Counterfactual Principles

Maybe our mistake is to focus on actual circumstances. So let us try some counterfactuals about what would happen in possible worlds that are not actual. Different counterfactuals are used by different versions of rule-consequentialism.24

One counterfactual is built into the common question, ''What would happen if everybody did that?'' This question suggests a principle:

The general action principle: I have a moral obligation not to perform an act when it would be worse for everyone to perform an act of the same kind.25

It does seem likely that, if everyone in the world drove a gas-guzzler often enough, global warming would increase intolerably. We would also quickly run out of fossil fuels. The general action principle is, thus, supposed to explain why it is morally wrong to drive a gas-guzzler.

Unfortunately, that popular principle is indefensible. It would be disastrous if every human had no children. But that does not make it morally wrong for a particular individual to choose to have no children. There is no moral obligation to have at least one child.

The reason is that so few people want to remain childless. Most people would not go without children even if they were allowed to. This suggests a different principle:

The general permission principle: I have a moral obligation not to perform an act whenever it would be worse for everyone to be permitted to perform an act of that kind.

This principle seems better because it would not be disastrous for everyone to be permitted to remain childless. This principle is supposed to be able to explain why it is morally wrong to steal (or lie, cheat, rape, or murder), because it would be disastrous for everyone to be permitted to steal (or lie, cheat, rape, or murder) whenever (if ever) they wanted to.

Not quite. An agent is permitted or allowed in the relevant sense when she will not be liable to punishment, condemnation (by others), or feelings of guilt for carrying out the act. It is possible for someone to be permitted in this sense without knowing that she is permitted and, indeed, without anyone knowing that she is permitted. But it would not be disastrous for everyone to be permitted to steal if nobody knew that they were permitted to steal, since then they would still be deterred by fear of punishment, condemnation, or guilt. Similarly for lying, rape, and so on. So the general permission principle cannot quite explain why such acts are morally wrong.

Still, it would be disastrous if everyone knew that they were permitted to steal (or lie, rape, etc.). So we simply need to add one qualification:

The public permission principle: I have a moral obligation not to perform an act whenever it would be worse for everyone to know that everyone is permitted to perform an act of that kind.26

Now this principle seems to explain the moral wrongness of many of the acts we take to be morally wrong, since it would be disastrous if everyone knew that everyone was permitted to steal, lie, cheat, and so on.

Unfortunately, this revised principle runs into trouble in other cases. Imagine that 1000 people want to take Flight 38 to Amsterdam on October 13, 2003, but the plane is not large enough to carry that many people. If all 1,000 took that particular flight, then it would crash. But these people are all stupid and stubborn enough that, if they knew that they were all allowed to take the flight, they all would pack themselves in, despite warnings, and the flight would crash. Luckily, this counterfactual does not reflect what actually happens. In the actual world, the airline is not stupid. Since the plane can safely carry only 300 people, the airline sells only 300 tickets and does not allow anyone on the flight without a ticket. If I have a ticket for that flight, then there is nothing morally wrong with me taking the flight along with the other 299 who have tickets. This shows that an act is not always morally wrong when it would (counterfactually) be disastrous for everyone to know that everyone is allowed to do it.27

The lesson of this example applies directly to my case of driving a gas-guzzler. Disaster occurs in the airplane case when too many people do what is harmless by itself. Similarly, disaster occurs when too many people burn too much fossil fuel. But that does not make it wrong in either case for one individual to perform an individual act that is harmless by itself. It only creates an obligation on the part of the government (or airline) to pass regulations to keep too many people from acting that way.

Another example brings out another weakness in the public permission principle. Consider open marriage. Max and Minnie get married because each loves the other and values the other person's love. Still, they think of sexual intercourse as a fun activity that they separate from love. After careful discussion before they got married, each happily agreed that each may have sex after marriage with whomever he or she wants. They value honesty, so they did add one condition: every sexual encounter must be reported to the other spouse. As long as they keep no secrets from each other and still love each other, they see no problem with their having sex with other people. They do not broadcast this feature of their marriage, but they do know (after years of experience) that it works for them.

Nonetheless, the society in which Max and Minnie live might be filled with people who are very different from them. If everyone knew that everyone is permitted to have sex during marriage with other people as long as the other spouse is informed and agreed to the arrangement, then various problems would arise. Merely asking a spouse whether he or she would be willing to enter into such an agreement would be enough to create suspicions and doubts in the other spouse's mind that would undermine many marriages or keep many couples from getting married, when they would have gotten or remained happily married if they had not been offered such an agreement. As a result, the society will have less love, fewer stable marriages, and more unhappy children of unnecessary divorce. Things would be much better if everyone believed that such agreements were not permitted in the first place, so they condemned them and felt guilty for even considering them. I think that this result is not unrealistic, but here I am merely postulating these facts in my example.

The point is that, even if other people are like this, so that it would be worse for everyone to know that everyone is permitted to have sex outside of marriage with spousal knowledge and consent, Max and Minnie are not like this, and they know that they are not like this, so it is hard to believe that they as individuals have a moral obligation to abide by a restriction that is justified by other people's dispositions. If Max and Minnie have a joint agreement that works for them, but they keep it secret from others, then there is nothing immoral about them having sex outside of their marriage (whether or not this counts as adultery). If this is correct, then the general permission principle fails again.

As before, the lesson of this example applies directly to my case of driving a gas-guzzler. The reason why Max and Minnie are not immoral is that they have a right to their own private relationship as long as they do not harm others (such as by spreading disease or discord). But I have already argued that my driving a gas-guzzler on this Sunday afternoon does not cause harm. I seem to have a right to have fun in the way I want as long as I do not hurt anybody else, just like Max and Minnie. So the public permission principle cannot explain why it is morally wrong to drive a gas-guzzler for fun on this sunny Sunday afternoon.28

One final counterfactual approach is contractualism, whose most forceful recent proponent is Tim Scanlon.29 Scanlon proposes:

The contractualist principle: I have a moral obligation not to perform an act whenever it violates a general rule that nobody could reasonably reject as a public rule for governing action in society.

Let us try to apply this principle to the case of Max and Minnie. Consider a general rule against adultery, that is, against voluntary sex between a married person and someone other than his or her spouse, even if the spouse knows and consents. It might seem that Max and Minnie could not reasonably reject this rule as a public social rule, because they want to avoid problems for their own society. If so, Scanlon's principle leads to the same questionable results as the public permission principle. If Scanlon replies that Max and Minnie can reasonably reject the anti-adultery rule, then why? The most plausible answer is that it is their own business how they have fun as long as they do not hurt anybody. But this answer is available also to people who drive gas-guzzlers just for fun. So this principle cannot explain why that act is morally wrong.

More generally, the test of what can be reasonably rejected depends on moral intuitions. Environmentalists might think it unreasonable to reject a principle that prohibits me from driving my gas-guzzler just for fun, but others will think it reasonable to reject such a principle, because it restricts my freedom to perform an act that harms nobody. The appeal to reasonable rejection itself begs the question in the absence of an account of why such rejection is unreasonable. Environmentalists might be able to specify reasons why it is unreasonable, but then it is those reasons that explain why this act is morally wrong. The framework of reasonable rejection becomes a distracting and unnecessary side step.30

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