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The suberogatoryJulia Driver aa Brooklyn College, City University of New Yorkand The University Center for Human Values,Princeton UniversityPublished online: 02 Jun 2006.

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Australasian Journal o f Philosophy Vol. 70, No. 3, September 1992

T H E S U B E R O G A T O R Y *

Jul ia Driver

The dis t inct ion between obligatory and supererogatory acts has been widely recognized a m o n g phi losophers as a fruitful one since J.O. Urmson ' s classic article 'Saints and Heroes'. 1 This essay explores the significance of a paral lel d is t inct ion between forb idden an d 'suberogatory ' acts. Whereas supererogatory acts are good to do, bu t no t required, suberogatory acts are bad to do, bu t not forbidden. 2 This dis t inct ion has been a round a long time - - the Musl ims inc lude it in one code of ethicsP The dis t inct ion has even been men t ioned by several mode rn writers, bu t it is still a lmost ent irely u n k n o w n . 4 This paper will demonstra te that the dist inct ion's obscuri ty is undeserved by showing how it i l luminates some ethical problems.

I. The Problems

A. 'Moral ly Charged ' Situations

In a mora l ly charged si tuat ion the agent is faced with a d i l emma of sorts. Ei ther she acts well, or she acts ill - - there is no neutra l op t ion available. Consider the following case: in board ing a t ra in the person who is first gets first choice of seats.

* A version of this paper was presented at Brooklyn College in January, 1990. I thank the audience of that colloquium, and especially Jonathan Adler and Abigail Rosenthal, for their helpful comments. I would also like to thank Christopher Boorse, Susan Brison, Keith DeRose, Bernie Gert, Frances Kamm, Walter Sinnott-Armstrong, Tara Smith, Roy Sorensen, Susan Wolf, and the anonymous referees for this Journal for their comments on an earlier draft of this paper.

1 J.O. Urmson, "Saints and Heroes', in A.I. Melden (ed.), Essays in Moral Philosophy (Seattle: University of Washington Press, t958) pp. 198-216.

2 I realize that describing actions as 'bad' is initially awkward. However, I do this to capture the notion that these acts are deserving of negative evaluation, without being actually wrong, where wrongjust means 'impermissible'.

3 For an extremely interesting discussion of these, see F. S. Camey's article 'Some Aspects of Islamic Ethics', The Journal of Religion 63 (1983) pp.159-174. See also I~ Reinhart's 'Islamic Law as Islamic Ethics', The Journal of Religious Ethics 11 (1983) pp. 186- 203. There is an Islamic code of ethics which divides moral acts into five basic categories: the required, the forbidden, the recommended, the discouraged, and the permitted. The recommended acts roughly correspond to what we call 'the supererogatory', and the discouraged acts roughly correspond to what I am calling 'the suberogatory'.

4 See R. Chisholm, 'Supererogation and Offence: A Conceptual Scheme for Ethics' Ratio 5 (1963) pp. 1- 14; G. Mellema, 'Quasi-supererogation', Philosophical Studies 52 (1987) pp. 141- 150. Chisholm refers to this class of actions as 'offences'.

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But suppose that the train is almost full, and a couple wish to sit together, and there is only one place where there are two seats together. If the person ahead of them takes one of those seats, when he could have taken another less convenient seat, and knowing that the two behind him wanted to sit together, then he has done something blameworthy. Yet, if he gives up this seat, and takes a less desirable one, he has done something praiseworthy. The problem is justifying the blame when the agent is acting within his fights. The people who want to sit together have no claim against the person ahead of them in line. Thus, he has no obligation to pass up the more convenient seat.

This situation is one in which the harm which is committed by taking the seat is small. But morally charged situations can involve serious harms as well. For example, Roger and Bob are brothers. Bob is suffering from severe kidney failure. His only hope is to obtain a transplanted kidney, and the only compatible donor is Roger. If Roger donates the kidney, people respond with intense approval, because he is making a large optional sacrifice. But if he does not donate the kidney, the disapproval is also intense, even though Roger has no obligation to donate his kidney to his brother, or to anybody. Bob has no right, or entitlement, to the kidney. And if Roger, when failing to give a kidney to his brother is not violating a right, or failing in a duty, how can the disapproval be warranted?

Morally charged situations resemble moral dilemmas, because whatever decision you make, you cannot back out of the situation into a morally free space. There is no neutral ground. In the ethicist's technical sense a moral dilemma is a situation in which one is required to do x, and required to do not-x. Thus, whatever one does is wrong. In a morally charged situation, however, one's options are between two alternatives, neither of which is required - - one option carries approval, the other disapproval.

Moral conflicts are often characterized as conflicts between moral reasons. Walter Sinnott-Armstrong divides moral reasons into ideals and requirements, s Conflicts can arise between ideals, between requirements, and between an ideal and a requirement. An example of acting according to an ideal is giving money to charity, because even though it is good to do this, it is not morally wrong to fail to do it. A requirement, on the other hand, expresses something it would be morally wrong to fail to do. Failing to keep a promise is wrong; thus keeping promises is a requirement. Sinnott-Armstrong claims this to be exhaustive of moral reasons, thus only the three types of conflicts mentioned above are possible. Moral dilemmas are moral conflicts which arise between requirements.

Yet, morally charged situations represent another type of moral conflict: a conflict between an ideal and acceptable prudence. Another way of putting it is that these situations are examples of conflicts between an ideal and a right. Consider the kidney case again. Giving up one's kidney to save one's brother is certainly acting according to a moral ideal - - fraternal self-sacrifice. Yet, it conflicts with the fight one has to keep one's own kidney. Note that now failing to

5 W . Sinnott-Armstrong, Moral Dilemmas (Oxford: Blackwell, 1988) pp. 11-15; also see B. Gert, Morality (New York: Oxford University Press, 1989) ch. 8.

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act on an ideal does seem blameworthy, even though permissible (as opposed to failing to give money to charity on a particular occasion, which is not blameworthy at all).

Standing on one's rights all the time leads to situations in which rights are abused. A curious fact about rights is that they can be abused. This seems paradoxical because when one has a right to do x, one is entitled to do x - - one cannot be forbidden a rightP Yet examples of abused rights are common: e.g. suppose I smoke during a department meeting, which I know annoys the man sitting next to me. There are no rules forbidding me to smoke; I have a right to smoke in that room. Nevertheless, this sort of behaviour is abusive. Another example is mowing one's lawn early Sunday morning. Yet, if one cannot be forbidden in exercising a right, how can it be abused? The notion of 'abuse' has 'bad' connotations. But 'bad' in this case is not the same as forbidden, r

B. The problem of multiple abortions

Conservatives have overlooked an argument against abortion. If abortion is permissible, then multiple abortions are permissible. But a woman who has nine abortions has done something morally questionable. Indeed if she has no excuse, she has done something wrong. So even a single abortion must be impermissible.

By 'multiple abortions' I mean abortions by a single agent which exceed a certain vague number. A woman who has had one or two abortions has not had multiple abortions, but a woman who has had seven or eight has. Much of the literature on abortion has focused on the permissibility of the single abortion. The question most often asked is 'Is an abortion permissible?'. This question is answered 'no ' by the conservative and 'yes' by the liberal. I f the answer is no, then multiple abortions will also not be permissible. But if the answer is yes, it is not clear that even though a single abortion is permissible, multiple abortions are also permissible. Many who are liberals with respect to abortion will nevertheless respond unfavourably to the idea of a woman engaging in her eighth abortion - - given that she had no excuse for an abortion. But it is also true that most liberals believe that abortion is permissible without qualification; i.e. the woman's desire to have an abortion, at least an early abortion, is all that is required for its permissibilityP Thus, when the liberal judges it permissible for a particular woman to have an abortion, it isn't a matter of deciding that it is a lesser evil for the woman to have the abortion than to not have it, if her health is suffering, etc.

8 F. Schauer, 'Can Rights be Abused?', Philosophical Quarterly 31 (1981) pp. 225-230. 7 j. Waldron in 'A Right to Do Wrong', Ethics 92 (1981) pp. 21-39, argues that we do have a

moral right to do things which arc actually wrong -- a far stronger claim than the one I seek to defend. I am arguing that we have the right to do bad things, though they are not actually wrong.

a See, for example, M. Tooley's 'A Dcfense of Abortion and Infanticide' in J. Fcinberg (ed.), The Problem of Abortion (Belmont, CA: Wadsworth, 1973) pp. 51-91. For a mainstream liberal view, see B. Ehrenreich, 'Is Abortion Really a Moral Dilemma?', Hers column of The New York Times, February 7, 1984 and reprinted in R. Fogclin's Understanding Arguments (New York: Harcourt Brace Jovanovich, 1987) pp. 320-323.

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Rather, the liberal should view all (early) abortions as permissible even when the mother is quite healthy and could take care of the baby without diff iculty. 9 The right one has to abortion is the right to control over one's own body. So the dilemma posed for the liberal is this: if every single abortion is unreservedly permissible, why this feeling that there's something wrong with the eighth, the ninth or the tenth (per agent)?

C. Owed Favours

Favours are, by definition, services which one has no obligation to perform. So the expression 'owed favour' looks like a contradiction in terms - - even though it is often employed meaningfully, lo For example, Albert, who is a very generous person, has in the past done many favours for Bill. Suppose that Albert's sister has suddenly taken ill, and he needs to get her to a doctor's appointment. If he takes time out to return his books to the library, he will be unable to do so. So, he asks Bill to return the books for him, as a favour. Until Bill agrees to return the books, he has no obligation to do so. If Bill refuses to take the books back, saying 'I realize that this will help you out a lot, and it requires almost no effort on my part, but I just don't feel like it', Albert might well be taken aback. He might even feel angry with Bill, because Bill owes him a favour. But Bill is not doing anything wrong. Still, some negative judgement about Bill seems appropriate. The type of negative judgement called for in this case, as in morally charged situations, is captured in the concept of the suberogatory.

II. The Suberogatory

To draw out the distinction between the suberogatory and the forbidden, I first need to discuss the class of supererogatory actions. The suberogatory is contrasted with the supererogatory.

There is a myth surrounding the concept of the 'supererogatory'. Supererogatory acts are usually characterized as being 'beyond' the obligatory; that is, as being above some existing obligatory acts. They are actions performed 'above and beyond the call of duty'. This characterization is accurate as long as we think of supererogatory acts as being extraordinary and heroic in nature. Consider a familiar example: i f I notice that a child is drowning in a pond, I may be obligated to pick up a phone and call the rescue squad. What I am not obligated to do, what would be supererogatory, is to leap into the water and

9 One might call this the "extreme' liberal position, perhaps, since no consideration is given to the foetus in determining the permissibility of the abortion. But this view is one which underlies much liberal policy on abortion, and also some popular philosophical accounts, most notably Judith Jarvis Thomson's. On this particular view the moral status of the foetus isn't crucial, because the abortion will be permissible whether or not the foetus is a person. See also FM. Kamm, Creation and Abortion (New York: Oxford University Press, 1992).

lo I thank Roy Sorensen for pointing this out to me.

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attempt to save the child at the risk of my own life. It is supererogatory because I exceeded the obligation or duty that I did have with respect to the child in that situation. Given this story, 'supererogatory' is clearly applied to the act. Yet, it is difficult to specify in exactly what way supererogatory acts are 'beyond' the obligatory. Are they better than obligatory acts in terms of moral praise? 11

This cannot be the case, because some obligatory acts will deserve more praise than some supererogatory acts. I f I have contracted to clean your house I am obligated to do so. If I then clean both your house and your garage, I have performed in excess of this obligation, and so the cleaning of the garage is supererogatory. Now compare me with a captured soldier who is being tortured, and who nevertheless refrains from revealing the location of his comrades. If he refrains from telling, he is doing what he has an obligation to do. Yet, in these two situations, the obligatory act of resisting torture is certainly more praiseworthy than the supererogatory of cleaning a garage. I think that the reason that people think that the distinctions 'forbidden, permissible, obligatory, supererogatory' can be represented on a continuum of moral praise is that they are imposing a genuine Continuum onto the distinctions. Judgements of 'good' and 'bad' run along a continuum. Since people generally assume that supererogatory acts are better than obligatory acts, and obligatory acts are better than forbidden ones, they mistakenly think that the distinctions follow a continuum from good to bad. Yet, supererogatory acts are not invariably better than the obligatory.

Still, when people think of supererogatory acts being above and beyond the call of duty, they don' t mean this in its general sense. They mean that for any given context, when a person performs a supererogatory act she is choosing not to merely fulfil a duty, but to do more than that; thus, in any given context, supererogatory acts are better than obligatory ones. Consider the drowning case again: leaping into the water is morally better than calling the rescue squad.

However, there are also situations in which the term 'supererogatory' is used, but which are distinct from the cases mentioned above, because no obligation exists for the person to exceed. So, though the actions are praiseworthy, they exceed no obligation. For example, really going out of one's way to open the door for someone with an armful of groceries is usually considered supererogatory - - though one isn't obligated to do anything in such a situation. It is called supererogatory because one is being nice when one does not have to be - - but there is nothing that one has to be with respect to that person and that situation? a The suberogatory acts which are the focus of this essay are the opposites of these latter types of the supererogatory. This is the case because if there is an obligation to do x (at least) and one does not do x (at least), then one has slipped automatically into the realm of the forbidden. Suberogatory acts, however, are acts which are worse than the situation calls for, but not forbidden. The suberogatory is not simply failure to do the supererogatory, since for some supererogatory acts failure to do them is perfectly fine. For example, the failure to

11 See Chisholm, op. cit., pp. 3 ff. for a discussion of this point. 12 These supererogatory acts can be heroic as well. A person may risk her life to save another

when there is no option of calling a rescue squad.

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rush into a burning building to save another is not bad; likewise, the failure to buy my mother a present for no special reason is not bad. 13

This concept is useful in describing one option open to an individual in a morally charged situation. For example, the person on the train who refuses to take a less convenient seat - - and thus greatly inconveniences others - - has done something bad for which he can be blamed. But he has done nothing wrong. Thus, a morally charged situation can be described as one in which the agent is faced with the option of doing something supererogatory or doing something suberogatory.

This concept trades on a now familiar distinction between (1) 'A ought to do x' and (2) 'A has an obligation to do x'. Suberogatory acts are acts that we ought not to do, but which are not forbidden (we do not have an obligation not to do them). The suberogatory is 'mere badness'. It may be possible for suberogatory acts to aggregate in such a fashion as to exhibit a forbidden pattern of behaviour. The slothful act is not terrible, but the slothful life is. Moral slippery slopes provide other examples - - e.g. appeasing a tyrant once may be suberogatory, but as a pattern it is forbidden.

One might be tempted to spell out the concept in this way: suberogatory acts are morally impermissible in that they are morally bad actions, but they are morally permissible in that it is wrong for others to interfere with, or prevent someone from performing them. 14 This will not work, however, because it fails to distinguish the suberogatory actions from ones that are clearly impermissible. Suppose that a friend of yours has become an 'invisible man', and has been corrupted by his ability to do whatever he wants without getting caught. He delights in causing minor harms. He does lots of bad things, and some of them you could prevent, but if he should find out that you've thwarted him, he would go berserk and cause a massive harm. For example, suppose you could prevent him from sticking a pin in a baby, but you realize that if you did this, he would lash out and kill thousands of people instead. Here it would be wrong to interfere with his action of sticking the pin into the baby, but this action is more than merely bad. Sticking pins into babies is clearly impermissible. Thus, I prefer to simply characterize suberogatory actions as those that are permissible, though bad.

Critics may claim that this class of actions is not necessary to moral theory, since suberogatory acts can be explained in terms of existing categories. One suggestion is that suberogatory acts are violations of imperfect duties (whereas forbidden acts are violations of perfect duties). The trouble here is in the details. Which imperfect duty is violated by the man who prevents the couple from sitting together? What does it mean to violate an imperfect duty?. If an imperfect duty only sets a vague quota, then failing to take the opportunity to edge up toward the

la For this reason I disagree with Chisholm's characterization of offences: 'An offensive performance.., now becomes something which it would be bad to do and neither good nor bad not to do, and an offensive nonperformance.., something which it would be bad not to do and neither good nor bad to do' (p. 11). Such a characterization does not allow the possibility of morally charged situations.

14 1 thank a referee for this Journal for this suggestion.

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goal is not a violation. The shoe salesman who fails to close a deal does not violate his store's maxim 'Sell many shoes'. Suberogatory actions do not represent the squanderings of moral opportunities. Often, there is no optionality involved. The refusal to donate a kidney to one's brother is suberogatory regardless of one's past or future performance. Thus, morally charged situations are not amenable to this analysis.

Secondly, even if these difficulties could be overcome, there is the further problem of specifying the content of the so called imperfect duty being violated in morally charged situations. If the duty is to 'Act benevolently' the brother is not blameworthy, as long as he has acted well towards others on other occasions. If it is 'Donate a kidney to a brother who needs one' tile consequences are absurd. If I don't donate the kidney today, does that mean I do have to donate it some other time?

Iii. Further Applications of the Concept

In this section I will discuss further applications of the concept of the suberogatory and the morally charged situation, concentrating on the problem of multiple abortions. In the course of discussing this case, it will become clear how the concepts of an abused right and an owed favour are also clarified by reference to the suberogatory.

My purpose at this point is to explain why the intuition that there is something bad about multiple abortions exists, while still retaining the liberal view that abortion is permissible. There is nothing wrong with abortion, in the sense of its being impermissible. Yet obtaining an abortion for no compelling reason is still bad.

The solution is that a frivolous abortion, though permissible, is bad. Abortion, on this model, is 'suberogatory'. The badness involved in suberogatory acts might be trivial, as when I refuse to tell someone the time of day. However, it is not necessarily trivial, and indeed can be severe, as when Roger refuses Bob a kidney. Thus, the issue of how bad abortion turns out to be is a separate one. Also, on this view, it would be correct to say of a woman that she ought not to have the abortion - - just as she ought not to be uncivil - - but this does not mean that she has an obligation to carry the foetus to term, i.e., to no t have the abortion. 'Ought to' is not to be equated with 'has an obligation to'. is

A merely unwanted pregnancy puts one into a morally charged situation - - where one's choices lie between a supererogatory act and a suberogatory act. Thus, there is something wrong about the liberal's feelings regarding the single frivolous abortion. A frivolous abortion is bad, it's just not wrong. The badness becomes much more salient when the number of abortions increases. Liberals are afraid to admit that there is anything bad about such abortions, because they feel that this would be tantamount to saying it is wrong or impermissible to have

as This is Judith Jarvis Thomson's position on abortion, expressed in the classic article 'A Defense of Abortion' reprinted in Feinberg, op. cir., pp. 121-139.

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an abortion. This is a mistake, as I've demonstrated with the above analysis.

If one goes the suberogatory route one could maintain that when a woman has multiple abortions she is abusing her right to bodi ly liberty. The abuse worsens as the number of abortions goes up. It may even reach the point where addit ional abortions are forbidden. The evidence of prior 'misdeeds ' infects the evaluation of a present one, in much the same way that in law previous convictions of a part icular offence make the current offence worse than it would be, considered on its own. The mystery surrounding the very concept of an abused fight disappears when we make room in our ethics for the suberogatory.

The foetus has no moral status in its early stages. Why then is even a frivolous abort ion bad? Killing the foetus is bad because it is a waste. This is part icularly true when the abort ion is obta ined for frivolous reasons. To say that the foetus has no moral status is not to say that it has no value. Destroying it is s imilar to destroying any valuable object (i.e. object which others value). If one destroys it one ought to have a good reason. When someone destroys his grand p iano - - chopping it up for firewood, let's say - - he has wasted it, and is condemned for this. Still, it is his piano, to do with as he wishes, and the piano, though valuable, has no moral status. This will work for foetal animals as well. Suppose someone performs a recreational abort ion on her prize collie's pups, thus depriving the world of some truly beautiful puppies. This would be considered bad. And with the h u m a n foetus, the loss is far more profound. But the fact that the frivolous abort ion is a waste, and thus bad, does not confer moral status on the foetus, anymore than any wasteful act confers moral status on the object or creature destroyed.

As is the case with anything of value, one can have good reasons for destroying it. Imagine a ship carrying a precious cargo which gets caught in a storm. If jettisoning the cargo is required to save the ship, then jett isoning the cargo would be a good thing to do. When a captain has to do this many times, however, one may very well wonder whether the waste is truly necessary. So it is with the woman who has many abortions.

Most actual abortions are not frivolous. Thus, they will not be suberogatory. Still, the fact that the abort ion has to be performed at all is regrettable. A woman who goes on to have many abort ions is engaging in a wantonly wasteful activity - - and that is what she is condemned for. '8

Critics may claim that the case of the unwanted pregnancy is really a case of conflicting rights. The pregnant woman has the fight to control over her body and the foetus also has a fight - - the 'fight to life'. The right of the woman overrides the foetus' right, so abort ion will always be permissible. However, a

,8 This will be true, except under unusual circumstances. For example, the woman may have tried all methods of birth control faithfully, yet each one fails for her. Even though, because of this, she may have many abortions, she is not blamed. But this sort of case would be extremely rare -- too rare, really, to shape our intuitions. This case is another counterexample to the solution which claims that the pregnant woman is criticizable because she has put herself in a conflict situation. Here, the woman knows that engaging in even protected sex will put her in a conflict situation. Does she have an obligation to give up sex? I think not.

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woman has an obligation to avoid conflict situations which may jeopardize the fight to life of another whenever possible. And, when a woman is in the process of obtaining her tenth abortion, there is a good deal of evidence that she is not trying to avoid the conflict situation. So she is to be blamed for failing to take precautions, not for the abortions themselves.

But this analysis, at least from the liberal's point of view, will be defective because it presupposes that the foetus has a fight to life. This is not an assumption the liberal is likely to grant in the first place. Also, this position is subject to the difficulty of explaining how a right to control over one's body can override a right to life (especially that of one's own child). Judith Jarvis Thomson has tried to show that it does, but her arguments are problematic, lr Moreover, there are counterexamples to the premise that we are always obligated to avoid conflict situations: for example, people who choose to go into health care, to become doctors and nurses, know that conflicts of rights will arise on the job.

Another alternative proposal emphasizes that the abortion itself is not bad, but is evidence that the woman is morally careless or insensitive. That is, the abortions are a sign of something disturbing in the agent's character. Her character is worthy of moral criticism, even though the actions themselves, i.e. the abortions, are not.

Granted, we can sometimes divorce the epistemology of morality from its metaphysics as when we think less of a person who does something he mistakenly believes is wicked. There is nothing wrong with sticking voodoo pins into a Mother Teresa doll, but it reflects badly on one's character. But presumably a liberal who has an abortion could proceed in full knowledge that she was doing nothing wrong. How could doing what you know to be morally neutral be a sign of a bad character? Thus, the suberogatory solution is best.

When assessing a solution to the problem of multiple abortions, one should check to see how it generalizes to a related problem. Thus it is significant that the concept of the suberogatory can be smoothly applied to the issue of owed favours. True, one never has an obligation to do a favour for someone. Yet, under certain circumstances it would be bad not to agree to do the favour. Because Albert has helped out Bill so much in the past, it seems clear that Bill ought to return the book to the library. The 'owed' simply indicates that Bill ought to return the book, not that he has an obligation to do so. When one 'owes' a favour to someone else, it would be merely suberogatory to fail to do the favour.

IV. Conclusions

Introduction of the suberogatory into our classification of moral actions does more than promote theoretical symmetry. The concept serves to explain and

17 See excellent discussion by B. Brody in Abortion and the Sanctity of Human Life: A Philosophical View(Cambridge, MA. MIT Press, 1975).

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clarify some problems in ethics. I 'm sure that its significance transcends the puzzles discussed in this paper.

One defect of our moral language is that it is often not fine grained enough. In embracing the suberogatory, we allow for another useful distinction in our moral language. It provides a way of evaluating actions which accurately reflects many moral judgements we do make - - judgements lying in the dark corners between right and wrong.

Brooklyn College, City University of New York and The University Center for Human Values, Princeton University

Received March 1991 Revised September 1991

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