A puzzle about medicine and war

The following seem to be true:

1. It is never permissible for the state to force on a non-consenting innocent patient medical procedures very likely to cause death.
2. It is sometimes permissible for the state to force a non-consenting drafted soldier to go to near certain death in a just war.

In regard to (1), the state can legitimately force patients to undergo medical operations involving minimal risk and invasiveness, at least as long as the patients have no conscientious objection to them (a restriction that has an obvious military analogue): vaccinations are the standard example. This is very puzzling: Why the distinction?

Here is a suggestive hint. We can imagine circumstances where a war against a vicious enemy could only be won by an attack by non-consenting draftees even though it was morally certain that most of the draftees would be captured and horrendous medical experiments would be done on them by the enemy. Such an attack could well be permissible, even though much less extreme medical experiments could not be intentionally imposed on non-consenting patients even for an equal good (say, to defeat some awful disease). This suggests a difference between directly imposing harms and acting in a way that is morally certain to lead to the self-same harms. This is exactly the sort of difference that the Principle of Double Effect is sensitive to. Someone who thinks that foreseeing/intending differences do not matter is probably not going to be able to make the distinction between enforced medical procedures and the draft.

At the same time, the Principle of Double Effect does not seem sufficient to remove the puzzle concerning (1) and (2), since it doesn't really get at what it is that is so special about medical procedures likely to cause death as opposed to military operations likely to cause death. Probably another part of the puzzle has to do with the integrity of the body. But it's tricky: the importance of bodily integrity is not enough to make all enforced medicine wrong. It seems that the state can legitimately require procedures that are minimally invasive and minimally risky, but cannot legitimately require procedures that are minimally invasive but highly risky (think of injecting someone with a vaccine versus injecting someone with a fully functional virus).

Maybe it's like this: the fact that an intentional procedure directly transgresses bodily integrity typically calls for consent. But in at least some cases where someone's lack of consent is strongly irrational, that lack of consent can be overridden for a sufficiently good cause. But where the lack of consent is at least somewhat rational, the lack of consent cannot be overridden. When the risks are minimal, the lack of consent is strongly irrational, barring conscientious objection. But when the risks are high, lack of consent is at least somewhat rational. Medical procedures always transgress bodily integrity, so we get (1). On the other hand, commanding an attack likely to lead to death (or torture or being the victim of vicious medical experiments) does not transgress bodily integrity, and so a completely different set of standards for consent and authorization is in place. This is a mere sketch. I am not sure the details can be worked out.

Notice, also, that the account in the preceding paragraph does not apply to sexual cases. Even if someone's lack of consent to sex is strongly irrational (imagine a contrived case where a married person for completely irrational or even malicious reasons refuses to have sex with a spouse, despite the fact that great benefits would come to society from their having sex--perhaps a killer robot has been programmed by a mad scientist to stop its rampage only if they have sex), it is wrong for the state to force the person to have sex. Once again, sex is morally exceptional.

Freedom and coercion

Martin was being mugged. His wallet was empty. He was told to get a hundred dollars from the ATM and give it to the mugger, or he'd die. He did so. I think most people would say that Martin didn't hand over the $100 freely. But here is the puzzle: We can also imagine that Martin in exactly the same circumstances refusing to cooperate despite knowing that this will cost him his life (maybe he could have acted on a motive of ensuring that crime doesn't pay).

An initial reaction to the imaginability of Martin not giving the hundred is that this shows nothing very interesting. It simply shows that there is a sense of freedom that goes beyond what one might call "alternate possibilities" kinds of freedom (and I mean that very loosely to be neutral between all libertarian options, including origination based ones; this may even include compatibilist kinds of freedom, as long as the compatibilist is willing to admit of a sense in which Martin acted freely in handing over the money). In the "alternate possibilities" sense, Martin acted freely in handing over the money. But in some meatier sense, Martin acted unfreely. Very familiar: one recalls Aristotle's discussion of the captain throwing cargo overboard.

But I still think there is something puzzling about the case. Focus in on that meatier sense of freedom, call it "freedom-plus". The idea is that Martin lacks freedom-plus when he hands over the hundred. But But now imagine the alternate scenario where Martin dies for refusing to cooperate. Did he act unfreely, in the sense of lacking freedom-plus, in refusing to cooperate? Surely not. His refusing to cooperate, while occurring in circumstances of coercion, was eminently not the result of coercion. The act of resistance was misguided, but not at all unfree.

So, when Martin was threatened, it was still up to him whether to act with freedom-plus. This means that freedom-plus does not supervene on the choice situation (the "choice situation" is easiest to describe in the libertarian case, where the choice situation is basically all the facts about the options available, the chooser's mental state, and so on, but not including what choice was made). Freedom-plus, rather, supervenes on the combination of choice situation with the actual choice (broadly understood).

This also means that Martin can actually deliberate over whether he should act freely or unfreely. That sounds paradoxical, but in the sense of "freedom-plus" it is entirely unparadoxical. In fact, we can imagine that the counterfactual Martin, who presumably sins against prudence by resisting[note 1]

So, oddly, cases of coercion, when they do not take "alternate possibilities" freedom away (they might in cases where the coerced agent panics and loses the ability to reason) are cases where it's up to the coerced agent whether she has freedom-plus.

Moreover, I wonder if it's not possible for coerced agents to have freedom-plus even if they cooperate. Suppose Martin thinks about refusing to cooperate. He likes that idea, and is quite willing to die to ensure that one does not profit from crime. He does not have any family to worry about. But while being very much attracted to that idea, he decides that to refuse to cooperate would be to sin against charity for the mugger. For he foresees that if he does not cooperate, he will very likely be shot. And if he is shot, then his life will be on the mugger's conscience. And it is a very bad thing to have someone's life on one's conscience. In acting from a set of motives like that, Martin is surely completely free in the freedom-plus sense. After all, in no sense is he acting out of coercion.

But what about a mid-way case? Martin thinks about refusing to cooperate. But then he reflects on the fact that the virtue of prudence calls for cooperation. Desiring to act virtuously, he cooperates. In this case, it seems he is acting out of coercion. But maybe not. Maybe a distinction must be made be in simply responding to threat by trying to save one's hide and thus cooperating (not that there is anything morally wrong with that in this kind of a case)—in which case one lacks freedom-plus—and responding to the threat by cooperating because that is the virtuous thing to do, all things considered, with the threat being one of the considered things. In the latter case, the decision-making process is mediated by virtue, and the action seems intuitively free in every sense that matters.

But if so, then this does not mean that when we initially judged Martin to be unfree in handing over the hundred, we were unfairly judgmental of Martin? For we had no right to assume that he wasn't moved by virtue.

On the other hand, perhaps the way out of all of these perplexities is simply to abandon any concept of "freedom-plus", and to say that our desire to call cases of coercion as cases of lack of freedom simply comes from a failure to acknowledge the freedom that we have (for whatever reason—maybe in order to hide the correlate responsibility from ourselves)?

A puzzle about freedom and the law

I am no legal or political theorist, but here is a fun little puzzle, not unlikely old hat to everybody who knows anything about these things.

Suppose you want to gamble (as far as I know a morally permissible activity within due limits—if you disagree, substitute something else, like scratching one's back in public), and I (say, as a legislator) enact a law prohibiting you from gambling, without any good reason behind it except a gut feeling that gambling is a bit icky. It seems plausible that I have acted wrongly. I should not prohibit you from an activity because I have a gut feeling that it is a bit icky. But why have I acted wrongly?

An obvious thing to say is that I have take away some of your autonomy or freedom. But what autonomy or freedom have I taken away? (I will use the terms somewhat interchangeably, but the issues may be subtly different in the two cases.) Intuitively, I have taken away your freedom to choose whether to gamble or not, or else the freedom to choose to gamble. But not quite. For you can still gamble even if gambling is illegal. So it seems that what I've taken away is your freedom to choose whether to legally gamble or not, or else the freedom to gamble legally.

Indeed, you no longer have these freedoms, since it is now impossible for you to gamble legally (assuming you have no ability to legalize gambling). So you've lost a freedom. But you've also gained a freedom. For now you are free to choose whether to gamble illegally or not, and free to choose to gamble illegally. You've lost your autonomy vis-à-vis the decision whether to gamble legally, but you've gained autonomy vis-à-vis the decision whether to gamble illegally. You lose one and you gain one. So it seems that you are not the loser in respect of autonomy, and hence you can't complain.

But, perhaps, you will say that now if you gamble, you are liable to be punished by law, or at least by your conscience (if you think you should obey the law). Yes—now you have a new freedom, to choose to gamble and be punished or not to do either. You've lost the freedom to gamble without punishment, and have gained the freedom to gamble and be punished.

Perhaps, though, the problem is that without a sufficiently good reason (and "feels a bit icky" is not a good reason), I have no right to deprive you of a freedom even if you get a new freedom in exchange. When we talk of autonomy, we should not be consequentialists who simply try to maximize the sum total of human autonomy. Just as it is wrong to kill one innocent person while saving another, so, too, it is wrong for me without sufficient reason to deprive you of one freedom even while giving you another. But while there is much to this lesson, I am not sure this is the right lesson to draw from the story. For consider the opposite case. Suppose that gambling is illegal. I now completely legalize it. By doing so, I take away the autonomy of your choice whether to engage in illegal gambling. So I've taken away one of your freedoms, and given you another in exchange. It looks now like legalizing and illegalizing have the same kind of effect on total freedom—each takes one freedom away and gives another. If I say that it is wrong with insufficient reason to take away a freedom even if I give you another, then in a situation where gambling is illegal and nobody has any good considerations for or against gambling, I should keep it illegal. But I am not sure that's right. Should one keep a restrictive law that has no rational justification? That doesn't seem right.

So it doesn't seem that considerations of autonomy are the right way to think about what goes wrong when one makes an activity illegal without sufficient reason. Is there a better way? I think so. To make something illegal is for the state to exercise a certain authority. To make something legal is for the state to cease to exercise a certain authority. As long as the state holds people to a rule, the state is exercising authority in respect of that rule. To release people from that rule is not to exercise an authority, but to cease to exercise that authority. Hence there is an asymmetry in making something legal versus making it illegal: to make something legal is for the state to cease to act in a certain way, while to make something illegal is for the state to begin to act in a certain way. If so, then we would expect an asymmetry in justification—actions in general require stronger justification than non-actions—and hence it is easier to justify the state's making something previously illegal be legal than the other way around. Of course this asymmetry is an anti-consequentialist one—it is an asymmetry similar to that between contraception and abstinence, or between killing and not preventing death.