JOURNAL OF

MORAL
PHILOSOPHY

Journal of Moral Philosophy 9 (2012) 75102

brill.nl/jmp

Scanlon on Permissibility and Double Effect*

Jakob Elster

The Ethics Programme, Department of Philosophy, Classics, History of Art and Ideas
University of Oslo, P.O. box 1020 Blindern, N-0315 Oslo, Norway
jakob.elster@ifikk.uio.no

Abstract
In his book Moral Dimensions. Permissibility, Meaning, Blame, T.M. Scanlon proposes a new
account of permissibility, and argues, against the doctrine of double effect (DDE), that
intentions do not matter for permissibility. I argue that Scanlons account of permissi
bility as based on what the agent should have known at the time of action does not
sufficientlytakeinto account Scanlons own emphasis on permissibility as a question for the
deliberating agent. A proper account of permissibility, based on the agents actual beliefs,
will allow us to revise the principle Scanlon proposes for regulating the use of violence in
war, and to show that, while the DDE as such might be invalid, its focus on intentions does
point toward an important element which Scanlons proposal lacks, viz. the requirement
that the agent believes that her actions will have certain consequences and can be justified
for that reason.
Keywords
Scanlon, doctrine of double effect, permissibility, intention, subjective ought

1.Introduction

T.M. Scanlons book Moral Dimensions. Permissibility, Meaning, Blame

opens with a critical discussion of the doctrine of double effect (DDE) and
the way in which, according to this doctrine, an agents intentions are
relevant for the permissibility of her actions.1 As Scanlon makes clear,
however, the aim of his discussion is not simply to propose a set of specific
*I am grateful to Lene Bomann-Larsen, Andreas Brekke Carlsson, Christel Fricke, Eline
Busck Gundersen, Robert Huseby, Peter Railton, Knut Olav Skarsaune and an anonymous
referee for JMP for their comments on earlier versions of this article, as well as to Olav
Gjelsvik, A.J. Julius, T.M. Scanlon and Andrew Williams for helpful discussions.
1
T. M. Scanlon, Moral Dimensions. Permissibility, Meaning, Blame (Cambridge, Mass.:
Belknap Press of Harvard University Press, 2008). For a detailed and critical discussion of
Scanlons views on DDE, see Kasper Lippert-Rasmussen, Scanlon on the Doctrine of Double
Effect, Social Theory and Practice, 36 (2010), pp. 541-563.
Koninklijke Brill NV, Leiden, 2012

DOI 10.1163/174552411X612074

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claims concerning the criteria of permissibility of various actions, but also

to argue for a general view on how the concept of permissibility should be
understood.2 In this article, I engage both with the specifics of Scanlons
criticism of the DDE, and with his general account of permissibility. I argue
that Scanlons account of permissibility as based on what the agent should
have known at the time of action does not sufficiently take into account
Scanlons own emphasis on permissibility as a question for the deliberating
agent. A proper account of permissibility, based on the agents actual beliefs,
will allow us to revise the principle Scanlon proposes for regulating the use
of violence in war, and to show that, while the DDE as such might be invalid,
its focus on intentions does point toward an important element which
Scanlons proposal lacks, viz. the requirement that the agent believes that
her actions will have certain consequences and can be justified for that reason. I argue that this epistemic requirement is what gives the DDE its normative force, and that this requirement should be retained even if we reject the
DDE. Furthermore, since the DDE incorporates the epistemic requirement,
the DDE provides correct guidance in almost all cases, and so there is little
need for rejecting the DDE as an action-guiding principle.
I proceed as follows. In section 2, I present the DDE. In section 3, I discuss Scanlons criticism of the DDE. In section 4, I argue that Scanlons
account of permissibility should be rejected in favour of an account of permissibility based on the agents actual beliefs. In section 5, I use this understanding of permissibility to revise Scanlons account of the use of violence
in war, and present the epistemic requirement which is at the core of this
revised account. Finally, in section 6, I discuss how the epistemic requirement accounts for what normative truth there is in the DDE. Although
I limit my discussion to the question of the permissibility of killing civilians
in war, I believe that my arguments can be generalized to other types of
cases involving the DDE.
2.What the DDE Says

Consider the following case from real life:

Hydro: During World War II, heavy water which the Germans hoped to use
for research on nuclear weapons was produced at a factory at Vemork, in
occupied Norway. In November, 1943, American bomber planes bombed the

Scanlon, Moral Dimensions, pp. 6-7.

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factory and managed to stop the production of heavy water. However, large
amounts of heavy water remained, which the Germans sought to transport
from Norway to Germany for use there. They placed the heavy water on a
ferryboat, the Hydro, which was to transport it across a lake for further
transport to Germany. In order to stop the Germans from getting access to the
heavy water, Norwegian resistance fightersplaced a timed bomb on the boat
which transported the heavy water. On February 20, 1944, the boat exploded
and sank, and 14 civilian passengers died.3

Although the resistance fighters knew that civilians could be killed as a

result of the bombing, it is normally considered that their action was permissible, in light both of the fact that the bombing contributed to a very
important goal stopping the Nazis from developing nuclear weapons
and the fact that the death of the 14 civilians was simply a side-effect of the
bombing of the heavy water, and did not in itself contribute to the goal of
impeding the Nazis nuclear program. While the civilian deaths were of
course an unfortunate side-effect, it was of a kind which must be tolerated
if any kind of armed warfare is to be permissible at all, since it is close to
impossible to avoid collateral damage completely in war. The role of the
DDE is to state that this kind of action can sometimes be permissible, and
also to state the conditions in which it is permissible.
Scanlon describes the DDE as saying that although it can be permissible
to do something that one can foresee will lead to the deaths of innocent
people, when doing it is necessary to achieve some greater good, it is impermissible to kill the same number of innocent people as a means to achieving the greater good.4 The DDEs appeal lies in its ability to account for a
great many of our intuitive judgments of permissibility, both in the context
of war (as in the Hydro case) and in other contexts, such as medical ethics.5
3
See Ivar Kraglund, tungtvannssabotasjen and Lars Borgersrud, Norsk Hydro in, H.F.
Dahl and E. Hagen (eds) Norsk Krigsleksikon 1940-45, (Oslo: Cappelen, 1995), pp. 425-426 and
298-299 respectively; and the entry tungtvannsaksjonen in Store Norske Leksikon, online
version (snl.no) accessed 25.11.2011, http://snl.no/tungtvannsaksjonen.
4
Scanlon, Moral Dimensions, p. 14. In his discussion of the DDE, Scanlon refers mainly
to the writings of Judith Jarvis Thomson (equally critical of the DDE), but also to
T.A. Cavanaughs book Double Effect Reasoning (footnote 10 of chapter 1). Scanlons definition of the DDE is, however, sufficiently general to be compatible with most of the more
specific glosses on the principle found in the literature.
5
Empirical research on peoples intuitions provides some support for the claim that the
DDE matches peoples intuitions well. In particular, Marc Hauser and colleagues have
shown that while 85% of subjects find it permissible for a bystander to redirect a runaway
trolley in the standard trolley case, killing one person as a side-effect of saving five, 88% of
subjects find it impermissible to push a heavy man in front of the trolley, using him as a
means to save five people. These results are, however, compatible not only with the DDE,

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In the context of Just War theory, a more detailed statement of the DDE, is
provided by Michael Walzer:
It is permitted to perform an act likely to have evil consequences (the killing
of noncombatants), provided the following four conditions hold:
1)The act is good in itself or at least indifferent, which means, for our
purposes, that it is a legitimate act of war.
2) The direct effect is morally acceptable the destruction of military supplies,
for example, or the killing of enemy soldiers.
3) [The intention of the actor is good, that is, he aims narrowly at the
acceptable effect; the evil effect is not one of his ends, nor is it a means to
his ends, and, aware of the evil involved, he seeks to minimize it, accepting
costs to himself.]
4) The good effect is sufficiently good to compensate for allowing the evil
effect; it must be justifiable under Sidgwicks proportionality rule.6

Walzers detailed formulation of the DDE has the advantage of showing

just how the DDE can be operationalized in the context of war. Scanlons
more succinct formulation is, however, well suited to capture the difficulty
of justifying the DDE, by pointing explicitly to pairs of cases where two
actions have identical consequences, and differ only as to the intention of
the agent, and where nevertheless one action is permissible and the other
is not. As Scanlon rightly points out, in these types of case it appears strange
that an agents intention should affect the permissibility of the act when
the consequences are identical; this is so in part because we lack an explanation for why intention should make a difference in these cases.7
Since not all aspects of the DDE are relevant for the general discussion
of the relevance of intention to permissibility, it is useful to distinguish
three questions which need to be answered in order to determine whether
an action is permissible, only two of which are at stake in this discussion.
The first question concerns what the consequences and circumstances of
an action must be in order for the action to be permissible; we can call the
but with other principles as well. In pairs of cases best explained by the DDE (such as Loop
vs. Loop with weight), there is much less agreement among subjects as to which actions are
permissible. (Marc D. Hauser et. al. A Dissociation between Moral Judgments and
Justifications, Mind & Language 22, no. 1 (2007), pp. 1-21.)
6
Michael Walzer, Just and Unjust Wars A Moral Argument with Historical Illustrations
(New York: BasicBooks, 2000). The main quote is from page 153, but the text of condition 3
is from Walzers revision of this condition on page 155.
7
Note that I here only consider Scanlons claim that it is strange that intentions should
matter for permissibility in the kind of case covered by the DDE. This claim is compatible
with allowing intentions to matter for permissibility in other types of case, where such an
explanation can be provided. Notably, Scanlon himself discusses how an agents intentions
can affect what he calls the meaning of an action, and how an actions meaning can be
relevant for its permissibility. (Cf. Scanlon, Moral Dimensions, chapters 2 and 3.)

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answers to this question the outcome criteria of permissibility. In the case of

the DDE, the outcome criteria are given by the necessity and proportionality requirements: the action must be necessary in order to obtain the good
effect,8 and this good effect must be important enough to outweigh the evil
effect. Next, we can ask how we should assess whether the outcome criteria
are met: by looking at the actual consequences of the action, by looking at
the expected consequences of the action9, or in some other way, such as by
looking at the outcome the agent should have expected? The answer to this
question constitutes the application rule necessary for applying the outcome criteria. Finally, we can ask whether there are any additional psychological criteria of permissibility which must be met, i.e. whether the presence
of certain mental states in the agent should be seen as a further criterion of
permissibility. These three questions are closely interrelated: the identification of the proper application rule only makes sense in light of a set of
outcome criteria, just as the latter require the former if they are to be of
any use. Furthermore, as we will see in section 5, the adoption of certain
application rules imply the existence of certain psychological criteria: more
specifically, an application rule based on expected outcome implies the
requirement that the agent must actually have the beliefs permitting her to
expect that the outcome criteria are met.10
For the purposes of this article, we can accept the outcome criteria proposed by the DDE, as Scanlon indeed does in the alternative principle of
8The necessity criterion is implied in Walzers requirement that harm to civilians is
minimized.
9I take expected consequences to refer to the consequences which could be expected
based on what the agent actually believed. (For the distinction drawn in the main text, see
section 4 and the references in footnote 30.)
10
While the three questions I have described are closely interrelated, it is nevertheless
worth distinguishing between them, since in many cases the answer to one of these questions can vary independently of the answers to the other two questions. For one thing, most
(perhaps all) possible outcome criteria of permissibility are compatible with most (perhaps
all) possible application rules. For example an outcome criterion stating that an action is
permissible if it maximizes overall utility can, depending on our choice of application rule,
be spelled out as actual utility-maximization, expected utility-maximization or maximization of the utility the agent should have expected. (As shown by the discussion in Frank
Jackson Decision-Theoretic Consequentialism and the Nearest and Dearest Objection,
Ethics 101 (1991), p. 461-482; for this general point, see also Frank Jackson and Michael Smith,
Absolutist Moral Theories and Uncertainty, The Journal of Philosophy CIII (2006), pp. 267283, at p. 270.) Furthermore, this outcome criterion, and many others, is also compatible
with most psychological criteria. Next, while certain specific application rules imply specific
psychological criteria (as discussed in the main text), this is not the case for all application
rules; furthermore, even when a specific application rule is necessarily connected to a specific psychological criterion, it is an open question whether other psychological criteria are

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permissible killing which he proposes (see section 3). What is at stake in

Scanlons discussion of the DDE as well as in my discussion of Scanlon is
thus not what the consequences of an action must be in order for the action
to be permissible. Rather, Scanlons main criticism of the DDE concerns its
psychological criterion, viz. the requirement that the agent has the right
intention. However, we shall see that an equally important disagreement
concerns the application rule: for the DDE, we should assess whether the
outcome criteria are met in terms of the agents actual beliefs about the
circumstances and consequences of the action. Scanlon by contrast, wants
to apply these criteria with reference to what the agent should have known.
Thus, as I will argue, according to Scanlon, none of the agents actual mental states neither her intentions nor her actual beliefs are relevant when
assessing the permissibility of the actions under discussion.11
3.Unpacking Scanlons Attack on the DDE

Scanlon's criticism of the DDE involves four main elements.12 1) The DDE
has counter-intuitive implications. 2) There is no theoretical argument
available justifying the DDE. 3) Scanlon gives a psychological explanation
of why we tend to believe that intentions matter. 4) Scanlon proposes an
alternative account of many of the intuitions which the DDE was meant
to explain, making the DDE superfluous. I will look at these arguments one
by one.
3.1.The counter-intuitiveness of the DDE
Scanlons first criticism consists in pointing to the counter-intuitiveness of
saying that when all consequences are equal, the permissibility of an action
might hinge on the agents intention. Scanlon illustrates his point with the
difference between a tactical bombing raid and a terror bombing raid:
required. Indeed, the difference between the DDE and the principle I will propose in section
5 consists precisely in the fact that the DDE requires right intention as a further psychological criterion in addition to knowledge of the expected consequences. (I am grateful to an
anonymous referee for JMP for his/her helpful comments on these distinctions.)
11
That is, the actions traditionally accounted for by the DDE. As mentioned, mental states, including intentions, can be relevant when judging other types of action. (See
footnote 7.)
12
In addition, Scanlon suggests an argument to the effect that any explanation of the
DDE must be circular; as he does not develop this argument fully, and as I believe it can be
met, I will leave it aside here.

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Suppose you were prime minister, and the commander of the air force
described to you a planned air raid that would be expected to destroy a
munitions plant and also kill a certain number of civilians, thereby probably
undermining public support for the war. If he asked whether you thought this
was morally permissible, you would not say, Well, that depends on what your
intentions would be in carrying it out. Would you be intending to kill the
civilians, or would their death be merely be an unintended but foreseeable
(albeit beneficial) side effect of the destruction of the plant?13

Scanlon notes that it is implausible that the action should be permissible

if performed by an agent with one intention but impermissible if performed
by an agent with a different strategy in mind.14 It is worth looking more
closely at the grounds for saying that this claim is implausible.
First, though it is not explicitly stated, the most plausible interpretation
of the example is that the commander is not simply asking the prime minister for advice, but for an order: the commander will only launch the air
raid if the commander tells him to. (That is why the commander asks the
prime minister, not the local ethicist.) If that is the case, the relevant intention is not that of the commander, but that of the prime minister himself,
since the decision to launch the bombing raid is, given the chain of command implied in the example, the prime ministers decision. That is one
reason why it seems strange for the prime minister to make his answer
hinge on the intention of the commander, a reason which has nothing to
do with the DDE.
Next, the absurdity of intentions making a difference to permissibility
might be thought to just be a specific instance of a more general absurdity,
that of the agents mental states making a difference to permissibility:
why should what happens in the agents head, it might be asked, matter
for whether an action is permissible or not, if these mental events have
no bearing on the consequences of the action? Indeed, Scanlons criticism might be supported by the claim that no mental states matter for
permissibility in the kinds of cases covered by the DDE.15 For example, in
discussing the case, proposed by Judith Jarvis Thomson, where an agent did
not know that by flipping the light-switch, she would electrocute her neighbour,16 Scanlon denies that an agents actual knowledge is relevant for permissibility; rather, what is relevant is what the agent should have known.

Scanlon, Moral Dimensions, p. 20.

Scanlon, Moral Dimensions, p. 20.
15
Again, Scanlon certainly thinks that mental states can matter for other kinds of case.
16
Scanlon, Moral Dimensions, pp. 47-52.
13

14

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I will argue in section 4 that this view of permissibility is mistaken, and that
an agents actual beliefs do matter for permissibility. So we cannot derive
the claim that it is absurd that intentions should matter from a general
claim that it is absurd that the agents mental states should matter at all.17
These comments notwithstanding, I do agree with Scanlon that it often
is implausible to claim that intentions matter for permissibility in the way
the DDE claims they do. In particular, in cases of first-person deliberation
where we know that the consequences would be the same, whatever our
intention, it does seem strange that intentions should matter, and that the
deliberating agent would have to ask herself what her intentions really are,
and whether they are legitimate.18 One reason why this seems strange,
though not emphasized by Scanlon, is that an agent might redescribe her
action in terms of (to use Frances Kamms expression) narrow intentions,
thus making impermissible actions permissible. This point is made by
Jonathan Bennett, who gives the following example: In the case of terror
bombing, the intention can be redescribed as the intention that the civilians appear dead for long enough to undermine public support for the war;
the only way of making them appear dead was by dropping a bomb which
kills them, but only the appearance of death, not death itself, was intended.19
To the claim that the DDE has counter-intuitive implications, Scanlon
adds the claim that we lack any good theoretical argument in favour of the
17
More precisely: Scanlon could do this, but only at the cost of holding on to an account
of permissibility which, as I will argue, is flawed.
18
As Scanlon acknowledges, there is a perfectly good pragmatic reason why the prime
minister might wish to take the commanders (and the pilots) intentions into account,
which is that the consequences of a commander launching an air raid with one intention
rather than another are likely to be different. If the pilots miss their goal, they will typically
try again and hence it matters which goal they aim at. Furthermore, the DDE requires us
to minimize collateral damage as much as possible, something the pilots would also take
into account if their intention was to bomb the munitions plant. (We might add that if
people have certain intentions such as acting for personal gain they might rightly mistrust the validity of their own judgment as to the permissibility of the action.) In order to
meet this problem, Scanlon imagines an alternative case, where the question is whether or
not to launch a missile at certain coordinates, so that the consequences are guaranteed to
be the same, whatever the intentions of the person launching the missile might be. (Scanlon,
Moral Dimensions, pp. 30-32. ) Scanlon admits that this case is artificial, and that in real life,
consequences will normally depend on the agents intentions and there will therefore be
good reasons to let permissibility hinge on intentions. But he claims that according to the
DDE, the relevance of intentions is not simply derivative in this way, but fundamental.
(Ibid., p. 32)
19
Jonathan Bennett Morality and Consequences, in The Tanner Lectures on Human
Values, ed. S. McMurrin (Salt Lake City: University of Utah Press, 1981), vol 2, pp. 47-116,

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DDE20. If the DDE were theoretically sound, we might accept counter-

intuitive implications; and if it were highly intuitive, we might not need a
theoretical basis for the DDE. But since it is neither, there is good reason to
abandon the DDE. And indeed, the lack of a justification for the DDE supports its counter-intuitiveness: the counter-intuitive implications do not
primarily consist in the specific actions it identifies as permissible or impermissible21, but in the fact that it singles out intention as morally relevant in
cases such as the air raid case described above, where we lack a justification
of this relevance.
3.2.The psychological debunking of the DDE-intuitions
Scanlon readily admits that the DDE does not always have counterintuitive implications. With regard to the cases where the DDE has intuitive implications, his strategy is two-fold. On the one hand, he proposes
an alternative normative account of these cases, which does not rely on
intentions; I will consider this in the next section. On the other hand, he
proposes a psychological explanation of why we are inclined to see these
cases as evidence of the DDE. Once this explanation is available, the cases
in question are supposedly no longer evidence in favour of the DDE. In
short, Scanlon claims that we (mistakenly) believe that an agents intentions are relevant for permissibility because we (correctly) recognize that
an agents intentions are relevant when we judge whether she deliberated
in a morally correct way, and we confuse criticism of an agents deliberation with permissibility.
Since Scanlons distinction is important for what follows, it is worth
quoting at length:
[M]oral principles [] can be employed in either of two ways: as standards of
criticism or as guides to deliberation. As guides to deliberation, moral
principles answer a question of permissibility: May one do X? They also
explain the answer by identifying the considerations that make it permissible
or impermissible to do X under the circumstances in question. These
considerations may concern what the agent sees as reasons for acting, or other

at p. 111. Cf. F.M. Kamm, Failures of Just War Theory: Terror, Harm, and Justice, Ethics, 114
(2004), pp. 650-692, at p.665.
20
Scanlon, Moral Dimensions, p. 18.
21
Although Scanlon also counts against the DDE the fact that it condemns redirecting
the runaway trolley in the Loop case, an action Scanlon finds intuitively plausible.
(Scanlon, Moral Dimensions, p. 18)

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features of his state of mind, but they need not and often do not do so. In what
I will call their critical employment, however, a principle is used as the basis
for assessing the way in which an agent went about deciding what to do on
some real or imagined occasion. []
These two uses of moral principles are closely related, but there is a crucial
difference between them. Criticism of the way an agent decided what to do is
unavoidably predicated on assumptions about the agents state of mind in
particular about what he or she took into account when deciding what to do
and took as reasons for and against acting as he or she did. By contrast, when
principles are used to guide deliberation, they do this merely by specifying
which considerations do, and which do not, count for or against various
courses of action. I will refer to these applications of principles as their critical
and their deliberative uses.22

As a direct argument against the DDE, Scanlons argument, based on the

claim that the proponents of the DDE confuse the critical and the deliberative use of principles, is rather weak. The fact that we can find a fallacious
argument for the view that P, and perhaps even show that many people
have come to believe P by this fallacious route, is not sufficient for showing
that P is false. But perhaps the argument should not be understood as direct
criticism of the DDE, but rather as playing an indirect role: People might be
persuaded to abandon their belief in the DDE if they realize that they only
hold this belief because of a fallacious argument. Scanlon thus further shifts
the burden of proof onto the proponent of the DDE.
That being said, Scanlon's distinction between the critical and the deliberative use of moral principles is not primarily important for its role in criticizing the DDE. Rather, it is a valuable distinction in its own right, and
indeed introducing it is one of the goals of the book. Building on this distinction, Scanlon argues, through a series of examples, that typically
(though there are important exceptions) permissibility depends only on
the factual considerations counting for or against an action, not on whether
the agent took these considerations to be her reasons for acting.
3.3.Scanlons alternative account
In line with this general strategy, part of Scanlons attack on the DDE consists in showing that the intuitions typically explained by the DDE can be
accounted for by referring only to facts about the circumstances of the
action and its consequences, with no reference to intentions or to other
mental states such as the agents knowledge. Let us consider Scanlons
Scanlon, Moral Dimensions, pp. 22-23.

22

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85

argument for why terror bombing is impermissible, while tactical bombing

is not. Scanlon proposes the following principle:
[The use of destructive and potentially deadly force] is permitted only when
its use can be expected to bring some military advantage, such as destroying
enemy combatants or warmaking materials, and it is permitted only if
expected harm to noncombatants is as small as possible, compatible with
gaining the relevant military advantage, and only if this harm is proportional
to the importance of the advantage.23

Let us call this Scanlons principle. The second half of Scanlons p

rinciple
necessity and proportionality are the same as in the DDE; it is the first
half which is importantly different from the DDE, by making no reference
to intentions, only to what can be expected about the consequences of the
action. The terms can be expected and expected harm are ambiguous in
this principle. On one reading, they refer to what the agent actually can or
does expect. On another reading, they refer to what can be expected given
what the agent should have known. From Scanlons general account of permissibility, it seems clear that it is the latter sense which is intended (see
the next section). In section 5, I will argue that the principle is far more
plausible if we adopt the former reading.24
While Scanlons principle and the DDE both accept the bombing in the
Hydro case (although for different reasons), they have different consequences in other important cases. Consider an imaginary variant of the
actual Hydro case:
Hydro 2: In addition to the heavy water and the Norwegian civilians, Hitlers
personal doctor (a civilian) was on board the boat, and he was the only person
who knew how to cure Hitler from a deadly disease. The resistance fighters,
knowing this, decide to blow up the boat in order to kill Hitlers doctor, thus
gaining a military advantage (Hitlers death) by means of killing a civilian.
Scanlon, Moral Dimensions, p. 28.
Furthermore, the principle as stated is incomplete, if it is meant to rule out all terror
bombings of civilians. For example it does not rule out demoralizing the enemy soldiers by
killing their children. (Nor does it rule out other forms of killing of civilians for military purposes, such as killing the enemy armys doctors.) Scanlon must therefore add that the
military advantage to be gained is either the direct consequence of the use of destructive
force, or the consequence of a morally good or neutral direct consequence of the use of
destructive force. (Kasper Lippert-Rasmussen also makes this point in his Scanlon on the
Doctrine of Double Effect, pp. 551-3, but doubts that the proposed solution is viable.) This
revision does not, however, commit Scanlon to any reference to intentions, since whether a
consequence comes about as a direct result of the killing of civilians or not, is something
which can be decided without reference to an agents intentions. In the following, I will
ignore this problem with Scanlons principle.
23

24

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According to the DDE, this is clearly wrong; but according to Scanlons

principle, this action is permissible, as long as an alternative valid justification is also available viz. that an important military advantage will be
gained by means of destroying the heavy water. We can even make the
imaginary case more extreme:
Hydro 3: While there was heavy water on the boat, the resistance fighters only
intention in blowing up the boat was the desire to kill one of the civilians on
board, whom he hated for personal reasons.

According to Scanlons principle, blowing up the boat would be permissible even in this case, since an alternative justification was available: the
use of violence could be expected to bring about a military advantage of
sufficient importance.25 I suspect that, especially in the latter and more
extreme case, peoples intuitions as to whether the sabotage was permissible will vary widely, and so neither the DDE nor Scanlons principle can be
said to clearly be on the side of intuition.
While this discussion shows that there might be more to be said to
defend an intention-based account of permissibility (such as the DDE)
against Scanlons attack, I will instead consider another element of his
account of permissibility: the irrelevance of the agents beliefs in assessing
the permissibility of her actions. I will go on to argue that it is the requirement that the agent has certain beliefs, not that she has certain intentions,
which does the important normative work in the DDE.
4.Scanlons Account of Permissibility

One of the main goals of Scanlons book is to provide an account of permissibility. While the book is certainly an important contribution in this
direction, I believe that Scanlons account is flawed in one important
respect. Exposing this flaw and suggesting a revision of his account is, I
hope, of value in itself. But I will also show in section 6 how the revised
25
Scanlon, Moral Dimensions, pp.20-21. In his discussion of Scanlons argument, Kasper
Lippert-Rasmussen also proposes (with a different aim than mine) a case where a tactical
bombing like the one usually condoned by DDE is motivated by a selfish reason (in his case
financial gain). (Scanlon on the Doctrine of Double Effect, pp. 549-551.) A crucial difference between my case and his, however, is that in his case, the bombers intention (economic gain) is not per se evil, whereas in my case (kill a personal enemy) it is. Thus, while
Lippert-Rasmussen writes that the DDE would condone the selfish tactical bombing in the
case he proposes, it would certainly not condone the bombing in Hydro 3.

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account of permissibility can be used to identify what we should retain of

the DDE.
Scanlon explicitly contrasts his own account of permissibility with the
account proposed by Judith Jarvis Thomson26. Thomson discusses permissibility in terms of the objective ought, where what one ought to do is a
function of what the actual (or objectively probable27) consequences of
ones action are, independently of whether or not the agent knew or could
have known about these consequences. In this sense of ought, if a doctor
believes based on a reasonable assessment of the evidence that a drug
will cure a patient, but because of some unknowable allergy the patient
has, the drug kills the patient, the doctor acted impermissibly.28 According
to the more (but not fully) subjective sense of ought favoured by Scanlon,
the doctor does not act impermissibly. Scanlon argues against Thomsons
objective understanding of permissibility by tying the question of permissibility to the point of view of the deliberative agent:
[T]he point of view expressed in the objective sense of ought that Thomson
describes involves a kind of omniscience that prevents it from being identified
with the point of view of a deliberating agent, and therefore prevents if from
capturing the idea of permissibility that is appropriate to the latter outlook.29

Scanlons discussion of permissibility belongs to a large contemporary

debate about different meanings of the concept ought.30 While this
discussion is normally about the best way to understand obligation, it is
evidently also applicable to the concept of permissibility, since any claim
about obligations can be translated into a claim about permissibility. A
Scanlon, Moral Dimensions, pp. 47-52. For Thomsons account of permissibility, cf.
Judith Jarvis Thomson, The Realm of Rights (Cambridge, Mass: Harvard University Press,
(1990).
27
For the sake of simplicity, I will in the following discuss the objective ought only in
terms of actual, not probable, consequences.
28
The example is based on a set of cases introduced by Frank Jackson in DecisionTheoretic Consequentialism.
29
Scanlon, Moral Dimensions, p. 48
30
Cf. e.g. Jackson, Decision-Theoretic Consequentialism; Jackson and Smith, Absolut
ist Moral Theories and Uncertainty; Michael J. Zimmermann, Is Moral Obligation Objec
tive or Subjective?, Utilitas 18 (2006), pp. 329-361. My argument in this section draws on
Jacksons pioneering description and defense of the subjective ought in his DecisionTheoretic Consequentialism and the Nearest and Dearest Objection, both in that the
concept of permissibility I defend corresponds to the subjective ought defended by Jackson,
and in that my two arguments against Scanlons understanding of ought (it does not fit
with the deliberative perspective, and it gives intuitively wrong responses in certain cases)
mirror Jacksons arguments against the objective ought (pp. 466-7).
26

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central issue in this debate is the distinction between an objective

ought and a subjective ought. While the former is conditional on what an
omniscient judge would think is the best action, the latter is conditional on
the situation of the deliberating agent, while making up her mind as to
what to do. Hence Frank Jackson and Michael Smith have helpfully christened it the decision-ought.31 The question which concerns us here is how
we should understand the decision-ought, that is the ought which, in Frank
Jacksons terms is the ought most immediately relevant to action.32 It is
this ought which, according to Scanlon is relevant for permissibility (as
shown in his criticism of Thomsons objective ought). While I agree with
Scanlon that permissibility should be understood in terms of the decisionought, I will argue that he misconstrues this decision-ought.
It is worth spending some time on the passage where Scanlon first discusses the concept of permissibility.
The question of permissibility, May one do X? is generally asked as a
precursor to a decision about whether to do X or not. So asked, it applies only
to something that can be the object of an agents decision, something that, if
one were to decide to do it, would be done intentionally. But the question of
permissibility, as I understand it, is broader than this. The question is not
always a precursor to a decision, but can also be asked retrospectively, or
hypothetically, about the way a person behaved on some past, or imagined,
occasion. [] The question of permissibility is always about something a
person does or might do a way he or she might govern him- or herself and
thus about something that could be the object of a possible decision. But it can
be asked about a way of behaving characterized in a way that the agent was, at
the time, unaware of, and hence about a way of behaving that was not
intentional.33

This passage involves several possible ways in which the question of permissibility can be understood. First, there is what we can call the paradigmatic question of permissibility, where an agent asks May I (here and now)
do X? This question belongs to the decision-ought, where all which is relevant for that agent in making her decision is her beliefs about what is the
case. Next, there is what we can call the vicarious question of permissibility,
where we consider another (real or imagined) person (or ourselves at
another time) faced with a choice, and we ask what answer we would give
to the question May I (here and now) do X? if we were in that persons

Jackson and Smith, Absolutist Moral Theories, at pp. 269-270.

Jackson, Decision-Theoretic Consequentialism, at p. 472.
33
Scanlon, Moral Dimensions, p. 9
31

32

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shoes. This form of vicarious moral reasoning is what we often do when we

read novels or history books, and when we hear about thought experiments
in ethics, or about the real dilemmas faced by other people. When this form
of reasoning is truly vicarious, we do not allow ourselves more knowledge
than what the agent actually had: indeed such exercises would often be
pointless if we did.
Thirdly, there is a range of variations on the vicarious question of permissibility, where we still ask, on behalf of someone else, May I (here and
now) do X?, but where we allow ourselves more knowledge than the agent
actually had.34 This is typically what we do when we ask whether, with hindsight, a past action of ours was permissible. We can call these kinds of question more-knowing questions of permissibility. Once we allow for more
knowledge than the agent actually had at the time of deliberation, there
can, as Frank Jackson notes, be a multitude of different oughts and hence of
questions of permissibility:
[W]e have no alternative but to recognize a whole range of oughts what she
ought to do by the light of her beliefs at the time of action, what she ought to
do by the lights of what she later establishes (a retrospective ought, as it is
sometimesput), what she ought to do by the lights of one or another onlooker
who has different information on the subject, and, what is more, what she
ought to do by Gods lights, that is, by the lights of one who knows what will
and would happen for each and every course of action. The last will be a
species of objective ought [.]35

Of the many possible concepts of more-knowing permissibility, two are of

particular interest. On the one hand, the question of what action was permissible given what the agent should have known; on the other hand, the
question of permissibility given an omniscient agent. The latter is the
objective permissibility espoused by Thomson and rejected by Scanlon.
The former is the concept of permissibility which Scanlon, as I read him,
adopts.
Scanlon first introduces this concept of permissibility when arguing for
the difference between on the one hand, the impermissibility of both
knowingly harming someone and harming someone through negligence,
and on the other hand, the permissibility of actions which result in
someone being harmed through some unpredictable freak accident. He
writes: What differentiates negligence from a freak accident is not the
There are also cases where we allow ourselves less knowledge. I discuss these in the
next section.
35
Jackson, Decision-Theoretic Consequentialism at pp. 471-472.
34

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agents aims, or necessarily what the agent believed about the likely effects
of his or her action, but what he or she should have believed, under the
circumstances, about the likely effect of that action.36 Later, he develops
the same point:
The question of permissibility is a question that can be asked by a deliberating
agent, and one that a normal agent can be expected to answer. The answer to
this question is not just a matter of what is in fact the case (whether anyone
could know it or not). But at the same time, permissibility is not merely a
matter of what the agent believes the facts to be. It depends also on what it is
reasonable for the agent to believe in the situation, what it is reasonable for
the agent to do to check those beliefs, and whether the agent has done those
things.37

However, Scanlons argument for rejecting the objective question of permissibility can equally well be used to reject all forms of more-knowing
questions of permissibility, including the question of permissibility based
on what the agent should have known. If objective permissibility should be
rejected because it involves knowledge which the deliberating agent does
not have, so should permissibility based on what the agent should have
known. As long as the agent does not know what she ought to know, should
have known-permissibility too fails to captur[e] the idea of permissibility
that is appropriate to the [outlook of the deliberating agent]. For permissibility, all that matters is the agents actual beliefs, given that the question
of permissibility is, as Scanlon says, a question that can be asked by a deliberating agent. As Frank Jackson, who has emphasized this point in defending the decision-ought against the objective-ought, puts it, an ethical theory
should give an account of what to do from the inside of an agent, and can
thus not appeal to facts not known by the agent.38
In order to illustrate why a concept of permissibility based on what the
agent should have known fails, consider the example of a doctor who,
Scanlon, Moral Dimensions, p. 14. Scanlons emphasis.
Scanlon, Moral Dimensions, p. 51-52. It is true that the expressions not merely a matter
of what the agent believes the facts to be and It depends also on might indicate that for
Scanlon both actual beliefs and the beliefs an agent should have matter for permissibility.
Yet the quote to footnote 36 supports my reading of Scanlons account of permissibility as
only based on the beliefs an agent should have. Actual beliefs only seem to matter to the
degree that they are identical to what the agent should have believed. Furthermore, even if
Scanlon is best interpreted as saying that actual beliefs as well as what we should have
believed matter for permissibility, my criticism still stands, since the deliberating agent does
not have access to all the information necessary for determining permissibility a situation
which is incompatible with understanding permissibility in terms of the decision-ought.
38
Jackson, Decision-Theoretic Consequentialism at pp. 466-7.
36
37

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confronted with an extremely ill patient who needs urgent treatment, has
to choose which drug to use, drug A or drug B.39 She believes correctly that
both drugs have an equal chance of saving the patients life; but she also
believes that while drug A has no side-effects, drug B will give the patient a
highly disagreeable rash for several weeks. She thus chooses drug A, to
avoid the side-effects. As it happens, the doctor paid no attention at medical school the day she was taught about these drugs, and for this reason she
did not know what she ought to have known, namely that given the particular symptoms of the patient, drug A was certain to paralyze him for life.
According to Scanlons account of permissibility, she acted impermissibly.
Yet, given what she knew at the time, giving drug A was the right thing to
do. A notion of permissibility thus divorced from actual deliberation is
something we should reject, for precisely the reasons Scanlon gives when it
comes to rejecting the objective ought it does not help for deliberation.
There are of course many further things we can say about this doctor: We
can say that she acted impermissibly in not paying attention during medical school, and that she further acted impermissibly when she started practicing medicine without having made up for her lack of attention in medical
school. And we can accordingly blame her for being in a situation of culpable ignorance when making a vital decision. But none of these facts make
it the case that she acted impermissibly once she was in the unfortunate
situation where she had to make an immediate choice between the two
drugs, and made what was the right decision given what she believed.
To make the case against the should have known-concept of permissibility even stronger, imagine that the doctor is angry at her patient for
spoiling what she had planned as an afternoon with little work and decides
to punish him by not giving him what she takes to be the best drug drug
A but rather drug B, precisely in order to give the patient a severe rash.
Since the doctor did what was permissible based on what she ought to have
known, she acted permissibly according to Scanlons account. Yet it is hard
to avoid the intuition that her action was impermissible, given that she did
not know about the positive outcome of her action. From her point of view,
the action was impermissible, and her point of view is all that can matter
for her deliberation.
It might be objected on Scanlons behalf that a justification for the
should have known-account of permissibility is that what the culpably

39
This example too, and the argument based on it, are inspired by Frank Jacksons canonical set of cases, cf. footnote 28.

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ignorant agent should do is refrain from acting until she has made further
investigations hence Scanlons reference to what it is reasonable for the
agent to do to check [her] beliefs. If we do not define permissibility in
terms of what the agent should have known, the idea goes, we have no way
of grounding a duty to acquire more information before acting. I have two
replies to this objection. First, while it is often the case that a culpably ignorant agent acted impermissibly because the only permissible action was
looking for more information, this is not always the case. In the doctors
situation, for example, taking the time to look up more information is not
an option: she must act immediately, or the patient will die. The example
shows that there is no necessary link between not knowing what one ought
to know and having the duty to look for more knowledge; we therefore
need a concept of permissibility which is also of use for a deliberating agent
in cases where further investigation is not an option.
The second reply is that, as Frank Jackson has argued, an account of permissibility based on an agents actual beliefs can equally well allow for a
duty of further inquiry. Indeed, from the claim that we can only use our
actual beliefs to determine permissibility, it does not follow that we can
never say that an action is impermissible unless we acquire more information.40 Imagine again that the doctor is about to give her patient drug A,
because she believes, based on a cursory examination, that he is not among
the rare people allergic to this drug. Knowing about the possibility of severe
side-effects with this drug, however, the doctor has adopted the following
rule: Never give a drug of type A to a patient before you have done a blood
test in order to see if he is allergic. In that case, her own rule of action
would tell her not to be satisfied with her belief unless she has verified it.
The duty of further inquiry does not flow directly from our concept of permissibility (as it might do on Scanlons account), but from the substantial
rules governing the agents behaviour. This is at it should be. Given that in
some situations (such as when urgent medical treatment is needed), we
should not take the time to engage in further inquiry even if we lack necessary knowledge, a concept of permissibility which directed us towards further inquiry whenever we are culpably ignorant would often give us
misguided advice.41 By contrast, if we make permissibility a function of
40
Jackson, Decision-Theoretic Consequentialism, at pp. 464-5. (Jackson also illustrates
this point by developing his example of the drug-giving doctor.)
41
In fairness to Scanlon, his account of permissibility contains a reference to what it is
reasonable for the agent to do to check her beliefs, and this reference might block the conclusion that the doctor should engage in further inquiry even when she has no time to do so.

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actual beliefs combined with specific rules of action, we allow for the fact
that whether further inquiry is required or not will vary from context to
context, and we provide the agent with advice which she can actually use
in her deliberative situation, since the advice (including sometimes the
advice to engage in further inquiry) is based on the agents actual beliefs,
not on beliefs she should have, but might lack.
5.Permissibility and the Epistemic Requirement

With this account of permissibility in mind, let us return to the difference

between the DDE and Scanlons principle of permissible killing. Since these
principles differ as to whether actual belief is relevant, we need to separate
cases according to what beliefs the agent has.42 For the sake of simplicity,
I will stick to Hydro 3, where the resistance fighter bombs the boat in order
to kill a person he dislikes for personal reasons. I will suppose that in all
variants of this imaginary case, the resistance fighter both could have and
should have known that there was heavy water on the boat. (For example,
this information was given at a meeting of the resistance fighters, which he
had a duty to go to.) We can then distinguish:
Hydro 3-no knowledge: The resistance fighter did not know that there
was heavy water onboard.
Hydro 3- factual knowledge: The resistance fighter knew that there was
heavy water onboard.
Hydro 3- normative knowledge: The resistance fighter knew that there was
heavy water onboard and that the presence of heavy water constitutes a
justification for bombing the boat despite the presence of civilians.
While the DDE would reject the bombing in all three cases, it follows from
Scanlons principle of permissible killing and Scanlons general view of permissibility, that bombing is permissible in all three cases. Even in Hydro
3-no knowledge, the agent acted permissibly, given that the use of force
could be expected to bring a (direct) military advantage, and given that the
agent should have known this. This claim seems highly counter-intuitive,
once we recall that permissibility is a question asked from the agents
point of view, and so belongs to the decision-ought. In terms of the agents
42
As I discuss below, it is actual reasonable beliefs, not necessarily knowledge, which is
morally relevant. But for the sake of simplicity, I will discuss these cases in terms of
knowledge.

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decision-ought, there is no difference between Hydro 3-no knowledge and a

case where there was actually no heavy water on board. In the latter case,
everyone agrees it would be impermissible to bomb the boat simply to kill
a personal enemy. If this is so, and given that there is no difference as far as
the deliberating agent is concerned between that case and Hydro 3-no
knowledge, there is no justification for saying that bombing in the latter
case is permissible.
The obvious remedy to Scanlons principle is to revise it so that can be
expected refers to what the agent actually can expect given the beliefs she
has, not to what can be expected given the beliefs the agent should have.
The revised version of Scanlons principle (RSP) is thus:
[The use of destructive and potentially deadly force] is permitted only when
its use can, based on what the agent reasonably believes to be the case, be
expected to bring some military advantage, such as destroying enemy combat
ants or warmaking materials, and it is permitted only if expected harm to
noncombatants is as small as possible, compatible with gaining the relevant
military advantage, and only if this harm is proportional to the importance
of the advantage.

This revised principle would judge bombing in Hydro 3-no knowledge

impermissible. (I will comment shortly on the role of the word reasonably
in RSP.)
We are now in a position to examine what common ground there is
between RSP and the DDE, in terms of the three questions concerning permissibility, which I presented in section 2. The DDE and RSP agree on the
outcome criteria of permissibility: the good effect must be sufficiently good
to outweigh the evil effect, and there must be no other way of obtaining the
good effect which entails less harm to civilians. The two principles also
share the same application rule. Both principles claim that we should use
an agents actual beliefs to assess whether the outcome criteria are met by
contrast both with Scanlons original principle and with Thomsons objective conception of permissibility. The two principles come apart when we
look at the psychological criteria of permissibility, since the DDE requires
the presence of a mental state right intention which RSP (following
Scanlons original principle) does not require. However, the two principles
share a further psychological criterion, viz. the requirement that the agent
has the beliefs permitting him to judge that the outcome criteria (proportionality and necessity) are met. I will call this requirement the epistemic
requirement. The epistemic requirement follows, in the form just given,
directly from the application rule discussed above. If an agent can only
permissibly use violence when it follows from her beliefs about the
circumstances and consequences of her action that the outcome criteria

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are met, it follows that she can only permissibly use violence when she has
the beliefs in question. It is the epistemic requirement, I will suggest in the
next section, which provides the DDE with its normative force. I will therefore discuss it in some detail in the rest of this section.
First, we must distinguish between two forms of this requirement:
1.The weak epistemic requirement: The agent only uses deadly force permissibly if it follows from what the agent reasonably believes about the
factual consequences of his action that the outcome criteria of permissibility the necessity and proportionality requirements are met.
2.The strong epistemic requirement: The agent only uses deadly force permissibly if he reasonably believes that the outcome criteria of permissibility the necessity and proportionality requirements are met, and
that the action can therefore be justified.
According to the strong epistemic requirement, the agent must not only
have certain factual beliefs concerning her action beliefs which can be
used to assess whether the proportionality and necessity criteria are met.
She must also explicitly believe that these criteria are met and that the
action is therefore justified.43 I propose that it is the strong epistemic
requirement which is normatively important; it is certainly this requirement which is implied by the DDE, since without the belief that ones
action meets the necessity and proportionality requirements, one cannot
have the right intention. The revised version of Scanlons principle, however, refers only to the weak epistemic requirement. I therefore suggest a
further revision of Scanlons principle, incorporating the strong epistemic
requirement:
RSP2: [The use of destructive and potentially deadly force] is permitted only
when the agent reasonably expects it to bring some military advantage, such
as destroying enemy combatants or warmaking materials, and it is permitted
only if the agent reasonably expects the harm to noncombatants is as small as
possible, compatible with gaining the relevant military advantage, and
reasonably believes that this harm is proportional to the importance of the
advantage, and that the action can therefore be justified.

One might ask why we should adopt the strong epistemic requirement.
Indeed, unlike the weak epistemic requirement, it does not follow directly
from the application rule based on actual beliefs. It is perfectly compatible
with this application rule to say that the agent need not herself believe that
the outcome criteria are met. She can have failed to think the matter
43
A related approach has been proposed by A.J. Julius, in his paper Thoughts that count
I (unpublished manuscript).

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through, and to notice what follows from her factual beliefs. However, even
if the strong epistemic requirement does not follow directly from the application rule based on actual belief, it does follow from the logic which led us
to revise Scanlons principle in the first place. To see this, compare Hydro 3
No Knowledge with Hydro 3 Factual Knowledge. In the former case,
bombing is impermissible because if the agent did not know that the heavy
water was on board, the situation as it appears to him was identical to a
situation in which he bombs a boat only to kill a person he hates and in
which there was no heavy water on board something which would clearly
have been impermissible. In Hydro 3 Factual Knowledge, the resistance
fighter knows there is heavy water on board, and hence he has the knowledge which would allow him to judge that the proportionality and necessity requirements have been met. Yet, if he does not actually make this
judgment, but considers the presence of heavy water as a morally neutral
piece of information (on a par with the fact that there are potatoes on
board), the situation, from his point of view would again be just like in
Hydro 3 No Knowledge. Knowledge about facts does not matter if one is
not aware of the moral relevance of those facts.
The second point to be made about the epistemic requirement is that
it does not state that the agent must actually know where knowledge
is taken to imply true belief that the necessity and proportionality
requirements are met. It suffices that the agent believes that the outcome
criteria are met. Nevertheless, the epistemic requirement is compatible
with saying that it is impermissible to act on just any belief, no matter how
uncertain. The expression the agent reasonably believes/expects, which
figures in the formulation of the epistemic requirement as well as in RSP
and RSP2, is intended to secure the requirement that the agent believes
with a sufficient degree of confidence that the substantive criteria of
permissibility are met. How does the agent determine whether her beliefs
are reasonable? By considering first with what degree of confidence she
holds her belief, and next what degree of confidence is required for the
specific type of action in question. As noted in the previous section, there is
no general answer to this latter question. Rather, the answer must be given
by specific rules or guidelines, stating, for each type of action, what degree
of certainty is required for an agent to act on the basis of her beliefs, when
further inquiry is required, and what to do when further inquiry is impossible. For example, for the doctor who has to choose a drug or else her
patient will die immediately, acting on a hunch is permissible. By contrast,
the rules for killing civilians require that the agent has no reasonable doubt
that the outcome criteria are met.

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At this point, two objections might be raised on Scanlons behalf. First,

given that both Scanlons should have known-account of permissibility
and the epistemic requirement make permissibility a function of an agents
reasonable beliefs, one might ask how different the proposed revision of
Scanlons principle is from Scanlons original account. My reply is that both
the understanding and the role of reasonable beliefs are importantly different between Scanlons account and the epistemic requirement. We can
see this by considering how we determine what it is reasonable for the
agent to believe. On at least one reading of Scanlons account, a reasonable
belief is the belief the agent would have had if she, prior to the moment of
action, had done what it was reasonable to do to check her beliefs.44 It follows that at the moment of action, an agent may be unable to know what it
would be reasonable for her to believe and hence what it is permissible
for her to do as in the case of the doctor who did not pay attention in
medical school. By contrast, the epistemic requirement, tied as it is to the
decision-ought, determines what it is reasonable for an agent to believe by
looking at the agents beliefs at the moment of action and at what it is possible for her to do now. Since the decision-ought must be action-guiding, it
cannot accommodate the claim that an agent may be unable to know what
it is reasonable for her to believe here and now.
The second objection concerns the fact that according to the epistemic
requirement, an agent who seeks to determine the permissibility of her
action must attend to the quality of her own beliefs that the outcome criteria of permissibility are met, in order to see if they are held with the degree
of confidence which is required for acting. Because of this substantive role
given not only to what the agent believes, but to the fact that she has these
beliefs, the epistemic requirement might seem open to the objection that
only the morally relevant facts, not our beliefs about them, can give us reasons for acting.45 Discussing a case where it makes a difference for moral
This reading takes what it is reasonable for an agent to do to check those beliefs and
whether the agent has done those things to be a gloss on what it is reasonable for the agent
to believe in the situation in the quote to footnote 37. On another reading, if the agent has
not done what it was reasonable to do to check her beliefs, there is nothing which it is reasonable for her to believe in the situation. On this reading, which is closer to my own
account, an agent may never use destructive force if she has not done what is required to
check her beliefs. However, Scanlons reference to permissibility in terms of what the agent
should have known (see the quote to footnote 36) makes the former reading the more
probable.
45
I owe my awareness of this objection to A.J. Julius paper Thoughts that count I. I am
grateful for useful discussions of this point with A.J. Julius and Andrew Williams.
44

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permissibility that an agent learns about the freak accident his action will
cause, Scanlon writes: it is still the fact that is known, not the fact of his
knowing it, that [the agent] is to take as counting against his action.46
Scanlons point is intuitively appealing, and I certainly agree that if the fact
known were not morally relevant, the knowledge of that fact would not be
relevant either. Yet I will argue that beliefs concerning something morally
relevant can themselves be morally relevant.
While Scanlons claim concerns the irrelevance for permissibility of an
agents knowledge that X, it is useful to consider his claim in a more general
form, concerning all beliefs about morally relevant facts, not just those
beliefs which constitute knowledge. The term knowledge implies that our
beliefs about the fact are correct and justified; and so when our belief that
X is a case of knowledge that X, the belief is transparent, and seems to play
no independent role. Since there is no uncertainty involved, we can go
directly from our belief that X to the claim that X. If we always had perfect
knowledge, we would never have to attend to our beliefs as such. But often
our beliefs are not transparent in this way. They are tinged with uncertainty
and held only with a limited degree of confidence. In those cases, the
confidence with which we hold our beliefs is a morally relevant fact
among others, and for that reason we need to attend to our beliefs as such.
Moral and prudential rules such as Never shoot until you are absolutely
certain that the person you are shooting at is an enemy soldier, or Always
double-check the identity of your patient before you operate make sense
precisely because we often have to act in situations of uncertainty, and we
need rules helping us cope with this uncertainty.47
Even when moral rules do not explicitly refer to the degree of confidence
we have in our beliefs as e.g. the DDE does not we may need to take our
beliefs into account when following these rules. Consider an agent who
prepares for a situation where she will have to make fatal choices, such as a
bomber pilot on the eve of a bombing raid, choosing between two different
targets. She believes with 90% certainty that in the case of target A, the
proportionality and necessity criteria are met; but she will have no way of
knowing this for sure before dropping her bombs. By contrast, she believes
with only 60% certainty that in the case of target B, these criteria are met;
but she will be able to verify whether they are met before dropping her
Scanlon, Moral Dimensions, p. 51.
For a closely related point, see Jackson and Smith, Absolutist Moral Theories and
Uncertainty,, p. 271.
46
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bombs, and can thus abort the mission if they are not met. If the DDE is
seen as giving us absolute constraints on permissible action, an agent who
is guided by the DDE will choose target B, rather than target A.48 And this
choice can only be explained if we allow beliefs and the degree of confidence with which we hold them to be morally relevant.
6.DDE and the Epistemic Requirement

In many cases, such as the original Hydro case, the DDE and RSP2 yield the
same conclusion (the bombing was permissible), although they do it for
different reasons. According to the DDE, what is relevant is that the resistance fighters had the right intention, and a necessary condition for having
the right intention is (reasonably) believing that the outcome criteria were
satisfied; for the RSP2 it is only relevant that the epistemic requirement was
satisfied, i.e. that the fighters (reasonably) believed that the outcome criteria were met. I will now argue that it is the epistemic requirement which
accounts for what is of normative importance in the DDE. Consider Hydro
3 Normative Knowledge, where the agent knows that the action can be
justified according to the proportionality and necessity requirements, but
he does not care about these requirements he would have bombed the
boat just to kill his enemy even if there were no heavy water on board. RSP2
states that the bombing is acceptable, since the agent knows that the outcome criteria are met; and the DDE states that the action is impermissible,
since the agents intention in acting was evil. Who is right?
This is a case of doing the right thing for the wrong reason, a kind of case
which Scanlon uses in defense of his view that intentions are irrelevant to
permissibility. In discussing a case where an agent saves someone from
dying, but for the wrong reason, Scanlon asks, rhetorically: What is an
agent to do in such a situation, not save the person?49 He considers the
answer that what the agent should do is save the person, but for the right
reason. However he, correctly I believe, replies that we cannot choose to
not see something as a reason for acting if we do see it as a reason for acting,
and vice versa; and the question of permissibility does not arise for things

48
For a general discussion of problems arising when applying absolute rules in situations
of uncertainty, see Jackson and Smith, Absolutist Moral Theories and Uncertainty.
49
Scanlon, Moral Dimensions, p. 57.

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we cannot choose.50 So if we claim that it is impermissible to do the right

thing for the wrong reason, we are committed to saying that in this case,
the agent should let the person die. This claim is clearly absurd.
However, the same reductio cannot be used so easily for the cynical
bomber. It is not absurd to say that the agent should refrain from bombing
the boat when the only reason he took into account was his desire to see his
enemy die. The reason is that there is a crucial asymmetry between actions
which only have good (and neutral) consequences, such as saving a dying
person, and actions which also have foreseeable evil consequences, such as
bombing a boat with civilians on board. The former do not require any particular justification they could have been done on a whim, and nevertheless be permissible, given that there is no reason they should be
impermissible. An action with evil consequences, however, is prima facie
impermissible, and requires a justification in order to be permissible. And
the defender of the DDE can say that the cynical agent has no such justification to offer, since he does not care about necessity and proportionality.
While the prima facie impermissibility of killing civilians shows that it
is not absurd to require the agent to either abstain from the killing, or only
kill for the right reason, the epistemic requirement provides an alternative.
The agent may bomb the boat if he knows that the proportionality and
necessity requirements are met precisely because he knows that the action
is justified by the facts (although not by his reason for acting). The agent is
in the same kind of situation as the person who saves a man for a bad reason he does not need to justify his actions in terms of a good reason, given
that proportionality and necessity already justify the action, and that he
knows this. But if the agent had not known that the action was justified by
the fact that these requirements were met, he would be performing an
action which from his point of view was impermissible, just as much as in
Hydro 3 no knowledge. This response thus builds on Scanlons insight that
Scanlon, Moral Dimensions, pp. 58-59. All we need to say in order to claim that it cannot be impermissible to save someone from drowning for the wrong reason, is that we cannot at the moment of action choose to not see X as a reason for acting if we do see it as a
reason for acting. This claim is compatible with saying that we can, and should, over time
work on ourselves in order to see things differently, and no longer consider X as a reason for
acting in similar cases. (Cf. Scanlon, Moral Dimensions, pp. 60-61.) One might ask what motivation we would have for engaging in this form of moral self-improvement if doing the right
thing for the wrong reason is not impermissible. Yet the fact that it is permissible does not
exclude that there might be something wrong about doing the right thing for the wrong
reason, and that it would be even better if we acted for the right reason. (I am grateful to a
referee for JMP for pointing out the need to consider this issue.)
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it is facts about the circumstances and consequences of the bombing which

justify the action, not whether the agent took these facts to be his reasons;
but it adds to Scanlons account an emphasis on the requirement that the
agent must know that the facts justify the action. (The example also shows
again why we need the strong, not just the weak, epistemic requirement.)
While the epistemic requirement is different from the requirement that
the agent acts with the right intention, the latter requirement will typically
have to be met in order for the epistemic requirement to be met.51 Indeed,
we should not underestimate how much investigation and imaginative
thinking it can take to examine whether the action in question really is the
less costly (in terms of civilian lives) way to reach a military goal, and
whether this military goal is so important that the death of civilians can be
justified.52 A cursory glance at the facts on the ground does not suffice: one
must consider closely a broad range of alternative actions in order to see if
the necessity requirement is met, and one must engage in substantial moral
thinking to see if the proportionality requirement is met. It is therefore misleading to focus our discussion on two cases frozen in time, where we
already know what all the effects of our actions are, and where there are no
other options presented to us. It might be true that an agent who, in such
an artificial situation, knows that the necessity and proportionality requirements are met, may bomb even for a bad reason. But it is hard to see why
an agent would engage in the epistemic task of assessing whether these
requirements were met if she were not motivated by a desire to meet these
requirements.
7.Conclusion

While Scanlon might be right in claiming that the DDE does not provide
the best account of permissibility in war (and similar cases), the DDE does
contain an important element which Scanlons account does not contain,

51
Other requirements could do the same job, such as the requirement that the agents
actions are normatively constrained by necessity and proportionality, even if the good effect
was not his main motivating reason. (For this distinction, cf. Barbara Herman, On the Value
of Acting from the Motive of Duty, The Philosophical Review 90 (1981), pp. 359-382, at 372374; Marcia W. Baron, Kantian Ethics Almost Without Apology (Ithaca and London: Cornell
University Press, 1995), at pp. 129-130.)
52
This point is emphasized in Suzanne Uniacke, The Doctrine of Double Effect, Bulletin
of the Australian Society of Legal Philosophy, issue 3 (1980), pp. 2-37.

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viz. the requirement that the agent believes that her action can be justified
in terms of the outcome criteria of necessity and proportionality. If we
revise Scanlons account in order to include this epistemic requirement,
the gap between the DDE and Scanlons account becomes smaller. A gap
certainly remains, but even this gap can be partially narrowed by showing
how in practice the epistemic requirement will best be met by someone
who follows the DDE as her action-guiding rule.