Terminating in the Body: Concerning Some Errors of Action and IntentionChristopher Tollefsen
I.
The New Natural Law theory offers a distinctive account of
the nature of intention and human action, and, accordingly,
of what aspects and consequences of a human agent’s
performance should be considered outside the intention
(praeter intentionem).1 In part, the distinctive features of
the account follow from a methodological decision to
consider human action from the perspective of the agent of
that action, or, as I have called it, the first-person
perspective.2 That methodological decision preceded, in the
1 The most thorough articulation and defense of the NNL theory of human action is to be found in John Finnis, Germain Grisez, and Joseph Boyle, “’Direct’ and ‘Indirect:’ A Reply to Critics of our Action Theory,” The Thomist 65 (2001): 1-44.2 Christopher Tollefsen, “Is A Purely First Person Account of Human Action Defensible?” Ethical Theory and Moral Practice 9 (2006), pp. 441-460. I think it is more accurate to refer to it as the first-person agential perspective.
theory’s genesis, but is fully consonant with, remarks made
by Pope Saint John Paul the Great in his Encyclical Veritatis
Splendor.3 There the Pope made clear that the morality of
certain kinds of acts, those picked out by so-called moral
absolutes, depends “primarily and fundamentally on the "object"
rationally chosen by the deliberate will.” But in order to “grasp the
object of an act which specifies that act morally, it is
therefore necessary to place oneself in the perspective of the acting
person (VS, 78).
This standpoint, it is perhaps not too obvious to note,
is the standpoint of an agent oriented towards action, and
thus towards what makes action possible: human goods,
aspects of human well-being that promise some potential
benefit. The NNL view, as is familiar, grounds all
practical deliberation in an apprehension of these basic
goods, an apprehension that it sees as foundational to
3 John Paul II, Encyclical Letter Veritatis Splendor, hereafter VS.
2
practical reason, and not derived from any truths of
theoretical reason.4
All human action is thus carried out with a view to the
attainment of human good: we do not engage in human action
except insofar as we apprehend cognitively some possible
benefit, and recognize as well some way of realizing that
benefit through action. The recognized way might be quite
complex, a sequence of nested means that serve as proximate
ends ordered to a more distant end in which the benefit
sought will be found;
or it might be quite direct in the sense that an immediately
carried out action itself realizes a basic good.
The paradigm case of all fully human action involves
free choice. In such a case, the benefits offered by two or
more options (including the option of doing nothing) are
4 For general statements of the NNL view, see Germain Grisez, Joseph Boyle, and John Finnis, “Practical Principles, Moral Truth, and Ultimate Ends,” American Journal ofJurisprudence 32 (1987), 99-151. In this issues, E. Christian Brugger argues that the NNL refusal to derive normative fromtheoretical truths is both sound and true to the thought of St. Thomas: “St. Thomas’s Natural Law Theory,” National CatholicBioethics Quarterly.
3
incommensurable. Each offers some aspect of good not
offered by the other; thus, a choice must be made. That
choice is neither caused by factors in the natural world,
nor is it caused by the goodness of the option chosen, as it
would be were that option best in every possible respect.
So it is free.5 As we shall see later, this has
consequences for what an agent may, and indeed must, know
about her own intentions.
The claims of the previous two paragraphs may be
articulated in terms of the notion of a proposal. What is
intended is what is proposed by the agent to him or herself
and chosen. The proposal, so understood, encompasses both
the end that the agent seeks, and all that the agent seeks
as desired in order to bring about the sought after end. A
fully formed proposal to travel somewhere, for example,
includes within it not just the end point, but also an
awareness of how the end point is to be attained: travelling
5 See, for a helpful account, Joseph Boyle, “Free Choice, Incommensurable Goods and the Self-Refutation of Determinism,” American Journal of Jurisprudence, 50 (2005), 139-163.
4
to Dallas by driving from Columbia to Atlanta, then driving
from Atlanta to Birmingham, and so on. As the proposal
includes both the end and the nested sequence of means, so,
on the NNL account, does the intention.
Because the notion of a proposal specifies our
understanding of an agent’s intention, it likewise specifies
our understanding of the agent’s action. What is proposed
and chosen, and thus intended, is what is done by the agent
insofar as what is done is successful according to that
proposal. The nature of the action is determined by the
intention, and its reality is thus, like the reality of
intention itself, radically first personal and agential.
Neither what is intended nor what is done as a full human
action is a function of what merely happens, though
happenings consequential to, and even simultaneous with,
what is intended and done, are inevitable.
Put another way, while the proposal, and thus my
intention, and thus my action properly speaking, includes
everything that I take to be needful in order to achieve
5
some benefit I set out to attain, the proposal, and hence
the intention, and hence the action, does not include many
states of affairs bound up with what I choose that are
nevertheless not needful for what I am pursuing. Such states
of affairs are accepted, if I go forward with implementing
my proposal; but they are neither chosen nor intended. For
example, and non-controversially: when my proposal is to
alleviate my toothache by taking ibuprofen, the proposal
does not include the inevitable brief experience of an upset
stomach that inevitably accompanies my taking the ibuprofen.
The upset stomach is not intended, but is rather accepted as
a side effect of my action.
The NNL theory rigorously maintains this first-personal
agential account in discriminating what is intended from
what is accepted as a side effect, even when what is
accepted is a foreseen consequence of what is done, as is
the upset stomach; even when it is an inevitable and
foreseen consequence of what is done, as are certain other
side effects to medical interventions; and even when it is
6
an inevitable and foreseen accompaniment of what is done,
simultaneous with the doing. Inevitable and foreseen
stuttering, for example, accompanies the very thing the
speaking agent does – it is not a downstream causal
consequence. Yet it is not intended.
I may, of course, be held morally accountable for what
I have accepted, and am sometimes morally to blame for side
effects. But the distinction between what is intended and
what is accepted is crucial, on the NNL account, as on the
Pope’s account above, for the consideration of moral
absolutes. For what those absolutes in most cases rule out
is intentional damage to or destruction of, a basic good. It
is thus always and everywhere wrong, for example,
intentionally to kill an innocent human being. But the death
of such an innocent is not automatically recognized as
impermissible if it lies outside the agent’s intention and
is merely accepted as a side effect.6
6 See, for discussion of such absolute negative precepts, John Finnis, Moral Absolutes: Tradition, Revision, and Truth (Washington, D.C.: The Catholic University of America Press,1991).
7
This theory of action and intention, here only briefly
described, but discussed and defended at much greater length
on many occasions by NNL theorists, has nevertheless been
subject to considerable criticism. The view is held by many
to be too first-personal, and to provide inadequate
“constraints” on what an agent intends, when her performance
will inevitably and foreseeably be accompanied or followed
by states of affairs in which individuals are harmed.7 To
give perhaps the most disputed example: NNL theorists have
held that it need be no part of a physician’s proposal, and
hence intention, to kill or harm the child whose head is
crushed to remove an obstetric obstruction threatening the
mother’s life. The proposal, and hence the intention, is to
change the dimensions of the child’s skull, in order to
remove the obstruction, so as to facilitate removal of the
child, so as to save the mother’s life. Critics, by
7 The most recent, and in many ways most competent such criticism has recently been that of Steven J. Jensen, “Causal Constraints on Intention: A Critique of Tollefsen onthe Phoenix Case,” National Catholic Bioethics Quarterly (2014), 273-293. I hope to respond to Jensen’s helpful article in the future.
8
contrast, are likely to hold that crushing the skull of an
infant child “just is” killing, or harming, or mutilating
that child. The death, or the harm, in this case is simply
“too close” to what is done for it to be outside the
intention.8
Similar misgivings, and others, animate the recent
critiques of the NNL theory of action found in the special
issue of the National Catholic Bioethics Quarterly dedicated to
criticizing the NNL theory as a whole. This essay addresses
three of the articles in that issue. Those essays, by Steven
A. Long, Matthew O’Brien, and Fr. Kevin Flannery, SJ, as
well as a more recent essay by Edward Furton (in Ethics and
Medics), eventually converge on a variation of the
“closeness” criticism that I will address in the second part
of the paper. In the first part, I address three further
issues, raised, respectively, by Flannery, Long, and
O’Brien.
8 See, for example, Luke Gormally, “Intention and Side Effects: John Finnis and Elizabeth Anscombe,” in John Keown and Robert P. George, eds, Reason, Morality, and Law: The Philosophy of John Finnis (Oxford: Oxford University Press, 2013), 93-108.
9
II.
Fr. Kevin Flannery’s essay begins with an account of how
“object” is used by Aquinas, and the bearing of this usage
on the topics of interior and exterior acts.9 He concludes
the discussion of his first three sections by showing that
for Aquinas, identifying the object of the act does not tell
us everything morally important about the act. This sets up
the critical fourth section of his essay in which Aquinas’s
view on this point is contrasted with Grisez’s: contrary to
Grisez’s view, writes Flannery, there “is no suggestion in
ST 2-2. 64.7 that an act of killing in self-defense is licit
9 Rev. Kevin Flannery, SJ, “Thomas Aquinas and the New Natural Law Theory on the Object of the Human Act,” National Catholic Bioethics Quarterly, 13 (2013), 79-104. It is perhaps worth differences in the approach taken to the concept of the “object” of the human act by the NNL thinkers. Grisez writes, as noted by Flannery, that he thinks Aquinas’s use of the term “neither clear nor coherent;” Boyle eschews the concept, and with it the interior-exterior act distinction, in favor of more straightforward language of means and ends.By contrast, Finnis argues that St. Thomas’s use is, despiteappearances, coherent. See John M. Finnis, “Intention and Objects,” in Collected Papers vol. II, Intention and Identity (Oxford: Oxford University Press, 2011), 152-172.
10
simply because the death of the assailant is not within the
self-defender’s choice or intention” (Flannery, 2013, p.
90).
This point is repeated several times: in his discussion
of active per accidens scandal (in which the scandal is not
intended): “Aquinas’s remark implies the contrary [of
Grisez’s view]: there is a sin – indeed a serious sin – in
which the agent’s choice, the interior object of the will,
is aimed at something quite different from that which (in
active per se scandal) gives the act its species” (Flannery,
2013, p. 92); in his discussion of sacrilege, where his
response to Grisez is that “The moral character of the act
itself is not determined simply by looking to that which is
intended (or chosen)” (Flannery, 2013, p. 93); and in his
discussion of craniotomy: “Since, according to Grisez’s
analysis, the moral significance of the act depends wholly
upon what, according to his theory, is chosen…” (Flannery,
2013, p. 94).
11
Why does Flannery spend so much time on this point?
Apparently in response to Grisez’s claim that “Moral
responsibility is to be found first and foremost in one’s
choosing.”10 But (a) “first and foremost” simply does not
mean “determined solely by;” And (b), in the very same
section from which the offending claim of Grisez’s comes,
Grisez writes that “We are responsible for more than just
what we aim at and choose” (Grisez, 1983, p. 239). And
indeed, in the very paragraph from which Flannery quotes,
Grisez says “one bears responsibility for foreseen side-
effects,” a passage that Flannery also quotes (Grisez, 1993,
239). Finally, (c) the claim that moral responsibility is
to be found first and foremost in one’s choosing is, in
itself, a staple claim of Catholic moral thought.11 For it 10 Germain Grisez, The Way of the Lord, Vol. 1, Christian Moral Principles (Chicago: Franciscan Herald, 1983), p. 239.11 See, for example, John Paul II, Encyclical Letter Veritatis Splendor, no. 79: “The primary and decisive element for moral judgment is the object of the human act, which establishes whether it is capable of being ordered to the good and to the ultimate end, which is God.” Flannery notes (p. 88) that for Grisez, “‘proposal adopted for choice’ has more or less the same meaning as Aquinas’s expression ‘the object of an action.’” So it seems Grisez and Pope John Paul II are
12
is our choices that in the first instance shape us as the
people we are, people whose lives are lived in accordance
with God’s plan, or not. So Flannery’s argument seems
directed against a claim not made by Grisez, and indeed
denied by him; while the claim that Grisez does make appears
to be on solid ground.
Steven A. Long asserts of the NNL theory that it is “no
improvement whatsoever” over proportionalism and
consequentialism save in the fact that it “piously obscures
the enormity of the derogation of the moral law that it
represents.” It is further “deceptive”, and its errors
“seismic in their gravity.”12 Underlying these claims is
Long’s belief that the NNL countenances, as an account of an
agent’s choice, whatever he might say about it, and that it
“becomes enough that one seeks a good end” (Long, 2013,
124).
making exactly the same point here.12 Steven A. Long, “Fundamental Errors of the New Natural Law Theory,” National Catholic Bioethics Quarterly, 13 (2013), 105-131, p. 130.
13
Accordingly, Long holds, the NNLT fails to recognize
that an action that, in his words, “terminates in the body”
of an innocent human person “in such a way as to harm or
destroy” that person, ought not to be considered “indirect”
(Long, 2013, 126). Or, as Furton puts it, “The central moral
question, as I understand it, is whether it is possible to
directly strike the body of an innocent person, and so cause
that person injury or death, without intending to cause the
injury or death.”13 “Terminating in,” and “directly
striking” are descriptions here, in the order of nature, of
natural causality. It is the fact that my axe, or sword, or
scalpel, or, no doubt, bullet, comes directly and lethally
into contact with your body that is thought to be definitive
by Long, Furton, and many others. For in such cases, the
lethality is part of the “integral nature and per se effects
of the action chosen” (Long, 2013, 124). They thus
constitute direct killing.
13 Edward Furton, “Tollefsen on the Phoenix Case,” Ethics and Medics 39 (2014), 3-4, p. 3.
14
As will be clear from my summary on the NNL view in
Part I, the NNL theorists deny that the “integral nature and
per se effects” of an action considered in the order of natural
causality, are determinative of the nature of the action
considered in the order of the will, that is, in the order which
reason introduces into the acts of the will.14 And why
should it be? In the paradigm case of intentional action,
will, a rational appetite, is responsive to the judgments of
reason, a spiritual power, and a particular course of action
is chosen under the description that made it attractive to
reason. Of course, and again as noted above, insofar as
what is chosen is realized in action there will be many
other descriptions true of what happens, some of which will
be foreseen by the agent, some not. The reality of what
happens insofar as we act is far from under our full
control. But that is not to say that the reality of what we
judge and choose is not under our control, much less that
that reality could be determined by the shape of what
14 See Brugger, “St. Thomas’s Natural Law Theory,” for a discussion of Aquinas’s “four orders”
15
happens in the world. That fails to do justice to the
nature of reason and will and spiritual powers.
Now none of this implies that in morally assessing the
permissibility of action it “becomes enough that one seeks a
good end.” What one chooses as a means and what one wills
as an end are willed by the agent together, and the willing
of each, end and means, is available for moral assessment.
One may not will death as an end, but the NNLT are well
known for their view that one may not will death as a means
either, and indeed, their view on this is quite a bit less
permissive than that of most Catholics who believe that
death my be willed as a means, by those with lawful
authority, for the bringing about of justice.
Nor is any of this to hold, as Long alleges, that an
agent may say whatever he likes about his choices, nor may
he describe them to himself as he wishes. More accurately:
while agents may say what they like, the saying makes
nothing so. Proposing, willing, and choosing are
realities, albeit spiritual realities. They do not get
16
their shape from our wishes or self-rationalizations, nor
from what we might say about them. They cannot be
gerrymandered in the way that critics suggest. This is made
clear by the NNL theorists:
What counts for moral analysis is not what may or
may not be included in various descriptions that
might be given by observers, or even by acting
persons reflecting on what they have done, but
what is or is not included within a proposal
developed in deliberation for possible adoption by
choice. Only the truthful articulation of that
proposal can be a description that specifies an
act for the purposes of moral analysis.15
So the NNL make no claims to the rightness of what is
said. But they do make a claim about an agent’s awareness
of what she intends in choosing some course of action over
others: they claim that what is so chosen is necessarily
15 John Finnis, Germain Grisez, and Joseph Boyle, “’Direct’ and ‘Indirect:’ A Reply to Critics of our Action Theory,” The Thomist 65 (2001): 1-44, p. 29.
17
knowingly chosen. Critics of the NNLT seem inclined to deny
this, as in the following passage from Michael Pakaluk:
What someone intends is not subjective but rather
objective. Hence, he can be wrong about what he intends.
Hence, a person’s self-report about his own
intention may be mistaken, if he lacks self-
knowledge. Indeed, the road to hell is paved with
subjectively good intentions. The doctor who says
that he intended in administering the lethal dose
only to release the soul of the patient from
suffering also intended, actually, the direct
killing of an innocent human being. In Miss
Anscombe’s example, Mr. Truman said that he
intended only to end the war and save lives but,
whatever he said, because of what he commanded to
be done, he thereby intended the killing of women
and children.16
16 Michael Pakaluk, “Some Simple Mistakes about Formal Cooperation,” Thomstica.net October 1, 2012, emphasis added. Available at: http://thomistica.net/commentary/2012/10/1/some-simple-
18
There is some ambiguity here, for Pakaluk writes about what
the agent in question might say, and as noted, people can
say anything they like. The important question is whether
one must know what one is choosing, and intending, as one is
choosing and intending, and the answer must be affirmative if
we are indeed capable of making free choices. For choices are freely
made only if the agent has before her two possible proposals
for action – to do this for the sake of that, or the other,
for the sake of something else. Whatever is opaque to the
agent at the time of choosing simply is not available for
choosing by the agent; and correlatively whatever is chosen
must be chosen knowingly or it is not, after all, chosen.
So agents do know what they are choosing (and intending) as
they choose (and intend), even though they may, for a
variety of easily identifiable reasons, quickly forget,
confuse, or distort in their own recollections. And of
course, they may simply lie. The form of access to the
mistakes-about-formal-cooperation.html . 19
content of one’s choices envisaged by the NNL theory is not
a truth serum.
How should we think of that form of access, though?
Should it be conceived on the model of a looking at, as if
the act of will, the proposal, the intention – any aspect of
the agent’s choosing and acting – were interior acts to be
known through introspection?
This is a question raised by O’Brien in his interesting
essay; he holds that such a view would be mistaken, and
holds too, I think, that the NNL embrace of the first person
perspective commits it to some version of this error17.
Against this, he puts forth important claims by
Anscombe concerning the identity of what is intended,
chosen, and done, with what is observable to a third party.
But it seems to me that O’Brien overstates the distance
between Anscombe and the NNL theorists on this point.18
17 Matthew B. O’Brien, “Elizabeth Anscombe and the New Natural Lawyers on Intentional Action,” National Catholic BioethicsQuarterly, 13 (2013), 47-56.18 I address the issue, however, not insofar as it is a question of how close to or far from Anscombe the NNL theorists are; they do not claim her as an authority, but
20
Anscombe asks early in Intention “how do we tell
someone’s intentions?”19 O’Brien notes that for Anscombe
“the greater number of the things you would say straight off
a man did or was doing [were you, say, observing him] will
be things he intends” (Anscombe, 2000, 8). Thus, to use her
example, if she is sitting in her chair writing, that will
typically be what anyone who is asked says that she is
doing, and in making that attribution, they are typically
also identifying her intention.
Why this convergence of intention, which earlier
described as a first personal reality, with what happens,
what can be seen? Surely it is because some part of what is
intended by an agent is typically some part of what is
visibly done by that agent. What the agent knows
practically, and without observation, is thus the very same
thing that can be observed and recognized by a third person:
that she is sitting and writing. To this extent, it would be
rather a source of ideas.19 G.E.M. Anscombe, Intention (Cambridge, MA: Harvard University Press, 2000), p. 7.
21
problematic to hold that all intention was unobservable,
private, interior, an invisible “trying” to be inferred from
what happened publicly. Such a picture would be dualistic,
a charge which O’Brien has made elsewhere against the
NNLT.20
I do not think that the NNL theorists need deny this
convergence of first and third person for two reasons.
First, the convergence is in part a consequence of the
identity of the person and his or her organic bodily
existence. Actions are not the movements of bodies caused
by previous interior and logically independent intendings;
intention informs human action, which is the action of a
bodily human person. And second, human beings are social,
and their sociality has epistemic consequences: as mutual
20 Matthew B. O’Brien and Robert C. Koons, “Objects of Intention: A Hylomorphic Critique of the New Natural Law Theory,” American Catholic Philosophical Quarterly 86 (2012): 655-703. I respond to this in Christopher Tollefsen, “Response to Koons and O’Brien’s ‘Objects of Intention’”, American Catholic Philosophical Quarterly, 87 (2013), 751-778. For extended,and helpful, criticism of the dualistic picture, see David Braine, The Human Person: Animal and Sprit (South Bend, IN: University of Notre Dame Press, 1993).
22
participants in shared social forms, with a shared set of
concepts, human beings by and large understand what other
human beings are doing across a wide range of activities
just by looking.
But both the ontological and the epistemological
features that underlie the convergence are limited, and thus
the convergence is limited too. For, first, the social
conditions that underlie our epistemic access to what is
being done by way of shared social forms are far from
universal. It is natural for us to observe people intending
to score a basket, to plead with a judge, or to perform
heart surgery. But members of societies without these
practices will be unable to “see” these intentions in action
at all.
And second, the identity of human persons with their
bodily existence is likewise limited because of the
transcendence of the person to her organic bodily existence:
the person is both the same as and not reducible to the
organism that sits and writes. And as transcendent, there
23
is more to the person than what was made fleshly in the acts
that realized what that person intended; indeed, there is
more to what was intended than what was made flesh in action.
Anscombe recognizes this last point in a way that makes
clear some of these limits of the convergence of first and
third personal:
Now it can easily seem that in general the
question what a man’s intentions are is only
authoritatively settled by him. One reason for
this is that in general we are interested, not
just in a man’s intention of doing what he does,
but in his intention in doing it, and this can very
often not be seen from seeing what he does.
Another is that in general the question whether he
intends to do what he does just does not arise
(because the answer is obvious); while if it does
arise, it is rather often settled by asking him.
And, finally, a man can form an intention which he
then does nothing to carry out, either because he
24
is prevented or because he changes his mind…
(Anscombe, 2000, 9).
And Anscombe goes on to note that these phenomena can prompt
us to think of intention as a “purely interior thing,” to be
discovered by probing “the contents” of our minds. This
would be an error.
But I do not think that Finnis was making this
dualistic error in the passage cited by O’Brien to
demonstrate his divergence from Anscombe: “But the actions,
and the reasoning towards the choice(s) whose carrying out
is what human action centrally is, are complex and often
subtle. Transparent to a really clear-headed chooser, they
are for observers always more or less a matter of inference
or belief in testimony…”21 “Always more or less” seems
entirely in keeping with Anscombe’s point: we do, given
shared social forms, generally know what someone is doing by
21 John Finnis, “Introduction,” in Collected Essays, vol. 2, Intention and Identity (New York: Oxford University Press, 2011),13.
25
observation but we almost never know the whole of what they
are doing simply by observation.
And of course, we can on occasion be quite wrong.
Consider as an example of a shared social form that makes
available generally non-inferential knowledge the possession
of common language. Often, perhaps typically, what an agent
intends to communicate can be known straight off without
inference by others who share that language. But not
always: irony and metaphor, for example, can stymie such
understanding, and the eventual recognition of what is
really being communicated can be precisely a matter of
inference or testimony.
Two final points should be made here. The first
returns to the issue of self-understanding and transparency.
The NNLT holds that, as Finnis says, intention is
transparent to a clear-headed chooser. As noted earlier,
this strikes many as objectionable, perhaps because
“transparency” is taken to conjure a privileged “looking
at,” a scrutinizing of the invisible contents of one’s mind.
26
But this, I think, does not do justice to the nature of
first-personal awareness. Even when not spiritual, but
sensory, such awareness is not observational – a point
familiar to readers of Anscombe from her discussion of,
e.g., our knowledge of the position of our limbs. But in
some further cases, such first person awareness is not only
non-observational, but non-sensory and reflexive: we know
that we know without that act of knowing being a further
independent and interior act behind the initial knowing.
Such is also the case in the paradigm instance of intention,
what is freely chosen, for here we will that we will and
know that we will in a reflexive and non-observational way.
Our transparency to ourselves in such acts is not at all
like observational privileged access.
The second point concerns what may or may not be
inferred from the unity of first and third persons, to the
limited but real extent that that unity obtains. Why is
there this unity? Because in acting the agent realizes in
what she does her proposal for action. But for precisely
27
this reason it would be a mistake to conclude that the unity
implies any inference in the other direction from the
“matter” or “nature” of what was done to the content of the
proposal or choice. For the proposal propositionally
identifies those aspects of a possible performance that
serve our end(s), and it is as that (or those) propositionally
identified aspect(s) – under that (or those) description(s) – that our
intention is realized in an event that admits of many more
descriptions. That intentions are realized in actions which are
public events in the world thus does not imply that
intentions are shaped, nolens volens, by public events in the
world.
Yet this is where O’Brien’s essay ends: “human agents
cannot act without choosing a concrete, particular kind of
means that is within their power to perform” (O’Brien, 2013,
56). And so the proposal to reduce a child’s skull is a
proposal which, given the state of the world and medical
science, must include the lethality of the reducing. It is
an observable third personal fact of the matter, against
28
which the agent cannot protest. Here, an entirely
legitimate point about the convergence of the first and the
third personal standpoints starts to move in the wrong
direction, with the third-personal taking the reins. But
this, as I argued above, is to fail to reckon with both the
spiritual nature of intention, and with the way in which
intention shapes action. While intention is not divorced
from the third personal, it is transcendent to it, and not
at its mercy; and what happens is human action precisely
insofar as it is shaped by an agent’s proposal.
II.
Here we come, though, to the central worry of the various
critics, a worry the focal point of which is the concern
that the “intentionalist”, “logicalist” approach of the NNLT
justifies intentional killing of the innocent. Indeed, the
accusation that the NNL theorists are justifiers for baby-
killing lurks barely beneath the surface, as can be seen
from the following, by Long, the special issue’s editor:
29
That New Natural Law Theory is now harmful to the
common good both of the Church and of civil
society insofar as its proponents oblige
themselves to justify, under the aegis of a false
account of intention, acts that are in fact
directly destructive to innocent life. This is an
account that is not only false, but false in such
a way as invites censure by the Church. One
wonders how many therapeutic abortions, how many
wrongful homicides of innocent children, must
occur under the erroneous account they propound —
an account in which whether an action directly
harms is merely a function of intention — before
that account will be finally corrected.22
22 Steven A. Long, “’Goods’ Without Normative Order to the Good Life, Happiness, or God: The New Natural Law Theory andthe Nostrum of Incommensurability,” Thomistica.net, September 18, 2011. Available on-line: http://thomistica.net/news/2011/9/18/goods-without-normative-order-to-the-good-life-happiness-or.html. Long’s view here might profitably be compared with Richard Doerflinger’s judgment on the role played by Germain Grisez in the pro-life movement. Speaking of Grisez’s book Abortion:The Myths, the Realities, and the Arguments (New York: Corpus Books,
30
Long’s essay in the special issue has the virtue of
making clear what the sticking point is: where an action
“terminates directly in an innocent so as to harm that
person,” then the agent must be understood to have chosen
that harm, regardless of her end, or her proposal for action
(Long, 2013, 128). As noted above, Furton puts the point in
a similar way: “The central moral question, as I understand
it, is whether it is possible to directly strike the body of
an innocent person, and so cause that person injury or
death, without intending to cause the injury or death”
(Furton, 2014, 3).
I will in this essay consider no specific cases. The
critics have in mind the NNLT’s views on craniotomy, and the
recent controversy over the Phoenix abortion case, but they
1970), Doerflinger writes “If any book in the pro-life movement deserves to be called prophetic, it must be this one… It is not much of an exaggeration to say that Germain Grisez's book put the intellectually respectable case for the pro-life position on the map.” Richard Doerflinger, “The Rational Case for Life,” available on-line: http://www.nrlc.org/archive/news/1998/NRL7.98/book.html.
31
need not concern us here.23 It will suffice to address the
critics and their views philosophically. I intend to show
that their emphasis on “directly terminating in the body,”
or “directly striking” is entirely misplaced and makes no
good argument against the NNLT account of human action and
intention.
It is clear enough what these critics hope to
accomplish with this emphasis on “directly terminating in”
or “directly striking.” The dialectic here returns to the
problem of “closeness.” How ought we to identify just what
kinds of “closeness” are such as to render some aspect of an
agent’s behavior, or some consequence of what an agent does,
something that is intended by that agent? Long and Furton
are here attempting to identify at least some of what is
thus sufficiently “close” by means of the notion of
23 I address the Phoenix case at greater length in “Double Effect and Two Hard Cases in Medical Ethics,” American Catholic
Philosophical Quarterly, forthcoming 2015.32
“directness”, “directly terminating,” or “directly
striking.”24
In what follows, I argue that this strategy must fail:
“directly striking” and “directly terminating in” on their own
do not accurately identify the dividing line between what is
intended and what is accepted as a side effect in the
standard case of self-defense. So this core notion of Long
and Furton must be supplemented, and supplement they do: it
is directly striking, or terminating in the body of, the
innocent that they identify as the, or perhaps only a, form
of closeness that marks some feature of an agent’s
performance as intended. But, as I shall show, incorporation
of the notion of “innocence” into act analysis is both un-
Thomistic, and is philosophically deficient: in the end, it
renders their analysis viciously circular.
24 There are other attempts to demonstrate the meaning of “sufficiently close”; in this issue, Sherif Girgis criticizes Matthew O’Brien and Robert Koons’s claims that the nature of social practices can help to fix an agent’s intention in “Intent to Kill: Always Wrong?”, National Catholic Bioethics Quarterly.
33
Let me begin the argument, then, with the following
well-known point. Aquinas believed that no private citizen
may ever permissibly intend the death of another person. I
will return below to the further Thomistic claim, that
public authorities, or their deputies, may intend the use of
lethal force on miscreants. For now, the point about
private citizens is the important one. Must private
citizens therefore refrain from defending themselves if they
are attacked? No: the critical passage is ST 2-2, 64.7.
There Aquinas notes that “nothing prevents there being two
effects of an action, only one of which is intended…So, the
act of self-defense can have two effects: one the preserving
of one’s own life; the other, the killing of the aggressor.”
This passage marks the beginning of Catholic moral
thought about the so-called “principle of double effect.”
And we should note that Aquinas’s concern is to argue that
the attacker may be prevented with a lethal response only if
the lethality is outside the defender’s intention. What
sort of defense might we envisage? Perhaps the defender has
34
a long piece of piping with which he can, by striking
forcefully, repel the attack. Perhaps he has a powerful
waterhose, which by aiming at the attacker will repel him.
Perhaps he has a gun; shooting the attacker will repel him.
Let us suppose that in each case, the attacker will be
lethally harmed.
In each case, the defender’s act will certainly
“terminate directly” in, and “directly strike” the body of
the attacker. Yet the tradition equally certainly defends
the permissibility of such defense, even when the attacker’s
death can be foreseen. So a lethal act terminating directly
in the body of another, or an act of directly and lethally
striking another is not just as such an instance of intentional
killing. How can Long, or Furton, overcome this difficulty?
Their strategy, it seems, is to supplement their core
concepts with the concept of “innocence”: repeatedly, they
focus on actions directly terminating in, or directly
striking the bodies of, innocent persons. But this
supplement is inadequate to solve the problem, for some
35
actions that appear to terminate in the body of, or
involving direct strikes upon, innocents also need not
involve an intention to kill those innocents.
“Innocent” in the natural law tradition has two
meanings, which might easily be confused. One meaning is
that the agent in question poses no threat (Long calls this
“performatively innocent”). The second meaning is that the
agent in question is morally innocent. Is it the case that
actions lethally terminating in the body of an innocent in
one or the other or even both senses must always involve
intentional killing? The answer is no.
Consider first the case of agents who pose a threat but
are morally innocent. The threat might come from a child,
strapped with explosives, or from a madman, unknowing of
what he does, or from a person whose bodily momentum, as a
result of an act over which he had no control, currently
propels him towards a possibly fatal collision with several
infants.
36
This last agent is a threat because of his body and its
momentum. And so that threat may be responded to by
physical action intended to repel, thwart, or prevent, the
eventual and fatal collision his body’s momentum threatens.
He may be shoved, if he is close to hand and I am strong
enough; but equally he may also be struck with a long pipe,
shot with a gun, or blasted with a lethally strong blast of
hot water. The intention here is to save the children by
repelling his body, by means judged sufficient to repel,
even if they are also recognized to be lethal. His moral
innocence is irrelevant, and has no bearing on what I
intend.
Nor is it the case that actions terminating in the
bodies of those who are “performatively” innocent because
they pose no threat must involve intentional killing on
grounds that they are morally wicked. For the collateral
damage of a legitimate bombing campaign against enemy
military targets is damage done, albeit as a side effect, on
human beings entirely innocent in Long’s “performative”
37
sense – even if some or all are not morally innocent or
indeed are quite wicked. But supposing, more realistically,
that at least the children are morally innocent, we here
have actions terminating lethally in the bodies of those who
are innocent in both senses that involve no intentional
killing.
We are thus in a bind: actions directly striking, or
terminating directly in the body of an innocent do not
necessarily involve an intention to harm those innocents.
What to do? One possibility would be to return to the
notions of “directly striking” and “terminating directly” to
see if further refinement might provide more adequate
analyses. So let us consider some possible ways of
restricting the meaning of these phrases. Consider what
it means to “directly strike” something. Perhaps my
counterexample of the strategic bomber misses the correct
sense of this phrase – after all, the strategic bomber is
aiming at the military installation, and not the bodies of
the citizens. Let us therefore adapt an example from
38
Christian Brugger. A hostile terrorist might use an
entirely innocent – in both the moral and the performative
senses -- human being, a child perhaps, as a human shield,
while threatening, say, to shoot down an airliner. Shooting
through the innocent to get to the terrorist has, as its
side effect, the death of that innocent. Yet it seems an
example of directly striking and even aiming.25
Perhaps this example, however, fails to capture the
sense of “termination” in Long’s oft repeated phrase
“terminating in the body”, for my aim is that the bullet go
through the child to hit the terrorist, and not that it
terminate in the child’s body.
So let us consider the cases of those soldiers, of whom
there have been an extraordinarily and even awesomely high
number, who have fallen on a grenade in order to shield
25 Brugger’s example comes from Alien vs. Predator (not a court case). In this movie, an alien is incubating in the chest of a human who urges his comrade to “Kill it before it reaches the surface!” She takes aim at his chest and shoots, killing both her friend and the alien. See “Action,Intention and Self-Determination,” Vera Lex: Journal of the International Law Society, vol. 6, nos. 1-2 (Winter 2005), 79-106.
39
their comrades from its blast with their own bodies,
cognizant, of course, that they were headed for virtually
certain death. We may even look at a case in which the
grenade in question was not thrown by an enemy. Here is the
case, of William “Billy” McFadzean, as told by the Dictionary
of Ulster Biography:
As day was breaking on 1 July, he was preparing
his ammunition, which came packed in boxes. As he
was cutting the binding rope on one box, two
grenades fell out, and lost their pins – this
meant that they would explode within seconds, and
cause along with the other grenades an enormous
explosion which would have been devastating in the
combined space of a trench. A split-second
decision – McFadzean threw himself on top of the
box, thus absorbing almost all the blast, so much
so that only one other soldier was injured. In the
words of his VC citation in the London Gazette two
months later:
40
“The bombs exploded blowing him to pieces, but
only one other man was injured. He well knew his
danger, being himself a bomber, but without a
moment's hesitation he gave his life for his
comrades.”26
Did McFadzean’s action “terminate in the body of an
innocent”? Surely the answer is yes, in any relevant sense
of the word, nor was there even an unjust aggressor in the
vicinity. Yet McFadzean is not to be condemned as a
suicide: his death, accepted with astonishing bravery, was
outside his intention, an intention which was to save his
friends by protecting them from the shrapnel by covering the
grenade with his own body to as to absorb into himself that
shrapnel. The case reveals clearly that the focus on
“directly terminating in the body of an innocent”, just like
“directly striking the body of an innocent”, is utterly
26 “William McFadzean, vc (1895-1916) soldier”, Dictionary of Ulster Biography. Available on-line: http://www.newulsterbiography.co.uk/index.php/home/viewPerson/1949
41
misplaced and provides no adequate way to think about
intention.
Now if we go back to the original case of self-defense
against an unjust attacker as put forth by Aquinas, Long has
an alternative story about why a lethal intention is not
present in just self-defense. The story is illustrative of
some general differences between Long, Furton, and various
other critics, and the defenders of the NNLT. Long writes,
It is true that, as Aquinas teaches, where the
object is per se ordained to the end, the species
derived from the end is most formal and
containing. Thus, in just defensive action one
may harm an unjust assailant under the ratio of
warding off unjust assault, insofar as such harm
is the only proportionate means of defense.
In this passage, Long seems to reduce intention to a willing
of ends only, and to justify chosen harm as outside the
intention so long as the person harmed is not himself
innocent, in at least one, and possibly both senses of the
42
term. Why? Because when one is engaging in just defensive
action against an unjust assailant, “the object is per se
ordained to the end, [and] the species [is] derived from the
end [and] is most formal and containing.” The good end of
saving oneself from unjust attack thus swallows up the
description of the means. Thus, Long justifies cases in
which “a deliberately and per se lethal means is chosen
because it alone is proportionate to the end of moderate
defense.”27 Put another way, where one’s killing is per se
ordered to just defense, one can, according to Long (and on
Long’s interpretation of St. Thomas) choose to kill.
Long’s analysis here mirrors his analysis of cases in
which his judgment is that immoral means have been adopted.
In those cases, what Long calls the “integral nature and per
se effects” of an action are not included in the intention
as “most formal and containing”, because their physical
character is not teleologically ordered towards their end –
towards what made it desirable to the agent to do the action
27 Steven A Long, The Teleological grammar of the Moral Act (Naples, FL: Sapientia Press of Ave Maria University, 2007), 50.
43
in question. We should note that for Long, this “integral
nature” or “the act itself” is something that stands apart
from the agent’s choice as available to be chosen, but not
constituted by that choice. The integral nature of the act
itself thus constitutes an external and objective constraint
on what an agent intends. Thus, if it is of the integral
and essential nature of an act that it be an instance of
poisoning, scraping, spearing, or crushing an innocent human
being, then, because such acts are per se ordered towards
death, insofar as they terminate directly in the body of the
innocent person, they may never be licitly done.
Long’s interpretation of Aquinas on self-defense is
crucial to his entire account, for self-defense is clearly
action that terminates directly in the body of another. If
that by itself suffices to render it intentional killing,
then Long must either abandon his emphasis on “terminating
directly,” or allow intentional killing in defense. Long’s
solution to the dilemma is to hold that for St. Thomas,
chosen killing of an unjust aggressor is not intended:
44
intention is only of the end when the aggression is unjust,
and the end alone thus gives the moral species to the act of
defense.
This analysis does not accurately construe St. Thomas’s
position. Christian Brugger, in an essay to which Long has
not, to my knowledge, responded, has shown quite thoroughly
that it is an error to think that Aquinas, in his treatment
of permissible self-defense, and homicide more generally,
uses “intention” only to refer to what is pursued as an end.
For example: Aquinas defends the intentional killing of
criminals and exterior enemies by those with public
authority, for the killing is ordered to the public good.
As Brugger then argues,
…it is clear that this type of intentional killing
(which is the normative type for justifiable
intentional homicide throughout question 64) does
not conform to Long’s strict “per se instance of
human action.” If it did, the killing could not
be said to be intended, since it is willed as a
45
means to the end of preserving the common good.
Yet Aquinas clearly calls the killing intended: “It
is not lawful for a man to intend killing a man in
self-defense except such as have public authority,
who while intending to kill a man in self-defense,
refer this to the public good (Aquinas, ST, II-II,
Q. 64, a 7). It must therefore be the case that
Aquinas means to include under his use of
intention in q. 64, a. 7 the willing of both ends
and means.28
And one can see the same point at work elsewhere in the
treatment of self-defense. In the first two objections,
Aquinas adverts to St. Augustine’s view that killing by a
private person in self-defense is impermissible. Aquinas’s
solution is that
The words quoted from Augustine refer to the case
where one man intends to kill another to save
28 E. Christian Brugger, “Praeter Intentionem in Aquinas and Issues in Bioethics,” in Bioethics with Liberty and Justice: Themes in the Work of Joseph M. Boyle (Dordrecht, the Netherlands: Springer Academic Press, 2011), 102-103.
46
himself from death. The passage quoted in the
Second Objection is to be understood in the same
sense. Hence he says pointedly, for the sake of these
things, whereby he indicates the intention.
Thus the authority of Augustine against the permissibility
of killing in self-defense is limited by holding that what
Augustine was ruling out was the defender’s intending to
kill in order to save his life – i.e., to kill as a means.
But this is precisely what Long believes St. Thomas allows.
His reliance on the authority of St. Thomas at this point is
thus an error.
Let us leave aside the question of the Thomistic bona
fides of Long’s view. A further problem is that the analysis
is circular. What we want to know is when an effect – the
death of a person – that would be immoral if intended, is
not intended, for if not intended, its immorality is not
guaranteed (though it might, as we saw in the discussion of
Flannery, still be morally impermissible). However, we
cannot give as an answer to that query: the death is not
47
intended when the lethal effect is part of a just defensive
action. There is the circularity, for we seek to know what is
intended as a preliminary to determining the justice of the
response.
Nor can the circle be eliminated by enlarging it, with
the claim that when a response is just, it is “per se
ordained to the end,” and the lethal effect thus praeter
intentionem in virtue of the end’s being “most formal and
containing.” The circle is still there, for it is the
justice of the response that is again determining what is
and is not intended. But perhaps the explanation goes in
the other direction: perhaps, when the means are per se
ordained to the end, then the means are praeter intentionem,
and, consequently, appropriate and just. This in fact appears
to be Long’s position. But then how do we determine which
means belong to this category and which do not?
There are two points to make about this issue. First,
what is meant by an action’s being “per se ordained to [its]
end”? Here we must turn to Long’s frequently made
48
assertions about the “act’s integral nature.” Long holds
that a human action has its integral nature in some measure
independently of the agent’s proposal, and rather in virtue
of its “physical reality.” So an agent’s choice of an
action is in some respects like a choice of, say, an apple,
when offered more than one: it is a picking of something
that has a prior existence, with certain objective features
that make their mark upon the intention of the agent willy-
nilly. But what exactly is envisaged here? Actions do not
have such a prior reality; they are brought into being
through an agent’s intention and choice, as those are
realized in a performance undertaken by the agent.
But secondly, I think, it is in fact the concept of
“innocence” that does most of the heavy lifting when Long is
pushed to give an account of an act’s integral nature. When
the person in whom one’s lethal action terminates is
innocent, then the terminating action is not per se ordained to
its end, whatever that end might be, and the act’s integral
nature is to be an act of killing. But when the person in
49
whom the lethal action terminates is not innocent, then the
act undertaken becomes in itself an act per se ordained to
its end. Which is to say that when the lethal act is morally
justified, then it is not intended; and we are once again back to
the circle. Long’s view here seems to be an instance of the
approach to double effect strenuously criticized by Alison
McIntyre in her well-known essay Doing Away with Double Effect, in
which double effect reasoning is used after the fact to
justify moral judgments made on other grounds.29
This is not the approach of the NNLT. Its defenders
believe that intention is one thing, moral assessment
another. Thinking clearly about intention should not in
fact be guided by prior moral judgments, and McIntyre’s
judgment seems correct: if what is really doing the work is
not a judgment about intention but something else, then
intention, and with it double effect, should be jettisoned.
It is certainly questionable whether such an approach is
29 Alison McIntyre, “Doing Away with Double Effect,” Ethics 111 (2001), 219-255.
50
consistent with the Catholic tradition of moral thought, of
course.
I conclude, then, that the approach advocated by
defenders of the NNLT has not been impugned in the least by
the essays of its critics as assembled in the NCBQ and Ethics
and Medics.30
30 My thanks to Joseph Boyle and Ryan Anderson for helpful comments on earlier drafts.
51
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