What it means for an event to harm: a historical baseline variant of the causal account of harming

Law and Philosophy https://doi.org/10.1007/s10982-024-09517-0  The Author(s) 2024 YAN KAI ZHOU WHAT IT MEANS FOR AN EVENT TO HARM: A HISTORICAL BASELINE VARIANT OF THE CAUSAL ACCOUNT OF HARMING (Accepted 9 September 2024) ABSTRACT. According to the causal account of harming, an event harms a person if and only if it causes the person to be worse off. This view has emerged as a popular alternative to the more traditional view, according to which an event harms a person if and only if the person would have been better off had the event not occurred. In this paper, my primary aim is to motivate and defend a certain variant of the causal account of harming. Moreover, I also situate this variant within recent attempts to provide a unified account of harm. KEYWORDS: Causation, Harm, Harming, Causal account of harming, Counterfactual baseline, Historical baseline What it means for an event to harm someone has become a topic of growing jurisprudential interest lately.1 The two most prominent accounts in the literature to date are: 1. The counterfactual comparative account of harming (CCA), which says that an event E harms a person S if and only if S would have been better off if E had not occurred; and 2. The causal account of harming (CA), which says that an event E harms a person S if and only if E causes S to be worse off (different variations of the CA flesh out what it is to be ‘worse off’ in different ways, as we will see below).2 Although the CCA has traditionally been the more prominent account, in recent years the CA has been receiving more attention. 1 See e.g., Seana Shiffrin, ‘Harm and its moral significance’ (2012) 18 Legal Theory 357; and Victor Tadros, Wrongs and Crimes (Oxford University Press, 2016). 2 Unless indicated otherwise, I will use the terms ‘harm’ and ‘harming’ interchangeably. Y. K. ZHOU In this paper, I develop a case for the following, relatively neglected, variant of the CA: The historical baseline variant of the CA (HBCA), which says an event E harms a person S if and only if E causes S to be worse off than before (a historical worsening). Following some preliminary remarks in ‘‘Preliminaries’’ section, I motivate the HBCA as against the CCA and other variants of the CA in ‘‘Motivating the (historical baseline variant of the) causal account of harming’’ section. Then in ‘‘Defending the historical baseline variant of the causal account of harming’’ section, I show how the HBCA does not succumb to its own set of allegedly fatal flaws. Finally, in ‘‘The challenge of non-causal grounding and unified accounts of harm’’ section, I situate the HBCA vis-a-vis recent unified accounts of harm developed in the literature. I. PRELIMINARIES First, I want to make clear the subject of investigation. As Ben Bradley has noted, some things are intrinsically harmful in that those things themselves constitute intrinsic prudential badness; ‘to say that something is intrinsically harmful… is to make a claim about wellbeing’.3 By contrast, some things are extrinsically harmful; ‘it is harmful in virtue of what it brings about, not because of what it is in itself’.4 As the CCA and CA are commonly thought of as accounts of extrinsic harm,5 the primary focus of this paper is on extrinsic harm.6 Second, the distinction is often made between accounts of pro tanto and overall harming. I understand both the CCA and CA as giving accounts of pro tanto harming. So, the CCA says that an event E pro tanto harms a person S if and only if S would have been better off in some respect if E had not occurred. Similarly, the CA says that an event E pro tanto harms a person S if and only if E causes S to be 3 Ben Bradley, ‘Doing Away with Harm’ (2012) 85 Philosophy and Phenomenological Research 390, 391-392. 4 Ibid. For example, smoking is extrinsically harmful as ‘[i]t is harmful in virtue of what it brings about [e.g., lung cancer], not because of what it is in itself’: ibid. By contrast, pain is intrinsically harmful, as ‘just being in pain is harmful to the person experiencing it’: ibid. 5 See e.g., Jens Johansson and Olle Risberg, ‘A Simple Analysis of Harm’ (2022) 9 Ergo 509, fn 15 and text therein. 6 See e.g., Neil Feit, Bad Things: The Nature and Normative Role of Harm (Oxford University Press, 2023), Chapter 1 on the importance of understanding extrinsic harm. THE HISTORICAL BASELINE VARIANT OF THE CAUSAL... worse off in some respect. One can easily build accounts of overall harming from these accounts of pro tanto harming.7 Third, a distinction that ought to be drawn more often in the literature is between an analysis of harm (as a verb) and suffering harm (as a noun).8 The former, the object of this paper’s investigation, concerns the conditions under which we can say that an event harms a person. The latter concerns the conditions under which we can say that a person is suffering harm, or what it is for a person to suffer harm (or to be worse off). In defending the HBCA, though I implicitly take a position on what it is to suffer harm (or what it is to be worse off), I do not take a position on whether to suffer harm is to be in a certain state or to undergo a certain kind of event. The HBCA I defend adopts a historical account of what it is to suffer harm (that is, to suffer harm is to be worse off than one was before), but beyond that, it is generally compatible with adopting either a state-based or event-based interpretation of what it is to suffer harm.9 Accordingly, in the discussion that follows, insofar as I engage with any account of what it means to suffer harm, my comments on them will not focus or turn on whether they are state-based or event-based accounts. Fourth, although I defend the HBCA, I will not be taking any specific view on the correct theory of causation. This ensures that the HBCA is not hostage to any particular account of causation. Instead, insofar as I make any causal claims, I will rely upon what I take to be generally uncontroversial common sense causal intuitions. The upshot is that I implicitly assume the negative view that simple counterfactual theories of causation are false.10 However, this does not strike me as a particularly implausible assumption, especially given the range of theories of causation that have been developed as arguably superior alternatives to the simple counterfactual theories of causation, and that track common sense causal intuitions. 7 See e.g., Erik Carlson, Jens Johansson and Olle Risberg, ‘Causal Accounts of Harming’ (2022) 103 Pacific Philosophical Quarterly 420. 8 See e.g., Charlotte Franziska Unruh, ‘A Hybrid Account of Harm’ (2022) Australasian Journal of Philosophy (forthcoming), and Justin Klocksiem, ‘Harm, Failing to Benefit, and the Counterfactual Comparative Account’ (2022) 34 Utilitas 428, fn 15, calling for the same. 9 For example, on the historical account of what it is to suffer harm, to suffer harm can be interpreted as either (i) being in a state that is worse off in terms of wellbeing (...truncated)