoid this result?
There seem to be two options. The first is to say that while, in these circumstances, the hiker morally-ought to freeze to death, she rationally-ought to perform a morally wrong action and then make appropriate amends to the victim. However, that seems entirely unsatisfactory because, as we said at the start, virtually everyone agrees that the hiker’s action is morally permissible.
The second option is to invoke a duty of the hiker to herself, to save her own life, which, in the circumstances, overrides her conflicting duties to the cabin-owner. This might seem to make it obligatory, rather than permissible, for the hiker to raid the cabin. However, we can normally release people from the duties they owe us, so it seems plausible that a person can release herself from her duties to herself. So, it is permissible for the hiker either to fulfil her duty to save herself or to release herself from that duty in order to fulfil her duties to the cabin owner; and hence it is permissible, but not obligatory, for her to raid the cabin. Duties to oneself are not very popular in contemporary moral philosophy; but they seem to have explanatory value. How else are we to explain the permissibility of the hiker’s action?
Thomson, Judith Jarvis. 1990. The Realm of Rights. Cambridge, MA.: HarvardUniversity Press.