claim of per se equivalence on the basis of one set of cases in which a killing and a letting die do not differ morally when all other factors are held constant. There might be a per se moral difference that does not show up sometimes because even if the cases are equalized for all factors besides the ones whose moral significance we are testing, the particular equalized factors in the case might “silence” or override a per se moral difference between the factors we are testing. For example, if someone has competently requested that one end his life, it may not make a moral difference whether one does so by killing him or letting him die. Or if someone has been legally sentenced to death, it may not matter whether officials authorized to see that he is dead do so by letting him die or by killing him. But these cases where a killing and a letting die are morally equivalent do not show that per se one type of act has no factors that make it morally different from the other that would account for moral differences in other sets of equalized cases.
This claim that the moral character of different acts could differ per se, while some cases involving the different acts are morally equivalent, brings to mind (for different reasons) Wollheim’s remarks on Danto’s gallery of indiscernibles. The fact that in some cases it is impossible to distinguish an artwork perceptually from a non-artwork does not show that there is no per se (conceptual) difference based on perceptual properties between an artwork and a non-artwork. Given what I said about killing and letting die, it might be suggested that there is some factor in some cases that is overriding or “silencing” the role of certain factors that still make a per se difference between art and non-art.4
In (B) I considered whether there is a moral difference in permissibility or in seriousness of a moral wrong. The most direct comparison with art bears on evaluation, whether some works of art are at least minimally good or why one is worse (or better) than another. Could, then, thought experiments be used in art as they are used to deal with (im)permissibility or moral (in)equivalence? It seems unlikely that the method of thought experiments I have described will work with art because in morality there are thought to be factors that weigh in the direction of permissibility or impermissibility or, other things equal, make an act morally worse than another. This is one reason why thought experiments can be good predictors of how one should deal with real-life cases. But there do not seem to be comparable factors that at least weigh in the direction of one artwork being good or better than another. That we admire the blue in one good artwork does not mean that the same blue in another artwork will weigh in favor of its being good. Perhaps properties at a very high level of generality, such as effective composition or dynamism, could lead us to think that an artwork would be better than another. Even this seems unlikely. The goodness of an artwork does not seem to be predictable from a list of its qualities in the way the permissibility of an act is. But perhaps this is only true when non-artists consider these qualities (even at a high level of generality). Is it possible that (as some have thought) an artist can know that once instantiated in the real world the artwork she has in mind as good will be good?
3 Comparing Danto on Ethics to Wollheim on Art
A. Surprisingly, in his own discussion of the permissibility of certain acts of killing and harming (see below), Danto seems to have adopted a view similar to the one Wollheim adopted about Danto’s indiscernibles. Consider the following excerpt from Danto’s consideration of whether assassination could ever be morally permissible:5
Because he was a monster, Hitler may be considered too extreme a case upon which to base a philosophical analysis of assassination. Consider torture … I am utterly opposed to the use of torture, but I suppose cases can be imagined, along Dostoevskian lines, in which one’s stand against torture might be weakened because it is a dramatically lesser evil. Suppose a man has, but refuses to divulge, information which would save millions of innocent lives … I do not know what I would say if torture were proposed. There is no morality for extreme situations and it is a mistake to argue from extreme cases to routine ones. In any event, it is not true that torture in the extreme case is justified. Patterns of justification cannot be designed for extreme cases; it is not that torture is justified, but that under such wild circumstances “right” and “wrong” do not apply. It is, thus, no justification of cannibalism that cases are available in which cannibalism seemed the only alternative to an agonizing death. I could understand a man who resisted the opportunity to survive, and I could understand a man who yielded. Extreme cases warp the concept of a policy, and Hitler’s seems precisely to be an extreme case. No argument from it is available, not even if one could secure the assent of every moral person that the killing of Hitler would have been a dramatically lesser evil than the deaths of millions of people directly traceable to his policies. I do not say a way cannot be paved from the extreme case to the practice. … All I am saying is that a way has to be paved, that the inference from the extreme case to the routine is fallacious without supplementary defense and then the supplementary defense eliminates the relevance of the extreme paradigm. … Is assassination, therefore, never justifiable, or at best not unjustifiable because of the moral structurelessness of the extreme case? Is it “beyond good and evil” only when the intended victim is a monster like Hitler? … Routinization of assassination is … consistent only with the devaluation of all values. … Accordingly, it can only be consistently [sic] with any true system of values that assassination is exceptional and hence extreme.6
This position about right and wrong action has echoes of what Wollheim says about the conceptual issue of art versus non-art. Consider the case of the egalitarian artist who exhibits the found red canvas (#5 in my list above of Danto’s indiscernibles): (i) A Wollheimian might say (applying Danto’s words about assassination to #5) that this is an extreme case, “and it is a mistake to argue from extreme cases to routine ones … inference from the extreme case to the routine is fallacious without supplementary defense and then the supplementary defense eliminates the relevance of the extreme paradigm” (to determining what is art). (ii) Wollheim thinks it is revealing that “art” might be applied to #5 with a degree of reluctance or indecision that Danto ignores. However, Danto takes note of indecision in the case of the permissibility of torture or cannibalism. Of an extreme case, he says, “I could understand a man who resisted … and one who yielded.” Wollheim might use the same words to describe his response to deciding #5 to be art. (iii) Wollheim might say of #5 (using Danto’s words about torture), “it is not that one is justified in saying … [#5 is art] … but that under such wild circumstances ‘right’ and ‘wrong’ do not apply.” (iv) Wollheim might say that a concept of art for ordinary cases derived from #5 being art “is then consistent only with the devaluation of values” (or concepts, in the case of art); “accordingly it can only be consistently [sic] with any true system of values” (or concepts) that #5 “is exceptional and hence extreme.”
B. Is Danto right in what he says (seemingly à la Wollheim) about assassination, cannibalism, and torture? I do not think so. Here are some reasons that pertain to torture.7
1 The fact that one could be reluctant to think that torture is sometimes morally permissible, or that one could understand both the person who said it was and the one who said it wasn’t, does not mean that torture isn’t in fact sometimes permissible (e.g., all things considered justified).
2 The fact that a type of act that is usually wrong would be done in circumstances where the consequences of its not being done would be extremely bad does not mean that the act is now “beyond good and evil.” Thomas Nagel thinks that cases like the one Danto imagines, in which we would torture an innocent in order to save the world, are “moral blind alleys” in which no matter what we do (torture or not), we act wrongly.8 But doing an all things considered wrong act no matter what we do would obviously not mean that the whole issue was beyond right and wrong (or good and evil). Danto himself thinks that “one’s stand against torture might be weakened because it is a dramatically lesser evil,” though this is not ultimately his final position as he switches to the “beyond good and evil” view.
3 An alternative view of the “dramatically lesser evil” justification is known as “threshold
