fairness in life and death cases

GERALD LANG

FAIRNESS IN LIFE AND DEATH CASES

ABSTRACT. John Taurek famously argued that, in ‘conflict cases’, where we areconfronted with a smaller and a larger group of individuals, and can choose which

group to save from harm, we should toss a coin, rather than saving the larger group.This is primarily because coin-tossing is fairer: it ensures that each individual,regardless of the group to which he or she belongs, has an equal chance of beingsaved. This article provides a new response to Taurek’s argument. It proposes that

there are two possible types of unfairness that have to be avoided in conflict cases, asfar as possible: ‘selection unfairness’, which is the unfairness of not giving individualsan equal chance of being saved; and ‘outcome unfairness’, which is the unfairness of

not actually saving them, when others are saved. Since saving the greater numbergenerates less outcome unfa-irness than coin-tossing, it is argued that, in manyconflict cases, fairness demands that we save the greater number.

In some life and death cases, we have a choice between saving onestranger or group of strangers, and saving another stranger, or groupof strangers. We can choose which group of strangers to save, but wecannot save everyone. These are the cases I will be concerned withhere. I will call them ‘conflict of lives cases’, or ‘conflict cases’ forshort.

In a famous and widely discussed article, ‘Should the NumbersCount?’, John Taurek argues that tossing an unbiased coin is the fairway of deciding what to do in conflict cases.1 Taurek’s prescription isintended to hold both when the groups are equal in size, and when thegroups are unequal in size. (I will return to this point shortly.)

It should be immediately noted that, since coins have only twosides, coin-tossing can only handle conflict cases where there areprecisely two individuals, or two groups of individuals, who need tobe saved. I will typically focus on coin-tossing here, on the harmlessassumption that we are considering cases in which only two groups ofindividuals are involved. Of course, some other random selectiondevice must be used where there are more than two rescue groups tobe considered, but Taurek’s argument can be comfortably adapted tocover these conflict cases.

Erkenntnis (2005) 62: 321–351 � Springer 2005DOI 10.1007/s10670-004-4499-y

Taurek is committed to this idea for a number of reasons, but thereason that I propose to focus on here concerns fairness, or equalconcern.2 On Taurek’s view, we show equal concern for all theindividuals involved in a conflict case by awarding to each individuala chance of being saved which is equal to every other individual’schance of being saved. In what follows, I shall call this form offairness ‘selection fairness’.3

I shall now pursue, by way of an example, an implication ofTaurek’s argument that needs to be flushed out more explicitly.Imagine there are three agents – call them Catherine, Jules and Jim –who are stranded at sea. We have only one lifeboat, and time doesnot permit us to rescue all three of them. If we rescue Jules, however,we can also rescue Jim, who is clinging to the same plank of wood(and vice versa). Our choice is, then, between rescuing Catherine, andrescuing Jules and Jim. Taurek’s contention is that if we decided tosave Jules and Jim, purely on the grounds that Jules and Jim col-lectively outnumber Catherine, we would be guilty of failing to treatCatherine with equal concern. In our three-agent case, the require-ment that we treat each of the three parties with equal concerncommits us to ensuring that all three agents have an equal chance ofbeing saved. Since either Catherine or Jules and Jim can be saved,Taurek says we should toss an unbiased coin4 to determine who getsrescued. Thus coin-tossing is the correct device to adopt in both‘equal numbers’ conflict cases and ‘unequal numbers’ conflict cases.

The coin-tossing proposal may seem plausible when we considerequal numbers conflict cases, such as a ‘one vs. one’ conflict case inwhich we can save only one of two separate individuals – if, say, wecan save only Jules or Jim, but not both.5 But in unequal numbersconflict cases, such as our ‘one vs. two’ conflict case mentioned above,the coin-tossing proposal will strike many as deeply counterintuitive.To these people, the coin-tossing proposal will become all the moreimplausible when the numbers become very unequal: when we aredealing with one vs. five, or one vs. twenty, or one vs. one hundredconflict cases, for example. In these cases, the adoption of a rivalprinciple directing us to save the greater number of individuals willseem much more intuitively compelling. (I shall refer to this as the‘saving the greater number’ principle in the following discussion.) Forall that, might the coin-tossing proposal be actually defensible?

Here is a summary of the remaining argument. In Section I, Ibriefly describe how utilitarians will respond to conflict cases, and saya little more about the nature of Taurek’s challenge to both utilitariansand non-utilitarians. (The remaining part of the discussion will be

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largely concerned with possible non-utilitarian responses to conflictcases.) In Section II, I say more about the notion of selection fairness.

Sections III–VI will be primarily concerned with T. M. Scanlon’srecent discussion of the problem, and the critical aftermath. In Sec-tion III, I outline Scanlon’s non-utilitarian defence of the saving thegreater number principle. I outline one interpretation of his remarks,the ‘Weighing Interpretation’, in Section IV, which attributes to thema troubling dependence on aggregation, a dependence which Scanlonhas officially foresworn; and in Sections V and VI, I review two rivalinterpretations of Scanlon’s argument, which I call the ‘RecognitionInterpretation’ and the ‘Neutralization Interpretation’, respectively. Iwill contend that both the Recognition Interpretation and Neutral-ization Interpretation fail to muster an adequate response to Taurek’schallenge.

In Sections VII–XV, I outline and defend another form ofunfairness – I shall call it ‘outcome unfairness’ – which the coin-tossing proposal is apt to generate. My contention will be that non-utilitarians can defend their allegiance to the saving the greaternumber principle, in at least a wide range of conflict cases, out of aconcern to avoid outcome unfairness.

To conclude with, a third allocation procedure, that of a weightedlottery, is described and rejected in Section XVI.

I

Utilitarians will experience little difficulty in rejecting Taurek’s chal-lenge. This may be for one of two reasons.

First, utilitarians may resist Taurek’s claim that equal concern inone vs. many conflict cases should take the form of assigning to eachindividual an equal chance of being saved. These utilitarians willdefer instead to an alternative interpretation of equal concern, deeplyembedded in the utilitarian tradition, according to which equalconcern ought to be construed as equal weighing of equal interests.This thought is clearly detectable in the work of classical utilitarianssuch as Bentham and Mill.6 Equal weighing of equal interests leads,on this view, to the requirement that we maximize the overall satis-faction of interests, without any particular concern for whose interestswe are maximizing. Thus we should save the greater number inconflict cases.

Second, some utilitarians may concede to Taurek that coin-tossingis precisely what fairness requires in conflict cases, but will think that

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we ought to save the greater number anyway, because fairness shouldtake second place to goodness. (This is John Broome’s suggestion. Ishall consider Broome’s views in more detail in Sections II and VII.)Since saving the greater number minimizes the loss of lives, andtherefore the badness of the loss of those lives, utilitarianism instructsus to save the greater number.

Utilitarianism performs better in some areas of our moral thoughtthan others. In conflict cases, in particular, utilitarian reasoning willseem, to many, to mesh very attractively with deeply held intuitions.It gives us the right answer for the right sort of reasons. In other sortsof case, of course, utilitarianism generates wildly counterintuitiveverdicts. In any case, having mentioned these utilitarian responses,and noted utilitarianism’s confident performance in this area, I nowpropose to leave it largely aside, and examine the prospects for non-utilitarian responses instead.

Before the substantive part of this discussion begins, it may beworth making two related points.

First, Taurek’s own argument largely turns on the strong claimthat interpersonal aggregation is morally unintelligible. He believesthat the goodness of saving X’s life can be rendered intelligible onlyby relating it to X’s perspective, and that the goodness of saving Y’slife can be rendered intelligible only by relating it to Y’s perspective.On Taurek’s view, moreover, there is no coherent interpersonalperspective, abstracting from both X’s perspective and Y’s perspec-tive, which would allow us to say that the saving of both their lives ismorally better than the saving of only one of their lives.

Now not every non-utilitarian will want to affirm a position asstrong as this. A weaker sort of challenge to utilitarianism can con-cede that it is possible to rank states of affairs as to their moralgoodness, from better to worse, but will protest that acting in wayswhich maximize the goodness of the overall state of affairs may in-volve impermissible trade-offs between individuals’ interests. Even if,ceteris paribus, it is indeed better if we save two individuals fromdeath than it is if we save only one of them from death, this sort ofnon-utilitarian will insist that there are constraints on how we may goabout producing this better state of affairs.7

Second, and relatedly, it should be emphasized that this weakerbrand of non-utilitarianism is not committed to foregoing an appealto consequences on every occasion. Even if non-utilitarians were toappeal to interpersonal aggregation in conflict cases, it would not besensible to infer that they must capitulate to this sort of aggregationin every other type of case.8

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The chief difficulty for non-utilitarianism, rather, is created by theunequal distribution of burdens which the saving the greater numberprinciple imposes on the individuals in a conflict case. Non-utilitar-ians should therefore agree that Taurek’s contention that the coin-tossing proposal offers us an alternative, more equitable, way ofdistributing those burdens, needs to be carefully considered. Thispoint about the fair distribution of burdens constitutes the realinterest of Taurek’s argument for non-utilitarians. Or so I maintain.

II

As we have seen, Taurek believes that fairness requires us to toss acoin in conflict cases. But some may think that fairness demands thatwe do nothing instead, or is at least consistent with doing nothing,given that not every individual can be saved. I now want to challengethis view.

Some writers identify fair treatment with identical treatment,regardless of the precise content of that treatment. For example, in arepresentative summary of his views, John Broome holds that

When claims are equal . . . fairness requires them to be equally satisfied, and that is allit requires. It does not require any of them to be satisfied to any particular degree;only that they should each be satisfied to the same degree.9

Now it is plausible to suppose that equal or identical treatmentcaptures a large part of fairness. But it is a mistake to hold thatfairness consists exclusively in identical levels of satisfaction of indi-viduals’ claims. We also need to pay attention to the type of treatmentbeing meted out.

To see why, imagine a situation in which we are able to save allthree of Catherine, Jules and Jim from a life-endangering situation, inthe absence of any substantial personal cost to ourselves. (This is notstrictly a conflict case, as I defined it in the introduction, since therescuer is not forced to choose between individuals in extending life-saving treatment, though he can choose whether to save any lives atall.) On Broome’s view, it follows that if we save all three of them, wehave treated them identically, and therefore fairly. But it also followsfrom his argument that if we do not save them, we have also treatedthem fairly, since they are still being treated identically.

This strikes me as implausible. In this particular case, it seemscloser to the truth to say that Catherine, Jules and Jim are beingtreated equally unfairly. What may be misleading Broome here, I


believe, is the truth that the conditions of scarcity which governconflict cases, and which lie beyond anyone’s control, may make itimpossible to provide any particular absolute level of treatment. Weshould concede that point immediately. But it does not follow, in anyparticular case, that fairness is indifferent between saving the indi-viduals and not saving them, if the resources available make it pos-sible to save them all.

If these considerations are on the right lines, we should deny thatthe essence of fairness lies in merely being treated identically. It lies,rather, in treatment which expresses equal concern. Since not just anyform of treatment can count as expressing concern, it follows that notjust any form of treatment can count as expressing equal concern.

The considerations presented so far have only limited significancefor my immediate purpose: they demonstrate merely that a policy ofstanding by and doing nothing in conflict cases is not guaranteed toconstitute fair treatment. However, those considerations do not bythemselves yield an argument for the different and stronger propo-sition that coin-tossing constitutes fair treatment in conflict cases.

One possible answer here is that coin-tossing provides us with away of treating equal claims equally. Claims are treated equally in sofar as the individuals are assigned equal chances of being saved. Butthis reply, as it stands, is insufficient, since I have just suggested thatnot every way of treating claims identically can count as manifestingequal concern.

It would be rash, however, to conclude that the way in which weassign chances to individuals of being saved has no bearing at all onthe question of whether we are treating them with equal concern. Tosee this, imagine the following conflict case, in which there are threerescue groups: a rescuer can save only one out of Catherine, Jules, orJim. And imagine that the rescuer discounts Catherine’s claimimmediately. Instead, the rescuer tosses a coin to see which of Jules orJim is to be saved. It turns out to be Jules. In this case, both Cath-erine and Jim perish. In terms of brute outcome, both do as badly aseach other. But intuitively, Catherine and Jim are treated unequally –the rescuer’s behaviour does not reflect equal concern towards them,and Catherine is on the losing side of that inequality.

It is possible to retort that, given that the rescuer is selectingrandomly between Jules and Jim, it is only the fact that Catherine isexcluded from this selection process that grounds the intuition thatthe three individuals are being treated with unequal concern. Andthat does not show that, if the rescuer refused to select randomly,period, across all three individuals, he would be acting unfairly.

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This retort does not unseat the intuition that the way in which weassign chances to individuals is relevant to the question of whether weare treating them with concern. For I have already argued that notevery way of treating claims equally constitutes equal concern. But ifthis is so, then not every way of treating claims unequally can sustainthe charge that one is relevantly showing unequal concern. Moreparticularly, if the intuition persists that the rescuer in this case isdisplaying unequal concern towards Jim and Catherine, that is goodevidence for the claim that the way in which chances of being savedare assigned to individuals is relevant to the question of whether theyare being treated in a way that reflects concern for them. And if this isso, then the coin-tossing proposal guarantees that individuals arebeing treated with equal concern.

A residual problem with the coin-tossing proposal can be put likethis: assigning equal chances of being saved to agents in conflict casesprovides them, when all is said and done, with equal chances of beingtreated unequally.10 So why should this particular form of equaltreatment count as treating the individuals fairly?

As I will acknowledge later on, there is considerable substance tothis challenge. Yet it does not undermine the coin-tossing proposal’sability to capture one genuine aspect of fairness. This challengefocuses on unequal outcomes, whilst the coin-tossing proposal fo-cuses on, and provides for, equal chances. We need to attend toboth outcomes and chances if we are to arrive at a complete pictureof what fairness demands. And that is compatible with the fact thatthe fairness of giving everyone an equal chance of being savedconstitutes a genuine aspect of fairness, which is all I am arguingfor at present.

Since selection fairness is a genuine aspect of fairness, we now needto see how non-utilitarians can support saving the great number inconflict cases. Some prominent recent work in the non-utilitariantradition, by Scanlon in particular, has triggered a fresh round ofinvestigation into these issues.11 It is Scanlon’s argument, and itscritical reception, to which we shall now turn.

III

Scanlon is opposed to coin-tossing in one vs. many conflict cases. Heargues that, on the grounds of fairness alone, and eschewing utili-tarian-style aggregation, we ought to save the greater number in thesecases.


What grounds might be available? Scanlon’s disquiet aboutTaurek’s coin-tossing proposal is encapsulated in the followingpassage:

The [coin-tossing] principle would permit someone, faced with the choice betweensaving one stranger from injury or death and saving two other strangers from thesame fate, to save only the one. In such, either member of the larger group [i.e., either

Jules or Jim] might complain that [the coin-tossing] principle did not take account ofthe value of saving his life, since it permits the [rescuing] agent to decide what to doin the very same way that it would have permitted had [one out of Jules or Jim] not

been present at all, and there was only one person in each group. The fate of thesingle person is obviously being given positive weight, he might argue, since if thatperson were not threatened then the agent would have been required to save the

two. . . The presence of the additional person [in the larger group, i.e., either Jules orJim] . . . makes no difference to what the [rescuing] agent is required to do or to howshe is required to go about deciding what to do. And this is unacceptable . . . since[the] life [of the additional person in the larger group] should be given the samesignificance as anyone else’s in this situation. . .12

A rescuer should instead ‘‘recognize a positive reason for saving eachperson’’.13 This implies, in turn, that we should add the claims ofindividuals to each other. Since we satisfy a greater number of po-sitive reasons for saving individuals by saving the greater number,that is indeed what we should do.

Scanlon makes the significant further claim that his argument doesnot appeal to ‘‘reasons corresponding to the claims of groups ofindividuals’’.14 In saving the greater number, Scanlon believes that weare sensitive only to reasons that can be rejected or accepted byindividuals, considered one by one. It is by properly registering the‘positive reason’ for saving each person, considered in himself, thatwe steer our way to the saving the greater number principle, not byaggregating claims in utilitarian fashion.

IV

Can Scanlon’s argument be sustained? That depends on what hisargument amounts to. To get a handle on the issues, and raise somepreliminary doubts, return to our three-agent conflict case. Scanlon’sargument directs us to save Jules and Jim, rather than Catherine. Yetthe ‘positive reason’ for saving Catherine is every bit as strong as the‘positive reason’ there is for saving Jules, and the ‘positive reason’there is for saving Jim. We know that not every individual can besaved. But why is it specifically Catherine who is not saved?

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On one interpretation, Scanlon’s answer is that Catherine’s claimbalances Jules’ claim, but that Jim’s claim then comes along and tipsthe balance in favour of saving Jules and Jim, rather than Catherine.This weighing metaphor, in turn, or something functionallyequivalent to it, makes plain the importance of group membership indeciding who is to be saved. Jules and Jim would have no guaranteeof being saved were it not for the force of their combined claims,which, taken together, outweigh Catherine’s single claim.15 To put itanother way, Jules and Jim enjoy safety in numbers. In what follows,I shall call this the ‘Weighing Interpretation’ of the saving the greaternumber principle.

Can the weighing metaphor, or something functionally equivalentto it, be dispensed with? The suspicion that some sort of interpersonalaggregation of claims is unavoidably at work in a defence of thesaving the greater number principle is a powerful one. Yet I want toargue that non-utilitarians do not have to appeal to the WeighingInterpretation in order to defend the saving the greater numberprinciple. Before explaining why, however, two rival interpretationsof Scanlon’s remarks need to be considered. These interpretationsboth aim to uphold Scanlon’s contention that his argument avoidsany appeal to the interpersonal aggregation of individuals’ claims. Iwill claim that they are unsuccessful. Their failure will make the taskof finding an alternative non-utilitarian approach to conflict casesmore pressing.

V

I shall call the first rival interpretation of Scanlon’s argument the‘Recognition Interpretation’. This interpretation is more exegeticallyfaithful to Scanlon’s intended argument, I believe, than the WeighingInterpretation. But, as I intend to show, that does not allow theRecognition Interpretation to escape from Taurek’s challenge.

The leading thought behind the Recognition Interpretation is that,if we retain coin-tossing as a procedure for allocating life-savingtreatment as we switch from a one vs. one case, involving only Julesand Catherine, to a one vs. two case, involving Jim, Jules andCatherine, then Jim’s added presence would be making no difference.Jim’s presence in the situation would, as it were, be morally invisible.And this would be incompatible with a demonstration of equalconcern for all three agents. If Jim’s presence is to be properly


recognized, our whole procedure for allocating life-saving treatmenthas to be amended. Relevant recognition of Jim’s claim would beprovided by the decision to adopt the saving the greater numberprinciple.

As a preliminary objection to the Recognition Interpretation, itmight be retorted that the allocation procedure does change whenJim’s claim is introduced into the conflict case, even if we continue toassign fates via coin-tossing. It changes because, whereas in the onevs. one case a coin is tossed to determine whether Catherine, or Julesalone, is to be saved, in the one vs. two case a coin is tossed todetermine whether Catherine, or Jules and Jim, are to be saved. Thuswe can retain coin-tossing and yet treat Jim’s claim with equal con-sideration, since the coin-tossing proposal assigns him a chance ofbeing saved which is equal to that of Catherine’s and Jules’.

Scanlon might protest at this point that the procedure itself hasnot changed, since the fates of the individuals involved are assignedby coin-tossing before and after the introduction of Jim’s claim.

What sort of change of allocation procedure would satisfy Scan-lon’s complaint, though? Presumably not just any change of alloca-tion procedure will do.

A number of suggestions leap to mind. First, and least promis-ingly, Scanlon might be insisting that we change allocation proce-dures in such a way as to increase the chance, relative to that of otherindividuals, of saving the new individual. But this is hopeless: howcould it be squared with the demand that we show equal concern forall the parties? We can dismiss this suggestion without further ado.This cannot be what Scanlon has in mind.

Second, and much more plausibly, Scanlon might be insisting in-stead that the allocation procedure itself changes in such a way thatJim’s chance of being saved matches that of Catherine and Jules. Theproblem with this suggestion is that the insistence on switching to analtogether different allocation procedure seems pedantic to the pointof being utterly mysterious, since, after all, if we continue to deploycoin-tossing when Jim is added to the conflict case, Jim is assigned achance of being saved which matches Catherine’s and Jules’ chancesof being saved. Why do we have to go to the bother of switching theallocation procedure as well ?

My suggestion is that only allocation procedures which raise thechance of saving the individual, or individuals, previously unac-companied by that of the new individual, will be acceptable toScanlon. Switching to the saving the greater number principle,unlike the redeployment of coin tossing, will meet this constraint,

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since the effect of Jim’s introduction into the proceedings is toboost Jules’ chance of being saved from 50% to 100%. If the coin-tossing proposal is retained, by contrast, Jules’ chance of beingsaved remains at 50%. (This follows if we are right to assume thatit is fair, in a one vs. one conflict case, to toss a coin. Thisassumption should be acceptable to Scanlon, since his argumentseems rooted in a complaint about the invariance of the coin-tossing procedure when new individuals are added to the rescuegroups. So Scanlon must surely endorse coin-tossing in a one vs.one case.)

The problem with the Recognition Interpretation is this. When wemove from the one vs. one case to the one vs. two case, and switchallocation procedures from coin-tossing to saving the greater number,Catherine’s chance of being saved shrinks from 50% to 0%. Theupshot of all this is that the switch from coin-tossing to saving thegreater number may indeed constitute salient recognition of Jim’sclaim to be saved, but the price of this recognition seems to be thewithdrawal of any recognition that had previously been extended toCatherine’s claim to be saved.

I conclude that the Recognition Interpretation does not providedecisive support for the saving the greater number principle. If Jim isentitled to complain that his additional presence is not recognized bythe coin-tossing proposal, then Catherine is entitled to complain, onsimilar grounds, that her continued presence is not recognized by thesaving the greater number principle. The Recognition Interpretationdoes not have the resources to explain this asymmetry of attitude toJim’s claim and Catherine’s claim. So Taurek’s challenge has notbeen defused.

VI

I shall call the second rival interpretation the ‘Neutralization Inter-pretation’.16 The Neutralization Interpretation maintains that we canreject the description of Catherine’s and Jules’ situation as one whichinvolves equally balanced claims, whose balance is then tipped inJules’ favour by the presence of Jim’s claim. It says instead thatCatherine’s claim and Jules’ claim neutralize or offset each other, withthe result that Jim’s undefeated claim, which is the only relevantclaim left to consider, now carries the day.17 If this is right, we wouldnot have to concede to the Weighing Interpretation that it is theconjunction of Jules’ claim with Jim’s claim that defeats Catherine’s


claim; alternatively, we would not be forced to say that is the additionof Jim’s claim to Jules’ claim that tips the balance in favour of savingJules and Jim, rather than Catherine. In the relevant sense, we areconsidering Jim’s claim alone. It is Jim’s claim, and only Jim’s claim,which wins, with the result, of course, that when we save Jim, we willalso be able to save Jules.

The Neutralization Interpretation of the saving the greater num-ber principle is implausible. To see why, consider again the one vs.one conflict case involving only Catherine and Jules. Catherine andJules have equal and conflicting claims. How do we decide who is tobe saved? Are we tempted to say in this case that Catherine’s andJules’ individual claims ‘neutralize’ or ‘offset’ one another? Surelynot. For as I understand the concept of ‘neutralization’, to say thatCatherine’s and Jules’ claims neutralize each other would be to say, ineffect, that their claims paralyze each other. This reduces us to a stateof allocative paralysis, leaving us with no warrant for saving eitherCatherine or Jules. There would simply be no active or useable partsof Catherine’s and Jules’ original claims to which we could respond indeciding whom to save. We would be forced to stand there and donothing. For the reasons offered in Section II, this seems intuitivelyunacceptable.

We should conclude, therefore, that Catherine’s and Jules’ claimsin a one vs. one conflict case do not confront each other in such a wayas to neutralize one another. True, their claims are equally strong.That is a fact to which talk of neutralization is evidently a response.But it is a mistake to think that we get all the way to neutralization bysimply having two equally strong claims pitched against each other.In a one vs. one case, I have suggested, something else happens. SinceCatherine’s and Jules’ claims are equally strong, and since we cannotsave both of them, we should toss a coin instead. This will at leastensure that one of the parties is saved, and also guarantee that eachparty has an equal chance of being saved.

What follows from this? Perhaps it may be conceded that indi-vidual claims do not neutralize each other in one vs. one cases. Thatdoes not demonstrate that claims cannot neutralize each other inother types of conflict case.

That may be true. But to concede that neutralization is notoperating in a one vs. one case is costly to the Neutralization Inter-pretation, for notice now what happens when Jim is introduced intothe conflict case, so that Catherine’s claim confronts Jules’ and Jim’sclaims. It clearly follows, on the saving the greater number principle,that the addition of Jim’s claim to the scenario implies that an

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entirely different allocation procedure should be instituted, whichreassigns the chances of being saved. That is, in moving from a onevs. one case to a one vs. two case, we also switch allocation proce-dures, from coin-tossing to saving the greater number. And thisswitch in allocation procedures carries significant implications for thefates of Catherine’s and Jules’ claims. In moving from the one vs. oneto the one vs. two conflict case, Catherine’s chance of being savedshrinks from 50% to 0%, while Jules’ chance of being saved isboosted from 50% to 100%.

I conclude that the substitution of a neutralization metaphor for aweighing metaphor cannot conceal the difference made to the treat-ment of Jules’ claim by the presence of Jim’s claim. It is the con-junction of Jim’s claim with Jules’ claim, after all, which determinesthat Jules and Jim, rather than Catherine, should be saved. Theaggregation element cannot be expunged from the saving the greaternumber principle in the way suggested by the Neutralization Inter-pretation. Since the avowed aim of the Neutralization Interpretationis to suppress any appeal to the interpersonal aggregation of claims, Iconclude, once again, that Taurek’s challenge has not been ade-quately defused.

VII

Our reflections on Scanlon’s account have been unpromising.Non-utilitarians need to change tack. In the remaining part of thisarticle, I will describe another type or aspect of fairness – I call it‘outcome fairness’ – which should be attractive to non-utilitarians,and which permits us, or perhaps obliges us, to save the greaternumber in conflict cases, or at least in a substantial range ofthem.

Unlike the Recognition Interpretation and Neutralization Inter-pretation of Scanlon’s remarks, the argument to follow makes nopretence of concealing the relevance of facts about group membershipin conflict cases. (I return to this particular point in Section XII.) Myargument can be regarded instead as an immanent critique of thecoin-tossing proposal; it looks to sources of unfairness generated bythe coin-tossing procedure itself. To locate those sources of unfair-ness, we have to pay attention to the way in which individuals inconflict cases are grouped together. Yet my argument is not, like theWeighing Interpretation, one that makes any direct appeal toaggregation.


In Section II, I briefly outlined an objection to the notion ofselection fairness, which I now want to explore in greater depth. Theobjection was that the assignment of equal chances of being saved toindividuals in a conflict case only assigns them equal chances of beingtreated unequally, since only some of them will be saved, whereasothers will not be. While chances of being saved are equallydistributed among individuals, outcomes will be unequally distrib-uted among them.

Now this objection does not discredit selection fairness altogether;the way in which we assign chances is indeed relevant to fairness. Thisis because the way in which chances are assigned amongst individualsremains a distinct way of expressing concern for those individuals.But the objection still has merit. It is true to the extent that selectionfairness does not give us a complete account of fairness. Outcomesmatter as well.

It is worth noting, before we explore this idea in more detail, thatsome defenders of selection fairness tacitly acknowledge the relevanceof outcomes, in the teeth of their official commitments. John Broome,for example, has argued in an important series of articles that coin-tossing, or drawing lots, is the correct way to ensure fairness inconflict cases, including one vs. many conflict cases.18 (UnlikeTaurek, however, and as indicated earlier, Broome does not thinkthat coin-tossing is what we ought to do, all things considered. Assomeone whose sympathies lie with utilitarianism, Broome believesthat we should be guided by considerations of goodness rather thanfairness in one vs. many conflict cases.)

Now although Broome argues that coin-tossing preserves fairnessin conflict cases, he makes a crucial amendment to this claim. Hedenies that coin-tossing can deliver perfect fairness, asserting insteadthat coin-tossing, or, more generally, the holding of a lottery, ‘‘meetsthe requirements of fairness to some extent’’.19 Why only ‘to someextent’? This is because, on Broome’s view, perfect fairness requiresthe equal satisfaction of equally weighty claims.20 As each person in aconflict case has an equal claim to be saved from death, a perfectly fairallocation procedure would ensure that these claims are treatedequally. In other words, perfect fairness requires a set of identicaloutcomes. It follows that coin-tossing constitutes only an imperfect orsecond-best form of fairness because it ensures that equally weightyclaims are unequally satisfied. Coin-tossing generates a set of non-identical outcomes: some individuals are saved, while others are not.

Broome’s argument that coin-tossing constitutes only an imperfector second-best form of fairness tacitly recognizes the relevance of

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outcomes to fairness. What distinguishes perfect fairness from sec-ond-best fairness is, surely, a shortfall in fairness. And it seems plain,on further reflection, that this shortfall in fairness is manifested onlyin the outcome of coin-tossing, rather than in the coin-tossing pro-posal’s assignment to the individuals of equal chances of being saved.

As yet, this is only a hint, which needs to be developed. In thefollowing argument, accordingly, I have four points tomake. First, thecoin-tossing proposal distributes outcomes, as well as chances. Second,outcomesmatter to fairness. Third, the coin-tossing proceduredoes notdistribute outcomes fairly; coin-tossing is, in fact, completely insensi-tive to outcomes. Taken together, these points demonstrate that thereare sources of unfairness generated by the coin-tossing procedure itself.Fourth, saving the greater number distributes outcomes less unfairlythan coin-tossing, in at least a substantial range of conflict cases. I shallnow argue for each of these points in turn.

VIII

There are two types of actual outcome distributed by the coin-tossingproposal: being saved, and not being saved. It is true that coin-tossingdoes not distribute outcomes directly, but only indirectly, via theoutcome of the tossing of the coin itself. What coin-tossing distributesdirectly are chances of being saved. Alternative procedures for allo-cating fates, such as the saving the greater number principle, are moredirectly sensitive to the distribution of outcomes. But it is still true tosay that coin-tossing distributes outcomes, as well as chances. If, inour one vs. two case, the result of coin-tossing is that Catherine issaved, then that is the distribution of actual harm for which the coin-tossing proposal is responsible. And if Jules and Jim are saved in-stead, then that is the alternative distribution of actual harm forwhich the coin-tossing proposal is responsible.

It is no disproof of my claim that the coin-tossing proposal isresponsible for whichever of these outcomes occurs that each of thoseoutcomes is only probable, rather than certain. For those who acceptthe coin-tossing proposal are committed to saying that they would beequally satisfied with each of these outcomes, which implies that,whichever outcome occurs, they will be satisfied with that outcome.

It is also neither here nor there that proponents of the coin-tossingproposal may choose not to describe coin-tossing as a way ofdistributing outcomes, as well as a way of distributing chances.Though friends of coin-tossing will naturally prefer to focus on the


way in which the coin-tossing proposal treats individuals equally, Iwant to suggest that this selective attention cannot be justified. Theway in which coin-tossing treats individuals unequally is just asimportant in arriving at a balanced overall view of the merits of thecoin-tossing proposal. This brings me to my second point.

IX

The second point is that outcomes, as well as chances, matter tofairness. To put it in another way, expected harm is not the only thingthat matters, even when we are considering fairness, rather thangoodness. Actual harm matters too. After all, a morally significantresult of being awarded an equal chance of being saved is that youmight get to be saved. So why should not the prevalence of actualharm be relevant to an assessment of fairness?

A natural reply to this question is that not everyone can be savedin a conflict case. The good of actually being saved is a scarce one – itis physically impossible to save everyone in conflict cases. So thecurrency in which fairness deals must concern other types of goodwhich can be equally distributed, such as the chance of being saved.

This reply is tempting, but I think it is mistaken. First, we shouldrecall the claim, advanced in section II, that fairness is constituted byequal concern. As far as the manifestation of concern goes, it would beodd to draw the line at the parties’ being assigned chances of beingsaved, but not to their actually being saved. That leaves us, of course,with the problem of how this type of concern can be equally distrib-uted. But here we should be prepared to entertain the idea that certaintypes of unfairness are unavoidable in conflict cases, regardless ofwhich allocation procedure we employ. My contention will be that theunfairness of not being saved is present in both the coin-tossing pro-posal and the saving the greater number principle, but that, in manyconflict cases, saving the great number produces less unfairness of thissort than coin-tossing. I will revisit this point, between Sections XIIIand XV. But now I want to move on to the third point.

X

My third point is that outcomes are distributed unfairly by the coin-tossing proposal. More specifically, I want to suggest that actualharm matters to fairness in two ways that are ignored by the coin-

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tossing proposal. The first concerns the distribution of actual harm,and the second concerns the total occurrence of actual harm. I willlook at these in turn, starting with the distribution of actual harm.

The argument for coin-tossing seems to be at its strongest in a onevs. one conflict case. This might be because, in a one vs. one case,only one of the individuals can be saved, and coin-tossing does indeedensure that one of those individuals is saved. But even a one vs. onecase displays a certain troubling indifference to the distribution ofactual harm. To see why, imagine that we can rescue either Jules orJim, and that we toss a coin to determine which of them is to besaved. Jules’ claim is represented by one side of the coin (‘heads’),while Jim’s claim is represented by the other side of the coin (‘tails’).The coin is tossed; it lands on heads. So Jules is saved, while Jimperishes.

Procedurally, we can agree that there is nothing awry about the wayin which we have arrived at this outcome. Only one life could be saved,and both Jules and Jim were assigned an equal chance of being saved.

There is something missing from the story so far, however. Thelacuna can be put like this: that Jules, but not Jim, gets to be saved, isthe outcome of a prior outcome, namely, the outcome consisting in thecoin landing on heads, rather than tails. But if we agree that outcomesare relevant to an assessment of fairness, we should also agree that thecoin’s landing on heads, rather than tails, does not reflect the greaterstrength of Jules’ claim over Jim’s claim. The way that actual harm isdistributed turns on an event – either the coin falling on heads, or thecoin falling on tails – which cannot be related back to any difference inthe antecedent strength of Jim’s and Jules’ claims.

Of course, the defender of coin-tossing may retort that fairnessdemands simply that one or other of Jim or Jules is saved. So whatdoes it matter whom is saved, just as long as Jules and Jim wereawarded equal chances of being saved?

My answer is that, even if it is correct to toss a coin in such a case,it should still be clear that the coin-tossing proposal is concernedexclusively, and therefore one-sidedly, with the distribution of ex-pected harm. Coin-tossing ensures that each individual’s expectedharm is equally distributed. But coin-tossing is indifferent to the wayin which actual harm is distributed, as the way in which actual harmis distributed reflects no difference of strength between the individu-als’ claims. If the way in which actual harm is distributed is relevantto fairness, then the coin-tossing proposal’s exclusive focus on ex-pected harm deserves to count as myopic, even from the point of viewof fairness itself.


This myopia is compounded when we move from a one vs. onecase to a one vs. many case. Of course, even in a one vs. many case,there is still a 50% chance that the many, rather than the one, will besaved. But a much more revealing commitment to the coin-tossingproposal in one vs. many cases is that we ought to be equally satisfied,from the point of view of fairness alone, with the occurrence of actualharm suffered by the many, and with the occurrence of actual harmsuffered by the one.

The coin-tossing proposal displays a perfect sensitivity to thedistribution of expected harm, but it is completely indifferent to thedistribution and total occurrence of actual harm. This indicates thatthe good of being given a chance of being saved should be sharplydistinguished from the good of being saved. And it tells us that, al-though coin-tossing does distribute outcomes, it is opaque to themanner in which it does so. With respect to the good of being saved,the saving the greater number principle is often fairer. But beforecomparing the two allocation procedures, I need to say somethingabout how unfairness in outcome is measured.

XI

Take our original one vs. two case, featuring Catherine, Jules andJim. Now someone who believes that fairness is exhausted by selec-tion fairness will be equally satisfied if Catherine is saved as she willbe if Jules and Jim are saved, provided the coin-tossing procedure isfollowed. This is because each of Catherine, Jules and Jim has anequal chance of being saved. Their expected harm is equally dis-tributed. But if actual harm matters as well, then we should embracea different procedure for registering unfairness.

What if Jules and Jim are saved? As I see it, there will then be oneresulting item of unfairness in the outcome, or ‘outcome unfairness’:namely, that Catherine, in contrast to Jules and Jim, will not havebeen saved, through no fault of her own, even though her originalclaim to assistance was as equally weighty as theirs, and even thoughshe could have been saved. What, now, if the other outcome isrealized, and Catherine is saved, leaving Jules and Jim to perish? Inthis outcome, there will be two instances of outcome unfairness.Though Catherine’s, Jules’ and Jim’s initial claims were all equallyweighty, only Catherine is saved, whilst Jules and Jim are not. Julesand Jim are doing worse than Catherine through no fault of their

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own, even though their claims to life-saving assistance were equallyweighty, and even though they could have been saved.

There are other possible procedures formeasuringunfairness,whichneed to be confronted at this point. Let us return to the first outcome,where Jim and Jules are saved, but Catherine is allowed to perish. Callthis ‘Outcome I’. On my way of measuring unfairness, there is a singleoccurrence of outcome unfairness inOutcome I: Catherine is the victimof outcome unfairness, because she, unlike Jim and Jules, is not saved.In the second outcome (‘Outcome II’), where Catherine is saved, butJim and Jules are allowed to perish, I claimed that there is a doubleoccurrence of outcome unfairness: Jim and Jules are the victims ofoutcome unfairness, because they, unlike Catherine, are not saved.

On an alternative method of measuring outcome unfairness,however, it could be maintained that there is, in fact, a doubleoccurrence of outcome unfairness in Outcome I, since Catherine isdoing worse than Jim, and she is doing worse than Jules. Accordingto this alternative method of measuring outcome unfairness, Out-come I is just as objectionable as Outcome II. Why not adopt thismethod, rather than the method I have endorsed?21

Other methods for measuring unfairness exist, of course, and I amnot claiming to have established any general application for mypreferred method. In other contexts, other methods for measuringunfairness may be preferable.22 However, in arriving at an assessmentof outcome unfairness, it surely makes sense for the measurement ofunfairness to be outcome-based. This is because outcome unfairnessis interested in the actual fates of individuals. Catherine is doingworse than Jules in Outcome I, and she is doing worse than Jim aswell, but outcome unfairness traces the badness of her fate – notbeing saved – to the outcome solely as it affects her. Imagine that weare dealing with a one vs. one conflict case instead, involving onlyCatherine and Jim. And imagine that Jim is saved, whilst Catherine isallowed to perish. It is natural to say that the badness of Catherine’sfate is just as bad in this case as it is in the case where both Jim andJules are saved. The intrinsic properties of the actual outcome for her,and therefore the intrinsic badness of that outcome as it affects her,are the same in both cases.

XII

Now for my fourth point, which requires comparison between thecoin-tossing proposal and the saving the greater number principle. In


my view, defenders of the saving the greater number principle oughtto concede that, in one sense, coin-tossing is fairer than saving thegreater number. Coin-tossing awards to each agent an equal chanceof being saved, and this is indeed fairness of a sort – it is selectionfairness. Saving the greater number, by contrast, gives some agentsno chance of being saved, and this is unfair. But in another sense offairness – outcome unfairness – saving the greater number is fairerthan coin-tossing, because it mitigates the unfairness of the distri-bution and quantity of the actual harm that would result from coin-tossing.

It should be acknowledged at this point that I have said little up tonow about the moral objectionableness of outcome unfairness vis-a-vis the moral objectionableness of selection unfairness. Which type ofunfairness, if either of them, predominates? Here it may be instructiveto look at the two types of good being distributed: being saved, andbeing given a chance to be saved. Though, to me, it would seemdifficult to deny that the good of being saved is more important thanthe good of being given a chance of being saved, I am prepared toassume that both goods are equally important in the remaining dis-cussion. It follows that outcome unfairness and selection unfairnesshave roughly equal disvalue.

A challenge arises here for outcome unfairness, which can be putthis way. In a one vs. one case, coin-tossing produces outcomeunfairness: coin-tossing means that actual harm is distributed in away which cannot be traced to any inequality in the individuals’claims. But coin-tossing also provides for selection fairness, since itgives each individual an equal chance of being saved. So what shouldwe do in a one vs. one case? In a one vs. one case, I suggest thatselection fairness predominates. Earlier on, in Section II, I arguedthat the way in which we assign chances is relevant to the question ofwhether we are treating individuals with equal concern. And theintuitive case for coin-tossing seems strongest for a one vs. oneconflict case. If selection fairness has application anywhere, it must beallowed to recommend coin-tossing in a one vs. one case. But if weaccept this, does it follow that selection unfairness is generallyweightier than outcome unfairness?

I believe not. This is because, as I argued in Section X, thereare two ways in which the coin-tossing proposal typically slightsthe moral significance of outcomes. First, coin-tossing is indifferentto the distribution of actual harm. This is because it leads to theunequal satisfaction of equally weighty claims. Second, coin-tossingis indifferent to the total occurrence of actual harm, because it

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focuses only on expected harm. Now in a one vs. one case, thesecond of these two features does not apply. Only one individualcan be saved in such a case, and coin-tossing does indeed ensurethat one individual is saved. Thus the objectionableness of selec-tion unfairness may exceed the objectionableness of outcomeunfairness in a one vs. one case without supporting the conclusionthat selection unfairness is always more objectionable than out-come unfairness.

What about one vs. many conflict cases? From the point of view ofoutcome unfairness, the case for saving the great number strengthensin one vs. many cases pari passu with the size of the larger rescuegroup.23 Conversely, the defender of the coin-tossing proposal musteffect a steadily increasing indifference between the suffering of oneindividual and the suffering of an increasing number of other indi-viduals, regardless of whether the larger rescue group numbers five,ten, one hundred, or some even higher number. That should beintolerable to someone who believes in the relevance of actual out-comes to fairness.

Of course, if one switches to the saving the greater number prin-ciple in one vs. many cases, then selection unfairness also appears toincrease pari passu with the size of the larger rescue group, becausethere will be a greater total number of individuals who are beingdenied an equal chance of being saved. So which form of unfairness,if either, is more significant in these cases?

Here is my suggestion for avoiding stalemate. As the size of thelarger rescue group increases, as I have said, champions of coin-tossing must effect a steadily increasing indifference to actual out-comes. But defenders of the saving the greater number principle, itseems to me, are not guilty of effecting a steadily increasing indif-ference to the importance of chances. This is because every memberof the larger rescue group is compensated for the denial of an equalchance of being saved by actually being saved. To put it another way,in denying to all the individuals an equal chance of being saved, thesaving the greater number principle also denies the members of thelarger group an equal chance of being treated unfairly as a result ofnot being saved.

It is true that the individual in the smaller rescue group is notcompensated for the denial to him of an equal chance of being saved.But that does not indicate an increasing indifference of the saving thegreater number principle to selection unfairness. For, by assumption,it is only the size of the larger rescue group which is being allowed tovary. The size of the smaller group stays constant.


What follows if we relax this assumption? If the smaller rescuegroup does not stay constant, and rises, but by a much smalleramount than the size of the larger rescue group, then there will indeedbe more selection unfairness. But there is surely a strong case forsaying that the selection unfairness will be outweighed by the out-come unfairness. The strength of the case for saying this follows fromthe assumption that outcome unfairness and selection unfairness haveroughly equal disvalue.

So in at least a significant range of one vs. many conflict cases,where one claim confronts a large number of other claims, and inother types of unequal numbers case, where there is a large differencein the sizes of the rescue groups, the prospect of outcome unfairnessgenerated by coin-tossing is likely to simply overwhelm the selectionunfairness involved. In these cases, at least, fairness obliges us to savethe greater number.

However, in other types of unequal numbers conflict case, wherethe sizes of the two rescue groups are much more evenly balanced – afive vs. six case, for example, or a one thousand vs. a one thousandand one case – it is much more difficult to say that the outcomeunfairness that results from not switching to the saving the greaternumber principle outweighs the selection unfairness of departingfrom the coin-tossing proposal. This is because there are a propor-tionately larger number of individuals in the smaller rescue groupwho cannot be compensated, in terms of the outcome of being saved,for not having been given an equal chance of being saved.

I confess to not having a clear proposal for how we should pro-ceed in these cases. So I am not offering an unequivocal endorsementof the saving the greater number principle. But it is worth noting, inany case, that our intuitions in favour of saving the greater numberare at their most secure when applied to conflict cases in which thereis a large difference in size between rescue groups. It may be a minoradvantage of my account that it tracks these differences in the secu-rity of our intuitions, even if it leaves us with unfinished business.

XIII

Let us now go a little deeper into outcome unfairness. To this end, Ishall distinguish immediately between two cases, which will help toclarify the scope of outcome unfairness, but will also raise a fewproblems. In Section XIV, I defend this delimitation in scope, andattempt to answer these problems.

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Both cases feature the same two individuals: Jim and Jules. In thefirst case (C1), we can save Jim, but not Jules. In the second case (C2),we can save either Jim, or Jules, but not both. (Only C2 is a conflictcase, strictly speaking.) In C2, we toss a coin to determine whom wesave. My claim is that in C2, but not in C1, there is outcomeunfairness, regardless of whether Jim or Jules is saved. In C1, bycontrast, there is only bad luck.

This asymmetric attitude to C1 and C2 shows that outcomeunfairness does not occur simply when and because one’s claim isunmet through no fault of one’s own. In C1, Jules has a claim tolife-saving assistance which is as weighty as Jim’s, and the factthat his claim cannot be satisfied cannot be traced to any fault inhim.

The difference between C1 and C2 is that, in C2, the rescuercould have rescued Jules, but did not. In C1, by contrast, there is anoutright impossibility of rescuing Jules. Jules is, of course, to bepitied, but he has not been treated unfairly. No complaint can bepresented to the rescuer in respect of Jules’ non-treatment. That isthe point of distinguishing between outcome unfairness and badluck.

A host of new difficulties arise at this point. To recapitulate, in C1,since it is not possible to rescue Jules, the rescuer is not treating himunfairly in failing to save him. In C2, by contrast, I wish to maintainthat Jules is the victim of outcome unfairness. But in C2, the reasonthat the rescuer does not save Jules is that he cannot do so, given thathe is rescuing Jim. The life-saving resources available to him simplydo not permit him to save both Jules and Jim. Furthermore, if he didsave Jules instead of Jim, then he would not be able to save Jim. Here,by symmetry of reasoning, Jim, rather than Jules, would be the victimof outcome unfairness.

There are really three potential problems that have emerged bynow. The first problem focuses on the role of the rescuer and the issueof blame. Whether or not the rescuer’s actions in C2 involve beingunfair to one or other of the rescue groups, my argument might seemdistinctly unfair to the rescuer. For even though there is no outrightimpossibility of saving Jules in C2, the rescuer still has to contendwith a conjunctive impossibility: he cannot rescue both Jim and Jules.So since, in C2, the rescuer is faced with this conjunctiveimpossibility, he is condemned by the charge of outcome unfairnesswhomever he rescues. And if the rescuer elects to stand by and donothing, even though he could have saved either Jules or Jim, he iscondemned by the charge of selection unfairness.


The second and third problems have already been foreshadowed.They form, respectively, the two horns of a dilemma. The secondproblem is this. Why is so much significance attached to thedistinction between the outright impossibility which holds in C1, andthe conjunctive impossibility which holds in C2? Why is unfairness,rather than, simply, bad luck, present in C2?

The third problem forms the other horn of the dilemma. Instead ofpressing the charge that there is nothing but bad luck involved in C1and C2, it asks whether there might be nothing but unfairness in-volved in C1 and C2. As I have suggested, it is true of both C1 and C2that Jules has a claim to life-saving assistance which is unmet throughno fault of his own. But if non-satisfaction of one’s claim through nofault of one’s own is taken to constitute the moral nerve-centre ofoutcome unfairness, then it may appear mysterious how there can beoutcome unfairness in C2, but not C1.

I shall now attempt to answer these problems.

XIV

To recapitulate, the first problem was that, in C2, the rescuer seems tobe guilty of behaving unfairly whatever he does. If he rescues Jim,then Jules is the victim of outcome unfairness; if he rescues Jules, thenJim is the victim of outcome unfairness; and if he rescues neither, thenhe is guilty of selection unfairness. The inevitability of unfairness inevery one of the rescuer’s alternatives does not mean, however, thathe is open to blame for whatever he does. Though the rescuer cannotact so as to eliminate unfairness altogether, he can act so as to min-imize overall unfairness, which will count in the circumstances as apraiseworthy action, rather than a blameworthy one. It has alreadybeen suggested that, in a one vs. one conflict case, it is right to toss acoin. In a one vs. one case, only one individual can be saved, andcoin-tossing sees to it that one individual is saved. Moreover, it treatsclaims equally insofar as the two claims are given an equal chance ofbeing saved.

It is better to save one out of Jules and Jim than to save neither.And it is better to save one of them by tossing a coin than by selectingin a way which reflects unequal concern towards them. So that iswhat the rescuer should do. In avoiding alternatives which wouldproduce more unfairness, the rescuer is to be praised for tossing acoin in a one vs. one case.

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I will consider the second and third problems together. The vitalpoint here is that unfairness, as I understand it, is a property of theway in which individuals are treated. More particularly, unfairness isa mode of treatment across individuals which differentiates betweenthem in ways which cannot be justified by differences between thestrength of their claims. All this presupposes that the individualswhose claims are unsatisfied could have been treated in such a waythat their claims were satisfied. Thus there is a perfectly stable dis-tinction between the outright impossibility that holds in C1, and themerely conjunctive impossibility that holds in C2. It makes no dif-ference that, in C1, Jules has done nothing to deserve his bad luck.For his bad luck is not the sort of bad luck which the rescuer can doanything to alleviate, or compensate him for, then or afterwards.

This reasoning also demonstrates that non-satisfaction of one’sclaim through no fault of one’s own can be justly considered to be themoral nerve-centre of outcome unfairness only if the circumstances areprecisely such that the rescuer could have satisfied one’s claim. In C1,Jules is doing worse than Jim, through no fault of his own, though hisclaim is equally weighty. But he is not treated worse than Jim, becausethe rescuer cannot, in the relevant sense, respond to his claim at all.

XV

The distinction between unfairness and bad luck provides us with anopportunity to revisit the way in which my account is sensitive tofacts about aggregation and group membership. I have argued that,in saving the greater number in certain types of unequal numbersconflict case, we act out of an overall concern for fairness. Our way ofdoing this is to save the individuals in the larger rescue group in orderto prevent them from being the victims of outcome unfairness, even ifthe price of acting on this principle is that the individuals in thesmaller rescue group are denied an equal chance of being saved.

Now it is true that trade-offs are being made here, but the firstthing to note is that the trade-offs are not being made between fair-ness and some other value. Trade-offs are being made between thetwo separate components of fairness, selection fairness and outcomefairness. It is only by making these trade-offs that we can properlyregister the importance of outcomes to allocation procedures in lifeand death cases.

Another worry, which is perhaps more pressing, concerns thetrade-offs between different individuals’ claims. Even if the trade-offs


concern the different components of fairness, it might seem thatthe distribution of those trade-offs among the different individualsis unfair. Members of a smaller rescue group could protest that, allthings considered, their claims are being treated as having nosignificance, because they have no chance at all of being saved. Bycontrast, the claims of the members of the larger rescue group,who are certain of being saved, are being accorded too muchsignificance.

This complaint can be set aside on the grounds, once more, thatboth outcomes and chances are relevant to fairness. Implicitly, thiscomplaint focuses only on chances. It is true that the saving thegreater number principle produces unequal outcomes. But so doesthe coin-tossing proposal. Moreover, the saving the greater num-ber principle, unlike the coin-tossing proposal, takes outcomesseriously. Because of this, we should support the employment ofthe saving the greater number principle in the range of conflictcases where there is a large difference between the sizes of rescuegroups.

A residual problem remains, however. It has to be conceded thatthere is good luck, of a sort, which is involved in having one’s claimstationed among a group of other individuals’ claims in such a waythat one is marked out as a beneficiary of an allocation procedurewhich minimizes unfairness overall. The beneficiary of such an allo-cation procedure has done nothing to deserve the good luck of havinghad the bad luck to qualify as the beneficiary of that allocationprocedure. But that is a consequence we should be prepared to livewith. To object to it, on the grounds that it is the business of fairallocation procedures to compensate individuals for bad luck ofwhatever sort, wherever it occurs, would make every allocationprocedure unworkable, as the non-beneficiaries of any given alloca-tion procedure could then complain that it was just their bad luck notto have had the bad luck which would have made them beneficiariesof that allocation procedure.24

XVI

The argument so far has proceeded on the assumption that our choiceis between saving the greater number and tossing an unbiased coin.Given that choice, I have suggested that, in many conflict cases,fairness demands that we save the greater number. But why notinstitute a weighted lottery instead? In our original one vs. two case,

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that would call for the use of a coin which was weighted in such a waythat it had a two-thirds chance of falling on one side (correspondingto the combined claims of Jules and Jim), and a one-third chance offalling on the other side (corresponding to Catherine’s claim). In thisconcluding section, I will attempt to discredit the use of weightedlotteries for life and death cases.

The weighted lottery proposal appears to fare better than unbiasedcoin-tossing in terms of outcome fairness. In line with the changingweights, there will be less expected outcome unfairness in a weightedlottery than there is for unbiased coin-tossing. But weighted lotteriesappear to fare less well than the saving the greater number principlein terms of expected outcome unfairness.

As for the other sort of fairness I have discussed – selectionfairness – a weighted lottery appears to fare better than the savingthe greater number principle, but less well than unbiased coin-tossing.

Since my aim so far has been to defend the saving the greaternumber principle against the coin-tossing proposal, the question nowis whether the saving the greater number principle is preferable to theweighted lottery proposal. I believe it is, as the weighted lotteryproposal represents an unstable half-way house between coin-tossingand saving the greater number. It embodies a theoretically unsatis-factory resolution of the conflicts involved in avoiding the two typesof unfairness I have distinguished, selection unfairness and outcomeunfairness.

Why? Let us start with selection unfairness. Here the coin-tossingproposal’s assignment of equal probabilities to everyone of beingrescued reflects their equally strong antecedent claims to be saved. Ina one vs. nine case, for instance, coin-flipping awards a 50% chanceof being saved to all 10 individuals. A weighted lottery, by contrast,will award a 10% chance of being saved to one individual, and a 90%chance of being saved to each of the other nine individuals. But thisassignment of antecedent chances does not meet the demands ofselection fairness at all! It fails to respect the linkage, for each indi-vidual, between that individual’s strength of claim and her antecedentchance of being saved. It might be replied at this point that the savingthe greater number principle does even less well. But this reply wouldnot be to the point, for the saving the greater number principle is nottrying to accommodate selection fairness. The saving the greaternumber principle is supported instead by the supposition that, in arange of conflict cases, outcome unfairness can at least sometimesoverwhelm selection unfairness.


Now for outcome unfairness. As I mentioned, the weighted lotteryproposal appears to fare better than unbiased coin-tossing on thisscore, and less well than the saving the greater number principle. Itseems, once more, to turn in a middling performance. But when onelooks at the issues more deeply, one can detect a failure in theweighted lottery proposal to appreciate just what outcome unfairnessis, and what is objectionable about it. Consider a one vs. nine caseagain. A defender of the weighted lottery proposal would be just ashappy if one person is saved, provided that person only had a 10%chance of being saved, as he would be if the nine are saved, providedthe nine had a 90% chance of being saved. This shows us that theweighted lottery proposal, like the coin-tossing proposal, is essen-tially indifferent to the occurrence of actual harm. The weightedlottery proposal is also insensitive to the other aspect of outcomeunfairness, which concerns the distribution of actual harm. Equalclaims continue to be unequally satisfied under the weighted lotteryproposal, and this feature suffices for outcome unfairness.

These shortcomings of the weighted lottery proposal should beunsurprising, given that a weighted lottery, like unbiased coin-toss-ing, is a chance-based scheme. Yet outcome unfairness is unfairness inoutcome, and so a type of unfairness that can only be manifested inoutcome. It is not, therefore, a type of unfairness which can beobviated by some assignment, or reassignment, of the chances ofbeing saved among the individuals concerned.

In short, the weighted lottery proposal only seems to offer anecumenical passage between the two types of unfairness because itoffers a skewed response to both of them. Selection fairness andoutcome fairness are genuinely separate – though not incomparable –aspects of fairness in conflict cases. It is obtuse to suppose that bothtypes of fairness, and particularly outcome fairness, can be satisfac-torily accommodated by a weighted lottery.

ACKNOWLEDGMENTS

I would like to thank John Broome, Roger Crisp, Iwao Hirose,audiences in Keele and Oxford, and two anonymous referees forErkenntnis, for extremely useful comments on various earlier drafts ofthis article. Thanks also to Gustaf Arrhenius, Niall Maclean, JohnMcMillan, Olly Pooley, and Georgia Testa, for helpful conversationsabout these issues, and to Michael Otsuka and Iwao Hirose forpermitting me to consult some of their unpublished writings. For

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their help with the preparation of the final draft, I am very grateful toCorine Besson and Johann Frick.

NOTES

1 See John Taurek, ‘Should the Numbers Count? ’, Philosophy and Public Affairs, 6

(1977): 293–316. See also G. E. M. Anscombe’s short but suggestive paper, ‘Whois Wronged?’, The Oxford Review, 5 (1967): 16–17, for an argument which alsodisplays a certain hostility to the claim that numbers are morally relevant.

2 For the purposes of my argument, I will treat ‘equal concern’ and ‘fairness’ assynonyms. This is not an innocent stipulation, as it carries substantive implica-tions. For a fuller defence of it, see Section II.

3 Another form of fairness, ‘outcome fairness’, will be outlined below.4 This constraint, incidentally, would prohibit the use of a Euro coin – or, at the

very least, a Belgian Euro coin (Guardian, UK, 4 January 2002).5 For a more detailed defence of this claim, see Section II.6 See, for example, J. S. Mill, Utilitarianism, R. Crisp (ed.), (Oxford: Oxford

University Press, 1998), pp. 105–106.7 Some earlier responses to Taurek’s argument are largely concerned with con-

testing his strong form of non-utilitarianism. See, for example, Gregory Kavka,‘The Numbers Should Count’, Philosophical Studies, 36 (1979): 285–294. Formore recent challenges to Taurek’s strong challenge to utilitarianism, see F. M.

Kamm, Morality, Mortality I (Oxford: Oxford University Press, 1993), pp. 85–87; and Iwao Hirose, ‘Saving the Greater Number without Combining Claims’,Analysis, 61 (2001): 341–342.

8 A tough question needs to be faced here: what distinguishes conflict cases from,say, the ‘Organ Case’, as it is sometimes called, in which an innocent healthyperson is killed, and his organs harvested, in order to prevent the deaths of fiveother innocent people who will otherwise die as a result of organ failure? The

numbers are the same, but the permissibility of the trade-offs seems altered. Thereis no room to offer a comprehensive analysis of the relevant considerations here,but the fact that the individuals in conflict cases are already in range of a com-

mon, life-endangering threat, seems crucial. For a thorough discussion of theseissues, and an overview of some relevant literature, see Eric Rakowski, ‘Takingand Saving Lives’, Columbia Law Review 93 (1993), pp. 1063–1156; reprinted in

Bioethics, J. Harris (ed.), (Oxford: Oxford University Press, 2001), pp. 205–299.9 John Broome, ‘Kamm on Fairness’, Philosophy & Phenomenological Research, 58

(1998), p. 956.10 Cf. Matt Cavanagh, Against Equality of Opportunity (Oxford: Oxford University

Press, 2002), pp. 112–132, for an instructive discussion of these difficulties.11 See T. M. Scanlon, What We Owe to Each Other (London: Harvard University

Press, 1998), pp. 229–241. See also F. M. Kamm, Morality, Mortality I (Oxford:

Oxford University Press, 1993), chaps. 5–7, for another important recent dis-cussion. (Scanlon expresses his indebtedness to Kamm’s discussion in What WeOwe to Each Other at p. 396, n. 34.)

12 Scanlon, What We Owe to Each Other, p. 232.13 Scanlon, What We Owe to Each Other, p. 232.


14 Scanlon, What We Owe to Each Other, p. 231.15 See Michael Otsuka, ‘Scanlon and the Claims of the Many vs. the One’, Analysis,

60 (2000): 288–293, for a forceful presentation of this interpretation of Scanlon’sargument.

16 For details of this interpretation, see Rahul Kumar, ‘Contractualism on Saving

the Many’, Analysis, 61 (2001): 167–170.17 Kumar, ‘Contractualism on Saving the Many’, pp. 167–168.18 See, in particular, the following articles of Broome’s: ‘Selecting People Ran-

domly’, Ethics, 95 (1984): 38–55; ‘Fairness’, Proceedings of the Aristotelian Soci-ety, 91 (1990–1991): 87–102; and ‘Kamm on Fairness’, Philosophy andPhenomenological Research, 58 (1998): 955–961.

19 Broome, ‘Fairness’, p. 98; cf. ‘Selecting People Randomly’, pp. 45–46, and ‘Kamm

on Fairness’, p. 956.20 As we saw in Section II, however, Broome believes that fairness is exclusively a

matter of relative satisfaction between claimants; as he sees matters, fairness has

nothing to do with absolute levels of satisfaction. As I explained above, I thinkthis is a mistake.

21 Thanks to John Broome for pressing me on this point, and to Roger Crisp for

advice on how to deal with it.22 For an illuminating general discussion of these issues, see Larry Temkin,

‘Inequality’, Philosophy and Public Affairs, 15 (1986): 99–121. For an extended

treatment, see his Inequality (Oxford: Oxford University Press, 1993).23 Frances Kamm points out that Scanlon’s account makes it difficult to capture the

intuition that the wrongness of failing to save the larger rescue group increases inproportion to the size of that group. See Kamm, ‘Owing, Justifying, and

Rejecting’, Mind, 111 (2002), p. 348. It is one merit of the account offered here, Ithink, that it accommodates Kamm’s intuition.

24 This point has unobvious but deleterious consequences, I believe, for so-called

‘luck egalitarian’ theories of distributive justice. I hope to explore these issues indetail in other work.

REFERENCES

Anscombe, G. E. M.: 1967, ‘Who is Wronged?’, The Oxford Review 5, 16–17.Broome, J.: 1984, ‘Selecting People Randomly’, Ethics 95, 38–55.Broome, J.: 1990–1991, ‘Fairness’, Proceedings of the Aristotelian Society 91, 87–102.

Broome, J.: 1998, ‘Kamm on Fairness’, Philosophy and Phenomenological Research58, 955–961.

Cavanagh, M.: 2002, Against Equality of Opportunity, Oxford University Press,Oxford.

Hirose, I.: 2001, ‘Saving the Greater Number without Combining Claims’, Analysis61, 341–342.

Kavka, G.: 1979, ‘The Numbers Should Count’, Philosophical Studies 36, 285–294.

Kamm, F. M.: 1993, Morality, Mortality I, Oxford University Press, Oxford.Kamm, F. M.: 2002, ‘Owing, Justifying, and Rejecting’, Mind 111, 323–354.Kumar, R.: 2001, ‘Contractualism on Saving the Many’, Analysis 61, 165–170.

Mill, J. S.: 1998, in R. Crisp (ed.), Utilitarianism, Oxford University Press, Oxford.(Originally published in 1861.)

GERALD LANG350

Otsuka, M.: 2000, ‘Scanlon and the Claims of the Many vs. the One’, Analysis 60,288–293.

Parfit, D.: 1978, ‘Innumerate Ethics’, Philosophy and Public Affairs 7, 285–301.Rakowski, E.: 1991, Equal Justice, Clarendon Press, Oxford.Rakowski, E.: 1993, ‘Taking and Saving Lives’, Columbia Law Review 93, 1063–

1156. Reprinted in J. Harris (ed.), Bioethics, Oxford University Press, Oxford,2001, 205–299.

Scanlon, T. M.: 1998, What We Owe to Each Other, Harvard University Press,

London.Taurek, J.: 1977, ‘Should the Numbers Count?’, Philosophy and Public Affairs 6,293–316.

Temkin, L.: 1986, ‘Inequality’, Philosophy and Public Affairs 15, 99–121.

Temkin, L.: 1993, Inequality, Oxford University Press, Oxford.

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OxfordOX 3UJ, UK

Manuscript Submitted 18 August 2003

Final version received 7 October 2004


fairness in life and death cases

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