After explaining the doctrine of double effect, I will argue that per the doctrine it was morally permissible for the Avengers to take this risk because the harm was a side effect of pursuing a worthy, weightier goal. Next, I will develop an objection to that position, namely that the double effect principle does not adequately incorporate the moral intuitions involved, resulting in the improper or insufficient distinction between intentional conduct and foreseeable unintended conduct. For a response to this objection, I will describe how it fails to appreciate the higher risk here—the discharge of a bioweapon in an urban area. I will explain why this response is satisfactory with both Kantian and consequentialist considerations.
The Doctrine of Double Effect
According to the doctrine or principle of double effect, sometimes it is permissible to cause a harm as a side effect (or “double effect”) of bringing about a good result even though it would be impermissible to cause such a harm as a means of achieving that good result. (Stanford Encyclopedia of Philosophy (hereinafter, “SEP”), “Doctrine of Double Effect,” 2.3.2). Philosopher Joseph Mangan (1949) asserts four requisite conditions for its application:
(1) the object of the action itself is good (or at least indifferent);For instance, in your causing the death of a person who is pushing a victim off a cliff, the double effect principle permits you to incidentally cause the death of the attacker as a side effect of pursuing the good end of saving the victim. However, the instrumentality itself must not cause death for the sake of a good end—here, for instance, that your intervening does not simply shoot the attacker in the head; whereas it would be permissible to pull the victim away even if that foreseeably causes the attacker to fall to her death. The benefit of saving the innocent victim’s life is a proportionately grave reason to allow the foreseeable death of the attacker or risk thereof.
(2) the good effect is intended, not the evil effect;
(3) the good effect is not produced by means of the evil effect; and
(4) the reason for permitting the evil effect is sufficiently grave that the resultant benefit adequately offsets the harm. (SEP, “Doctrine of Double Effect,” 2.3.2).
Therefore, the cause of the harm is not part of an agent's means to such an extent that it must count as instrumentally intended to bring about the good end. Some find this doctrine initially plausible because of its intuitive appeal. The permissible harm is viewed as a merely foreseen side effect, perhaps regretful, when urgency makes the side effect unavoidable and risk is not increased. It is akin to a forced cost-benefit analysis—situationally consequentialist.
This contrasts with what is deemed morally impermissible in causing harm. A common example is the terror bomber who kills civilians to weaken the resolve of the enemy—the civilian’s deaths are intentional. Whereas the tactical bomber aiming at military targets foresees civilian deaths as an unintended consequence of his actions. Terror bombing is impermissible; tactical bombing is permissible (though some will disagree, citing inadequate reflection—e.g., on Kantian ideals—or insufficient emotional engagement). (SEP, “Doctrine of Double Effect,” 2.3.2).
It Was Morally Permissible For The Avengers To Take This Risk
Several Avengers—Captain America, Black Widow, Falcon, and Scarlet Witch—were on a mission gathering intelligence in Lagos, Nigeria, when a truck rammed inside the Center of Infectious Diseases. The villain Brock Rumlow escaped with a bioweapon. The Avengers tracked him to a market, where a fight occurred. Brock suddenly decided to commit a suicide bombing, perhaps hoping to kill Captain America, too. In a reflex move, Scarlet Witch contained the blast with telekinesis, but it damaged a nearby building, killing several Wakandan humanitarian workers inside.
Applying the principle of double effect, the good object of the Avengers actions was to achieve the higher goal of retrieving a bioweapon from villains. Although some civilian harm was foreseeable, it was certainly not intended, and the grave matter of preventing massive casualties by deployment of a bioweapon (there or elsewhere) outweighed the civilian harm foreseeable at the time the Avengers decided to act.
Also, the Avengers avoid culpability because the suicidal blast itself was not foreseeable, as it was a non-rational, superseding cause, and because the Scarlet Witch’s action to contain the explosion was reflexive, without time to deliberate. Citizens impliedly consent to a system where collateral damage is to be avoided or minimized, although not at all costs. The Wakandans weren’t citizens of Nigeria, but they necessarily consent to rely on their hosts system. In fact, if the battle didn’t occur there, it still could have happened in Wakanda or elsewhere.
An Objection to The Avengers Taking the Risk
The double effect principle does not adequately incorporate the moral intuitions involved because independently grounded moral considerations implicitly influence how we distinguish between means and side effects in the first place. (SEP, “Doctrine of Double Effect,” 4). Application of the principle to the Lagos battle fails to look squarely at the result—either way, the Wakandans’ deaths was precipitated by the Avenger’s actions.
It’s almost as if the principle is misused to justify the means because the goal must be achieved. We are inclined to describe a harmful result as a merely foreseen side effect when we believe that it is permissibly brought about. We are also inclined to describe a harmful result as part of the agent's means when we believe that it is impermissibly brought about. (SEP, “Doctrine of Double Effect,” 2.3.2).
Perhaps it is the “Side Effect Effect” that is at play. Complying with a norm while performing an impermissible act involves an intention in the compliance. Conversely, when one violates a norm incidentally in performing a permissible act, it merely involves knowingly violating a norm because one foresees the harm and knows of it but does not intend it. People intuitively feel that intent is closer to objectionable harm than is tolerating harm. (SEP, “Doctrine of Double Effect,” 2.3.2). If one is somewhat physically removed from the situation, one’s active brain areas are those associated with math and consequentialist thinking, whereupon one tends to assess a harm as a side effect. If closer to the physicality, then the emotional center and deontological reasoning areas are activated, whereupon one tends to assess a harm as intentional.
In Lagos, it was an inherently dangerous situation, but in applying the principle of double effect, one can lose sight of the immorality of causing so many deaths in absolute numbers. Viewing potential civilian victims as mere collaterals is as erroneous here as it would be in other areas that the Avengers have caused such damage and death—Washington D.C., New York, and Sokovia. The battle in Lagos was avoidable, so the Wakandan deaths were avoidable. They or the relevant authorities could have decided to battle on another day (or place). Otherwise, the Avengers’ causing civilian deaths, though not intentional, was culpable and at best grossly negligent.
A Response to this Objection
Notwithstanding, the best response to this objection is that battle is always inherently dangerous, wherever it occurs, and in this case the highest and most immediate risk was of the bioweapon discharging there. Given the exigency of the situation, the Avengers had to try to retrieve the weapon. Also, they did in fact get the bioweapon back and should be given credit for saving many lives—if not then, then in the future, as it could have happened in a different city, a denser city, and perhaps even the capital of Wakanda.
This response is satisfactory because it would be safer for the Avengers or any force to assume that the villain’s intent was to use the bioweapon in that city as a terror weapon. In fact, if the perpetrator was willing to commit suicide with a blast, then employing a bioweapon was just as possible. T.M. Scanlon (2008) asserted that the appeal of the principle of double effect is, fundamentally, illusory, while the Kantian appeal is real. An agent's intentions are relevant to moral assessments of the way in which the agent deliberated. (SEP, “Doctrine of Double Effect,” 2.3.2). Per Kantian logic, if there is no bad intent, then the actor is not responsible for the secondary affect.
Applying Walzer’s “Supreme Emergency” Argument
We can look at how Philosopher Michael Walzer’s doctrine of “supreme emergency” might apply to the Legos battle. Walzer argues that the terror bombing of German cities by Allied forces in World War II was morally permissible in its first year because it was necessary to prevent a “supreme emergency” – the conquest of all of Europe by the Nazis. First, the Allies were engaged in a just war. There was a just cause legitimately authorized with the right intention that was proportionate, necessary, and had a reasonable chance of success.
As for the necessity of the terror bombing itself, one could argue that the victims may be common citizens but were not innocent of the wrongs the Allies were fighting against. However, the Allies ultimately devastated many German cities, killed about 600,000 civilians, and seriously injured another 800,000 to terrorize the German people into forcing their leadership to surrender. (SEP, “Terrorism”, 2.3.2). However, it is a stretch to argue the realistic complicity of so many people over of varied backgrounds and geography, and so the impact on this analysis is de minimus. Also, the Germans should have tried to minimize civilian deaths per the Rules of Customary International Humanitarian Law. Each party to the conflict must, to the extent feasible, remove civilian persons and objects under its control from the vicinity of military objectives. (SEP, “Doctrine of Double Effect,” 4). For example, Britain removed many children from London during German bombing there. Nevertheless, the number of German deaths would still be very high from the Allied bombing, leaving our analysis substantially unaffected here, too.
A better argument is to concede the civilians’ innocence but to argue that attacks on them are nevertheless justified, either by their consequences on balance, or by some deontological considerations. (SEP, “Terrorism”, 2.3.1). For instance, in exceptional circumstances, considerations concerning consequences of not resorting to terrorism may be so weighty as to be overriding. (SEP, “Terrorism,” 2.3). Here, the Allies were faced with “the survival and freedom of political communities—whose members share a way of life, developed by their ancestors, to be passed on to their children,” which “are the highest values of international society.”
Not every case of oppression, foreign rule, or occupation, however morally indefensible, amounts to a moral disaster warranting application of the “supreme emergency” doctrine. However, when a nation is trying to exterminate an entire people or to “ethnically cleanse” them from its land, it becomes a moral disaster warranting terrorism, e.g., terror bombing, as a method of opposition, in view of the enormity and finality of its consequences, e.g., as applied to Jews, homosexuals, and various minorities in WWII.
Stephen Nathanson asserts that the idea of supreme emergency is vague, subject to arbitrary and subjective applications. It is a slippery slope to argue for exceptions allowing such terror. (SEP, “Terrorism,” 2.3.3). Consider that the Allies goal was unconditional surrender. Flexibility in the terms could possibly have saved many civilian and military lives.
Ultimately, however, when comes down to our civilians vs. theirs in a just war, and in dealing with desperate uncertainty, the “supreme emergency” doctrine has its rightful place.
If the Mercenaries Intended on Deploying the Biological Weapon In Wakanda
If the Avengers believed that the mercenaries planned to deploy the biological weapon in a crowded Wakandan city center causing millions of deaths, then it was morally permissible for the Avengers to engage them, despite the clear risk to civilian lives. This Avengers’ case presents a “supreme emergency” on the level Walzer describes because the stakes are so high and the failure to act would likely be too costly. The capacity of the villains to use the weapon—even beyond the initial millions dead if deployed—is a real possibility, too. The Avengers’ cause was just, and even if their authority was not direct, it should be implied given the extreme situational peril faced by millions.
This could be in the nature of a preventative war. The villains are at virtually at war with society and/or the Avengers themselves. The threatened attack is clear and likely, even if not necessarily immanent at the time of engagement. Therefore, it was morally permissible to thwart the villains at the risk of civilian lives. Even if it was not strictly in self-defense, they hadn’t provoked it. It would be absurd to wait for an attack; once the bioweapon is released—then or later in another city—it would be too late to prevent massive casualties. More likely, however, is that this is a case of self-defense. The response was proportionate, considering the nature and extent of the threat to the civilian populations and the fast-breaking action.
The strongest objection to the preceding argument is that even in self-defense, the result of saving a million lives is not certain, whereas the deaths of innocent civilians in engaging the villains in an urban area is virtually certain. Also, acting so violently and quickly in dealing with such a dangerous weapon could set it off. One could question the manner of the Avenger’s efforts, and whether mitigation was attempted, such as cornering the weapon in a safer area.
However, this objection is ultimately not successful because the stakes are too high. The potential environmental damage, perhaps permanent, and especially the magnitude of the loss of life, militates for a drastic solution: stop them at virtually all costs, e.g., less than one million lives. It was not the time to initiate negotiations with such villains. Furthermore, a “supreme emergency” takes precedence over the doctrine of double effect. Michael Walzer (1977) has argued that an additional condition for the Double Effect doctrine is to minimize the foreseen harm even if this will involve accepting additional risk or foregoing some benefit. Only if mitigation was available, timely, and effective without foregoing benefits and without incurring additional risk, should the Avengers have considered mitigation in the moment.
I’ve described the doctrine of double effect and argued its applicability to the Avenger’s decision to battle in Lagos despite the foreseeable civilian deaths. The objection to that applicability is that there are unacknowledged moral considerations and tendencies of human thought at play that cause the application to be somewhat illusory. However, that objection is weak in the face of the enormous life and death stakes in Legos. Furthermore, I described Walzer’s doctrine of “supreme emergency” and how it would apply to the Legos battle if the villains’ intent was to deploy the bioweapon there despite the lack of mitigation, if any, under the extreme circumstances.