Bad Things
On the Nature andNormative Role ofHarm
NEIL FEIT
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DOI: 10.1093/oso/9780197660447.001.0001
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Contents
Acknowledgments
Introduction
1. Varieties of Harm
Intrinsic and Extrinsic Harm
Pro Tanto, Overall, and All-Things-Considered Harm
The Counterfactual Comparative Account Harm at a Time
2. The Counterfactual Comparative Account CCA and the Appeal of Making a Difference CCA and Pro Tanto Harm
Some Objections Considered Some Other Accounts of Harm
3. Preemption and the Plural Harm Approach
The Problem of Preemption (and Overdetermination)
The Plural Harm Approach Comparing Comparative Approaches
4. CCA with Plural Harm: The Theory How Events Harm Plurally
The Degree of Harm
The Time of Harm
A Worry about “Late Harms”
CCA with Plural Harm
5. CCA with Plural Harm: Metaphysical and Moral Issues Can Harms Be Better Than Benefits?
Pluralities and Singularities
Another Objection to the Plural Harm Approach
Preemption and the Normative Relevance of Harm
6. Harm and the Failure to Benefit
The Problem of Omission
Some Solutions We Ought to Reject Harming by Failing to Benefit
Moral Reasons against Harming
7. The Harm of Death
The Timing Problem and the Missing Subject A Solution (and Some Alternate Solutions) Objections and Replies
CCA, Counterfactuals, and the Harm of Death
Conclusion References Index
Acknowledgments
I have presented my ideas on many of the issues considered here at several workshops hosted by the University at Buffalo’s Romanell Center for Clinical Ethics and the Philosophy of Medicine. I am grateful to audiences there for their helpful comments and discussions, from which I have benefited greatly. In particular, thanks to Ben Bradley, James Delaney, Matthew Hanser, David Hershenov, Robert Kelly, Catherine Nolan, Phil Reed, Adam Taylor, and Travis Timmerman.
For their comments and feedback on ancestors of the content that appears here, and for various helpful conversations on the relevant issues, I would also like to thank Erik Carlson, Magnus Jedenheim Edling, John Martin Fischer, Anna Folland, Jens Johansson, Justin Klocksiem, Thomas McKay, Duncan Purves, and Olle Risberg.
For his extremely helpful comments and suggestions on every chapter of the book, as well as for related discussions, friendship, and general support, Stephen Kershnar has my deepest thanks. Steve also belongs on both of the lists of people above, and he provided me with insightful criticism and hundreds of suggestions for making the book better than it was. I probably didn’t take him up on enough of them, which is entirely my fault.
Portions of some of my published articles appear here in modified form. Parts of Chapters 3 and small bits of Chapter 4 are adapted from “Plural Harm,” Philosophy and Phenomenological Research 90, 361–88 (2015); part of Chapter 7 is adapted from “Comparative Harm, Creation and Death,” Utilitas28, 136–63 (2016); Chapter 6 is derived from “Harming by Failing to Benefit,” Ethical Theory and Moral Practice 22, 809–23 (2019), Springer Nature; and part of Chapter 5 is derived from “How Harms Can Be Better Than Benefits:
Reply to Carlson, Johansson, and Risberg,” Australasian Journal of Philosophy 100, 628–33 (2022), copyright © Australasian Association of Philosophy, reprinted by permission of Taylor & Francis Ltd, http://www.tandfonline.com on behalf of Australasian Association of Philosophy. I thank Philosophy andPhenomenological Research, Utilitas, Ethical Theory and Moral Practice, and the Australasian Journal of Philosophy for permission to reuse that material.
I am also grateful to the editorial team at Oxford University Press for making the process of publishing this book smooth and enjoyable. Special thanks to Peter Ohlin and Sean Decker at OUP. I am also grateful to the reviewers for their comments and feedback.
Finally, and most important, I thank my dear wife and best friend Julia for her love, patience, companionship, and support. Our son Ben, who was working at home with me for much of the time I was working on this project, is rather fantastic too.
Introduction
In this book, I construct, defend, and apply a certain account of the nature of harm. To the extent that we have an ordinary, practical concept of harm, my focus is on this concept. A person would ordinarily be harmed, for example, if she were to undergo any of the following: being killed, being beaten or tortured, falling down a flight of stairs, having a heart attack, being choked, being imprisoned or incarcerated, having her property stolen, being struck by lightning, having an arm or leg broken, being subjected to verbal abuse, being passed over for promotion at work, and being infected with a contagious illness. Some, but not all, of the situations described here would typically include an unjust or wrong action on the part of some person or other. The list is not intended to be exhaustive, of course; the idea is merely to give the reader a number of clear and uncontroversial cases of harm. We might also imagine a different collection of situations in which a person would ordinarily be benefitedby the occurrence of a given event.
The account of harm that I will defend is a specific version of a widely held, but also widely criticized, perspective on the nature of harm. The general perspective is most commonly known as the counterfactual comparative account of harm, or CCA. Consider, for example, the case of falling down a flight of stairs from the list of situations above. Here, something happens—an event of falling— that harms the person who falls. According to the counterfactual comparative account, this event harms the one who falls given that she would have been better off if she had not fallen. There is an analogous account for beneficial events. According to this account, which I likewise defend, an event benefits a given person provided that she would have been worseoff if it had not occurred.
The counterfactual comparative account has sometimes been offered as an account of a certain kind of value, that is, of the conditions under which things are good or bad for us in a certain way. In ordinary circumstances, for example, receiving a large sum of money would be good for you, whereas falling down a flight of stairs would be bad. More generally, an event is good for a person provided that it makes her better off, in the sense that she would have been worse off had it not occurred, and an event is bad for a person provided that she would have been better off had it not occurred. I think that both accounts are correct. That is, I take harmful events to be bad in a certain way for the one who is harmed, beneficial ones to be good for the one who is benefited, and harm and benefit to be opposite ends of this effect-on-anindividual continuum. My discussions throughout the book will largely be in terms of harm and benefit, although I will sometimes use the associated value terms interchangeably. So, the things that harm us make us worse off than we would otherwise have been without them. Sometimes, this is because they put us into states, like pain, that are intrinsically bad for us. On the list above, for example, falling down the stairs and being choked are typically harms of this sort. But sometimes this is because they take good things away from us, by preventing us from being in states that are intrinsically good for us. With respect to the list above, being passed over for promotion might be a harm of this sort. These are not mutually exclusive, of course. For example, some things that happen can cause us to be in intrinsically bad states and also prevent us from being in good ones. The counterfactual comparative account, I will argue, provides a unified treatment of all of these harms.
I have thus far spoken about people as those who might suffer harm, but it is clear that many nonhuman animals can be harmed as well. Sometimes, however, we talk of harm to things such as personal property, businesses, the planet, and so on. Whether or not such things can be harmed depends on whether or not they can be made better or worse off. I accept the widely held view that this, in turn, depends on whether they have welfare levels, or levels of well-
being, that are capable of rising or falling. Roughly speaking, a harm is something that interferes with or obstructs one’s well-being.1 As Victor Tadros puts it, well-being “provides the currency of harm” (2014, 177). Our automobiles and dining tables, for example, pretty clearly do not have levels of well-being that can be influenced by the course of events in the world. So, our talk of such objects being harmed must be taken to be loose or metaphorical talk.
I will try to remain neutral with respect to competing accounts of the nature of well-being. For example, while I think that plants cannot strictly be harmed, nothing in the account that I defend commits me to this view. If you think that plants have a (minimal) level of well-being that can fall with damage and rise with healthy growth, for example, you may believe that plants can be harmed. Our disagreement will be about the components of well-being, but it need not be about the correct theory of harm.
In his terrific and influential paper “Doing Away with Harm,” Ben Bradley (2012) proposes a list of seven desiderata for an account of harm. It will be helpful to consider them here. Bradley focuses on what he calls “extrinsic, overall harm” (2012, 394). For example, a surgeon might cut and damage a patient’s skin in order to perform a certain operation. The surgeon’s act harms the patient but it is not an overall harm; it is a pro tanto harm that, assuming the operation goes well, benefits the patient all things considered. In ordinary circumstances, by way of contrast, falling down a flight of stairs would be an overall harm, or harmful all things considered, since it has no beneficial features. Something counts as an extrinsic harm, roughly, when it is harmful in virtue of what it brings about rather than any of its intrinsic properties. I will return to these notions in the first two chapters. For now, I will note that Bradley’s list (with one exception noted below) seems appropriate for any kind of harm.
The first item on Bradley’s list is extensionaladequacy, according to which “the analysis must fit the data” (2012, 394). A lack of counterexamples is obviously desirable. An account of harm should not imply, for example, that there is no harm when intuitively there is, or that there is harm when intuitively there is not. An
extensionally adequate account should also allow for harms of different magnitudes. The second desideratum is axiological neutrality: the analysis should not presuppose the truth of any specific account of well-being.2 The third is ontologicalneutrality: in addition to harmful actions performed by people, an adequate account must allow for other harmful events, such as the behavior of nonhuman animals and natural disasters like hurricanes, and also “for different sorts of beings to be the subjects of harm” (2012, 395). Fourth, the analysis “should not presuppose that harming is morally wrong, or involves vicious intent” (2012, 395). As Bradley notes, this condition, amorality, follows from ontological neutrality, since impersonal events can harm individuals in the same way that our actions can. The fifth condition is unity: the analysis should not consist merely in a list of harmful things but “should explain what all harms have in common by locating a common core to harm” (2012, 395).
These five desiderata seem very plausible, especially if we take them, as Bradley does, to be defeasible conditions. The last two items might be somewhat more controversial as desiderata for an adequate account of harm, but they are prima facie plausible conditions as well. The sixth one is prudential importance: Bradley claims that an adequate account “should entail that harm is something worth caring about in prudential deliberation,” for instance, that harm is “the sort of thing we should try to avoid” (2012, 395). Finally, we have normative importance. Bradley’s idea here is that an acceptable account “should entail that harm is the sort of thing that it makes sense for there to be deontological restrictions about” (2012, 396). There might be some tension here with amorality, depending on how exactly we construe it. It does seem plausible, however, that there are moral reasons not to act in a way that will harm others, and that these would be among the deontological restrictions that Bradley has in mind.3 Later in the book, especially in Chapters 5 and 6, I will discuss some issues related to the prudential and normative importance of harm. For now, I will provisionally accept the legitimacy of these two
desiderata, at least if we interpret them charitably. Even if Bradley’s list is not exhaustive, the desiderata are prima facie desirable features of an account of harm, and they help to put the target concept in focus.
In the rest of this introduction, I will provide an overview of the book’s seven chapters. In Chapter 1, I consider some varieties of harm with the intention of setting the stage for the rest of the book. I discuss the distinction between intrinsic harm and extrinsic harm. I also discuss the distinction between pro tanto harm and overall harm, or harm all things considered. Next, I turn to a preliminary consideration of a basic version of the counterfactual comparative account of harm and benefit, and I evaluate the account in light of the desiderata just discussed. Finally, I discuss the notion of harm at a time and preview some issues concerning the harm of death.
Chapter 2 contains a more detailed discussion of the counterfactual comparative account. I formulate a general version of the account for all-things-considered harm, and also a version that accounts for harm at a time. Next, I take another look at the idea of pro tanto harm and consider how advocates of the counterfactual comparative account should treat it. I then consider some objections to the general account and offer responses to the ones that do not seem very serious. (The chapters to follow will focus on the more serious objections and issues that relate to them.) Finally, I consider several accounts of harm that compete with the counterfactual comparative account. My goal throughout the book is to defend and extend the counterfactual comparative account rather than to provide detailed discussion and criticism of competing accounts of harm, but here I discuss what I take to be the most substantial challenges for the competing views.
In Chapter 3, I discuss what I take to be the most significant challenge to the counterfactual comparative account. This is the challenge of certain cases of preemption and overdetermination. Suppose, for example, that Bob breaks my kneecap but also that if Bob had not done this, then Peter would have injured me in the same way at the same time. The account seems to imply that Bob’s act does not harm me, since I would not have been any better off if
he had not performed it. I briefly discuss the problem and then sketch a solution that I call the plural harmapproach. Roughly, the idea is that Bob and Peter together harm me even though neither of them harms me on his own.4 I discuss the plural harm approach and illustrate some of its features, but I postpone a detailed discussion until Chapter 4. I finish Chapter 3 with a critical discussion of some other approaches to the problem of preemption, approaches that have been proposed by those who also favor the perspective of the counterfactual comparative account. I conclude that an adequate account of harm should allow for plural harm in addition to harm inflicted by individual events.
In Chapter 4, I return to the plural harm approach and defend a detailed account of harm that I call CCA with Plural Harm, which provides necessary and sufficient conditions for any given individual’s being harmed by one or more events. This account entails, but is not entailed by, the counterfactual comparative account discussed above. Correct and illuminating equivalencies of this kind are, to put it mildly, difficult to find. Accordingly, I am happy to take the view that CCA with Plural Harm is a very good approximation to the truth, or close enough. I begin by discussing how it can be the case that some events harm a given individual, even if none of those events individually is harmful. I then proceed to extend the basic view so that it accounts for the amount, or degree, of harm inflicted by an event or events, and also for the times at which, or during which, harmful events are harmful. I conclude the chapter by summing up the discussion and presenting the account of overall and all-thingsconsidered harm that I believe to be correct.
Chapter 5 focuses on the plural harm approach as it relates to several issues concerning the metaphysics and moral relevance of harm. I begin by considering a recent argument against the counterfactual comparative account given by Erik Carlson, Jens Johansson, and Olle Risberg (2021). I argue that CCA with Plural Harm lets advocates of CCA respond plausibly to their objection. In the next two sections, I consider and respond to some objections that focus on the plural harm approach itself. Finally, in the last
section, I respond to a challenge for the plural harm approach that concerns the moral status of actions performed in cases of preemption (such as Bob’s act of breaking my kneecap in the example discussed earlier).
Cases of preemption raise a complaint about the extensional adequacy of the counterfactual comparative account. According to the complaint, the account undergenerates harms since it fails to count certain harmful certain events—like Bob’s breaking my kneecap—as harmful. Another complaint about extensional adequacy goes in the opposite direction, and it is the subject of Chapter 6. The complaint is that the account overgenerates harms, since it counts as harmful certain events that seem to be mere failures to benefit (and hence not harmful). For example, it seems to imply that when one person fails to benefit another, the first person thereby harms the second, since the second one would have been better off if the first had benefited her. Many philosophers claim that there is a serious challenge for the counterfactual comparative account here. I begin by discussing the challenge. After surveying some solutions that I think are instructive but inadequate, I defend my own solution. I argue that there are good reasons to admit a certain range of cases where one person harms another by failing to benefit her. In a nutshell, the cases in question are cases of preventive harm. In the last section of the chapter, I consider the impact of my solution on the widely held belief that harming people is worse than merely failing to benefit them, and I defend a position on the strength of moral reasons against harming.
In the final chapter, I return to the harm of death. The issues here, like those in the previous chapter, are largely distinct from issues concerning plural harm. As I present CCA with Plural Harm in Chapter 4, events are harmful all things considered only if they are harmful at certain times. (I consider ways to abandon this commitment, both in Chapter 4 and here in Chapter 7.) Here, my main goal is to defend the view that in cases where death does in fact harm the one who dies, it harms him after he has died. I begin by discussing the problem of locating the times at which death harms the one who dies. I then defend a solution, which implies that
the deceased have a neutral welfare level, that is, a well-being level of zero. (Since this view is controversial, I also discuss some backup plans, according to which the dead have no level of well-being at all.) After discussing several objections to the view that I favor and offering replies, I conclude with a discussion of some issues concerning the harm of death and the evaluation of counterfactuals.
1 Those who think of harm as a setback to someone’s interests, and take interests to be distinct from well-being, may think of being worse off in terms of the relevant interests. Not much will turn on this, but it seems clear that harm is a matter of one’s well-being being interfered with in a certain way.
2 This item seems inappropriate for the analysis of intrinsic harms, or events that are in themselves harmful for a given person. I will return to this in Chapter 1.
3 For some discussion of these issues, see Rabenberg 2014, 2.
4 In Feit 2015, I defended an account that incorporated a certain principle of plural harm. The account that I defend in this book is similar in some respects, but it is substantially different and more detailed.
Varieties of Harm
Harm is connected, in one way or another, with well-being. The things that harm us make our lives go worse or make us fare badly in some way. In this chapter, I consider some varieties of harm and set the stage for the rest of the book. Although I will focus on harm, there will be a corresponding claim about benefit for each claim about harm. Being on the opposite side of the effect-on-well-being continuum, benefit is also closely connected with well-being. Things that benefit us make our lives go better, or make us fare well. In order to be as neutral as I can be, I will have relatively little to say about the nature of well-being itself. From time to time, and especially for illustrative purposes, I will assume that pleasure is a component of well-being that is intrinsically good for us, and that pain is a component of well-being that is intrinsically bad for us. For such purposes, I will sometimes assume that these are the only components of well-being, that is, that hedonism is true. (For what it is worth, I am inclined to think that some version of hedonism really is true.) But the claims about harm that I will defend, and especially the account developed in Chapter 4, do not require or rule out any theory of well-being.
1.1. Intrinsic and Extrinsic Harm
There is a distinction between things that have intrinsic value for us —that is, things that are good or bad for us in themselves—and things that have extrinsic value for us. This distinction, or a similar one, is sometimes made with respect to harm. For example,
according to Ben Bradley, “to say that something is intrinsically harmful is just to say that it is intrinsically bad for the person undergoing it; it is to make a claim about well-being” (2012, 392). On the other hand, something would be an extrinsic harm for a person if it harms her but is not intrinsically bad for her. Sometimes the distinction is made in terms of events. An event is an intrinsic harm for a person when, and to the extent that, it harms her in virtue of its intrinsic properties. So, if the intrinsic properties of a given event—for example, my experiencing pain—entail that I am in a state that is intrinsically bad for me, then the event is an intrinsic harm for me. However, the most important and interesting cases of harm are not cases of intrinsic harm. They are cases in which events harm people at least partly in virtue of the effects that they have on those people, and not because of their intrinsic properties. This is extrinsic harm.
When we think about examples of harm, we are inclined to think about things like smoking, physical attacks, theft, stubbing a toe, and the like. None of these things is intrinsically bad for anybody, but they are things about which we do and should care. When something of this sort harms a person, she suffers an extrinsic harm. The clearest cases of extrinsic harm are probably cases of things that cause pain or suffering. The things that harm us in this way, then, must be events. (I will try to remain as neutral as possible about the nature of events, but it seems very plausible that they are unrepeatable concrete particulars that are located in space and time.) For example, suppose that Peter punches Simon in the stomach. In this case, the relevant harmful event—that is, the event of Peter’s punching Simon—is not intrinsically bad for Simon, although the pain that Simon experiences moments later is. So, the punch constitutes an extrinsic harm for Simon. It also makes sense to ask how harmful the punch is for Simon, or how much it harms him. Here, the extent to which the punch is extrinsically harmful for Simon is determined, at least in part, by the intrinsic harm that Simon suffers as a result of it.
Some philosophers use the term “intrinsic harm” in a different way. For example, Justin Klocksiem (2012, 289) and Duncan Purves
(2016, 90) include a comparative element in their ideas of intrinsic harm. As I understand them, they would say that Simon’s experiencing pain is intrinsically harmful for him, but not because it is intrinsically bad for him. Instead, as they see it, his experiencing pain is an intrinsic harm because he would have been better off if he had not experienced it, and this is not in virtue of the painful episode’s relations to any other events or states. (The punch would not be intrinsically harmful for Simon because although he would have been better off if it had not occurred, this is in virtue of the punch’s relations to other events or states, namely, the pain that Simon experiences.) I think it is better to restrict the term “intrinsic harm” to things that are intrinsically bad for us or events that are harmful purely because of their intrinsic properties. As Klocksiem and Purves see it, I think, a happy person who is not in any intrinsically bad state could nevertheless be suffering intrinsic harm, if she would have been even better off had some event not occurred. I agree that the relevant event will count as extrinsically harmful, but here it seems to me correct to say that there is extrinsic harm with no intrinsic harm. Moreover, someone who is in an intrinsically bad state (pain, for example) need not be suffering intrinsic harm, as Klocksiem and Purves see it, because she might have been even worse off had some relevant event not occurred. But it seems correct to say that experiences of pain (assuming that pain is intrinsically bad for the one who experiences it) are always intrinsically harmful.
I will focus on extrinsic harm, with the goal of arriving at a complete and adequate account. The term “overall harm” is more commonly used for my target, although it is typically used to convey more information about the harm at issue (as will become apparent in the next section), and I will use it. This is because the intrinsic harm or benefit, if any, of an event will factor into the determination of its (overall) harmfulness. For example, suppose that an event that consists in my experiencing pleasure occurs, but that it has various unpleasant effects on me. Suppose also that I would have been better off, on balance, if the event in question had not occurred—I would not have experienced any pleasure then, but I would have
been much better off later because no unpleasant effects would have occurred. So, the experience of pleasure is intrinsically beneficial for me but it is overall harmful in virtue of its effects (and the other features, on my view). But the fact that it is an intrinsic benefit makes it less harmful overall, in the following way: if some other event, which was not itself an intrinsic benefit, had all the same extrinsic features as the experience of pleasure, it would have been more harmful for me overall.
Impersonal events, like earthquakes and lightning strikes, are neither intrinsically harmful nor intrinsically beneficial, and so when these events are harms, they are overall harms for their victims purely in virtue of being extrinsically harmful. It is extremely plausible that the same is true of human actions, like punches. All of the examples in this chapter and throughout the rest of book will be cases of these two sorts.
1.2. Pro Tanto, Overall, and All-ThingsConsidered Harm
The term “overall harm” is commonly used to pick out not only harm that includes intrinsic and extrinsic harm (and benefit) in the way just discussed, but also harmfulness all things considered, in contrast with, say, harmfulness in some respect or other. My usage will align with this, with the exception of one relatively minor difference that will emerge in this chapter (the difference has to do with time).
Cases where something harms a person in some respect yet confers an overall benefit on him are widely discussed. For example, Joel Feinberg (1986, 169) considers a case where somebody rescues an endangered person but needs to break that person’s arm in the process, this being the only way to save his life. Following the recent literature, I will use the term “pro tanto harm” to pick out harm like that suffered by the endangered person in Feinberg’s rescue case. The act of rescuing, then, was pro tanto harmful but all-thingsconsidered beneficial for the endangered person. We often inflict pro
tanto harm on people in order to benefit them all things considered. Vaccinations and surgery are two other widely cited examples. Calling an action or other event a pro tanto harm might suggest that it is not harmful all things considered. But it very well might be. An unsuccessful surgery, for example, might be something that is harmful for the patient both pro tanto and all things considered. In general, an event that is a pro tanto harm for a person will be harmful all things considered unless it is also a pro tanto benefit (to at least the same degree).
Bradley helpfully describes all-things-considered harms as “harms that are bad for a person taking into account all their effects on that person” (2009, 66). With respect to Feinberg’s rescue case, when we take into account the fact that the endangered person’s life was saved in addition to the fact that his arm was broken, we see that the rescue was not harmful all things considered. I will take allthings-considered harm to be a matter of the lifetime well-being of the victim. If a given event is such that a person’s whole life, on balance, would have gone better if it had not occurred, then it harms the person all things considered.
In many cases where an event—such as a vaccination, for example—is a pro tanto harm but is beneficial all things considered for a given person, the person is worse off, or fares badly, soon after the event occurs, and then becomes better off, or fares well, as time goes by. (A similar point applies to cases where an event is a pro tanto benefit but is harmful all things considered.) But this need not be the case. For example, we can imagine cases in which some event makes a person fare badly in one way, but fare well in another, at the very same time. This can be the case even if some form of monism about well-being, such as hedonism, is correct (at least given the plausible assumption that one can feel pleasure and pain at the same time). For example, you might tell me a very funny joke that causes me to laugh and feel chest pain. Let us suppose that I receive more pleasure than pain, but I receive them at the same time. Let us also suppose that the joke has no other impact on my well-being. It seems, then, that your act of telling the joke is a pro
tanto harm and an all-things-considered benefit for me, and that this is in virtue of facts that obtain at the same time.
I take cases like the one just described to show that unlike allthings-considered harm, pro tanto and overall harm can be relative to time. If I am receiving pleasure and pain at the same time, as a result of a given event, then the event might be a pro tanto harm but also an overall benefit at that time. Speaking more quantitatively, we might say that its overall value for me, at or during the relevant time, will be positive. However, if the event also has negative effects on my well-being at other times, then it might not be an all-things-considered benefit for me. In the same way, an all-things-considered harm is bad for a person taking into account all of its effects on that person at all of the times when those effects occur.
My main project in this book is to construct and defend a theory that covers both overall harm at a time and all-things-considered harm (or, as we might put it, “just plain overall harm”). The theory will be an extension of the counterfactual comparative account of harm, and it will be the main subject of Chapter 4. However, in Section 2.2 and in a few other places throughout the book, I will consider the nature of pro tanto harm and various issues concerning it.
1.3. The Counterfactual Comparative Account
The counterfactual comparative account of harm is the most widely discussed and probably the most widely defended account of harm in the literature. The account is typically formulated as an account of all-things-considered harm, though we will also consider versions of it that cover overall and pro tanto harm. According to the counterfactual comparative account, an event is an all-thingsconsidered harm for an individual if and only if the individual would have been better off, on balance, if the event had not occurred. In this way, the things that harm us make us fare worse, on the whole, than we would have fared if they had not happened.
In this book, I will defend but also extend the counterfactual comparative account of harm. In Chapter 2, I state the account more rigorously and discuss the counterfactual conditionals that the account employs. I also consider versions of the account that cover the other varieties of harm. In Chapters 3 and 4, I extend the account in such a way as to allow groups of events to count as harms, or, more precisely, to allow events to be harmful in a collective way. In the rest of this section, I will consider the perspective associated with the account in some more detail.
Feinberg was an influential advocate of the counterfactual comparative account. He was largely concerned with harm in the legal sense of “harm.” After noting that impersonal events like earthquakes can harm people in the ordinary sense, he writes:
One person harms another in the present sense then by invading, and thereby thwarting or setting back, his interest. The test . . . of whether such an invasion has in fact set back an interest is whether that interest is in a worse condition than it would otherwise have been in had the invasion not occurred at all. (1984, 34)1
Feinberg stresses the counterfactual element in another influential work. “In the sense of the verb that is of interest and use to the law,” he writes, “Aharms B. . . only if . . . B’s personal interest is in a worse condition . . . than it would be had A not acted as he did” (1986, 148–49).
My own path toward the counterfactual comparative account had to do with reflection on the harm of death. Unlike a punch to one’s stomach, death does not result in any pain, suffering, or the like for the one who dies. (Throughout the book, I assume that there is no afterlife. However, my account of harm is consistent with the denial of this assumption.) Deceased persons—either because they have simply ceased to exist or because they no longer have any psychological capacities—cannot experience pain, or have any desires that are frustrated, or have any other properties in virtue of which they would occupy a negative well-being level. In a nutshell, there is nothing that is intrinsically bad for the deceased. As Thomas Nagel puts it, “if death is an evil at all, it cannot be because of its
positive features, but only because of what it deprives us of” (1970, 74).2
Clearly, death is an evil, at least in typical cases. And it deprives us of more good life. The evil, or harm, of death consists in the fact that death (typically) deprives the victim of a longer life that would have been, on balance, better for the victim than her actual, shorter one. This deprivation approach to the badness of death seems obviously correct, and it seems to make essential use of the counterfactual comparative account. Again, according to this account, an event is a harm for an individual if and only if the individual would have been better off, on balance, if the event had not occurred. The account also has the virtue of being consistent with the claim that death is not always a harm for the one who dies. If the person who dies—say, a terminal cancer patient who dies by physician-assisted suicide—would have continued to suffer had it not been for death, then the account implies that this death is not harmful. Indeed, it is an all-things-considered benefit for the patient. The harm, in this case, is the cancer.
One important virtue of the counterfactual comparative account of harm is that it applies in the same way to the punch in the stomach and to death. When such events harm individuals, the events are harmful for the same reason; that is, these individuals would have been better off if the events had not occurred. This virtue of the counterfactual comparative account and several others are described nicely by Bradley, where he discusses how this account fares with respect to the desiderata that we considered in the Introduction:
It leaves open what sorts of beings may be harmed; any being that has a welfare can be harmed, not just a person. It also leaves open what sorts of events can be harmful; not just actions are harmful. It leaves open what welfare amounts to; it does not presuppose that pain, or desire frustration, or failure is intrinsically bad for people. Since it is ontologically and axiologically neutral, it is also amoral; it entails nothing about whether harming is wrong. It has explanatory power; it is not merely a list of harmful events, but provides a unified account of harms and benefits. It is based on an intuitively plausible idea: that harms make a difference, in a negative way, to the person harmed. And it seems that harm is rendered important, because we do indeed care to prevent or avoid events that make things go worse for us. (2012, 396–97)
Here, Bradley notes that the counterfactual account scores well on ontological neutrality, axiological neutrality, amorality, and unity. The last sentence quoted above seems to be directed at the desideratum of prudential importance, but its point also seems at least partly relevant to normative importance. (I will return to these issues at several points throughout the book, but especially in Chapter 6.) These are six of the seven desiderata that Bradley provides. However, Bradley argues that the account fails when it comes to extensional adequacy, that is, it fails to fit the data. In particular, he thinks that the account faces a problemofpreemption, which has to do with intuitively harmful events that the account implies are harmless, and a problem of omission, which has to do with intuitively harmless events that the account implies are harmful. The first of these problems will be the focus of Chapters 3 and 4, and I will have a bit more to say about it in parts of Chapter 5. The second problem will be the focus of Chapter 6.
Before moving on, it might be helpful to note one feature of the counterfactual comparative account. The feature is related to some of the idioms that we often use in talking about harm. We sometimes speak of one person harminganother and, relatedly, of a person’s beingharmed, and also of a person’s sufferingharm. (Given the ontological neutrality of the account, individuals who are not persons might harm and be harmed, but I will often just speak of persons.) On the perspective associated with the counterfactual account, the fundamental notion is a relation between an event
(which might be, but need not be, an action) and a person: namely, e harms S. Paradigm cases of harming are cases in which one person performs an action that harms a second person. (But we can harm ourselves, so the second person need not be a different person, and we can harm others [or ourselves] without performing actions, as I might do to you if somebody else pushes me into you.) What about the notions of being harmed and suffering harm? I think there is no reason to make a substantial distinction between them. Using the basic notion e harms S, we can say that a given person suffers harm, or that this person is being harmed (or has been harmed), provided that there exists some event that harms her. To say that a person is suffering harm might suggest that she is in pain or perhaps some other intrinsically bad state, but this need not be the case. As Matthew Hanser advises us, “connotations of pain and anguish should be ignored” (2008, 421).
The version of the counterfactual comparative account formulated earlier in this section is a theory of all-things-considered harm. But the account is sometimes given in a version that has to do with pro tanto harm. For example, Hanser (2008) discusses an account of harm that is broadly similar to the one presented earlier, but he argues that an account in terms of pro tanto harm is better. (Hanser, however, ultimately rejects all versions of the counterfactual account.) After discussing the case of a soldier who loses a foot in combat and is removed from the field of battle, which saves him from even more severe injuries, Hanser writes:
There are many components or aspects to a person’s well-being. A single event can make someone better off in one respect but worse off in another. The counterfactual . . . account should thus be revised to say that a person suffers harm if and only if there occurs an event e such that had e not occurred, the person would have been better off in some respect. (2008, 424)
The kind of harm suffered here is clearly pro tanto harm. (Perhaps it would be better to say that this should be an addition to the counterfactual comparative account instead of a revision of it, but I will leave this point aside.) In line with the formulation given earlier, we might state the counterfactual comparative account of pro
tanto harm like this: an event is a pro tanto harm for a person if and only if the person would have been better off in some respect if the event had not occurred. An analogous principle about benefit could then be given, and if we took into account all of the relevant respects in which a person would have been better or worse off had a given event not occurred, we could arrive at a decision regarding the all-things-considered harm or benefit of that event for the person.
In the passage quoted above, Hanser suggests that some form of pluralism about well-being, according to which it has different components or respects, is true. Bradley objects to this way of accounting for pro tanto harm on the grounds that “[a]n analysis of harm should not commit us to pluralism about well-being” (2012, 393 n. 8). Any such analysis would violate the constraint on axiological neutrality. I am doubtful that the account suggested by Hanser implies that pluralism is true. But while I think that speaking in terms of being better (or worse) off in some respect is useful, I think that a better and more complete account will appeal to certain types of good and bad states. I will postpone discussion of this issue to Section 2.2, where I consider how defenders of the counterfactual comparative account should think about pro tanto harm.
1.4. Harm at a Time
In Section 1.2, I suggested that pro tanto and overall harm can be relative to time. I will focus here on overall harm. When I was a child, I was playing in the yard of a house where there was some construction work being done. I tripped and happened to fall on a piece of plywood out of which the sharp ends of several nails were sticking. As a result, my arm was cut pretty badly, and I suffered some harm. After some bandaging, a visit to the doctor’s office, and several weeks of healing, this incident no longer had any bad effects on me. I think it makes perfectly good sense to talk about whenthis incident harmed me. That is, in addition to talking about the fact that it did harm me, and about the precise time when I tripped and
fell, and about the times at which I was in pain and the like, it makes perfectly good sense to say that my tripping and falling harmed me for a certain period of time, or at certain times. In a similar vein, we sometimes warn young people that certain behaviors will cause them harm, or be bad for them, later on in life.
Near the end of the last section, we considered Hanser’s claim that the counterfactual comparative account should be understood as an account of pro tanto harm. His idea is that a person should count as suffering harm if some event makes her worse off in some respect, even if it makes her better off on balance. In the following passage, he argues that a person should also count as suffering harm if some event makes her worse off in some respect at some time, even if it makes her better off in that respect in the long term:
Now suppose that for a time someone is worse off in some respect than he would have been had a certain event not occurred, but that thereafter, and then for a much longer time, he is very much better off in that same respect. Think of the title character of the 1970s television show The Six Million Dollar Man, whose legs were shattered in an accident but who was then given “bionic” replacement legs enabling him to run faster and jump higher than he ever could before. Although in the long run, so to speak, the event in question (the shattering of his legs) came to him as a benefit, I think we should grant that it at first came to him as a harm. . . . So let us revise the account once more: a person suffers harm if and only if there occurs an event e such that had e not occurred, he would have been better off in some respect for some intervaloftime. (2008, 424)
Advocates of the counterfactual comparative account should admit that it makes good sense to ask if a person suffers harm, but, in every case where at least some of the harm is extrinsic, we should stress that a more fundamental question asks if there is some event that harms the person. Moreover, it seems to me that we should also understand what Hanser has in mind here as harm at a time. (And we should take one of his suggestions to be the claim that terms like “harm” and “suffers harm” ordinarily track harm-at-a-time. His general point has to do with pro tanto harm at a time, but I will focus here on overall harm.) As I see it, then, defenders of the
counterfactual comparative account should have something to say about what it is for an event to harm a person at a time.
As it was formulated earlier, the counterfactual comparative account of harm is a theory of all-things-considered harm: an event is an all-things-considered harm for an individual if and only if that individual would have been better off, on balance, if the event had not occurred. There is an obvious way to give the same sort of account for overall harm at a time. We should say that an event is an overall harm for an individual at some time, t, if and only if the individual would have been better off at t, on balance, if the event had not occurred.3 The time here is not, or at least need not be, the time when the harmful event occurs. And the time here might be an instant, but it might also be a longer duration or interval of time. In the case of my falling on the nails, this event probably harmed me for a few weeks after it occurred (that is, during this interval of time and also at many instants of time in the interval). In the case of the title character of TheSixMillionDollarMan, the shattering of his legs harmed him roughly from the time of its occurrence to the time when he became comfortable with his replacement legs. My falling on the nails was probably harmful all things considered, but, as Hanser suggests, the shattering of Steve Austin’s legs was not.
This account of overall harm at a given time is not an account of harm all things considered, since it does not take into account other times. However, it is an account of overall harm. This is because it takes into account the intrinsic value, if any, that the event in question has for the relevant individual as well the extrinsic, or instrumental, value that it has. I am inclined to think that whether or not a given event harms somebody all things considered will be determined by facts about its overall harm (and its overall benefit) for that person at all of the times at which it is overall harmful or beneficial for that person. I will return to this point later in the book.
