DEATH AND ANTI-DEATH,
VOLUME 19:
One Year After
Judith Jarvis Thomson
(1929-2020)
Charles Tandy, Editor
Ria University Press
www.ria.edu/rup
www.riaUpress.com
2021
Printed in the United States of America
Ria University Press
Ann Arbor, Michigan
-5-
Death And Anti-Death, Volume 19:
One Year After
Judith Jarvis Thomson (1929-2020)
Charles Tandy, Editor
FIRST PUBLISHED IN HARDBACK AND SOFTBACK 2021
PUBLISHED BY
Ria University Press
PO Box 4337
Ann Arbor, Michigan 48106 USA
www.ria.edu/rup
www.riaUpress.com
Distributed by Ingram
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Copyright © 2021 by Charles Tandy
Hardback/Hardcover ISBN: 978-1-934297-35-3
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CHAPTER SEVEN
Murderer At The Switch:
Thomson, Kant, And The Trolley Problem
James Edwin Mahon
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In his book, Kant, Paul Guyer makes the claim that, with respect
to the infamous trolley case found in the writings of Judith Jarvis
Thomson, Kant’s moral philosophy supports throwing the railroad
switch and diverting a runaway train to a sidetrack so that it kills
just one person, instead of not throwing the railroad switch and
allowing the runaway train to continue on its track and kill five
people.1 As he writes:
The same reasoning may apply in the case of homicide as well
(which Kant does not actually discuss). Again, we may
initially regard the prohibition of homicide as absolute, but in
fact we do recognize exceptions to this prohibition. Thus, we
acknowledge that the right to self-defense may sometimes
license killing an attacker, and that means that we cannot think
of the inviolability of each human life as if it were
independent of all others, but rather recognize that sometimes
one life can be preserved only at the cost of another, and that
in certain circumstances one may have the right to preserve his
or her own life rather than that of another. In this case, the
reason for that right may be that one is innocent of any crime
while one’s attacker is not. But there will be other cases in
which all the parties involved are equally innocent of any
crime and yet they still cannot all be saved. To take one wellworn example, imagine that an out-of-control train is racing
toward a switch where you just happen to be standing, and that
a van with a family of six is stuck on the track to which the
train will switch if you do nothing while a car with just one
occupant is stuck on the other track. You might well think that
it is not merely permissible but even obligatory for you to
throw the switch so that only one person is killed by the train
rather than six – your intervention will cause the death of the
one, to be sure, but your decision to leave the switch as it is
will cause the death of the six, and that decision not to throw
the switch would be just as much of an action on your part as
your physical act of throwing the switch. If you accept this
reasoning, you will be reasoning that if humanity is always an
end, your duty is to preserve as many instances of humanity as
1
In his rendering of the case, Guyer increases the number of people in
the train’s path to six and makes them a family.
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possible, and that in unfortunate cases where for reasons
beyond your own control not everyone can possibly be saved,
then your duty is always to show your respect for humanity as
an end in itself by saving more rather than fewer humans.2
Commenting on his own claim that abiding by Kant’s Categorial
Imperative makes it “not merely permissible but even obligatory”
to throw the switch and kill the one person, Guyer says that “any
plausible moral theory must justify and require” doing this, and
that Kant’s moral theory is no exception:
Some philosophers seems [sic] to think these sorts of cases are
very difficult, arguing that since you were not the one who set
the switch and sent the train careening down the track in the
first place, you will not be responsible for any deaths if the
train follows its predetermined course and kills the six, but if
you intervene and reset the switch, then you will be
responsible for one death and will therefore be blameworthy.
That seems crazy. Life is surely unfair, for otherwise nobody
would be stuck on the tracks and you would not be the one
who has to decide between saving one and saving six; but
given those circumstances, surely you must save six rather
than one, and any plausible moral theory must justify and
require that choice. I have suggested an interpretation of
Kant’s theory on which it does.3
I contend that Guyer is quite wrong here, both about moral
theories in general and about Kant’s moral theory. It is not the
case that any plausible moral theory must justify and require
throwing the railroad switch and killing the one person and saving
the five (or six). Later in her career, Thomson changed her mind
and decided that throwing the switch is prohibited. Kant’s moral
theory, meanwhile, does prohibit throwing the switch.
Before explaining why Kant’s moral theory prohibits
throwing the switch, it is worth examining in some detail Judith
Jarvis Thomson’s path to the same conclusion.
2
3
Paul Guyer, Kant (NY: Routledge, 2006), 198.
Ibid., 397, n. 21.
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The Runaway Tram and Positive and Negative Duties
The runaway trolley case first appeared in Thomson’s “Killing,
Letting Die, and the Trolley Problem” in 1976.4 Importantly, the
case is different to the case that inspired it, which was a case of a
runaway tram.5 This runaway tram case will be discussed first.
The runaway tram case first appeared in Philippa Foot’s
“Abortion and the Doctrine of Double Effect” in 1967, 6 in the
following form:
[I]t may rather be supposed that he is the driver of a runaway
tram which he can only steer from one narrow track on to
another; five men are working on one track and one man on
the other; anyone on the track he enters is bound to be killed.7
The runaway tram case is contrasted by Foot with a case of
framing and executing an innocent person to prevent a riot – a case
which was not original to Foot but which could be found in the
literature on utilitarianism (Foot purged the case its racism,
however8):
4
Judith Jarvis Thomson, “Killing, Letting Die, and the Trolley Problem,”
Monist (1976), 204-217.
5
As Thomson says, “Since trams are trolleys on this side of the Atlantic,
I called this “the trolley problem.” (Besides, that is more euphonious than
“the tram problem.”)” (“Turning the Trolley”, Philosophy and Public
Affairs 36 (2008), 363). Note that it is often discussed in terms of a
runaway train (e.g., Guyer, op cit.), even if people still refer to it as the
“trolley problem.”
6
Philippa Foot, “Abortion and the Doctrine of Double Effect,” The
Oxford Review 5 (1967), reprinted in Virtues and Vices and Other Essays
in Moral Philosophy (California: University of California Press, 1978),
19-32.
7
Ibid., 23.
8
The original case of framing and executing an innocent person to
prevent a riot was explicitly set in a racist context. The Australian
philosopher H. J. McCloskey, in an article rejecting restricted (or rule-)
utilitarianism, came up with the following case: “Suppose that a sheriff
were faced with the choice either of framing a Negro for a rape that had
aroused hostility to the Negroes (a particular Negro generally being
believed to be guilty but whom the sheriff knows not to be guilty) – and
thus preventing serious anti-Negro riots which would probably lead to
some loss of life and increased hatred of each other by whites and
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Suppose that a judge or magistrate is faced with rioters
demanding that a culprit be found for a certain crime and
threatening otherwise to take their own bloody revenge on a
particular section of the community. The real culprit being
unknown, the judge sees himself as being able to prevent the
bloodshed only by framing some innocent person and having
him executed.9
In the case of the runaway tram, Foot says that “we should say,
without hesitation, that the driver should steer for the less
occupied track,”10 whereas “most of us would be appalled at the
idea that the innocent man could be framed.”11
Foot resolves the problem of reconciling these two
different responses to two seemingly similar cases by appealing to
a distinction between negative and positive duties:
Let us speak of negative duties when thinking of the
obligation to refrain from such things as killing or robbing,
and of the positive duty, e.g., to look after children or aged
parents. It will be useful, however, to extend the notion of
positive duty beyond the range of things that are strictly called
duties, bringing acts of charity under this heading.12
Foot argued that these two cases were importantly different when
understood in terms of negative and positive duties. In the case of
the runaway tram, there was merely a conflict between two
negative duties (do not kill one person versus do not kill five
people):
Negroes – or of hunting for the guilty person and thereby allowing the
anti-Negro riots to occur, while doing the best he can to combat them”
(“Restricted Utilitarianism,” Philosophical Review (1957), 468). With its
sheriff” and “Negro” references, the case is clearly set in the racist U.S.
The entire history of the U.S. is a history of slavery and racism – see, for
example, The 1619 Project from The New York Times
[https://www.nytimes.com/interactive/2019/08/14/magazine/1619america-slavery.html] accessed 10/29/2021).
9
Foot, ibid.
10
Ibid.
11
Ibid.
12
Ibid., 27.
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The steering driver faces a conflict of negative duties,
since it is his duty to avoid injuring five men and also his
duty to avoid injuring one. In the circumstances he is not
able to avoid both, and it seems clear that he should do the
least injury he can.13
As Thomson summarizes Foot’s conclusion (giving the name
‘Edward’ to the runaway tram driver): “Whichever Edward does,
turn or not turn, he kills. There is, for Edward, then, not a conflict
between a positive duty to save five and a negative duty to refrain
from killing one; there is, for Edward, a conflict between a
negative duty to refrain from killing five and a negative duty to
refrain from killing one. But this is no real conflict: a negative
duty to refrain from killing five is surely more stringent than a
negative duty to refrain from killing one. So Edward may, indeed
must, turn that trolley.”14
In the case of framing and executing the innocent person
to prevent a riot, by contrast, there was a conflict between a
negative duty and a positive duty (do not kill one person versus
rescue many people), with the negative duty winning out over the
positive duty, because the negative duty is more stringent:
The judge, however, is weighing the duty of not inflicting
injury against the duty of bringing aid. He wants to rescue the
innocent people threatened with death but he can do so only
by inflicting injury himself. Since one does not in general have
the same duty to help people as to refrain from injuring them,
it is not possible to argue to a conclusion about what he should
do from the steering driver case…. So it is not inconsistent of
us to think that the driver must steer for the road on which
only one man stands while the judge (or his equivalent) may
not kill the innocent person in order to stop the riots.15
Foot solves the problem of reconciling the two different responses
to two seemingly similar cases, then, by arguing that they are
importantly different cases when understood in terms of negative
13
Ibid.
Thomson, 1976, 206.
15
Ibid., 27-28.
14
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and positive duties. Since they are importantly different cases,
different responses are appropriate.
Thomson’s own conclusion about the runaway tram case
is weaker than Foot’s. She says that “my intuition tells me that it is
not required that he [the tram driver] turn it, but only that it is
permissible for him to do so.”16 Nevertheless, she agrees that there
is a difference between these two cases, which merits a different
response. However, ultimately, she is not interested in these two
cases.
Instead, she turns to a different case provided by Foot,
similar to the case of framing and executing of an innocent person,
and contrasts this case with her entirely new case involving a
runaway trolley.
The different case is a case of a killing one person to make
a serum from that person’s body that can save the lives of five
other people: “We can suppose, similarly, that several dangerously
ill people can be saved only if we kill a certain individual and
make a serum from his dead body.”17 Thomson’s own rendering of
Foot’s case is more elaborate:
David is a great transplant surgeon. Five of his patients need
new parts – one needs a heart, the others need, respectively,
liver, stomach, spleen, and spinal cord – but all are of the
same, relatively rare, blood-type. By chance, David leans of a
healthy specimen with that very blood-type. David can take
the healthy specimen’s parts, killing him, and install them in
his patients, saving them. Or he can refrain from taking the
healthy specimen’s parts, letting his patients die.18,19
16
Ibid., 207.
Ibid., 24. As can be imagined, Foot says about this case that the
negative duty not to kill is more stringent than the positive duty to save
lives: “if we consider killing a man in order to use his body to save
others, we are thinking of doing him an injury to bring others aid” (ibid.,
28).
18
Thomson, 1976, 206.
19
One of my most brilliant former students, Elizabeth Brassfield,
currently completing a MD/PhD at UNC Chapel Hill, made the following
comment to me about this case in an e-mail many years ago: “While I
was reading and thinking about the three paper topics, I thought of
something that seemed interesting to me about the Transplant case. If the
17
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Foot never directly contrasts this case with her runaway
tram case. Thomson, however, does contrast these two cases from
Foot’s article, and indeed labels this very contrast the original
“trolley problem”20 of Philippa Foot:
it’s a lovely, nasty difficulty: why is it that Edward may turn
that trolley to save his five, but David may not cut up his
healthy specimen to save his five? I like to call this the trolley
problem, in honor of Mrs. Foot’s example.21
Even though Foot never contrasted the runaway tram case with the
surgeon case, it is clear that this is the contrast that she had in
mind when she compared the runaway tram case with framing and
executing the innocent person to prevent a riot case. Or, at least,
this contrast may be extracted from Foot’s article.
Importantly, however, Thomson is not as interested in
contrasting these two cases. As it were, she is not as interested in
Foot’s trolley problem. She is interested in comparing (her version
of) Foot’s surgeon case with her own, entirely original, runaway
trolley case, which is merely inspired by Foot’s tram case:
Frank is a passenger on a trolley whose driver has just shouted
that the trolley’s brakes have failed, and who then died of the
shock. On the track are five people; the banks are so steep that
they will not be able to get off the track in time. The track has
a spur leading off to the right, and Frank can turn the trolley
onto it. Unfortunately, there is one person on the right-hand
five patients in need of organ transplants all only need one organ to live,
then the rest of their organs must be functioning properly. If the healthy
patient is a perfect match for all five of the dying patients, then all five of
the dying patients must be matches for each other. Each one of the dying
patients has all four of the healthy organs required to save the other four
dying patients. So the doctor could chop up one of the patients dying of
organ failure to save the four other patients also dying of organ failure. I
don't know if this has any further implications for the problem, but it at
least eliminates the need of killing someone completely random to save
the patients in need of organ transplants.”
20
This name is somewhat ironic since Foot never talked about a trolley.
Her example involved a tram.
21
Thomson, ibid., 206.
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track. Frank can turn the trolley, killing the one, or he can
refrain from turning the trolley, letting the five die.22
Thomson’s runaway trolley case is importantly different
from Foot’s runaway tram case. In the tram case, the tram driver
either kills one or kills five. There is not a genuine conflict
between duties, since there is a negative duty to refrain from
killing five, and a negative duty to refrain from killing one. Hence,
the tram driver may steer the tram for the road in which he kills
only one person.
In Thomson’s runaway trolley case, by contrast, if the
passenger Frank “does nothing”, then “he kills no one. He at worst lets
the trolley kill the five; he does not himself kill them, but only lets
them die.”23 Hence, in the trolley case, the trolley passenger either
kills one or lets die five. There is a genuine conflict between duties,
since there is a negative duty to refrain from killing one, and a
positive duty to save five lives.
According to Foot’s argument, Thomson reasons, the
passenger on the runaway trolley must not turn the trolley on to the
sidetrack24 and kill the one; he must ‘do nothing’, and let the trolley
continue on the track and kill the five; he must ‘let die’ the five people
in the path of the trolley. This is because the negative duty to refrain
from killing one is more stringent than a positive duty to save five
lives:
by Mrs. Foot’s principles, the conflict for Frank [the trolley
passenger] is between the negative duty to refrain from killing
one, and the positive duty to save five, just as it was for David
[the transplant surgeon]. On her view, the former duty is the
more stringent: its being more stringent was supposed to
explain why David could not cut up his healthy specimen. So
by her principles, Frank may no more turn that trolley than
David may cut up his healthy specimen.25
However, Thomson disagrees with Foot about her own
runaway trolley case. She holds that it is permissible for the
22
Ibid., 207.
Ibid.
24
I use ‘sidetrack’ rather than ‘spur’ for clarity.
25
Ibid.
23
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passenger on the runaway trolley to turn the trolley on to the
sidetrack and kill the one person:
Yet I take it that anyone who thinks that Edward may turn his
trolley will also think that Frank may turn his. Certainly the
fact that Edward is driver, and Frank only passenger could not
explain so large a difference.26
In creating this new case, Thomson created a new trolley
problem, different from the original trolley problem of Foot. Her
trolley problem is that it is permissible for both the driver and the
passenger to turn the trolley, and it is impermissible for the
transplant surgeon to cut up the healthy person and distribute his
organs. Foot, by contrast, would argue that it is impermissible for
the passenger to turn the trolley, as well as it being impermissible
for the transplant surgeon to cut up the healthy person and
distribute his organs.
Because Thomson holds that it is permissible for the
passenger on the runaway trolley to turn the trolley on to the
sidetrack and kill the one person, she rejects Foot’s explanation of
why the tram driver may kill the one, and the transplant surgeon
may not kill the one, in terms of negative and positive duties. After
all, the passenger on the runaway trolley has a negative duty not to
kill the one, just like the transplant surgeon, and yet he may kill
the one, whereas the transplant surgeon may not kill the one. As
she says, “I am inclined to think that Mrs. Foot is mistaken.”27
There is a need for a new explanation of why both the tram driver
and the trolley driver may kill the one, and the transplant surgeon
may not kill the one: “So we stand in need, still, of a solution: why
can Edward [tram driver] and Frank [trolley passenger] turn their
trolleys, whereas David cannot cut up his healthy specimen?”28
This is the trolley problem that Thomson’s article sets out
to solve.
26
Ibid.
Ibid.
28
Ibid.
27
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The Runaway Trolley and Deflecting a Threat
In her effort to find the correct explanation of why both the tram
driver and the trolley driver may kill the one, and the transplant
surgeon may not kill the one, Thomson does not simply consider
the two trolley cases29 and the transplant case. She comes up with
a third trolley case. This is the case of the person on the footbridge
watching trolleys30:
George is on a footbridge over the trolley tracks. He knows
trolleys, and can see that the one approaching the bridge is out
of control. On the track back of the bridge there are five
people; the banks are so steep that they will not be able to get
off the track in time. George knows that the only way to stop
an out-of-control trolley is to drop a very heavy weight into its
path. But the only available, sufficiently heavy weight is a fat
man, also watching the trolley from the footbridge. George
can shove the fat man onto the track in the path of the trolley,
killing the fat man; or he can refrain from doing this, letting
the five die.31
Thomson believes that it is not permissible for George to shove
the other person off the footbridge to the track below, where he
will get killed by the trolley, and stop the trolley. Instead, he must
‘do nothing’, and let the five people on the track get killed by the
trolley: “Presumably George may not shove the fat man into the
path of the trolley; he must let the five die.”32
This third trolley case is the only trolley case of the three
Thomson considers (the driver case, the passenger case, and the
footbridge case) in which she holds that the one person may not be
killed and the five people must be let die. The question of the
explanation of the difference between the two trolley cases and the
29
For the sake of clarity, I shall group the runaway tram case and the
runaway trolley case together as ‘trolley’ cases.
30
I refer to this case as the person on the footbridge watching trolleys
instead of the “fat man” on the footbridge because I wish to avoid being
complicit in any possible fat shaming (see Matthew Hutson, “Trolleys,
Ethics, and Obesity”, ConscienHealth 2013 [https://conscienhe
alth.org/2013/04/trolleys-ethics-and-obesity/ accessed 10/30/2021]).
31
Ibid., 207-208.
32
Ibid., 208.
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transplant case is now a question of the difference between the
first two trolley cases and the third trolley case.
As Thomson says, it seems that there must be a way in
which the third trolley case is like the transplant case and unlike
the first two trolley cases: “Why may Edward and Frank turn their
trolleys to save their fives, whereas George must let his five die?
George’s shoving the fat man into the path of the trolley seems to
be very like David’s cutting up his healthy specimen. But what is
the relevant likeness?”33
The explanation that Thomson offers in this article is that
in the first two trolley cases what is involved is diverting an
existing threat from a larger to a smaller group of people, which is
permissible, whereas in the third trolley case (and the transplant
case) what is involved is creating a threat to a smaller group,
which is impermissible: “Perhaps the most striking difference
between the cases I mentioned in which the agent may act, and the
cases I mentioned in which he may not, is this: in the former what
is in question is deflecting a threat from a larger group on to a
smaller group, in the latter what is in question is bringing a
different threat to bear on a smaller group.”34
Strictly speaking, however, according to Thomson, this is
not a sufficient explanation of the difference. It must also be true
that the person against whom the trolley is directed, in the first two
trolley examples, is someone who has no more a claim against
being killed by the trolley than any of the five has: “Edward (or
Frank) may deflect his trolley if and only if the one has no more
claim against the trolley than any of the five has”.35 Thomson
imagines several scenarios in which the person on the sidetrack
has a greater claim against being killed by the trolley than the five
on the track. For example, if the person on the sidetrack is a
convalescent from the City Hospital having his lunch there
because he has been invited to do so by the Mayor, and the five on
the track are employees who have been warned of the dangers of
working on the trolley track and are paid higher salaries to
compensate for this danger, then it is impermissible to deflect the
33
Ibid.
Ibid.
35
Ibid., 210.
34
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threat to the sidetrack.36 In such a case, the convalescent on the
sidetrack has a greater claim against being killed by the trolley
than the five workmen on the track. Thomson also imagines the
opposite scenario, in which the person on the sidetrack has a lesser
claim against being killed by the trolley than the other five. For
example, if the person on the sidetrack is a schoolboy who knows
that he should not be there and who climbed over the fence and
ignored all of the warning signs, and the five on the track are all
regular track workmen repairing the track, then turning the trolley
so that it kills the schoolboy is obligatory, because the schoolboy
on the sidetrack has a lesser claim against being killed by the
trolley than the five workmen on the track: “At the risk of seeming
hardhearted about schoolboys, I have to say I think that… the
trolley not only may be, but must be turned.”37
Another way of explaining redirecting an existing threat
is distributing a bad thing. Thomson provides greater clarity about
the difference between the first two trolley cases and the third
trolley case in talking about distributing a bad thing.
In the case of the first two trolley cases, the driver,
Edward, and the passenger, Frank, are distributing something bad,
namely, a runaway trolley:
Here is something bad, up for distribution, a speeding trolley.
If nothing is done, five will get it, and one will not; so five
will die and one will live. It strikes us that it would be better
for five to live and one die than for one to live and five die,
and therefore that a better distribution of the bad thing would
be for the one to get it, and the five not to. If the one has no
more claim against the bad thing than any of the five has, he
cannot complain if we do something to it in order to bring
about that it is better distributed: i.e., it is permissible for
Edward and Frank to turn their trolleys.38
In the first two trolley cases, they are doing something to it, the
runaway trolley. However, this is not true of the third case in
which George, on the footbridge, shoves the other person onto the
36
Ibid.
Ibid., 211.
38
Ibid., 215.
37
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track in front of the runaway trolley. In the third case, George does
something to the person, and not merely to the runaway trolley:
But even if the one has no more claim against the bad thing
than any of the five has, he can complain if we do something
to him in order to bring about that the bad thing is better
distributed: i.e., it is not permissible for George to shove his
fat man off the bridge into the path of the trolley.39
There is, then, a difference between what is done in the first two
trolley cases and what is done in the third. In the first two cases,
turning the trolley is distributing the bad of the runaway trolley (or
deflecting the threat). One is not killing the one person in order to
distribute the bad of the runaway trolley (or deflect the threat). But
in the third trolley case, one is killing the one person in order to
distribute the bad of the runaway trolley (or deflect the threat):
By contrast George, if he acts, does something to the fat man
(shoves him off the bridge into the path of the trolley) to bring
about the better distribution of the trolley, viz., that the one
(the fat man) gets it instead of the five.40
What matters in these three cases in which a threat is to be
distributed (or deflected) is whether the agent distributes it by
doing something to the threat to distribute (or deflect) it, or by
doing something to the one person in order to distribute (or
deflect) the threat:
what matters in these cases in which a threat is to be
distributed is whether the agent distributes it by doing
something to it, or whether he distributes it by doing
something to a person.41
In the case in which George, on the footbridge, shoves the other
person onto the track in front of the runaway trolley, in order to
distribute the (or deflect) threat of the runaway trolley, in such a
39
Ibid.
Ibid.
41
Ibid.
40
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way as to have a better distribution of the threat, he does indeed do
something to the one person: he shoves the one person onto the
track in front of the runaway trolley.
This is what makes the third trolley case similar to the
transplant case (involving the surgeon, David), and different to the
first two trolley cases. In the transplant case, the surgeon does
something to the one person in order to distribute the threat,
namely, he cuts him up:
And then the special nastiness in David, if he acts, lies in this:
in the first place, he gives to five what belongs to the one (viz.,
bodily parts), and in the second place, in order to bring about a
better distribution of the ailments threatening his five – i.e., in
order to bring about that instead of the five patients getting
killed by them, nobody is – he does something to the one (viz.,
cuts him up).42
Thomson’s final explanation of the difference between the two
trolley cases and the third trolley case (and the transplant case) is,
thus, as follows: in the first two trolley cases, the threat (or the
bad) is diverted (or distributed) to the one person, and away from
the five, without anything being done to the one person in order to
divert the threat (or distribute the bad), whereas, in the third trolley
case (and the transplant case), something is done to the one person
in order to divert the threat (or distribute the bad) to the one
person, and away from the five.
The fact that something is done to the one person in both
the third trolley case and the transplant case makes those cases
different to the first two trolley cases. Hence, different responses
to these cases are appropriate.
Deflecting a Threat by Means that Infringe a Stringent Right
Thomson returned to these cases in her later article, “The Trolley
Problem,” in 1985.43 Here she presented the original trolley
problem of Foot, as she had conceived it, once again:
42
Ibid.
Judith Jarvis Thomson, “The Trolley Problem,” The Yale Law Journal
94 (1985), 1395-1415.
43
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Here then is Mrs. Foot’s problem: Why is it that the trolley
driver44 may turn his trolley, though the surgeon may not
remove the young man’s lungs, kidneys, and heart? In both
cases, one will die if the agent acts, but five will live who
would otherwise die – a net saving of four lives. What
difference in the other facts of these cases explains the moral
difference between them?45
Thomson provides Foot’s solution to her original trolley problem
in terms of killing one versus letting five die. The trolley driver
must choose between killing five and killing one; since there is not
a genuine conflict here (either way, he kills), he may turn the
trolley and kill one. The surgeon, however, must choose between
killing one and letting five die; since there is a genuine conflict
here (he must either kill or let die), and since “killing is surely
worse than letting die”46, the doctor may not kill one, i.e., may not
cut up the patient.47
Once again, Thomson says that “there is good reason to
think that this problem is not so easily solved as that.”48
In this article, Thomson decides to adapt her passenger
case so that the passenger on the trolley is now a bystander at a
track switch:
let us now consider a case I will call Bystander at the Switch.
In that case you have been strolling by the trolley track, and
you can see the situation at a glance: The driver saw the five
on the track ahead, he stamped on the breaks, the brakes
failed, so he fainted. What to do? Well, here is the switch,
which you can throw, thereby turning the trolley yourself. Of
course you will kill one if you do.49
44
Importantly, Thomson is talking about the original runaway tram case,
in which a driver kills people whatever he does.
45
Thomson, 1985, 1396.
46
Ibid.
47
Thomson confines Foot’s explanation of the difference between the
two cases in terms of a “negative duty to refrain from causing injury”
versus “the positive duty to provide aid” to a footnote (ibid., n. 4)
48
Ibid.
49
Ibid., 1397.
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In this new case, if the bystander throws the switch, he kills one
person. If he does not throw the switch, he lets five people die.
According to the solution provided by Foot, the bystander may not
throw the switch. He must choose between killing one and letting
five die, and since killing is worse than letting die, he must avoid
killing one and let five die.
Thomson, however, believes that it is permissible to throw
the switch and turn the trolley: “I should think you may turn it”50;
“my own feeling is that an ordinary person, a mere bystander, may
intervene in such a case”51; “my own feeling is that the bystander
may intervene”52; “I shall take it that he may.”53 Foot’s solution
therefore will not work:
It is plain that if the bystander throws the switch, he causes the
trolley to hit the one, and thus he kills the one. It is equally
plain that if the bystander does not throw the switch, he does
not cause the trolley to hit the five, he does not kill the five, he
merely fails to save them – he lets them die. His choice
therefore is between throwing the switch, in which case he
kills one, and not throwing the switch, in which case he lets
five die. If thesis (I) [“Killing one is worse than letting five
die”] were true, it would follow that the bystander may not
throw the switch, and that I am taking to be false.54
As Thomson says, in introducing the bystander at the switch case
(a variant on her own second trolley case from her first article),
and comparing it with the transplant case, she is not concerned
with Foot’s trolley problem, but with her own trolley problem:
What I shall be concerned with is a first cousin of Mrs. Foot’s
problem, viz.: Why is it that the bystander may turn his
trolley, though the surgeon may not remove the young man’s
lungs, kidneys, and heart? Since I find it particularly puzzling
50
Ibid.
Ibid.
52
Ibid., 1398.
53
Ibid.
54
Ibid., 1398-1399.
51
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that the bystander may turn his trolley, I am inclined to call
this The Trolley Problem.55
It should be noted that this trolley problem is the same trolley
problem that can be found in her earlier article, where she had to
explain the difference between two trolley cases and the third
trolley case involving the person on the footbridge (as well as the
transplant case).
In providing her solution to her own trolley problem,
Thomson provides an explanation of the difference between the
bystander case, on the one hand, and the transplant case, on the
other (as well as the trolley case involving the person on the
footbridge):
Suppose the bystander at the switch proceeds: He throws the
switch, thereby turning the trolley onto the right-hand track,
thereby causing the one to be hit by the trolley, thereby killing
him – but saving the five on the straight track. There are two
facts about what he does and what the agent in Transplant
would be doing if he proceeded. In the first place, the
bystander saves his five by making something that threatens
them instead threaten one. Second, the bystander does not do
that by means which themselves constitute an infringement of
any right of the one’s.56
In providing this explanation, Thomson appeals to the
concept of a right, which she does not explicate, except to agree
with Ronald Dworkin57 that rights are things that trump utilities:
“Rights “trump” utilities. That is, if one would infringe a right in
or by acting, then it is not sufficient justification for acting that
55
Ibid., 1401.
Ibid., 1403.
57
Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard
University Press, 1977). Note that, as my former advisor Alasdair
MacIntyre has pointed out, Dworkin himself concedes that the existence
of rights cannot be demonstrated (After Virtue (Notre Dame, IN:
University of Notre Dame Press, 2007 (3rd ed.), 70). (MacIntyre himself
considers such natural rights or human rights to be “fictions” (ibid.))
56
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one would thereby maximize utility. It seems to be that something
like this must be correct.”58
The first solution that presents itself to explaining the
difference between the two cases is that in the bystander case, the
bystander does not infringe any right in pulling the switch and
turning the trolley, whereas in the transplant case, the surgeon
infringes a right in cutting up the person’s body and removing his
organs:
That is, it might be said (i) The reason why the surgeon may
not proceed in Transplant is that if he proceeds, he maximizes
utility, for he brings about a net saving of four lives, but in so
doing he would infringe a right of the young man’s. … So it
might be said (ii) The reason why the bystander may proceed
is that if he proceeds, he maximizes utility, for he brings about
a net saving of four lives, and in so doing he does not infringe
any right of the one track workman’s.59
Thomson, however, does not accept this “very simple solution”60
to her trolley problem, because she does not believe that it is
“clear that the bystander would infringe no right of the one track
workman’s if he turned the trolley”, and indeed believes “that
there is some reason to think that the bystander will infringe a right
of the one if he throws the switch, even though it is permissible for
him to do so.”61 This is because, “if the bystander throws the
switch, then he does what will kill the one”, and “the one did not
volunteer his life so that the five might live; the bystander
volunteered it for him.”62 Indeed, Thomson holds that this lends
“some weight to the idea that the bystander did do him a wrong”
because “he infringes a right of the one track workman’s which is
in that cluster of rights which the workman has in having a right to
58
Ibid., 1404.
Ibid.
60
Ibid.
61
Ibid., 1404-1405.
62
Ibid., 1405.
59
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life.”63 There is, then, “some reason to think that the bystander
would infringe a right of the one’s.”64
Thomson’s conclusion, rather, is that “if the bystander
does infringe a right of the one’s if he proceeds, and may
nevertheless proceed,”65 then the solution to her trolley problem is
not that the transplant case involves a rights infringement, and the
bystander case does not. Instead, she proposes granting that “both
the bystander and the surgeon would infringe a right of their
ones”, and that “some other difference between the cases”66 be
found.
In order to find this new difference, Thomson invokes the
third trolley case from her original article, now named after the
person who is shoved off the footbridge:
Consider a case – which I shall call Fat Man – in which you
are standing on a footbridge over the trolley track. You can
see a trolley hurtling down the track, out of control. You turn
around to see where the trolley is headed, and there are five
workmen on the track where it exits from under the
footbridge. What to do? Being an expert on trolleys, you know
of one certain way to stop an out-of-control trolley: Drop a
really heavy weight in its path. But where to find one? It just
so happens that standing next to you on the footbridge is a fat
man, a really fat man. He is leaning over the railing, watching
the trolley; all you have to do is to give him a little shove, and
over the railing he will go, onto the track in the path of the
trolley.67
About this case, as before, Thomson says that it would not be
permissible to shove the person off the footbridge onto the track in
front of the trolley (“Would it be permissible for you to do this?
Everybody to whom I have put this case says it would not be.”68)
Thomson contrasts this third trolley case, the footbridge case, with
63
Ibid., 1406.
Ibid.
65
Ibid.
66
Ibid.
67
Ibid., 1409.
68
Ibid.
64
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the bystander case, and places it in the same category as the
transplant case. The question is why it should be placed in the
same category as the transplant case (“But why?”69). What is the
difference between the footbridge case and the bystander case that
makes it permissible to throw the switch, but impermissible to
shove the person off the footbridge?
It will not do to say that in killing this person on the
footbridge, one would infringe the right of person on the
footbridge not to be killed (and do him a wrong), since that is also
true of the workman on the sidetrack whom one kills in the
bystander case, and Thomson believes that one may throw the
switch and kill the workman in the bystander case. One may do
this, as Thomson says, because in this case one is making
“something which threatens them threaten one instead,”70 and this
is permissible.
The difference between the two cases, Thomson claims,
lies in the means that are taken. In the footbridge case, the means
that are taken (to divert the threat) “themselves constitute an
infringement of a right of the one’s.”71 By contrast, in the
bystander case, the means that are taken (to divert the threat) do
not themselves constitute an infringement of a right.
In the footbridge case, shoving a person, and toppling him
off a footbridge, is, all by itself, an infringement of a right of that
person:
For shoving a person is infringing a right of his. So also is
toppling a person off a footbridge. I should stress that doing
these things is infringing a person’s rights even if doing them
does not cause his death – even if doing them causes no harm
at all. As I shall put it, shoving a person, toppling a person off
a footbridge, are themselves infringements of rights of his.72
In the bystander case, by contrast, throwing the switch is not, all
by itself, an infringement of a right of anyone:
69
Ibid.
Ibid.
71
Ibid.
70
72
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Consider by contrast the agent in Bystander at the Switch. He
too, if he proceeds, saves five by making something that
threatens them instead threaten one. But the means he takes to
make that be the case are these: Turn the trolley onto the righthand track. And turning the trolley onto the right-hand track is
not itself an infringement of a right of anybody’s. The agent
would do the one no wrong at all if he turned the trolley onto
the right-hand track, and by some miracle the trolley did not
hit him.73
Throwing the switch in the bystander case is permissible,
even if it involves killing the one workman, because “In the first
place, he saves his five by making something that threatens them
instead threaten the one. And second, he does not do that by means
which themselves constitute infringements of any right of the
one’s.”74 He does not infringe the right of the workman, or
anybody else, by throwing the switch, and turning the trolley.
Shoving the person and toppling him off the footbridge onto the
track in front of the train, by contrast, is impermissible, because,
while it also involves killing one person, by making something
that threatens five threaten just one, it involves shoving someone
and toppling him off a footbridge, which themselves constitute
infringements of a right, or rights, of the person. One would be
infringing the person’s right, and doing the person a wrong, if one
shoved the person, or toppled the person off the footbridge, even if
one did not kill the person.
Indeed, as Thomson argues, shoving a person, and
toppling a person off a footbridge, each constitutes an
infringement of a stringent right of the person: “By contrast, the
right not to be toppled off a footbridge onto a trolley track is on
any view a stringent right.”75
The conclusion that she reaches is that:
If the agent must infringe a stringent right of the one’s in order
to get something that threatens five to threaten the one (as in
Fat Man), then he may not proceed, whereas if the agent need
73
Ibid.
Ibid., 1407.
75
Ibid., 1411.
74
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infringe no right of the one’s (as in Bystander at the Switch),
or only a more or less trivial right of the one’s… in order to
get something that threatens five to threaten one, then me may
proceed.76
Coming Full Circle
In both of her articles, Thomson defended the permissibility of
throwing a railroad switch (or its equivalent) and diverting a
runaway train to a sidetrack so that it kills just one person, instead
of not throwing the railroad switch and allowing the runaway train
to continue on its track and kill five people. She did so despite
knowing that Philippa Foot would prohibit such an action. In both
articles, Thomson had to find an explanation for why, if doing this
was permissible, it was still impermissible to shove a person off a
footbridge and topple him onto the track in front of the runway
train, so that it kills just that person, instead of not shoving the
person off the footbridge, and allowing the runaway train to
continue on its track and kill five people. This was her problem.
In her original article, she argued that one does not do
anything to a person in the first, permissible, case of throwing a
railroad switch, whereas one does do something to person in the
second, impermissible, case – namely, one shoves a person off a
footbridge onto a railroad track. In her follow-up article, she
argued that one does not use means that are themselves
infringements of someone’s stringent rights in the first,
permissible, case of throwing a railroad switch, whereas one does
use means that are themselves infringements of someone’s
stringent rights in the second, impermissible, case – namely,
shoving a person and toppling him off a footbridge onto a railroad
track.
Both of Thomson’s explanations of the difference between
the permissible throwing of the switch and the impermissible
shoving of the person off the footbridge seem, on the face of it,
extremely weak. It seems possible to object to both explanations
rather easily, such as objecting to the second explanation that it
hardly matters that in the footbridge case one is infringing a
stringent right of the person on the footbridge not to be shoved and
dropped, and in the bystander case one is not, if in both cases one
76
Ibid.
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“infringes a right … which is in that cluster of rights [he] has in
having a right to life.” What does it matter to the one workman on
the sidetrack that one is not infringing his stringent right not to be
shoved, or not to be toppled off a bridge, if one is infringing his
(stringent) right not to be killed?77
As Thomson said later about her own solutions to her
trolley problem, “nobody produced a solution that anyone else
thought satisfactory.”78 This is perhaps best explained by the fact
that Foot was right, and Thomson was wrong, all along.
Thomson’s new problem was a pseudo-problem.79 It is in fact
impermissible to throw a railroad switch and divert a runaway
train to a sidetrack so that it kills just one person, instead of not
throwing the railroad switch and allowing the runaway train to
continue on its track and kill five people, just as it is impermissible
to shove a person off a footbridge and topple him onto the track in
front of a runaway train, so that it kills just one person, instead of
not shoving the person off the footbridge, and allowing the
runaway train to continue on its track and kill five people.
Thankfully, it is not necessary to mount an argument as to
why Thomson was wrong and Foot was right. This is because, in
her final article on the trolley problem, Thomson conceded that
she was wrong, and Foot was right, all along.
In her 2008 article “Turning the Trolley”, Thomson tells
the story of how a graduate student of hers, Alex Friedman,
analyzed all of the putative solutions to her trolley problem
(including her own), and “showed clearly that none of them
worked.”80 His conclusion was simple: “it just isn’t true that the
bystander may”81 throw the railroad switch divert a runaway train
to a sidetrack so that it kills just one person. One of the premises
for his conclusion was that “it just is intuitively plausible that
77
See my “Foot, Thomson, and the Trolley Problem” (unpublished
manuscript), presented at a meeting of the Virginia Philosophical
Association on October 27, 2007.
78
Thomson, 2008, 363.
79
I argued for this conclusion before Thomson’s final article on the
matter. See for, example, my “Foot, Thomson, and the Trolley Problem”,
note 77 above.
80
Thomson, 2008, 363.
81
Ibid.
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negative duties really are weightier than positive duties”,82 exactly
as Foot had said. Thomson’s trolley problem, he concluded, was a
“non-problem.”83
Thomson agreed with her student: “the (so-called) trolley
problem is therefore… a nonproblem… the bystander must not
turn the trolley.”84 She says, about the “the very difference in
weight between positive and negative duties that Foot said we
should bring to bear on the cases she drew attention to, and that
Friedman said was so plausible”, that, “I find myself strongly
inclined to believe they were right.”85
As it were, everything came full circle. Thomson accepted
the conclusion of Foot’s original article.86
This should not come as a complete surprise, however, to
a reader of Thomson. In her original article on the trolley problem,
Thomson finished the article by admitting that “More generally, I
suspect that Mrs. Foot and others may be right to say that negative
duties are more stringent than positive duties.”87 The issue, it
seems, was simply that “we shan’t be able to decide until we get
clearer what these things come to.”88 Thomson had no explanation
for the for the difference in weight between the two types of
duties. In her final article on the trolley problem, thirty-two years
later, Thomson still had not explanation for the difference in
weight between the two types of duties, even as she embraced the
distinction between them:
It is one thing to say that there is a difference in weight
between positive and negative duties, and quite another to say
82
Ibid.
Ibid., 364.
84
Ibid., 368. The full sentence reads, “But even if the (so-called) trolley
problem is therefore in one way a nonproblem, it is therefore in another
way a real problem, for if the bystander must not turn the trolley in
Bystander’s Two Options, then we need to ask why so many people who
are presented with that case think it obvious that he may” (368).
85
Ibid., 372.
86
In a footnote to her second article, Thomson says about her first article,
“Mrs. Thomson seems to me to have been blundering around in the dark
in that paper” (Thomson, 1985, 1412, n. 14).
87
Thomson, 1985, 217.
88
Ibid.
83
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what the source of that difference is. I know of no thoroughly
convincing account of its source, and regard the need for one
as among the most pressing in all of moral theory.89
Murderer at the Switch
As I stated at the beginning of this chapter, contrary to what
Guyer has said, it is not the case that any plausible moral
theory must justify and require throwing the railroad switch and
killing the one person and saving the five (or six). It is
perfectly possible to defend a plausible moral theory according
to which throwing a railroad switch and diverting a runaway
train to a sidetrack so that it kills just one person, instead of not
throwing the railroad switch and allowing the runaway train to
continue on its track and kill five people, is prohibited.
Foot’s moral theory, and indeed Thomson’s settled moral
theory, are just such plausible theories. However, it is important
to understand that Kant’s moral theory also prohibits throwing
the switch.
In her second article on the trolley problem, in attempting
to find a solution to her trolley problem, Thomson suggests that
Kant would support throwing the switch:
It would be no surprise, I think, if a Kantian idea occurred to
us at this point. Kant said: “Act so that you treat humanity,
whether in your own person or in that of another, always as an
end and never as a means only.” It is striking, after all, that the
surgeon who proceeds in Transplant treats the young man he
cuts up “as a means only”: He literally uses the young man’s
body to save his five, and does so without the young man’s
consent. And perhaps we may say that the agent in Bystander
at the Switch does not use his victim to save his five, or (more
generally) treat his victim as a means only, and that that is
why he (unlike the surgeon) may proceed.90
This first part of what Thomson says here is correct. If the
surgeon cuts up the healthy person and distributes his organs
(without his consent), then he is acting contrary to the Categorical
89
90
Ibid., 372.
Thomson, 1985, 1401.
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Imperative, in all of its formulae, but in particular, the formula of
humanity: “So act that you use humanity, whether in your own
person or in the person of any other, always at the same time as
an end, never merely as a means.”91 If the surgeon cuts up the
healthy person and distributes his organs (without his consent),
then he is using him merely as a means, and this is prohibited. The
second part of what Thomson says here, however, is incorrect. If
the bystander throws a railroad switch and diverts a runaway train
to a sidetrack so that it kills one innocent workman, in order to
save the five on the track, then he is using the workman merely as
a means, and this is prohibited.
As other commentators have pointed out, “little if
anything is said in Kant’s ethics about the more violent forms of
immoral action.”92 No doubt, this is because violence is dealt with
in Kant’s legal philosophy rather than his ethics.93 It can safely be
assumed that Kant holds that if the surgeon cuts up the healthy
person and distributes his organs, he commits the crime of
murder.94 The motive for the crime (saving the lives of dying
others by distributing the organs95) would be irrelevant.96 If Kant
had to provide an argument in his ethics against murder, what
would it look like? Guyer has said, about the argument in Kant’s
ethics against committing suicide, “presumably the same argument
[against suicide] applies in the case of homicide as well.”97 It is
therefore worth considering Kant’s ethical argument against
91
Immanuel Kant, Groundwork of the Metaphysics of Morals
(Grundlegung zur Metaphysik der Sitten) [1785], translated by Mary J.
Gregor, in Practical Philosophy, edited and translated by Mary J. Gregor
and Allen W. Wood (Cambridge: Cambridge University Press, 1996), 80.
Italics in original.
92
Barbara Herman, “Murder and Mayhem: Violence and Kantian
Casuistry”, The Monist 72 (1989), 411.
93
See Herman, ibid., 412-413.
94
I say crime because this is a matter of law.
95
For a fictional version of this case, see Robin Cook, Coma (Little,
Brown & Co., 1977).
96
This is a point that has been made by numerous writers on criminal
law: “For hardly any rule of penal law is more definitely settled than that
motive is irrelevant” (Jerome Hall, General Principles of Criminal Law
(Indianapolis: The Bobbs-Merrill Company, 1947), 153-54).
97
Guyer, 2006, 196.
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suicide in order to consider a hypothetical ethical argument against
murder.
The ethical argument against committing suicide given in
the Groundwork of the Metaphysics of Morals is that in
committing suicide one “makes use of a person”, namely, oneself,
“merely as a means to maintain a tolerable condition up to the end
of life.”98 In other words, in committing suicide, one elevates
maintaining a life in which one is in at least a tolerable condition
(not suffering, etc.) above one’s humanity. One makes maintaining
a life in which one is in a tolerable condition (not suffering, etc.)
one’s end, and one treats humanity in oneself – or mere simply,
one treats oneself – as a mere means towards that end. When one
believes that one cannot maintain a life in which one is in a
tolerable condition – when it is inevitable that one will suffer, say
– then one will use humanity in oneself to commit suicide (one
will decide on a way to successfully commit suicide, and then do
it). However, according to the Categorical Imperative, one must
always have humanity, in oneself and in others, as one’s end. One
may never use humanity in oneself as a mere means to some other
end. Therefore, it is impermissible to commit suicide in order to
avoid suffering. As Kant says in the later The Metaphysics of
Morals, one has a “negative” duty to oneself not to commit suicide
that is a “perfect” duty to oneself as an animal being. 99
Contrary to what Guyer says about Kant on suicide, this
perfect duty to oneself, like all perfect duties, is absolute.
Kant is generally inclined to treat the prohibition of suicide as
absolute, but in pursuing the topic with his students he allows
that certain exceptions may at least be possible. […] Although
Kant does not himself draw such a conclusion unequivocally,
we can take this example to suggest that the (freely chosen)
destruction of one free being in order to save many more free
98
Kant, Groundwork of the Metaphysics of Morals, 80. Italics in original.
Immanuel Kant, The Metaphysics of Morals (Die Metaphysik der
Sitten), comprising the Metaphysical First Principles of the Doctrine of
Right (Metaphysische Anfangsgünde der Rechtslehre) [1797] and the
Metaphysical First Principles of the Doctrine of Virtue (Metaphysische
Anfangsgünde der Tugendlehre) [1797], translated by Mary J. Gregor, in
Practical Philosophy, edited and translated by Mary J. Gregor and Allen
W. Wood (Cambridge: Cambridge University Press, 1996), 546.
99
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beings may be permissible, or even mandatory, because
making humanity in both our own person and that of all others
an end and never merely a means might well require
preserving as many instances of humanity as possible; and in
cases in which all instances cannot be preserved, even if it is
our own instance of humanity that may have to be sacrificed in
order to preserve others. Humanity is not just an abstraction,
but something that exists in its instances, and so in making
humanity our end numbers not only can but in fact must
count.100
Space does not permit a complete reply to what Guyer says here,
but it can be stated that Kant nowhere permits an exception to the
perfect duty not to commit suicide. The casuistical questions
concerning suicide in The Metaphysics of Morals, as well as in his
lectures on ethics, are about whether certain acts are acts of
suicide, and not whether acts of suicide are permissible. Kant
never allows for exceptions to perfect duties.101 If ‘preserving as
many instances of humanity as possible’ requires that ‘humanity…
be sacrificed in order to preserve others’, then Kant’s response is
that we may not preserve as many instances of humanity as
possible. Humanity may never be sacrificed in order to preserve
others.
In the Groundwork, a possible translation of Kant’s word
for suicide, “Selbstmorde”, is “murdering himself.”102 In the later
Metaphysics of Morals, Kant is explicit that suicide is a form of
murder: “Willfully killing oneself can be called murdering
oneself (homocidium dolosum)”103 and “Killing oneself is a crime
(murder).”104 If Kant holds that suicide is a case of murder, then it
can safely be assumed, as I have said, that Kant holds that if the
100
Guyer, 2006,197.
See my “Kant and the Perfect Duty to Others Not to Lie,” British
Journal for the History of Philosophy 14 (2006), 653-685. Indeed, Kant
never allows for exceptions to imperfect duties, either, when one
understands what it means to make an exception to a perfect duty. See
my “The Duty of Beneficence in Kant” (unpublished manuscript).
102
Ibid., 80, n. v.
103
Kant, The Metaphysics of Morals, 546. Bold type and italics in the
original.
104
Ibid.
101
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surgeon cuts up the healthy person and distributes his organs, then
he commits murder. The ethical argument against murder would
be that the surgeon, in cutting up the healthy person and
distributing his organs (without his consent)105 to those who will
die without them, is elevating maintaining lives in which people
are in at least a tolerable condition above the humanity of the
person who is killed to ensure this end. This is contrary to the
Categorical Imperative and is impermissible.
What, then, of Thomson’s “Bystander at Switch” case?
Thomson’s settled position on this case is that it is
impermissible for the bystander to throw the switch because it
violates a negative duty not to kill an innocent106 person. As I have
shown, she reversed course on this case over the course of her life.
Does this mean that her original Kantian analysis of this case is
incorrect? I believe that it does.
First, consider the case in terms of positive and negative
duties. According to Kant, one has a duty to others to be
beneficent107: “To be beneficent, that is, to promote according to
one’s means the happiness of others in need, without hoping for
something in return, is everyone’s duty” (MM, 6: 453 (572)). This
duty is an imperfect, positive duty. It is a duty to adopt the end of
105
Of course, according to Kant’s moral theory, the person may never
consent to commit suicide.
106
It is important to note that the negative duty not to kill an innocent
person does not prohibit, e.g., killing people in self-defense or executing
convicted murderers.
107
Beneficence means helping people other than oneself; it does not
mean helping everyone, since that would include oneself. For this reason,
the duty of beneficence should not be confused with the universal
benevolence that is expressed in consequentialist moral theories. J. J. C.
Smart says: “The utilitarian’s ultimate moral principle, let it be
remembered, expresses the sentiment not of altruism but of benevolence,
the agent counting himself neither more nor less than any other person.
… Altruism could hardly commend itself to those of a scientific, and
hence universalistic, frame of mind” (J. J. J. Smart, “Outline of a System
of Utilitarian Ethics”, in Utilitarianism: For and Against, J. J. C. Smart
and Bernard Williams (Cambridge: Cambridge University Press, 1973),
32). However, Smart’s next sentence is highly misleading: “If you count
in my calculations why should I not count in your calculations?” The
question should be: If you count in my calculations, why should I not
count in my calculations? This is no longer a rhetorical question.
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the happiness of others who are in need. This means that one must
promote the happiness of others who are in need, when one can, to
some extent, and so long as it does not involve violating any of
one’s perfect duties or violating any of one’s imperfect duties (i.e.,
giving up on other necessary ends).108 Throwing a railroad switch
and diverting a runaway train to a sidetrack so that it does not
continue on its track and kill five people, if that was all that was
involved in this case, would be consistent with the duty of
beneficence.109
Of course, that is not all that is involved in this case.
Throwing a railroad switch and diverting a runaway train to a
sidetrack involves killing one innocent workman. If that was all
that was involved in this case, it would be a case of murder.
Murder is prohibited by a negative legal duty in Kant’s moral
philosophy.
This case, therefore, involves a conflict between a
negative (perfect)110 legal duty not to kill one innocent person (not
to commit murder), and a positive imperfect ethical duty to save
five innocent people from being killed (or to not let five people
die). According to Kant’s moral theory, the negative (perfect)
legal duty is more stringent than the positive imperfect ethical
duty; or rather, there is no conflict, since imperfect duties have
perfect duties ‘built in’ them as exceptions. If, as Kant famously
argued in his “On a Supposed Right to Lie from Philanthropy”,111
it would be a crime112 to tell a lie to a murderer at one’s door, even
108
See my “The Duty of Beneficence in Kant”, note 101.
Importantly, however, no particular act of beneficence is ever required
by the duty of beneficence. See my “The Duty of Beneficence in Kant”,
note 105 above.
110
Strictly speaking, legal duties are neither perfect nor imperfect since
that distinction only applies to ethical duties in Kant’s moral philosophy.
But that is only because all legal duties are best understood as perfect
duties.
111
On a Supposed Right to Lie from Philanthropy (Über ein vermeintes
Recht aud Menschenliebe zu lügen] (1797), translated by Mary J.
Gregory, in in Practical Philosophy, 611-615.
112
Kant’s claim is that this lie would be a crime because the negative
duty at issue in this essay is a legal duty, albeit a legal duty to humanity,
and not an ethical duty. See my “The Truth about Kant on Lies”, The
109
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in order to save the life of one’s innocent friend,113 and hence, that
lying in this case is prohibited, then surely it is prohibited to kill
one innocent person, even to save the lives of five other people,
when it is crime to kill an innocent person.
Hence, throwing a railroad switch and diverting a runaway
train to a sidetrack so that it kills just one person is prohibited by
Kant’s moral theory if the case is considered in terms of positive
and negative duties.
Next, consider the case in terms of rights. About the
bystander case, as I have pointed out, Thomson herself says, in her
second article, that “if the bystander throws the switch, then he
does what will kill the one”, and “the one did not volunteer his life
so that the five might live; the bystander volunteered it for him.”
Thomson herself says that this lends “some weight to the idea that
the bystander did do him a wrong” because “he infringes a right of
the one track workman’s which is in that cluster of rights which
the workman has in having a right to life.” She accepts, then, that
there is “some reason to think that the bystander would infringe a
right of the one’s.”
Her conclusion about this infringement of the right to life
of the workman on the sidetrack, as I have said, is that “if the
bystander does infringe a right of the one’s if he proceeds, and
may nevertheless proceed.”
By Thomson’s own lights, therefore, throwing a railroad
switch and diverting a runaway train to a sidetrack, so that it kills
just one person, infringes a right of that one person, and does that
person a wrong.
However, not throwing the railroad switch, and allowing
the runaway train to continue on its track and kill five people, does
not infringe the right of anyone, and does not do anyone a wrong.
Even if there were no other person on the sidetrack, and one could
save the five by throwing the railroad switch and diverting the
runaway train, one would not be infringing the right of anyone if
one did not throw the railroad switch. Those five people do not
Philosophy of Deception, ed. Clancy Martin (Oxford: Oxford University
Press, 2009), 201-224.
113
See my “The Truth about Kant on Lies” in The Philosophy of
Deception, ed. Clancy Martin (Oxford University Press, 2009), 201-224.
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have a right against one to one’s assistance. Elsewhere, Thomson
is more explicit about this:
To deprive someone of what he has a right to is to treat him
unjustly. Suppose a boy and his small brother are jointly given
a box of chocolates for Christmas. If the older boy takes the
box and refuses to give his brother any of the chocolates, he is
unjust to him, for the brother has a right to half of them. […]
Suppose that the box of chocolates that I mentioned earlier
had not been given to both boys jointly, but was given only to
the older boy. There he sits, stolidly eating his way through
the box, his small brother watching enviously. Here we are
likely to say, ‘You ought not to be so mean. You ought to give
your brother some of those chocolates.’ My own view is that it
just does not follow from the truth of this that the brother has
any right to any of the chocolates. If the boy refuses to give
his brother any, he is greedy, stingy, callous – but not unjust.
[…] self-centered and callous, indecent in fact, but not
unjust.114
If there were no other person on the sidetrack, and one
could save the five by throwing the railroad switch and diverting
the runaway train, then one would be “indecent” in not throwing
the railroad switch, but one would not be a rights-infringer.
The same is true of not cutting up the healthy patient and
allowing the five people with failing organs to die, or not pushing
the person off the footbridge and allowing the runaway train to
continue on its track and kill five people. One is not infringing a
right of anyone in either case.
The case, therefore, involves throwing a railroad switch
and diverting a runaway train to a sidetrack, so that it kills just one
person, which infringes a right of that one person, and not
throwing the railroad switch, and allowing the runaway train to
continue on its track and kill five people, which infringes the right
of no-one.
It is clear that Kant would not uphold infringing a right of
someone and doing someone a wrong. Hence, throwing a railroad
114
Judith Jarvis Thomson, “A Defense of Abortion”, Philosophy and
Public Affairs 1 (1971), 60-61.
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switch and diverting a runaway train to a sidetrack so that it kills
just one person is prohibited by Kant’s moral theory if the case is
considered in terms of rights.
The correct analysis of this case according to Kant’s moral
theory, therefore, by Thomson’s own lights, is that in throwing the
switch, the bystander is indeed treating the workman on the
sidetrack as a means only. That is why the bystander, just like the
surgeon, and just like the person on the footbridge, may not
proceed.
That is indeed what we should conclude about the
bystander case. If the bystander were to knowingly throw the
switch, diverting a runaway trolley to a sidetrack so that it killed
just one innocent person, he would be committing murder.
Coda: Diverting a Runaway Train to an Area of Mostly
Lower-Income Residents
Philosophers are often accused of coming up with far-fetched and
improbable thought experiments that fail to connect with our
everyday ethical lives. Plato’s ring of Gyges115 and Robert
Nozick’s utility monster116 come to mind. Thomson herself has
come up with such unrealistic thought experiments. Just think of
the case of the people-seeds who can enter your house through
your window, land on your rug and take root there and grow into
person-plants.117 The various cases involving a runaway train
might be thought of in the same light. But some years ago, there
was an actual case of a runaway train with no driver on board that
was headed towards a city, and a group of people who were not on
the train who had to make a decision about diverting it.
In 2003, a runaway unmanned Union Pacific freight train
carrying over 3,800 tons of lumber and building materials was
barreling down its track towards the railway yards of downtown
Los Angeles. The train was remotely switched to a sidetrack in the
residential neighborhood of Commerce, California. As expected,
the train derailed. According to Kathryn Blackwell, spokeswoman
115
Plato, Plato, The Republic, translated by R. E. Allen (New Haven:
Yale University Press, 2006), 41.
116
Robert Nozick, Anarchy, State, and Utopia (NY: Basic Books, 1974),
41.
117
Thomson, “A Defense of Abortion”, 59.
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for Union Pacific, the railway “knew the maneuver was “likely” to
cause a derailment.”118 Residents of the town were not warned.
Four homes on one street were damaged, and two of them were
destroyed. Thirteen people suffered minor injuries, including a
pregnant woman asleep in one of the houses who managed to
escape through a window.
The neighborhood of Commerce is a lower-density area
with “mostly lower-income residents.”119 One of the homes
destroyed belonged to Luis Vasquez. At the time of the
derailment, he was in his backyard, and his sister was in his house.
“There was wood everywhere. Train wheels landed right in front
of me. For some reason we didn’t get hurt. I just thank God for
that,” he said.120 Then again, these were just lower-income
people.121
118
“Runaway freight train derails near Los Angeles”, CNN.com/U.S.,
Saturday, June 21, 2003. [https://edition.cnn.com/2003/US/We
st/06/20/train.derails/index.html, accessed 11/01/2021]
119
“Trolley problem”, Wikipedia [https://en.wikipedia.org/wiki/Trol
ley_problem, accessed 11/01/2021]
120
“Runaway freight train derails near Los Angeles”, ibid.
121
Earlier versions of parts of this paper were presented at the Canadian
Society for the Study of Practical Ethics at the University of
Saskatchewan in May 2007, at the Virginia Philosophical Association in
October 2007, and at Texas Christian University in April 2008. My
thanks to audiences on those occasions for their questions. To former
students over the years who have discussed and written about The
Trolley Problem for me, I thank you profusely. To the person – it may
have been a student at Washington & Lee University – who alerted me to
the existence of Thomson’s paper recanting her earlier position, muchas
gracias. To Joseph Mahon, who read a final draft of this paper, míle
buíochas. This article is dedicated to the late Marcia Lind, a graduate of
Brooklyn College, CUNY, and MIT, and a former Assistant Professor of
Philosophy at Duke University, who was the first person I met who knew
Judith Jarvis Thomson and who talked to me about her when I was a
first-year graduate student. Years later, I am happy to say, I finally got to
meet Prof. Thomson at a meeting of the American
Philosophical Association.
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James Mahon