Melinda A. Roberts

Lawyers and philosophers have found it challenging to construct an account of when an act causes harm that is broad enough to address multiple agent problems but not so broad that it fails to distinguish between genuinely harming a person and imposing a condition on a person that we deem undesirable. Thus, we may think an act causes harm only if it makes a difference to a person and, more specifically, makes things worse for that person. If the effect is the same whatever the one agent does in virtue of what a second agent does or is prepared to do, it may seem that what the one agent does makes no difference. Multiple agent problems are endemic. Legal hypotheticals include the example of two fires, each ‘tortiously’ set, converging on a single barn. The physician faces a multiple agent problem when he or she understands that refusing to provide the fertility treatment a patient demands will just lead to another physician providing the treatment instead. And corporations face the problem when they project that conscientiously refraining from drilling for oil at a particular site will not safeguard that site but rather open the door to equally deleterious activities of still other corporations. This paper argues that a useful first step in developing an account of harm in the multiple agent context is to recognize that often, even if the individual agent cannot make things better for a person, the group can. It seems, however, that a fully adequate account will also show how and when the harm that the group imposes on a person devolves to the agent. This paper proposes such an account. Requirements include: that the agent is a member of a group implicated in the harm; that the agent participate in the bringing about of that harm; and that the agent’s non-participation would not have made things worse for the person. To avoid the charge of harm, then, and still participate in the harm that is done by the group, the agent’s participation must make things better for the person; simply not making things worse, once the other conditions are satisfied, is not enough to avoid the charge of harm. Advantages of the proposed account include its ability to discern as an exception cases in which the agent’s non-participation would have made things worse for the person and to distinguish cases involving a mix of natural and man-made causes