Darmowy fragment publikacji:
Chapter 1. Moral Dilemmas as a Matter
of Contemporary Ethical Debate
1.1. Examples of dilemmas
In literature, there are tens or even hundreds of moral dilemmas, which serve
to show not only their essence but also variety. Naturally, there is no possibility
to present here all of them or even a fully representative selection. But one must
not for this reason avoid starting a discussion on dilemmas in legal and judicial
ethics through the use of examples. The existence of a certain canon of situations
that are given most attention may prove useful here. They are so common and
characteristic that many people have encountered them in their education or
popular culture. They are often covered in separate works. However, the issue
of belonging to the canon is in some measure based on convention, and for that
reason every such list may be questioned. Bearing this in mind, four dilemmas
have been chosen, which on one hand seem to belong to the canon, while on
the other will show some variety of situations described as dilemmas. They
are: the trolley dilemma, a student of Sartre’s dilemma, Heinz’s dilemma and
Sophie’s dilemma. Each of them is based on a slightly different scheme and is
related to a different, irreconcilable moral conflict. They are also a foundation
upon which to formulate more abstract theses on dilemmas. In effect, each of
the examples – more precisely, the schemes on which they are based – may be
used in analysis of situations on the grounds of legal and judicial ethics. This
particularly pertains to deontological dilemmas.
1.1.1. The Trolley Dilemma
In a now classic work on moral dilemmas, written in 1967, Philippa Foot
described a situation commonly known as the driver’s dilemma or the trolley
dilemma, which has become even a paradigmatic example.1 It has been
mentioned by the author among many other situations, hence its description is
quite laconic. She proposes a situation in which the subject:
is the driver of a runaway tram which he can only steer from one narrow
track on to another; five men are working on one track and one man on
the other; anyone on the track he enters is bound to be killed.2
The discussed situation posits rolling stock getting out of the driver’s control
and gaining speed. The only thing the driver can do is to switch the point and
decide which track it will continue on. On one of the two possible paths there
is a group of five workmen, and on the other only one. It is certain that all of
those on the track taken by the trolley will die in the resulting collision. This
dilemma has become the subject of innumerable interpretations aimed at both
proving that it is correct for the driver to direct the vehicle onto the track where
there is only one person, thus saving five is right, as well as those focused on
doubts that such a solution would mean sacrificing an innocent, unexpecting
person and an unacceptable calculation of the value of human life.3 It has also
become a starting point for many variants, such as one in which the trolley
could be stopped if a weighty person were to be pushed onto the track,4 and the
speleologists’ dilemma, in which people trapped in a cave can save themselves
only by blasting one companion who got stuck in the exit.5 A separate place
among variants is taken by the plane problem. The author points to the choice
of a pilot who knows that their aircraft will crash, but can change the flight path,
and so the place of catastrophe, by directing the plane towards a less inhabited
area.6 Their situation is similar to the choice before the trolley driver. However,
it looks different if we imagine the plane has been hijacked for use in a terrorist
attack, namely it is being purposely directed to densely populated areas. In that
case, is it admissible to shoot down the plane and sacrifice the passengers and
crew in order to save many more people, since it may be assumed that all on
board will lose their lives in any case? That this is no mere theoretical situation
1 Philippa Foot, “The Problem of Abortion and the Doctrine of the Double Effect,” Oxford Review
1967, No. 5, included in Philippa Foot, Virtues and Vices and Other Essays in Moral Philosophy (Oxford:
Clarendon Press, 2002).
2 Ibidem, p. 2.
3 The trolley dilemma was made popular in particular by Judith Jarvis Thomson, “Killing, Letting
Die, and the Trolley Problem,” Monist 1976, No. 59. Contemporarily see e.g: Frances M. Kamm, The
Trolley Problem Mysteries (Oxford-New York: Oxford University Press, 2015).
4 See e.g. Shelly Kagan, The Limits of Morality (Oxford: Clarendon Press, 1989), pp. 161 et seq.
5 The speleologists’ dilemma should not be confused with The Case of the Speluncean Explorers
presented by Lon L. Fuller originally in Harvard Law Review 1949, No. 4.
6 Foot, The Problem of Abortion, p. 2.
Paweł Skuczyńskimay be testified to by the fact that such use of planes has happened, and that
there have been attempts to introduce into law the possibility of preventive
shooting down of a plane in such a situation. In Poland, such a law was passed in
2004, with the addition of art. 122a to the Act of 3rd July 2002 – Aviation Law
reading as follows:
If required by national security considerations and the air defence command
structure, taking into account in particular information provided by air
traffic services providers, that the civil aircraft is used for illegal activities,
and in particular as a means of terrorist attack from air, this aircraft may
be destroyed on the terms set out in the provisions of the Act of October
12, 1990 on the protection of the state border.
This provision was challenged and subject to review by the Constitutional
Tribunal, which ruled that it breached constitutional guarantees of a democratic
state of law, human dignity and right to life. The Tribunal formulated the
problem by asking: “can the lives of passengers of a hijacked plane, most
certainly nearing the inevitable end, be held as of lesser value than the lives of
other people, especially those threatened by the terrorist attack?” to which it
there is no doubt that human life is not subject to evaluation on account of
age, state of health of the individual, expected life span or any other criteria.
Each person, including the passengers of a plane flying in the airspace of
a given state, has the right to have their life protected by that state. The
self-granted authorisation of the state to kill these persons, if only for the
protection of the lives of other people, remains in contradiction with the
right at issue.7
Among innumerable variants and interpretations of the trolley dilemma,
it is worth mentioning the following issues. To Foot, this and other examples
are primarily to illustrate the working of the doctrine of double effect. As she
indicates, double effect refers to “the two effects that an action may produce: the
one aimed at, and the one foreseen but in no way desired.” While the doctrine
of double effect claims that “it is sometimes permissible to bring about by
oblique intention what one may not directly intend.”8 This means that doing
harm may sometimes be permissible unless such harm is expressly intended
by the perpetrator, when it may only occur as a secondary effect – foreseeable
but not acceptable. This distinction resembles the distinction of direct intent
and recklessness. The doctrine of double effect maintains that, if our action is
7 Judgment of Constitutional Tribunal of 30 September 2008, case No. K 44/07.
8 Foot, The Problem of Abortion, p. 2.
Chapter 1. Moral Dilemmas as a Matter of Contemporary Ethical Debatedirectly oriented to good, and the circumstances indirectly also bring harm,
then there are no grounds for negative moral assessment. Blame would only be
apportioned if this bad effect were to be caused by direct intent. This explains
why we allow the driver to change the track – he wants to save five people, the
unintended – but foreseeable – effect of which is the death of one person.
The above distinction may be expressed by separating situations of killing
and letting die. According to J.J. Thomson, this allows an understanding of
how the driver’s actions would differ from other similar courses of action, such
as shooting down a hijacked plane. It is similar in the case of a surgeon who
faces the dilemma of whether to save several patients by transplanting organs
from one person he would have to kill for that purpose.9 Despite accepting this
distinction and its explicating value, the author does not support the conclusion
that the driver’s action would be acceptable, or even advisable. This is barred by
the rights of the person who would have to be sacrificed to save more people.
She uses here Dworkin’s metaphor of rights as trumps, which means that reasons
following from rights of particular people always prevail over reasons following
from calculation. Hence, it can be said that rights trump utilities.10 Rights are
deontologically interpreted here, as providing absolute reasons to protect them.
Yet this by no means precludes all calculation. For instance, killing five people
certainly is a greater evil than killing one. In the case of the driver’s dilemma, it
is not only a question of calculation but of a different character of action, which
encounters an objection – the right of the person to be sacrificed.
B. Chyrowicz focuses on the problem of the admissibility of calculation,
namely that the dilemma makes us face the problem of minimizing the evil.
Adopting such a principle would explain our intuition that the driver should
direct the tram onto the track with one person and so save more. If he makes
such a decision, then he will not automatically become the killer of this one
person, since it will happen due to loss of control over the vehicle. Someone will
die anyway, and the driver only contributes to alleviating the bad effects. Still,
doubt remains about whether, despite not being the perpetrator, the driver can
make the decision to sacrifice one person to save others. It should be stressed
that the choice is not simply one person or another, but the number of victims
is crucial.11 Only by making this assumption can the minimizing of evil be
considered, the condition of which is the admissibility of calculation. This can
9 Judith Jarvis Thomson, “The Trolley Problem,” The Yale Law Journal 1985, No. 94, pp. 1395 et seq.
10 Ibidem, p. 1406.
11 Barbara Chyrowicz, O sytuacjach bez wyjścia w etyce. Dylematy moralne: ich natura, rodzaj
i sposoby rozstrzygania (Kraków: Wydawnictwo Znak, 2008), pp. 36–37.
Paweł Skuczyńskibe juxtaposed with the right of the single person on the track to have their life
protected and not to be sacrificed to save other people.
On a more general level, the trolley dilemma may be interpreted as a conflict
of consequentialist and deontological reasons. The former, on the most general
level, suggest adopting as criterion of moral assessments whether the effects of
action maximize good. Hence, it demands a comparison of the alternatives of
action and their effects on a universal scale. This means that the comparison
must be carried out from the impartial perspective of every rational subject,
so must refer only to reasons that are wholly neutral as regards the subject,
namely it should not be considered whether it is good for me or people that
are important to me.12 The second view claims that some actions are absolute
obligations, irrespective of their effects, on the basis of their internal value or
universal nature. This precludes in such situations all calculation and imposes
on the subject either the obligation to act or refrain from doing so if the effect
would be bad. Relying on one’s own responsibility for meeting one’s moral
obligations, and not on the common good, is the right of every subject, which
is referred to as agent-centered prerogative. Reasons following from obligations
towards oneself and specific persons with whom we may have any relations
should also be considered. Hence, a wholly impartial perspective is not required
In brief, it may be said that consequentialism focuses on the promotion of
values, while deontologism on their protection.14 This is of special significance
for another distinction, important for the trolley dilemma, between positive
and negative obligations. In seeking an explanation for why we would admit the
change of tracks by the driver, but not allow the plane to be shot down or the
surgeon to sacrifice one patient, Foot notices that the first dilemma is propelled
by the conflict of two negative obligations, i.e. avoiding doing harm. Whereas in
the other cases the conflict is between similar negative and positive obligations,
namely protection of life and the provision of help by the state or doctor.15
According to K. Siaja, the distinction is significant only in the deontological
perspective. For a consequentialist it is of no importance, since what matters
is the occurrence of effect that has a better balance of values.16 The primacy
of preclusion to do harm over the prescription to provide help would not
contradict the calculation that leads to it.
12 Krzysztof Siaja, Etyka normatywna. Między konsekwencjonalizmem a deontologią (Kraków:
Universitas, 2015), pp. 69, 75.
13 Ibidem, pp. 98, 110, 112.
14 Ibidem, p. 77.
15 Foot, The Problem of Abortion, pp. 4–5.
16 Siaja, Etyka normatywna, p. 85.
Chapter 1. Moral Dilemmas as a Matter of Contemporary Ethical Debate1.1.2. The Heinz’s Dilemma
Another dilemma has a slightly different nature for it is widely used mainly in
studies on psychology of moral development and not in philosophical analyses.
Still, it is widely known and characteristic. Heinz’s dilemma has been primarily
used in L. Kohlberg’s studies17 published in 1963, and later in C. Gilligan18 in
1982. It goes as follows:
In Europe, a woman was near death from a special kind of cancer. There
was one drug that the doctors thought might save her. It was a form of
radium that a druggist in the same town had recently discovered. The drug
was expensive to make, but the druggist was charging ten times what the
drug cost him to make. He paid $ 200 for the radium and charged $ 2000
for a small dose of the drug. The sick woman’s husband, Heinz, went to
everyone he knew to borrow the money, but he could only get together
about $ 1000 which is half of what it cost. He told the druggist that his
wife was dying and asked him to sell it cheaper or let him pay later. But
the druggist said: “No, I discovered the drug and I’m going to make money
from it.” So Heinz got desperate and broke into the man’s store to steal the
drug for his wife. Should the husband have done that?19
For L. Kohlberg, the situation is about a typical conflict between two
values: life and property. By answering a number of questions in an interview,
it is possible to define the stage of moral development of a given person. The
questions include: Is it husband’s duty to steal the drug for his wife if he can get
it no other way? Would a good husband do it? Did the chemist have the right
to charge that much when there was no law actually setting a limit to the price?
Why? If the husband does not feel very close or affectionate to his wife, should
he still steal the drug? Why? Suppose it wasn’t Heinz’s wife who was dying of
cancer but it was Heinz’s best friend. His friend didn’t have any money and there
was no one in his family willing to steal the drug. Should Heinz steal the drug
for his friend in that case? Why? These show the complexity of the situation and
the difficulty resulting from the mentioned conflict of values. Even though the
author treated this dilemma as a case primarily in a study on child development
from the earliest phases to maturity, due to its structure it may be regarded as
universal. Certainly, in this respect, its conclusions became part of a broader
discussion, including on ethical grounds.
17 Lawrence Kohlberg, “The Development of Children’s Orientations Toward a Moral Order,” Vita
Humana 1963, No. 6, pp. 11–33, reprinted in Human Development 2008, No. 51, pp. 8–20.
18 Carol Gilligan, In a Different Voice. Psychological Theory and Women’s Development (Cambridge
Mass. and London: Harvard University Press, 2003).
19 Kohlberg, The Development of Children’s Orientations, p. 12.
Paweł SkuczyńskiThe author understood moral development in the categories of enhancing
cognitive powers of an individual and passage from the simplest methods
of moral reasoning to more complex. Three fundamental levels have been
distinguished: preconventional, conventional and post-conventional morality.
Each stage may further be divided into two phases. On the preconventional
level: 1) Obedience and punishment orientation, where actions are evaluated in
terms of possible punishment, not goodness or badness. Obedience to power is
emphasized and the main question is “How can I avoid punishment?” At this
level, the most probable answers to Heinz’s dilemma may be: “Heinz should
not steal the medicine because he will consequently be put in prison which
will mean he is a bad person. Or: Heinz should steal the medicine because it
is only worth $200 and not how much the druggist wanted for it; Heinz had
even offered to pay for it and was not stealing anything else.” 2) Pleasure-seeking
orientation, where proper action is determined by one’s own needs. Concerns
for the needs of others is largely a matter of “you scratch my back and I’ll scratch
yours,” not of loyalty, gratitude, or justice and the main question is “What’s in
it for me?” Probable answers are: “Heinz should steal the medicine because he
will be much happier if he saves his wife, even if he will have to serve a prison
sentence. Or: Heinz should not steal the medicine because prison is an awful
place, and he would probably languish over a jail cell more than his wife’s death.”
Conventional level has two phases: 3) Good boy/good girl orientation. Good
behavior is that which pleases others in the immediate group or which brings
approval; the emphasis is on being “nice.” It can be titled also as conforming
to social norms orientation. Probable answers to Heinz’s dilemma are: “Heinz
should steal the medicine because his wife expects it; he wants to be a good
husband. Or: Heinz should not steal the drug because stealing is bad and he
is not a criminal; he tried to do everything he could without breaking the law,
you cannot blame him.” 4) Authority orientation. In this stage the emphasis
is on upholding law, order, and authority, doing one’s duty, and following
social rules. It can be described as law and order morality. Probable answers
are: “Heinz should not steal the medicine because the law prohibits stealing,
making it illegal. Or: Heinz should steal the drug for his wife but also take the
prescribed punishment for the crime as well as paying the druggist what he is
owed. Criminals cannot just run around without regard for the law; actions have
level has the following phases: 5) social-contract
orientation. Support of laws and rules is based on rational analysis and mutual
agreement; rules are recognised as open to question but are upheld for the
good of the community and in the name of democratic values. It can be called
exchanging charter of rights and freedoms orientation. Probable answers are:
Chapter 1. Moral Dilemmas as a Matter of Contemporary Ethical Debate“Heinz should steal the medicine because everyone has a right to choose life,
regardless of the law. Or: Heinz should not steal the medicine because the
scientist has a right to fair compensation. Even if his wife is sick, it does not
make his actions right.” 6) Morality of individual principals. Behavior is directed
by self-chosen ethical principles that tend to be general, comprehensive, or
universal; high value is placed on justice, dignity, and equality of all persons.
This stage can be also described as universal ethical principles. Probable
answers: “Heinz should steal the medicine, because saving a human life is
a more fundamental value than the property rights of another person. Or: Heinz
should not steal the medicine, because others may need the medicine just as
badly, and their lives are equally significant.”20
Hence, it can be said that moral development progresses to autonomous
decision-making based on principles. The more mature we are, the wider range
of reason we tend to include and the more willing we are to take responsibility
for the choice. However, this does not make the dilemma easier to solve; on
the contrary, autonomous thinking allows discernment of more conflicting
reasons resulting from conflicting values. Though the basic choice is between
life and property, it may also be interpreted in the categories of conflict between
an obligation to the wife and an obligation to the chemist. On one hand, we
have not only an emotional relation, as predefined by the formulation of the
dilemma, but also reliance on someone, dependence and trust. On the other,
there is an institution demanding respect, based on precisely defined law and
applying sanctions for its breach. Even if we accept that the wife’s reliance on
her husband and his sense of obligation to help also result from an institution,
namely marriage, it is of a different kind than property. Hence, the conflict is
also between two types of institutional requirements. However, this does not
provide criteria for solving the discussed situation.
Heinz’s dilemma shows yet another type of conflict. According to C. Gilligan,
there are empirical proofs that the levels of moral development presented by
Kohlberg correspond to the process of a boy’s rearing and are inadequate as
regards the analogous process in women. The masculine part usually believes
that stealing is justified because life is of greater value than property. They are
also convinced that the court would take this circumstance into account and
would not punish the perpetrator. Girls, not questioning this way of thinking,
also discern some ambiguity. They indicate that, although Heinz cannot steal
the drug, he should not let his wife die. If he steals, then he will probably be
sentenced and will not be able to help his wife in sickness. Hence, they propose
20 Particular works of Kohlberg are collected in two volumes: Essays in Moral Development (San
Francisco: Harper Row, 1981) and Essays in Moral Development (San Francisco: Harper Row, 1984).
Paweł Skuczyńskithat Heinz talks once again to the chemist and presents him the situation in
detail, and surely then they will find a solution.21 The different answers also
show that there is compassion and obligation to provide help, which take
precedence over the law and rights. This pertains to Heinz as well as the chemist,
which to some extent makes his decision unrelated to the extent of emotional
According to C. Gilligan, the examples show that the moral development of
women is different from that of men, which provides a basis for distinguishing
two alternative kinds of ethics. If we adopt Kohlberg’s perspective, it means
that men attain full moral development because they reason with abstract
moral principles, while women remain on the conventional level, trying to
find solutions most appropriate for the model of their role – feminised in their
case – and so they are directed by care and maintaining relations at all cost.
According to the author, this is an argument that Kohlberg’s theory should be
treated with reserve, and that men and women develop differently. As far as the
former are concerned, they head what can be termed ethics of justice, namely
thinking about morality in terms of the distinction between rights and duties
on the basis of universal criteria of weighing the principles. Women, on the
other hand, head the ethics of care, namely seeing morality through the lens of
ideals of compassion and sacrifice for another person. It has to be remembered
that the thesis concerns sex uniquely in terms of culture, and does not mean
From the point of view of dilemmas, the conclusion is crucial. Although
the starting points for the above authors are empirical experiments, they lead
to an important analytical distinction, namely that there are many ways of
conceptualising a given situation which cannot be reduced only to classifying
the available options as falling into such categories as obligation, duty, right,
principle, moral ideal, etc. On a more fundamental level, moral dilemmas raise
the question of whether such qualifications help us in unsolvable situations, i.e.
whether they allow, by means of abstract logic, argumentation or the weighing
of principles, in order to make a choice. Perhaps it is more correct to treat
dilemmas as situations revealing deep interdependencies between people, and
to focus on the nature of a particular relation. Both approaches should be seen
as mature, and the resulting theoretical proposals as serious. If they are mutually
exclusive in the discussed situations, it means that moral dilemmas are also
related to the conflict between ethics of justice and ethics of care.
21 Gilligan, In a Different Voice, pp. 25–30.
22 Ibidem, pp. 54–58.
Chapter 1. Moral Dilemmas as a Matter of Contemporary Ethical Debate1.1.3. The Sophie’s Dilemma (aka The Sophie’s Choice)
Another very popular and much discussed example of a dilemma is the
situation described by W. Styron in the novel Sophie’s Choice first published in
1976. The heroine, Sophie – mother of two, John and Eva, is sent to Auschwitz
camp. During selection at entry of those who will be executed immediately and
those who will be imprisoned, an SS doctor places the following choice before
“You may keep one of your children.”
“Bitte?” said Sophie.
“You may keep one of your children,” he repeated. “The other one will have
to go. Which one will you keep?”
“You mean, I have to choose?”
“You’re a Pollack, not a Yid. That gives you a privilege – a choice.”
Her thought processes dwindled, ceased. Then she felt her legs crumple.
“I can’t choose! I can’t choose!” She began to scream. Oh, how she recalled
her own screams! Tormented angels never screeched so loudly above hell’s
pandemonium. “Ich kann nicht wählen!” she screamed.
The doctor was aware of unwanted attention. “Shut up!” he ordered. “Hurry
now and choose. Choose, goddamnit, or I’ll send them both over there.
She could not believe any of this. She could not believe that she was now
kneeling on the hurtful, abrading concrete, drawing her children toward
her so smotheringly tight that she felt that their flesh might be engrafted
to hers even through layers of clothes. Her disbelief was total, deranged.
It was disbelief reflected in the eyes of the gaunt, waxy-skinned young
Rottenführer, the doctor’s aide, to whom she inexplicably found herself
looking upward in supplication. He appeared stunned, and he returned her
gaze with a wide-eyed baffled expression, as if to say: I can’t understand
“Don’t make me choose,” she heard herself plead in a whisper, “I can’t
“Send them both over there, then,” the doctor said to the aide, “nach links.”
“Mama!” She heard Eva’s thin but soaring cry at the instant that she
thrust the child away from her and rose from the concrete with a clumsy
stumbling motion. “Take the baby!” she called out. “Take my little girl!”.23
It has to be mentioned that, although this is fiction, similar examples may be
found in literature. One of them appears in a lecture on the crisis of humanity,
23 William Styron, Sophie’s Choice (New York: Rosetta Books, 2000), pp. 507–508.
Paweł Skuczyńskidelivered in the United States in 1946 by A. Camus. Among several situations
from wartime testimony, he recalled:
In Greece, after an underground resistance operation, a German officer
prepares the executions of 3 brothers he has taken as hostages. Their old
mother throws herself at his feet and he agrees to save one of them. But
only at the condition that she designate which one. She chooses the oldest
because he has a family, but her choice condemns the 2 others. Just as the
German officer intended.24
It is worth mentioning that this example was used by H. Arendt as one
of the motifs in her analysis of the relation of totalitarianism to morality. She
emphasises that totalitarian terror leads to unprecedented extremes by putting
people in such situations which allow the undermining of any choice they
make, and hence strip the victims of the opportunity to clear their conscience.
Thus, they preclude the last refuge from the system, namely into oneself, into
the moral core of a person. By shuttering the latter, entangling in dramatic
choices, totalitarianism acts not only with external oppression, but also within
an individual, which is its greatest treachery.25
In modern meta-ethical debate, Sophie’s choice is usually cited as a classic
dilemma. For W. Sinnott-Armstrong, options in the situation are symmetrical,
which generates an insolvable moral conflict, for there is no reason to choose
one child and sacrifice another. A mother’s duties to each of her children are
perfectly identical, and there are no grounds to differentiate them. Hence, it is
not only an issue that Sophie does not know these reasons; the problem is that
they do not exist objectively. If she came up with some extra-moral arguments,
it would be a kind of rationalisation that did not rely on truly existing reasons.
Neither does, the fact both children will die if Sophie refrains from the choice
provide substantiation of the choice, and hence the dilemma is not resolved. The
essence of it is that the circumstances force her to sacrifice one of her children.
It may be said that by making choice – seemingly necessary – she plays the game
and even cooperates with the thug.26
D. Statman doubts whether we may speak here of symmetry of options.
He emphasises that, in dramatic circumstances, mothers usually find some
24 Albert Camus, The Human Crisis, lecture held on March 28, 1946, p. 4, available at https://
pl.scribd.com/document/341261228/The-Human-Crisis-Albert-Camus-Lecture# (accessed on 13th
25 Hannah Arendt, The Origins of Totalitarianism (Cleveland and New York: Meridian Books,
26 Walter Sinnott-Armstrong, “Moral Dilemmas and Incomparability,” American Philosophical
1958), p. 452.
Quarterly 1985, No. 4, pp. 323–324.
Chapter 1. Moral Dilemmas as a Matter of Contemporary Ethical Debatereasons to give preference to one child’s good.27 He follows the argumentation
of R.A. Sorensen, who points out that theoreticians dealing with dilemmas tend
to prove that dilemmas as situations of ideal symmetry of options are possible,
and not to show how people react to them in reality. Hence, they rely on
idealisations. In the discussed situation, Sophie explains her decision that John,
as an older boy, stood better chances of survival in the camp. In the author’s
opinion, this is not only rationalisation, but a true reason that allowed her to
make a choice in the dramatic moment.28 Moreover, the situation seems to us
paradoxical because, assuming that Sophie’s duty is to save each of the children
in these circumstances, we conclude that we demand from her simultaneously
saving one of the children and not saving it due to the necessity of sacrificing
another. This interpretation means that, whichever option she chooses, she
will do harm, whereas to the author, there is no conjunction but the alternative
between these contradictory demands. As a result, the proper description of
Sophie’s situation is the statement that it is a boundary one, and we are unable to
state whether her choice – whatever it be – may be attributed evil.29
To P. Railton, the situation is more complex, even multi-level. He juxtaposes
it with a similar one, that of Ruth, mother of Siamese twins. Doctors inform
her that, without an operation, both will die, but they are so deeply joined that
such a procedure would allow only one child to be saved. The mother must
choose which one will stay alive. Despite several important differences between
Ruth and Sophie’s choices, the situation’s complexity is manifest in both cases.
First, they need to decide whether to make the choice at all, or to let the events
develop with no interference. This is a crucial moment because it may be argued
that, by deciding to make the choice, they decide to accept responsibility for it.
Of course, it may also be said that refusing to choose is also a concrete choice in
itself. The latter statement may be endorsed with quantitative argument, already
recalled in the trolley dilemma – as both children will die should the mother fail
to make a choice. By deciding to choose, she may save one of them. Resolution
in line with this argument gives rise to another problem, in which the symmetry
of options is very clear – both Sophie and Ruth must indicate which child will
live and which will die.30
B. Chyrowicz claims that, even if we stated the causal relationship – albeit an
indirect one – between Sophie’s choice, or lack of choice, and the death of her
27 Statman, Moral Dilemmas, p. 11.
28 Roy A. Sorensen, “Moral Dilemmas, Thought Experiments, And Conflict Vagueness,”
Philosophical Studies 1991, No. 63, pp. 292–293.
29 Ibidem, pp. 301–303.
30 Peter A. Railton, “The diversity of moral dilemma,” in Moral Dilemmas ad Moral Theory, ed.
H.E. Mason (New York–Oxford: Oxford University Press, 1996), pp. 157–158.
Paweł Skuczyńskichildren, or child, this by no means justifies ascribing to her moral responsibility
for this choice. It is not her action that causes the death of her child or children,
but the action of the blackmailing perpetrator. The author indicates that this
is precisely what blackmail is based on – an attempt to ascribe responsibility
to the victim for the actions of the perpetrator. It is always a form of violence
appealing to the victim’s fear of certain consequences. However, it is based on
false ascription of responsibility; in effect, the conduct of someone who yielded
to blackmail should not be evaluated, since it would mean acceptance of this
falsehood. A similar mechanism is used in operations involving hostages.31
1.1.4. The Sartre’s Student’s Dilemma
Also widely known and commented upon is the dilemma described by
J.-P. Sartre in Existentialism is a humanism of 1946. It is worth citing the original
complete description of the dilemma. The author says that a student once
addressed him in the following circumstances:
his father had broken off with his mother and, moreover, was inclined
to be a “collaborator.” His older brother had been lulled in the German
offensive of 1940, and this young man, with primitive but noble feelings,
wanted to avenge him. His mother, living alone with him and deeply
hurt by the partial betrayal of his father and the death of her oldest son,
found her only comfort in him. At the time, the young man had the
choice of going to England to join the Free French Forces-which would
mean abandoning his mother − or remaining by her side to help her go
on with her life. He realized that his mother lived only for him and that
his absence − perhaps his death − would plunge her into utter despair.
He also realized that, ultimately, any action he might take on her behalf
would provide the concrete benefit of helping her to live, while any action
he might take to leave and fight would be of uncertain outcome and could
disappear pointlessly like water in sand. For instance, in trying to reach
England, he might pass through Spain and be detained there indefinitely
in a camp; or after arriving in England he might he assigned to an office
to do paperwork. He was therefore confronted by two totally different
modes of action: one concrete and immediate, but directed toward only one
individual; the other involving an infinitely vaster group − a national corps
− yet more ambiguous for that very reason and which could be interrupted
before being carried out. And, at the same time, he was vacillating between
two kinds of morality: a morality motivated by sympathy and individual
31 Chyrowicz, O sytuacjach, pp. 305–306.
Chapter 1. Moral Dilemmas as a Matter of Contemporary Ethical Debatedevotion, and another morality with a broader scope, but less likely to be
fruitful. He had to choose between the two.32
To Sartre, the student’s situation shows tension between the lack of influence
on the situation and his absolute responsibility for the choice he makes in it.
The tension stems not only from the fact that life presented the student with
the necessity to choose, but also from the fact that no element of reality allows
a decision to be made on the basis of any objective criteria, for there is no system
of values that would allow making a choice and justifying it, which leaves him
and only him responsible for the choice. The only thing he is left with is to rely
on his instincts and feelings, namely subjective criteria. In doing this, however,
he must bear in mind that in this way he will not be absolved from responsibility
for the choice. But he will have the sense that it is his own choice.33 The student’s
problem, like the previous ones, has been widely received in ethical and meta-
ethical discussion. Various elements have been pointed out, such as the nature of
the situation and the precise character of the moral problem that is to be solved.
For E.J. Lemmon, the situation is a moral dilemma with a trait specific of
a whole group of dilemmas that are of fundamental importance for the person
who is to make a choice. He claims that the student faces, on one hand, an
obligation towards his mother resulting from the situation they are in. The
element of this is the dependence of her happiness on her son’s presence. On the
other, he feels a duty to get involved in the defence of the country. It may not be
as clear in content as his obligation to his mother, but it certainly is noticeable. It
may be described as civil duty. The author points to uncertainty both regarding
the consequences of every course of action, as well as in terms of which
obligation is stronger. Another quality of the dilemma is crucial to him too, i.e.
it requires making not only a concrete choice but making a more fundamental
one, which will be decisive for the student’s moral outlook and may even
require a change of views or at least their clarification. This quality concerns
fundamental attitudes, which – in simplification – encompass answering the
question about how important political engagement is for the student.34
Analysing this example, P. Railton stated that it differs from many situations
that are typically considered moral dilemmas. It is hard to describe the available
options of conduct as obligations. The compulsion that he feels to stay with his
mother on the one hand and to join the resistance on the other seem to make
different use of the term “must.” It is more justified to speak here of moral ideas,
32 Jean Paul Sartre, Existentialism is a humanism, including, A commentary on the stranger (New
Haven London: Yale University Press, 2007), pp. 30–31.
33 Ibidem, pp. 29, 30.
34 Edward J. Lemmon, “Moral Dilemmas,” The Philosophical Review 1962, No. 2, pp. 154–155.
Paweł Skuczyńskisince we would hardly agree that everyone is obliged to subject one’s life totally
to one’s parents, even in hardship, just as it is not easily acceptable that every
young person is obliged to fight for the state. Hence, the student could look for
a compromise between the available options. It seems he refrains from doing so
precisely because of the notion of certain moral ideas – sacrifice for the family
and sacrifice for the state. He wants to be fully loyal to both, because this is how
he perceives himself. This, however, means that the discussed situation is rather
the problem of being true to oneself, one’s own identity and the related ideals,
and not the issue of fulfilling moral obligations.35
D. Statman focuses primarily on the uncertainty that accompanies the
student’s choice. He cannot know the future, and his chosen course of action
will cause certain consequences of various levels of probability, for it is easier
to envisage the effects of staying with mother than joining the resistance.
Materialisation of the latter may be prevented by many events, and eventually
it may end in complete failure. Even if the student joined the resistance, it is
unknown how long he would last, what tasks he would have to carry out, and
so on, so it is hard to say whether the option is good or bad. The moral problem
before him is insoluble not because he knows the bad consequences of each
option, but precisely because he lacks knowledge about the consequences.36
R.B. Marcus uses the dilemma as an example of a particularly dramatic
situation in which a choice is accompanied by a sense of guilt. The student must
choose one of the options, hence it would seem that he has no influence on the
elimination of the other. The choice is only his, but the mutual incompatibility
of the options is part of the objective situation, therefore all sense of guilt caused
by the choice made could seem unjustified or even false. The author objects to
such a view, and claims that sense of guilt is vital even in situations over which
we have no influence, or in which our influence is minimal, because such
feelings express the dramatic quality of situations, allow them to be identified
as dilemmas, and motivate us to avoid them in the future. This avoidance may
be carried out by proper management of one’s life as well as correct design of
institutions.37 T.C. McConnell continues in the same vein in his reflections on
35 Railton, The diversity, pp. 149–151, 157–159.
36 Statman, Moral Dilemmas, pp. 17–18.
37 Ruth B. Marcus, “Moral Dilemmas and Consistency,” The Journal of Philosophy 1980, No. 3,
38 Terrance C. McConnell, “Moral Residue and Dilemmas,” in Moral Dilemmas ad Moral Theory,
ed. H.E. Mason (New York−Oxford: Oxford University Press, 1996), pp. 37–38.
Chapter 1. Moral Dilemmas as a Matter of Contemporary Ethical Debate1.2. The concept of moral dilemmas
1.2.1. The problem of defining moral dilemmas
The examples of moral dilemmas were selected to show the variety of
situations which are described as such in theoretical reflection. Although there
are many similarities between them, each has slightly different qualities. As
can be observed, they are also interpreted differently. As a result, a theoretical
dispute on the concept of dilemma, its definition and scope, continues. Both
issues are, naturally, connected but in different ways. A definition by providing
criteria of the use of the term indicates those qualities of situations that are
common to all dilemmas, whereas the question of scope concerns mainly
differentiation from other practical problems. Of course, both questions are
of great significance as regards the usefulness of the concept in a specialised
discipline, namely judical and legal ethics. In this section, the questions will be
outlined, and more systematically discussed later.
In literature there are several definitions of moral dilemmas. The most
common and also least precise is the situation of a subjectively difficult choice
whose source is an objective moral conflict. Hence, a dilemma always concerns
a specified individual who faces irreducible collision of various obligations
and does not know how to proceed.39 Despite the lack of precision, the term
has clear advantages because it indicates that the concept contains both
subjective and objective elements, though their list and characterisation are
disputable. According to E.J. Lemmon, who initiated modern discussion on
moral dilemmas, they are about a subject who is obliged to do something and
at the same time not to do it, when these two statements are simultaneously
true.40 To C.W. Gowans, moral dilemmas are a broader class of cases, i.e.
when a subject must choose between two different options but, because of
the circumstances these options are mutually exclusive.41 Later discussion
concentrated significantly on the nature of these obligations. For example,
W. Sinnott-Armstrong insisted that moral dilemmas occur only in conflict of
obligations (moral demands) and not, for example, ideals. He also emphasised
that, in some cases, the obligations are equal, namely none prevails over another,
39 Chyrowicz, O sytuacjach, p. 45.
40 Lemmon, Moral Dilemmas, p. 148.
41 Christopher W. Gowans, “The Debate on Moral Dilemmas,” in Moral Dilemmas, ed. Christopher
W. Gowans (New York–Oxford: Oxford University Press, 1987), p. 3.
Paweł Skuczyńskiwhich makes the options symmetrical, and in consequence moral dilemmas are
Although there is no unanimity on the understanding of moral dilemmas
and whether they really exist or are only theoretical conceptualisations,
several points of reflection related to this concept may be distinguished.
They may also be treated as elements of a moral dilemma’s structure, with
the assumption that, in various views, they are ascribed different importance,
and sometimes their existence is questioned. It is possible to distinguish
objective and subjective elements of the structure of a moral dilemma. The
first one comprises: 1) the alternativeness and disjunction of options 2) their
symmetry in the sense of lack of superiority of any, and 3) the existence of
a moral conflict resulting from the necessity of doing harm when any of the
options is realised. Subjective elements of moral dilemma include: 1) serious
problems with making a choice, 2) responsibility for harm done after making
the choice 3) existence of moral residuum, namely an internal effect, such as
a sense of guilt or pangs of conscience. All these elements will be discussed in
On the grounds of the above criteria – not sharp yet but already giving
orientation – one may try to distinguish the concept of a dilemma from other
practical problems. Thanks to this, it will not only be possible to answer the
question of whether a concrete situation that a lawyer may face in their
professional life is a moral dilemma, but also to define what it is if it does not meet
the criteria. Such assessment will be made in reference to a number of examples
of situations from various branches of law and various legal professions, in the
second part of this book. For that reason, the following practical problems other
than moral dilemmas in the strict sense have been distinguished: 1) conflict of
conscience, 2) legal dilemma or the problem of subjection to law, 3) the problem
of the application of law, 4) the problem of interpretation, 5) conflict of values
when they can be balanced by hierarchisation or optimisation, 6) conflict
of roles, 7) subjectively hard choice, 8) epistemic dilemma. All these kinds of
practical problems will be discussed later.
42 Sinnott-Armstrong, Moral Dilemmas (Philosophical Theory), pp. 11–20.
Chapter 1. Moral Dilemmas as a Matter of Contemporary Ethical Debate
Pobierz darmowy fragment