the anonymity exception

North American Philosophical Publications

The Anonymity ExceptionAuthor(s): D. W. HaslettSource: Public Affairs Quarterly, Vol. 21, No. 1 (Jan., 2007), pp. 1-19Published by: University of Illinois Press on behalf of North American Philosophical PublicationsStable URL: http://www.jstor.org/stable/40441453 .

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Public Affairs Quarterly Volume 21, Number 1, January 2007

THE ANONYMITY EXCEPTION

D. W. Haslett

the mining, processing, and transporting of nuclear fuels, and the normal operations of nuclear power plants, small amounts of radioactive

materials are emitted into the environment. A government study reveals that, during a twenty-five-year period, at least one thousand people will die of cancer throughout the United States from these routine emissions.1 Consider now a hypothetical corporation, New-Clear Energy, which mines, processes, and trans- ports nuclear fuels to its nuclear power plant, which provides many homes and businesses with reliable, relatively inexpensive electrical power. We may assume that the government closely regulates the nuclear power industry, requiring that those in this industry adhere to all known safety measures, which New-Clear does. Nevertheless, as New-Clear well knows, a number of innocent people will, over time, be killed from its lethal emissions.

I. Murder

Deliberately doing what kills innocent people against their will normally would be considered murder. Why then is New-Clear Energy not committing murder? New-Clear Energy, being a corporation, is not, of course, a real person; it is an "artificial" person, and whether an artificial person can, strictly speaking, commit murder is questionable. Clearly, however, the managers of a corporation can, while acting within the scope of their duties, perform unethical or illegal acts that are then attributable not only to them, but to the corporation as well. For

example, unethical or illegal negligence by New-Clear's managers, while acting within the scope of their duties, can be attributed to New-Clear as well. Let us

just assume - not for any deep ontological reasons, but merely because it is a convenient way of talking - that murder committed by New-Clear's managers, while acting within the scope of their duties, can be attributed to New-Clear as well, just as can the negligence of its managers. So, by emitting radioactive materials that kill innocent people, why is New-Clear (or, if you will, its managers) not committing murder?

To answer this question, let us begin by seeing what requirements must be met for what some moral agent, A, does to count as murdering B? The first require-

1



2 PUBLIC AFFAIRS QUARTERLY

ment is that what A does must cause B's death. Although we shall not attempt here to formulate the causation requirement, it is clear that New-Clear is indeed causing people's deaths.2

The second requirement is that what A does to cause B's death must be done voluntarily. Assume, for example, that B is an extremely fragile, ninety-nine year old woman. If C pushes A and, as a result, A cannot help falling onto B, thereby killing her, then, although what A does - that is, fall onto B - causes her death, A does not murder B since what he does to cause her death is not done voluntarily.3 Clearly, however, what New-Clear (or, to be more exact, its management) does to cause the deaths of those who die from New-Clear's emissions is done voluntarily.

The next requirement that must be met for what A does to count as murdering B is that it must be foreseeable by A that human death will result from what A does. It need not be foreseeable that what A does will cause the death of B in particular, all that need be foreseeable is that it will cause someone's death. Moreover, the foreseeability requirement does not require that A actually does foresee that death will result from what he does. For the foreseeability requirement to be met, all that is necessary is for death to be foreseeöWe by A, in that either A does foresee it or, if he does not, it is so obvious that he should foresee it. Finally, the foreseeability requirement does not require that death from what A does be desired by A; it need only be foreseeable by him. As H. L. A. Hart writes, "the law ... is content to hold a man guilty if the harmful consequence, e.g., death, was foreseen by the accused in the sense that he believed that it would come about as a result of some voluntary action on his part. . . . [F]or the law, the foreseen outcome is enough, even if it was unwanted by the agent, even if he thought of it as an undesirable by-product of his activities."4 Similarly, Black's Law Dictionary tells us that the mens rea necessary for murder exists if the person doing the act that causes death "has the knowledge that the act will probably cause the death . . . although he does not desire it, or even wishes that it may not be caused."5 Certainly New-Clear's managers do not desire any deaths from New-Clear's radioactive emissions. But as long as they foresee the deaths, which, ex hypothesi, they do, the mere fact that they do not desire the deaths does not exonerate them or, consequently, New-Clear.

Although it is well established that the foreseeability of death even without its being desired, or therefore intended, is sufficient in Anglo-American law for murder, in the literature on what constitutes immoral killing, it is less well established. Certain philosophers, determined to defend the so-called Doctrine of Double Effect,6 continue to insist that, for morality, foreseeability without desire, and therefore without intention, is not enough. According to these philosophers, to be guilty of murder from a moral perspective, the agent must not only foresee that what he does will cause death, but must also desire and thus intend the death. The discussion here, however, presupposes that the foreseeability requirement of law, which does not require intention, does, and should, hold for morality as



THE ANONYMITY EXCEPTION 3

well. Requiring only foreseeability, not desire or intention, avoids, in both law and morality, numerous unnecessary complications and unjustifiable loopholes.7

The final requirement that must be met, in either law or morality, for what A does to count as murder is that no mitigating, excusing, or justifying conditions exist. Conditions that may mitigate, excuse, or justify As killing B include the following. A acted under compulsion, or severe provocation. A was not in a normal state of mind, but was insane, under the influence of a drugs, suffering from an obsessive-compulsive disorder, delusional, or the like. As killing B was necessary for self-defense. A, through no fault of his own, was mistaken about a crucial fact, such as, for example, about whether killing B was indeed necessary for self-defense. B, suffering severely and uncontrollably from a terminal disease, had given genuine consent. That there must be no mitigating, excusing, or justifying conditions we may call the 'no exculpatory conditions' requirement. New-Clear's managers are, we may assume, not acting under any sort of compulsion, and do not exemplify any abnormal state of mind that excuses or mitigates what they do. And the victims of New-Clear's emissions are perfectly innocent and do not exemplify any conditions - such as, say, their having given some sort of consent - that would defeat the claim that New-Clear murders them. In short, it appears as if New-Clear's managers meet the no exculpatory-conditions requirement as well and, therefore, so does New-Clear.

It may be useful to compare the case of New-Clear Energy to a paradigmatic case of murder, such as that of Mugger. In Mugger, A shoots B to death in a dark alley in order to steal her wallet. There are, of course, dramatic differences between the case of New-Clear Energy and that of Mugger. Yet none of these differences, as dramatic as they are, seem to be relevant to whether what New-Clear does counts as murder. One difference is that the mugger knows in advance exactly whom he is going to kill, while New-Clear does not. But consider the case of the Tylenol Murderer, a case in which the murderer poisoned Tylenol capsules that he knew would kill whoever took them, but did not know who it would be. This case illustrates that, for a foreseeable killing to count as murder, it is not necessary that the identity of the person to be killed be known in advance. In the case of New-Clear Energy, however, not only is the identity of New-Clear's victims not known in advance, but their identity is not known even subsequent to their being killed. Although it is, ex hypothesi, certain that New-Clear's emissions are killing people by giving them cancer, from among those who die from cancer, there is no way of knowing which of them contracted it specifically from New- Clear's emissions, and which from something else. But not even the possibility of identifying victims subsequent to their being killed is necessary for killings to count as murder. Consider the case of Hyena. Suppose that on average a hundred people die every day in New York City from heart failure. The Hyena, a notorious terrorist, procures a highly toxic, odorless gas that, when released into the air, causes people to die from heart failure. As a protest against American foreign




policy, on New Year's day the Hyena releases this toxic gas throughout New York City and, as a result, on that day not just around a hundred, but a thousand people die from heart failure. From among these thousand deaths, however, there is no way to distinguish those that were caused by the Hyena's toxic gas from those that were not. Thus even subsequent to the Hyena's mass killings, the identity of those he killed remains unknown. Clearly, however, this does not prevent what the Hyena does from counting as murder.

One might argue that a relevant difference between New-Clear Energy and Mugger is that, in Mugger, there is no redeeming social benefit from the killing while, in New-Clear Energy, the deaths from New-Clear's lethal emissions are a regrettable, but necessary cost of the beneficial electrical energy that New-Clear supplies to millions of homes and businesses. Is then this social benefit from New- Clear's killings not a relevant difference between the two cases, a difference that prevents New-Clear's killings, but not the mugger's, from counting as murder? The answer has to be no; killing an innocent person for the benefit of others is not permissible.8 It is not, for example, permissible for Smith to kill the CEO of the corporation at which he works just because the benefits from doing so, enormous benefits to shareholders, employees, and even the CEO's long-suffering wife, far outweigh any costs. Nor is it permissible for a doctor to grab an innocent visitor to the hospital, as in the case of Transplant, and kill him for the sake of distributing his organs to five people in need of organ transplants who otherwise will die. Balancing the interests of some against the interests of others and then killing some for the greater benefit of others is something neither law nor morality tolerates from people in general. We may not, in other words, benefit some by doing to others what normally would count as wrong. We could not count upon people's balancing calculations being reliable enough, and, in any case, the anxiety and insecurity throughout society that would result from permitting everyone to attempt such calculations and then act upon them would be immense.9

So far then we have yet to discover a relevant difference between New-Clear Energy and Mugger, a difference that explains why New-Clear (or its management) is not guilty of murder, while the mugger is. Perhaps, however, the relevant difference between the two cases is in terms of governmental permission or consent - consent that need not always be explicit, but can, under certain circumstances, be implicit as well. Government does, so it appears, genuinely consent to corporations emitting the type of lethal pollution that New-Clear emits, but certainly does not consent to people firing the lethal gun shots that the mugger fires. This, however, raises two main questions. The first question is: In terms of what criterion exactly should governmental decisions about whether to consent or withhold consent to lethal activities be made? The second question is: What exactly counts as "genuine" governmental consent, explicit as well as implicit? Here we shall investigate the first of these two questions, beginning with a consideration of the government's "interest-balancing" authority. The second question, although important, is investigated elsewhere.10




II. The General Welfare

For a government to consent to all harmful pollution found in a modern indus- trial economy would clearly be unacceptable. But almost as unacceptable would be for a government to issue a blanket prohibition of absolutely all harmful pollution; all harmful pollution could not be discontinued without shutting down most of the economy, thereby turning back the clock on centuries of economic progress. Since both of these alternatives are unacceptable, government must therefore decide between polluting activities that should be prohibited or regulated, and ones that should not. And it should make these decisions never in terms of what is in the welfare of special interest groups, but in terms of what is in the general welfare of those within its jurisdiction. To decide what is in the general welfare, however, government must have the authority to balance the interests of some against the interests of others, choosing the alternative that results in the greatest overall interest satisfaction, thereby sacrificing, at times, some interests for the sake of satisfying even greater interests. Only through pursuing the general welfare by thus balancing interests can polluting activities that should be prohibited and those that should not be prohibited be distinguished rationally.

Governmental interest balancing makes possible many other vital governmental decisions as well, ones unrelated to pollution. Consider, for example, what are, in effect, mandatory vaccinations of children against terrible diseases.11 Whether or not to require such vaccinations can only be determined by balancing the thousands of lives that will be saved by these vaccinations against the handful of lives that it is known, in advance, will be lost from allergic reactions to the vaccinations. Other governmental decisions that require a balancing of interests include, for example, decisions about taxation, about poverty relief, and about the use of military force. Robert Nozick argues against interest balancing when he writes: "There are only individual people, different individual people, with their own individual lives. Using one of these people for the benefit of others, uses him and benefits others [N]o one is entitled to force this upon him - least of all the government."12 Nozick is partially correct in that, as already explained, neither law nor morality should allow just anyone to balance interests for the sake of sacrificing innocent lives for the benefit others. But to make the sort of decisions most of us, with good reason, want government to be able to make, the government must be authorized to do this. So, it is suggested here, in argu- ing that no one is entitled to sacrifice some for the benefit others, Nozick should have concluded not by saying "least of all the government," but instead by saying "except the government." To fully appreciate why this is so, let us take a closer look at how, exactly, the government's pursuit of the general welfare, through a

balancing of people's interests, is related to personal welfare. Nozick argues that no person's welfare should - without adequate compensa-

tion - ever be sacrificed by the government for the welfare of others. But since the general welfare cannot, he says, be pursued except by sacrificing the welfare




of some - without adequate compensation - for the welfare of others, Nozick concludes that, therefore, the government's pursuit of the general welfare should be abandoned. It is true that, just as Nozick says, the government's pursuit of the general welfare does necessarily require sacrificing the interests of some for the sake of others. What is not true, however, is that those whose welfare is thereby sacrificed are not adequately compensated. If a government made only one decision throughout eternity, then it would be true that those whose welfare was sacrificed for the general welfare would not be adequately compensated. But, in reality, governmental decision making is ongoing without end; decision after decision is made in an unending progression of decisions. With any one governmental decision in pursuit of the general welfare, Jones may be a member of some group whose welfare is sacrificed for the sake of those in some other group. But with successive governmental decisions in pursuit of the general welfare, it will be different groups at different times that bear the sacrifice. So with the next governmental decision, Jones may be a member of some group whose welfare is advanced at the expense of those in some other group. The key point is this. The odds for any given person are that, in spite ofthat person's welfare being sacrificed at times, he or she will end up gaining in the long run. So the odds for any given person are that, from an unending succession of governmental decisions, over time he or she will indeed be adequately compensated for any losses.

Consider, for purposes of illustration, a hypothetical country whose population is split evenly among those in the upper class, with 180 megaunits of welfare among them, those in the middle class, with 130 megaunits, and those in the lower class, with 80 megaunits. A "megaunit" is fictional, but let us suppose that well-being could be so measured. During the month, this country's government, by balancing interests, makes three separate decisions in pursuit of the general welfare. The decisions are separate in the sense that they cannot simply be col- lapsed into a single decision, as each is made without the government anticipating the ones that follow it. As shown by the chart below, each decision maximizes the general welfare by sacrificing the welfare of one group by twenty megaunits for the sake of increasing the welfare of the other two groups by twenty megaunits. But since it is a different group each time that bears the sacrifice, each group ends up better off at the end of the month.

Welfare at After deci- After deci- After decisions start of month sion 1 sions 1 and 2 1, 2, and 3

Upper Class 180 160 180 200 Middle Class 130 150 130 150 Lower Class 80 100 120 100

Obviously this illustration is, for the sake of simplicity, highly contrived, yet the point it illustrates is real. For any temporary losses they may suffer from the government's pursuit of the general welfare, those in every group are over time likely to be more than adequately compensated.




But, a defender of Nozick's view might ask, what if, in the government's pursuit of the general welfare, a person is the member of some group that does not get its turn at being a "winner"? What if, for example, legislators systematically focus only on improving the welfare of some favored group, such as the poor, and Jones happens to be rich? In reply, the first thing to point out is this. As we have already seen, focusing only on improving the welfare of some favored group in the pursuit of the general welfare is, according to the view being defended here, strictly forbidden by the equal-consideration requirement. Morality requires that the government, in the pursuit of the general welfare, always give the interests of everyone within its jurisdiction equal consideration. Given the equal-consideration requirement, it is highly unlikely that the government's balancing of interests will end up always, or almost always, favoring some particular group. Considerations such as the diminishing marginal utility of wealth will no doubt direct some favorable decisions toward the poor. But other considerations, such as the need for a certain amount of inequality to provide sufficient incentive for working hard, will direct other favorable decisions toward the rich. Over time, considerations such as these will tend, more or less, to balance out, sometimes favoring one group, sometimes another.

Moreover, people are members of not just one group, but of innumerable different groups. So even if, as a member of one group, a person may be able to correctly anticipate "losing" more often than "winning" through governmental decisions in the general welfare, these loses are likely to be more than compensated for by the winnings of other groups to which that person belongs. Consider the rich person. Say he were correct in anticipating overall losses from being a member of the group "rich people." He will still be a member of innumerable other groups as well, groups such as "automobile drivers," "parents," "home owners," "wildlife enthusiasts," and, of course, "human beings vulnerable to diseases and injuries," a group to which we all belong. He can reasonably expect that any overall losses from governmental decisions that he may suffer by being a member of the group "rich people" will be more than compensated for by decisions that benefit those in these other groups to which he belongs. Many governmental decisions in the general welfare, like food and drug regulations and environmental-protection laws, benefit almost all people no matter what groups to which they may happen to belong.

Nevertheless, a defender of Nozick's view might persist, it is perhaps true that, if the government extracts only relatively small sacrifices from people for the sake of always doing what maximizes the general welfare, then, over time, everyone will indeed likely be better off as a result; but what if the government extracts unusually large sacrifices from some? Consider, for example, forcing people to be slaves for the sake of the general welfare, or perhaps even sacrificing their lives, as in the case of the people living near New-Clear's power plant. If the sacrifice extracted from some person were large enough, then not even over time would that person be adequately compensated for it.




It is true that no amount of later gains for some person would be likely to be adequate compensation for the government's extracting certain unusually large sacrifices from that person, or permitting others to do. But, to complete the argument, we must now look more closely at the role that rights against the government play, rights that are to be given priority over the general welfare. These include rights such as freedom of speech, freedom of religion, the right not to be enslaved, and the right to life itself. Fundamental, moral rights against the government such as these serve two functions. First, they are a safeguard against governmental fal- libility. Governmental behavior contrary to what these rights prescribe is rarely in the general welfare, and governmental attempts to pursue the general welfare by such behavior will fail more often than succeed. Thus it makes sense to prohibit, by means of these rights, such attempts altogether.

The second function that rights against the government serve, the one most relevant here, is to prohibit the government, in its pursuit of the general welfare, from extracting from people just the sort of sacrifices that are so great that it is highly unlikely, or perhaps impossible, that any benefits from future governmental decisions would ever compensate adequately for them. This function can be stated more precisely in terms of the concept of "expected utility" - a technical concept for determining the extent to which something (a decision, action, policy, or whatever) is in a person's best interests from a standpoint in which its actual results are not known; all that is known are its possible results, along with their probabilities of occurring. Something's expected utility for a person is then found by multiplying the utility, or disutility, of each of its possible results times the probability of that result's occurring, and adding these products together. Moral rights against the government serve the function of helping to make it such that governmental pursuit of the general welfare over time promotes everyone's expected utility. And they do this by prohibiting the government from extracting from people just the sort of sacrifices that are so great that benefits from future governmental decisions probably would not compensate adequately for them.

Even a government that promotes expected utility for everyone cannot, of course, guarantee overall benefits for everyone, even over time. But, as argued in this section, a government authorized to pursue the general welfare, but constrained by the equal-consideration requirement along with rights against the government, provides, for everyone, more expected utility than a government prohibited altogether from pursuing the general welfare, such as is Nozick's libertarian government. This then is why governments should pursue the general welfare.

Finally, with the definition of "expected utility" in hand, exactly what constitutes the general welfare can now be made more clear. Some governmental decision, D, is more in the general welfare than any alternative if and only if D maximizes overall expected utility; that is, the sum total of expected utility from among all citizens of the territory over which the government has jurisdiction.




III. The Right Not to Be Seriously Harmed

So far we have seen that we need moral rights against the government to constrain the government's pursuit of the general welfare enough to prevent governmental decisions from extracting sacrifices from some people that are so great that future governmental decisions probably could never provide them with adequate compensation. And clearly one of the most crucial of these moral rights against the government is a right to life. This right precludes the government from killing innocent people unethically. But does it preclude the government from giving others consent to kill innocent people unethically? Suppose that, to the law prohibiting murder, the government makes an exception for the Mafia, thereby giving it the government's consent to kill innocent people unethically. Does its giving the Mafia consent to unethically kill violate any rights we have against the government? Surely it must. Perhaps it violates our right to have the government enforce our fundamental, moral rights. Or perhaps, by the government's giving unethical killings its consent, thereby bestowing upon them the protection of law, the government becomes an accessory to these killings, or maybe even an accomplice. In any case, it is presupposed here that our rights against the government do indeed prohibit the government not only from itself wrongfully killing innocent people, but also from its permitting others to do so. For convenience, let us lump together our right against the government not to be killed by the government itself and our right against the government that it not consent to others wrongfully killing us, and call this combination our right against the government to "life." Another important moral right we have against the government is our right to noninjury, a right that precludes the government from physically injuring our person or property. As with unethical killing, we shall presuppose here that not only do we have a right that the government itself not unethically injure us, but we also have a right that the government not give others its consent to do so. And, for convenience, let us lump these rights together, calling it our right against the government to "noninjury." Finally, for convenience once again, let us refer to these two rights taken together - our right to life and our right to noninjury - as our right against the government not to be "seriously harmed," that is, seriously harmed physically. What is meant by "physical" harm here is harm only in the form of material damage of some sort. Governmental appropriation of property, through taxation or eminent domain, therefore does not fall within the scope of this right. Harm that is merely incidental or minor does not fall within the scope of this right either, only harm that is genuinely serious.

The authority to balance people's interests brings with it enormous capacity not only for doing good, but for doing harm as well. This authority not only allows

governments to make those decisions such as whether or not to consent to New- Clear's lethal pollution, but - if unconstrained - this authority would also allow governments to engage in Nazi-like atrocities, such as secretly killing citizens with views that allegedly threaten the general welfare. Because, however, the authority




of balance interests is indeed constrained by our rights against the government, including our right not to be seriously harmed, governments are thereby morally precluded from outrageous Nazi-like acts* and policies, or tolerating them from others, whether these acts and policies be in the general welfare or not.

But now we are faced with a problem. Governmental consent, either explicit or implicit, appears to be the only reason why those being killed by New-Clear's lethal emissions are not being killed unethically, like those being killed by the mugger. And governmental consent to New-Clear's lethal emissions is possible only by determining which polluting activities are, and which are not, in the general welfare. But the government's pursuit of the general welfare is constrained by moral rights against the government, which always have priority over its pursuit of the general welfare. And these rights include the right not to be seriously harmed, which prohibits the government from killing innocent people, or giving others its consent to do so. But if this right prohibits the government from giving consent to others to kill innocent people, then it appears to prohibit the government from consenting to New-Clear's lethal emissions. In other words, the right not to be seriously harmed appears to prohibit the government from doing the only thing that prevents New-Clear's polluting activities from being murder.

IV. The Anonymity Exception

The solution suggested here to the above problem is this. The following exception should be built into the right against the government not to be seriously harmed. This right should prohibit the government from killing and injuring, or permitting others to do so, except in cases in which, prior to the appearance of the physical harm in question, it is not known who is to be thus harmed. Let us call this the "anonymity" exception. For purposes of the anonymity exception, the physical harm in question "appears" at the point at which it first becomes obvious that it has occurred, or has begun to occur. For example, the harm to the victims of New-Clear's lethal emissions, "appears" at the point at which the bodily symptoms of their deadly cancer first show up. Given the anonymity exception, rights against the government are to prohibit such harms only to people whose identity, prior to the harm's appearance, is, or can become, known to the government, or whoever else may be responsible for the harm. And what is meant by a person's identity being "known" is that it is known who the person is, either in the strong sense of his or her name being known, or in the weaker sense of its being possible to identify the person ostensively, that is, by "pointing." If the person's identity is not, and cannot become, known, then, and only then, does the anonymity exception apply.13 With the anonymity exception built into it, the right not to be seriously harmed is as follows.

RIGHT NOT TO BE SERIOUSLY HARMED: All people have a right that a government not seriously harm their body or property, or consent to others doing



THE ANONYMITY EXCEPTION 1 1

so, except in the case in which (1) whoever is to be harmed remains, prior to the appearance of the harm, anonymous, and (2) there is no alternative that would reduce the chances of harm that is even more in the general welfare.

The anonymity exception is not the only exception that should be built into the right not to be seriously harmed; also built into it should be, for example, an exception for justifiable, duly imposed punishment. No doubt there should be other exceptions as well, but we need not attempt to set them out here. And, of course, the right not to be seriously harmed is not the only constraint that morality and law should place upon the government's pursuit of the general welfare; other rights against the government, such as the right to freedom of speech, should constrain the government as well. There is no need for building an anonymity exception into any of these other rights. Moreover, no such exception should be built into any rights that people have against one another, including the right not to be seriously harmed. The reason for this is that with the anonymity exception comes the authority to balance interests, and, as explained earlier, no one should have this authority except the government.

The anonymity exception leaves room for our right not to be seriously harmed to prohibit Nazi-like governmental actions or policies, such as secretly killing citizens whose views allegedly pose a threat to the general welfare. And it even leaves room for prohibiting such counterproductive policies as a mandatory "survival lottery" carried out in the name of the general welfare, a lottery where those who lose are then killed for some alleged public benefit, such as for distributing their organs to those in need of transplants thereby saving many more lives than are sacrificed.14 A survival lottery might, arguably at least, be in everyone's best interests before the losing tickets had been drawn and the lottery losers identified. But, for purposes of the anonymity exception, the actual harm to the losers that is in question - namely, their death - would not "appear" until the government first breaks their skin with the needle that administers the drug that kills them. At that point, the identity of the losers would, of course, already be known. But since their identity would already be known - that is, they would no longer be anonymous - killing them to distribute their organs to others would be prohibited by their right against the government not to be seriously harmed. So even with the anonymity exception built into it, the right not to be seriously harmed precludes policies such as the survival lottery. But - and this is the reason for the anonymity exception - a right not to be seriously harmed with this exception built into it does not preclude governments from using their balancing authority to meaningfully consent at times to pollution, such as New-Clear's lethal emissions. Given this exception, the government may, if doing so is in the general welfare, consent to New-Clear's lethal emissions because the identities of those to be harmed from them are not, and cannot become, known prior to the appearance of the harm to them. Nor do rights with this exception built into them preclude other important governmental policies or decisions that necessitate balancing,




such as vaccinations that will save thousands of lives, but at the cost of killing a handful of individuals.

Why, it might be asked, should anonymity, morally speaking, make any difference? Suppose that, with state of knowledge A, it is somehow known that ten people will die from New-Clear's lethal emissions, but these ten people are completely anonymous. Since they are completely anonymous, the government can, so it is claimed here, justifiably consent to New-Clear's lethal emissions if the benefits to society from New-Clear's operations are great enough. But then suppose that certain scientific advances give rise to state of knowledge B in which the identity of these ten people becomes known. Once their identity becomes known, then, so it is claimed here, the government may not continue to consent to New- Clear's operations no matter how great the benefit to society from New-Clear's operations might be. Governmental consent would violate these ten people's right to life. But then why, prior to identifying these ten people, can the benefits to society from New-Clear's operations morally justify their loss of life while, after identifying them, it no longer can? After all, the known costs and benefits from New-Clear's operations remain exactly the same - a cost of ten lives and benefits to society from inexpensive energy. The only thing that has changed is that it is now known whose lives will be lost. Why, morally speaking, should this make any difference? The quick answer is that, by counting this difference as morally relevant, we are best able to explain our various moral intuitions about when, and when not, the government may pursue the general welfare by sacrificing the welfare of some.

But here is still another, perhaps deeper answer. Whatever it is that, for a person, is intrinsically good - good for its own sake, not merely good as a means - let us, just for convenience, call "utility." We may then refer to that which is a means to realizing utility for a person as that which is in that person's interests. And here is the main point: what counts as being in a person's interests is always relative, relative to a state of knowledge. For example, relative to knowledge only that the grilled chicken which the hungry Jones is about to eat was bought today at a supermarket that normally sells fresh, healthy meat and was cooked properly (call this state of knowledge C), it is in Jones's interests to go ahead and eat the chicken. But relative to the additional knowledge that this same chicken contains poisonous bacteria that survive cooking (call this state of knowledge D), Jones's eating it is not in his interests. And, of course, if there is a conflict between that which, with respect to something, S, is in a person's interests from the standpoint of some given state of knowledge and that which, with respect to S, is in that person's interests from the standpoint of an even more complete state knowledge, then it is always the alternative in that person's interests from the more complete state of knowledge that is most in the person's interests.

Now suppose that, for a moral agent to make the morally correct decision, the agent must take people's interests into account. Relative to what state of knowledge




exactly should, morally speaking, the interests the agent must take into account be? These interests should be ones relative to as much knowledge as, under the circumstances in question, it is reasonable to expect the agent to have at the time the decision is made. We need not pursue here the question of what counts as "reasonable." The point is that governmental consent to New-Clear's operations is ethical if, relative to the state of knowledge that it is reasonable to expect the government to have at the time it must decide whether to consent - state of knowledge A - the benefits from New-Clear's operations are so great that, even though ten people will eventually die from New-Clear's emissions, it nevertheless is in everyone's best interests for New-Clear's operations to continue. The continua- tion of New-Clear's operations is, for everyone a good gamble. In other words, it maximizes everyone's expected utility. But relative to state of knowledge B, where the identity of these ten people is known (or at least should be), governmental consent to New-Clear's operations certainly is not in the best interests of these ten people. New-Clear's continued operations will kill them.

We are now in a position to answer the question posed above. Why, as long as these ten people remain anonymous, can the benefits to society from New-Clear's operations justify their loss of life, while, after identifying them, it no longer can? Why, in other words, does going from state of knowledge A, where they are anonymous, to state of knowledge B, where they are known, matter morally? It matters morally because, in going from A to B, governmental consent to New- Clear's operations went from being in the best interests of everyone including these ten people to being in the best interests of everyone except these ten people. Given state of knowledge B, New-Clear's continued operations are enormously contrary to the interests of these ten people. And, in saying New-Clear's operations went from being in their best interests to being enormously contrary to their best interests, what is meant, of course, is their "best interests" relative to that state of knowledge which, in each case, happened to be the one that, at the time, was most relevant for determining what was in their best interests.

V. The Right Not to Be Exposed to Excessive Risk

But now we face another problem. Even though all those to be physically harmed by a governmental decision in pursuit of the general welfare may, prior to the appearance of the harm, remain anonymous, some will start with a much

higher probability than others of eventually being harmed by the decision. Con- sider, again, the decision to consent to New-Clear's lethal emissions. The identity of those who will be physically harmed by contracting cancer from these emissions is not, and cannot become, known prior to the appearance of this harm to them. Thus, as the term is being used here, they remain "anonymous." Nevertheless, it is clear that those living near New-Clear's plant have a much higher probability of being among those so harmed than do those living far away. So, although the identities of those that will actually be harmed do remain unknown, and thus




they remain anonymous, the identities of those with a much higher probability than others of being harmed are indeed known. Suppose that those living near New-Clear's plant have a 50 percent probability of contracting cancer sometime during their lives from New-Clear's emissions, but the overall benefits from New- Clear's operations nevertheless are so great that, in spite of this excessive risk to those living near the plant, consenting to New-Clear's operations is more in the general welfare than not consenting. But considering the risk to those living near the plant, governmental consent to New-Clear's operations does not seem fair to them. Surely, our intuitive sense of morality tells us, a 50 percent probability of contracting cancer is too great a sacrifice to ask those living near the plant to make for the majority. According to the anonymity exception as it stands now, however, governmental consent to New-Clear's operations does not violate their right not to be physically harmed since, strictly speaking, those who will be harmed remain anonymous prior to the appearance of the harm.

Does this then mean that the anonymity exception as it stands now is inad- equate? Probably not. The reason for our intuitive sense of unfairness in this case, so it is suggested here, is that surely there must be ways of realizing the benefits from the nuclear power New-Clear provides without exposing the people living near the plant to this risk. Perhaps New-Clear's plant could, through incorporat- ing the latest in safety technology, be made safe enough for the risk to become tolerable. And, if all else failed, it would appear that those living near the plant could always, at the government's or New-Clear's expense, be relocated. Thus we feel that governmental consent to New-Clear's operations is unfair to those living near the plant because, even though consenting would be more in the general welfare than not consenting, there no doubt are ways of realizing the benefits from New-Clear's operations without exposing anyone to excessive risks, thereby making these ways even more in the general welfare. Thus consent to New-Clear's emissions without, say, relocating those living near the plant to a less risky place would violate condition (2) of the anonymity exception. This condition, as we have seen, requires that, for the anonymity exception to apply, the governmental decision in question must be such that there is no alternative decision less risky for anyone that would be more in the general welfare.

Yet there remains something problematic about how much risk the right not to be seriously harmed, as qualified by the anonymity exception, allows in the name of the general welfare. Consider, for example, the following case (Poisoned Drink). Suppose that, prior to World War II, the Nazi government learned that two individuals were going to meet in a hotel room to finalize their plans for, legally, removing Hitler from power. Moreover, since these plans could not succeed if either one of them had to act alone, the Nazi government decides, in the name of what it believes to be the general welfare, to thwart the plans by secretly killing one of these individuals. The government's strategy is to get an undercover agent to pose as a hotel worker and bring to their room a drink for each. But one of the




two drinks is to contain deadly poison. Although each of the two individuals will thus have a 50 percent probability of being seriously harmed - that is, killed - by the drink that is poisoned, the one that actually will be so harmed will remain anonymous until the effects from the poison first appear. Since the one to be so harmed will remain anonymous, if poisoning one of these two individuals really were what was most in the general welfare, then the right not to be seriously harmed, as qualified by the anonymity exception, would not prohibit the Nazi government from doing this. Of course poisoning one of these individuals would not have been what really was most in the general welfare, so condition (2) of the anonymity exception would not have been met. But we could not have trusted the Nazi government to realize that doing this would not have been what was most in the general welfare. And that is precisely the problem.

In general, there are certain kinds of things - such as restricting freedom of speech, restricting freedom of religion, unduly invading privacy, trying people without procedural safeguards, torturing, discriminating, and, indeed, murdering - that governments have, throughout history, all too often done in the name of the general welfare, but which, far more often than not, turn out to be very much contrary to the general welfare. In short: history has made it perfectly clear that doing these kinds of things are bad general-welfare "gambles." And history has also made it perfectly clear that, without any moral or legal constraints upon what they may do, governments cannot be trusted to resist these gambles. Moreover, these are the very gambles that are most likely to extract sacrifices from some that are so great that future decisions in the name of the general welfare could probably never compensate them adequately. The remedy for these bad gambles is, as we have seen, rights against the government, moral and legal rights that, in effect, prohibit them. But - and this is what, all too often, is not fully appre- ciated - these rights must always, in governmental decision making, be given priority over the general welfare. Without priority, they do not prohibit the very gambles it is precisely their job to prohibit. And, as the Poisoned Drink case illustrates, one of the bad general-welfare gambles that these rights surely should prohibit is that of deliberately exposing innocent individuals, against their will, to an excessively high probability of serious harm, or allowing others to do so. Yet provided only that, from among those so exposed, the individuals who eventually are harmed remain anonymous until the harm first appears, the right not to be seriously harmed, as qualified by the anonymity exception, does not prohibit this general-welfare gamble. That is what remains problematic.

But the right not to be seriously harmed cannot, by itself, be expected to prohibit all bad general-welfare gambles that should be prohibited; it must be, and is, supplemented by other rights against the government. And one of these other

rights is the right of an individual not to be treated negligently, or recklessly. As with many rights, this is a right that we have against both the government, and

against each other. If, for example, Jones were to drive 90 m.p.h. down the main



1 6 PUBLIC AFFAIRS QUARTERLY

street of some town, he would be exposing pedestrians and other motorists there to a high probability of being seriously harmed, which would be morally wrong for him to do. And it would remain morally wrong for him to have done this even if, fortunately, no one in fact did get harmed. Each of us, as well as the government, is morally obligated not to deliberately expose innocent individuals, against their will, to excessive risks, and, accordingly, we have a moral right against each other, as well as against the government, not to be so exposed.

A risk counts as "excessive" for purposes of this right if the risk is consider- ably greater than the everyday risks to which people are normally exposed. And exposure to the risk counts as "deliberate" if the agent causing the risk does it voluntarily, and the risk is one that either the agent did foresee, or should have foreseen. As with any other rights, there are, of course, exceptions built into this right, such as, perhaps, one for cases in which some risk is necessary for preventing serious harm. We need not attempt here to clarify exactly how an exception for preventing serious harm, or any other exception to this right, should be formulated.15 But this much at least should be made clear. No such exception should be formulated merely in terms of what is most in the general welfare. The whole point of rights against the government is to constrain governmental behavior, especially behavior in the name of the general welfare.16

The right not to be seriously harmed, as qualified by the anonymity exception, does constrain governments from seriously harming identifiable individuals in the name of the general welfare. Admittedly, however, it does not constrain governments from exposing identifiable individuals to excessive risks in the name of the general welfare, risks such as the one to which the individuals in Poisoned Drink were exposed. But this is not a flaw in the right not to be seriously harmed, for excessive risks in the name of the general welfare are properly constrained by yet another right - namely, the right against the government not to be exposed to excessive risk.

VI. Conclusion

We need moral rights against the government to constrain the government's pursuit of the general welfare in ways that are not only bad general-welfare gambles, but likely to extract sacrifices from some people that are so great that future governmental decisions probably could never provide them with adequate compensation. Yet these rights should not constrain the government's pursuit of the general welfare so much that many highly beneficial governmental functions are thereby prohibited. It has been argued here that only by building the anonymity exception into the right not to be seriously harmed will the government be constrained enough in its pursuit of the general welfare to morally preclude such Nazi-like atrocities as secretly killing citizens, while, at the same time, not being constrained so much that it cannot meaningfully pursue the general welfare at all. And if the government could not meaningfully pursue the general welfare,




it could not provide the consent to polluting activities such as New-Clear's that prevents these activities from counting as murder. In short: building the anonymity exception into our right against the government not to be seriously harmed represents the best compromise between too little constraint upon governmental decision making, and too much. This compromise does not, of course, guarantee beneficial results for everyone from governmental decisions, not even over the long run. No criteria for governmental decision making can do that. But, so it has been argued here, this compromise does provide, for everyone, the most expected utility.

University of Delaware

NOTES

1 . U. S. Nuclear Regulatory Commission, "Final Generic Environmental Statement on the Use of Plutonium Recycle in Mixed Oxide Fuel in Light Water Cooled Reactors," NUREG-0002, vol. 1 (August 1976).

2. For the most comprehensive philosophic study to date of causation as understood, specifically, in the law, see H. L. A. Hart and A. M. Honore, Causation in the Law, 2nd ed. (Oxford: Oxford University Press, 1985).

3. It might be argued, on the other hand, that a voluntariness requirement is redundant. According to this argument, A cannot "do" something to cause B's death unless it is indeed voluntary, since, conceptually speaking, A' s "doing" something implies at least some degree of voluntariness on the part of A. So if A cannot help falling onto B, A's causing B's death by falling onto B is not something that A "does"; it is instead something that just "happens to" A. For our purposes, however, it is not important whether we take some element of voluntariness on the part of A to be necessarily implicit in A's doing what causes B's death, thereby making a voluntariness requirement redundant, or whether we take voluntariness to be a requirement that is independent of A's doing what causes B's death.

4. H. L. A. Hart, "Intention and Punishment," in Punishment and Responsibility (Oxford: Clarendon Press, 1968), p. 119.

5. Black's Law Dictionary ( St Paul, Minn.: West Publishing Co., 195 1), p. 1 1 10.

6. Proponents as well as opponents of the doctrine are found in The Doctrine of Double Effect, ed. by P. A. Woodward (Notre Dame, Ind.: University of Notre Dame Press, 2001). For a recent attempt to defend the doctrine, see Moral Theory (Oxford: Blackwell Publishers, 2000), by David S. Oderberg.

7. The doctrine of double effect holds that an act, with both good effects and bad effects, is permitted if the following conditions are met.

1. The act must not be wrong in itself. 2. The bad effects must not be a means to the good effects.




3. Even though both the bad and good effects may be foreseen, the bad effects must not be intended, only the good effects.

4. The good effects must outweigh the bad effects.

This doctrine gives rise to many questions that are notoriously difficult to answer, questions such as these. What, exactly, is the distinction between wrong "in itself," and wrong, but not "in itself '? And does not condition ( 1 ) sound suspiciously like question begging? What, exactly, is the distinction between what is intended and what is merely foreseen? What, exactly, is the distinction between a means and a mere side-effect? And why, for purposes of morality, should these distinctions matter anyway? In spite of these difficult-to-answer questions, this doctrine, like Dracula, never seems to die. Instead, through attempts to answer these questions, it becomes more and more complicated. But the doctrine's ever greater complexity undermines its usefulness for making real-life moral decisions, and may, in the end, be what finally kills it.

8. This statement should at least be qualified to make room for cases in which a number of people are about to be killed by a natural disaster, but, for some reason, killing one of these people just prior to the disaster will save all the rest. The classic example is that of the fat man stuck in the entrance of a cave and blocking a number of others from getting out before a rising tide drowns them all, including even the fat man who is facing into the cave. Since the fat man will otherwise soon die from the rising tide anyway, it is often thought morally permissible for the others to escape from the cave by blowing him out of the entrance with dynamite if that is their only alternative. But this, and any other qualification that might be justified, is not relevant here.

9. It is far from clear that New-Clear's killing some (the bad effect) for the benefit of others (the good effect) could be justified even in terms of the doctrine of double effect (see note 7). Two problems with trying to justify the killings in terms of this doctrine are these. The killing of some might count as an act (or policy) that is wrong "in itself." And, in any case, the bad effect might be a "means" to the good effect. It is difficult to know for sure how serious these, and other problems that would arise in attempting such a justification, are, since the distinctions necessary for applying the doctrine correctly remain somewhat obscure.

10. I address this question in "How to Pollute Ethically," Public Affairs Quarterly, vol. 20, no. 3 (July 2006), pp. 205-217.

11. In the U. S., the way that state governments enforce their vaccination policy is to forbid a child from attending any school at all - whether public or private - unless the child has had the "mandatory" vaccinations. Most states allow an exemption from vaccinations only for religious or medical reasons, for which few children qualify.

12. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), p. 33.

1 3 . The lack of knowledge necessary for this exception to apply must not be confused with the lack of knowledge called for by the famous veil of ignorance formulated by John Rawls in A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971). The main difference between the lack of knowledge necessary for the anonymity exception to apply and that called for by Rawls's veil of ignorance is that Rawls's veil is merely hypothetical, to be assumed for purposes of moral justification, while the lack of knowledge necessary for the anonymity exception to apply is not hypothetical, but real.




14. John Harris proposes such a survival lottery in "The Survival Lottery," Philosophy, vol. 50 (January 1975).

15. For one attempt at formulating a satisfactory exception for preventing serious harm, see D. W. Haslett, "Murder and the Exception for Fair Competition," Social Theory and Practice, vol. 29, no. 4 (October 2003), pp. 631-654.

16. This discussion does no more than barely scratch the surface of the concepts "negligence," and "recklessness." Indeed, moral negligence and recklessness are vastly important topics that, curiously enough, have been virtually ignored by moral philosophers. For example, The Oxford Companion to Philosophy, ed. Ted Honderich (Oxford: Oxford University Press, 1995); The Cambridge Dictionary of Philosophy (Cambridge: Cambridge University Press, 1995); and the large, four- volume Encyclopedia of Philosophy, ed. Paul Edwards (New York: Macmillan Publishing Co., 1967) have no entries for "negligence" or "recklessness," and do not even contain the words in their indexes. Hidden within these concepts lies a wealth of philosophical analysis waiting to be mined.



the anonymity exception

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