Acts and omissions

A civil libertarian once traveled to a foreign country. While he was there he uncovered a scandal. Some of the evidence used to convict an alleged murderer was fabricated. He pointed this out to the king, who was mortified. Nevertheless, still unsure of the decision, the king, rather than ordering the suspect released, left the final choice to the civil libertarian. He gave him the key to unlock the cell of the murderer. As he was walking into the dungeon to release the convicted the chief of police stopped him.

Policeman (PM): “Would you agree that there is a substantial chance that the suspect is guilty?”

Civil libertarian (CL): “Yes”

(PM): “What probability would you put on that.”

(CL): “Oh, perhaps 65%?”

(PM): “And you would agree that given the murder for which he was convicted was one of many serial killings, there is a good chance that, if he did it, he’ll kill again?”

(CL): “Oh certainly, over 80%.”

(PM): “So your assigned probability of him killing again is 0.8*.65=0.53%, and if he does kill again, it will almost certainly be several times”

(CL): “Correct”.

(PM): “So don’t let him out”.

(CL): “But it’s wrong to hold a man captive just on the suspicion he might kill again. It’s wrong to violate a man’s rights. We can’t just look at this in a consequentialist or utilitarian manner. Rights matter, and they forbid false imprisonment.”

(PM): “But you’re not the one holding him captive. You’re weighing up whether to take positive action to release him. As for violating a man’s rights, we’re the ones violating his rights, not you. However, if you let him out, you’ll be violating the rights of any of his future victims through your reckless endangerment. Adopting a non-consequentialist perspective means not violating rights yourself. However, non-consequentialism does not obligate you to prevent some foreign government from violating rights. Even if you are concerned with preventing others from violating rights, the expected number of serious rights violations, if you let him out now, is higher than if you merely let him remain imprisoned.”

The civil libertarian at this point is seized with a powerful confusion. Unsure what to do, he instinctively thrusts the key into the policeman’s hands.

(PM): “Ahh” says the policeman “Now we are in a difficult situation, since I myself, unusually for my profession, am a stickler for obeying rights, I shall have to release our probable serial killer since by giving me the key you have given me the option to do so.”

(CL): “Wait” says the erstwhile civil libertarian. “While the state may have locked him up, the state, let alone its specific agents, are not thereby required to take positive action to release him. Not unlocking the cell is merely failing to act whereas unlocking the cell would be taking positive action. While the initial imprisonment may have been unlawful and was a rights violation, that violation has already happened and will still have happened even if you release him. Letting him out now would be a rights violation of his probable future victims. Ergo, as a good deontologist, you should not unlock his cell. You’re not really keeping him prisoner at this point, he just happens to be locked in a cell and you’re not taking positive action to let him out and probably kill people.”

(PM): “True! True!” Said the policeman “But just as I was walking to meet you I saw, out of the corner of my eye, that he had a file which he was using to saw through the bars! At this rate, he will get out soon- probably in a few weeks, and we cannot take positive action to stop him on your theory.”

At this point a a non-civil libertarian- one of the guys who says taxation is theft- bursts in the room. We will call him propertarian.

(PROP)“I have a solution to your problem. Taxation is theft. If you feed the man, you are stealing from the public to do so and I do not want you to steal. Therefore, simply do not feed the prisoner- I’m sorry, not prisoner, “man who happens to be contained in a cage on government property”. He will not be able to complete filing his way out through the bars before he starves. Even if you disagree with me that taxation is theft, surely you agree there’s no positive obligation to help a man who will probably kill many people once he escapes, and feeding him would be helping him.”

(PM): “Surely we are obliged to feed our prisoners though”

(PROP): “Have you not been listening! He’s not your prisoner, he’s just a man who happens to be contained in a cage, a fellow you refuse to take positive action to let out from his cell”.

At this point the civil libertarian is starting to have concerns. Letting someone starve?! Things are going too far. His intuitions begin to shift.

(CL): “Look, this doesn’t seem right to me. You did, ultimately, put him in a cage. Thus he is your prisoner, for it seems to me that the state of being a prisoner terminates upon you taking action to release him, not upon you ceasing to make efforts to keep him captive. Further, his having the status of prisoner incurs special obligations upon you, to act to set him free if you no longer have sufficient grounds to keep him prisoner, even if doing so will harm others.

(PM): The policeman strokes his chin for a moment, lost in thought, then has an aha moment as he recalls the strange circumstances of the case. “Normally, I would agree with you, but in this case, circumstances are not so. The suspect just so happened to be on a public tour of the old dungeons when he stepped inside a cell and shut the door behind him not knowing it was locked. At that very moment, a police officer burst in and told everybody what it seemed he had done. The prison wardens are on strike at right now, so we just kept him down here and fed him through the bars. He was tried by Telelink. Thus we never took positive action to arrest him, and hence your special obligation to release him doesn’t apply.”

(CL): “It still doesn’t feel right to let him starve though, does it?”

(PM): “No” concedes the policeman. The propertarian just glares with conviction.

(CL): “And it doesn’t feel great to leave the door locked does it”

“No” concedes the policeman again. The propertarian mutters something about having a NAP. “But” says the policeman “It doesn’t feel great to let a murderer go either.”

At this point, a surgeon bursts in.

(SUR): “You have to let him go! You have to! Assuming he is the serial killer, he has saved countless lives. For he always strikes by poisoning his victims in a way that doesn’t damage their organs. When they finally die, their organs can be donated. Dozens have been saved already, far more than he has killed”

(CL): “Oh yes, we’ve all read the thought experiment about murdering someone to save more lives through the use of their organs. Generally it’s thought this is ghastly. That doesn’t seem like a strong reason to let him go.”

(SUR): “But it won’t be you murdering people and making available their organs, it will be him. You will have no intention to kill people and take their organs, it will just be a positive side effect of letting him go. It will save lives on net!”

(PM): “Well, maybe it is always mandatory for the state to always try to prevent murder, even at the cost of lives on net.”

(SUR) “That seems unlikely though. Suppose the state has one bus available and must go down one of two separate roads to address one of two separate emergencies. It can go and prevent a murder, or it can get ten people to a hospital who will otherwise die. Perhaps there might be reasons to prefer stopping the murder- if it was felt that in that situation the deterrence effect was enormously important for example- but to suggest that in the general case, stopping murder must take priority over stopping death seems implausible, especially when the numbers greatly favor stopping death. It seems to me then that in our particular case it is critical the state not stop this murderer! If you are worried about the message letting him go sends, just attribute it to a policy of releasing all criminals for whom the evidence is insufficient for a conviction.”

(PROP): “Brrr, it’s cold in here” complains the propertarian and it is, indeed, below freezing.”

The civil libertarian spots a wall switch to turn on a heater

“DON’T” cry the police officer and the propertarian at once.

The civil libertarian turns to each in turn

(PROP): “If you turn that on that heater, you will be violating the NAP, because it is powered using stolen money!!!”

The civil libertarian dismisses this and turns to the police officer.

(PM): “It is an ancient custom of this nation to make prisons out of ice. If you turn the heater on, the prisoner will simply melt his way out.”

(CL) The civil libertarian thinks for a moment. “Wait, this is actually the ideal solution because of the doctrine of double effect. We don’t want to let him out deliberately because then we would be foreseeably contributing to killing, but that’s not what I’ll be doing if I turn the heater on- that will be a mere side effect- I want to turn the heater on because it’s cold. Turning the heater on will have a net side effect of saving lives in expectation, because either the probable will strike again, and we will get more organs, or he will not, in which case letting him out is harmless. Hence both the side effect and the intended effect of turning on the heater is positive, and hence it is permissible under the doctrine of double effect.”

And so they stand there, awkwardly in the warming room

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