The Trolley Problem / Das Trolley-Problem (Englisch/Deutsch). Judith Jarvis Thomson
and within that category, for the possibility of failing to have a right by virtue of assumption of risk; and it might be argued that that is what is involved here, i.e., that track workmen know of the risks of the job, and consent to run them when signing on for it.
But that is not really an attractive way of dealing with this difficulty. Track workmen certainly do not explicitly consent to being run down with trolleys when doing so will save five who are on some other track – certainly they are not asked to consent to this at the time of signing on for the job. And I doubt that they consciously assume the risk of it at that or any other time. And in any case, what if the six people involved had not been track workmen? What if they had been young children? What if they had been people who had been shoved out of helicopters? Wouldn’t it all the same be permissible to turn the trolley?
So it is not clear what (independent) reason could be [48]given for thinking that the bystander will infringe no right of the one’s if he throws the switch.
I think, moreover, that there is some reason to think that the bystander will infringe a right of the one if he throws the switch, even though it is permissible for him to do so. What I have in mind issues simply from the fact that if the bystander throws the switch, then he does what will kill the one. Suppose the bystander proceeds, and that the one is now dead. The bystander’s motives were, of course, excellent – he acted with a view to saving five. But the one did not volunteer his life so that the five might live; the bystander volunteered it for him. The bystander made him pay with his life for the bystander’s saving of the five. This consideration seems to me to lend some weight to the idea that the bystander did do him a wrong – a wrong it was morally permissible to do him, since five were saved, but a wrong to him all the same.
Consider again that lingering feeling of discomfort (which, as I said, some people do feel) about what the bystander does if he turns the trolley. [1406] No doubt it is permissible to turn the trolley, but still … but still .... People who feel this discomfort also think that, although it is permissible to turn the trolley, it is not morally required to do so. My own view is that they are right to feel and think these things. We would be able to explain why this is so if [50]we supposed that if the bystander turns the trolley, then he does do the one track workman a wrong – if we supposed, in particular, that he infringes a right of the one track workman’s which is in that cluster of rights which the workman has in having a right to life.11
I do not for a moment take myself to have established that (ii) is false. I have wished only to draw attention to the difficulty that lies ahead of a person who thinks (ii) true, and also to suggest that there is some reason to think that the bystander would infringe a right of the one’s if he proceeded, and thus some reason to think that (ii) is false. It can easily be seen that if there is some reason to think the bystander would infringe a right of the one’s, then there is also some reason to think that (i) is false – since if the bystander does infringe a right of the one’s if he proceeds, and may nevertheless proceed, then it cannot be the fact that the surgeon infringes a right of the young man’s if he proceeds which makes it impermissible for him to do so.
Perhaps a friend of (i) and (ii) can establish that they are true. I propose that, just in case he can’t, we do well to see if there isn’t some other way of solving this problem than by appeal to them. In particular, I propose we grant that both [52]the bystander and the surgeon would infringe a right of their ones, a right in the cluster of rights that the ones’ have in having a right to life, and that we look for some other difference between the cases which could be appealed to explain the moral difference between them.
Notice that accepting this proposal does not commit us to rejecting the idea expressed in that crisp metaphor of Dworkin’s. We can still say that rights trump utilities – if we can find a further feature of what the bystander does if he turns the trolley (beyond the fact that he maximizes utility) which itself trumps the right, and thus makes it permissible to proceed.
As I said, my own feeling is that the trolley problem can be solved only by appeal to the concept of a right – but not by appeal to it in as simple a way as that discussed in the preceding section. What we were attending to [1407] in the preceding section was only the fact that the agents would be killing and saving if they proceeded; what we should be attending to is the means by which they would kill and save.12 [54](It is very tempting, because so much simpler, to regard a human act as a solid nugget, without internal structure, and to try to trace its moral value to the shape of its surface, as it were. The trolley problem seems to me to bring home that that will not do.)
I said earlier that there seem to me to be two crucial facts about what the bystander does if he proceeds in Bystander at the Switch. In the first place, he saves his five by making something that threatens them instead threaten the one. And second, he does not do that by means which themselves constitute infringements of any right of the one’s.
Let us begin with the first.
If the surgeon proceeds in Transplant, he plainly does not save his five by making something that threatens them instead threaten one. It is organ-failure that threatens his five, and it is not that which he makes threaten the young man if he proceeds.
Consider another of Mrs. Foot’s cases, which I shall call Hospital.
Suppose [Mrs. Foot says] that there are five patients in a hospital whose lives could be saved by the manufacture [56]of a certain gas, but that this will inevitably release lethal fumes into the room of another patient whom for some reason we are unable to move.13
Surely it would not be permissible for us to manufacture the gas.
In Transplant and Hospital, the five at risk are at risk from their ailments, and this might be thought to make a difference. Let us by-pass it. In a variant on Hospital – which I shall call Hospital’ – all six patients are convalescing. The five at risk are at risk, not from their ailments, but from the ceiling of their room, which is about to fall on them. We can prevent this by pumping on a ceiling-support-mechanism; but doing so will inevitably release lethal fumes into the room of the sixth. Here too it is plain we may not proceed.
[58]Contrast a case in which lethal fumes are being released by the heating [1408] system in the basement of a building next door to the hospital. They are headed towards the room of five. We can deflect them towards the room of one. Would that be permissible? I should think it would be – the case seems to be in all relevant respects like Bystander at the Switch.
In Bystander at the Switch, something threatens five, and if the agent proceeds, he saves the five by making that very thing threaten the one instead of the five. That is not true of the agents in Hospital’ or Hospital or Transplant. In Hospital’, for example, what threatens the five is the ceiling, and the agent does not save them by making it threaten the one, he saves them by doing what will make something wholly different (some lethal fumes) threaten the one.
Why is this difference morally important? Other things being equal, to kill a man is to infringe his right to life, and we are therefore morally barred from killing. It is not enough to justify killing a person that if we do so, five others will be saved: To say that if we do so, five others will be saved is merely to say that utility will be maximized if we proceed, and that is not by itself sufficient to justify proceeding. Rights trump utilities. So if that is all that can be said in defense of killing a person, then killing that person is not permissible.
[60]But that five others will be saved is not all that can be said in defense of killing in Bystander at the Switch. The bystander who proceeds does not merely minimize the number of deaths which get caused: He minimizes the number of deaths which get caused by something that already threatens people, and that will cause deaths whatever the bystander does.
The bystander who proceeds does not make something be a threat to people which would otherwise not be a threat to anyone; he makes be a threat to fewer what is already a threat to more. We might speak here of a “distributive exemption,” which permits