There are many rights possible: the rights to life, liberty, property, free speech,… But there is one right that is different from the others: the basic right not to be used as merely a means. If a person has this right, we should not use the body of that person against his or her will as a means for someone else’s ends, even if the overall consequences would be good.
This right not to be used is basic in the sense that it cannot be derived from other ethical principles such as the utilitarian principle to promote well-being. The other rights such as rights to life or free speech are intended to increase well-being in the world and hence can be considered as utilitarian rules of thumb to increase well-being. But the right not to be used as merely a means clearly violates the utilitarian principle to promote well-being.
Consider the organ transplantation case: five people in the hospital need new organs in order to survive, but there are no organs available. A surgeon can sacrifice an innocent person against his or her will and use his or her five organs to save the five patients. One person is used as merely a means to save five people, so the overall consequences in terms of well-being are good (five people alive is better than one person alive). But we should not sacrifice this one person if he or she has a basic right not to be used as merely a means.
So why is there only one basic right? And how is this right compatible with pure altruism? A pure altruist only looks at what is best for other people (for everyone). What is best depends on what people want and what they value and care about. Pure altruists want what the other people want and do not impose their own values on others. But do other people value their basic right more than they value the other, non-basic rights? What if a victim who is harmed only cares about the severity of the harm, the level of suffering, and doesn’t care if this harm was the result of being used as a means? If we make this distinction between basic and non-basic rights, if we value the distinction between being used and not being used as a means, whereas the victim doesn’t care about this distinction, are we less altruistic by imposing our values on the victim?
The trolley dilemmas
Consider the trolley dilemma: a runaway trolley is about to hit and kill five people on the main track, but you can turn a switch that directs the trolley to a side track where it will kill one person. A utilitarian welfare ethic dictates that turning the switch is morally good and obligatory, because it saves more people.
In a second version of the trolley dilemma, called the bridge dilemma, there is no side track and no switch, but you can stop the trolley by pushing a heavy person from a bridge. This person will fall in front of the trolley, the trolley will be blocked and the five people on the track will be saved. A deontological ethic says that this action is not permissible: the heavy person has a basic right not to be used as merely a means against his or her will, for example as a trolley blocker or human shield. If this right trumps the lives of the five people, action is not permissible.
The basic right and negative externalities
In the two trolley dilemmas we have two negative rights: the right not to be killed against ones will and the right not to be used against ones will. Both are negative rights because they refer to not being treated in a certain way if the person does not want that. But there is an important difference between those rights: the right not to be killed has a so called negative externality for others, the right not to be used does not. A negative externality is a cost that affects a party who did not choose to incur that cost.
Consider the first dilemma with the switch. If the person on the side track has the right not to be killed that trumps the lives of the five people, those people on the main track can no longer be saved, because the only option to save them is turning the switch, but that would violate this right not to be killed. So the presence of this person on the side track has a cost or negative externality for the people on the main track, if the person on the side track has the right not to be killed. The presence of the person on the side track decreases the options to be saved, and that is a cost for the five people. Or in other words: giving someone a right not to be killed generates a negative externality for other people.
On the other hand, in the second trolley dilemma with the heavy person, we can give this heavy person the basic right not to be used against his or her will, without generating a negative externality. A person is used as a means to an end if the presence of that person is necessary to achieve the end. If the heavy person was not present in the second trolley dilemma, this person could not be used and the five people could not be saved.
So by pushing the heavy person, this person is used as a means, whereas by turning the switch in the first dilemma, the person on the side track is not used as a means. If the person on the side track in the first trolley dilemma was not present, the five people on the main track could still be saved. The presence of this person on the side track is not necessary, so that person is not used as a means.
Person affecting theories
Person affecting utilitarianism is a utilitarian theory that focuses on what individual persons want. In utilitarian theories, the notion of personal utility is crucial: the utility of a person measures how much that person wants, prefers or values a given situation. The personal utility is a function of someone’s lifetime well-being: the higher your lifetime well-being in a given situation, the more you prefer that situation and the higher your utility for that situation.
Person affecting utilitarianism only values what people themselves want or prefer, i.e. their personal utilities. It focuses on what people themselves experience, how they are personally affected by our choices. Impersonal values such as naturalness, biodiversity, ecosystem integrity, total well-being or average well-being are not important in a person affecting theory, because these impersonal values are not the personal utilities of an individual person. Nature itself is not a person that experiences and values naturalness. An ecosystem is not a person that experiences and values its biodiversity. A population is not a ‘collective person’ that experiences and values its total or average well-being.
As a moral agent, I can give values to e.g. biodiversity, total well-being or your well-being. If I give value to your well-being, there is always someone else, namely you, who also values this property of well-being. You experience and value your well-being. But if I give value to biodiversity, there is no other person who experiences and values this biodiversity, because an ecosystem doesn’t value anything. And as a moral agent I can value the total well-being of a population, but there is no person who experiences and values this total well-being.
With the personal utilities we can measure complaints. Person affecting utilitarianism focuses on these utilitarian complaints of people, where the objective is to minimize complaints. In this sense, person affecting utilitarianism is chosen to be the ethical theory that is most preferred by individual persons, in the sense that this theory by definition has the least objections or complaints against it.
To measure complaints, take a person P who exists in situation S. In situation S that person has a preference or utility u(P,S,S) for that situation S and a utility u(P,S,X) for any other possible situation X. Suppose that B is the best possible situation for person P who is in situation S, i.e. u(P,S,B) is a maximum. In situation S this person P has a maximum complaint u(P,S,B)-u(P,S,S). This complaint measures how strongly person P in situation S prefers the best possible situation B above his or her actual situation S. Now we can take the sum over all persons of everyone’s individual maximum complaint in situation S. (Note that if a person Q does not exist in situation S, he or she does not have preferences so all utilities u(Q,S,X) are zero for all situations X.) The optimal situation O is the situation that minimizes this total maximum complaint.
So we have to choose the situation where the total of everyone’s maximum complaint is minimized, and someone’s maximum complaint is the difference between the maximum utility that the person could have in the situation that is best for (most preferred by) that person minus the utility of that person in the given situation.
Externality free complaints
The above complaints are utilitarian complaints. They are based on personal utilities, which means they are taken from the perspective of the persons themselves. However, we can make a further distinction between externality dependent and externality free complaints.
For the five people on the track in the second trolley dilemma, there is no negative externality if a heavy person is introduced who has this basic right not to be used. In both situations with and without the heavy person, the five people cannot be saved. So in a sense the five people on the main track cannot complain that the heavy person has this basic right not to be used, because the situation where that heavy person has this right is basically the same as the situation where the heavy person is absent. In the first dilemma with the switch, on the other hand, the people on the main track can complain if there is a person on the side track with the right not to be killed.
Of course, the five people on the track in the second trolley dilemma can complain if they are not saved by the sacrifice of the heavy person. But this complaint does not depend on an externality. It is an externality free complaint. Now we can say that externality free complaints are weaker or less valid than externality dependent complaints. If these externality free complaints are not valid at all, we should only minimize the total of maximum externality dependent complaints. Now we arrive at a deontological ethic that has an absolute basic right not to be used as merely a means.
Minimization of externality dependent complaints in the trolley dilemmas
Let us apply this idea of complaint minimization to the trolley dilemmas. In the second trolley dilemma we have two situations: inaction (letting the five die) and action (pushing the heavy person). Suppose death results in a complaint of one unit of utility.
In the situation of inaction, the heavy person is not harmed and does not complain. But the five people are killed by the trolley, whereas they would be alive in the situation of action. So according to utilitarianism, those five people have a total complaint of five units of utility. However, in a deontological theory these complaints are externality free and hence not valid. Their restricted, externality dependent complaint is zero.
Now let’s look at the complaint of the heavy person in the situation of action. In that situation, the heavy person is harmed or killed by the trolley. The heavy person prefers the situation of inaction, and that situation is possible because the presence of the five people is not necessary to choose the situation of inaction. You can still refrain from pushing the heavy person (and hence not killing the heavy person) even if there are no people on the track. If the five people have a right to live (and hence the right not to be killed by the trolley), their rights generate a negative externality for the heavy person, because for the heavy person it would have been better if there would be no-one on the track who has a right to live. If there are no right holders on the track, action (pushing the heavy person) would be clearly impermissible. The complaint of the heavy person is externality dependent and hence counts.
So in the situation of action, the heavy person dies and hence has one unit of complaint, which is a valid complaint, whereas the five people have no complaints, because they don’t die. In the situation of inaction, the heavy person has no complaint and the five people do not have valid complaints because their only complaints are externality free. In a deontological ethic, the total valid complaint in the situation of action is one and hence higher than the total valid complaint in the situation of inaction, which is zero.
Why there is only one basic right
There are different rights, such as the right not to be killed against ones will and the right not to be used against ones will. Suppose we add a person, and this person is accompanied with a set of rights. Does this addition of the person generates a cost for others? It depends on the rights of that person. If a person is added on the side track in the first trolley dilemma, and if this person is accompanied with a right not to be killed, this addition of the person poses a negative externality on others on the main track. But there is one right that never poses negative externalities on others: the right not to be used as merely a means. In a sense it is the only right that does not harm others. No matter how many people we add and no matter where we add them in any situation, if these people are accompanied with the basic right not to be used, no-one else can complain, because no-one else is harmed by this introduction of the new people. This is what makes the basic right so special.
Why the basic right is compatible with pure altruism
A purely altruistic theory only looks at what is good for other people (for everyone). What is good depends on what a person wants or prefers, i.e. his or her utilities. Pure altruism values what other individuals value, so a pure altruist doesn’t promote his or her own, impersonal values such as naturalness, biodiversity or total well-being. A pure altruist promotes what other people want, by minimizing the personal, utilitarian complaints.
It is often claimed that a deontological ethic (that values the basic right not to be used as merely a means) cannot be purely altruistic, because for a person who is killed by a trolley, it probably doesn’t matter whether he or she is killed and used as a means (as is the case for the heavy person who is pushed in the bridge dilemma) or is rather killed by a trolley as a side effect (as is the case for the victim on the side track in the first trolley dilemma). For the victim, only the consequences matter, and in both situations the consequences are the same: the person dies.
The crucial idea of altruism is to look at things from the victim’s perspective, taking into account what the victim wants. But if the victim only cares about the consequences of actions, it doesn’t matter for him or her whether he or she is used as a means or not. The basic right doesn’t look at the consequences, so the basic right is not valued by the victim. If we focus on the victim, what he or she really wants, the basic right becomes irrelevant.
Does this mean that our preference for respecting this basic right is not purely altruistic? No, altruism not only looks at one victim (the heavy person or the person on the side track in the trolley dilemmas), but at all people involved in the situation (including the five people on the main track). And in particular it looks at all the complaints of all those people. Altruism is compatible with making the distinction between externality free and externality dependent complaints. Some complaints are more valid than others, depending on whether or not they cause negative externalities. So altruism becomes compatible with the basic right not to be used as a means.