the restricting claims principle revisited: grounding the means principle on the agent– patient...

ALEC WALEN

THE RESTRICTING CLAIMS PRINCIPLE REVISITED:GROUNDING THE MEANS PRINCIPLE ON THE AGENT–

PATIENT DIVIDE

(Accepted 8 December 2015)

ABSTRACT. In an earlier article, I introduced the ‘‘restricting claims principle’’(RCP) to explain what is right about the means principle: the idea that it is harder tojustify causing or allowing someone to suffer harm if using him as a means than ifcausing or allowing harm as a side effect. The RCP appeals to the idea that claimsnot to be harmed as a side effect push to restrict an agent from doing what shewould otherwise be free to do for herself or others, given an appropriate account ofher baseline freedom. Claims not to be harmed as a means are not in that way‘‘restricting.’’ The original RCP relied on a counterfactual account of the agent’sbaseline freedom: What could the agent permissibly do if the patient were notpresent? I argue here that that counterfactual baseline fails. The revised RCP reliesinstead on a ‘‘toolkit baseline’’: Do the patient claims concern the property theagent needs to use? This toolkit baseline reflects the different ways that agentsrelate to others: as fellow agents with whom they divide up the resources of theworld, and as patients who might be affected by their actions. The toolkit baseline,resting on this agent-patient divide, provides a superior account of an agent’sbaseline freedom, and a better account of the moral ground for the means principle

In ‘Transcending the Means Principle’,1 I articulated an account ofwhy the means principle (MP) is fundamentally on the right track.The MP holds that it is much harder to justify causing or allowingsomeone to suffer a particular kind of harm as a means to some endthan as a side effect of pursuing some morally equivalent end. Icalled my explanatory principle the Restricting Claims Principle

1 Law and Philosophy 33 (2014): 427–464 (hereinafter: TMP). I first published the basic idea in ‘Doing,Allowing, and Disabling: Some Principles Governing Deontological Restrictions’, Philosophical Studies 80(1995): 183–215.

Law and Philosophy (2016) 35: 211–247 � Springer Science+Business Media Dordrecht 2016DOI 10.1007/s10982-015-9252-y

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(RCP). Gerhard Øverland independently developed and published aversion of the same idea.2

Unfortunately, both of our accounts made use of a counterfactualbaseline: What would an agent be permitted and able to do for onegroup of people if another were not present? While this baseline isintuitively accessible and appealing, I now realize that it cannot serveas the basis for the RCP. Cases can be designed for which it seems togive the wrong answers.3 And it is less appealing, as a matter of basicmoral theory, than an alternative baseline.

To set matters right, I offer this revised version of the RCP. I startby providing an introduction to the RCP; then I explain why thecounterfactual baseline should be rejected; finally I offer my revisedversion of the RCP, one that uses what I call a ‘toolkit’ baseline,which I defend in terms of ‘the agent–patient divide’.

I. THE APPEAL OF THE RCP

A. Introduction to the Theory

1. The Idea of a Restricting ClaimThe key idea underlying the RCP is that we should recognize apatient-focused analog to the agent-focused notion of a negativeexternality. Certain patient-claims ‘push’ to make others worse off,against some relevant baseline, while others do not. ‘Just as onecannot expect to have the right, as an agent, to do whatever onewants, no matter how it harms others, so one cannot expect to haverights as a patient no matter how much one’s having such rightsmakes others worse off than they would be’ against the relevantbaseline.4

To be clear about my terms: agents make choices and eitherperform or refrain from performing actions; patients are acted upon,or left undisturbed, by agents. We are all both agents and patients,but it is important, for the sake of moral clarity, to distinguish whichrole or roles we play in particular cases. Also, I use the term ‘claim’

2 ‘Moral Obstacles: An Alternative to the Doctrine of Double Effect’, Ethics 124 (2014): 481–506(hereinafter: MO).

3 I am grateful to Christian Barry and Matthew Liao for helping me to recognize these cases. Ishould add that the cases I use in Section II.A are also very much like ones that Victor Tadrosintroduced in his ‘Responses’, Law and Philosophy 32 (2013): 241–325, 290–291. I regret that I did not readhis piece with sufficient care until he read a version of this paper and pointed me to his earlier text.

4 TMP, pp. 437–438. I changed the end of the original sentence to leave open what that baseline is.

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as a synonym for a pro tanto right, and I use the term ‘right’ toindicate a claim that must be respected (if a patient-right) or an actthat may be performed (if an agent-right).5 A claim has a certain‘weight’ against competing claims in the balance of claims thatsubstantially determines whether an agent has a right to perform aparticular act, a duty to perform it, or is instead barred from per-forming it.6 We can speak of a claim’s normative power, then, as theway that it pushes on the scales in the balance; it pushes to berespected as a right.

Liberal moral theory straightforwardly explains why an agent’scausing negative externalities is morally salient. The backgroundassumption is that an agent has her own life to lead and has a duty tomake large sacrifices for others only in limited circumstances: if shedoes things to make others worse off or for some other reason hasspecial, duty-imposing relationships with them.7 One can make oth-ers worse off intentionally, or by pursuing other aims that imposenegative externalities. To be clear, I use the concept of a negativeexternality in a moral, rather than an economic sense, to capture akind of unintended harm that gives rise to a duty in an agent, either aduty not to cause the harm without the consent of the victim, or, ifthe harm has been caused (whether in violation of a duty or not), thena duty to make amends.8 If an agent breaches one of these duties, shemay be liable, as a patient, in ways she would not otherwise be, tobeing harmed, even killed, if necessary to keep others in or returnthem to the condition they would be in if she met her duty.9

5 In this way of using the terms, one can never permissibly infringe a right; if it is permissible to‘contravene’ a claim – a term I coin here to mean: to act contrary to or to go against a claim – then theclaim does not register as a right. In saying that rights must be respected, I put aside worries aboutthreshold deontology. And in saying that a claim can be contravened, I imply nothing about whethersome residual claims might arise from doing so.

6 I describe how this balance should be understood in Alec Walen and David Wasserman, ‘Agents,Impartiality, and the Priority of Claims over Duties; Diagnosing Why Thomson Still Gets the TrolleyProblem Wrong by Appeal to the ‘Mechanics of Claims’,’ Journal of Moral Philosophy 9 (2012): 545–571. Itis important to be clear that the balance of claims does not fully account for rights. An agent may have aduty to act or to refrain from acting – and thus no right to act in another way – for reasons that refer tomore than just the balance of competing claims. Consider, for example, duties not to free ride, or toprovide for future generations – neither seems to be owed to particular individuals, and thus neitherseems best understood as resulting from the balance of the claims of particular individuals.

7 The notion of a large sacrifice has to be understood both in terms of the size of an individualsacrifice, and in terms of the impact of having to make repeated small sacrifices that add up to a largesacrifice.

8 This is somewhat different from my formulation in TMP, p. 438.9 I spell this out in more detail in TMP, § I. D.

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A patient-focused analog to the idea of imposing a negativeexternality can be framed in the following three steps. First, whilepatients don’t act, they can still have an effect on others via theirclaims on agents. A patient’s claim can affect others by affecting whatan agent is permitted, not permitted, or duty-bound to do.

Second, we can distinguish two ways a claim might push, when itcomes to its impact on others. Relative to an appropriate baseline, itcan push so that if it were respected as a right it would make othersworse off, or it can push in a way that would leave others as well offas they would be at the baseline. Claims that push to make othersworse off are the patient-analog of actions that impose a negativeexternality. Unlike an agent, a patient cannot face any prohibitions;he does not act. But if his claim pushes to make others worse off, itshould be viewed as weaker than it otherwise would be.10

Third, we can identify the relevant baseline for distinguishinghow claims push with the baseline freedom of the agent on whomthey push. With this we can now define the RCP: If a patient’s claimpushes to restrict an agent’s baseline freedom, and thereby pushes tomake the agent or others worse off, then it is restricting and shouldbe considered weaker than it otherwise would be. If it does not pushto restrict her baseline freedom in that way, then it is non-restrictingand should be considered stronger than an otherwise analogousrestricting claim.

2. Illustrating with the Trolley ProblemDespite being well aware that many philosophers have had enoughof the Trolley Problem, I use it to illustrate the RCP because it is sofamiliar and so easily modified to capture a range of issues. TheTrolley Problem is the problem of explaining the difference betweenthese two cases:

Sidetrack: An agent at a switch can throw it and thereby turn a trolley that wouldotherwise kill five innocent people onto a sidetrack, where it will kill one innocentperson, the ‘sidetrack man’.11

Massive Man: An agent at a switch can throw it and thereby cause a massive manto topple onto the tracks of a trolley that would otherwise kill five innocentpeople, thereby stopping the trolley, saving five, but killing him.

10 Øverland makes similar points in terms of fairness. MO, p. 483.11 In TMP I called this case ‘Trolley Switch’. I have changed the name as both Trolley Problem cases

involve throwing a switch.

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Using the intuitively appealing counterfactual account of theagent’s baseline freedom, the RCP explains these cases (and solves the‘problem’) like this: The sidetrack man’s claim is restricting because ifhe were not present (the counterfactual), the agent could (and should)turn the trolley away from the five. Respecting his claim as a rightwould make them worse off than they would be if he were not there.They would not necessarily be physically worse off. The agent mightnot have turned the trolley even if he were not present. But his rightwould make them normatively worse off in the sense that they wouldgo from being people who had a right to be saved to people who maynot be saved, given that saving them would wrong him.12

By contrast, the massive man’s claim not to be killed is non-restricting. Respecting his claim as a right would require the agentnot to use him to stop the trolley. But that would leave the five noworse off than if he were not present.

3. Four ClarificationsFirst, the RCP functions much like the MP, and that is no accident.There is a straightforward connection between having non-restrict-ing claims and being used as a means, one that is easily illustrated bythe massive man. Because he is the means by which she would savethe five, having to respect his right not to be killed leaves the agentno more restricted than if she lacked the means. That relationshipdoes not hold if the patient, e.g., the sidetrack man, has a claim notto be harmed as a side effect. His claim pushes to restrict her relativeto her baseline freedom, which would, if he were not present, in-clude the freedom (and duty) to turn the trolley.13

Second, it is important to categorize the claims of all the patientsin a case. So far we have not mentioned the five in both TrolleyProblem cases. What kinds of claims to they have? For present pur-poses it suffices to label them as restricting claims.14 Despite the fact

12 Øverland puts the idea this way: ‘The moral significance of being a moral obstacle is captured bythe idea that they give rise to cost by being in a particular place relative to a situation in which no one isin that place, all else being equal’. MO, p. 498. They give rise to a cost because now at least oneinnocent person has to be harmed, whereas if no one were present there, then no one would need to beharmed.

13 There is no contradiction in saying that she has a duty to turn the trolley in the absence of thesidetrack man and is free to do so. Her being free to do so means only that she has no duty not to do so.

14 The claims of the five are actually more complicated, a fact that I explain in Section III.A.1, below.But this complication need not concern us at the moment.



that their claims are positive claims to be saved, they push to restrictthe agent to do what she would otherwise be free (and duty bound)not to do, that is, to kill the one. The distinction between restrictingand non-restricting claims is independent of the distinction betweenpositive and negative patient-claims.

Third, while the Trolley Problem is cast in terms of patients’ bodiesbeing used or harmed as a side effect, similar points can be made interms of patients’ property. Consider:

Drug Owner: To save the lives of five innocent people, Doctor A needs to givethem a certain drug. But all of the readily available supply of that drug is owned byone person, Patient B. Moreover, B is not simply hoarding the drugs; he boughtthat much of the drug because he needs all of it to live.15

Assuming that the property regime is not too unjust, B has a non-restricting claim on the use of his drugs. If the agent were notpermitted to use his drugs, she would be no more restricted in herability to save the five than if the drugs were not present. Bycontrast, if performing some act necessary to save the lives of fivewould, as a side effect, destroy B’s drugs, thereby costing him his life– imagine a rescue worker needed to blow up a building to create afire break, and B’s drugs were in the building – the agent may treatB’s claim as restricting and may proceed.16

Fourth, the nature of a claim as restricting or not is relative to thejustification offered for the agent’s act.17 To illustrate, consider an-other possible justification for toppling the massive man on thetracks: the agent wants to test the trapdoor mechanism on which themassive man happens to be standing. Assuming that the test doesnot require the massive man to be on the trapdoor, his claim in thatjustificatory context is restricting. But that does not give the agentthe right to topple him in front of the trolley. In the frame of thatjustification, the good is the relatively trivial good of determiningwhether the trapdoor is in good working order. The massive man’sclaim not to be killed, restricting as it is, far outweighs the agent’sinterest in testing the mechanism. And if one were to argue that inthis instance it is especially important to test the trap door, becausedoing so will topple the massive man onto the tracks in a way that

15 TMP, p. 453.16 See TMP, § III. C.17 TMP, pp. 435–436.

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would save five lives, the response would be that one has shiftedback to a justification in which he is a means to the good, and hisclaim must again be considered non-restricting. An act is permissibleif some justification for it succeeds. Each justification must be testedin its own terms.

B. Theoretical Virtues of the RCP

The primary theoretical virtue of the RCP is that it explains theappeal of the MP. For this to be a virtue, one has to believe that theMP is in some way mysterious and in need of explanation. This isnot the place to explore in depth why the MP has seemed myste-rious, but I will gesture at a dilemma for the MP that the RCPresolves. This will lead me to marking four insights that one canobtain by seeing the MP through the lens of the RCP.

1. A Dilemma for the MP18

There are two ways to interpret what it means to use another as ameans – a subjective, intention-focused interpretation, and anobjective, causal-role focused interpretation. On the subjectiveinterpretation, for A to use B as a means is for A to act on anintention in which B figures as a means to some end that A haschosen to pursue. On the objective interpretation, for A to use B as ameans is for A to perform an act in which B serves as a causal meansby which A brings about an end that might be offered to justify whatA does. Both face potent objections.

The objection to the subjective interpretation depends on anotherdilemma: intentions matter either for agent-focused reasons or forpatient-focused reasons, and both are problematic. If we think thatthey matter for agent-focused reasons then agents are misdirected tofocus inwardly on how they think about others as they act, ratherthan outwardly on others and what they are owed.19 If we think thatthey matter for patient-focused reasons,20 however, then we run into

18 This subsection partly tracks, and partly expands upon the argument in TMP, pp. 428–429.19 See Judith Jarvis Thomson, ‘Self-Defense’, Philosophy and Public Affairs 20 (1991): 283–310, p. 293.20 Warren Quinn took this position, writing that patients have claims ‘not to be caught up, to [their]

disadvantage, in the direct agency of others’, that strengthen claims they have for independent reasons.‘Actions, Intentions, and Consequences: The Doctrine of Double Effect’, reprinted in Morality and Action(New York: Cambridge University Press, 1993), p. 188. Direct agency is ‘agency in which [patients]figure as intentional objects’. Id. p. 184.



the problem that they ground at most a different and weaker kind ofclaim than the one we care about when thinking about the MP.

To see that patient-claims over intentions pick out the wrong kindof wrongs, imagine the case of a malicious bystander in Sidetrack: shedoes not turn the trolley to save the five; she turns it to kill thesidetrack man. She is not, however, simply attempting to murderhim. She is aware that the presence of the five makes the act itselfjustifiable, but her reasons do not track the justification; they exploitit. She is a kind of moral loopholer who thinks to herself: ‘Oh, howfortunate, I now have moral cover for killing my enemy’. I do notwant to insist that this is merely a manifestation of bad character or abasis for moral criticism. I think we can require people both not to acton such malicious reasons, and to perform the act that they realize isjustifiable for morally acceptable reasons – they must recognize thesereasons or they would not be in a position to exploit them.21 But weshould be careful about just what we are accepting if we say that apatient’s claim not to be killed for a malicious reason grounds theimpermissibility of an agent’s acting on that reason. We are notsaying that the patient has a claim not to be killed in that situation;we are saying that he has a claim not to be killed for a bad reason.This suggests that his claim refers to the offensive quality of theagent acting on that bad reason. That, however, seems quite dif-ferent from the kind of wrong at stake when the very act itselfcannot be justified.

Compare the malicious trolley turner who seeks to exploit amoral opportunity to perform a justifiable act for a bad reason withsomeone who would topple the massive man onto the tracks. De-spite the fact that the toppling agent may have only the best of aims– in contrast with the malicious trolley turner – she intends to usethe massive man as a means for achieving them, without his consent.This too may be deemed offensive. But the important point is thatthis wrong seems worse – it is not just killing for a bad reason, it isunjustifiable killing – and yet it is hard to see why it should be moreoffensive to use someone as a means than to aim to kill him out ofmalice. One might insist that the intention to use the massive man as

21 See Niko Kolodny, ‘Scanlon’s Investigation: The Relevance of Intent to Permissibility’, AnalyticPhilosophy 52 (2011): 100–123, esp. pp. 105–106. I should add that while I do not think one is required toturn a trolley from five onto one, I think that permission not to act comes from the agent-claim not totake on the moral burden of being a killer. If one is happy to be a killer, then one should take oneself tobe required to turn the trolley.

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a means is a worse intention, but that claim, insofar as it is plausible,seems to rest on the wrong being a worse wrong. If so, however, thenature of the intention cannot explain why the wrong is a worsewrong. Looking just at the intentions, it would seem that themalicious trolley driver acts on a worse intention, but the topplingagent performs the worse act. This mismatch indicates that weshould look for some other account – one that does not appeal to theintentions of the agent – to explain what is distinctively wrong aboutthe MP violation in Massive Man.22

I don’t take this to be a definitive refutation of the subjectiveinterpretation of the MP, but it certainly sets a challenge for thosewho want to understand the MP in terms of intentions. If we switchto the objective interpretation of the MP, however, we get no help.The objection to the objective interpretation is that a patient’s causalrole has no obvious moral significance. If we leave aside questions ofhow offensive certain treatment is, it is no worse to suffer a harm asmeans to some good than as a side effect of some other means beingused to achieve that good. And has not been clear – before the RCPwas formulated – why else the strength of a patient’s claim not to beharmed or allowed to suffer harm should turn on his causal role inbringing about a good.

It is important to be clear here: I am not denying that a patient’sclaims might be stronger or weaker depending on whether he hasplayed some causal role either in bringing about a problem that anagent confronts or helping her to address it. But that kind of sig-nificance for a patient’s causal role is grounded in the idea that aperson can be held responsible for what he has done as an agent. Theobjective interpretation of the MP gives a patient’s causal role sig-nificance independently of his prior moral agency. As T.M. Scanlonput the point: ‘being a means in this sense – being causally necessary– has no intrinsic moral significance…’23

If neither the intention-focused interpretation nor the causal-rolefocused interpretation of the MP work, then the MP must be wrong.

22 If the agent does not know that turning the trolley is itself justifiable, if, that is, she is simply tryingto kill the sidetrack man, then I think her intention is bad on a par with that of the toppling agent. Butthat is because she aims to perform an act that, as she conceives it, is murder. The wrongfulness of theintention is again derivative of the wrongfulness established in some other way.

23 See T.M. Scanlon, Moral Dimensions (Harvard University Press, 2008), p. 29. In TMP, p. 429 n.7, Icite not only Scanlon but also H.L.A. Hart, and Victor Tadros for that point. Øverland cited JeffMcMahan, Michael Otsuka, and David Rodin for the same point. MO, p. 496, n. 20.



Again, I do not take myself to have proven that neither works. But Itake myself to have given reason to worry that neither works, andtherefore reason to look for some way out of this dilemma. The RCPis offered to provide that way out, and it does so by explaining why apatient’s causal role, pace Scanlon, is morally significant.

2. Four Distinctive Features of the RCPIn this section I describe four distinctive features of the RCP. Thefirst three explain how the RCP can resolve the dilemma just raisedfor the MP, by explaining why a patient’s causal role is morallysignificant. The fourth shows another way in which the RCP hasexplanatory power lacking in the MP.

First, as a theoretical matter, the RCP can explain why a patient’scausal role matters by connecting it to the way his claims affect anagent’s freedom. Limiting an agent’s baseline freedom to act hasobvious moral importance, and whether it is limited correlates withwhether the patient’s claim is on the means the agent proposes touse or not. That correlation, on the counterfactual formulation, wasjust explained. On the revised RCP, the correlation will be explaineddifferently, but the basic idea will remain the same. The RCP willstill turn on an agent’s baseline freedom and whether a patient’sclaim pushes to restrict it or not.

Second, the RCP can make sense of a patient’s causal role be-cause, unlike the MP, there is a sense in which the RCP is notfundamentally dyadic.24 For both the MP and the RCP, there is adyadic relation between a patient whom an agent would use as ameans, who has a strong claim not to be harmed or allowed to sufferharm, and the agent who might harm him or allow him to sufferharm. Moreover, for both the MP and the RCP, the claims of otherswho would benefit from such a harming push to allow the agent toact. And for both, that push will be unsuccessful if the harm thatwould be caused or allowed to continue would be substantial. Butthe RCP is not only concerned with why one kind of claim, the non-restricting kind, is strong; it is also concerned with why another kindof claim, the restricting kind, is relatively weak. And to understandthat, it is not enough to think in dyadic terms about the patient andthe agent. One has to think about the global balance of claims. One

24 I am grateful to Toni Rønnow-Rasmussen for pointing out the need to make this distinction withmore subtlety than I did in TMP, p. 433.

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has to take into account the moral significance of a claim pushing torestrict an agent and thereby pushing to impose something func-tionally like a negative externality on others. Unlike the RCP, the MPprovides no way of making sense of the work done by this sort ofglobal balance.

Third, the MP is normally framed as raising especially high moralbarriers to action, even if the action would maximize the good.While the revised version of the RCP will also offer an account ofwhy it is especially hard to justify using another as a means withouthis consent, the key insight in the RCP is that restricting claims lowerthe barriers to causing or allowing a patient to suffer harm. It isbecause restricting claims push to restrict what an agent can do for,or what she can refrain from doing to, others that it is easier to justifyharming patients with restricting claims than those with non-re-stricting claims.25 Appreciating this partial reframing of the directionin which the relevant principle works allows one to see that what isdoing significant moral work is the ‘externality’ some patient-claimspush to impose on others.

Finally, it is worth adding one more way in which the RCP hasexplanatory power lacking in the MP. The RCP offers insight not tobe found in the MP into a way that one can lose the right not to beused as a means. What is at issue is the effect of having a restrictingclaim that successfully restricts.26 Øverland saw this difference first,so I will give his example:

Armor: Tom impermissibly attacks Mary with lethal means. She can save herself bykilling Tom with a flamethrower. To the left of Tom is a person, Mo. If Mary usesher flamethrower she will kill Mo. Killing Mo to save only herself would bedisproportional and Mary decides not to do so. However, Mo is wearing lightarmor, and can be used as a shield without being killed. But using Mo as a shieldwill impose some cost on him.27

Note that Mo’s claim not to be burned by Mary’s flamethrower is asuccessfully restricting claim. Having made her worse off, his claimnot to be used should be treated more or less as it would be treated ifhe had done something, though in a completely non-culpable way, to

25 TMP, p. 433. Øverland makes a similar point in MO, p. 497.26 In TMP I claimed to have identified a practical difference between the way the RCP and the MP

(and implicitly the DDE) would handle a case called Loop Trolley. I now think that discussion wasmistaken. See the Appendix for an explanation.

27 MO, p. 503.



make her worse off. Thus even though he has a non-restricting claimnot to be used as a shield, it has to be weighed in the context of hisalso having a successfully restricting claim. The MP can accept thatpeople can lose their right not to be treated as a means in any of anumber of ways. This point does not conflict with the MP. The pointis only that the RCP has the resources to capture this insight, but theMP by itself does not.

II. PROBLEMS WITH THE COUNTERFACTUAL BASELINE

Having explained the RCP’s basic structure and virtues, I now turnto explaining why my original account of it, one that used a coun-terfactual baseline, fails. There are two kinds of reasons to think itfails: (1) counterexamples, and (2) theoretical problems. I explorethese in turn.

A. Counterexamples

1. Wrongly Counting Claims as Non-RestrictingThe first variation is:

Sidetrack Man Protecting Others: An agent at a switch can throw the switch andthereby turn a trolley that would otherwise kill five innocent people onto asidetrack where it will kill the sidetrack man. The sidetrack man’s weight issending a signal to another switch; if he were not there, then any trolley turnedaway from the track with the five would be sent to a third track where, as it turnsout, ten people would be killed.

Using the counterfactual baseline, the RCP holds that a claim isrestricting if it pushes to restrict an agent so that she may not do forherself or others what she could permissibly do if the claimant werenot present. How are we to understand the comparison world inwhich the claimant is not present? What I said in ‘Transcending theMeans Principle’ is that the test should ‘look to the closest possibleworld in which the [claimant] is unaffected by what the agent canchoose to do’.28 Arguably, in the closest possible world, if the side-track man were able to step away from the track so that he wouldnot be hit, ten others would be hit instead. In that world, it would

28 TMP, p. 431.

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not be permissible for the agent to turn the trolley away from thefive. Therefore, using the counterfactual baseline, this sidetrackman’s claim is non-restricting. That implies that the agent may nothit him, and therefore that she may not save the five.

This, however, seems to be the wrong answer. Even given hisrole in preventing the trolley from hitting the ten, turning the trolleyonto this sidetrack man does not seem to be the moral equivalent ofusing the massive man as a means of stopping the trolley. If theagent turned the trolley, she would still kill only the sidetrack man,and she would do so as a side effect of turning the trolley away fromthe five.

Admittedly, this case is not completely straightforward. The agentmay not, I believe, force the sidetrack man to stay in place on thesidetrack, especially not if that means that he will be hit by a trolley.He does have a non-restricting claim not to serve as the means ofensuring that the five can be saved without hitting the ten. But if theagent has no ability to affect whether he stays on the sidetrack, thenshe does not disrespect any claim of his not to be so used.29 In thatcase, his claim not to be hit by the trolley seems like a simple,restricting claim.

One might also object that the sidetrack man, by preventing thetrolley from going towards the ten, does some good, which shouldcount in his favor just as imposing costs should count against Mo inArmor.30 But even if this is right, the ‘credit’ the sidetrack man is duefor the good he (passively) does seems insufficient to make his claimequivalent to a non-restricting claim – just as the ‘debit’ in Mo’s casedoes not make his claim not to be used as a shield the equivalent of arestricting claim.

2. Wrongly Counting Claims as RestrictingThe second variation comes at the problem from the other side.Consider:

29 This case has some similarities to one I discussed in TMP: Massive Man on the Sidetrack. TMP, p.31. In that case, the massive man’s presence makes it possible for the agent to turn the trolley onto thesidetrack. I said of that case that there was no way the RCP could rule out interpreting the case so thathis claim is non-restricting, since he is part of the means by which she could save the five. In this case,the sidetrack man’s claim is not over the means, but over the effect of using it, which, for reasons thatwill be spelled out below, seems a significant difference.

30 I am grateful to Jeff McMahan for suggesting this argument.



Massive Man Displacing a Moose: An agent at a switch can throw it and therebycause a massive man to topple onto the tracks of a trolley that would otherwisekill five innocent people, thereby stopping the trolley, killing him, and saving five.If he were not present on the platform, a moose would wander onto the same spotwhere it could be used to save the five. He is in no way culpable for blocking themoose from being in a position where it can be so used.

As a reminder: The test for determining whether a claim isrestricting, using the counterfactual baseline, is whether it pushes torestrict an agent so that she cannot do for herself or others what shecould permissibly do if the claimant were not present. The massiveman’s claim, in this context, does exactly that. The counterfactualbaseline is such that respecting his claim makes the five worse off.Arguably, in the closest possible world in which he isn’t there, theagent would be permitted and able to topple the moose onto thetracks, thereby saving the five. But the implication that his claim isrestricting, and that he may therefore be toppled in front of thetrolley, seems wrong. The massive man’s non-culpable role in pre-venting a moose from coming into a position where it could be usedto save five human lives should not make it permissible for an agentto use him, without his consent, as a means of saving the five.

Again, the example is not completely straightforward. If themassive man did keep the moose at a distance, even if non-culpably,then in some sense he did make the five worse off than theyotherwise could have been. But in contrast with someone who ismorally responsible for causing the trolley to threaten the five, heshould not be thought liable to being used to save the five. More-over, his counterfactual connection to the moose seems discon-nected from the basic nature of the claim he makes. There still seemsto be a way in which his claim not to be killed entitles him todemand that the agent not take her baseline freedom to include theright to use him as a means of saving the five. His claim seemsdifferent from that of someone properly identified as having arestricting claim.

I cannot rule out the possibility that there is some other way ofreconstructing a counterfactual test to overcome counterexampleslike these. But I also cannot see how to revise a counterfactual test sothat it remains morally simple and plausible, and is immune to thesesorts of counterexamples. I could bite the bullet and say that the

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RCP, using its counterfactual test, is right, and that the judgments Ifind intuitive about these cases have to be rejected. But I find theintuitive reading of the cases plausible enough that I think it is worthexploring another way of making sense of the RCP.

B. The Theoretical Objection to the Counterfactual Baseline

The appeal of the counterfactual baseline rests primarily on thethought that the best way to test whether a patient’s claim pushes tomake others worse off is to imagine the counterfactual in which thepatient is simply not present. Not being present seems like a goodpatient-analog to an agent not-acting, so it fits with the idea that theRCP reflects a patient-focused analog to the agent-focused notion ofa negative externality.

The problem with this thought is that there is an alternativebaseline that makes more sense as a substantive matter. The alter-native baseline is framed in terms of the things in the world that anagent can and cannot take herself to have a baseline freedom to use –using being particularly important to agency.31 If a patient owns whatthe agent wants to use, and if her baseline freedom does not for thatreason include the use of that thing (including the patient’s body),then the owner-patient’s claim would be non-restricting. Rather thanrestricting the agent relative to her baseline freedom, the patient’sclaim sets the limit for what that freedom is. If, however, the thingsthe agent needs to use are hers or otherwise available for her to use –if they are part of her ‘toolkit’ for action – then a patient’s claim notto be harmed or to be helped pushes to restrict her relative to thatbaseline freedom. It counts, against this baseline, as restricting.

One reason to pick the ‘toolkit baseline’ over the counterfactualbaseline is that the toolkit baseline easily handles the two coun-terexamples against the counterfactual baseline. It handles thembecause it appeals directly to the causal role of the patient, not tocounterfactuals, which only imperfectly capture causal roles.32 It is

31 I made a similar observation in TMP, p. 443: ‘The world an agent confronts is fundamentallydivided up into things that she can presumptively use … and things that belong to others and arepresumptively beyond her freedom to use, at least if harm will result to the owners’. What I failed torecognize at the time is that this division provides an alternative baseline for agent freedom, one thatshould have supplanted the counterfactual baseline.

32 To illustrate how counterfactuals fail to account for causation, consider a case of overdetermi-nation: suppose that A and B both shoot V in a vital organ. V would die even if A had not shot him.That does not mean that A is not causing – along with B – V’s death.



intuitively permissible to kill the sidetrack man protecting othersbecause he is killed only as a side effect of turning the trolley awayfrom the five. The RCP using a toolkit baseline can capture thatjudgment because her toolkit for turning the trolley does not includehim, so his claim pushes to restrict what she can do with her toolkit.Likewise, it is intuitively impermissible to kill the massive man dis-placing a moose because he would be used, without his consent, as ameans of saving the five. Again, the RCP using a toolkit baseline cancapture that judgment. Her toolkit for saving them would have toinclude him, so his claim not to be so used helps to set her baselinefreedom; it does not push to restrict it.

But a deeper reason to pick the toolkit baseline is that it betterreflects the relevant moral concerns. The RCP’s proper concern iswith how patient-claims affect agents, and thereby affect others.That effect can be assessed only against an appropriate baseline ofagent freedom. The counterfactual baseline seems, at first blush, toprovide a good account agent freedom. In truth, however, it dependson a deeper account to avoid begging the question. To see this, oneneed only ask why we should invoke a counterfactual baseline todistinguish between the ways the claims of the sidetrack man andmassive man push. In a straightforward sense, they both push torestrict agents.33 The sidetrack man’s claim pushes to restrict theagent from turning the trolley away from the five, and the massiveman’s claim pushes to restrict the agent from using his body to savethe five. Why not count both claims as restricting? Doing so wouldmake all claims restricting. But we cannot reject this implicationsimply because we would then get the cases intuitively wrong. If thatwere the best that could be said for the counterfactual baseline, thenthe RCP would not really offer an explanation of the case intuitions.

One could try to respond to this challenge by noting that it’sperfectly natural for an agent to think, with regard to the sidetrackman: ‘If only you weren’t here, then I could save the five with nohesitation or regret’. But the agent could equally well say to herself,with regard to the massive man: ‘If only I were free to use yourbody, then I could save the five with as little hesitation and regret asI would have were I to turn the trolley onto a sidetrack man’. Whyconsider this a less appropriate thing to say? The answer, if there is

33 I am grateful to Michael Otsuka for repeatedly pushing this point on me.

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one, seems to presuppose that the agent cannot consider herself freeto use the massive man’s body. But then to account for that, wecannot appeal to the counterfactual baseline. We are trying tounderstand why that baseline should have appeal. We need to appealinstead to something like the toolkit baseline.

One might wish to object, at this juncture, that this seems to takeus back, full circle, to a question begging reliance on the MP. TheRCP was meant to explain why causal roles are significant. Thecounterfactual baseline held out the promise of doing that. With it, itseemed possible to understand why being harmed as a side effect iseasier to justify than harming by using as a means: because the claimnot to be harmed as a side effect pushes to make others worse offthan they would be if the claimant were not present; not so with theclaim not to be harmed as a result of being used as a means. If wesimply replace that with an appeal to the causal roles that patientsplay – as the toolkit baseline seems to do – then the theoreticaladvantages the RCP promised would disappear.

My response to this objection is that the toolkit baseline is notmerely a restatement of the MP. As explained below in Section III.B,it offers a theoretical framework for making sense of why causalroles matter in terms of the impact of patient-claims on agent free-dom. It offers an account both of why the claims of patients not tobe uses as a means should count as helping to set the agent’s baselinefreedom, and of why the claims of patients not to be harmed as aside effect should count as restricting with regard to that baselinefreedom.

Before turning to the positive discussion of the RCP on the toolkitbaseline, I want to summarize this section. The counterfactualbaseline was appealing primarily because it seemed to explain howdifferent kinds of patient-claims could affect others differently.34 Inow believe, however, that that appeal reflected a conflation ofcorrelation with implication: the impact of a patient’s presence, astested by the counterfactual in which he is absent, correlates fairlywell with whether his claim is restricting or not, but it does not implythat his claim is restricting or not. I do not wish to imply that thecounterfactual test has no relevance to the moral assessment of asituation. It does seem true that the sidetrack man protecting others

34 I will return in Section III.C to further explore why it was appealing to use a counterfactualbaseline.



should get some credit for the good he does, and it seems true thatthe massive man displacing a moose should carry some burden forthe way that his presence makes others worse off. But the credit andburden that seem owed in these cases seem to carry much less moralweight than the distinction the MP has been thought to capture andthat the distinction between restricting and non-restricting claims ismeant to explain.

III. REFRAMING THE RCP USING THE TOOLKIT BASELINE

I explain and defend the toolkit baseline in three parts: First, I explainhow to use the toolkit baseline; it is not as straightforward as thecounterfactual baseline. Second, I provide theoretical reasons tothink this is a sound approach to the question of how to formulatethe relevant baseline. Third, I discuss why a counterfactual baselinewas so tempting, and I assess whether the shift to the toolkit baselineundermines the plausibility of the RCP.

A. Using the Toolkit Baseline of Agent Freedom

The toolkit baseline of agent freedom should be understood byreference to property notions, broadly construed. It concerns thethings in the world that an agent can presumptively use to pursueher ends: her body, her property, and things that, while not herproperty she is presumptively free to use (things others own but thatthey have given her permission to use, things in the public domain,etc.). In addition, her toolkit should be taken to include things that,given the needs of some, she has a situational right to use. If apatient-claim pushes to restrict what she can do with her toolkit, it isrestricting. If it pushes to limit what she can count as part of hertoolkit, it is non-restricting.

To illustrate, I return to Drug Owner. It seems to me clearlyimpermissible for Dr. A to take B’s drugs. They are B’s, and thereforeA cannot count them as part of her toolkit. As a result, B’s claim thatA not use them does not restrict A with respect to her baselinefreedom to act. Rather, it is the moral basis for the fact that A’sbaseline freedom does not include the freedom to use those drugs. Ifthe harm to B were small enough, B might have no right to deny Athe use of the drugs. Non-restricting claims can lose in the balance if

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the benefits to others are large enough and if the harm to the clai-mant is small enough. But if B would die if A took his drugs, then B’snon-restricting claim must be respected as a right.

1. The Need for Empowering ClaimsThe main complication required by the toolkit baseline is accountingfor the fact that an agent’s toolkit can vary, in particular situations, inresponse to the claims of those who would benefit from her help.We can see this if we take a realistic look at Sidetrack. In the realworld, bystanders normally are not free to throw switches directingtrolleys from one track to another. If we assume that the agent doesnot work for the trolley company, then its switches would not bepart of her toolkit. Yet we should still say that the emergency allowsher to throw the switch. The reason we can say this is that the fivehave claims to be saved that give her the right to use the switch. Hertoolkit is expanded by their claims.

To be clear, then, we need to distinguish two ways in which theclaims of the five operate, and we should therefore take them tohave two different sets of claims. First, they have what I callempowering claims. These are the claims that weigh against thetrolley company’s non-restricting claim to keep its switches out ofthe hands of anyone other than its employees. It is worth reem-phasizing: a claimant with a non-restricting claim does not get to sayto an agent: ‘You may not do anything with my toolkit’. Rather, anowner benefits from a strong but not always dispositive presumptionthat he can keep another from treating his stuff as part of her toolkitwithout his permission. If that presumption yields because of com-peting empowering claims that serve interests much more weightythan his, then another agent’s toolkit temporarily and for a limitedpurpose expands to include the item she is now empowered to use.

Second, once the agent has been empowered to use the trolleycompany’s property, then the claims of the five register as restricting.They push the agent in the direction of being required to save them.In that context, they have to be weighed against the restricting claimof the sidetrack man and the agent’s claim to be free from having toserve them.

A set of patients may have claims that successfully empower anagent to count something in her toolkit, and yet their correspondingrestricting claims may fail completely to restrict the agent – that is,



their restricting claims may not only not successfully require theagent to act, but in the overall balance they may not even permit theagent to act as they push her to act. To illustrate: imagine that therewas only one person in the path of the trolley, and five on thesidetrack. In that case, it makes sense to understand the claims asfollows: the one’s empowering claim empowers the agent to use thetrolley company’s switch – his claim to be saved far outweighs thecompany’s claim to exclude non-employees from throwing itsswitches. But the restricting claims of the five outweigh therestricting claim of the one, and therefore they prohibit her fromusing this part of her toolkit, that is, they prohibit her from turningthe trolley onto them.

It is also important to point out that empowering claims wouldlose to non-restricting claims that protect a substantial interest. Con-sider again Massive Man, and compare and contrast his claim over hisbody with the trolley company’s claim over its switch. The five inboth Massive Man and Sidetrack have claims that push to empower theagent to use tools not initially in her tool kit: the body of the massiveman and the trolley switch, respectively. The empowering claims ofthe five outweigh the trolley company’s non-restricting claim to re-strict access to the switch because the company’s interest in restrictingaccess to the switch is not very great. The same is not true of themassive man’s non-restricting claim. His interest is not merely incontrolling the use of his property (his body), but in protecting his life.In that case, the five’s empowering claims fail to empower the agentto help them. As a result, she has no baseline freedom with whichtheir restricting claims can engage, and thus their restricting claimsnever meaningfully come into play.35 Nevertheless, for the sake ofconvenience, we can treat such cases as ones in which a set ofrestricting claims lose in the balance – via failure of the correspondingempowering claims – to another’s non-restricting claim.

In sum, the toolkit baseline must not be understood in a crude,static way. Property rights are ‘a bundle of sticks’; they concern arange of claims, liberties, powers, and immunities, and they cancome apart in various ways. An agent may be permitted to useproperty, whether her own or that of another, only in certain con-texts and for certain uses. The empowering claims of some can give

35 This explains what I gestured at in note 14, above.

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an agent the right to use something that belongs to another (to put itin her toolkit) only for the purpose of using it in a particular way in aparticular context.

2. Trolley Switch ToolThe idea that an agent’s toolkit is not fixed, but can expand inresponse to empowering claims raises an interesting puzzle case, onein which it seems permissible to use another’s property, as in theSidetrack case just discussed, but the owner nonetheless dies as aresult, as in Massive Man. Consider this case, which I discussed in‘Transcending the Means Principle’:

Trolley Switch Tool: In order to throw the switch to save the five, an agent needs touse a tool. She sees one lying nearby that she knows belongs to the sidetrack man. Ifshe doesn’t use his tool, she can’t save the five, but if she uses it, she will kill him.36

Intuitively, it is permissible for the agent to use the sidetrack man’stool. The question is: Why doesn’t the fact that the sidetrack man ownsthe tool give him the same right not to be harmed as the massive man? Ithink the most plausible answer is that the harm of being hit by a trolleyis not directly connected to the interest we normally take to be protectedby a property claim over an object like a tool. We normally take that kindof property claim to protect a few limited interests: having access to thetool when one wants to use it, excluding others from using it if one wantsto, and being able to sell it, loan it, or give it away as one sees fit. But thatinterest is the kind of slight interest that could be outweighed by theempowering claims of the five. Moreover, we readily conceive of thatinterest as distinct from his interest in his life. As one would normallyimagine the case, he did not buy the tool to protect his life, the way thedrug owner did. Nor is his property interest like the massive man’sinterest in his body not being smashed by a trolley, an interest essentiallyon a par with his interest in staying alive. His interest is more mundane,and distinct from the interest he has in not being hit by a trolley. As itturns out, the interests come together in this case. But the connection isso contingent, so unconnected to his basic property interest in his tool,that it seems fair to keep the interests separate. Accordingly, he has anon-restricting but easily outweighed claim to exclude the bystander

36 TMP, p. 455. Judith Jarvis Thomson introduced this case in ‘The Trolley Problem’, in J. Thomson(ed.), Rights, Restitution, and Risk (Cambridge: Harvard University Press, 1986), p. 111.



from using the tool, and a restricting claim in not being hit by a trolleythat is distinct from his property interest in the tool and that is out-weighed by the positive claims of the five.

What if the sidetrack man owns the switch and has an interest init that is like the drug owner’s interest in his drug? Imagine that heneeds to use it for a daily visit to a doctor, and he bought it just to besure that he would have access to it and the track it connects towhen he needs them. And suppose that the agent’s use of the switchwill, for some reason, make it inoperable for the rest of the day.Finally, suppose that this means that even if she did not turn thetrolley onto him, he would die because he cannot get to the doctorfor his daily treatment. May she still turn the trolley onto him?37

There’s an argument for saying yes. One might say: The agent’susing the switch doesn’t kill him by making the switch unavailable.She kills him by turning a trolley onto him. Moreover, by the timehe would normally need to have access to the switch, he would bedead from being hit by the trolley, so he no longer needs it.Therefore, his claim over it should be more like the claim of thesidetrack man who owns the tool than the claim of the drug owner.Thus the agent’s use is permissible.

But this argument is perverse and should be rejected. The betterposition is that the agent has no right to disrupt the owner’s use ofhis switch if his ownership interest is directly connected with hisinterest in his life. Moreover, she cannot gain a right to do whatwould be impermissible by killing him first, even if the killing wouldbe permissible if she had a right to use his switch. This criticism mayseem to conflict with Frances Kamm’s Principle of Secondary Per-missibility, by which Kamm claims that it is sometimes permissibleto perform actions that would normally be impermissible if theycause less harm to a given set of rights holders than would be causedto them by a permissible action that an agent would otherwise haveperformed.38 But in Kamm’s examples, it is clearly permissible tocause harm in one way, and that licenses doing it in a less harmfulway. In this case, the harm to the sidetrack man is not a lesser harm.

37 I am grateful to Patrick Tomlin for pushing me to address this kind of case.38 Intricate Ethics (New York: Oxford University Press, 2007), p. 170. She also endorses the Extension

of the Principle of Secondary Permissibility, which allows an agent to perform an act that wouldnormally be impermissible if it would cause less harm than an act that she could permissibly perform,even if she intends not to perform the permissible act. Id, p. 171.

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More importantly, it is not clearly permissible to turn the trolleyonto the sidetrack man. That is what is in question, given that heowns the switch. One cannot, without begging the question, assumethat he would lose the right to exclude the agent’s use of his propertysimply because he would not need it if he were dead.

To be clear, I am not suggesting in this discussion that there areonly two kinds of interests: ‘normal’ ownership interests (such as theright to use, to exclude others from using, to sell, and so forth) andinterests in life. I have focused on those extremes largely because, inthe tradition of Trolley Problem discussions, I have focused mostly onlife and death cases. But the relevant interests cover the wholespectrum from the interest in life, to the interest in health, to lesserinterests, such as the interest in making a profit from one’s property.Drug Owner would work just the same if the five and the owner allhad competing interest in maintaining or regaining the same degreeof health, as opposed to suffering the same degree of ill health. Thatis, his ownership claim would beat their competing empoweringclaims just as it does when all six have their lives on the line.

B. A Theoretical Case for the Toolkit Baseline: The Agent–Patient Divide

1. Articulating a Theoretical Basis for the Toolkit BaselineI turn now to the question: Why distinguish claims that limit whatan agent can do with her toolkit from claims that limit what an agentcan count as hers to use in the first place? They both have thepotential to result in the same limited freedom to act. Why shouldone kind of claim be any weaker than the other?39

The answer depends on understanding why there is somethingspecial and morally fundamental about the distinction between whatan agent can count as hers to use and what she must count asbelonging to others. Forsaking the use of what belongs to others –unless the use would not harm their property-protected interestsmuch and the benefit would be great – is one of a larger class of waysthat agents must come to choice situations presuming their freedomis already constrained. Others include, for example, lacking thefreedom to break promises – unless similar exceptional conditionsobtain. In both types of cases, an agent should not feel that her

39 Note that this is analogous to the question that I concluded, at the end of Section II, the RCPcould not answer if framed in terms of a counterfactual baseline.



freedom is being restricted. Her freedom only makes sense in a spaceof rights that works not only for her but for all rights holders. Theproper baseline for an agent’s freedom is always limited; no oneshould ever think that she has the Hobbesian ‘right to every thing’.40

Going deeper, the fundamental normative framework for struc-turing a liberal space of rights includes the principle that ‘each isfundamentally free to lead her own life’.41 I highlight here two sorts ofbasic or fundamental agent-rights necessary to ensure that we enjoy anormative space in which to pursue our own ends, our own happi-ness.42 First and foremost, a normative space of rights has to provideagents with a strong claim not to have to make large sacrifices for thesake of others or the general good, not unless they have donesomething to acquire a special duty to make such a sacrifice or are in aspecial duty-imposing relationship (like parent to child). This is thepoint that I relied on in Section I when introducing the RCP.

Second – and this is the point with special relevance to the toolkitbaseline – a normative space of rights has to provide agents with thefundamental right to control property as an indispensible means bywhich to pursue their life plans.43 This includes both first property(their bodies) and second property (the things they own in a moreconventional sense).44 This right to property implies that agents

40 Thomas Hobbes, Leviathan (New York: Collier Books, 1962), Chapter 14, p. 103.41 TMP, p. 436. I argue there that rights rest on this and two other foundational principles: that

human welfare matters, and that we are all fundamentally equal. These other principles need not behighlighted here. I do, however, want to note one other thing: There is good reason to think that theword ‘liberal’ does not distinguish one space of rights from another, but helps explain why there is aspace of rights at all. In pre- or non-liberal moralities, there has always been a notion of objective rightaction, but the notion of a subjective right, a right that can impose a duty that one person owes toanother – reflecting the thought that each individual is an end in herself – seems to be part and parcel ofthe development of liberal thought.

42 Two other sorts of fundamental agent-rights should be noted. First, agents may need to be free toinvoke certain basic liberties, such as speech, association, and occupational choice. These give agents aright to make choices that may positively harm others, though these right are not absolute in thatregard. They exist to supplement the agential freedom not to serve as a means of promoting the welfareof others, insofar as that supplementing is necessary to ensure sufficient agential autonomy. Second,agents need to be provided with sufficient resources and training in capabilities to exercise theirpotential as agents. This is fundamentally a matter of distributive justice, however, not rights againstothers qua individuals.

43 Larry Alexander makes a similar Lockean point about the importance of property in his accountof the MP. ‘The Means Principle’, in K. Ferzan and S. Morse (eds.), Legal, Moral and Metaphysical Truths:The Philosophy of Michael S. Moore (forthcoming Oxford University Press), draft p. 3.

44 See TMP, p. 453. It might be asked if they need second property. The answer is that all need atleast a bit of it: food, clothing, and shelter. And even if one, in a monastic way, avails oneself of only afew sticks from the bundle of property rights with regard to these things – merely using them, and nottrying to exclude others or trade them for other things – one cannot help but ‘consume’ some of theirvalue just to live. An apple eaten is no longer available to others. And for most life projects, evenmonastic ones, some degree of control over second property is required.

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must conceive of the world as divided into what is theirs to use,what belongs to others, what is shared, and what is unowned.

Of course, rights both protect our freedom and constrain it. Theyserve us both as agents who want to be free to pursue our own ends,and as patients who want to be protected and helped. Propertywould be worthless if it were not protected by a set of patient-claimsnot to be stripped of it or otherwise to have our enjoyment of itinterfered with, and it would be worth less if it were not also pro-tected by patient-claims to be helped when it is threatened.

Notice, there are two fundamentally different ways that propertyrights register in the space of rights. First, there is the question: Whatis mine to use and what is not? This is the question an agent mustask herself when facing a world of other agents who, with her, divideup the world. Then there is the question: What protections do Ihave, in the form of restrictions on agents doing harmful things to(or failing to do helpful things for) me – where they can harm me orhelp me not only with regard to my body but also my property. Thisis the question a patient must ask when confronting agents. Orturning it around to the agent’s point of view, this is the question anagent is presented with when confronting others not as fellow agentswith whom to divide the world’s resources, but as patients who seekeither not to be harmed or to be helped.

This difference is what I call the agent–patient divide. Thereformulated RCP trades on it. It says that the division of the worldby competing agents comes first in establishing their baseline free-dom to act. Then, once that is established, agents must look to othersas patients to see how their claims push to restrict, or sometimes toaugment, their freedom. This priority of the division of the worldbetween agents is not meant to be some sort of temporal priority; itis only for thinking about an agent’s baseline freedom of action in agiven concrete situation, where the distribution of goods is more orless a given. In that context, the primacy of agents conceiving of theworld as divided up between them establishes a meaningful baselinefreedom of action. This baseline can then be restricted (or aug-mented) by the claims of patients upon a given agent. It is in thissense that restricting claims restrict relative to an agent’s baselinefreedom.



This account explains both why it is hard to justify using anotheras a means, and why it is relatively easy to justify harming another asa side effect. It is hard to justify using another as a means, withouther consent, because the other is a free agent leading her ownindependent life. Insofar as she has no special duties to others,morality cannot treat her as though she may be pressed into duty toserve others at great expense to herself. And though her claim not tobe used is a patient-claim, it is a claim she presents as a fellow agent.It is part of the agent-agent divide of the world. By contrast, claimsnot to be harmed as a side effect are, as it were, pure patient-claims.They press to restrict – sometimes after empowering – agents withregard to their baseline freedom. As such, they should be weighedagainst competing restricting claims more or less on a par.

2. Objections and RepliesBefore wrapping up this foundational account of the toolkit baseline, Iwant to address three worries/objections. First, one might worry thatthis theory must put too much weight on a particular theory ofproperty. I take the lesson from Rawls that the rules of propertyacquisition, retention, and transfer are socially constructed and shouldbe shaped by a concern for distributive justice.45 But what if oneaccepts a more utilitarian basis for property rules?46 Would that turnthe RCP into a utilitarian doctrine? No, even if property had thatfoundation, the role the RCP gives to property claims is a distinctlynon-utilitarian role. It would serve that role as long as agents can relyon their property rights in a fairly robust way in pursuing their ends.

A second worry is that property rules might be so flexible, sosocially and contextually contingent, that we could not reliably getan account of why, for example, the massive man may not be usedto save the five.47 This would be a worry if property rules wereextremely flexible. But I reject that premise. Even if second-propertyis conventional and could exist in a wide range of forms, first-property (our ownership of our bodies) is not in the same wayconventional; it ‘has a kind of natural law priority that legal ordersare bound to respect’.48 Accordingly, I do not think we need to

45 See John Rawls, A Theory of Justice (New York: Oxford University Press, 1972).46 I am indebted to Philip Pettit and David Plunkett for pressing this question.47 I am indebted to Kasper Lippert-Rasumussen for pressing this worry.48 TMP, p. 453.

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worry that a just system of property would allow the massive man’sbody to be part of another’s toolkit without his consent.

Finally, one might worry that the revised RCP implausibly impliesthat property rights take priority over the right to life.49 But thisworry misconceives the role of property in the RCP. The RCP doesnot give extra weight to property interests over competing interestssuch as the interest in life. Qua interests, the interest in life is moreimportant than the interest in property, all else equal. The point isthat there are two ways an interest can register: as an interest in notbeing caused or allowed to suffer harm, or as a property interest thatalso protects against certain kinds of harm. Holding constant theinterest protected – e.g., life in the Massive Man and Side Track cases –property interests will register more strongly. This is because theyregister in terms of setting an agent’s baseline freedom in a worlddivided between agents, rather than restricting it after her baselinefreedom has been set.

C. Why the Counterfactual Baseline is Tempting

It must be admitted that this formulation of the RCP is not asintuitive as the counterfactual formulation, which raises the questionof why the counterfactual baseline is more intuitive. I noted inSection II.B that the RCP on a counterfactual baseline is appealingprimarily because it can seem that the best way to test whether apatient’s claim pushes to make others worse off is to imagine thecounterfactual in which the patient is simply not present. I noted thatthis appeal is illusory, because it ignores the alternative account thatmakes more substantive moral sense: the toolkit baseline. I offer heretwo speculative reasons to account for the misguided appeal of theRCP using a counterfactual baseline. I then assess the plausibility ofthe reformulated RCP, given that it has less intuitive appeal.

The appeal of the counterfactual baseline rests, I suggest, in parton the fact that the counterfactual baseline is morally relevant. Asnoted at the end of Section II.B, I do not want to deny that patientswhose presence makes others better off – like the sidetrack manprotecting others – should get some credit for the good they do; nordo I want to deny that patients whose presence makes others worse

49 I am indebted to Hallie Liberto and Sharon Street for pressing this worry.



off – like the massive man displacing a moose – should carry someburden for the harm they do or the good they interfere with. I thinkthat counterfactual credit is relatively slight compared with what theMP and RCP are trying to capture. But differences in degrees are notalways obvious.

Second, the counterfactual baseline is much easier to state thanthe toolkit baseline. The latter rests on the thought that agents dividethe world between themselves, and that the claims of patients (whoare also agents) can push to restrict that freedom. This requires us toattend to a distinction that is often overlooked: that between theagent and the patient point of view. Indeed, we must recognizeanother subtle duality with regard to those with non-restrictingclaims. Their claims are non-restricting patient-claims, because theyconcern what an agent may do to them; but they are non-restrictingpatient-claims because they reflect the claimant’s status as a fellowagent. These ideas are less easily grasped than the two ideasunderlying the counterfactual baseline: (a) that the moral significanceof a patient’s claim rests on the fact that it might push to restrict anagent’s freedom, and (b) that the way to measure that significance iswell modeled by imagining the patient not to be present.

Ultimately, given the problems discussed in Section II, we mustconclude that the counterfactual test is, at best, a convenient crutchfor intuition, a heuristic. It reflects an intuitively simple and easy tograsp model for how a patient’s claims can make a difference. Butthe model breaks down in certain cases. More importantly, it pre-supposes that the massive man, the drug owner and others whoseproperty claims in some sense limit the freedom of agents do not doso in a way that should be seen as restricting. It presupposes,therefore, a deeper moral account of why such property claimsshould be seen as non-restricting. It presupposes, that is, the toolkitbaseline.

This brings me back to a final question for the reformulated RCP– one that I asked of the original RCP: Can it claim any support fromour intuitions on the cases? Is it not too subtle and unintuitive to bethe sort of thing that could possibly account for our intuitions?50

Certainly the average person asked about whether it is permissible totopple the massive man in front of a trolley to save five does not

50 See TMP, § IV.

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think about the fact that the world is divided up by agents in a waythat determines what each agent has in her baseline toolkit.

Nonetheless, I think we can say that RCP is supported by theintuitions people have on the cases. While people’s intuitions arenotoriously weak and path dependent, they do seem to allow peopleto recognize the basic idea that using as a means, without consent, ismorally problematic.51 And for the most part the RCP tracks the MP;it differs only insofar as it has a broader range of implications – asshown by Armor.52 Moreover, the match between the revised RCPand moral intuitions is not a mere coincidence. If it were a merecoincidence, if awareness of the RCP at some level plays no role inthe production of the relevant moral intuitions, and if the RCP is therelevant moral principle, then we would have no reason to trust thatthe intuitions have any moral-epistemic value. Their productionwould be disconnected from the moral truth; they could just as wellbe mere prejudices. That would negate the value, in reflectiveequilibrium, of successfully mapping them. But if there is some wayin which a dim appreciation of an approximation of the RCP filtersinto people’s intuitive judgment, then the match can have value inreflective equilibrium.

I believe such a connection exists. The more intuitive counter-factual baseline model of the RCP connects to basic ideas such asthat of being a moral obstacle or being an independent bystander (touse Øverland’s intuitive labels). If these ideas help explain the intu-itions (as they may well do), then articulating them and cleaning upthe formulation, putting it on sounder moral footing, is a legitimateway to pursue reflective equilibrium.

IV. CONCLUSION

I end by considering two last objections, and then summing up. Thefirst objection is that the revised RCP cannot make sense of theintuitive idea that those who have non-restricting claims can claimthe status of independent bystanders. There is nothing particularly‘independent’ about being an agent who claims some of the world’s

51 See F. Cushman, L. Young, & M.D. Hauser, ‘The Role of Reasoning and Intuition in MoralJudgments: Testing Three Principles of Harm’, Psychological Science 17 (2006): 1082–1089.

52 There are cases both get intuitively wrong, as will be discussed in the Appendix. But these arecases in which I think that we should, as a matter of reflective equilibrium, reject the commonintuitions.



resources for oneself. One may claim only one’s fair share; one may,by being a productive member of society, produce more resourcesthan one consumes; but one will nevertheless be laying claim toresources that others could use.

In response I want to say that this objection presupposes a naïveconception of independence. Independence does not have to bemodeled on an existence completely separate from others, as if onelived on a distant planet with no causal connection to the Earth. Weare concerned with moral, not causal, independence. Moral inde-pendence has to be made sense of within a moral scheme thatultimately puts people in a moral community with each other. Sucha moral scheme will have to make use of background norms, notcausal independence. Those background norms should allow agentsto devote most of their energies to pursuing their own ends as longas they do not cause excessive harm to others – where ‘excessive’ ismeasured in terms of a theory of rights, rather than the mere size ofthe harm. The RCP articulates a patient-analog of that sort ofindependence. It articulates how they can make claims that shouldnot be taken to restrict the baseline freedom of others, because thoseclaims reflect the prior division of the world between agents, adivision that sets the baseline freedom of agents.

The second objection is that reframing the RCP in terms of thetoolkit baseline may seem to be an exercise in circular reasoning.That is because, on a superficial reading, it seems to account for theMP by appealing to the importance of the distinction between claimsover the means an agent might use and claims that concern the sideeffects of what she does with her means. In other words, it may seemthat its explanation of the MP illicitly presumes the truth of the MP.

That superficial reading sells short the insights the RCP provides.First, it has an explanatory structure that is different from the MP: itfocuses on explaining why claims not to be harmed as a side effectare relatively weak, as well as on why claims not to be harmed as ameans are relatively strong; and it explains why restricting claims areweaker than non-restricting claims by reference to a global balanceof claims on an agent, getting past the MP’s focus on a dyadicrelationship between agent and patient. Second, those differencesreflect the fact that it relies on the idea of a patient analog to anagent imposing a negative externality – an idea completely missing

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from the MP, but with great moral explanatory force. Third, whilethe baseline for making sense of the distinction between claims thatimpose something like a negative externality and those that do notseems to trade on ideas similar to those in the MP, the ground forusing those ideas is not an appeal to the MP; it is an appeal tofundamental principles that shape the normative space of rights.These include: that agents have a fundamental right to pursue theirown ends, that property rights are essential for their doing so, thatagents must therefore conceive of the world’s resources as dividedbetween them, that the resources they have play an important rolein defining their baseline freedom, and that patient-claims that donot reflect the agent-based division of the world have to register in adifferent way – this last point being the agent–patient divide. Fourth,this account in terms of the agent–patient divide allows us to makesense of the moral significance of a patient’s causal role, one of themysteries undermining the plausibility of the MP. On the revisedRCP, the relevance of a patient’s causal role arises out of the rele-vance of an agent having the basic freedom to use her toolkit –something with obvious moral relevance.

A proper theory of rights has to articulate what rights do for us. Iclaim that they provide the structure of a normative space in whichwe can lead our own lives as free and equal beings, whose welfarematters from a moral point of view. As such, they function to shapea normative space that gives practical meaning to their foundingprinciples. Among the ways they do that is by representing the factthat some patient-claims (non-restricting ones) reflect the basicdivision of the world between agents, while others (restricting ones)reflect the moral significance of the effects on patients of agentsusing the means available to them. Restricting claims, because theypush to restrict an agent relative to her baseline freedom of action,and thereby push to impose something like negative externalities onothers, should be weaker, all else equal, than non-restricting claimsthat do not play that role.

ACKNOWLEDGEMENTS

I am grateful to David Alm, Christian Barry, Garrett Cullity, Kim Ferzan,Johann Frick, Hallie Liberto, Kasper Lippert-Rasmussen, Maggie Little, Jeff



McMahan, Alison McQueen, Philip Pettit, David Plunkett, HenryRichardson, Toni Rønnow-Rasmussen, Gideon Rosen, Jonathan Schaffer,Lucas Stanczyk, Anna Stilz, Sharon Street, Victor Tadros, Patrick Tomlin,and audiences at the fellows seminar at Princeton University’s Center forHuman Values, the University of Lund, and the Conference on Respondingto Global Poverty at the University of Oslo for their helpful discussion ofthemes in this paper.

V. APPENDIX

In ‘Transcending the Means Principle’, I claimed that the RCP couldcapture certain widely shared intuitions on two well-known cases. Inow see that it cannot. It handles these cases no worse than the MP,and thus this failure is no reason to reject the RCP while continuingto accept the MP. Nonetheless, to preempt others raising these casesas objections, I want to raise them here, and suggest that the intu-itions themselves are on less solid ground than the RCP. In reflectiveequilibrium, it is the intuitions that should be jettisoned, not theRCP.

A. Loop Trolley53

Loop Trolley is a case like Sidetrack except that the track behind thefive and one is connected so that if the one set of people were notpresent, the trolley would hit the other set one way or another, i.e.,from the front or coming around from the back.54 Many peoplebelieve that the agent should be as free to turn the trolley in LoopTrolley as in Sidetrack. In ‘Transcending the Means Principle’, I ar-gued that the RCP, using a counterfactual baseline, could account forthat intuition in a simple, direct manner.55 I argued that both sets ofclaims were non-restricting: recognizing the one’s claim not to be hitas a right makes the five no worse off than if he were not there, andrecognizing the five’s claim to be saved as a right makes the one noworse off than if they were not there. I then said that these con-

53 I am grateful to Johann Frick for pushing me to be clearer about why the different versions of theRCP give different accounts of this case.

54 The original Loop Trolley case was published by Judith Jarvis Thomson in ‘The Trolley Problem’,op. cit., p. 102.

55 TMP, § III. A.

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flicting non-restricting claims should cancel out the same way therestricting claims in Sidetrack cancel out. This left the balance be-tween five positive claims and one negative claim, a balance thatshould be handled the same as in Sidetrack.

Now, using the toolkit baseline, an underlying asymmetryemerges. To see this, consider two dialogs between the agent andthe patients on both sides. The one can say to the agent: ‘I am not inyour toolkit; you may not use me to save the others’. The agent mayreply: ‘I am not using you to save them; I am merely turning thetrolley away from them’. But the one can respond in turn: ‘If mybeing hit would not stop the trolley from hitting the five, you wouldclearly have no reason to turn it; indeed, it would be impermissibleto turn it because you would just add my death to theirs. Thus youmust be relying on my serving as the means of stopping the trolleyto justify turning it. But again, I am not in your toolkit’. This lastresponse is, I believe, convincing.

Contrast that dialog with the dialog that would occur betweenthe five and the agent. The five may make the same opening gambit:‘We are not in your toolkit; you may not use us to save the one’. Butnow the agent has a different sort of reply: ‘I would not choose tohave you be hit as a means of saving the one; if I could lower aladder down so that you could get out of the way, I would feelobliged to do so even though your getting out of the way wouldallow the one to die. But I lack that option. Instead, you are askingme to kill the one, and I have a right not to kill on your behalf’. Tothis the five may say: ‘Yes, you have a right not to kill for us, but youwould have the same right in Sidetrack; the important point is thatyou are also permitted to kill in both cases’. Here, however, theargument of the five breaks down. The agent should say in her finalreply: ‘In Sidetrack I have the right to turn the trolley onto thesidetrack man because his claim is restricting and your claims col-lectively outweigh his. In this case, however, the one has a non-restricting claim. Your claims that I turn onto him are, by contrast,restricting. They push to restrict me from doing what I have abaseline freedom not to do, namely not to turn the trolley onto him.Accordingly, your claims lose in the balance, and I may not turnonto him. I am terribly sorry, but I may not save you’.



The reason Loop Trolley comes out differently on the counter-factual and the toolkit baselines is that the fundamental idea shiftsfrom one baseline to the other. The counterfactual baseline takesrestricting to be the fundamental explanatory notion. A claim is non-restricting if it is not restricting, and a claim is restricting only ifrespecting it as a right makes others worse off than if the patient withthe claim were not present. In that framework, it is possible to haveconflicting non-restricting claims. On the toolkit baseline, the RCPrests on the agent–patient divide. On one side of the divide, claimscount as restricting, on the other side they count as non-restricting.Given that the possibility of inaction is in an agent’s toolkit, it is nolonger possible to get conflicting non-restricting claims.

This is also where the MP comes out; the dialog between the agentand the five could easily be recast in MP terms. The conflict withintuition is a bullet both theories have to bite.56 But it seems a fairbullet to bite. One’s intuition may be misled by the fact that, asThomson once put it, ‘we cannot really suppose that the presence orabsence of that extra bit of track makes a major moral difference as towhat an agent may do in these cases’.57 Alternatively, one’s intuitionmay be misled by the symmetry in the case: the fact that the fivecannot live without the one being hit, and the one cannot livewithout the five being hit. But an ‘extra bit of track’ can change thecausal structure in important ways, and the symmetry of the casemasks a deeper asymmetry. I conclude that intuition is simply not areliable guide in this case, and that the RCP is better supported than it.

B. Rescue Ahead

Consider now this case, in which the RCP may seem to be toopermissive.

Rescue Ahead: Doctor A is on a train rushing down the line to save five who are inimminent danger of death. In the distance ahead she sees someone trapped on thetrack (the ‘trapped ahead man’). Unless she stops the train, the trapped-ahead man

56 Frances Kamm tries to avoid the conclusion that the agent must intend that the one be used as ameans of saving the five by distinguishing between doing X in order to bring about Y, and doing Xbecause of Y. See Intricate Ethics, op. cit., pp. 154–157. For reasons spelled out by Michael Otsuka, I findher account implausible. See ‘Double Effect, Triple Effect and the Trolley Problem: Squaring the Circlein Looping Cases’, Utilitas 20 (2008): 92–110.

57 ‘The Trolley Problem’, op. cit., p. 102.

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will be killed. If she stops the train, however, the rescue mission will be abortedand the five will die.58

Many people think that she may not allow the train to continue.That, however, is a problem for the RCP, as I now conclude that itshould treat the trapped ahead man’s claim as restricting.

This is a reversal from my earlier position. I had argued beforethat the RCP has the resources to handle the common intuition inRescue Ahead, because (a) his claim to the track on which he sits is aproperty-like claim,59 and (b) Dr. A needs to use that track to carryher to the five so that she can help them. In other words, I used tothink that the following argument worked: The track has to be partof Dr. A’s toolkit, and the trapped ahead man has a prior, property-like claim over it. It is only a property-‘like’ claim – he can’t sell it, oreven choose to stay put given the option to move. Nonetheless, hecan rightfully claim: ‘Unless and until I can move or be moved, Ihave a right to occupy this track which preempts other uses of it’. Ifwe grant him this kind of priority over the use of the track, then it isperfectly appropriate to say that Dr. A’s use of it is outside hertoolkit. Moreover, the five’s empowering claims would fall short,given that his interest – which grounds his property-like claim – is instaying alive. This would explain why Dr. A must respect his claimto not to be killed as a non-restricting claim.

The problem with this argument is that it is not clear why weshould grant the trapped ahead man such a strong property-likeclaim over the stretch of track on which he sits.60 One might say thatit is simply a feature of our use of rights that those who are first in aspace have a property-like claim over it. But if this is the thought, itruns into problems with the following variation on Rescue Ahead.

Collision Course: The conditions are the same as in Rescue Ahead, except the trappedahead man is replaced by someone (the ‘collision course man’) who is strappedonto a flimsy sidecar that is rolling down a sidetrack so that it will arrive at the

58 TMP, p. 456. The roots of this case lie in a case originally given by Philippa Foot in ‘Killing andLetting Die’, in J. Garfield and P. Hennessey, eds., Abortion: Moral and Legal Perspectives (Amherst:University of Massachusetts Press, 1984), pp. 179–180.

59 For a similar analysis, in MP terms, see Jonathan Quong, ‘Killing in Self-Defense’, Ethics 119(2009): 507–537, pp. 526–528.

60 I am indebted to Kim Ferzan for pressing me on this point. For her published views on this point,see Kimberly Kessler Ferzan, ‘Self-Defense, Permissions, and the Means Principle: A Reply to Quong’,Ohio State Journal of Criminal Law 8 (2011): 503–513.



spot where the sidetrack joins with the main track more or less at the momentwhen the train is coming along.61

We can imagine that the collision course man will get there a splitsecond ahead of the train or a split second after the train. Either way,he will be crushed and killed. Can it be that Doctor A should try tospeed up just to make sure that she gets to the intersection first? Thisseems implausible. Imagine that speeding up would introduce a tenpercent chance of derailing, injuring Doctor A and others on thetrain, as well as preventing the rescue of the five. It seems a badtradeoff to introduce any such risk just to ensure that the train beatsthe sidecar to the merger spot, killing the collision course man justthe same. I acknowledge that right-of-way notions have some moralweight. But they seem too slim a thread on which to let four extradeaths hang. And where they seem irrelevant to permissibility, it alsoseems pointless and officious to fuss about them by doing things likespeeding up the train.

I don’t deny that it is hard to stomach the thought of choosing torun over the collision course man to save others. The point is thatthis moral reaction seems to be independent of whether he gets tothe track ahead of or behind the train. But that just shows that thereaction cannot be a reflection of the collision course man’s ‘prior,property-like claim’ over the track.

If no property-like claim will explain why the collision course manmay not be killed, and if killing him is just as intuitively impermis-sible as killing the trapped ahead man, that suggests that somethingelse explains the common intuitions in both cases. The explanationthat seems most likely to me now is that people are uncomfort-able exercising direct physical force on another.62 Even if Doctor A ismerely allowing the train to run over the trapped ahead man or thecollision course man, she would still likely see herself as ‘runninghim over’, or choosing that he be run over, in order to get to whereshe wants to be in time to save the others. But if the intuition reflectssqueamishness about direct involvement, then it properly calls for anagent-prerogative (protection for the squeamish agent), rather than aprohibition (protection for the right-holding patient).

61 I am indebted to Gideon Rosen for suggesting this case to me.62 See, e.g., Greene, J. D., Cushman, F. A., Stewart, L. E., Lowenberg, K., Nystrom, L. E., & Cohen,

J. D., ‘Pushing moral buttons: The interaction between personal force and intention in moral judg-ment’, Cognition 111 (2009): 364–371.

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Again, the same problem would arise for the MP. And again, Ithink the best position in terms of reflective equilibrium is to rejectthe intuition as unsound and stick with the RCP. Of course, there isalways a danger, if one accepts a theory and rejects an intuition, thatone has simply failed to construct a more plausible theory thatwould make as much deep theoretical sense and also accommodatethe intuition that one cannot, with one’s current theory, make senseof. But I think it is important to reject the sort of theorizing thatreaches for a principle if it seems to explain an intuition if one cannotalso see how using that principle in that way is well grounded fromthe point of view of an overarching theory of deontology. I leave itan open challenge to others to construct a better theory – one thateither complements or replaces the RCP, is equally well grounded indeep moral commitments, and better accounts for these or othercommon intuitions that the RCP cannot account for. For now, theRCP seems to me the best theory on offer.

Law, Philosophy and Criminal Justice,Rutgers University, Camden, NJ, USAE-mail: [email protected]



the restricting claims principle revisited: grounding the means principle on the agent– patient...

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