Table Of ContentIn memory of Robert Nozick and Derek Parfit.
With gratitude.
Introduction
Overview of the book. This book deals with philosophical, legal, and
medical issues related to aging, dying, and death that face a society and
people in it as a matter of advance planning as well as in clinical care.1
Chapter 1 considers different views about what makes death bad
for the person who dies (its intrapersonal badness) and what could be
done to reduce or eliminate its badness. It also considers how death
compares with prenatal nonexistence and whether factors that make
death bad for a person also bear on whether extinction of humanity
(or other types of persons) would be bad. Given this as background,
Chapters 2 and 3 begin consideration of when it could make sense to
die rather than live on because death is preferable to living on for the
person who would die. Chapter 2 focuses on the views of Shelly Kagan
about (i) when ending or not ending one’s life does or does not make
sense and (ii) how to decide. It considers whether his views about the
worth of living on are consistent with his views about when it makes
no sense to end one’s life. It also examines whether the way in which
he adds the negative and positive aspects of life to decide whether to
live on gives sufficient weight to context- dependent values and to the
reasonableness of not going through great suffering for the sake of an
even greater good to oneself.
Chapter 3 focuses on the views of Atul Gawande about the pro-
cess of dying and the possible conflict between trying to live on by
way of medical treatment and retaining meaning at the end of life. It
considers how his views relate to Bernard Williams’ distinction be-
tween categorical and conditional desires and how they bear on when
it makes sense not to resist the end of one’s life. There is critical dis-
cussion of Gawande’s conception of meaning in life and the impor-
tance he attributes to endings. Chapter 4 considers attempts to help
the general public plan in advance for the end of life. Possible conflicts
are identified between the aim of respecting people’s preferences and
meeting objective standards of best practices, family preferences, and
requirements of informed consent. The chapter also locates impre-
cision, nudging, and framing effects in the questions recommended
Almost Over. F. M. Kamm, Oxford University Press (2020) © Oxford University Press.
DOI: 10.1093/oso/9780190097158.001.0001
x • Introduction
by conversation guides for eliciting people’s preferences as well as
tendencies of the questions to promote specific values.
Chapter 5 begins consideration of aging per se by reflecting (with
the help of a work of fiction) on hypothetical possibilities for the di-
rection and distribution of goods and bads in life. It first distinguishes
qualitative aging from becoming older in years by considering the
fictional case of Benjamin Button. It then considers the significance
of death in lives with different aging trajectories, better and worse
distributions of goods and bads within lives, and tradeoffs between
quantity and quality of life. Chapter 6 considers a type of view about
aging and death exemplified in the work of Ezekiel Emanuel (a prom-
inent bioethicist and architect of public health policy). It examines
Emanuel’s reasons for thinking that after a “complete life” (by around
75) it can be reasonable (at least for some) to omit easy preventive
measures (e.g., flu shots) that would extend life even when such life
would not be worse than death. To better understand such a posi-
tion the chapter makes use of the views of Susan Wolf and Bernard
Williams on meaning in life and reasons to go on living, and also
considers different ways of judging the worth of activities. It further
compares Emanuel’s views with those of Atul Gawande, B. J. Miller,
and Douglas MacLean. Finally, it considers whether Emanuel’s argu-
ment also supports the moral permissibility of suicide and assisted
suicide.
Chapter 7 presents arguments in favor of the moral permissi-
bility of, and even a duty to engage in, physician-a ssisted suicide. It
considers objections to these sorts of arguments presented by David
Velleman from a Kantian perspective and by Neil Gorsuch (now asso-
ciate justice of the U.S. Supreme Court) who argues against intending
death. The chapter considers how to identify such an intention, the
significance of the intention for moral and legal permissibility, and
the role of the Doctrine of Double Effect in arguments about assisted
suicide. Chapter 8 considers how one should reason about assisted su-
icide as a matter of public (and legal) policy in the absence of a consti-
tutional right to it by critically examining Emanuel’s anti-l egalization
views. The chapter considers the role of (i) rights and wronging of
people and how they come about as well as (ii) harms and benefits
and how to aggregate them. The bearing on these issues of arguments
for the distinctive role of the state in enabling or interfering with
Introduction • xi
behavior is considered by critically reviewing some arguments for and
against capital punishment. Finally, in the light of empirical data about
effects of legalizing physician- assisted suicide and given what else he
believes, the chapter considers whether Emanuel should no longer op-
pose legalization. In connection with issues raised in Chapters 4 and
8, an appendix considers whether using cost- effectiveness analysis
to determine what health procedures to use can involve unfairness.
Different views of fairness are considered as well as such possible
sources of unfairness as not giving priority to the worse off and dis-
crimination against the disabled. The views of Daniel Hausman and
Peter Singer, among others, are critically examined.
Origins of the book. More than my other books, it is events— ones
in which I was an invited participant as well as public events—a nd
their upshots that have led to this book. I came to write the article
that served as the basis for Chapter 1 as a result of being invited to
a conference on death in Norway in 2015. Since I had not worked on
the topic of death itself since writing Morality, Mortality, vol. 1, I read
Shelly Kagan’s (at the time) new book Death to prepare. At about
the same time the Museum of Modern Art (MOMA) in New York
invited me to serve on a panel with Atul Gawande to discuss his
book Being Mortal. (Though he was ultimately unable to participate,
I participated in another MOMA panel, “Modern Death,” which took
its place.) I was struck by differences in the way Kagan and Gawande
approached some similar issues and this led to writing the article that
was the basis for Chapters 2 and 3. I also became interested in the
questions asked of patients that Gawande described as being used to
determine appropriate end-o f- life care, and Dr. Lachlan Farrow pro-
vided some references to read on this topic. My published article
about these questionnaires is the basis for Chapter 4. Chapters 6 and
7 are the result of having been invited to debate Ezekiel Emanuel, a
major figure in U.S. health policy, on a panel about death and dying
at the thirtieth anniversary of the Edward J. Safra Center for Ethics
at Harvard University. Emanuel and I had different views about as-
sisted suicide in the past and in preparation for that panel I read
more of his work on that topic and on also his views on aging. It was
writing Chapter 6 that triggered my consideration in Chapter 5 of
a short story by F. Scott Fitzgerald because of the different way it
presents aging, growing old, and the distribution of goods and bads
xii • Introduction
in life. It is a speculative chapter less connected to real life issues than
other chapters. Chapter 7 was prompted by the appointment of Neil
Gorsuch to the Supreme Court, an event that made it especially im-
portant to examine his views on assisted suicide. Parts of that chapter
served as my Lanson Lecture in Bioethics at the Chinese University of
Hong Kong and my Lecretia Seales Memorial Lecture at the Victoria
University of Wellington Law Faculty.
Acknowledgments. For comments on drafts of Chapter 1, I am
grateful to Espen Gamlund and Carl Tollef Solberg. Chapters 2, 3, 6, and
7 were fruitfully discussed with Shelly Kagan, Jeff McMahan, Larry
Temkin, and others mentioned in the individual chapters. Temkin also
provided comments on Chapters 1, 4, and 8 when he attended my
graduate seminar at Rutgers University’s philosophy department
in spring 2017. For their detailed written remarks, I am grateful to
Larry Sager and Seana Shiffrin who commented on Chapter 8 when
it was delivered at the UCLA Law and Philosophy Colloquium, and to
Dr. Chun- Yan Tse, who was my official commentator on my Lanson
Lecture. For the opportunity to discuss their work and their continuing
support of my own efforts I am grateful to Thomas Nagel and Susan
Wolf. I also thank for their comments audiences at the Australian
National University, NYU, Brandeis, Syracuse University, MOMA,
the Columbia University Seminar on Death, the Chinese University of
Hong Kong, the Victoria University Law Faculty, UCLA, UCSD, UCI,
and students in my seminars at Harvard and Rutgers Universities.
Throughout the time I worked on this book I was the beneficiary of
help for which I am very grateful from Lily Safra and the Edmond
J. Safra Ethics Center at Harvard University, the Harvard Kennedy
School, Sharon Street, Maria Twarog, Agnes Mosejczuk, and Hubert
Mosejczuk. Finally, I am indebted to Jenn Valois for deciphering and
typing, to Margaret Collins, Christopher Fruge, and James Goodrich
for editing, and to Rhys Southan for the index. They made possible a
more readable book.
Note
1. Though this book deals with death, the last word in its subtitle is not “death”
but “dead” as in “you are aging, you are dying, you are dead.”
Chapter 1
The Badness of Death and What to Do
About It (if Anything)
In this chapter I will consider certain views about why death per se
(as opposed to the process of dying) is bad for the person who dies.1
Given these views about what makes a death bad, I will consider
(1) what might help to avoid or minimize the bad aspects of death and
(2) whether these things should be done.2 I briefly consider whether
and how factors analogous to those that make death bad for a person
would make the end of all persons bad.
1. Preliminary Remarks
The standard contemporary view about why death is bad for the
person who dies is called Deprivationism.3 On this view death,
assumed to involve irreversible nonexistence after life, is bad only be-
cause it deprives one of goods and the more deprivation, the worse
the death.4 Hence, the badness (or goodness) of death for a person is
discovered by comparing the life he could have had if death did not
occur at a certain time to the life he will have if it occurs at that time.
Alternatively, we might determine how bad (or good) death is for a
person by comparing his nonexistence after a certain point in time
where the event of death occurs with what his life would have been
like from that point in time onward if he had not died then. These
are comparisons between actual and counterfactual lives and states.
Figure 1.1 shows both comparisons.
On the alternative view, if only things worse than nothing (involved
in nonexistence) are to come, then death that prevents them from
coming would not be bad and an earlier death would be better than a
Almost Over. F. M. Kamm, Oxford University Press (2020) © Oxford University Press.
DOI: 10.1093/oso/9780190097158.001.0001
2 • Almost Over: Aging, Dying, Dead
Actual life Death Nonexistence (0)
Counterfactual life Death
Figure 1.1
later death. On this view, sometimes one could be better off dead but
only in a sense that it would be better to have a shorter rather than
longer life. This sense is still compatible with one not being in a better
state once dead since death is assumed to involve our nonexistence.
Deprivationism so understood takes a forward-l ooking, consequen-
tialist view of the badness or goodness of death; death is bad or good
depending on whether its consequence is no more good or no more
bad life.
I have concerns about Deprivationism as an adequate theory of
the badness of death. First, I think that how good or bad one’s life
will have been (or how much good or bad one will have had) by the
time one dies could be a better indication of how bad one’s death is
for one than how good or bad one’s life would be in the future. It is
worse to die at 20 than at 50 (holding quality of each year constant)
even if the 20- year- old is deprived of only 5 additional good years
of life and the 50-y ear- old is deprived of 20 additional good years of
life (holding quality of each year constant). Call this view about the
badness of death Willhavehadism. In a sense it is a “backward con-
sequentialist” view since how much one will have had is an effect
of death.
Second, it might be better for us all to put off the time at which
our conscious life as a person will be all over even holding constant
the assumed good contents of our life overall as well as its beginning
point. One way of doing this is by going into an unconscious limbo
state for a long time and then returning to consciousness for a sig-
nificant period. This “Limbo Man Case” indicates that one’s life as
a conscious and self-c onscious person being all over is a bad aspect
of death independent of its depriving us of additional goods. Indeed,
I think it is the aspect of death that we find most terrifying. Call this
view Alloverism.
The Badness of Death and What to Do About It (if Anything) • 3
Third, because death takes from us a life, thought of as a thing that
we have already had, it exhibits what I call Insult Factors (such as de-
cline from a higher point and vulnerability). These Insult Factors do
not apply to nonexistence prior to the beginning of life, a state which
can only prevent us from having goods sooner rather than take them
away. Call this view Insultism.
2. More on Deprivationism
2.1. The idea of deprivation
Some object to the term “deprivation” on the grounds that not getting
more of something is not always to be deprived of it. Further, some
would say one can only be “deprived” of something that one has a
right to in the first place.5 However, it can be bad for one not to receive
more of some good even if one has no right to it. In addition, death
does not involve merely the nonprovision of some period of life; it is
the interruption of life that would continue on without it. This is anal-
ogous to the distinction between not helping someone have more time
at a park and interfering with their having more time at a park that
they would have had without your help. The term “Preventionism”
might also strictly be better than “Deprivationism” because one does
not usually speak of being deprived of something bad and death could
interfere with forthcoming life worse than death. I will continue to
use the term deprivation but these points should be kept in mind.
2.2. Deprivationism and the past
Deprivationists should be aware that how good or bad the future will
be for someone could depend on their past. If someone has already
had a very good life there might be something like diminishing
marginal utility (DMU) in having ten more good years by compar-
ison to someone who has had a bad life having ten more good years.
2.3. Deprivationism and future goods
It could make sense to consider whether future additional goods might
even make our life overall (including past and future) be worse than
4 • Almost Over: Aging, Dying, Dead
death if it continues; or conversely, whether additional bads might
make our life overall better than death if it continues. The former
could occur, for example, if going downhill while still getting goods
were worse for one than ending at a peak.6 Having future goods could
make one’s life overall worse, it is sometimes said, because it is only
being deprived of more goods by death that makes us appreciate the
limited amount of goods we do have. However, even if this were true,
it would not show that losing out on more goods is not bad, only
that one bad is necessary to avoid a (possibly) greater bad. There is
also little reason to think this claim is true. After all, shortening a life
span from 70 to 20 years is not thought necessary to increase appre-
ciation of goods of youth and even if there were less appreciation of
such goods without shortening, it is compensated for by having more
goods from 20 to 70 years.
In any case, a version of Deprivationism that considers whether
goods or bads that we could have in future life would deprive us of
a better life overall (so we will be living a worse life overall) will not
face a possible objection to the version of Deprivationism that just
compares the possible future (and goods or bads in it) with death. This
indicates that these two versions are not merely different ways to say
the same thing.
It may also be important to distinguish between types of future
goods since it may be bad to be deprived of only some types by death.
Bernard Williams distinguished two types of desires connected with
two types of goods.7 Conditional desires have as objects things it is
good for us to have if we are alive but getting them does not give
us a reason to go on living. For example, not being bored and not
being in pain seem to be objects of only conditional desires. By con-
trast, categorical desires have as objects things that give us a reason
to go on living (e.g., completing certain projects). We could also move
beyond Williams’ talk of desires and just speak of the things (whether
desired or not) that are conditional goods and others that are catego-
rical goods. If death would deprive us of only conditional goods then
Deprivationism would imply that death would not be bad for us since
death would also remove the condition (life) on which the goodness
of these things depends. They would not be needed to make life bear-
able if there was no life. By contrast, suppose we would have catego-
rical goods if we continued living; then death would deprive us of the
The Badness of Death and What to Do About It (if Anything) • 5
condition (life) which is needed in order to bring about these goods
which give us a reason to go on living. Deprivationism would then
imply that death would be bad for us only when it deprives us of cat-
egorical goods.8
It may also be necessary to consider the distribution and not just
the overall quality and quantity of categorical goods to decide if death
is bad for someone. For example, suppose someone must suffer a sig-
nificant period of only intense pain and suffering before going on to
get categorical goods in life whose quality and quantity are greater
than those bads. Death before the period of suffering would prevent
an overall positive future life. Nevertheless, it may not be unreason-
able to choose death at that time if it is the only way to avoid the con-
centrated suffering. By contrast, it may not be reasonable to choose
death at that time if the same amount of suffering were dispersed over
the entire future.9
2.4. Deprivationism and the Principle of Irrelevant Goods
One way to deal with the bad aspect of death on which Deprivationism
focuses is to extend life so long as it provides (roughly) life whose
content makes it worth having. This could be a combination of catego-
rical goods and conditional goods needed once one must stay alive to
achieve categorical goods. We also deal with the bad aspect of death on
which Deprivationism focuses if we save lives whose continued exist-
ence would involve a future that is better than nothing (or contributes
to making the lives overall better than if they had ended earlier). If
someone will have a better future (or one that contributes more to his
life overall) than someone else, saving the first person would prevent
the worst death on the Deprivationist view.
However, saving the first person rather than the second when we
cannot save both may be morally ruled out by what I have called the
Principle of Irrelevant Goods. That is, if the difference between the
first and second person’s future goods is not significant relative to
the good each could achieve, it would be wrong to deprive each of
an equal chance to survive merely to prevent what Deprivationism
implies is the worst death. However, a difference in goods that would
be irrelevant interpersonally in choosing between people could be rel-
evant intrapersonally (in choosing whether to give one person only
