Many morally reflective people have been persuaded that somethingalong the lines of double effect must be correct. No doubt this isbecause at least some of the examples cited as illustrations of DEhave considerable intuitive appeal:
Rule 15. Precautions in Attack In the conduct of military operations,constant care must be taken to spare the civilian population,civilians and civilian objects. All feasible precautions must be takento avoid, and in any event to minimize, incidental loss of civilianlife, injury to civilians and damage to civilian objects.
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Critics of the principle of double effect claim that the pattern ofjustification used in these cases has some shared conditions: theagent acts in order to promote a good end, shows adequate respect forthe value of human life in so acting, and has attempted to avoid orminimize the harm in question. However, they maintain that thejustification for causing the harm in question depends on furthersubstantive considerations that are not derived from the contrastbetween intention and foresight or the contrast between direct andindirect agency.
Furthermore, the apparently compassionate assumption that thehastening of death is a welcome result may be unduly paternalistic inthe context of end of life care in which the patient is not dying.Patients receiving palliative care whose pain can be adequatelytreated with opioid drugs may well value additional days, hours orminutes of life. It is unjustified to assume that the hastening ofdeath is itself a form of merciful relief for patients with terminalillnesses and not a regrettable side effect to be minimized. Recallthat the most plausible formulations of double effect would requireagents to seek to minimize or avoid the merely foreseen harms thatthey cause as side effects. On this point, popular understandings ofdouble effect, with the second assumption in place, may diverge fromthe most defensible version of the principle.
It is an indication of the richness of Hegel's philosophy and of the relevance of much English-speaking Hegel scholarship that literature on Hegel's practical philosophy, even after a generation of careful, philosophically rigorous book-length treatments, continues to explore new territory and to show the importance of Hegel's thought to enduring issues in moral and political philosophy. Ido Geiger's The Founding Act of Modern Ethical Life is a fine example of this trend. The Founding Act is also quite striking and unusual, however, on two counts. First, in no more than 158 pages, Geiger's reach spans from Kantian moral philosophy, to Hegel's philosophy of action, philosophy of history, and political philosophy, to the issue of political founding in Plato's Republic. Geiger navigates this territory with ease, also bringing to bear contemporary thinkers such as Lacan, Derrida, Arendt and Stanley Cavell. Second, he cuts against the grain of many standard interpretations of Hegel from the past half-century. Though I find some of his interpretive claims unconvincing, Geiger presents elegant solutions to many tough puzzles in The Founding Act, and caused me to change my opinion on more than one issue in Hegel.
Geiger introduces his argument with a characterization of a fundamental dichotomy in ethics. On the one hand there is the perspective which values concreteness, immediacy, particularity, and recognizes that everyday moral life is not governed by universal rules and abstract principles, but given norms that are shared by a community. On the other hand there is the perspective which prizes formality, universality, and the possibility of reflective distance. Morality must be serious and critical, so this second viewpoint asserts; it must have the capacity to test the validity of supposed moral norms, and to distinguish the claims of power and mere custom from the true demands of the moral law. Traditionally (and simplistically), Hegel has been associated with the former position, Kant with the latter. But more fundamentally, these two sides represent basic aspects of morality, which moral philosophy struggles to bring together. Geiger claims that a reexamination of the Hegelian critique of Kantian moral philosophy -- followed by an examination of Hegel's political response to Kant's ethics -- will allow us to see a compelling way to reconcile these two fundamental positions.
The common view is that Hegel accused Kant of presenting a purely formal principle of ethics, the categorical imperative, which is nothing more than the principle of non-contradiction. It is this charge on which Hegel allegedly based his claim that Kantian morality cannot arrive at any actually moral actions at all, because it is "empty" or without content. This picture has been repeatedly shown to be a caricature of Kant's true teaching. Geiger himself agrees that it is, and notes that it is difficult to argue against the idea that Hegel advanced it. But he claims that there is another, more compelling critique of Kant which can also be found in Hegel's writings. According to Geiger, the real dispute between Kant and Hegel is not about the discovery of moral norms or the conceptual content (or lack thereof) of Kantian morality. Rather, Hegel's criticism is of Kant's theory of moral motivation. While Kant famously asserts that one must act from duty and not from inclination (even the inclination to do good, for the pleasure of doing good), Hegel rejects this stipulation. Indeed, Hegel's Philosophy of Right (specifically the third part) is an attempt, Geiger argues, to portray a system of actualized morality in which individuals find that their tendencies and educated drives incline them to fulfill the moral law. But Geiger asserts that this claim of Hegel -- that morality can and indeed must be actualized in "a system of shared customs and social institutions" (30) -- necessarily leads to the question of how such a system of actualized morality -- of ethical life -- is founded.
Geiger follows this argument with a very illuminating comparison between Kant's and Hegel's treatments of revolution, which appear in the context of their philosophies of history. Kant suggests that his age is near the transition from the "epoch of nature to the epoch of freedom" (45) and thus on the path to the moral perfection of humanity. This is brought about, however, not by a violent political revolution, but rather by "the mode of thinking of the spectators" (45) of revolution. For Kant, political rebellion is morally forbidden, but the occasion of revolution (he has in mind the French Revolution) is an opportunity for moral reform, a (German) spiritual revolution which occurs passively alongside the violent and lawless political one. Hegel, on the other hand, sees the origin of the realm of freedom not in the position of the spectator, but in the action of the political revolutionary who commits a violent but necessary founding act. But this founding act claims an inheritance from Kant, Geiger argues, in that it is characterized as an act of radical beginning, without external motivation or social validation.
Similar problems arise in Geiger's interpretation of the Antigone passages of the Phenomenology of Spirit. The first part of chapter VI A, "The Ethical Order", outlines two institutions -- the Family and the City -- which correspond to the Divine Law and the Human Law and to Woman and Man. Spirit, in the ethical order, is "split up" into these two "ethical substances" (Phenomenology of Spirit [hereafter PhS] 445), or two laws. Admittedly one of these institutions, the Family, is a private world, an "unconscious, still inner Notion" (PhS 450), while the other is "the superior law whose validity is apparent" (PhS 455). But both are described as ethical spheres which prescribe duties and roles for their participants. Connected to family relations -- specifically the brother-sister relation -- is the duty of burial, the "perfect divine law, the positive ethical duty" (PhS 453). Here, the burial duty is presented as the Family's sole duty, the divine and intimate aspect of the ethical order. But Geiger seems to interpret all references to burial rites -- even those which appear before the mention of Antigone and the implication of the burial of a traitor (59) -- as violations of the ethical order, indeed as the overthrow of it (see 53-70). What Hegel calls the "perfect divine law, or the positive ethical action" (PhS 453, emphasis in original) is called by Geiger the violent, unethical founding act of a new form of ethical life (64-69).
Geiger presents an account of Hegel's concept of violence which is sophisticated, and it enriches the entire argument of the book, bringing together Hegel's theory of action and theory of war with the concept of a founding act. Drawing on the Nuremburg writings and on Hegel's concept of crime from the Philosophy of Right, Geiger explains that for Hegel, violence or force (Gewalt) is "a state in which the very value of a person or an act is denied acknowledgement" (125). The prime example would be ordinary crime, where one person denies the right of another (to their property, to bodily integrity, etc.) through coercion. But Geiger claims that the founding act of ethical life is also violent, in fact radically violent. It is certainly true that Hegel associates heroes and founders with violence (see his references to the right of heroes in the PR: see 93A, 150R, 167R, 170R). And it is also clear that Hegel claims that world-historical individuals are misunderstood -- they die unacknowledged -- by those of their own time. But how is an act both a founding (something positive, constructive) and an instance of violence (something negative, destructive)? This is not fully explained. The case of Antigone seems to be the central example for Geiger, since according to Geiger she commits violence against the Human Law by brazenly breaking it, but she also founds a new ethical order by establishing the worth of the individual. The textual support here is actually weak, since Hegel nowhere describes Antigone as violent ("the violence of human caprice" is used to describe Creon's action -- see PhS 466), only that her act is characterized by "self-will and disobedience" (466). If she is violent, it is only violence to Creon's (violent) command. Antigone disobeys, she "knowingly commits the crime" (PhS 473), but does not destroy the ethical order; indeed Antigone is reconciled with absolute right (she acknowledges her error) even as she is killed. It is only the dead Polyneices, who finds instruments of vengeance in the other cities who, outraged over the defiling of their altars, rise up in war against Thebes. Here the true fall of the ethical order begins (to be completed by the young man of war in PhS 475), not with any positive act of founding, but with an act of vengeance from the world of the dead.
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