Deontologists Can Be Moderate

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    Moderate deontology is sometimes, perhaps more frequently, called ‘threshold deontology’ for its positing of a threshold (or thresholds) of bad consequences beyond which, as consequences get worse, deontological constraints can be permissibly violated to prevent the bad consequences. For critiques of the position, see Larry Alexander, ‘Deontology at the Threshold’, San Diego Law Review 37 (2000), pp. 893–912; and also Anthony Ellis, ‘Deontology, Incommensurability and the Arbitrary’, Philosophy and Phenomenological Research 52.4 (1992), pp. 855–875.

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    Saul Smilansky, ‘Can Deontologists Be Moderate?’, Utilitas 15.1 (2003), pp. 71–75, at 72. Smilansky is referring to Kagan’s characterization of moderate deontology in his Normative Ethics (Boulder, 1998).

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    Smilansky, ‘Can Deontologists Be Moderate?’, p. 73.

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    Smilansky, ‘Can Deontologists Be Moderate?’, p. 75.

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    A quick clarification: by ‘consequentialist considerations’ I mean utilitarian-like considerations, and so these kinds of considerations conceptually exclude deontological ones. I state this to avoid any potential confusion about my discussion of consequentialist considerations since some consequentialist theories actually require that deontological matters (e.g. desert) be promoted.

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    Larry Alexander and Michael Moore claim that moderate deontology is similar to the ‘prima facie duty’ version of deontology but more closely mimics absolutist deontology in its verdicts (Larry Alexander and Michael Moore, ‘Deontological Ethics’, Stanford Encyclopedia of Philosophy, <> (Spring 2015).). Also, Moore writes, ‘[T]here is a very high threshold of bad consequences that must be threatened before something as awful as torturing an innocent person can be justified. Almost all real-life decisions a GSS interrogator will face—and perhaps all decisions—will not reach that threshold of horrendous consequences justifying torture of the innocent. Short of such a threshold, the agent-relative view just sketched will operate as absolutely as absolutism in its ban on torturing the innocent’ (Michael Moore, Placing Blame: A Theory of the Criminal Law (Oxford, 2010), p. 722, his emphasis).

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    Thomas Nagel, ‘War and Massacre’, Mortal Questions, (Cambridge, 2012), pp. 53–74, at 62, emphasis his. Notice that he characterizes the threshold as the decisive point at which a deontological constraint can be permissibly violated, which differs from my characterization of it as the point beyond which a constraint can be permissibly violated; this difference has no bearing on my argument. Also, I do not mean to suggest that Nagel is clearly a moderate deontologist, although the view does seem to be implicit in much of his discussion. For example, he writes, ‘[I]t seems to me certainly right to adhere to absolutist restrictions unless the utilitarian considerations favoring violation are overpoweringly weighty and extremely certain’ (Nagel, ‘War and Massacre’, p. 56.).

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    Applying this ratio to other kinds of deontological constraints and consequentialist considerations, I presume, would get very complicated, and so I leave it to the reader to consider how that might go.

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    Suppose that one endorses a theory that posits only one deontological constraint and sets an extremely low threshold on that constraint such that trivially bad consequences could override it, and further suppose that the theory is consequentialist in all other respects. According to some theorists, even though such a theory has only one constraint and that constraint’s weightiness in comparison to consequentialist considerations is very low, it is still a kind of deontology because of the existence of at least one deontological constraint. Both Smilansky and I object to this sort of philosophical thinking. Really such a theory would be more accurately characterized as consequentialist!

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    Moore, Placing Blame, p. 723. He attributes the analogy to Joseph Raz.

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    Alexander and Moore call these two versions of moderate deontology the ‘simple version’ and ‘sliding scale threshold deontology’ respectively (Alexander and Moore, ‘Deontological Ethics’).

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    For instance, Samantha Brennan writes, ‘I think the amount that must be at stake to justify killing a person is different than the amount that must be at stake to justify punching them in the nose. A great deal less must be at stake when the right in question is the right not to have one’s nose punched. This is the intuition that the more serious the right, the more that must be at stake before its infringement can be justified’ (Samantha Brennan, ‘Thresholds for Rights’, The Southern Journal of Philosophy 33.2 (1995), pp. 143–168, at 148.).

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    A question could be raised concerning how the theorist goes about determining the stringency of a constraint, and she might even be accused of making this kind of determination on the basis of consequentialist considerations. That is to say, she might be accused of determining the stringency of a constraint strictly in terms of severity of consequences that could override it, and if this allegation were true, it would certainly undermine my claims about the primacy of deontological constraints in moderate deontology. But, the allegation is false. As a deontologist, the theorist must treat the stringency of a constraint as being intrinsic to it, and not dependent on any consequentialist considerations, although it is true that the theorist is forced to make some determination (or, perhaps, estimation) regarding at what point severity of consequences would override the stringency of a given constraint. Anthony Ellis discusses the apparent incommensurability of deontological constraints and consequentialist considerations in great detail (Ellis, ‘Deontology, Incommensurability and the Arbitrary’, especially pp. 862–870.).

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    Regarding supererogatory actions, the agent may face situations in which there is no deontological constraint in play, and although she is not obligated to promote the good, she may still deliberate about whether or not she will do so. These are atypical situations for the agent, though, since she will not always be deliberating about promoting the good whenever doing so would not involve violating a constraint. An agent may be characteristically benevolent such that she performs supererogatory actions on a regular basis, but characteristic benevolence would not require constant deliberation. She would perform those actions by her very nature, and if she were a moderate deontologist, then she would be guided by an awareness of constraints such that she would not be violating constraints for reasons of benevolence.

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    Smilansky, ‘Can Deontologists Be Moderate?’, p. 74. Smilansky is referring to Nussbaum’s mention of ‘sensible’ deontologists in her ‘Comment’ in Judith Jarvis Thomson’s Goodness and Advice (Princeton, 2009).

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    Accordingly, it seems that it would not be inappropriate for an agent to feel some tinge of regret whenever she permissibly violates a constraint or for her to make reparations for it after the fact.

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    Recall that Smilansky accurately characterizes punishing the innocent as a ‘paradigm of injustice’, although he reaches the wrong conclusion when he says that a ‘deontologist, qua deontologist, must oppose such a plan’ since the absolutist must always oppose it, but the moderate deontologist must only conditionally oppose it. However, the moderate deontologist (qua deontologist!) will agree that punishing the innocent is a paradigm of injustice, and so she could still believe that punishing the innocent is intrinsically wrong even when the constraint against punishing the innocent is overridden by consequentialist considerations.

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    In addition to constraints’ thresholds, consequences may also have normative significance beyond options’ thresholds.

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    It may be the case that sometimes the occurrence of consequences is wrong before a threshold, but only because of the action(s) that constitute(s) the consequences and not because an agent allows them to occur. Suppose, for instance, that an honest criminal tells you that the only way you can prevent him from committing the murders of two innocent people is to commit one murder yourself. It would be right on moderate deontological reasoning for you to abstain from committing one murder in order to prevent him from committing two others, and there would be no wrongness in you thereby allowing the other murders to occur, but there would be wrongdoing on the part of the criminal who commits the two murders. So, this is an instance of wrongness in the occurrence of consequences before a threshold, but the wrongness does not consist in the consequences being allowed to occur by an agent. Rather, it consists in the actions that constitute the consequences, which interestingly in this case are violations of a deontological constraint against murder.

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    Alexander, ‘Deontology at the Threshold’, p. 912.

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    Smilansky, ‘Can Deontologists Be Moderate?’, p. 75.

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    Because the theory is sometimes called ‘threshold deontology’, it could also be submitted that such a name is appropriate since it is a deontology that sets thresholds on its constraints.

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    For helpful comments on earlier drafts of this paper, I thank Douglas Portmore, Cheshire Calhoun, and Dale Miller.

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Correspondence to Tyler Cook.

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Cook, T. Deontologists Can Be Moderate. J Value Inquiry 52, 199–212 (2018).

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