But what exactly is it to treat a person as a means only, or to use a person? And why exactly is it wrong to do this? These questions do not have obvious answers.6 [1402]
Suppose an agent is confronted with a choice between doing nothing, in which case five die, or engaging in a certain course of action, in which case the five live, but one dies. Then perhaps we can say: If the agent chooses to engage in the course of action, then he uses the one to save the five only if, had the one gone out of existence just before the agent started, the agent would have been unable to save the five. That is true of the surgeon in Transplant. He needs the young man if he is to save his five; if the young [34]man goes wholly out of existence just before the surgeon starts to operate, then the surgeon cannot save his five. By contrast, the agent in Bystander at the Switch does not need the one track workman on the right-hand track if he is to save his five; if the one track workman goes wholly out of existence before the bystander starts to turn the trolley, then the bystander can all the same save his five. So here anyway is a striking difference between the cases.
It does seem to me right to think that solving this problem requires attending to the means by which the agent would be saving his five if he proceeded. But I am inclined to think that this is an overly simple way of taking account of the agent’s means.
One reason for thinking so7 comes out as follows. You have been thinking of the tracks in Bystander at the Switch as not merely diverging, but continuing to diverge, as in the following picture: pick up figure 1
[36]Consider now what I shall call “the loop variant” on this case, in which the tracks do not continue to diverge – they circle back, as in the following picture:
[1403] Let us now imagine that the five on the straight track are thin, but thick enough so that although all five will be killed if the trolley goes straight, the bodies of the five will stop it, and it will therefore not reach the one. On the other hand, the one on the right-hand track is fat, so fat that his body will by itself stop the trolley, and the trolley will therefore not reach the five. May the agent turn the trolley? Some people feel more discomfort at the idea of turning the trolley in the loop variant than in the original Bystander at the Switch. But we cannot really suppose that the presence or absence of that extra bit of track makes a major moral difference as to what an agent may do in these cases, and it really does seem right to think (despite the discomfort) that the agent may proceed.
On the other hand, we should notice that the agent here needs the one (fat) track workman on the right-hand track [38]if he is to save his five. If the one goes wholly out of existence just before the agent starts to turn the trolley, then the agent cannot save his five8 – just as the surgeon in Transplant cannot save his five if the young man goes wholly out of existence just before the surgeon starts to operate.
Indeed, I should think that there is no plausible account of what is involved in, or what is necessary for, the application of the notions “treating a person as a means only,” or “using one to save five,” under which the surgeon would be doing this whereas the agent in this variant of Bystander at the Switch would not be. If that is right, then appeals to these notions cannot do the work being required of them here.
Suppose the bystander at the switch proceeds: He throws the switch, thereby turning the trolley onto the right-hand track, thereby causing the one to be hit by the trolley, thereby killing him – but saving the five on the straight track. There are two facts about what he does which seem to me to explain the moral difference between what he does and what the agent in Transplant would be doing if he proceeded. In the first place, the bystander saves his five by making something that threatens them instead threaten one. Second, the bystander does not do that by means which themselves constitute an infringement of any right of the one’s.
As is plain, then, my hypothesis as to the source of the moral difference between the cases makes appeal to the concept of a right. My own feeling [1404] is that solving this problem requires making appeal to that concept – or to some other concept that does the same kind of work.9 Indeed, I think it is one of the many reasons why this problem is of such interest to moral theory that it does force us to appeal to that concept; and by the same token, that we learn something from it about that concept.
[42]Let us begin with an idea, held by many friends of rights, which Ronald Dworkin expressed crisply in a metaphor from bridge: Rights “trump” utilities.10 That is, if one would infringe a right in or by acting, then it is not sufficient justification for acting that one would thereby maximize utility. It seems to me that something like this must be correct.
Consideration of this idea suggests the possibility of a very simple solution to the problem. That is, it might be said (i) The reason why the surgeon may not proceed in Transplant is that if he proceeds, he maximizes utility, for he brings about a net saving of four lives, but in so doing he would infringe a right of the young man’s.
Which right? Well, we might say: The right the young man has against the surgeon that the surgeon not kill him – thus a right in the cluster of rights that the young man has in having a right to life.
Solving this problem requires being able to explain also why the bystander may proceed in Bystander at the Switch. So it might be said (ii) The reason why the bystander may proceed is that if he proceeds, he maximizes utility, for he brings about a net saving of four lives, and in so doing he does not infringe any right of the one track workman’s.
[44]But I see no way – certainly there is no easy way – of establishing that these ideas are true.
Is it clear that the bystander would infringe no right of the one track workman’s if he turned the trolley? Suppose there weren’t anybody on the straight track, and the bystander turned the trolley onto the right-hand track, thereby killing the one, but not saving anybody, since nobody was at risk, and thus nobody needed saving. Wouldn’t that infringe a right of the one workman’s, a right in the cluster of rights that he has in having a right to life?
So should we suppose that the fact that there are five track workmen on the straight track who are in need of saving makes the one lack that right – which he would have had if that had not been a fact?
But then why doesn’t the fact that the surgeon has five patients who are in need of saving make the young man also lack that right?
I think some people would say there is good (excellent, conclusive) reason for thinking that the one track workman lacks the right (given there [1405] are five on the straight track) lying in the fact that (given there are five on the straight track) it is morally permissible to turn the trolley onto him. But if your reason for thinking the one lacks the right is that it is permissible to turn the trolley onto him, then you can hardly go on to explain its being permissible to turn the trolley onto him by appeal to the fact that he [46]lacks the right. It pays to stress this point: If you want to say, as (ii) does, that the bystander may proceed because he maximizes utility and infringes no right, then you need an independent account of what makes it be the case that he infringes no right – independent, that is, of its being the case that he may proceed.
There is some room for maneuver here. Any plausible theory of