Monday, October 6, 2014

166. Guilt of unintended harm

Is there a moral justification of harm that is foreseen but not intended? This is a puzzle in ethics (the doctrine of double effect).

What if I drive when drunk and cause an accident? What if I use excessive violence to protect myself? What if I protect someone while risking to harm others? What about collateral damage? What if bombing IS can be expected to also kill innocent bystanders? 

There is an ethic of consequences and an ethic of motives. On the one hand, if I am the cause of harm, I should take responsibility. On the other hand, surely, intention, the question whether I did harm intentionally, or from incompetence, or by accident, is ethically relevant. However, a claim of accident may be a mask of intention.

Consider the issue of free will, discussed in item 5 of this blog. If there is no free will, nothing is done intentionally, and if lack of intention is an excuse for doing harm, then no harm is morally wrong.

When does collateral damage become a mask of intention to punish a population, or to wreak vengeance, or to set an example?

In this blog I have argued for a debatable ethics that takes both consequences and motives into account, as well as competencies, multiple obligations, and circumstances. How does that work out?

Enzio di Nucci gives an answer.[i] Look at how courts of justice operate. One should distinguish between guilt and punishment. To establish guilt one should look at one’s responsibility as a cause of harm. For punishment, on the other hand, mitigating circumstances are taken into account.

Was the harm an accident, a fluke of hazard, or lack of competence, lack of attention, an act of fear or panic, or a matter of conflicting obligations?

I push someone and he/she falls down the stairs. I claim that it was a playful push, but was it? Or was it a devious murder?

For punishment, past conduct and expectations of future conduct also matter. Did the culprit admit guilt, express regret, and was that credible in view of past conduct?

In my work on trust I proposed that just ‘saying sorry’ is not enough. To recover trust one must explain how things went wrong, what one intends to do to mitigate the harm and to prevent similar harm in future.

Even in establishing guilt, in some cases mitigating circumstances are taken into account, as in manslaughter (accidental, but still culpable) versus murder (intentional). That may happen even in case of intentional harm. For example: in panic, you shot a harmless intruder.

A celebrated recent case was that of Pistorius (the ‘blade runner’), who shot his girlfriend, unseen, through a door, and claimed that he thought she was an intruder. He was cleared of the charge of murder but convicted of ‘culpable homicide’ (manslaughter). Was that a just verdict? It depends on the further evidence.

Collateral damage makes guilty: one has been the cause of it. But the defense may be that it was justified by a larger purpose, and proportionate to it. That would matter before the International Court of Justice. Is there evidence for hidden intent, with collateral damage as an excuse?

One may also be found guilty of neglecting to act, as when one stood by as someone was drowning. Was this culpable? Was there a good reason, such as inability to swim? Or mitigating circumstances, such as freezing cold water? Or conflicting obligations, such as having to leave one’s child unattended on the slippery embankment?

The practice of courts appears to illustrate well how debatable ethics works out.

[i]  Enzio di Nucci, 2014, Ethics without intention, London: Bloomsbury Press.