Matthew Hanser. the Metaphysics of Harm. Philosophy and Phenomenological Research, Vol. 77, No. 2 (Sep., 2008), Pp. 421-450

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The Metaphysics of Harm Author(s): Matthew Hanser Source: Philosophy and Phenomenological Research, Vol. 77, No. 2 (Sep., 2008), pp. 421-450Published by: International Phenomenological SocietyStable URL: http://www.jstor.org/stable/40041242Accessed: 29-08-2015 21:47 UTC

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The Metaphysics of Harm

MATTHEW HANSER

University of California, Santa Barbara

Philosophy and Phenomenological Research Vol. LXXVII No. 2, September 2008 © 2008 International Phenomenological Society

Harm seems to have special moral significance. We have strong reason to avoid causing it and to come to the aid of those who have suffered it. But what exactly is it to suffer harm? In this article I try to go some distance towards answering this question.

We speak both of a person's suffering harm and of his being harmed. I shall assume, provisionally, that being harmed is roughly equivalent to being caused to suffer it. Likewise, harming someone is roughly equivalent to causing him to suffer it. Suffering harm is thus the more fundamental notion. And I take it that to suffer harm is simply to be its subject: connotations of pain and anguish should be ignored. Similarly, when I write, for the sake of variety, of someone's experiencing harm, this should be taken to imply nothing about the subject's conscious experiences.

The accounts of harm currently on offer seem all to be state-based, in the following sense: they hold that to suffer harm is to be put into (or is perhaps simply to be in) a certain sort of bad state or condition. According to such accounts, a harm's status as a harm derives from the badness of this state. The most widely accepted state-based accounts are comparative: they hold that to suffer harm is to be put into a certain sort of comparatively bad state - a state that is worse for one than some relevant alternative state. Different comparative accounts identify the relevant alternative differently. According to the counterfactual comparison account, to suffer harm is to be made worse off than one otherwise would have been. According to the temporal comparison account, to suffer harm is to become worse off than one was before. In order to be made fully determinate, of course, each account must be supplemented with an account of what it is to be worse off in one state than in another.

A full account of harm should (a) tell us what it is to suffer harm, (b) explain why it is bad to suffer harm, and (c) give us some idea how

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to measure the relative seriousness of different harms. Comparative accounts provide admirably simple answers to these questions. To suffer harm is to be made worse off; suffering harm is bad because it involves being made worse off; and a harm's seriousness is proportionate to how much worse off its subject is made. But there are problems with comparative accounts, some of which I shall discuss below. In part because of these problems, some have suggested that to suffer harm is to come to be in - or perhaps better, is simply to be in - a certain sort of non-comparatively bad state. It is to come to be in (or is simply to be in) a state in which one fares, not worse than one fared, or would have fared, in some alternative state of affairs, but simply badly. The seriousness of a given harm, according to this way of think- ing, is proportionate to the (non-comparative) badness of this state. Let us call this the non-comparative account. In order to be made fully determinate, it must be supplemented with an account of what it is for a state to be non-comparatively bad for one.

Now it might appear that together, comparative and non-comparative accounts exhaust the options. According to comparative accounts, suffering harm is a matter of coming to be in a comparatively bad state; according to the non-comparative account, it is a matter of coming to be in (or is simply a matter of being in) a non-comparatively bad state. But there is another option. Perhaps suffering harm is a matter of undergoing an event whose status as the undergoing of a harm does not derive from the badness of any associated state at all. Perhaps the event of undergoing a harm is bad in its own right, so to speak, just in virtue of being the sort of event it is. That is the possibility I shall explore and defend later in this article. But first I shall discuss some of the pros and cons of state-based accounts. The account I later recommend will be developed, in part, in response to the inadequacies of these accounts.

I. State-based Accounts Before the various state-based accounts can be assessed they must be precisely stated in their strongest forms. I begin with the counterfactual comparison account.

According to the counterfactual comparison account, to suffer harm is to come to be worse off than one otherwise would have been. The level of well-being a person 'otherwise' would have enjoyed is the level he would have enjoyed had things not gone as they actually did. Mak- ing this quantification over events explicit, let us say that according to the counterfactual comparison account, a person suffers harm if and only there occurs some event e such that he would have been better off

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had e not occurred.1 Now how are we to think of the state in which such a person finds himself, namely that of being worse off than he would have been had e not occurred? Is this state identical to the harm he suffers? Or is it rather the defining result of the harm he suffers - is it, in other words, a harmed state? I am not sure that anything hangs on this choice, but most proponents of the counterfactual account take the latter path.2 When someone would have been better off had a certain event not occurred, then, let us say (i) that he is in a harmed state relative to that event's occurrence, and (ii) that the event comes to him as a harm. It is important to see that according to this account, the notion of harm is relational. If someone would have been better off had an event Ei not occurred and also had a distinct event E2 not occurred, then he is in two distinct harmed states: that of being worse off than he would have been had Ej not occurred and that of being worse off than he would have been had E2 not occurred. He has suffered two harms, one relative to the occurrence of E! and another relative to the occurrence of E2. Conversely, if there is no event such that he would have been better off had that event not occurred, then he is not in a harmed state at all, no matter how badly off he may be in absolute terms.

It is natural, although not logically necessary, for the proponent of the counterfactual comparison view to adopt a parallel account of benefit, one according to which a person receives a benefit if and only if there occurs an event e such that he would have been worse off had e not occurred. Now suppose that someone would indeed have been worse off had a certain event not occurred. Continuing the parallel, we can say (i) that he is in a benefited state relative to that event's occurrence, and (ii) that the event comes to him as a benefit. According to this extended counterfactual comparison view, a person can be simultaneously in both a harmed and a benefited state, so long as the harm is relative to the occurrence of one event and the benefit is relative to the occurrence of another. Indeed, according to this view most people are pretty much constantly in multiple harmed and benefited states. Typi- cally there are numerous events in a person's past whose nonoccurrence would have left him better off, and likewise numerous events whose nonoccurrence would have left him worse off.

Despite this profusion of harms and benefits, the counterfactual comparison account, as presently formulated, fails to recognize certain

1 Alternatively, we could quantify over facts: a person suffers harm if and only if there obtains a fact / such that he would have been better off had / not obtained. The difference between these two formulations will rarely matter in what follows. When it does I shall say so.

2 See, for example, Feinberg 1984, p. 31.




genuine harms. Suppose a soldier loses a foot in combat. And suppose that had he not lost his foot and been removed from the field of battle, he would have lost both his arms shortly thereafter. Since the soldier would have fared even worse had he not received his actual injury, the counterfactual comparison account, as presently formulated, implies that his injury comes to him as a benefit, not a harm. But although the soldier is arguably better off on balance for having lost his foot, that injury, considered in itself, surely still constitutes a harm. Another way of making the point is this. Sometimes an agent can bestow a benefit upon another only at the cost of inflicting upon him a lesser harm. It is a substantive question, to be addressed by normative moral theory, whether and under what conditions an agent presented with such an opportunity may proceed. But the counterfactual comparison account, as formulated above, prevents the question from even arising. In such cases the account recognizes no lesser harms, only benefits.

The problem is easily addressed. There are many components or aspects to a person's well-being. A single event can make someone better off in one respect but worse off in another. The counterfactual comparison account should thus be revised to say that a person suffers harm if and only if there occurs an event e such that had e not occurred, the person would have been better off in some respect. Like- wise for receiving a benefit. According to this revised account, a person can be simultaneously in both a harmed and a benefited state relative to the occurrence of a single event. He can be worse off in one respect, but better off in another, than he would have been had the event not occurred.

Now suppose that for a time someone is worse off in some respect than he would have been had a certain event not occurred, but that thereafter, and then for a much longer time, he is very much better off in that same respect. Think of the title character of the 1970s television show The Six Million Dollar Man, whose legs were shattered in an accident but who was then given 'bionic' replacement legs enabling him to run faster and jump higher than he ever could before. Although in the long run, so to speak, the event in question (the shattering of his legs) came to him as a benefit, I think we should grant that it at first came to him as a harm. And we should be able sensibly to pose the question whether and under what conditions an agent may cause someone to suffer a short-term harm for the sake of bestowing upon him a longer- term benefit, where the harm and the benefit are both with respect to the same aspect of the person's well-being. So let us revise the account once more: a person suffers harm if and only if there occurs an event e such that had e not occurred, he would have been better off in some respect for some interval of time. Likewise for receiving a benefit.

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According to this doubly-revised version of the counterfactual comparison account, a single event can come to someone both as a harm and as a benefit with respect to a single aspect of his well-being. What is impossible is that a person should be simultaneously in both a harmed and a benefited state with respect to a single aspect of his well-being, relative to the occurrence of a single event.

I turn now to the temporal comparison account, according to which suffering harm is a matter of becoming less well off than one was before. For reasons outlined above, this should be emended as follows: suffering harm is a matter of becoming less well off in some respect than one was before. Now the quantification over times is fairly close to the surface here, but for the sake of clarity it should be made explicit. Let us say, then, that according to the temporal comparison account, a person suffers harm if and only if there are a time // and a later time t2 such that the person is in some respect worse off at t2 than he was at tj. Let us say further that a person is in a harmed state at t2, relative to an earlier time th if and only if he is in some respect worse off at t2 than he was at th And let us say finally that for any interval of time trt2 (where // is prior to t2), a person suffers a harm over that interval if and only if he is at t2 in a harmed state relative to th

As before, we may suppose that the proponent of this account would accept a parallel account of benefit. According to the temporal comparison account, then, a person can be simultaneously in both a harmed and a benefited state with respect to a single aspect of his well-being, so long as the harm and the benefit are relative to different earlier times; and he can be simultaneously in both a harmed and a benefited state relative to a single earlier time, so long as the harm and the benefit are with respect to different aspects of his well-being. He can also be for a time in a harmed state, with respect to a certain aspect of his well-being and relative to a certain earlier time, and then later in a benefited state, with respect to that same aspect of his well-being and relative to that same earlier time. What is ruled out is that a person should be simultaneously in both a harmed and a benefited state, with respect to a single aspect of his well-being, relative to a single earlier time.

Finally, let us consider the non-comparative account. According to this account, a person suffers harm at a time if and only if he is in a certain kind of non-comparatively bad state at that time. (I think this formulation is better than one according to which suffering harm is a matter of coming to be in a non-comparatively bad state. The latter formulation would yield a hybrid account containing both comparative and non-comparative elements - for a person 'comes to




be' in a certain non-comparatively bad state only if he wasn't in it earlier, and presumably he suffers harm in making the transition only if his new state is worse than his old one.3) Now this account's name is potentially misleading: there are various ways in which a value judgment might depend upon a comparison, and the proponent of the non-comparative account needn't mean to rule out all of them. In what sense, then, are states of harm supposed to be non- comparatively bad? This question can perhaps most easily be answered if we consider a particular version of the account, one that identifies harms with states of impaired functioning. It is arguable that when we judge states of impaired functioning to be bad, we are really comparing them unfavorably to states of proper functioning.4 For example, to say that blindness is bad for a human is really to say that being blind is worse for a human than being able to see, the latter being the state proper for a human. I take it that the proponent of the non-comparative account needn't reject this analysis. Indeed, he could hold the view that every apparently non-comparative value judgment implicitly invokes a comparison with some (perhaps unattainable) ideal or norm. When a proponent of the non-comparative account says that states of impaired functioning are 'non-comparatively' bad, he means rather that it is bad for a person to be in such a state regardless of whether a better state was ever a genuine alternative for him. Blindness, for example, is bad for a human even if it is congenital and there is no prospect for its elimination. It is bad for him even if it is essential to his identity - even if there is no possible world in which he ever sees. In judging someone who lacks the power of sight to be in a bad condition, according to this view, we aren't comparing his condition unfavorably to some condition that he was earlier in, or that he might have been in now if only things had gone differently. In short, the proponent of the non-comparative account means to rule out only comparisons of the sort appealed to by the counterfactual and temporal comparative accounts.

I have briefly described one version of the non-comparative account. Others are of course possible. Seana Shiffrin, for example, has proposed a version according to which harms are "conditions that generate a significant chasm or conflict between one's will and one's

3 According to another possible hybrid view, someone suffers harm if and only if he's in a non-comparatively bad state that's worse than the state he would have been in had some event not occurred.

4 For an argument that judgments employing 'good' or 'bad' are always reducible to ones employing 'better' or 'worse,' see Broome 1993.

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experience, one's life more broadly understood, or one's circumstances."5 For my purposes, however, the differences among possible versions are unimportant. As with the comparative accounts, my interest is in the basic structure that all version of the account share.

II. Problems I shall now examine various potential problems facing the accounts just outlined.

A. Preventative Harms It is sometimes said that the counterfactual comparison account mis- takenly classifies every case in which an agent fails to benefit a subject as a case in which the subject suffers harm. Suppose that a doctor fails to perform an operation that would have restored a blind person's sight. Had the doctor not failed to perform the operation - that is, had he performed it - the patient would have been better off in an important respect. So doesn't the counterfactual comparison account entail that the doctor's non-performance of the operation comes to the patient as a harm? No, it does not. Or rather, the account entails this only if the doctor's non-performance of the operation is taken to constitute an event. Now there is admittedly a dispute in the literature over whether non-occurrences are a species of event, but suppose we adopt the initially more appealing position that they are not. In that case there occurs no event such that the patient would have been better off had it not occurred. All we can say is that the patient would have been better off if an event of a certain sort had occurred; and from this it does not follow that the patient suffers harm. What follows, according to the counterfactual comparison account, is that if an event of that sort had occurred - if the doctor had performed the operation - the patient would have received a benefit.

Although the counterfactual comparison account does not entail that people suffer harms whenever others fail to benefit them, it does entail that they suffer harms whenever they are prevented from receiving benefits. Suppose that a tree falls, blocking the path of a doctor who is on his way to restore someone's sight. For whatever reason, the operation could only be performed today, and no other doctor has the necessary expertise. So the patient never receives the operation. Here there does occur an event - the falling of the tree - such that the patient would

5 Shiffrin 1999, p. 123. She elaborates upon her account, and defends it at greater length, in Shiffrin (unpublished). Her remarks on the harm of death, however, suggest that she may not mean to defend a non-comparative account as defined here. See note 24 below.




have been better off in an important respect had it not occurred. The counterfactual comparison account thus entails that the falling of the tree comes to the patient as a harm. This result, however, seems acceptable. Indeed, it seems desirable: intuitively, when an agent actively prevents someone from receiving a benefit, he thereby harms him.

Let us say that when someone is prevented from receiving a benefit, he suffers a preventative harm. The subject of a preventative harm comes to be worse off in some respect than he would have been had the relevant event not occurred; the counterfactual comparison account thus accommodates the existence of preventative harms.6 But a satisfac- tory account of harm should arguably do more than this: it should arguably classify preventative harms as harms of a distinctive type. For the distinction between preventative harms and 'ordinary' harms seems to matter morally. It would generally be impermissible, for example, to blind one sighted person in order that two others might have their sight restored; but it might well be permissible to prevent one blind person from having his sight restored in order that two others might have their sight restored instead (say by diverting to the two scarce medical resources originally slated for the one).7 Can the counterfactual comparison account distinguish preventative harms from ordinary harms? Initially it would appear not. Initially it would appear that the account can distinguish harms only by the aspect of well-being involved or by the degree to which the subject ends up worse off than he would otherwise have been. But an ordinary harm and a corresponding preventative harm can be alike in both these respects. Compare the state of someone who has been deprived of his sight with that of someone who has been prevented from having his sight restored. Both are worse off with respect to their power of sight than they would have been had some event not occurred, and we may suppose that they are worse off to the same degree. From the point of view of the counterfactual comparison account, then, there would seem to be no difference between the harms they suffer.

In fact, however, the counterfactual comparison account has additional resources for distinguishing harms. Consider Joel Feinberg's

6 There are some preventative harms whose existence the counterfactual comparison account cannot accommodate, namely those that are also preemptive. I shall discuss the problem of preemptive harms separately, in Section II. D.

7 Similarly, Shiffrin has argued (using different terminology) that the distinction between preventative and 'ordinary' benefits matters morally. It may be permissible to harm someone, without his prior consent, in order to prevent him from suffering an even greater harm (that is, in order to bestow upon him a more-than- compensating preventative benefit), but it is not generally permissible to harm someone, without his prior consent, simply in order to bestow upon him some more-than-compensating 'ordinary' benefit. See Shiffrin 1999, pp. 126-130.

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version of the account. He holds that an event comes to someone as a harm if and only if it leaves one of his interests in worse condition than it would have been in had the event not occurred.8 But Feinberg distinguishes different ways in which this might happen. If the interest is now in decline, it has been "set back"; if its upward trajectory has been stopped, it has been "thwarted"; if its advancement has merely been slowed, it has been "impeded."9 And of course there are other possibili- ties. Now when someone is deprived of his sight, one of his interests is set back, and when someone is prevented from having his sight restored, that same interest is thwarted. The two harms can thus be dis- tinguished by their 'comparative profiles,' so to speak.10 This maneuver will not work, however, when the preventive harm consists in the person's being prevented from receiving a preventative benefit. If losing one's sight is a harm, then being prevented from losing one's sight is a preventative benefit; and if being prevented from losing one's sight is a preventative benefit, then being prevented from being prevented from losing one's sight is a preventative harm. From the comparative point of view, however, there is no difference between the ordinary harm of losing one's sight and the preventative harm of being prevented from being prevented from losing one's sight. The two have identical comparative profiles. So while the counterfactual comparison account can distinguish some preventative harms from ordinary harms, it cannot draw the distinction in all cases.11

I turn now to the temporal comparison account. According to this account, a person suffers harm if and only if he comes to be worse off in some respect than he was before. When someone suffers a preventative harm, however, he needn't come to be worse off than he was before. He may simply stay as he was. He may even come to be better off than he was before. (The harm might consist in his having his rate of improvement slowed.) There are thus many preventative harms whose existence the temporal comparison account cannot accommodate. And even when it can accommodate the existence of a given preventative harm - even when the subject of the

8 Feinberg 1984, p. 34.

9 Feinberg 1984, p. 53.

10 If we wish to say not just that the harm of losing one's sight and the harm of being prevented from having one's sight restored differ in kind, but also that the former is more serious than the latter, we cannot hold that a harm's seriousness is a func- tion solely of the difference between the subject's actual level of well-being and the level of well-being he would otherwise have enjoyed. In order to distinguish the seriousness of these harms, the proponent of the counterfactual comparison view must modify his account of how the seriousness of harms is determined.

11 Furthermore, it is hard to see why it should matter morally whether an interest is set back or merely thwarted.




preventative harm does come to be worse off than he was before - the account lacks the resources to distinguish this harm from an ordinary harm. In each case the subject simply experiences a decline in well-being.

What of the non-comparative account? According to this account there is no such thing as a distinctively preventative harm. To suffer harm is to be in a non-comparatively bad state, and from a non-comparative perspective there is no difference between the state of someone who has been deprived of his sight and that of someone who has been prevented from regaining it. Both simply lack the power of sight - that is the harm they both suffer. The difference between their cases lies rather in the nature of other people's agency with respect to their suffering of this harm. Instead of distinguishing two types of harm, then, the non-comparative account must distinguish two types of harming. As we might put it, an agent who blinds someone performs an act of 'ordinary' harming, whereas an agent who prevents someone from regaining his sight performs an act of preventative harming. The agent of the preventative harming does not cause the subject to suffer a new harm. Rather, he helps ensure the continuation of the harm the subject was already suffering. (Of course the distinction between these two sorts of harming must still be made out, but I shall not pursue that here.)

According to the non-comparative account, however, not every case in which one person prevents another from receiving a benefit is a case in which the agent performs an act of preventative harming. If an agent prevents someone from having his non-comparatively bad condition improved, then yes, he performs an act of preventative harming. But if the agent prevents someone in a non-comparatively good condition from having his condition improved, he does not perform an act of preventative harming. In order for there to be an act of preventative harming, someone must suffer harm, and if no one is in a non-comparatively bad state, no one suffers harm. Here the counterfactual comparison account and the non-comparative account diverge. According to the former account, when someone in a good condition is prevented from having his condition improved, he suffers harm. According to the latter account, he does not. Since this difference is just a special case of the difference to be addressed in the next subsection, I shall defer until then the question which account should be preferred on this score.

Let us take stock. Of the two comparative accounts, the counterfactual comparison account is so far to be preferred. Although it cannot always distinguish preventative harms from ordinary harms, it at least recognizes that people are harmed when they are prevented from

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having their conditions improved. The temporal comparison account does not recognize this. But the non-comparative account is also in contention. It does not recognize the existence of preventative harms, but it can still say that an agent who prevents a subject from having his non-comparatively bad condition improved thereby harms him.

B. Worse Off But Not Badly off In order to determine whether someone has suffered harm, and to measure the magnitude of that harm, comparative accounts look only at the difference (if any) between the subject's actual (or present) level of well-being and the level he would have enjoyed (or previously did enjoy) in some relevant alternative state of affairs. The subject's absolute level of well-being is immaterial. It doesn't matter how high up or down the scale the levels being compared lie; all that matters is the size of the gap separating them. But perhaps this is a mistake.

Suppose that I must either cause a very well off person to undergo a moderate decline in well-being or cause a much less well off person to undergo a decline of equal magnitude. And suppose that although the well off person would remain quite well off after his decline, the less well off person would be pushed below an important threshold: he would come to be not just worse off than he was before, and worse off than he otherwise would have been, but badly off. It is surely plausible to say that given this choice, I should cause the well off person to undergo the decline. More generally, it is surely plausible to say that the duty to avoid causing people to become badly off takes prece- dence over the duty, if there even is one, to avoid causing people to become merely worse off. Similarly, suppose that I can aid either someone who has suffered a decline but remains quite well off or someone who is truly badly off. It is surely plausible to say that I should aid the badly off person. Perhaps I have no reason at all to aid the well off person. It has been argued that such observations provide grounds for holding that only those who are badly off suffer harm. After all, harm is supposed to be something that is especially important, morally speaking: we have especially strong reason to avoid causing it and to come to the aid of those who have suffered it. We should thus reject comparative accounts of harm in favor of the non-comparative account.12

Before we can evaluate this argument we must distinguish between accounts of what it is to suffer harm and accounts of how to measure the relative seriousness of different harms. The observations

12 Shiffrin presents a number of arguments along these lines in Shiffrin 1999 and Shiffrin (unpublished).




presented above provide compelling grounds for rejecting purely comparative accounts of how to measure the relative seriousness of different harms. Other things being equal, a harm that leaves its subject badly off is more serious than one that doesn't. That is why we have stronger reason to avoid causing such harms and to come to the aid those who have suffered them. But it does not follow that purely comparative accounts of what it is to suffer harm are mistaken. It might yet be the case, for example, that someone suffers harm if and only if there occurs an event such that he would have been better off had it not occurred. Perhaps the subject's absolute level of well-being matters only when it comes to determining how serious a harm he suffers.

The question, then, is whether someone who has been made worse off, but who remains well off in absolute terms, has thereby suffered a harm, albeit a less serious harm than he would have suffered had he instead been caused to be badly off. Imagine that as a result of a stroke, a Nobel Prize winner has come to have merely average intellectual powers. And let us suppose, plausibly, that having average intellectual powers is not bad for a person, non-comparatively speaking.13 Did the stroke come to the Nobel Prize winner as a harm? I think it did. Indeed, I think it came to him as a very serious harm, although not as serious as the harm that someone of average intelligence would have suffered in coming to be severely intellectually impaired. If this is correct, we should reject the non-comparative account of what it is to suffer harm. It must be admitted, however, that this reasoning is not conclusive. The proponent of the non-comparative account could agree that the Nobel Prize winner's loss is very bad for him. He will simply insist that the loss does not constitute a harm. And lest it be thought that this is a cheat, note that proponents of comparative accounts must say something similar about another sort of case. Suppose someone is seriously, congenitally cognitively impaired. His cognitive powers have never been greater than they are now, and there has occurred no event such that his powers would have been greater had it not occurred. Pro- ponents of comparative accounts must say that no matter how bad for him this person's condition is, and no matter how strong a reason we have to aid him, he is not in a harmed state with respect to his cognitive powers.

13 This example would not work against Shiffrin's version of the non-comparative account, since the Nobel Prize winner's post-stroke condition presumably conflicts with his will. According to Shiffrin's account, the Nobel Prize winner's new condition arguably is non-comparatively bad for him. I am inclined to think, however, that certain losses can be bad for people even if they don't object to them. If so, examples could be found that would work against Shiffrin's account.

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The considerations raised in this subsection, then, conclusively favor neither comparative nor non-comparative accounts of what it is to suffer harm. The only firm conclusion we can draw is that proponents of comparative accounts of what it is to suffer harm should not accept purely comparative accounts of how to determine the relative seriousness of different harms. They should devise hybrid accounts that factor in both the magnitude of the subject's loss and the absolute value of his resulting state.

C. Excessive Multiplication of Harms

Suppose that A shoots B, causing him to become paralyzed from the waist down. A whole series of causally linked events occur here, among which are A's pulling of the trigger, the gun's going off, the bullet's entering B's body, and B's becoming paralyzed. According to the counterfactual comparison account, B is in a distinct harmed state relative to each of these events: he is worse off than he would have been had A not pulled the trigger; he is worse off than he would have been had the gun not gone off; he is worse off than he would have been had the bullet not entered his body; and he is worse off than he would have been had he not become paralyzed. Each of these events, then, comes to him as a separate harm. But I think this is clearly the wrong way to describe the situation. What we have here are not four separate harms, but a single harm - B's becoming paralyzed - with multiple causal antecedents. The counterfactual comparison account collapses the distinction between events that cause people to suffer harms and the harms that the people are thereby caused to suffer. From the point of view of the counterfactual comparison account, A's pulling of the trigger and B's becoming paralyzed are on a par: each is simply an event such that B would have been better off had it not occurred.

An acceptable account of harm should be able to isolate harms from their causal antecedents. Since the temporal comparison account does not relativize harms to events, it would appear to be better placed to meet this desideratum. The temporal account, however, faces a parallel problem. Suppose that B's well-being has fluctuated considerably over the years, periodically peaking at a certain level. Let tu t2 and t3 be times at which peaks occurred. It is now t4, a time shortly after t3, and B's level of well-being is once more in decline. B is worse off than he was at t3, so according to the temporal comparison account he is in a harmed state relative to that time. This seems acceptable. But B is also worse off than he was at tj and at t2. According to the temporal account, then, B is also in harmed states relative to each of these other




times. And this seems wrong. When one undergoes a drop in well- being, one does not undergo a separate harm relative to each earlier moment in one's life at which one fared better.14

The problems described in this subsection do not arise for the non- comparative account. Comparative accounts multiply harms excessively precisely because they ground harms in comparisons. According to the counterfactual comparison account, harm consists not in a person's being badly off, but in his being worse off than he would have been had some event not occurred - and there are innumerable events with respect to which this comparison can be made. Similarly, the temporal comparison account holds that harm consists in a person's being less well off than he was at some earlier time - and there are innumerable earlier times with respect to which this comparison can be made. According to comparative accounts, at a given time a person is potentially the subject of as many harms as there are alternative states to which his present, actual state can be compared. According to the non- comparative account, by contrast, to suffer harm is to be in a state whose badness does not depend upon any such comparison. Of course a person can be in more than one non-comparatively bad state at a time. He can, for example, be simultaneously both blind and paralyzed. But there is nothing excessive about this multiplicity of harms. Here, then, we have a strong reason for preferring the non-comparative account to either of the comparative accounts.

D. Preemptive Harms

Suppose that a criminal wants to steal from S's store. Since the bur- glary will go more smoothly if S is not present, the criminal hires some thugs to break S's legs the day before the proposed crime. When the thugs arrive at S's home, however, they find that the local loan shark is already there breaking S's legs. So they abandon their plan. The counterfactual comparison account yields the surprising, and to my mind unacceptable, result that S suffers no harm in this case. Had the loan shark not broken S's legs, the thugs would have broken them anyway, at approximately the same time. There consequently occurs no event such that S would have been better off had it not occurred.

Now obviously there are alternative scenarios in which S would have fared better. He would have fared better, for example, had the loan

14 Suppose that B's level of well-being drops continuously between t3 and t4. At t4 B is worse off than he was at t3, but he is also worse off than he was at any moment between t3 and t4. If time is continuous, it follows that at t4 B is in a harmed state relative to continuum many earlier times. But I do not find this multiplication of harms objectionable. There is a clear difference between multiplicities generated by the part-whole relation and multiplicities of the sort discussed in the text.

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shark not broken his legs and had the thugs not also been out to do the same. If the counterfactual comparison view could somehow con- trive to compare S's actual fate with his fate in this counterfactual scenario, it could yield the correct result. So perhaps we should revise the account to say that someone suffers harm if and only if there occurs an event such that he would have been better off, for some period of time and in some respect, had neither that event nor any relevantly similar event occurred. This revision requires clarification. First, what it is for two events to be 'relevantly' similar? I am not sure that this can be explained in a way that does not presuppose the notion of harm. Sec- ond, when we make our comparison, are we to imagine only that no relevantly similar event occurs at the time of the actual event's occurrence, or are we to imagine that no such event occurs either then or at any time thereafter? Suppose that if the loan shark had not broken S's legs at /, the thugs would have done so a short time later. If we take the former option, we get the result that S suffers only a negligible harm. Had the loan shark not broken his legs at /, and had no one else broken them at /, S would have been only briefly better off. Further- more, although the breaking of his legs would have been briefly delayed, his recovery would also have been briefly delayed. So in having his legs broken by the loan shark, S would have received both a tiny harm and a tiny benefit. This analysis is clearly unacceptable. The latter option, however, runs into trouble when the event at issue is the subject's death, for it seems to require us to compare the scenario in which he dies here and now with one in which he is immortal. But why should our criterion of harm rely upon such an unrealistic comparison? And how are we to conceive of the subject's immortality? Does he remain forever as he is now, or does he continue to age and then spend an eternity in a decrepit, senile state? Problems arise either way. So some intermediate position seems called for: we should imagine that no relevantly similar event occurs for some finite period of time. But it seems unlikely that this period can be specified non-arbitrarily and without creating further difficulties.15

Even if we set these worries aside, there is a more fundamental problem with the proposed revision to the counterfactual account. Accord- ing to this revision, someone suffers harm if and only if there occurs

15 For a thorough exploration of the difficulties the counterfactual comparison account must overcome if it is to solve the problem of preemptive harms for the case of death, see Jeff McMahan 2002, pp. 120-127. McMahan ultimately argues that these difficulties cannot be overcome. But rather than reject the counterfactual comparison account (a modified version of which he defends), McMahan concludes that a subject doesn 7 suffer harm in dying if something else would have killed him at around the same time anyway had the actual cause of his death not operated first.




an event such that he would have been better off, for some period of time and in some respect, had neither that event nor any relevantly similar event occurred. This means that in our example, S suffers harm because he would have been better off had it not been both that the loan shark broke his legs and that the thugs were out to do the same. But even if this is enough to justify us in saying that S suffers harm in our example, it is not enough to justify us in saying what we should also want to say, namely that the loan shark's breaking of his legs comes to him as a harm, and that he is in a harmed state relative to that event's occurrence. For again, that event's occurrence, taken by itself, leaves him no worse off than he otherwise would have been. S would have been better off only if that event hadn't occurred and had the thugs not also been out to break his legs. From a comparative point of view, then, it is these two factors taken together that come to him as a harm. But that seems wrong. The loan shark and the thugs do not jointly harm S. Intuitively, the loan shark harms S all by himself - the harm S suffers is attributable to him alone. Even if the revised counterfactual comparison account yields the result that S suffers harm, then, it misidentifies what that harm is.16

Let us call harms such as the one S suffers preemptive harms, since they preempt the occurrences of equivalent harms. (In the literature they are often called 'over-determined' harms, but this is misleading. Strictly speaking, an event is over-determined only if it results from the joint operation of two or more causes, each of which would have been sufficient to cause the event on its own.) Other things being equal, an account that can plausibly accommodate the existence of preemptive harms is preferable to one that cannot. The counterfactual comparison account cannot plausibly accommodate such harms, but the temporal comparison account and the non-comparative account can. According

16 Suppose we were to formulate the counterfactual comparison account in terms of facts rather than events: someone suffers harm if and only if there obtains a fact such that he would have been better off, in some respect and for some period of time, had that fact not obtained. Then there would be no difficulty in saying that S surfers harm: he would have been better off had it not been the case that there were people out to break his legs that week. But there would still be a problem in saying that the loan shark alone harms him, since the loan shark is arguably not the sole cause of that fact's obtaining - people would have been out to break S's legs that week even if the loan shark hadn't been among them. Furthermore, this fact-based formulation of the counterfactual comparison account would be unable to distinguish cases in which people suffer harms from cases in which they fail to receive benefits. Suppose a doctor fails to restore a subject's sight. Had this fact not obtained, the subject would have been better off in an important respect. The subject consequently suffers a harm. (Fred Feldman argues that a state of affairs is bad for a subject if and only if the subject would have been better off had the state of affairs not obtained, but he explicitly denies that he is giving an account of harm. See Feldman 1991, pp. 212-217.)

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to the temporal comparison account, a person suffers harm if and only if he undergoes a decline in well-being. It does not matter whether something else would have caused the decline had the actual cause not operated first.17 Similarly, according to the non-comparative account, a person suffers harm if and only if he is in a non-comparatively bad state. It doesn't matter whether something else would have put him into that state had the actual cause not operated first.

E. Death I assume that when someone dies, he ceases to have any level of well-being. The state of being dead has no value for a person, whether positive, negative or neutral. If the dead fare neither well nor badly, however, then the counterfactual comparison view, as presently formulated, cannot adequately account for the possibility of death's coming as a harm. For it is not generally true that a person who dies would have fared better over some interval of time had the event of his death not occurred.18 Had his death not occurred his life would have lasted longer, and we may suppose that he would have fared well over this extra interval of time. But this would not have been an interval over which he would have fared better than he actually fared. In actuality he was dead during this interval, and so had no level of well-being; and in the absence of an actual level of well-being, no comparative judgment can be made.

The proponent of the counterfactual account might argue that the well-being the person would have enjoyed over this extra interval of time is irrelevant. If death comes to him as a harm, it does so because it makes it the case that he was in a comparatively bad state at some point earlier in his life. A person's level of well-being at a given time, or over a given interval of time, can arguably depend upon events that occur in the future. Suppose that at // a person expends great effort to bring about some future state of affairs, and suppose that at t2 an event occurs that prevents that state of affairs from ever obtaining. It is arguable that the event occurring at t2 renders the agent's earlier

17 Although the temporal comparison account can accommodate the existence of preemptive harms, we saw in Section II. A that it cannot accommodate the existence of preventative harms. The counterfactual comparison account, by contrast, can accommodate the existence of preventative harms but not the existence of preemptive harms. This might suggest that we should adopt a disjunctive comparative account according to which someone suffers harm if and only if the conditions of either the counterfactual account or the temporal account are satisfied. But this won't do either. It takes little ingenuity to concoct examples of harms that are both preemptive and preventative.

18 I shall consider a possible exception to this claim presently.




efforts a waste of time. And it is arguable that if he was wasting his time at //, he was worse off at tj than he would have been had he not been wasting his time - worse off, that is, than he would have been had that later event not been going to occur at t2- But if this is right, there is no reason why the later event shouldn't be his death. Perhaps, then, when death comes to someone as a harm, it does so because it renders some of his earlier efforts a waste of time.19 I find this solution uncon- vincing. Death can come as a harm even when one sees it coming and so focuses one's energies on projects that death won't frustrate. Furthermore, even when death does render some of one's earlier efforts a waste of time, surely this accounts for only a very small part of what's bad about it.

If the counterfactual comparison view is to account convincingly for the possibility of death's coming as a harm, it must be revised once again. Instead of comparing the subject's actual and counterfactual levels of well-being over some interval of time, we must compare the amount of well-being he actually enjoys over the course of his entire life with the amount of well-being he would have enjoyed over the course of his entire life had the event of his actual death not occurred.20 If his life would have gone better had his actual death not occurred, then the event of his death comes to him as a harm. If his life would have gone worse, the event of his death comes as a benefit. Note that the lives being compared here - the subject's actual life and his counterfactual life - span different, although overlapping, intervals of time.21

This revision enables the account to explain how death can come as a harm, but it does so at a cost. Prior to the revision, the counterfactual comparison view located harms and benefits temporally: someone

19 As I understand him, Feinberg proposes a version of this solution. But for Fein- berg, the reason why the person who dies was less well off at // than he otherwise would have been is that at // he had interests that were destined to be less well advanced in the future than they otherwise would have been. See Feinberg 1984, pp. 92-93. But while there is some plausibility to the view that one is unwittingly faring badly (comparatively speaking) while one is engaged in efforts that will later be revealed to have been futile, I find it much less plausible to say that one starts faring badly (comparatively speaking) the moment one acquires an interest that a later event will ultimately cause to be less well advanced than it otherwise would have been.

20 This solution is proposed by Feldman 1991, p. 220. 21 Once revised in this way the counterfactual comparison account may no longer

qualify as a 'state-based' account of harm. One's life as a whole hardly counts as a state one is in. Death's status as a harm, then, does not, according to the revised account, derive from its making it the case that one was in a (comparatively) bad state while one was alive. But death's status as a harm does still derive from its making it the case that something else was (comparatively) bad. In this the account differs from the sort of account I shall propose in the next section.

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suffered harm if and only if he was in a harmed state for a certain interval of time, namely the interval during which he was faring worse than he would otherwise have fared. Likewise for benefits. On the revised account, however, spending an interval of time in a comparatively bad state is neither necessary nor sufficient for suffering harm. Instead, all harms and benefits are 'global': a person suffers harm if and only if his life as a whole would have gone better in some respect had some event not occurred, and he receives a benefit if and only if his life as a whole would have gone worse in some respect had some event not occurred. It follows that it is not possible for a single event to come to a person first as a harm and then later as a benefit (or vice versa). So according to the revised account, the six million dollar man's accident comes to him not as a harm, but only as a benefit - for on the whole, over the course of his entire life, he fares better in the leg department than he would have fared had his accident not occurred. I think this is clearly an undesirable result. It may be plausible to treat death as a global harm, but it is not plausible to treat ordinary, non- lethal harms in the same way.

We could avoid making all harms global by treating death as a special case. The account could then be disjunctive: someone suffers harm if and only there occurs an event e such that had e not occurred, either his life as a whole would have gone better in some respect or he would have fared better in some respect over some interval of time. The draw- back to this approach is that it leaves us without a uniform under- standing of what it is to suffer harm. Of course in some ways death is a special case. Still, other things being equal, a uniform account would be preferable.22 So when it comes to explaining how death can be a harm, the proponent of the counterfactual comparison account faces a dilemma. If he replaces his original comparison with a whole-life comparison, he implausibly turns all harms into global harms. If he merely augments his original comparison with a whole-life comparison, he no longer has a uniform account of harm.23

22 It might be suggested that David Velleman's distinction between synchronic interests, which determine levels of momentary well-being, and diachronic interests, which determine levels of well-being over stretches of time, provides a rationale for the disjunctive account. (See Velleman 1991.) Temporally located harms could be understood as setbacks to synchronic interests while global harms could be understood as setbacks to diachronic interests. But the distinctions do not line up in the right way. Suppose an event results in a subject's having a worse year than he otherwise would have had. The interests setback are diachronic yet the harm is temporally located. Only diachronic interests concerning the subject's life as a whole would generate global harms.

23 Either way, he is also left with a puzzle about when the subject suffers the harm of death. See Section IV. E, below.




The counterfactual comparison account faces a dilemma here, but the situation is entirely hopeless for the other two accounts. If the state of being dead has no value for a person, then the event of death leaves him neither badly off nor worse off than he was before. Imagine that someone fares superbly throughout his life and that his level of well- being increases steadily right up to the moment of his untimely death. According to both the temporal comparison account and the non- comparative account, this person never undergoes any harm at all. Yet surely death can come to such a person as a harm. I do not see how either account can get around this problem without abandoning its central idea.24

III. An Event-based Account None of the accounts discussed in the previous section emerged unscathed. Each is subject to at least one serious - perhaps insurmount- able - objection. In this section I shall sketch a completely different sort of account, one that is, I think, immune to the problems just outlined. The account differs from the others in two main respects. First, it is not state-based. It holds that to undergo a harm (or benefit) is to be the subject of an event whose status as the undergoing of a harm (or benefit) derives from its being the sort of event that it is, independently of the badness (or goodness) of any resulting state. I shall thus call it an event-based account. And second, the account recognizes that some harm- and benefit- types must be defined in terms of others. It thus distinguishes two broad types of harm and benefit - derivative and non- derivative - and gives a separate account of each. The resulting picture, however, is not crudely disjunctive. Its parts mesh neatly into a unified whole.

The account begins with the notion of a basic good. 'Goods' are not states or conditions that it is good to be in. Rather, they are things that it is good to have. And 'basic' goods are, roughly speaking, those the possession of which makes possible the achievement of a wide variety of the potential components of a reasonably happy life. In order to be fully determinate, the account I am presenting would have to include a proper account of basic goods. Since I am here interested only in the

24 Shiffrin writes that death is a harm because "[b]y constraining the duration and possible contents of the person's life, it forces a particular end to the person -

making her with respect to that significant aspect of her life merely passive" (Shiffrin 1999, p. 124). But I do not see how this is consistent with her official position that harms are "conditions that generate a significant chasm or conflict between one's will and one's experience, one's life more broadly understood, or one's circumstances" (Shiffrin 1999, p. 123, emphasis added). It is the event of death that forces a particular end to the person, not the condition of being dead.

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account's general structure, I needn't commit myself to any particular view on this matter. For purposes of exposition, however, it will be useful to have something concrete in mind, so I shall provisionally take the basic goods to include certain fairly general physical and mental powers or abilities. The power of sight, for example, is a basic good for human beings.

I said that the account distinguishes between derivative and non- derivative harms and benefits. Since there will turn out to be entire hierarchies of derivative harms and benefits, it will be useful to assign harms and benefits to levels. Non-derivative harms and benefits com- prise the first, or ground, level. So here is the account's first clause:

(i) Someone suffers a level- 1 harm with respect to a certain basic good if and only if he loses some quantity of that good. Someone receives a level- 1 benefit with respect to a certain basic good if and only if he acquires some quantity of that good.

Every event of the schematic type S's losing some quantity of basic good G is someone's suffering of a non-derivative harm; every event of the schematic type S's acquiring some quantity of basic good G is someone's receiving of a non-derivative benefit. Do non-derivative harms and benefits consist only in the loss or acquisition of basic goods, as (i) sug- gests? Perhaps, in addition to basic goods, there are also basic 'bads.' If so, the acquisition of a basic bad is another sort of non-derivative harm and the loss of a basic bad is another sort of non-derivative benefit. It may also be a mistake to restrict harms and benefits to those undergone with respect to basic goods. Perhaps losing a basic good is simply a more serious harm than losing a non-basic good. In what follows, however, I shall assume, for the sake of simplicity, that all non-derivative harms and benefits are undergone with respect to basic goods.25

Not all harms and benefits consist in the loss or acquisition of basic goods. In particular, preventative harms and benefits do not. A subject suffers a preventative harm when he is prevented from receiving a benefit; he receives a preventative benefit when he is prevented from suffering a harm. Preventative harms and benefits are thus derivative: they

25 Fidelity to common usage would require us to restrict the application of the terms 'harm' and 'benefit' to cases in which the loss or acquisition of a basic good has an external cause. We do not usually say that someone suffers harm when his power of sight deteriorates with old age, or that he receives a benefit when his injured limb heals naturally. I am not sure, however, that it is necessary to follow ordinary language on this point. So I shall provisionally let clause (i) stand as it is.




are to be defined recursively in terms of other benefits and harms. So here is the account's second clause:

(ii) Someone suffers a level-0* + 1) harm with respect to a certain basic good if and only if he is prevented from receiving a level-« benefit with respect to that good. Someone receives a level-(« + 1) benefit with respect to a certain basic good if and only if he is prevented from suffering a level-« harm with respect to that good.

Preventative harms and benefits are thus harms and benefits of level- greater-than-1. Putting (i) and (ii) together, and focusing on the basic good of sight for purposes of illustration, we get the following picture. To lose one's power of sight is to suffer a level- 1 (non-derivative) harm with respect to the power of sight; to be prevented from suffering the harm of losing one's power of sight is to receive a level- 2 benefit with respect to the power of sight; to be prevented from receiving the benefit of being prevented from suffering the harm of losing one's power of sight is to suffer a level-3 harm with respect to the power of sight; and so on. Likewise, to acquire the power of sight is to receive a level- 1 (non-derivative) benefit with respect to the power of sight; to be prevented from receiving the benefit of acquiring the power of sight is to suffer a level-2 harm with respect to the power of sight; to be prevented from suffering the harm of being prevented from receiving the benefit of acquiring the power of sight is to receive a level-3 benefit with respect to the power of sight; and so on. Other basic goods will generate analogous hierarchies of harm- and benefit-types.

Finally, here is the account's third clause:

(iii) Someone suffers a harm if and only if he suffers a harm of some level with respect to some basic good. Someone receives a benefit if and only if he receives a benefit of some level with respect to some basic good.

In other words, clauses (i) and (ii) jointly cover all the cases. Every instance of someone's suffering a harm is either an event of the schematic type S's losing some quantity of basic good G or an event of the schematic type S's being prevented from receiving a benefit of type B\ and every instance of someone's receiving a benefit is either an event of the schematic type S's acquiring some quantity of basic good G or an event of the schematic type S's being prevented from suffering a harm of type H.

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I have described the account just sketched as event-based, and I have suggested that it differs significantly from the state-based accounts discussed earlier. But it might be objected that the contrast is more apparent than real. According to the event-based account, to suffer harm is to be the subject of a certain sort of event. It is arguable, however, that events are analyzable in terms of states. And if so, doesn't that undermine the supposed contrast? Consider the case of non-derivative harms. I have said that to suffer a non-derivative harm is to lose some quantity of a basic good. But to lose a good is simply to pass from the state of having it to the state of lacking it (or from the state of having more of it to the state of having less of it). And lacking a good (or having less of it) is worse for one than having it (or having more of it). Losing a basic good, then, involves entering a comparatively bad state. So isn't the event-based account equivalent to a comparative state-based account?

I need take no position on the question whether events are analyzable in terms of states. Perhaps they are. Perhaps (although I doubt it) every event consists in a thing's passing from one sort of state to another. It doesn't matter. The event-based account's distinctive claim is that a harm's status as a harm does not derive from the badness of any resulting state. My first response to the objection, then, is to reiter- ate a point made earlier, that not all harms put their subjects into bad states. Consider death. Perhaps death is analyzable as the transition from being alive to being dead. But the state of being dead is neither comparatively nor non-comparatively bad for the subject.26 According to the event-based account, death is a harm not because its end-state is bad, but because it consists in the loss of a cluster of powers which we may, for convenience, call the 'vital' powers, these powers (typically) constituting basic goods. Furthermore - and this is my second response to the objection - even when the subject of a harm does thereby enter a bad state, it does not follow that the harm's status as a harm derives from the badness of this state. Someone who loses his power of sight ends up in a comparatively bad state: lacking the power of sight is worse than having it. More than that, I think that he ends up in a non-comparatively bad state: lacking a basic good, such as sight, is non-comparatively bad for one. But according to the account I have

26 It is in any case questionable whether a person's dying is properly analyzed as his passing from the state of being alive to the state of being dead. Suppose a living person is vaporized. Here it is arguable that no subject remains after death (not even in the form of a corpse) to serve as the subject of the latter state. Perhaps death should instead be analyzed as the transition from its being the case that the subject is alive to its not being the case that he is alive. But even if we count this as a transition between two states, they are not states of the person who dies.




proposed, the badness of lacking a basic good does not explain why losing it constitutes a harm. Losing a basic good constitutes a harm simply because it is the losing of a good. The event is bad in its own right, so to speak, quite independently of the badness of its end-state. In fact, the value of the good explains both why one suffers harm in losing it and why it's bad to lack it.

Let us say that if an event-type has a defining end-state, then that end-state is a 'proper effect' of the event. According to the event-based account, an event's status as a harm does not derive from the badness of its defining end-state. Still less does its status as a harm derive from the badness of its further effects. But further effects do have a bearing upon whether the event is harmful or beneficial. An event is beneficial to someone when it causes him to receive a benefit, harmful when it causes him to suffer a harm. The six million dollar man's losing of his legs leads to his being given bionic replacement legs that enable him to do things he could never do before. In receiving these replacement legs he receives a benefit: he acquires a certain quantity of a basic good. We can thus say that his losing of his legs ultimately proves beneficial to him. Considered in itself, however, his losing of his legs is still the undergoing of a harm. An event can be beneficial without losing its status as the undergoing of harm and harmful without losing its status as the receiving of a benefit.

So much for the event-based account of what it is to suffer harm or receive a benefit. If we accept this account, how should we measure the relative seriousness of different harms? I cannot here offer a complete answer to this question. I shall only identify some of the relevant factors. And I shall confine my attention to level- 1 harms. (I shall touch briefly on the more difficult case of higher-level harms in Section IV. A.) First, the seriousness of a level- 1 harm depends upon the type of basic good that is lost. Some goods are more important than others. Second, the seriousness of a level- 1 harm depends upon how much of the good is lost and how much of it is retained. Third, the seriousness of a level- 1 harm depends upon the duration of its bad proper effects. Of course not all harms have bad proper effects. Death does not. But when a harm does have as a proper effect the subject's coming to be in a bad state, the duration of that bad state seems to affect the seriousness of the harm. Losing the use of one's legs for a year is worse than losing their use for just a month.27 Fourth, the seriousness of a level- 1

27 There is a complication here. If a subject's injured limb heals more rapidly than anticipated, we can say that the harm he suffered has turned out to be less serious than previously thought. When the six million dollar man is unexpectedly given bionic replacement legs, however, I do not think this shows that the harm he suffered was less serious than previously thought.

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harm depends upon whether its bad proper effects are non-comparatively bad. Other things being equal, a harm that leaves its subject in a non-comparatively bad state is worse than one that merely leaves its subject in a comparatively bad state.

IV. Solutions I shall now consider how the event-based account of harm fares with respect to the problems raised in Section II.

A. Preventative Harms

According to the event-based account, preventative harms are harms of level greater than 1 . The account thus explicitly accommodates the existence of preventative harms while at the same time distinguishing them from ordinary (i.e., level- 1) harms.

Differences in harms' levels may matter morally. Other things being equal, it may be harder to justify inflicting upon someone a level- 1 harm with respect to a certain good than to justify inflicting upon him a higher-level harm with respect to that same good. Do harms' levels also bear on their seriousness? Is it worse to lose the power of sight than to be prevented from acquiring it? Is it worse to be prevented from acquiring the power of sight than to be prevented from being prevented from losing it? Answering these questions would require much more extensive investigation than I can provide here. For now it is best to withhold judgment.

B. Worse Off But Not Badly Off Section II. B raised the question whether someone can suffer harm without being in (or entering) a non-comparatively bad state. Although I left the matter unsettled, I was inclined to give an affirmative answer. What answer does the event-based account entail?

Typically, when someone loses a basic good, he ends up in a non- comparatively bad state. The only exception I have mentioned con- cerns death, the subject of which ends up in neither a bad nor a good state. If we make two assumptions, however, the event-based account can accommodate additional cases in which a subject undergoes harm without ending up in a non-comparatively bad state. The first assumption is that in at least some cases it is possible to possess a basic good to a degree greater than is necessary to avoid falling into a non-comparatively bad state with respect to that good. The second assumption is that it is sometimes better to have an excessive amount of a basic good than to have a merely adequate amount.




The first assumption is quite plausible. The power of sight, for example, comes in degrees. A person is in a non-comparatively bad state with respect to this power if and only if he possesses it to a degree that falls below a certain level. But a person's power of sight can also exceed this threshold. The second assumption is more questionable. Consider the power of hearing. One can no doubt imagine situ- ations in which exceptionally acute hearing would be useful, but it is not obvious that possessing this power to an excessive degree would be on balance a good thing. The constant barrage of extra auditory information might be more of a hindrance than a help. Nevertheless, I think that it is better to possess certain basic goods to a somewhat greater than standard degree than to possess them to a merely standard degree. Consider once more the example of the Nobel Prize winner whose intelligence is reduced to a merely ordinary level by a stroke. Intellectual powers are basic goods, and prior to his stroke the Nobel Prize winner was arguably better off than most with respect to these goods. He thus suffers harm in losing his excess intellectual powers, and this despite the fact that his resulting state is not bad for him, non-comparatively speaking.28 The event-based account can of course still hold that other things being equal, a harm that leaves its subject in a non-comparatively bad state is more serious than one that leaves its subject in a non-comparatively good state.

The event-based account is not as narrow as the non-comparative account. But nor is it as broad as standard comparative accounts. Not every decline in well-being involves the loss of a basic good. According to the event-based account, then, not every decline in well-being counts as a harm. I do not find this result objectionable.

C. Excessive Multiplication of Harms This problem does not arise for the account of harm that I have proposed. Suppose that a subject loses some quantity of a basic good. And suppose that there are ten events of which it can be said: had this event not occurred, the subject would not have experienced this loss. Even so, the subject undergoes only one loss, not ten. Similarly, suppose that there are ten earlier times of which it can be said: the subject

28 The claim that someone is in a non-comparatively bad state with respect to a given power only if the degree to which he possesses it falls below a certain threshold may presuppose an analogue of what McMahan calls the "species norm" account of fortune. McMahan argues against the species norm account in McMahan 2002, pp. 146-149, and also in McMahan 1996. I cannot respond to his arguments here.

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now has less of the basic good than he had at that time. Even so, the subject undergoes only one loss, not ten.29

D. Preemptive Harms

The event-based account easily accommodates the existence of preemptive level- 1 harms. Suppose that A blinds B. And suppose that another agent would have blinded B if A hadn't done so first. The additional supposition does not alter the fact that B loses his power of sight. It consequently does not alter the fact that he suffers a level- 1 harm.

Whether the account accommodates the existence of preemptive higher-level harms depends upon how the notion of prevention is analyzed. If we hold that someone is prevented from receiving a benefit if and only if there occurs an event such that he would have received the benefit had that event not occurred, then we must deny the possibility of preemptive higher-level harms. I think it is clear, however, that a proper analysis must allow for the possibility of preemptive preven- tions. Suppose that A waylays a doctor who is on his way to perform an operation to restore B's sight. And suppose that another agent would have waylaid the doctor if A hadn't done so first. Intuitively, the additional supposition does not alter the fact that B is prevented from having his sight restored. It should thus be required of any acceptable analysis of prevention that it support this description of the example. And if B is prevented from having his sight restored, then the event-based account entails that he suffers a level-2 harm. An acceptable analysis of prevention will thus allow for the possibility of preemptive higher-level harms.

E. Death

According to the event-based account, death is a harm because it consists in the loss of certain basic goods. The account's treatment of death is thus uniform with its treatment of harms that don't extinguish their subject. Other things being equal, this is a desirable feature in an account of harm.

The account also provides an attractively simple answer to a question that has puzzled a number of writers, namely: when does a person suffer the harm of death? One might have thought that the answer was obvious: he suffers the harm of death when he dies. If he dies at t, then

29 If the parts of his loss (e.g., his loss of the first increment of the good, his loss of the next increment, and so on) are also losses, then the subject does undergo multiple harms. But as I remarked earlier, there is nothing excessive about this multiplication of harms.




that's when he suffers the harm. And that is indeed the answer that the event-based account gives. The time at which someone suffers a level- 1 harm is the time at which he loses the relevant basic good. But this answer has seemed unavailable to proponents of state-based accounts. According to state-based accounts, the badness of suffering a harm derives from the badness of some state in which the victim finds himself. It would thus seem that the time at which someone suffers harm is the time at which he is in this bad state. Hence the puzzle - for when does the subject of death find himself in a bad state? Now in Section II. E we saw two ways in which the counterfactual comparison account could accommodate the possibility of death's coming as a harm. First, it could say that death comes to someone as a harm if it causes him to have been worse off for some period prior to his death than he otherwise would have been. This leads to the surprising result that he suffers the harm of death prior (perhaps well prior) to dying.30 Second, the account (once suitably revised) could say that death comes to someone as a harm if it causes him to have lived a worse life then he otherwise would have lived. But when is a subject's actual life, taken as a whole, worse than the life he would have lived had he not died his actual death? The answer would seem to be that it is timelessly worse. On this analysis, the harm of death cannot be located temporally at all.31 Each solution is ingenious, but each is implausible on its face. I thus take it to be another advantage of the event-based view that it vindicates the more obvious answer to the question when the harm of death is suffered.

There might be thought to remains one crucial respect in which the counterfactual comparison account is superior to the event-based account: it can accommodate the common-sense thought that death does not always come as a harm. According to the revised counterfactual comparison account, a subject's death comes to him as a harm if and only if his life as a whole would have gone better had he not died his actual death. If his life would have gone worse, death is a benefit. But if death consists in the loss of one's vital powers, and if these powers are among the basic goods, then doesn't the event-based account entail that death always comes as a harm? The account entails this only if the vital powers are always goods. But perhaps they aren't. Perhaps

30 This solution is proposed by Feinberg 1984, pp. 92-93. On this matter Feinberg acknowledges the influence of George Pitcher 1984, pp. 183-188.

31 This seems to be Thomas Nagel's solution. See Nagel 1979, p. 7. Alternatively, one could say that it is true at all times that the subject's actual life, taken as a whole, is better for him than the life he would have lived had he not died his actual death; his death is consequently bad for him eternally. This is (roughly) the view defended in Feldman 1991, pp. 220-221.

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illness and senility can so far degrade one's 'higher' powers that the kind of life one is capable of living no longer has value for one. And if the sort of life one's vital powers make possible no longer has value for one, perhaps those vital powers lose their status as basic goods. The event-based account is thus consistent with the view that death is not always a harm. And even when death is a harm, it might sometimes be permissible to bring it about for the subject's own good. For even when death is a harm, it can be beneficial: it can prevent the subject from undergoing even worse harms. The event-based account thus enables us to distinguish two very different scenarios in which euthana- sia might be contemplated. In some cases the subject's powers have been so far diminished that continued life has ceased to have value for him. These are the cases in which one is inclined to say that death is no longer a harm. In other cases, however, the subject's powers remain intact. The problem is that his future promises nothing but horrors. To use a stock example, suppose that the person is trapped in a burning car with no chance of escape. He begs to be killed painlessly before the flames reach him. It might well be permissible to do as he asks. But I think that in this case death, considered in itself, still constitutes a harm. Killing the person painlessly is best thought of as justified harming. The counterfactual comparison account, by contrast, treats the two sorts of cases as if they were the same.

V. Conclusion

I have sketched the broad outlines of a new account of harm. Many details must still be filled in. But supposing that this can be done satis- factorily, the next task is to consider whether the concept of harm, understood along the lines I have suggested, really merits the attribu- tion of special moral significance. We should certainly be open to the possibility that it does not. But if another account of harm should prove better able to explain why the notion matters morally, that would be a strong point in that account's favor and a strike against the account offered here.32

32 Pamela Hieronymi provided valuable commentary when I presented an earlier version of this paper at the Southern California Philosophy Conference. I also received helpful comments from a referee for this journal. I thank them both.

References

Broome, John. (1993) "Goodness is Reducible to Betterness: the Evil of Death and the Value of Life," in P. Koslowski and Y. Shionoya (eds.), The Good and the Economical: Ethical Choices in Economics




and Management, Springer- Verlag, pp. 70-84. Reprinted in John Broome, Ethics out of Economics, Cambridge University Press, 1999, pp. 162-73.

Feinberg, Joel. (1984) Harm to Others, Oxford University Press. Feldman, Fred. (1991) "Some Puzzles about the Evil of Death," The

Philosophical Review 100: 205-227. McMahan, Jeff. (1996) "Cognitive Disability, Misfortune, and Justice,"

Philosophy & Public Affairs 25: 3-35. . (2002) The Ethics of Killing, Oxford University Press. Nagel, Thomas. (1979) "Death," in his Mortal Questions, Cambridge

University Press, pp. 1-10. Pitcher, George. (1984) 'The Misfortunes of the Dead," American

Philosophical Quarterly 21: 183-188. Shiffrin, Seana. (1999) "Wrongful Life, Procreative Responsibility, and

the Significance of Harm," Legal Theory 5: 117-148. . (unpublished) "Harm and its Moral Significance." Velleman, J. David. (1991) "Weil-Being and Time," Pacific Philosophi-

cal Quarterly 72: 48-77.

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Documents

Matthew Hanser. the Metaphysics of Harm. Philosophy and Phenomenological Research, Vol. 77, No. 2 (Sep., 2008), Pp. 421-450