War and Individual Rights: The Foundations of Just War Theory 9780199388899, 019938889X

Table of contents :
Acknowledgments
Chapter 1: Introduction
1.1: Overview
1.2: Individualism vs. collectivism
1.3: Methodology
1.4: The existence of moral rights
1.5: Terminology
Chapter 2: A Lockean Framework of Rights
2.1: The right to one's own person
2.2: Property rights and rights of first arrival
2.3: Negative need rights
2.4: Autonomy, well-being, and rights
Chapter 3: Rights and Harm
3.1: The doctrine of doing and allowing
3.2: Quinn's interpretation of the doctrine
3.3: Foot's interpretation of the doctrine
3.4: The causal interpretation of the doctrine
3.5: The acting-on interpretation of the doctrine
3.6: A rights-based alternative
3.7: Three objections
3.8: Rights and intentions
Chapter 4: Liability to Defense
4.1: The rights enforcement account
4.2: Defense against the innocent
4.3: Defense of the guilty
4.4: The defense liability principle
4.5: Forfeiture
4.6: Montague and McMahan
Chapter 5: Necessity and Proportionality in Defense
5.1: A defense of internalism
5.2: Necessary harm
5.3: Proportionate harm
5.4: Do the numbers count?
Chapter 6: Liberating Just War Theory from Double Effect
6.1: The structure of my argument
6.2: PDE, MP and rights
6.3: Quinn's defense of double effect
6.4: Recent attempts to improve upon Quinn
6.5: The restricted claims principle
6.6: Alleged support for a strongly discriminating principle
6.7: The irrelevance of weakly discriminating principles
Chapter 7: The Rights of Innocent Bystanders
7.1: Unauthorized violence
7.2: Excusable violence
7.3: Liability through assumed risk
7.4: Ex ante compensation
7.5: Justifiable infringements upon rights
Chapter 8: How to Justify Waging War
8.1: The justifiable war principle
8.2: Is the justifiable war principle too demanding?
8.3: The flaws of traditional jus ad bellum
Chapter 9: The Scope of Liability in War
9.1: Combatants and military personnel
9.2: Those who assist unjust aggressors
9.3: Munitions workers
9.4: Farmers and taxpayers
Chapter 10: Citizenship and Liability
10.1: Agency and liability
10.2: Nonintervention and liability
Chapter 11: Conclusions
Appendix: Need Rights and Compensation
Index

Citation preview

WAR AND INDIVIDUAL RIGHTS

WAR AND INDIVIDUAL RIGHTS The Foundations of Just War Theory

Kai Draper

1

1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America

© Oxford University Press 2016 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer Library of Congress Cataloging-in-Publication Data Draper, Kai. War and individual rights : the foundations of just war theory / Kai Draper. p.  cm. Includes index. ISBN 978–0–19–938889–9 (cloth : alk. paper) 1. Just war doctrine. 2. War (Philosophy) 3. War—Moral and ethical aspects. I. Title. II. Title: Foundations of just war theory. U22.D74 2015 172’.42—dc23 2014050287

1 3 5 7 9 8 6 4 2 Printed in the United States of America on acid-free paper

This book is dedicated to Professors Greg Kavka and Nelson Pike.

CONTENTS

Acknowledgments 

xi

  1. Introduction  1.1. Overview  1.2. Individualism vs. collectivism  1.3. Methodology  1.4. The existence of moral rights  1.5. Terminology 

1 2 5 9 11 14

  2. A Lockean Framework of Rights  2.1. The right to one’s own person  2.2. Property rights and rights of first arrival  2.3. Negative need rights  2.4. Autonomy, well-being, and rights 

18 18 21 25 31

  3. Rights and Harm  3.1. The doctrine of doing and allowing  3.2. Quinn’s interpretation of the doctrine 

37 37 39

vii

C ontents

3.3. Foot’s interpretation of the doctrine  3.4. The causal interpretation of the doctrine  3.5. The acting-on interpretation of the doctrine  3.6. A rights-based alternative  3.7. Three objections  3.8. Rights and intentions    4. Liability to Defense  4.1. The rights enforcement account  4.2. Defense against the innocent  4.3. Defense of the guilty  4.4. The defense liability principle  4.5. Three objections  4.6. Forfeiture  4.7. Montague and McMahan    5. Necessity and Proportionality in Defense  5.1. A defense of internalism  5.2. Necessary harm  5.3. Proportionate harm  5.4. Do the numbers count? 

42 45 50 53 56 59 65 66 69 76 78 85 92 96 104 104 109 116 118

  6. Liberating Just War Theory from Double Effect  122 6.1. The structure of my argument  123 6.2. PDE, MP, and rights  126 6.3. Quinn’s defense of double effect  129 6.4. Recent attempts to improve upon Quinn  132 6.5. The restricting claims principle  136 6.6. Alleged support for a strongly discriminating principle  137 6.7. The irrelevance of weakly discriminating principles  145 viii

C ontents

  7. The Rights of Innocent Bystanders  7.1. Unauthorized violence  7.2. Excusable violence  7.3. Liability through assumed risk  7.4. Ex ante compensation  7.5. Justifiable infringements upon rights 

148 148 150 153 160 165

  8. How to Justify Waging War  8.1. The justifiable war principle  8.2. Is the justifiable war principle too demanding?  8.3. The flaws of traditional jus ad bellum 

169 169

  9. The Scope of Liability in War  9.1. Combatants and military personnel  9.2. Those who assist unjust aggressors  9.3. Munitions workers  9.4. Farmers and taxpayers 

183 183 193 198 203

10. Citizenship and Liability  10.1. Agency and liability  10.2. Nonintervention and liability 

210 211 220

11. Conclusions 

232

Appendix: Need Rights and Compensation  Index 

237 251

ix

175 178

ACKNOWLEDGMENTS

This book is based in part on my earlier published work, although I have been forced to modify my earlier views to varying degrees. Parts of chapters 2 and 3 are based on “Rights and the Doctrine of Doing and Allowing” Philosophy & Public Affairs 33 (2005): 253–80; other parts of chapter 2 and the appendix are based on “Rights, Necessity, and Tort Liability,” Journal of Social Philosophy 28 (1997): ­87–100; parts of chapter 4 are based on “Defense,” Philosophical Studies 14 (2009): 69–88; other parts of chapter 4 are based on “Fairness and Self-Defense,” Social Theory and Practice 19 (1993): 73–92; and parts of chapters 8 and 10 are based on “Self-Defense, Collective Obligation, and Noncombatant Liability,” Social Theory and Practice 24 (1998): 57–81. I would like to thank these journals for the permission to reproduce text and ideas from my earlier work. I would also like to thank the University of Delaware for granting me a sabbatical in 2012 to work on this book. As for my philosophical debts, they are legion, but I would especially like to thank Jeff McMahan for much useful advice and many philosophical insights and arguments that have influenced this book. I also owe a huge debt of gratitude to an anonymous OUP reviewer for many helpful criticisms and suggestions. For their useful discussions of my work and of the ethics of war, I would further like to thank (in no xi

A cknowledgments

particular order) Grace Draper, Christine Rueter, Ian Fishbeck, Darrell Wisseman, Joel Pust, Helen Frowe, Adil Ahmad Haque, Doran Smolkin, Phillip Montague, Wayne Fensky, David Silver, Kim Ferzan, and Michael Titelbaum. Finally, I would like to thank Judith Jarvis Thomson. Her work on rights has had a huge influence on my thinking about ethics, including the ethics of war.

xii

[ 1  ] INTRODUCTION

War remains a widely accepted tool for achieving political ends, and typically a nation’s war efforts are honored by most of its citizens. At the same time, respect for individual rights is among the central values professed by many of those same citizens and by most members of the international community. There is an obvious tension here, for even the most discriminate of war efforts predictably kill many innocent bystanders as “collateral damage,” and presumably most if not all innocent bystanders have a right not to be killed. It is tempting, therefore, to attribute inconsistency and perhaps even hypocrisy to those who support war and yet demand respect for individual rights. This book is intended to resolve that apparent inconsistency. Even though I begin with the assumption that individual rights stand as moral obstacles to the pursuit of national, no less than personal, interests, I end with the conclusion that sometimes there exists an adequate justification for war. As a basis for that conclusion, I formulate the fundamental principles relevant to determining whether the use of military force is justifiable. I do not endeavor to build a complete just war theory on the foundation of those principles, but I do attempt to identify the conditions under which recourse to war is justified, and I explore in some detail the question of how to distinguish discriminate from indiscriminate violence in war. My aim should not be mistaken for that of providing a justification for the war efforts of my own nation, the United States of America, or those of any other nation. The principles I defend set standards for justified recourse to war that are not easily met by war 1

WAR A ND INDIVIDUAL RIGHTS

efforts that incur large costs in terms of collateral damage. Indeed, the primary practical aim of this book is to encourage American political leaders to reduce their reliance on military force to achieve even legitimate ends, such as that of making Americans more secure in their persons and property. In my view, supported by history and the standards I defend here, most war efforts are an affront to individual rights.

1.1. OVERVIEW Just war theory, as traditionally conceived,1 is an attempt to identify the moral principles that determine whether and how war ought to be waged. Regrettably, the expression “just war theory” is used mostly to refer to a particular theory that, although still tinkered with by some of its contemporary adherents, was developed primarily in medieval Europe. That theory, which I call “traditional just war theory,” is not without its virtues, but some of its basic principles are little more than vague aphorisms, and others are simply mistaken. Although I identify some of its flaws in the following chapters, ultimately my main purpose is not to hammer nails into the coffin of traditional just war theory, but rather to give birth to an alternative 1. Because just war theory has become so intertwined with international law governing war, it is not unreasonable to suppose that today when someone speaks of a just war theory, she is likely to be referring not to an attempt to formulate moral principles, but rather to an attempt to formulate principles that are or ought to be legal, or at least quasi-legal, rules governing the international community. In this book, however, I am using the expression “just war theory” in the traditional, moral sense. It might also be suggested that a just war theory is an attempt to identify the conditions under which war is just in the sense of not infringing upon rights. I believe that all modern war efforts infringe upon rights, but some of them do so justifiably. Thus, on my use of the expression “just war theory,” such a theory is an attempt to identify the conditions under which war is just in the sense of being justified. I think that my understanding of what counts as a just war theory is consistent with tradition; but if I am wrong about that, then I am happy to simply stipulate the usage that interests me.

2

I ntroduction

approach. My primary argument against the traditional theory is my positive argument in defense of my own set of principles. Three general features distinguish my views from traditional just war theory. First, my approach is highly individualistic. I do not regard nations or militaries or groups in general as moral agents with moral duties comparable to those of individual persons. This is not to say that we cannot meaningfully speak of what a group morally ought to do, but such speech is, in every case, reducible to judgments about what is morally required of the individuals in the relevant group. Second, the foundational principles I propose for just war theory do not include the principle of double effect. In my view, that principle is not only untenable—it is pernicious in that often it is used to rationalize the murder of innocent bystanders in war. Third, my approach is largely rights-based: I try to understand the ethics of war mostly by way of understanding certain fundamental moral rights. In the two chapters following this introduction, I enumerate those rights and discuss their nature and scope. They include the right to one’s own person, property rights, and need rights. The right to liberty is a component of the right to one’s own person; and because all fundamental rights protect the right-holder’s interest in survival, a right to life can also be derived from our fundamental rights. Although the general framework of rights I adopt is that of John Locke and other thinkers of the natural rights tradition, I refine, supplement, and defend that framework. I do not produce a complete theory of rights, but I do identify some of the basic values that appear to underlie them. In chapters 4–7, I discuss the justifications for violence that are most likely to be available in war. Chapters 4 and 5 focus on the right to defend oneself or others against unjust aggression. Like many other contemporary just war theorists, I believe that this right must play a central role in just war theory. I defend Locke’s general view that the right to defense is a right to enforce rights. However, the specifics of my “rights enforcement account” of the right to defense differ substantially from Locke’s account. 3

WAR A ND INDIVIDUAL RIGHTS

Modern war efforts cannot be justified entirely on grounds of defense. As I argue in chapter 4, an appeal to the right to defense cannot be used to justify harming those who neither individually nor as part of a group pose any threat of unjust harm. War efforts predictably harm “innocent bystanders,” that is, those who pose no such threat. Accordingly, chapters 6 and 7 explore possible justifications for harming innocent bystanders. My results in chapter 6 are negative, for in that chapter I reject the possibility of using the principle of double effect or any similar principle to justify inflicting harm on innocent bystanders in war. Most contemporary just war theorists embrace that principle or some close cousin to it. I examine some of the very best attempts to formulate and defend such a principle, but find in each case that the proposed principle is either untenable or irrelevant to making decisions about whether or how to wage war. In chapter  7 my results are positive, for there I identify three possible justifications, often available in war, for inflicting injury and even death on innocent bystanders. First, I defend the common view that in war it need not infringe upon rights to injure or kill those persons who, by voluntarily entering into or remaining in the vicinity of military targets knowing that those targets might be attacked, “assume the risk” of being injured or killed. Second, I argue that when the expected benefits of waging war provide innocent bystanders adequate compensation for the risks of harm that waging war imposes on them, the realization of those risks typically does not infringe upon their rights. Finally, I argue that under certain circumstances infringing upon the rights of innocent bystanders in war is justifiable. Chapters  2–5 and chapter  7 lay the foundation for a just war theory that is consistent with a proper respect for individual rights. Chapter  6 resists adding double effect to that foundation. Chapters 8–10, on the other hand, build on the foundation. In chapter 8 I provide an answer to the basic jus ad bellum question, “Under what conditions is recourse to war justified?” I also argue that my answer to that question is superior to the answer offered by traditional just war theorists. 4

I ntroduction

To show that in principle recourse to war can be justified leaves open the question of whether in practice it ever is justified. The answer to that question depends in part on the scope of the right to defense, and so in chapters 9 and 10 I examine various classes of combatants and noncombatants, assessing in each case whether the members of the class are liable to harmful acts of defense. I oppose tradition by arguing that in war sometimes many noncombatants are liable in virtue of contributing in certain ways to an unjust war effort. I reject, however, the view that any contribution whatsoever to unjust aggression makes one liable to defense. I also reject the view that mere citizenship in a nation involved in unjust aggression is sufficient for liability. Moreover, I argue that even if the citizenry has the power to stop their nation’s unjust aggression, its failure to do so does not guarantee the citizen’s liability. I draw my final conclusions in chapter 11.

1.2. INDIVIDUALISM VS. COLLECTIVISM Before I begin, I want to make a few general remarks about how I approach my topic. First, I want to contrast the individualism of my approach to just war theory to the collectivist approach of many historical examples of just war theories. In 17th- and 18thcentury Europe, it was commonplace to derive just war principles from the “law of nations,” which, at least in part, was conceived to be natural law (i.e., morality) applied to nations rather than to individuals. Thus, Rousseau says that “[w]ar, then, is not a relation between man and man, but a relationship between State and State, in which individuals are enemies only by accident . . .” 2 The law of nations accorded nations the status of collective agents and treated the citizen as a cell in the body politic. Not surprisingly,

2. Jean-Jacques Rousseau, The Social Contract, in The Social Contract and Discourse on the Origin of Inequality, Lester G. Crocker, ed. (New York: Simon and Schuster, 1967), 13 (bk. 1, chap. 4).

5

WAR A ND INDIVIDUAL RIGHTS

then, many theorists endorsed the idea that in a war between nations, the nation with justice on its side could, if necessary to prevail, justifiably harm any citizen of the nation opposed to justice. To some degree, then, John Locke appears to have gone against the prevailing views of his era by insisting that the individual citizen who neither consents nor contributes to the unjust aggression of his nation cannot justifiably be held accountable for that aggression. 3 Most contemporary just war theorists embrace the individualism of Locke.4 Some of them rely on the idea that, just as an individual has a right to defend self and others, an individual also has a right to coordinate her actions with those of other individuals so that together they defend themselves or others. Jeff McMahan, for example, believes that war can lie on a continuum with individual self- and other-defense: First imagine a case in which a person uses violence in selfdefense; then imagine a case in which two people engage in selfdefense against a threat they jointly face. Continue to imagine further cases in which increasing numbers of people act with increasing coordination to defend both themselves and each other against a common threat, or range of threats, they face together. What you are imagining is a spectrum of cases that begins with acts of individual self-defense and, as the threats become more complex and extensive, the threatened individuals more numerous, and their defensive action more integrated, eventually reaches cases involving a scale of violence that is constitutive of war.5

3. John Locke, The Second Treatise of Government, ed. Thomas P. Peardon (Upper Saddle River, NJ: Prentice Hall, 1997), 101–2 (chap. XVI, par. 179). 4. Noam Zohar is one exception here. He defends a synthesis of individualist and collectivist approaches to war in “Collective War and Individualistic Ethics: Against the Conscription of ‘Self-Defense,’” Political Theory 21, no. 4 (1993): 606–22. 5. Jeff McMahan, “War as Self-Defense,” Ethics and International Affairs 18, no. 1 (2004): 75.

6

I ntroduction

Michael Walzer is also very much in the individualist camp. Although he is willing to speak of national rights, he regards such rights as derived from individual rights: The rights in question are summed up in the law books as territorial integrity and political sovereignty. The two belong to states, but they derive ultimately from the rights of individuals, and from them they take their force. “The duties and rights of states are nothing more than the duties and rights of the men who compose them.” That is the view of a conventional British lawyer, for whom states are neither organic wholes nor mystical unions. And it is the correct view.6

My own individualism rests on my rejection of the first two of the following three collectivist theses: (C1) There are irreducibly collective moral requirements. (C2) There is irreducibly collective moral responsibility. (C3) There are irreducibly collective moral rights.

My rejection of C1 and C2 is based on my belief that groups of moral agents are not themselves moral agents. As distinct from their members, they behave only in the sense that tornadoes and traffic behave and, like tornadoes and traffic, they are not subject to moral requirements, nor does it make any sense to blame them for what they do. Consider a simple example: Suppose that the two of us are lifeguards and that we can rescue a swimmer who will otherwise drown, but only if we each grab an oar and coordinate our efforts to row our boat quickly and efficiently to where the person in need is located so that we can hoist him out of the water. The group consisting of the two of us is not a moral agent: it has no motives or values, 6. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical illustrations (New York: Basic Books, 1977).

7

WAR A ND INDIVIDUAL RIGHTS

and it can neither deliberate about what to do (in the sense that involves contemplating reasons for action) nor act (except in ways that are reducible to the behavior of some or all of its members). Granted, it is natural to say that we ought to save the swimmer, and I am not opposed to speaking of a collective duty in such a case; but this collective duty can easily be reduced to a set of individual duties to be willing to coordinate one’s own behavior with that of another in the requisite fashion. Moreover, if we fail to rescue the swimmer, it makes no sense to suggest that the group containing the two of us as members is morally responsible for the swimmer’s death. If I am willing to help rescue the swimmer, but we fail to do so because you are unwilling to help, then I am not morally responsible for the swimmer’s death, you are morally responsible for that death, and I don’t know why anyone would want to add that the group consisting of the two of us is morally responsible for the death unless that is merely a way of pointing out that individual responsibility is to be located somewhere within that group. It might be objected that in some cases a group can act wrongly even though no individual within the group acts wrongly. That might seem to show that collective moral duties cannot be reduced to individual moral duties. Suppose, for example, that we are Jones’ bodyguards and that, if we both intervene to defend Jones, together we can safely and easily stop the unjust aggression against him. Suppose further that, if only one of us intervenes, the intervention will fail and the aggressor, angered by the intervention, will hurt Jones even more. Finally, suppose that because each of us has a grudge against Jones and so no interest in helping him, we do not stop the aggression against him. Given your unwillingness to help, I do what I ought to do by not intervening and making matters worse; and given my unwillingness to help, you do what you ought to do by not intervening and making matters worse. But we (the two of us together) fail to do what we as Jones’ bodyguards ought to do, which is to stop the unjust aggression against Jones. Such examples do not, however, show that C1 is true. Granted, our failure to do what we ought to do in this example is not reducible to my failure and your 8

I ntroduction

failure to do what each of us individually ought to do. Nevertheless, “our failure” is reducible to my failure and your failure to fulfill an individual moral requirement, for each of us is morally required to be willing to coordinate his or her efforts with the other to rescue Jones.7 Although I do not endorse C3, I do not reject it out of hand, because moral rights, as opposed to moral requirements or moral responsibility, do not require moral agency on the part of the rightholder. Little children and chimpanzees have rights, or so I would argue, even though they are not moral agents. Thus, the mere fact that a group is not a moral agent does not exclude the possibility of a group’s having rights. Perhaps there are irreducibly collective rights. If a couple receives a wedding gift, for example, they acquire a joint property right, and I do not think it is easy to show that such a right is reducible to the individual rights of the two persons who collectively hold it. Nor would it be easy to show that national rights are reducible to the individual rights of the citizens of a nation.8

1.3. METHODOLOGY Some might worry that in ethics it is impossible to show anything, and so I should say something about how I propose to defend the conclusions I draw in the following chapters. As in all areas of

7. I do not regard this brief argument against C1 and C2 to be anything close to dispositive. The possibility of irreducible collective duty and responsibility is debated in a rich literature that I ignore here, a literature that contains serious arguments in defense of C1 and C2. Thus, for the purposes of this book, I am simply assuming that C1 and C2 are both false. 8. Although I do not deny (or affirm) that there are irreducibly collective rights, I do deny that there can be an irreducible right of national defense, for a right to defend is a right to perform an action, and performing an action requires agency. Territorial rights, on the other hand, might be irreducibly collective, for arguably property rights in general can be held by groups. Thus, I leave open the possibility that it is necessary to employ the language of national rights to fully explicate the ethics of war (e.g., in addressing the ethics of defending territorial rights).

9

WAR A ND INDIVIDUAL RIGHTS

rational inquiry, in ethics there must be unproven starting points to serve as assumptions from which one can reason to reach conclusions. Ideally, one’s assumptions would be self-evident truths, but rational inquiry rarely if ever enjoys that sort of luxury in its resources. In normative ethics, there are two methodological traditions, distinguishable by what sort of starting points are taken to be appropriate to moral inquiry. On the one hand, there is the tradition that demands that moral conclusions be based entirely on assumptions that are not moral. Thus, many ethicists have sought to derive fundamental moral principles from principles of rationality, or from conceptual truths, or even from empirical observations, where no moral judgments of any kind are allowed to play the role of an assumption. I have no principled objection to doing normative ethics in this fashion. Here I can merely report my lack of satisfaction with the product of that sort of inquiry and confess my own inability to reach moral conclusions with such limited resources. Accordingly, my methodology belongs to the second tradition, the one in which “moral intuition” is allowed to play a foundational role in ethical reasoning. Certain moral judgments appear to be undeniable or even self-evident (at least to competent moral agents), and in the absence of any inconsistency between such a judgment and some other seemingly self-evident proposition, we can assume that the judgment is true. Thus, we can be confident that those who torture little children for fun, or who express frustration with their employer by gunning down random people in the street, act wrongly; and such judgments, the judgments of moral common sense, do not need to be derived from other propositions. Other moral judgments, although they do not rise to the level of moral common sense, nevertheless appear to be true and so can be assumed to be true unless they are “defeated,” that is, unless there are positive reasons to reject them or at least to doubt their truth. Substantial moral disagreement among equally competent moral judges can constitute one sort of defeater. Empirical evidence that a moral judgment reflects bias, irrationality, or the distorting influence of a framing effect, 10

I ntroduction

can also show that a moral judgment cannot serve as an assumption in, as opposed to the conclusion of, a moral argument.

1.4. THE EXISTENCE OF MORAL RIGHTS In addition to my methodological assumptions, it is an assumption of this work that certain fundamental moral rights, e.g., the right to one’s own person, exist. Thus, my theses about war are defended within a moral framework that not everyone shares, and much of the theoretical work in this book is aimed at revealing the nature and scope of moral rights the very existence of which is contested. Moreover, it is at least arguable that the framework of rights I employ reached its zenith of popularity in the 18th century when the natural rights tradition prevailed in parts of Europe and the United States. Thus, many thinkers today might well regard my use of that framework as anachronistic or even reactionary. Why, then, do I feel comfortable assuming that moral rights exist and adopting a framework of rights that may well have been more popular 250 years ago than it is today? I can offer several reasons. First, all moral frameworks are controversial and would remain so even if I mustered the best case I could for the one I favor. Moral theorists have certainly failed to reach consensus or even near consensus about questions as basic as whether consequentialism or deontology is true. Second, I want my just war theory to be consistent with traditional American values of the sort that underlie America’s founding documents. Politically, this book is aimed primarily at my own nation’s political and military offices and organizations. To appeal to a moral framework that is foreign to American traditions would be to ensure that my efforts would be ignored by those whose behavior I hope to influence. Third and foremost, I believe that my methodology requires me to recognize the existence of the basic rights I discuss in this book because I cannot see how to accommodate moral intuition without doing so. Indeed, a morality without at least some of the fundamental 11

WAR A ND INDIVIDUAL RIGHTS

rights to which I appeal would be so far removed from commonsense moral judgment that almost no one would take it seriously even if it were true. Consider, for example, the traditional act-­consequentialist alternative to recognizing the existence of moral rights. Suppose that two villains join forces and attempt to murder me and that I can prevent myself from being killed only by killing them both in selfdefense. In this case, the traditional act-consequentialist must say that, ceteris paribus, it is morally impermissible for me to kill them because, after all, two persons being killed is (ceteris paribus) worse than one person being killed. This conclusion, I take it, not only runs contrary to common moral intuition; it flies in the face of moral common sense. As the ethics of defense plays a central role in the ethics of war, we do not want to employ a moral framework that has such odd results in that domain. In chapter 4, I defend a rights-based account of the ethics of defense on the grounds that, unlike extant alternatives, its implications do not offend moral common sense. The dictates of traditional act-consequentialism come into glaring conflict with moral common sense in other sorts of cases as well.9 Consider, for example, the following pair of cases: No Heroics: A stray arrow (tipped with a deadly poison) is headed right at Jones. You know that the arrow will strike and kill him unless you sacrifice your own life by moving in front of him. You choose to preserve your own life. Shield: A stray arrow is headed right at you. You know that the arrow will strike and kill you unless you sacrifice the life of Jones by pulling him in front of you. You choose to preserve your own life.

In both of these cases, you preserve your own life at the expense of the life of another. Yet moral common sense tells us that your 9. I say “traditional” because in principle the act-consequentialist can incorporate rights into his theory to produce a “rights consequentialism” that is not vulnerable to the objections I am raising here. I believe that such theories also run afoul of moral common sense, but I do not argue that point here.

12

I ntroduction

behavior is morally innocent in No Heroics, but cowardly and wrong in Shield. Those like myself who recognize a right to one’s own person can acknowledge the moral difference between your behavior in No Heroics and your behavior in Shield in terms of that right, for you infringe upon Jones’ right to his own person only in Shield. The traditional act-consequentialist, on the other hand, stands opposed to moral common sense by affirming the moral equivalence of your behavior in the two cases. Of course, there is always the rule-consequentialist alternative to deontology and act-consequentialism. My main objection to that framework is that it leads to a sort of moral agnosticism because it is impossible to know what moral code would have the best consequences overall. Furthermore, insofar as I allow myself to speculate about such matters, it seems likely to me that the world is better off because basic rights such as the right to one’s own person are widely recognized. Thus, I suspect that there are good consequentialist reasons to recognize fundamental moral rights of the sort I will identify. (Indeed, some rule-consequentialists have argued as much.) There are also deontological alternatives to endorsing moral rights, but whereas a deontology without moral rights is theoretically possible, I am skeptical that it can succeed. In the case of theories of the ethics of defense, I argue in chapter 4 that extant deontological accounts that are not rights-based fail precisely because they do not give moral rights their due. I have observed in my many years as an ethicist that trying to understand justice independently of rights is a perilous venture. Even as central a deontological principle as the doctrine of doing and allowing, illustrated by No Heroics and Shield, cannot be understood independently of rights, as I argue in chapter 3. I am quite comfortable, then, adopting an ethical framework that recognizes the existence of certain fundamental moral rights. Moreover, the specific rights I endorse are those the recognition of which is most clearly required to accommodate common moral intuition and moral common sense. 13

WAR A ND INDIVIDUAL RIGHTS

1.5. TERMINOLOGY I close this introduction by defining certain key terms and expressions. For the most part, I follow tradition in my discipline in my use of most standard moral expressions, such as “morally permissible,” “morally wrong,” “moral duty,” and “moral requirement.” My use of “moral obligation,” on the other hand, is at odds with common usage among moral philosophers. When a moral philosopher says that someone has a moral obligation, typically she means that the person in question is morally required to do something. On my usage, however, moral obligations and moral rights are correlative. Thus, “I have a moral right against you” and “You are under a moral obligation to me” are two ways of making the same claim. Following many other ethicists, I use the term “right” in expressions like “property right” and “right to life” in a way that allows for the possibility of justifiable infringements upon rights. (I reserve the expression “violation of rights” for unjustifiable infringements upon rights.) Some ethicists are opposed to such usage. They hold what is sometimes called an “absolutist conception of rights.” On that conception, rights are by their very nature indefeasible, and so a justifiable infringement upon rights, like a married bachelor, is impossible. I could simply say that I find the arguments of those who claim that rights are defeasible to be more convincing, but I would like to say something more than that because I believe that the debate in question has reached a stage where any remaining disagreement is merely verbal. Those who defend an absolutist conception of rights face a serious objection raised by Judith Jarvis Thomson. Consider the case of rights generated by promises. Suppose, for example, that I promise to pick you up at the airport, but it turns out that, just when I am about to fulfill my promise, I happen upon a child who will die if I do not break my promise and attend to the child’s needs. Then it is clearly permissible for me to break my promise. The absolutist must say that, in spite of my promise, you have no right against me that I pick you up. Thomson objects that this way of understanding rights 14

I ntroduction

seems to involve looking for reasons to determine what you ought to do, and then declaring that, when the reasons tip in favor of not fulfilling your promise, the promise did not, as it turns out, generate a right. That, she says, “seems to put the cart before the horse” in that “the question what we ought to do itself turns on, and cannot be answered in advance of answering, what seems to be the prior question, namely what claims people have against us.” According to Thomson, then, rights should be premises in our moral reasoning about what ought to be done, not just conclusions.10 Alec Walen and David Wasserman have responded to Thomson’s objection by distinguishing rights from valid claims. In the example, you have a valid claim to being picked up, but that claim is overridden by the claim of the child to your aid so that ultimately you have no right to be picked up. On Walen and Wasserman’s absolutist conception of rights, then, rights are undefeated valid claims and it is the valid claims that play the role of premises in our moral reasoning about what to do.11 Even if this response to Thomson’s objection is sound, the only conclusion that should be drawn is that the debate between her and the absolutists is merely verbal. Thomson is using the term “right” to mean “valid claim,” and Walen and Wasserman are using it to mean “undefeated valid claim.” Thomson’s usage allows for justifiable infringements upon rights, and Walen and Wasserman’s usage does not. We can, if we like, debate which usage is more in keeping with the ordinary meaning of the term “right,” but so long as we are careful to stipulate how we are using the term, no harm is caused by adopting either usage. In this book I will use “right” to mean “valid claim.” Thus, because valid claims are defeasible, I will sometimes speak of justifiable infringements upon rights. If that strikes the reader’s ear harshly, she should be 10. Judith Jarvis Thomson, The Realm of Rights (Cambridge, MA: Harvard University Press, 1990), 91. 11. Alec Walen and David Wasserman, “Agents, Impartiality, and the Priority of Claims over Duties; Diagnosing Why Thomson Still Gets the Trolley Problem Wrong by Appeal to the ‘Mechanics of Claims,’” Journal of Moral Philosophy 9, no. 4 (2012): 545–71.

15

WAR A ND INDIVIDUAL RIGHTS

comforted by the fact that all of my arguments could be restated in absolutist terms by substituting “valid claim” for “right” where necessary and using the term “right” only when the valid claim at hand is undefeated. Given that justifiable infringements upon rights are a possibility, one can distinguish two basic categories of justifications for inflicting harm. First, there are those justifications that reach the conclusion that, although inflicting the harm in question does infringe upon the rights of those harmed, the infringement is justified. Second, there are those justifications that rely on the claim that inflicting the harm in question does not infringe upon the rights of those harmed. I shall use the term “liable” to describe those who, in virtue of their own behavior, can be harmed without infringing upon their rights. Of course, the term “liable” is more at home in a legal context than a moral one; but notice that when one uses the term “liable” in a legal context, one is generally speaking of cases (e.g., criminal liability, tort liability, tax liability) in which the liable individual, in virtue of doing something (e.g., committing a crime, unjustly harming someone, earning income or buying property) lacks a (legal) right not to be subjected to certain sorts of harm (e.g., punishment, paying damages, paying taxes). Nevertheless, the reader should note that my use of the term “liable” is very broad; indeed, most contemporary moral philosophers who write on the ethics of war use the term in a more restricted fashion. One kind of liability is what I call “defensive liability.” This is the sort of liability that is typically generated by unjust aggression. As mentioned above, I follow many other just war theorists in thinking that, among the various possible justifications for inflicting harm, the one that is likely to do much of the justificatory work in a justified war effort is the one that is available in standard cases of justifiably harming unjust aggressors in defense of their potential victims. Using the term “defense” to encompass both self-­ defense and other-defense, I refer to that justification as “the appeal to defense.” I also sometimes describe a harmful act of defense as “justified on grounds of defense” or as “an exercise of the right to 16

I ntroduction

defense.” The reader should take these expressions to be alternative ways of saying that the act in question can be justified by the appeal to defense. Finally, let me say how I use the term “innocence.” In both popular and philosophical discussions of the ethics of war, that term often plays a central role. It is common to distinguish moral innocence of the sort relevant to assessing blameworthiness or desert from a nonmoral sense of innocence such that the innocent person does not pose any threat of unjust harm and so cannot be justifiably killed on grounds of defense. Unlike some just war theorists, I mostly use “innocent” in the ordinary moral sense; but I use the expression “innocent bystander” in a precise, stipulated sense such that an innocent bystander is a person who, because of her lack of the correct sort of relation to some threat of unjust harm, falls outside of the justificatory scope of the appeal to defense.

17

[ 2  ] A LOCK E AN FR A ME WORK OF RIGHTS

In this chapter I begin laying the foundation for an adequate just war theory by identifying and describing some of our most basic rights. It is primarily those rights that stand as moral obstacles to the pursuit of war. I do not provide a theory of moral rights, but even in the absence of such a theory much can be said to distinguish tenable positions on rights from untenable ones. Furthermore, the range of possibilities is limited here inasmuch as I am taking for granted the framework of rights that was defended by John Locke and other thinkers in the natural rights tradition, relied upon to justify America’s independence from Great Britain, informed the US Constitution and Bill of Rights, and has influenced centuries of British and American law.1 Moreover, my methodology requires that I follow the dictates of moral common sense and give weight to common moral intuition, and this severely constrains what proposals can be deemed acceptable.

2.1. THE RIGHT TO ONE’S OWN PERSON Locke refers to the most important and least controversial of our rights as the “right to one’s own person.”2 Today it is sometimes 1. This is not to say that I agree with Locke, or America’s founders, or anyone else on all matters concerning rights. There is plenty of room for disagreement about rights among those who accept the general framework that I adopt here. 2. John Locke, The Second Treatise of Government, ed. Thomas P. Peardon (Upper Saddle River, NJ: Prentice Hall, 1997), 13 (chap. V, par. 17).

18

A L ockean F ramework of R ights

referred to as the “right of self-ownership.” (I will use the two expressions interchangeably.) It is difficult to see how any of us could sincerely deny the existence of this right, for it is clear that in ordinary life we all take for granted the authority each of us has over his or her own body and mind. Moreover, many of our laws presuppose the existence of that authority, and most of us oppose tyranny, slavery, and various other moral evils at least partly because of our recognition of it. Locke proposes that the right to one’s own person, like the right to external goods, is a species of property rights. Although personhood might seem to be demeaned by such a grouping, the right to one’s own person is in fact similar in many important respects to rights to external objects. (I suggest in section  4 of this chapter, however, that there are also important differences.) Both sorts of rights are claim rights, both are rights to an entity, and both include a power of use, a power of exclusion, and a power of alienation. In the case of the right to one’s own person, the power of alienation includes the power to renounce or transfer ownership of certain parts of one’s own body (e.g., by discarding one’s fingernail clippings, or by donating blood), but, according to Locke, not the power to renounce or transfer ownership of one’s own body or mind in its entirety (e.g., by making oneself a slave). Locke also distinguishes the right to one’s own person from rights to external objects by denying the permissibility of suicide. For Locke, however, that does not make the right to one’s own person all that different from other property rights; for, on his view, property in general is to be used, if possible, to benefit humanity and so cannot justifiably be wasted by being destroyed. Moreover, Locke recognizes that under certain circumstances sacrificing one’s own life for the sake of others can be morally permissible (or even morally required). Nevertheless, in denying that the right to one’s own person includes a power to commit suicide, Locke clearly does deny that one may deliberately destroy one’s own body to benefit oneself or others, and no comparable restriction applies to rights to external property. Moreover, in the case of external property, once it becomes useless and so has no value, it 19

WAR A ND INDIVIDUAL RIGHTS

can permissibly be destroyed; but even the uselessness of a living human body does not provide its owner with a justification for destroying it, or so Locke claims. (As our topic is the ethics of war and not suicide, we do not need to assess the truth of that claim here.) The existence of the right to one’s own person guarantees the existence of the right to liberty, for the power of use contained in the right to one’s own person is the right to liberty. We have a right to our own bodies and minds and, hence, a right to use our bodies and minds as we see fit so long as we stay within the boundaries set by the rights of others and, more broadly, by natural law (i.e., morality). Perhaps Locke’s notion of the right to liberty is too narrow, for it is quite arguable that one can have a right to perform certain immoral actions.3 Even if it might be selfish and, therefore, morally wrong to buy an expensive car instead of helping out a friend in need, for example, the right to liberty might include the right to act wrongly in that fashion. (I myself am inclined to say that the right to liberty is limited only by the rights of others, but I do not argue that point here.) Locke says very little about the scope of the power of exclusion in the right to one’s own person. More broadly, he says very little about the range of actions that can infringe upon the right to one’s own person. That range is too narrowly defined (and the power of exclusion reduced to the power of use) if we say that one can infringe upon another’s right to her own person only by interfering with the right holder’s use of her own person. Under ordinary circumstances, for example, touching a sleeping stranger infringes upon his right of self-ownership even if it does not interfere with his use of his own body. The power of exclusion is too broadly defined, however, if we say that it is the power to exclude others from any use of one’s own person. I do not infringe on the right of self-ownership, for example, if I use others, without their consent, as inspiration for characters in my novels. 3. Such an argument is made by, for example, Jeremy Waldron in “A Right to Do Wrong,” Ethics 92, no. 1 (1981): 21–39.

20

A L ockean F ramework of R ights

The power of exclusion clearly does include the power to exclude certain sorts of physical intrusions upon one’s body, both harmful and (setting aside the moral damage any violation of a right inflicts) innocuous. With few exceptions (some of them discussed in chapters 3 and 4), acting on me in a way that results in immediate physical harm to me without my free and informed consent would infringe upon my right to my own person. Thus, in most circumstances shooting or stabbing or striking me would infringe upon my rights. Moreover, however harmless it might be, grabbing my arm or leaning against me or stepping on my foot would, under most circumstances, also infringe upon my right to my own person.

2.2. PROPERT Y RIGHTS AND RIGHTS OF FIRST ARRIVAL In chapter 3 I attempt to specify in much greater detail what kinds of harmful acts infringe upon the right of self-ownership. For now, let us turn our attention to other rights. Locke argues that even in the state of nature we can come to possess individual rights to external objects. (To avoid confusion, I will restrict my use of the expression “property rights” to such rights even though, if Locke is correct, the right of self-ownership is also a species of property right.) He suggests that the fundamental right of appropriation is the right to the product of one’s labor. Famously, he argues that because one has a right to one’s own labor, mixing one’s labor with unclaimed world resources produces a right to the mixture. Other remarks suggest that appropriating a resource requires more than just acting on or altering that resource; one must do so in a way that is at least aimed at exploiting or increasing its value (i.e., using it to meet needs or otherwise enhance welfare, or making it more useful for meeting needs or otherwise enhancing welfare). Land development is Locke’s central example, but even picking an apple or cornering a game animal, to use two of his other examples, makes the resource in question more readily useable and hence can generate an 21

WAR A ND INDIVIDUAL RIGHTS

individual property right. Stepping on an apple, on the other hand, would decrease its value (assuming one is not making applesauce), and there is little evidence that Locke believed destructive activity of that sort would yield a property right. Locke offers several arguments in defense of his claim that one has a natural right to the product of one’s labor, some of them (e.g., the “mixing argument” mentioned earlier) notoriously problematic. Let us focus on what I believe is his best case. He begins with the assumption that God gave world resources to human beings collectively. One way to understand joint ownership is to suppose that consensus is required before any use is permitted. On this understanding, any owner can exercise a power of exclusion with respect to any other owner’s intention to use the jointly owned property. The worry, of course, is that this can result in the jointly owned object being used less and hence being less beneficial than it might be. That is not possible in Locke’s system due his further assumption that God’s purpose in giving us world resources was to meet our needs. This means that would-be users of world resources have a leg up on would-be excluders. The theology here is not crucial to the account. If we believe in equality, we believe that no one’s liberty or wellbeing is intrinsically more important than anyone else’s. Thus, each of us has an equal presumptive right to use world resources to promote well-being. Furthermore, given that well-being is very important, we will regard at least some parts of nature as resources (i.e., as things to be used to meet needs and otherwise enhance well-being). Hence (with respect to at least some parts of nature), we will not recognize any power of exclusion that interferes with any beneficial use that is fair (i.e., compatible with the equality of each person’s initial right to use world resources). So far we have only an argument for a robust individual power to use world resources. To reach ordinary property rights, we still need individual powers of exclusion and alienation. Perhaps we can reach this goal by developing Locke’s appeal to the desirability of providing incentives for productive labor. Locke argues quite persuasively that productive labor typically greatly increases the 22

A L ockean F ramework of R ights

value of world resources. Thus, allowing private holdings to be established through productive labor provides an economic incentive to transform world resources in ways that can greatly enhance the power of humanity to meet the needs of its members. This incentive would be greatly weakened if property rights did not include powers of exclusion and alienation, as well as a power of use. Hence, we ought to recognize individual property rights that include all of the powers traditionally associated with such rights. Of course, private holdings would be less useful for meeting needs if individual property owners were allowed to waste their property. Hence, Locke’s “restriction of use” on individual property rights is an appropriate limitation to the power of exclusion that partly constitutes such a right. Notice that in this reconstruction of Locke’s views, the value of meeting needs at least partly grounds both individual property rights and the restriction of use. The “Lockean proviso,” on the other hand, is based primarily on the equality of each person’s initial power to exploit world resources. The rights both to use world resources and to acquire private holdings are limited by the equal right of others to use and acquire. Should my acquisitions result in you having less opportunity to exploit world resources than I have, my acquisitions would be inconsistent with the equality of your right to use those resources. Hence, the proviso that “enough and as good” be left for others ensures that those who seek private holdings give due recognition to the fact that everyone is equally entitled to use world resources. The problem is that the proviso can interfere with the satisfaction of needs in cases of scarce resources. For example, if we must leave as much and as good agriculturally useful land for others, then in a world in which there is not enough of that sort of land to be divided into usable plots of equal value for all interested parties, the proviso would prevent anyone from appropriating any agriculturally useful land, and that might well result in a lessefficient system of food production. Let us call this “the problem of scarcity.” 23

WAR A ND INDIVIDUAL RIGHTS

One possible response to this problem is to argue that the proviso is not necessary to give due recognition to the equal claims that it protects. Some contemporary political libertarians have suggested that in a world of scarce resources, there is no injustice in recognizing “rights of first arrival” that violate the proviso. After all, when there are equal claims to some scarce good and sharing is impossible, the common convention is that the one who first reaches the good has the exclusive right to use it. Although this convention may not be ideally fair, it is as fair as is practically possible given the circumstances. So, for example, if there is only one camping space that has a nice view, then the one who arrives at it first is entitled to pitch his tent there, and other campers must settle for less-desirable spots. Or, if there is only one life jacket when the boat sinks, and no imperiled individual owns it, then the one who secures it first has a right to use it. Luck may determine who arrives first, but insofar as everyone has roughly the same opportunity to arrive first, the equality of the various claims to use the resource in question is recognized. In these kinds of cases, a requirement of leaving as much and as good for others would be unduly restrictive. However, the examples are misleading. First arrival in the camping space and life preserver cases does not generate a permanent property right. It merely generates a right to use the good in question, and when that use is discontinued, the right disappears and the good becomes available to others. Permanent property rights in such cases would unduly deny others the opportunity to receive the benefit in question. Similarly, if we return to the example of agriculture, we find that the permanence of property rights may well needlessly reduce the opportunities of the less fortunate to ever acquire land. Given the equality of each person’s initial claim to exploit world resources, then, it would be surprising if conferring all of the advantages of private property on such an arbitrary basis as that of first arrival turned out to be the fairest practical solution to the problem of scarce resources. I return to this problem in the next section. 24

A L ockean F ramework of R ights

2.3. NEGATIVE NEED RIGHTS By comparison to the right of self-ownership, or the rights to liberty and property, need rights are rarely discussed. I want to argue that their existence must be recognized if we are to accommodate moral intuition. The need rights I identify are not positive rights to have one’s needs met. I believe that such rights do exist, but the suggestion that mere need can generate a right to positive aid would be highly controversial. My interest here is in defending the more modest thesis that negative need rights exist and place limits on other rights, including property rights and even the right of selfownership. My defense of that thesis begins in this chapter, but it continues in chapters 3 and 6 and in the sole appendix to this book. Need rights play an important role in my attempt in chapter 9 to distinguish discriminate from indiscriminate killing in war, and so it is crucial that I say enough to justify my belief that they exist. Locke affirmed the existence of need rights that limit property rights in the First Treatise: But we know God hath not left one Man so to the Mercy of another, that he may starve him if he please: God the Lord and Father of all, has given no one of his Children such a Property, in his peculiar Portion of the things of this World, but that he has given his needy Brother a Right to the Surplusage of his Goods; so that it cannot justly be denied him, when his pressing Wants call for it. And therefore no Man could ever have a just Power over the Life of another, by Right of property in Land or Possessions; since ’twould always be a sin in any Man of Estate, to let his Brother perish for want of affording him Relief out of his Plenty. As Justice gives every Man a Title to the product of his honest Industry, and the fair Acquisitions of his Ancestors descended to him; so Charity gives every Man a Title to so much out of another’s Plenty, as will keep him from extream want, where he has no means to subsist otherwise; and a Man can no more justly make use of another’s necessity, to force him 25

WAR A ND INDIVIDUAL RIGHTS

to become his Vassal, by with-holding that Relief, God requires him to afford to the wants of his Brother, than he that has more strength can seize upon a weaker, master him to his Obedience, and with a Dagger at his Throat offer him Death or Slavery.4

Need rights are also implicitly recognized by Locke in his discussion of the restriction of use. There he suggests that anyone who seizes economic goods that would otherwise be wasted has a superior claim to those goods than does their (previous) owner. Notice that the restriction of use makes possible certain ­Pareto-superior (better for some and worse for no one) transfers of property. This suggests the following broader restriction on individual property rights: If through no fault of her own someone needs to use someone else’s surplus property (i.e., property that other person may benefit from but does not need), then she has a right to do so as part of a fair exchange that requires her to fully compensate the owner for this use. Once again, the outcome of the exchange is Pareto-superior to the alternative and so should be permitted given that the primary function of property rights is to meet needs. On my view (and, judging by the passage quoted above, on Locke’s view as well), we should also recognize that even in the rare case in which, through no fault of her own, someone needs to use another’s surplus property but cannot fully compensate him for this use and still meet her needs, her (negative) need right justifies taking the needed property. For here we still have a case in which, because the owner does not need to exclude the needy party from using his property, recognizing the needy party’s right to use that property would have an outcome that is Paretosuperior in terms of meeting needs. One worry is that such extensive need rights would dampen the very incentives that, at least partly, give rise to individual property rights in the first place; 4. John Locke, First Treatise of Government, in Two Treatises of Government, ed. Peter Laslett (Cambridge, UK: Cambridge University Press, 2003), 170 (chap. IV, par. 42).

26

A L ockean F ramework of R ights

but given the rarity of the sort of case in question, that worry does not seem realistic. Furthermore, suppose that for the sake of efficiently exploiting scarce world resources, it would be rational to set the Lockean proviso aside. How can we continue to give due recognition to the fact that each of us comes into this world with an equal right to use world resources? One way is to recognize negative need rights that place limits on property rights. Indeed, given that the problem of scarcity is to be solved by setting aside the Lockean proviso, there is a strong presumptive case that such rights should be recognized; for if we appeal to human needs to justify distributing economic opportunity unequally among those with equal claims to such opportunity, surely the presumption is that those very same needs ought to have some purchase on the surplus goods of those who benefit disproportionately from this inequality. This presumption might be overcome by appealing to the economic benefits of private property, but I suspect that it will be difficult to make much of an economic case for rejecting need rights that merely permit taking goods when doing so yields a Pareto-superior outcome, or even an outcome that is Paretosuperior in terms of meeting needs. Perhaps some would appeal to the value of autonomy as a basis for denying the existence of need rights, for all rights restrict autonomy by putting the right holder in a position of authority over the one against whom the right is held. But in the case of negative need rights, which merely impose the obligation not to stop others from meeting needs, the loss of autonomy is minimal. Moreover, in cases where a negative need right, if recognized, would limit a property right, there is no net gain in autonomy if the need right is not recognized; for either the need right exists and limits the autonomy of property holders, or the need right does not exist and so the property right limits the autonomy of those in need. Both rights being negative, it appears that neither of the two possible limitations is much greater than the other. 27

WAR A ND INDIVIDUAL RIGHTS

Far from being a radical proposal, the suggestion that negative need rights exist is implicitly recognized in American law.5 In Vincent v. Lake Erie Transportation Co., for example, the court recognized that “a steamboat pilot whose ship and passengers may well be lost in a storm unless he moors his ship to the nearest dock is justified in using the nearest dock for that purpose without the dock owner’s permission, and in suing the dock owner for any losses incurred by the dock owner’s refusal to allow him to dock, but is nevertheless required to pay the dock owner compensation for any damage his ship does to the dock during the storm.”6 The fact that the court would permit the pilot to sue the dock owner for any losses incurred by the dock owner’s refusal to allow him to dock suggests that the court recognized that the pilot was not simply justified in using the dock—he had a right to use it—and this right would be infringed upon should the owner of the dock refuse to allow the pilot to use the dock. Since the only plausible basis for this right was the (undeserved) need of the pilot and his passengers, it appears that the court recognized the existence of a need right in this case. The court also recognized the validity of the dock owner’s property right, of course, and that right, although limited by the need right of the pilot, still justified holding the defendant liable to making compensation. The court’s reasoning reflected common moral opinion if not moral common sense. Few of us would take seriously the suggestion that the pilot did not have a right to use the dock, or that the dock owner was not entitled to compensation for the costs of that use, or that the dock owner would have been anything less than a murderer had he, say, extinguished the dock’s lights to prevent the pilot from finding it even though lives would be lost as a foreseeable 5. The American Law Institute, Restatement (Second) of Torts, sec. 263 (1965), states: “One is privileged to commit an act which would otherwise be a trespass to the chattel of another or a conversion of it, if it is.., reasonable and necessary to protect the person or property of the actor . . . from serious harm. . . . Where the act is for the benefit of the actor . . . he is subject to liability for any harm caused by the exercise of the privilege.” 6. Vincent v. Lake Erie Transportation Co., 109 Minn. 456, 124 N.W. 221 (1910).

28

A L ockean F ramework of R ights

result. Nevertheless, the court’s analysis is apt to meet with some resistance. In particular, it might be objected that the fact that the owner of the steamboat clearly owed compensation to the owner of the dock suggests that the pilot did not have a right to use the dock. Indeed, on what might well be regarded as the standard account of the duty to compensate in such a case, although the pilot’s need to use the dock justified his using the dock, the only right involved here was the dock owner’s property right, and the pilot’s infringement upon that right, although justified, nevertheless generated the duty to compensate. To overcome the objection, then, it is necessary to show that the standard account of the duty to compensate in such cases is incorrect and that we can better account for the duty to compensate in such cases by way of an account that appeals to negative need rights. Because showing this requires several pages of detailed argument, I defer my reply to the objection at hand to an appendix. Further support for the existence of need rights can be found in the fact that, in an economic system in which virtually everyone must depend on purchasing the property of others in order to meet their own needs, it would be both dangerous and unfair to permit holders of needed goods to sell to whomever they please and to exclude the rest. It would be dangerous because it could result in undeserved needs being met; and it would be unfair because such a system would, in effect, permit some participants to arbitrarily exclude others from participation. Thus, there is prima facie reason to suppose that, at least in an economic system that relies heavily on a division of labor and an exchange of goods and services, an adequate system of exchange would recognize rights to purchase based on undeserved needs. Moreover, it is not implausible to suppose that such rights would be derivable from a more basic right to fully participate in the economic system. In spite of these considerations, some might want to resist recognizing need rights on the grounds that their recognition would have unacceptably radical social implications. The worry would be that once we begin to recognize such rights, we have essentially opened the door to the dangerous idea that it is within the rights 29

WAR A ND INDIVIDUAL RIGHTS

of the poor to take from the rich. In reply, it should be emphasized that, even if the danger here is real, it is not a product of my account; for whether need rights of the sort I am defending exist or not, it remains a moral fact that, in cases like Vincent, it is justifiable for those in need to use the property of others. Granted, this fact might have the allegedly dangerous implication that the poor may take from the rich on a grand scale, but I do not see how the danger would be increased by the recognition of need rights. It is worth emphasizing that I am not arguing for the existence of need rights of the sort denounced (rightly or wrongly) by political libertarians and other defenders of liberty or the sanctity of property rights. Those highly controversial need rights are positive rights, and I am here arguing only for the existence of negative rights. My analysis of Vincent, for example, requires the existence of need rights that entitle the right holder to use an object to meet her needs and to exclude others from acting on that object in ways that would prevent that use.7 Need rights of the sort required by such an analysis are much less of a threat to property rights than one might suppose. For except in those rare cases in which someone needs to use the property of another free of charge, the one who exercises a need right to use the property of another must compensate the property owner for the costs of the needed use. Thus, one can accept their existence without committing oneself to any radical egalitarian doctrine, for example, the proposition that all luxuries must be foregone for the sake of helping those in need. Moreover, nothing I have said precludes restricting need claims to cases of undeserved need, although we would have to be careful not to define 7. These need rights do generate duties that are, at least arguably, positive duties in that the owner of the needed goods is under an obligation to surrender these goods upon demand. But the property holder is not under an obligation to ensure that the needy party has access to his property even if he is aware of the need for that property. And even the duty to surrender the goods may be limited to cases where the failure to surrender the goods could be described as withholding them. Thus, it is consistent with my position that, for example, the dock owner would not infringe anyone’s rights if he refused to drive to his dock and to turn on its lights so that boat would be saved.

30

A L ockean F ramework of R ights

“undeserved” too narrowly. If only completely unavoidable needs would qualify as undeserved, for example, then even the needs at stake in a case like that adjudicated in Vincent would be deserved, for the passengers could have avoided their predicament by not traveling in boats that might get caught in a storm. I should also emphasize that I am not denying the existence of need-based rights to positive aid. Indeed, I believe that such rights do exist. My point is that the success of my argument here does not require their existence and hence does not require the existence of the more controversial sorts of need rights.

2.4. AUTONOMY, WELL-BEING, AND RIGHTS To complete this chapter, I would like to briefly discuss the values that appear to underlie the rights that, largely following Locke, I have thus far identified. Locke offers theological justifications for some of his central claims about rights. He suggests, for example, that God gave my body and mind to me, not to humanity, and hence it is exclusively mine. But this theological basis for the right of selfownership is unsatisfying. We need to know, for example, whether and in what sense and why the right of self-ownership is (at least for the most part) a negative right. And it is no answer to say, “Because God wanted it to be negative,” unless you can explain why God would want such a thing. A secular basis for all of our natural rights is needed if for no other reason than that we want to understand why God chose to give us the sorts of rights that we have. Again, I do not have a theory of rights to offer, but I am inclined to think that the value of autonomy and the value of well-being generate and shape our rights, and I would like to say something about how those values might provide a foundation for the existence of the rights to which I have appealed. It is primarily the value of well-being that I want to locate at the foundation of both need rights and property rights. From the standpoint of well-being, the case for recognizing, at a minimum, 31

WAR A ND INDIVIDUAL RIGHTS

the modest sort of need rights required by my analysis seems to me to be overwhelming. One could argue, I suppose, that recognizing need rights to the property of others would, on balance, undermine well-being by weakening incentives for productive labor. Two sorts of incentives might be weakened. First, insofar as one’s own need rights increase one’s confidence that others will meet one’s needs even if one fails to provide for oneself, one’s incentive to meet one’s own needs is dampened. Second, insofar as the need rights of others decrease one’s confidence that one will not be deprived of one’s surplus goods, one’s incentive to produce surplus goods is dampened. We should not underestimate the deleterious effect of weakening these incentives, or so the argument might go, for as Locke points out, productive labor often increases the value of world resources many-fold, thereby greatly enhancing the power of humanity to meet needs.8 Whatever force such an argument would have if directed against some of the more controversial sorts of need rights, it would not be compelling if directed at the sort of need rights I have defended here. Again, I have suggested that the one who exercises a need right to use the property of another is under an obligation to fully compensate the property owner for the costs of that use. Thus, the need rights required by my analysis do not provide a free lunch to those who fail to provide for themselves, nor do they give those who produce surplus goods a good reason to fear incurring a loss as a consequence of being deprived of their surplus by those in need. Granted, the requirement to compensate does not apply in the case where the person in need who uses the property of another cannot possibly compensate the owner for the costs of that use; but given the rarity of such a case, it is an unrealistic worry to think that the incentives in question would be significantly weakened by its occasional appearance. Given that the best case for transcending the Lockean proviso is based on the importance of well-being, the case for regarding 8. Locke, Second Treatise, 22–3 (chap. V, par. 37).

32

A L ockean F ramework of R ights

well-being as forming at least part of the foundation of property rights is also strong. That case is made even stronger by the plausibility of Locke’s appeal to the benefits (primarily incentives for labor) of recognizing private property. The difficult question, though, is whether well-being is the only fundamental value that underlies individual property rights. As we have seen, in defending individual property rights, Locke did appeal to the value of well-­being; but he might have been appealing to desert when he suggested that God gave world resources “to the use of the Industrious and Rational, . . . not to the Fancy or Covetousness of the Quarrelsome and Contentious.”9 Moreover, his mixing argument does not appear to rely solely on the value of well-being to reach its conclusion that one has a right to the product of one’s labor. Furthermore, some contemporary political libertarians defend that same conclusion by appealing not to the value of well-being, but rather to the disvalue of what they sometimes call “moral parasitism.” They claim that if the product of my labor is seized by others without my consent, then I am exploited in a way at least analogous to the way a parasite exploits its host.10 The underlying thought appears to be that it is unfair when a laborer bears the burdens of producing some good while others who have borne no such burdens reap the benefits. I am not opposed to the suggestion that in some cases a right to property can be defended by appealing to desert or to fairness in the distribution of benefits and burdens. The problem, however, is to make a general case for a right to the product of one’s labor by such an appeal. After all, some productive labor is neither burdensome nor does it display any virtue of industry. As for Locke’s mixing argument, it is not clear at all how ownership of one’s own labor automatically confers ownership of the product of one’s labor. As others have rightly wondered, why should we agree with Locke 9. Locke, Second Treatise, 20 (chap. V, par. 34). 10. Such an argument is, perhaps, suggested by Locke’s remark that those who in the State of Nature complained about others having a right to the fruits of their own labor “desired the benefit of another’s pains . . .” See Second Treatise, 20 (chap. V, par. 34).

33

WAR A ND INDIVIDUAL RIGHTS

that a mixture of something I own (my labor) and something no individual owns (e.g., some unclaimed world resource) is something I own (because I own my labor) rather than something I don’t own (because I do not own world resources)? My own view, then, is that well-being provides the most general and plausible basis for justifying our common understanding of property rights. Let us turn to the right of self-ownership. For a variety of reasons, I believe that this right must be grounded partly in the value of autonomy.11 The rough idea here is that it is unfitting for one person to control another, or to treat another as if she were a mere resource to be used for purposes other than her own. Indeed, it displays tremendous disrespect to do so through force, coercion, or manipulation. Thus, the right of self-ownership reflects the fact that those who have the capacity for autonomous choice are worthy of a special kind of respect. This explains why little children, animals, and other beings lacking that capacity are not to be accorded the same right of selfownership that you and I enjoy. (Notice that little children and certain animals can be accorded a need-based right to their own bodies and minds even if they lack a full right of self-ownership.) It also explains the appeal of Locke’s contention that the power of alienation in the right of self-ownership, which does include both the power to reduce one’s natural liberty through promises and contracts and the power to renounce or transfer ownership of certain parts of one’s own person, nevertheless does not extend to making oneself a slave.12 11. I also believe that the right of self-ownership is grounded partly in the value of well-being. This explains why infringements on the right of self-ownership that inflict more harm on the right holder are prima facie more wrong than infringements that cause less harm even when considerations of autonomy are held equal. A painful slap in the face, for example, is harder to justify than a painless tap on the shoulder. For a detailed look at the relationship between ownership, autonomy, and well-being see John Christman, “Distributive Justice and the Complex Structure of Ownership,” Philosophy & Public Affairs 23, no. 3 (1994): 225–50. Christman follows others in arguing that to own something is to possess a cluster of rights, some of which are more important to autonomy than others. What I am calling “the power of exclusion” in the right of self-ownership can be understood as one of the constitutive rights in the right of self-ownership that is especially important to autonomy. 12. Locke, Second Treatise, 15–6 (ch. IV, par. 23).

34

A L ockean F ramework of R ights

If the value of autonomy is part of the basis for the right of selfownership, then we can also account for some of the exceptions to the generalization that inficting harm infringes upon rights. Attempts to rationally persuade, for example, are paradigms of respect for autonomy. Thus, given that the value of autonomy underlies the right of self-ownership, it is easy to see why using rational persuasion to convince someone to do something harmful to himself is not an infringement upon the right of self-ownership even though it does involve acting on someone in a way that results in that person’s being harmed. Inflicting harm with the free and informed consent of the one who is harmed is also consistent with respect for autonomy, and so an appeal to the value of autonomy can also explain why there is typically no infringement upon rights when harm comes to someone who has freely and knowingly consented to that harm. Furthermore, if someone is morally liable to punitive, corrective, or defensive harm, he will have freely chosen to act in a way that at least risked liability, and so harming him by acting on his person need not be an affront to the value of his autonomy. (In relatively rare cases, it is at least arguable that liability can be incurred without any exercise of free choice, but that sort of liability appears to exist when considerations of autonomy yield to relatively weighty considerations of well-being.) The value of autonomy also explains why our most basic rights, including the right of self-ownership itself, are at least primarily negative. All rights face prima facie opposition from the value of autonomy. For in virtue of having a right, the right holder has authority over those against whom the right is held. As a rule, however, positive rights are more opposed to the value of autonomy than are negative rights. In the case of rights to positive aid, this is because such rights are rights to use the body or mind of another. But even those positive rights that are not rights to use another person are typically more opposed to the value of autonomy than the typical negative right; for in requiring the performance of a specific sort of action, positive rights close off all alternative actions, whereas the typical negative right merely requires the nonperformance of a 35

WAR A ND INDIVIDUAL RIGHTS

specific sort of action and so leaves open some plurality of alternatives.13 These remarks do not apply, of course, to positive rights that are voluntarily conferred by the one against whom the right is held. My autonomy is not opposed to a right to positive aid against me that I have freely and knowingly conferred upon another (e.g., by promising to render positive aid). Such remarks are, of course, a far cry from developing a theory that can derive the rights we have from the value of autonomy coupled with the value of well-being. I have no such theory to offer, and I would even be skeptical about any attempt to develop such a theory along rule-consequentialist lines. In this chapter I have relied on moral common sense and common moral intuition to defend a mere sketch of some of our most basic rights. What theory ultimately justifies belief in those rights, and what precise role autonomy and well-being have in such a theory, remains an open question.

13. Of course, if the negative right in question were a right against someone that she not do anything, then this would close off all alternatives. Not surprisingly, then, no one has such a right.

36

[ 3  ] RIGHTS AND HAR M

In chapter 2 I made only a few general remarks about the range of actions that can infringe upon a right. I intend in this chapter to go much further on that topic. Specifically, because of its relevance to the ethics of war, I want to explore in greater detail the issue of what sorts of harmful acts infringe upon rights. To that end, I want to discuss the “doctrine of doing and allowing,” for it is commonly thought that doing harm typically infringes upon rights, whereas merely allowing harm typically does not.

3.1. THE DOCTRINE OF DOING AND ALLOWING Let us consider once again the following pair of cases: No Heroics: A stray arrow (tipped with a deadly poison) is headed right at Jones. You know that the arrow will strike and kill him unless you sacrifice your own life by moving in front of him. You choose to preserve your own life. Shield: A stray arrow is headed right at you. You know that the arrow will strike and kill you unless you sacrifice the life of Jones by pulling him in front of you. You choose to preserve your own life.

In both cases, you preserve your own life at the expense of the life of another. Yet common sense tells us that your behavior is morally innocent in No Heroics, but terribly wrong in Shield.

37

WAR A ND INDIVIDUAL RIGHTS

The doctrine of doing and allowing (hereafter “DDA”) is often invoked to distinguish cases such as these. As I understand it, the doctrine states that doing harm is more difficult to justify than allowing harm. More precisely, it says that (ceteris paribus) the moral presumption against allowing harm yields more readily to considerations of self-interest, or the good of others, than the moral presumption against doing harm.1 Thus, in No Heroics you merely allow Jones to die, and you can justify this by appeal to the fact that you thereby preserve your own life; but in Shield you kill Jones (i.e., Jones’s death is your doing), and the same appeal to self-­ preservation does not justify your behavior. Although there is an obvious moral difference between your behavior in Shield and in No Heroics, it is by no means obvious that, in general, doing harm is more difficult to justify than allowing harm. Thus, DDA appears to stand in need of an underlying rationale. Even in the absence of such a rationale, we might reasonably accept the doctrine if it had the endorsement of moral common sense. But attempts to define the relevant notions of “doing” and “allowing” have produced only versions of the doctrine that are at odds with moral common sense. This has led some to consider the possibility that DDA only approximates the truth and that the moral difference between cases like No Heroics and Shield must be explained in terms of some moral principle or principles distinct from that doctrine. One suggestion along these lines is that certain truths about moral

1. Here I follow Warren Quinn, “Actions, Intentions, and Consequences: The Doctrine of Doing and Allowing,” Philosophical Review 98, no. 3 (1989): 287–312. The ceteris paribus clause is necessary to accommodate the fact that the strength of the moral presumption against doing harm and that against allowing harm appear to vary depending on the presence or absence of other moral variables. Certain moral absolutists might object that deliberately allowing the death of an innocent person is always wrong and so the moral presumption against allowing harm does not always yield more readily to considerations of self-interest or the good of others than the moral presumption against doing harm. Not being an absolutist, I would be inclined to disagree; but we can leave open the possibility that the doctrine needs to be qualified to accommodate cases in which allowing harm cannot possibly be justified.

38

R ights and H arm

rights provide a better analysis of the relevant cases than does DDA.2 In sections 6–8 below I attempt to develop and defend that suggestion. To provide an interpretation of DDA one must define the relevant notions of “doing harm” and “allowing harm.” In sections 2–5 below, I consider and reject various prominent interpretations of the doctrine. My focus is on the extensional adequacy of the doctrine on a given interpretation rather than on the extensional adequacy of the definitions that generate the interpretation. In other words, I reject an interpretation of DDA if it yields a moral doctrine at odds with moral common sense, but I do not reject an interpretation for failing to accurately define “doing harm” and “allowing harm,” since inaccurately defining these concepts might yield a true moral doctrine.

3.2. QUINN’S INTERPRETATION OF THE DOCTRINE In Shield, Jones’ death is a consequence of your actions; in No Heroics, it is a consequence of your inaction. Thus, one might suppose that the relevant distinction in DDA is that between harmful acts and harmful omissions. Let’s call this “the A/O interpretation.”3 Warren Quinn finds it surprising that “most moral philosophers who write on these matters reject this way of drawing the distinction,”4 and 2. Another possibility is to explain the moral difference between your behavior in Shield and your behavior in No Heroics in terms of the principle of double effect. But if our standard is moral common sense, unintended harm is usually easier to justify if it is allowed rather than done. Thus, the principle of double effect cannot simply replace DDA. 3. In his defense of a qualified version of the A/O interpretation, Quinn follows Davidson in taking an act to be the presence of something and an omission to be the absence of an act (i.e., the non-instantiation of some type of act that the agent could have performed). See Quinn, “Doctrine of Doing and Allowing,” 294–5. Also, see Donald Davidson, Essays on Actions and Events (Oxford, UK: Clarendon Press, 1980). 4. Quinn, “Doctrine of Doing and Allowing,” 294.

39

WAR A ND INDIVIDUAL RIGHTS

he dismisses some of the alleged counterexamples to the A/O interpretation. He rejects, for example, Philippa Foot’s suggestion that it would make no moral difference if one turned off someone’s respirator or, supposing that the respirator is of a sort that needed to be turned on each day, simply refrained from turning it on. 5 Quinn points out that it would make a moral difference in the crucial sense that it would be more difficult to justify turning off the respirator than to justify merely failing to turn it on. He asks us to compare two cases. In each case, the hospital experiences temporary electrical problems such that the respirators of the five patients in Ward B can be kept going only if the respirator of the one patient in Ward A is off. Since each patient owns his or her own respirator, the hospital’s right to allocate its own resources does not come into play. Moreover, you do not work for the hospital, and it is you who must decide whether to secure the lives of the five patients in Ward B at the expense of the life of the single patient in Ward A, or to secure the life of the one patient in Ward A at the expense of the five in Ward B. In both cases, you choose to preserve the lives of the five patients in Ward B, but the two cases differ in one crucial respect. In the first, you must turn off the respirator in Ward A to keep the five respirators in Ward B going. In the second, you can keep the five in Ward B going by not turning on the one in Ward A. Quinn points out that your omission in the second case seems morally permissible, but your act in the first case does not.6 5. Philippa Foot, “Morality, Action and Outcome,” in Morality and Objectivity, ed. Ted Honderich (London: Routledge and Kegan Paul, 1985), 24. 6. Quinn, “Doctrine of Doing and Allowing,” 297. As Quinn also points out (pp. 289–90), his formulation of the doctrine is not threatened by James Rachels’ well-known pair of cases, one of which involves allowing a child to drown and the other drowning a child. (“Active and Passive Euthanasia,” New England Journal of Medicine 292, no. 2 [1975]: 78–80.) It seems clear enough that allowing the child to drown in order to avoid being killed oneself would be justified, but killing the child by pushing his head under the water in order to avoid being killed oneself would not be justified.

40

R ights and H arm

Although Quinn resists some of the alleged counterexamples to the A/O interpretation, he readily concedes that certain kinds of cases require minor amendments to that interpretation. Thus, he proposes that not stopping an object from inflicting harm can count as doing harm if the object is under one’s control and one intends its harmful action.7 He also suggests that “if your action is a certain kind of withdrawing aid, it naturally enough seems to count as [allowing harm].”8 Quinn plausibly insists that his qualifications to the A/O interpretation are natural ones: intending the “action” of an object under one’s control is quite similar to acting oneself, and an act of extending aid followed by an act of withdrawing that same aid has the same net effect as simply not extending aid in the first place. However, he does not consider a certain kind of case that appears to require the rejection, rather than a natural qualification, of the A/O interpretation. Here are two examples of the sort of case I have in mind: No Heroics II: There is a fierce gust of wind, but you hold onto a lamppost to avoid being blown in front of Jones and being hit by the stray arrow headed in his direction. Consequently, Jones dies instead of you. Stop: To your surprise, you awaken to find that you are stuck in a shopping cart that is rolling down a hill. Suddenly you realize that if the cart continues forward, you will be hit by the stray arrow headed in Jones’ direction. To stop its forward progress, you topple the cart. Consequently, Jones dies instead of you.

In each of these cases, Jones’ death is a consequence of your actions, not your omissions. And in neither case do you withdraw aid. But we are not inclined to say that you killed Jones in either of these cases or that his death was your doing. More important, it offends moral common sense to suggest that it is more difficult to justify actions of the sort exemplified in these two cases than to justify omissions 7. Quinn, “Doctrine of Doing and Allowing,” 298–301. 8. Quinn, “Doctrine of Doing and Allowing,” 302–3.

41

WAR A ND INDIVIDUAL RIGHTS

of the sort exemplified in No Heroics. It would be no less heroic (or perhaps I should say, “no less foolish”) to sacrifice your own life in No Heroics II or Stop than in No Heroics. Thus, it appears that even Quinn’s qualified A/O interpretation must be rejected.

3.3. FOOT’S INTERPRETATION OF THE DOCTRINE Foot proposes an interpretation of DDA that places many acts into the allowing column of the doctrine. She suggests that the doctrine distinguishes between initiating or sustaining a harmful (causal) sequence and merely allowing the completion of a harmful sequence.9 One way to allow the completion of a harmful sequence is to refrain from preventing or stopping it. But Foot suggests that the other way is to enable it to complete itself by removing an obstacle that would otherwise have stopped it.10 It is this latter sort of allowing that typically involves acting. Thus, contrary to the A/O interpretation, Foot suggests that, for example, turning off the respirator that is sustaining the life of a patient allows him to die by removing an obstacle to the progression of his illness. One obvious problem with her interpretation is that her categories are not exhaustive. In particular, she does not say how we are to classify preventing the creation of an obstacle to a harmful sequence. But perhaps the solution to this problem is also obvious. For surely preventing an obstacle to a harmful sequence from being put into place cannot be more difficult to justify than removing one that is already in place. Thus, it appears that her notion of enabling a harmful sequence should be expanded to include the former as well as the latter. Assuming that the term “obstacle” is to be understood

9. Foot, “Morality, Action and Outcome,” 24. 10. Foot, “The Problem of Abortion and the Doctrine of Double Effect,” in her Virtues and Vices (Oxford, UK: Oxford University Press 2002), 26.

42

R ights and H arm

very broadly, the proposed amendment to Foot’s interpretation would broaden the category of “enabling” so that it includes any act that prevents the prevention of harm. With this amendment, Foot’s interpretation correctly classifies your behavior in both No Heroics II and Stop as allowing harm, for in these cases you prevent the creation of an obstacle to the harmful sequence that threatens Jones. It might be objected that the amendment is not needed since your behavior in these cases can be accurately (albeit awkwardly) described as refraining from stopping a harmful sequence. But even if this is so, the amendment is clearly necessary to accommodate cases such as this: Stop II: Your friend’s child is in a shopping cart that is rolling down a hill. Suddenly you realize that if the cart continues forward, the child will be hit by the stray arrow headed in Jones’ direction. To stop its forward progress, you grab the cart. Consequently, Jones dies instead of the child.

Your harmful behavior here cannot be squeezed into Foot’s category of refraining from stopping a harmful sequence. But you do prevent the creation of an obstacle to a harmful sequence. And just as clearly you act permissibly. Thus, the proposed amendment to Foot’s interpretation is a useful one. Quinn complains that, as defined by Foot, allowing harm requires a preexisting causal sequence and so one cannot allow harm by failing to prevent the generation of a harmful sequence.11 But Foot says that “in the case of allowing, a train of events must already have started or be on the horizon; an agent who could stop or 11. Quinn, “Doctrine of Doing and Allowing,” 298. The example Quinn uses to challenge Foot’s position has been subjected to plausible criticism by Samuel C. Rickless, “The Doctrine of Doing and Allowing,” Philosophical Review 106, no. 4 (1997), 558–61. However, Rickless focuses too much on the particular example and not enough on the point it is intended to illustrate, namely, that “allowing harm” ought to be defined broadly enough to accommodate the fact that one way to allow harm is to refrain from preventing the generation of a harmful causal sequence.

43

WAR A ND INDIVIDUAL RIGHTS

prevent it does not do so, and therefore allows it to go on.”12 Here she is quite explicit in proposing that allowing harm does not require a preexisting causal sequence, that one way to allow harm is to refrain from preventing the generation of a harmful sequence. She does require the sequence that is not prevented to be “on the horizon,” and it’s not clear what the rationale for this restriction is supposed to be. Thus, we might want to amend her interpretation once again by simply dropping what appears to be an unnecessary restriction.13 The suggested amendments strengthen Foot’s interpretation of DDA. But amended or not, her interpretation is at odds with moral common sense. For as more than one writer has pointed out, at least some instances of enabling a harmful sequence to complete itself belong in the doing column of DDA.14 Quinn’s example of turning off the respirator of the patient in Ward A to save the five patients in Ward B is one such case. Another one is this: Enable: Jones is tied to the trolley tracks, a runaway trolley speeding toward him. The trolley has no passengers and, having foreseen his predicament, Jones arranged to have his car positioned on the tracks between him and the approaching trolley. You know that Jones’ survival depends on that car remaining on the tracks until it is struck by, and hence stops, the trolley. Unfortunately, you also know that unless you drive off in Jones’ car before the trolley arrives at its current location, 12. Foot, “Morality, Action and Outcome,” 24 (Foot’s emphasis). Rickless (“The Doctrine of Doing and Allowing,” 557) also seems to overlook this remark. In an earlier paper, Foot does define allowing harm in terms of a preexisting harmful sequence (“The Problem of Abortion and the Doctrine of Double Effect,” 26), which may explain Quinn’s and Rickless’ apparent misunderstanding of her position. 13. Foot notes that one can also divert a harmful sequence from one victim to another. She suggests that it is easier to justify diverting a harmful sequence than to justify initiating or sustaining one, but she does not say that diverting a harmful sequence is yet another way to allow harm. She appears to be uncertain how to incorporate this category into her interpretation of DDA. See “Morality, Action and Outcome,” n. 3. 14. For example, Christopher Boorse and Roy A. Sorensen, “Ducking Harm,” Journal of Philosophy 85, no. 3 (March, 1988), 127.

44

R ights and H arm

you will not reach the emergency room in time to receive life-saving medical attention. Once again, you choose to preserve your own life at the expense of the life of Jones.

Your behavior in this case merely enables the trolley to harm Jones, but whereas it may not seem quite as wrong as your behavior in Shield, it is most certainly wrong, and I see no reason to deny that it belongs in the doing column of DDA.

3.4. THE CAUSAL INTERPRETATION OF THE DOCTRINE It is quite natural to identify your behavior in both Enable and Shield as the cause of Jones’ death. But it would be very odd to say that your behavior in No Heroics is the cause of Jones’ death. This suggests the possibility of a causal interpretation of DDA under which the distinction between doing harm and allowing it is the distinction between causing harm and merely failing to prevent it. Of course, in some sense you cause Jones’ death in all of the cases we have considered, including No Heroics. But there is more than one legitimate sense of “cause,” and proponents of the causal interpretation can say that we simply need to latch on to the right one. The notion of causation that seems most promising here is, very roughly, that of an individual “making a difference.” In No Heroics, your presence at the scene makes no difference to the outcome. Had you not been present, had you not even existed during the flight of the stray arrow, Jones would have been killed at the same time and in the same manner as he in fact was. Thus, in one clear sense you do not cause Jones’ death even though his death is a foreseeable consequence of your choice to refrain from moving in front of him. In Shield, on the other hand, you clearly do make a difference. Had you not existed during the flight of the arrow, Jones would not have been pulled into harm’s way (or at least not by you), and so Jones would not have suffered the death that he in fact suffered. 45

WAR A ND INDIVIDUAL RIGHTS

The relevant notion of causation can be made precise in this way: Person a is a cause of event e if and only if there is a time t such that, had a not existed at t, e would not have occurred.

DDA can then be construed as discriminating between responsibility for causing harm and responsibility for failing to prevent harm as these notions are defined here: Person a is responsible for causing harm h suffered by person b if and only if there is a time t such that (a) h is a foreseeable consequence of a’s free behavior at t, and (b) had a not existed at t, b would not have suffered h. Person a is responsible for failing to prevent harm h suffered by person b if and only if (a) h is a foreseeable consequence of a’s free behavior, but (b) a is not responsible for causing h.

The causal interpretation of DDA appears to have an advantage over the A/O interpretation in that it places your behavior in No Heroics II and Stop in the allowing column of DDA. In No Heroics II, for example, had you not even existed at the time at which you grabbed the lamppost, Jones would have been killed at the same time and in the same manner in which he was in fact killed. Thus, you are not responsible for causing Jones’ death. The causal interpretation may also provide a solution to Christopher Boorse and Roy A. Sorensen’s “ducking problem.”15 Consider the following: Duck: A stray arrow is headed right at you. You duck to avoid being struck by the arrow, knowing that as a consequence of your behavior Jones, who has been standing behind you and has no room to maneuver, will be struck instead. 15. Boorse and Sorensen, “Ducking Harm,” 115–34. They offer no solution to the problem they identify. Instead, they argue that certain initially attractive approaches to solving it cannot succeed.

46

R ights and H arm

No one would think to blame you for your behavior in Duck. Thus, defenders of commonsense morality face the problem of explaining why your behavior in Duck is easier to justify than your behavior in Shield. Moreover, an adequate solution here must accommodate the fact that your behavior in Duck is also easier to justify than your behavior in Enable. And this in spite of the fact that in both of these cases, the harm that comes to Jones is the product of your removing an obstacle to a harmful sequence. (In Enable the obstacle is Jones’ car, whereas in Duck the obstacle is you.) There is a prima facie case for thinking that your behavior in Duck is a species of allowing harm. For if your act in Stop is to be grouped with your omission in No Heroics in the allowing column of DDA, then your behavior in Duck must also count as merely allowing Jones to die. To see this, consider an intermediate case: Stop III: You awaken to find that you are stuck in a shopping cart that has been pushed down a hill, but this time Jones, who is sound asleep, is in a cart that is beside yours and moving at the same speed. You realize that if you do nothing you will enter the path of a stray arrow and be killed, but Jones, who is behind you relative to the approaching arrow, will be shielded from harm by you. You topple your cart to avoid entering the path of the arrow even though you know that Jones’ death is a foreseeable consequence of your action.

The only difference between Stop III and Stop is that in Stop you could have saved Jones by allowing your body to move in front of him, whereas in Stop III you could have saved Jones by allowing your body to remain in front of him. Clearly this is an insignificant difference. But Duck is essentially the same as Stop III: you could have saved Jones by remaining in front of him. On the causal interpretation of DDA, it is at least arguable that your behavior in Duck is a species of allowing harm. For assuming that you can be identified with your body, it appears that had you, and hence your body, not existed at the time when you ducked, Jones would have suffered the same death that he in fact suffered, and so 47

WAR A ND INDIVIDUAL RIGHTS

you are not responsible for causing his death. In Enable, on the other hand, you are clearly responsible for causing the death of Jones. For had you not existed when you drove off in his car, that car would have shielded him from the trolley. Hence, unlike both Quinn’s and Foot’s respective interpretations of DDA, the causal interpretation seems to have the correct implications in both Duck and Enable. But the causal interpretation does not yield a formulation of DDA that is aligned with moral commonsense. For consider the following case: Duck II: You have been kidnaped and put into an abandoned car which just happens to be sitting on the trolley tracks. A runaway trolley is heading toward you. You watch through the car window as Jones is tied to the tracks farther down the line. (Notice that in this case Jones has nothing to do with the placement of the car on the tracks.) If you could get out of the car, no one would be harmed because there is no one on the trolley, and its colliding with the car would stop its forward progress, thereby preventing it from hitting Jones. But your kidnappers have sealed the windows and doors of the car to prevent your escape. Fortunately for you, you know how to hot-wire a car and you manage to get the car running and off the tracks before the trolley reaches you. You do this knowing that, as a consequence of your actions, the trolley will kill Jones instead of you.

On the causal interpretation, Jones’ death is your doing in this case as well, for Jones would not have been killed had you not existed at the time when you moved the car. Perhaps one problem with this result is that it seems a bit odd to describe Jones’ death as your doing.16 The more serious problem, though, is that moving the car

16. But notice that had you been able to escape harm without moving the car, we would be more comfortable describing your moving the car off the tracks as killing Jones. Whether we are inclined to describe harmful behavior as doing harm or as allowing harm appears to depend partly on whether the behavior in question seems to us to be justified.

48

R ights and H arm

in Duck II does not seem any worse than your omission in No Heroics (or your respective actions in No Heroics II, Stop, and Duck). Thus, this case appears to be a counterexample to DDA given the causal interpretation.17 Another sort of counterexample to the causal interpretation has been provided by Shelly Kagan.18 Taking a few liberties with the details of his case, we have the following: Intercept: You have decided to save Jones’ life by sending him the money he needs to buy food. You put the money in an envelope, address and stamp the envelope, and ask your friend to drop it in a mailbox on your behalf. But soon thereafter you change your mind because you realize that you had underestimated the extent to which you could enhance your own well-being by spending the money on yourself. You call your friend and ask him to tear up the letter even though you know that Jones will die as a result.

On the causal interpretation, Jones’ death is your doing in this case, but most of us will be strongly inclined to say that you merely allow Jones to die. Be that as it may, the crucial question is whether there is any moral difference between your behavior in this case and your behavior in the case in which you never even consider rescuing Jones because you realize right from the start how much you can gain by spending the money on yourself. On the causal interpretation, you merely allow Jones to die in this second case, but there appears to be no moral difference between the two cases. If the sacrifice you avoid by not saving Jones is small (e.g., the quality of your home entertainment center is at stake), your behavior in each case is equally heartless. If the sacrifice is large (e.g., your own life is at stake), your behavior in each case is clearly permissible. 17. Or consider Stop II. Jones would not have been struck by the arrow had you not existed when you grabbed the cart. Thus, the causal interpretation wrongly classifies your behavior as doing harm. 18. Shelly Kagan, The Limits of Morality (Oxford, UK: Clarendon Press, 1989), 107.

49

WAR A ND INDIVIDUAL RIGHTS

It might be objected that the problem can be avoided if we modify our causal interpretation so that a person a is responsible for causing a harm h suffered by person b if and only if (a) h is a foreseeable consequence of a’s free behavior, and (b) had a never existed, b would not have suffered h. But as Kagan points out,19 this move would have absurd consequences in other cases. Suppose that you push a boulder onto the trolley tracks because you want to see the runaway trolley collide with it. Suppose further that you then change your mind and push the boulder off the tracks even though you have noticed that, because Jones is tied to the tracks farther down the line, his life would be saved by the presence of the boulder on the tracks. The fact that you pushed the boulder onto the tracks in no way makes your pushing it off the tracks easier to justify.

3.5. THE ACTING-ON INTERPRETATION OF THE DOCTRINE There is one more interpretation of DDA that we ought to consider, for one natural suggestion is that the doctrine distinguishes between bringing about harm by acting on (i.e., doing something to) the one who suffers the harm, and bringing about harm but not by acting on the one who suffers the harm.20 If you strangle or stab or shoot or poison Jones, or pull him in front of you so that an arrow strikes him instead of you, you do something to him that harms him. On the other hand, if you retrieve your money in Intercept, or move the car in Duck II, then, although you cause Jones to be harmed, we are inclined to say that you do so without acting on Jones. The relevant notion of “acting on” needs to be made precise. My proposal is this. To act on o is to generate through one’s behavior a causal process that ultimately has a direct impact on o. Given that 19. Kagan, The Limits of Morality, 95–6. 20. George Fletcher suggests this sort of interpretation of DDA in Rethinking the Criminal Law (Boston: Little, Brown, 1978), 588–610.

50

R ights and H arm

we occupy a universe in which there is no “action at a distance,” this means that there is a spatiotemporally continuous causal chain that connects a “basic action” (i.e., an action the performance of which does not require the performance of any other action) to o and hence to o’s acquiring of some property. Of course, the notion of a spatiotemporally continuous causal chain is not unproblematic. (Few causal notions are.) But this notion has recently been defended with great sophistication by Ned Hall,21 and it is deeply ingrained in ordinary thinking about causation. The notion of “acting on” is more problematic when the free behavior of another agent lies on the path from one’s own behavior to some harmful outcome. In such a case, a causal process stretching from one’s own behavior to the body of the harmed individual may be impossible, for it remains an epistemic possibility that persons enjoy “contra-causal freedom” and so the decision of the intermediate agent was not part of any causal process initiated by anyone but himself. More important, whether human freedom is contra-causal or not, we do not regard the decisions of others as events in a causal process for the purposes of assessing whether one person acts on another person. Suppose, for example, that the hostage-takers threaten to kill a hostage if the United States participates in peace negotiations, and suppose further that, because the president ignores their threat, they kill a hostage. No one would suggest that, because there is a causal process linking, say, the president’s ordering his secretary of state to represent the United States in the negotiations and the killing of a hostage, the president has therefore killed the hostage, or that the hostage’s death is the president’s doing. The hostage-takers alone take the life of the hostage. Thus, if the acting-on interpretation is to get off the ground, we should stipulate that one cannot act on something through the medium of another person’s free behavior. 21. Ned Hall, “Non-locality on the Cheap? A New Problem for Counterfactual Analyses of Causation,” Nôus 36, no. 2 (2002): 276–94.

51

WAR A ND INDIVIDUAL RIGHTS

With the relevant notion of “acting on,” we get the results we want in most of the cases we have considered thus far. In Shield, for example, there is a spatiotemporally continuous causal chain from your bodily movements to Jones’ moving into a certain location at a certain time, and his moving into that location at that time results in his death. Thus, Jones’ death results from your acting on him in this case. In No Heroics and Intercept, on the other hand, you do not act on Jones. By not stepping in front of Jones in No Heroics, you merely fail to prevent a spatiotemporally continuous causal chain from existing between the firing of the arrow and Jones’s being struck by the arrow; in Intercept, you merely interrupt a causal process that would otherwise have led to Jones’ survival. Duck and Duck II are trickier, but if we consider the matter carefully, we find that once again there is no spatiotemporally continuous causal path from your behavior to Jones that results in his death. In Duck II, you act on the car and thereby enable a spatiotemporally continuous causal chain to exist between whatever set the trolley on its lethal path and Jones’ being struck by the trolley. But it is a mistake to suppose that by moving the car off the tracks, you cause its absence from a certain location in the path of the trolley, which in turn causes the trolley to continue past that location and ultimately to strike Jones, and that all of this constitutes a spatiotemporally continuous causal chain. Granted, the car’s absence from the relevant location in Duck II can properly be described as a cause of Jones’ being struck by the trolley. But inasmuch as this absence is nothing at all, it cannot be a part of a spatiotemporally continuous causal chain.22 In spite of its advantages, the “acting-on interpretation” of DDA appears to inherit Foot’s difficulty with cases such as Enable. (Indeed, given our suggested amendments to Foot’s interpretation, and given a certain understanding of Foot’s respective notions of “initiating” and “sustaining” a harmful causal sequence, Foot’s interpretation and the acting-on interpretation are one and the same.) Just as you do not act on Jones by moving the car in Duck II, you do not act on 22. Here I am following Hall, “Non-Locality of the Cheap?,” 277–88.

52

R ights and H arm

Jones by moving the car in Enable, for in both of these cases there is no spatiotemporally continuous causal chain between your behavior and Jones that results in the death of Jones. But if we say that doing harm requires acting on the one who is harmed, it follows that you merely allow Jones to be harmed in Enable, which is the same wrong result that undermined Foot’s interpretation of DDA. The acting-on interpretation also fails to distinguish your behavior in Intercept from your behavior in the following variant of that case: Intercept II. As in Intercept, you decide to send Jones the money he needs to avoid death by starvation. But unlike Intercept, you do not retrieve your check before it is mailed. Instead, Jones receives the check and cashes it. You then change your mind and take the money back.

Even in Intercept II, the acting-on interpretation implies that you merely allow Jones to die by taking the money from him. For you act on the money you take from Jones, but as in Intercept, you do not act on Jones himself, or so we can suppose. In Intercept II, however, your action is clearly impermissible.

3.6. A RIGHTS-BASED ALTERNATIVE These difficulties can be avoided, however, if we abandon DDA and explain the moral difference between cases like Shield and No Heroics in terms of the moral rights possessed by the relevant parties. In Shield you clearly infringe upon Jones’ right of self-ownership by pulling him in front of you. But in No Heroics you do not infringe upon anyone’s rights by failing to sacrifice your own life to save Jones. Thus, one moral distinction that appears to be operating here is that between “unjust harm” (i.e., damage to the interests protected by a right in virtue of an infringement upon that right) and harm that is not unjust (even though it is a foreseeable consequence of the relevant agent’s behavior). 53

WAR A ND INDIVIDUAL RIGHTS

Of course, this shift in focus to rights would achieve nothing if the doctrine being invoked merely stated that doing harm infringes upon the right of self-ownership but allowing harm does not. But that is not the proposal I have in mind. The primary doctrine that I want to employ is suggested by the deficiencies of the acting-on interpretation of DDA. Recall that on this interpretation, a necessary condition for doing harm is acting on the one who is harmed. This renders the doctrine incapable of distinguishing between cases like Duck II and Enable, and between cases like Intercept and Intercept II, for in none of these cases do you act on the one who is harmed. But perhaps what is plausible about the acting-on interpretation derives from the fact that the relevant notion of “acting on” is tied to the power of exclusion that partly constitutes a variety of rights, including but not limited to the right of self-ownership.23 For (with few exceptions) when we find that some person b has a right to some entity o, we also find that b has the power to exclude others from acting on o in ways that cause b to be harmed (i.e., in ways that damage interests protected by b’s right to o). Thus, harming b by acting on some entity o to which b has a right without b’s (free and informed) consent is one way to infringe upon b’s right to o.24 23. Suppose that the notion of “acting on” is shown to be incoherent. I would take this as a basis for rejecting our ordinary conception of moral rights. Commonsense morality is often tied to commonsense metaphysics, and so if we reject a metaphysical doctrine as an untenable piece of “folk metaphysics,” any ethical doctrine that depends on it must also be dismissed. 24. This is a bit imprecise. For suppose that we modify Duck II so that you cannot move the car off the tracks without driving over Jones’ model airplane. Loosely speaking, you do preserve your own life at the expense of the life of Jones by acting on something to which Jones has a right, but we do not want to say that the harm you inflict on Jones is unjust. The difference between this case and Enable seems to be located in the relationship between the infringement on Jones’ right and the harm that he suffers. Acting on an object o requires a spatiotemporally continuous causal chain from a basic action to o and consequently to a property in o. When you move Jones’ car in Enable, the harm to Jones is a consequence of the change you effect in the location of his car. But in our modification of Duck II, the harm to Jones is not a consequence of any change you effect in Jones’ model airplane. Thus, for the sake of precision, we should say that a inflicts unjust harm on b by acting on some object o to which b has a right only if, for some property p, (1) b is harmed as

54

R ights and H arm

We are now in a position to distinguish Intercept from Intercept II. In Intercept, you do not act on anything to which Jones has a right when you instruct your agent to destroy the check. But in Intercept II, the check has already arrived and been cashed. Thus, the money is clearly his, and so taking it from him would involve acting on something to which he has a right. We can also distinguish Duck II from Enable. In both of those cases, you act on a car, but not on Jones. However, in Enable Jones has a right to the car, whereas in Duck II he does not. Thus, it is only in Enable that you act on something to which Jones has a right.25 To avoid misunderstanding, it is worth emphasizing that the doctrine I am making use of here is not the proposition that if B has a right to O, then acting on O without B’s consent infringes upon B’s right to O. One cannot so much as say “Hello” to someone without acting on that person. But knowingly inflicting harm on someone by acting on him is a different matter. To say “Hello” to someone in order to distract him so that he doesn’t notice the rattlesnake in his path, for example, would typically infringe upon his right of self-ownership. I say “typically” and not “always” because harming someone by acting on something to which she has a right does not always infringe upon rights. Consider, for example, the criminal

a consequence of o’s possession of p, and (2) there is a spatiotemporally continuous causal chain from one of a’s basic actions to o and consequently to o’s possession of p. I owe the model airplane example and my appreciation of the need for greater precision here to David Haslett. For an alternative analysis of such cases, see his “Murder and the Exception for Fair Competition,” Social Theory and Practice 29, no. 4 (2003): 631–54. 25. Notice that cases like the ones we have been considering reveal that the right to life is not, as many have mistakenly assumed, a component of the right of self-ownership—at least if we want to say that all unjust killings violate the right to life. Granted, in most cases of unjust killing, one infringes upon the right of selfownership. If I murder someone by shooting them, clubbing them, knifing them, or pushing them off a precipice, to use some commonplace examples, I act on my victim’s body in a way that causes his or her death, and so I infringe upon her right of self-ownership. However, one can also commit murder by violating rights other than the right of self-ownership. In Enable you murder Jones by violating his right to his car; and in Intercept II, you murder Jones by violating his right to his money.

55

WAR A ND INDIVIDUAL RIGHTS

who is justly incarcerated. He has a right to his own person (though he may have forfeited part of that right), but harming him by sending him to prison does not infringe upon his rights. In general, when someone is an appropriate object of punishment, or can justifiably be harmed by being forced to make reparations, or can justifiably be harmed in defense of self or other, it is possible to justly harm that person by acting on him. Another way to justly (or at least not unjustly) harm someone by acting on him is to use rational persuasion to convince him to do something that results in his being harmed. Explaining to a fellow soldier why he ought to obey his order to go on a dangerous mission would be an example.

3.7. THREE OBJECTIONS None of the cases we have considered thus far presents any difficulty for our nascent rights-based alternative to DDA, but let us turn to an examination of cases that might appear to do so. I want to consider three such cases, each of them a variant of Enable. In the first, you have unwittingly left your own car on the trolley tracks, and now you are faced with the choice of rescuing your car by moving it off the tracks or rescuing Jones by leaving it where it is. If you rescue your car simply to avoid the inconveniences and minor expenses that would attend its loss (we’ll assume that your insurance covers trolley collisions), then you are quite clearly a murderer. But it might be supposed that since the car is your own, Jones does not have a right to it, and so rescuing the car does not involve acting on anything to which Jones has a right. And if this is so, then it is difficult to see how we can explain the injustice of rescuing the car without appealing to a right (e.g., Jones’ right not to be killed) that rests on the distinction between doing harm and allowing harm and hence introduces DDA into the analysis. This is a serious objection, but I believe that it can be overcome by appealing to negative need rights of the sort identified in chapter 2. Granted, Jones does not have a property right to the car in the 56

R ights and H arm

revised example, but he does have a need right to use that car as a shield to save his life. Accordingly, if Jones is killed by the trolley because you move the car, then his death is a consequence of your acting on something to which he has a right.26 A second objection to my rights-based alternative to DDA is based on a comparison of the case we have just considered with another variant of Enable. In this second variant, your car is not on the tracks, but you have adequate time to move it onto the tracks and leave it there, thereby shielding Jones from the trolley. Moving the car off the tracks in the first variant of Enable would constitute criminal homicide, but failing to move it onto the tracks in the second variant would not, and many will be inclined to say that it would be much less wrong. In both cases, you own the car and Jones needs to use your car as a shield; so the cases might seem to be on a par insofar as rights are concerned. But then it appears that distinguishing this pair of cases requires an appeal to DDA.27 One might respond to this objection by insisting that, contrary to DDA, there is no moral difference between the two cases, that your action in the first case and your inaction in the second are equally wrong because they equally infringe upon Jones’ need-based right to use your car as a shield. But I want to argue that a rights-based analysis of these cases can accommodate the rather common intuition, reflected in law, that there is a moral difference between them. The analysis proceeds as follows: In the first case, even though you have a property right to the car, Jones has a need right to use it as a shield. This negative right limits your property right so that Jones temporarily has the power to exclude acting on the car in a way that interferes with his needed use. Thus, you violate Jones’ need right when you move your car, and so the harm you inflict on Jones is unjust. In the second case, on the other hand, you do not violate a 26. The sort of need right to which I am appealing here is not limited to intentional uses of needed objects. Even if Jones is unaware that your car is on the tracks, he would have a right to unknowingly use your car as a shield. 27. This objection was inspired by a pair of cases introduced by Boorse and Sorensen (“Ducking Harm,” 127).

57

WAR A ND INDIVIDUAL RIGHTS

negative right by failing to move the car in front of Jones. If you do violate Jones’ rights, it is because he has a right against you to positive aid. But this positive right, if it exists, is weaker than Jones’ negative right in the first case. For in the second case Jones’ having a right to positive aid would amount to his having a right to use you to move your car, and your right of self-ownership (and, at a deeper level, the value of autonomy) constitutes a strong reason not to recognize such a right, and to limit its strength even if, on balance, it ought to be recognized. Thus, the harm that Jones suffers as a result of your failure to come to Jones’ aid in the second case is either not unjust at all, or else is less unjust in virtue of violating a right to positive aid rather than a negative need right. A third objection to the rights-based alternative to DDA arises if we modify Enable once again, this time by supposing that some third party owns the car and has unwittingly left it on the trolley tracks. You take the car as the only means of reaching the hospital in time to receive life-saving medical attention even though you know that Jones will be killed by the trolley as a consequence of your doing so. In this case, both you and Jones need to use the car, his life depending on its use as a shield and your life depending on its use as transportation. That means that any need-based claim Jones might have to use the car would be counterbalanced by your competing need-based claim. Thus, assuming that your taking the car at the expense of Jones’ life is unjustified, it might be supposed that this fact cannot be explained without appealing to DDA. I am prepared to concede (and I suspect that most would be inclined to agree) that your taking the car is unjustified in the case at hand. Moreover, given your own need to use the car, this cannot be explained in terms of Jones’ possession of a need right to use the car. Nevertheless, an appeal can be made to Jones’ possession of a right of first arrival. Consider once again the standard example of two persons from the sinking ship, each trying to secure the single life preserver (adequate for keeping only one person afloat). Neither owns the preserver and each needs it for survival. Furthermore, each is morally permitted to swim as fast as she can to get to it; but 58

R ights and H arm

once one of them has her hands on it, she has a right of first arrival to use it, and it would be murder should the other wrest it from her. It seems plausible to suggest that in the case at hand your using the car to save your own life is wrong for precisely the same reason it would be wrong to wrest the life preserver from the one who reaches it first; for Jones has a right of first arrival to use the car as a shield, and hence you do act on something to which he has a right when you take the car. Of course, some may be inclined to say that it is permissible for you to use the car to save yourself. But I suspect that at least most of them would say this precisely because they would also be inclined to say that Jones does not have a right of first arrival to the use of the car.

3.8. RIGHTS AND INTENTIONS I have suggested that harming a person b by acting on some entity o to which b has a right without b’s consent typically (though not always) infringes upon b’s right to o. I have not, however, suggested that harming a person b by acting on some entity o to which b has a right is the only way to infringe upon b’s rights. Where b’s right is a positive one, infringing upon that right typically does not involve acting on anything to which b has a right. Thus, given that an adequate theory of rights will recognize some positive rights, a rights-based alternative to DDA has the resources to handle cases such as that of the child who dies because the parent neglects to feed her. There is no need to resort to such sophistries as re-­describing the parent’s omission as “the act of starving her child”; for even though the parent merely allows the child to die, the child’s death is an instance of unjust harm because the child has a positive right against her parents to their care. The same can be said about the physician who murders by deliberately refraining from turning on her patient’s respirator (which must be turned on every morning to sustain the patient’s life). Presumably, the patient would have a positive right to his physician’s turning on the respirator. 59

WAR A ND INDIVIDUAL RIGHTS

These positive rights are examples of rights that are generated by the voluntary behavior of the person against whom the right is held. But moral common sense (as well as the law) also recognizes positive rights that are not generated in this way. In one kind of case, if someone comes into possession of another person’s property, the property owner has a right against her that she surrender his property to him upon demand even if this requires certain positive actions on her part, and even if she is not responsible for the property in question being in her possession. Suppose, for example, that Jones’ coat is next to yours on the coat rack, and that he mistakenly puts his medicine in the pocket of your coat. If he suddenly needs the medicine to avoid death, you commit murder by omission if you knowingly allow him to die by refraining from surrendering to him the medicine he owns and needs. DDA is threatened by this sort of example; my rights-based alternative to DDA is not. Another way to infringe upon a person’s rights that need not involve acting on something to which that person has a right is to risk harmfully acting on something to which someone has a right. If you shoot at someone in an attempt to commit murder, for example, you violate your intended victim’s rights even if you miss. Moreover, this violation is not merely a consequence of the psychological harm that shooting at someone would ordinarily inflict even if no physical harm is done. Consider the malicious sniper who enjoys playing Russian roulette, but always does so covertly and from a great distance. Those who are not killed because there is no bullet in the relevant chamber when the sniper pulls the trigger may never know that their lives were put at risk, but by being exposed to a substantial risk of being shot and killed, their rights have been violated. Other ways of infringing upon a person b’s rights require certain intentions. Deliberately seeking to frustrate the ends of another is one sort of example. The most extreme case of this would be someone who has as an end the frustration of any and all of b’s ends (whatever they might be). Even if she does not act on anything to which b has a right, she might violate b’s right to liberty by, say, deliberately stepping into b’s path to block b’s way; and if interests 60

R ights and H arm

protected by b’s right to liberty are damaged as a consequence (e.g., b misses his bus), this would be an instance of unjust harm. That we would regard the behavior in question as an infringement of b’s right to liberty and the harm that results as unjust harm makes sense given that the right to liberty partly constitutes a right of selfownership grounded in the value of autonomy. For what could display greater disrespect for autonomy than making the frustration of another person’s ends one’s own end? Notice that on this view intentions play a role in determining whether there is an infringement upon the right to liberty. If I block your path as a foreseen side effect of pursuing my own ends, then absent special circumstances (e.g., my promise not to block your path), I do not infringe upon your rights. But if my objective is to block your path, then absent special circumstances (e.g., your consent), I do infringe upon your right to liberty. The crucial difference is that making the frustration of someone else’s end your own end would be a greater affront to that person’s capacity for autonomy. Warren Quinn identifies another role that intentions play in determining whether there is an infringement upon a right. As mentioned above, he suggests that that in cases where one does not act oneself, but intends the harmful action of something under one’s control, one’s behavior is closer in nature to doing harm than to allowing harm. He illustrates the point with two cases: “Rescue III” and “Rescue IV.” He describes Rescue III as follows:28 We are off by special train to save five who are in imminent danger of death. Every second counts. You have just taken over from the driver, who has left the locomotive to attend to something. Since the train is on automatic control you need do nothing to keep it going. But you can stop it by putting on the brakes. You suddenly see someone trapped ahead on the track. Unless you act he will be killed. But if you do stop, and then free the man, the rescue mission will be aborted. So you let the train continue. 28. Quinn, “Doctrine of Doing and Allowing,” 299.

61

WAR A ND INDIVIDUAL RIGHTS

He then describes Rescue IV: Suppose . . . you are on a train on which there has just been an explosion. You can stop the train, but that is a complicated business that would take time. So you set it on automatic forward and rush back to the five badly wounded passengers. While attending to them, you learn that a man is trapped far ahead on the track. You must decide whether to return to the cabin to save him or stay with the passengers and save them.

Quinn provides the following useful analysis of the moral difference between the two cases: In Rescue III, but not in Rescue IV, the train kills the man because of your intention that it continue forward. This implicates you, I believe, in the fatal action of the train itself. If you had no control, but merely wished that the rescue would continue or if, as in Rescue IV, you had control but no such wish, you would not be party to the action of the train. But the combination of control and intention in Rescue III makes for a certain kind of complicity. Your choice to let the train continue forward is strategic and deliberate. Since you clearly would have it continue for the sake of the five, there is a sense in which, by deliberately not stopping it, you do have it continue. For these reasons your agency counts as positive.

In section 2 I rejected Quinn’s interpretation of DDA, but his general point here is a good one and does not depend on that interpretation. Moreover, it is a point that will have important implications in both chapter 6, where I argue that the principle of double effect has no relevance to the ethics of war, and chapter 10, where I consider the liability of noncombatants who authorize unjust war. Adapting the point to my rights-based alternative to DDA, we can say that if one has control over whether a causal process begins or continues, and that causal process alters an object to which some individual has a right, and as a consequence of that alteration interests protected by 62

R ights and H arm

that right are damaged, then one’s intending that causal process to begin or continue can infringe upon a right. Quinn’s position on the role of intentions in DDA has been criticized by Frances Kamm.29 However, I believe that, appropriately adapted to my rights-based alternative to DDA, his basic point survives that criticism. As we have just seen, Quinn wants to draw a distinction between intending the action or movement of an object under one’s control and intending the inaction of an objection under one’s control. Only the former will count as a doing on his interpretation of DDA. Kamm rightly finds the placement of a line there odd. She writes: [T]here is an oddity in focusing on omitting to act because one intends the movement of an object; this sort of intention implies that there is an important moral distinction between (1) a case in which someone refuses to remove water from a tub when he sees that this is the way to save a child from drowning, because he intends that the water remain at a certain high level, and (2) a case in which someone omits to save the child whom he sees is about to be drowned if water rises because he intends the water level to move upwards. Drawing a moral distinction here seems odd, because, in both cases, one intends some state of the world–whether it is a moving object or not, the action of an object or its inaction–that causes the death. 30

On my rights-based alternative to DDA, the crucial question is not whether there is an intention that an object under one’s control move or act, but whether there is an intention that a causal process begin or continue. Water’s remaining at a certain high level is no less a causal process than water’s rising to a high level. Given that someone who can prevent or stop either process intends that process to begin or continue, and given that the process in question ultimately reaches and alters the child in ways that harm the child, both cases involve an infringement on the rights of the child. 29. Frances Kamm, Intricate Ethics (Oxford: Oxford University Press, 2007), pp. 78–82. 30. Kamm, p. 79. 63

WAR A ND INDIVIDUAL RIGHTS

Kamm has another objection to Quinn’s view that I can escape, but only by refining that view. Contrary to what Quinn affirms, Kamm argues that the intentions of the rescuer in Rescue III do not play any role in making the rescue impermissible. Her argument relies on a variant of that case in which “we” (the rescuers) go to the back of the car to help the five, but we do so “only because we intend that we not be available to prevent the car continuing on the road because we intend that it continue.”31 Both Quinn and I appear to be committed to saying that, as a consequence of our intentions, it is impermissible for us to save the five in this case, and, as Kamm points out, that appears to be the intuitively wrong result. I agree that it is the wrong result, but I want to say that in this variant what we do that is impermissible is to save the five with the intention that the car continue on the road. That does not imply that it is impermissible for us to save the five. After all, were we to save them for the reasons we save them in Rescue IV, we would act permissibly. Kamm has other criticisms of Quinn’s position on intentions and DDA, but they do not apply to my own rights-based alternative to DDA, and I omit discussing them here. I also omit addressing the issue of whether an infringement upon rights of the peculiar sort we have been considering in this section is no less difficult to justify than harming someone by acting on something to which she has a right. We needn’t resolve that issue here, nor do we need to identify every species of unjust harm. Enough has been said about what counts as unjust harm, I think, to move forward to the question of what individuals may do to defend themselves or others against a threat of unjust harm.

31. Kamm, p. 80.

64

[ 4  ] LIA BILIT Y TO DEFENSE

If war is ever justifiable, it must be possible to justify injuring and killing large numbers of people in spite of their possession of the rights we have been discussing in the last two chapters. My own view, shared by many other contemporary just war theorists, is that the sort of justification that must do the lion’s share of the work in justifying recourse to war, and violence in war, is the one that is typically available to any individual or group when the only way to prevent unjust aggression from taking life is to take the life of the aggressor. I refer to that justification as “the appeal to defense” (using the term “defense” to encompass both self-defense and other-defense). I develop an account of the appeal to defense, identify some of the virtues of that account, and argue that it is superior to certain prominent alternatives. One clarification before I begin: Moral philosophers sometimes distinguish “evidence-relative” (or “subjective”) justifications from “fact-relative” (or “objective”) justifications. Thus, if I observe that someone has begun shooting his gun at what appears to be a young child, then (based on the information I have) I may have an adequate evidence-relative justification for killing the gunman in defense of his potential victim. Nevertheless, if the individual who looks like a child is actually a terrorist disguised as a child and is attempting to detonate a bomb in a crowded marketplace, then defense on my part might well be a terrible though understandable mistake, and so it is likely that I lack a fact-relative justification for killing the gunman. When I speak of the “appeal to defense,” I am referring to a fact-­relative justification. What I develop and defend in this chapter, then, is an account of a certain fact-relative justification 65

WAR A ND INDIVIDUAL RIGHTS

for inflicting harm in defense of self or other. Although I do not here discuss the corresponding evidence-relative justification, it can be derived from the fact-relative one coupled with the relevant epistemic standards. In American law the standard is typically “reasonable belief,” and so inflicting harm is legally justifiable on grounds of defense only if the defender reasonably believes that the person she harms poses a threat of harm. I believe that the moral standard is higher than that, but I do not argue that point here.

4.1. THE RIGHTS ENFORCEMENT ACCOUNT Most contemporary accounts of the appeal to defense are justicebased. For a variety of reasons I ignore the most obvious alternative to a justice-based account, namely, a utility-based account. As briefly discussed in chapter 1, the ethics of self-defense is itself a good reason to reject act-utilitarianism. It defies not just common moral intuition, but moral common sense, to suppose that the innocent victim of malicious and unjust aggression can justifiably defend herself only if she can thereby maximize utility. A rule-utilitarian account of the appeal to defense is more plausible, but if the motivation for such an account is to align utilitarianism with common moral intuition, such an account will not achieve its aim; for there is no way to determine what moral code would maximize utility, and hence it would be pure speculation to suggest that such a moral code would not contradict common moral intuition in cases of defense. Justice-based accounts of the appeal to defense are attempts to explain the moral permissibility of defense in at least some of the relevant cases1 in terms of desert, fairness, moral rights, 1. An account of the appeal to defense does not need to explain the permissibility of defense in all cases of permissible defense, for the appeal to defense is only one of many possible justifications for an act of defense. Such an account does need to explain the permissibility of defense in the “relevant cases,” namely, those cases in which the appeal to defense provides an adequate justification for an act of defense. Most extant accounts of the appeal to defense are incomplete in that they offer an explanation of the permissibility of defense in some but not all of the relevant cases.

66

L iability to D efense

or some unanalyzed notion of justice. I believe that an adequate ­justice-based account of the appeal to defense must be rightsbased. The account I offer appeals to the fact that harming an aggressor in the relevant cases eliminates or at least reduces the threat of unjust harm posed by the aggressor, where to pose a threat of unjust harm is to behave in such a way that, barring preventive action, one will infringe upon rights and thereby jeopardize interests protected by those rights. Because the account emphasizes the role of defense in enforcing rights, I call it a “rights enforcement account.” Two virtues of such an account can be identified immediately. First, a rights enforcement account can explain why defense against unjustified aggression can itself be unjustified even if the usual restrictions on the appeal to defense (necessity, proportionality, and discrimination) are satisfied. Suppose, for example, that I freely and knowingly consent to be struck. (Perhaps I want to prove to you that I am fearless.) Then in spite of my consent, you (morally) ought to refrain from striking me; for there is nothing of significant value to be gained by striking me, and doing so might cause serious harm. Nevertheless, my striking you to prevent you from striking me would be unjustified. The proponent of a rights enforcement account can explain this fact in a most natural way; for, by consenting to be struck, I waive my right not to be struck, and so my preventing you from striking me would not enforce my rights. A rights enforcement account can also explain why in certain circumstances the appeal to defense can justify defense against justified aggression. Suppose that through no fault of our own, I will be killed unless I throw a punch at you. (Perhaps I am an undercover police officer who will be murdered by thugs if I do not engage in thuggish behavior to convince them that I am one of them.) Then it is permissible for me to throw a punch at you. Nevertheless, so long as my life depends only on throwing a punch and not on landing one, you can justifiably strike me if that is the only way to prevent me from striking you. On a rights enforcement account, self-defense 67

WAR A ND INDIVIDUAL RIGHTS

is permissible here because my aggression, though justified, nevertheless threatens your right not to be struck.2 The central principle of my rights enforcement account is one that anyone who recognizes the existence of natural rights should find appealing. Given that I am using the expression “unjust harm” to refer to any damage to an interest protected by a right that is a consequence of an infringement upon that right, the principle can be stated as follows: The enforcement principle: If one can enforce rights (i.e., eliminate or reduce a threat of unjust harm) without infringing upon rights, then (ceteris paribus) doing so is morally permissible.

The just individual has an interest in preventing injustice, but not at the expense of committing an injustice. Justice opposes committing murder, for example, even if ten murders can be prevented by committing only one. 3 Justice does not, of course, recommend inflicting harm whenever one can do so without infringing upon rights. Even if embryos lack a right to life, for example, justice does not counsel killing embryos. In standard cases of justifiable defense, however, harming the aggressor in defense of his potential victim serves the ends of justice by enforcing rights. Moreover, it serves those ends without infringing upon rights, for in standard cases of justifiable defense the aggressor lacks a right not to be harmed in defense of his potential victim. Thus, the enforcement principle explains the permissibility of defense in the standard cases.

2. As mentioned in chapter 1, I follow many others in assuming that some infringements upon rights are justifiable and others are not, and I use the phrase “violating a right” to mean “unjustifiably infringing upon a right.” 3. If by committing one murder one can prevent, say, 100,000 murders, then many deontologists (including myself) will say that it is permissible to commit the one murder (more on this in chapter 7); but even if murder can be justified in such a case, it remains an open question whether justice provides the justification or justice’s opposition to murder is overridden by considerations of well-being.

68

L iability to D efense

The “ceteris paribus” clause in the enforcement principle is necessary because there can be moral considerations that might require one to forgo enforcing a right even when enforcement would not infringe upon rights. Suppose I can prevent a car theft, but only by using pepper spray on the would-be thief. Ceteris paribus, it may be permissible for me to do so, as I would enforce the rights of the car owner without infringing upon anyone’s rights. Suppose further, however, that if I take the time to defend the rights of the car owner, I will not be able to stop a child from being exposed to danger by chasing a ball onto a busy street. Not stopping the child would not infringe upon anyone’s rights, but I think it could very well be morally wrong to defend the rights of the car owner instead of stopping the child. If that is correct, then we have an example of an action that is morally impermissible even though it enforces rights without infringing upon rights.

4.2. DEFENSE AGAINST THE INNOCENT Developing a rights enforcement account requires identifying conditions sufficient for an aggressor’s lacking the right not to be harmed in defense of his potential victim; and correctly identifying those conditions requires an understanding of the role that responsibility plays in the ethics of defense. The following set of examples makes this clear. Suppose that ten people jointly attack and thereby pose a threat to someone’s life. Suppose further that you must kill all ten to save the life of their potential victim. Now compare four versions of the case: 1. Only the aggressors are morally responsible for the attack. They and their potential victim just happen to cross paths, and their response to her friendly “good morning” is a malicious attempt on her life. 2. No one is at fault for the attack. The aggressors are rendered temporarily insane by a bad batch of radishes. (Who would 69

WAR A ND INDIVIDUAL RIGHTS

have thought?) Once again, the potential victim of the attack just happens to be in the wrong place at the wrong time. 3. Both the aggressors and their potential victim are partly at fault, for the attack is an unjustified though somewhat understandable expression of outrage in response to an incident in which the potential victim culpably inflicted severe injuries upon the aggressors. 4. Only the potential victim of the attack is morally responsible for it. The aggressors act from uncontrollable violent impulses, caused by a violence-inducing drug that their potential victim, a pharmacist, deliberately and maliciously mislabeled and sold to them.

The first and last versions of the case are easy: (ceteris paribus) defense on your part is justified in the first, unjustified in the last. The other two versions of the case are difficult. Some will regard defense on your part as justified in the second version, others will not. As for the third version, one is apt to complain that it is underdescribed. At a minimum, one wants to know the severity of the injuries, whether the potential victim caused those injuries deliberately or through mere carelessness, and whether justice through a criminal conviction or civil suit was available. The less culpable the aggressors and the more culpable their potential victim, the less inclined we are to say that defense is permissible. In this version of the case as well as in the others, considerations of comparative responsibility are clearly in play, and an adequate account of the appeal to defense will recognize the relevance of such considerations. Can a rights enforcement account adequately incorporate those considerations? One might suppose not, for certain cases in which no one is responsible for a threat appear to undermine the account. Consider again the second version of the case above. My own intuition is that you may not kill the ten to save the one in that version of the case. Suppose, however, that there is only one aggressor rather than ten and that you are the potential victim. Then I suspect that most would be inclined to say that self-defense on your part 70

L iability to D efense

is permissible. Notice too that the presence of aggression does not appear to play a crucial role here. In Robert Nozick’s well-known example, a man who could not have avoided being thrown down a well will land on you (you happen to be at the bottom of the well) and kill you, but will not himself be harmed unless you disintegrate him with your ray gun, thereby saving your own life at the expense of his.4 Here we have a threat, but no aggression; nevertheless, the intuition that you can permissibly kill the falling man in self-defense appears to be the common one. Assuming that self-defense is permissible in such cases, it is not clear that a rights enforcement account can explain why this is so; for it is difficult to make sense of the idea that in such cases there is a threat to rights. Given the correlativity of rights and obligations, if you have a right against Nozick’s falling man that he avoid landing on and thereby killing you, then he is under an obligation to you to avoid landing on and thereby killing you; and one might well wonder how someone can have an obligation to avoid something that is unavoidable. Nevertheless, I would need to be persuaded that Nozick’s falling man is not under an obligation to you to avoid falling on you. Granted, obligations normally constitute reasons to behave in a way that discharges the obligation, and Nozick’s falling man cannot possibly have a reason to avoid the unavoidable. It is not clear, however, that where there is an obligation, there must also be a reason for action. If you promise to do the impossible, for example, I am inclined to think that you are under an obligation to fulfill your promise even though you cannot possibly have a reason to do so. “Ought” implies “can,” but “obligation” (in the sense in which rights and obligations are correlatives) need not imply “can.” At the very least, then, it is not an obvious conceptual truth that obligations always constitute reasons. To be frank, I am uncertain whether Nozick’s falling man poses a threat to rights. Even if he does not pose such a threat, however, cases 4. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), 34.

71

WAR A ND INDIVIDUAL RIGHTS

like Nozick’s falling man do not provide a good reason to reject the rights enforcement account; for it appears that no uniform account of the appeal to defense can preserve all of our intuitions about cases of threats for which no one is responsible. Consider another case: The Man Who Fell. Smith cannot avoid being thrown down a well and landing on Jones (who happens to be at the bottom of the well). Both sustain injuries, but Jones, a physician, recognizes that only her injuries are life-threatening: without immediate medical attention, she will die. Her spirits are lifted when trained rescuers arrive immediately, but she is subsequently disappointed when she realizes that they do not speak her language and, failing to appreciate the severity of her injuries, prepare to hoist Smith from the well first. Knowing that she will die if Smith is lifted from the well before she is, she recognizes that her only path to survival is to (surreptitiously) kill Smith so that the rescuers ignore him and immediately focus their attention on her.

If Jones dies because she does not kill Smith, then he will have killed her. I suspect, however, that the common intuition in this sort of case is that killing for the sake of self-preservation is impermissible. I know of no account of the appeal to defense that successfully distinguishes cases like The Man Who Fell from cases like Nozick’s falling man. Nor should this be surprising, for what could possibly count as a relevant difference between the two cases? You must kill Nozick’s falling man in order to prevent his future behavior (or perhaps we should say “the future behavior of his body”) from killing you; Jones must kill the man who fell in order to prevent his past behavior from killing her. As Jeff McMahan puts it in reference to a similar pair of cases, “[I]t is hard to see how this mere difference in timing . . . could by itself make a decisive moral difference.”5 5. Jeff McMahan, The Ethics of Killing (New York: Oxford University Press, 2000), 406. McMahan concludes that common moral intuition in cases like that of Nozick’s falling man is mistaken. Michael Otsuka also reaches this conclusion. See his “Killing the Innocent in Self-Defense,” Philosophy & Public Affairs 23, no. 1 (1994): 74–94.

72

L iability to D efense

Moreover, suppose that we alter The Man Who Fell so that Smith deliberately pushes Jones down a well in an attempt to murder her and then accidently falls down the well himself. Then I strongly suspect that most of us would say that Jones can permissibly kill Smith if that is the only way to prevent Smith’s attempt at murder from being successful. Or suppose Nozick’s example is altered so that a third party to whom you are a stranger is the one with the ray gun. Then the common intuition, I suspect, is that the third party should not “play God” by killing the falling man to save your life. It is difficult to see how any uniform account of the appeal to defense could possibly conform to all of these intuitions. Thus, it seems likely that, at worst, a rights enforcement account will join every other uniform account of the appeal to defense in failing to accommodate all of our intuitions about defense. But perhaps a rights enforcement account can do better than that, for there is a plausible debunking account of common intuition with respect to cases like Nozick’s. It is not unreasonable to suggest that your killing Nozick’s falling man in self-defense seems to be permissible because it is actually excusable. After all, a variety of excuses will be available to you if you do disintegrate the falling man in self-defense: you were in a terrifying situation, you had to make a split-second decision, your resistance may well have been an instinctive fight-or-flight response, and if your position and that of the man you killed had been reversed, in all probability he would have killed you. The hypothesis that killing Nozick’s falling man is merely excusable can account for some of our other intuitions as well. It provides an explanation of why so many of us are inclined to say that if a third party to whom you are a stranger is the one with the ray gun, she cannot permissibly kill Nozick’s falling man in your defense; for such an act, if excusable at all, would be much less excusable than killing the falling man in self-defense, or in defense of a loved one. It can also be used to explain why self-defense seems impermissible in The Man Who Fell. Jones’s decision to kill Smith in that case would be a calculated one, not an instinctive, split-second decision; and it 73

WAR A ND INDIVIDUAL RIGHTS

is not unreasonable to think that most people would refrain, or at least are psychologically capable of refraining, from taking life in such circumstances.6 Although a rights enforcement account may not provide a justification for defense in cases of threats for which no one is responsible, it does provide a justification for defense in certain cases of threats for which no one is at fault. Consider, for example, Mistake I. Someone reaches for his gun because, through no fault of my own, he reasonably though mistakenly believes that I pose an immediate threat to his life. I grab my own gun and shoot him in self-defense.

Here the aggressor is morally innocent—i.e., not morally blameworthy for posing a threat to my life—but he is in one ordinary sense responsible for posing a threat of unjust harm because he is, or at least ought to be, aware that he might be mistaken in his belief that I pose a threat to him. He avoidably takes a moral risk in deciding to fire his weapon at me, a risk of posing a threat of unjust harm. Because that risk is being realized, killing him in self-defense does prevent him from inflicting unjust harm. Thus, a rights enforcement account can explain why killing him in self-defense is permissible. It might be objected that if I affirm that the aggressor would violate my rights should he innocently kill me in Mistake I, then I am committed to the conclusion that violations of rights occur in cases where clearly there is no violation of rights. Consider, for example, 6. An alternative approach is to abandon the project of developing a uniform account of the appeal to defense and to treat Nozick’s falling man as belonging to a class of cases that requires its own special account. One might, for example, attempt to explain the permissibility of killing Nozick’s falling man in terms of some Hobbesian principle of reciprocity that permits “defensive violations” of moral rules. If most of us would kill Nozick’s falling man in self-defense, then arguably it is permissible for you to “do unto others as they would do unto you.” Gregory S. Kavka defends this sort of principle in “When Two ‘Wrongs’ Make a Right: An Essay on Business Ethics,” Journal of Business Ethics 2, no. 1 (1983): 61–6. Another possibility is to develop an account of “competition cases” that implies that cases like Nozick’s falling man is a case of that sort.

74

L iability to D efense

the case of the physician who performs a surgery on someone who is unconscious and so incapable of consenting to it. Suppose that, although the surgeon is acting responsibly because surgeries of this sort under these circumstances almost always save the patient’s life, on this occasion something (unavoidably) goes wrong and the surgery takes the life of the patient. I suspect that most of us will want to say that the surgeon did not violate her patient’s rights (and hence never posed a threat to those rights) even though she did kill an innocent person. How is this case different from Mistake I? The answer I believe is this. The surgeon’s actions are more likely to save her patient’s life than take it. Thus, she provides compensation for the risks of the surgery. Accordingly, no right is violated when one of those risks is realized.7 The following principle, then, can be used to distinguish cases like Mistake I from cases like that of the physician: If (i) an agent s freely and knowingly risks performing some action a, (ii) s does not provide compensation for that risk, (iii) s’s freely and knowingly performing a would pose a threat to a right, and (iv) the risk is realized (i.e., s does perform a), then s poses a threat to a right.

This principle is recommended by the fact that it gives the intuitively correct answer in Mistake I. The aggressor in that case freely and knowingly risks shooting at an innocent person, he does not provide compensation for that risk, the risk is realized, and his knowingly shooting at an innocent person would pose a threat to that person’s rights. Thus, on the proposed principle the aggressor does threaten my rights. The principle is also recommended by the fact that it does not yield the mistaken conclusion that when our physician is about to perform the surgery she poses a threat to the rights of her patient. The surgeon knowingly risks posing a lethal threat to her patient, for any surgery carries with it a risk of fatal complications, and knowingly posing a lethal threat to her patient 7. This sort of appeal to ex ante compensation is explored further in chapter 7.

75

WAR A ND INDIVIDUAL RIGHTS

would pose a threat to his rights. However, condition ii is not satisfied: the risk that the surgeon takes is offset, and compensated for, by the expected benefits she provides.

4.3. DEFENSE OF THE GUILT Y As illustrated by the cases numbered 3 and 4 in section 2, an account of the appeal to defense must be sensitive not only to whether the aggressor is responsible for the threat he poses, but also to whether the aggressor’s potential victim is responsible for that threat. If (as in 4) the potential victim is the only responsible party, then defense is typically impermissible. Moreover, even if (as in 3) both the aggressor and his potential victim bear some responsibility for the relevant threat, defense may be impermissible in virtue of the potential victim’s greater share of responsibility. Consider, for example, Mistake II. On a dare, I strap a fake bomb onto my torso and pretend to be a suicide bomber. As a predictable result, a passerby reasonably though mistakenly believes that I pose an immediate threat to the lives of others, and he reaches for his gun. I try to flee, but tripping over a gun that someone has carelessly left lying on the pavement, I fall to the ground. Finding the gun loaded, I realize that my survival depends on using it to kill the passerby in self-defense.

Here I cannot justifiably kill in self-defense (although to do so would be to some extent excusable), and it appears relevant that, although the aggressor and I both bear some responsibility for the threat he poses to my right to life in that each of us could have avoided the threat, he cannot be faulted for his behavior. My own behavior, on the other hand, was foolish and reckless, and I ought to have avoided that behavior partly because it could lead to my being attacked. Thus, unlike the one who poses the threat to my right to life, I am at fault (i.e., culpably responsible) for that threat. 76

L iability to D efense

Cases in which an aggressor’s potential victim bears some responsibility for the threat posed by the aggressor are not uncommon. In one common sort of case, someone exercises a right foreseeing that this will result in unjust aggression against him (e.g., someone refuses to hand over his wallet to a robber even though this predictably results in an attempt on his life). Typically defense is justified in such a case even if exercising the right rather than avoiding the threat is not. However, if the aggressor is innocent, or culpable only to a small degree, and exercising the right is of little or no importance, then defense may be impermissible. Suppose, for example, that a police officer’s innocent threat to my life is a foreseen consequence of my insisting on exercising a rather trivial right. Perhaps I know that because I am a dead ringer for the suspect in a series of drive-by shootings of police officers, pulling my car into a parking space between two occupied police cruisers is apt to be misunderstood. Then not only should I park elsewhere, but having exercised my right to park between the police cruisers, I cannot justifiably kill in self-defense in response to the predictable threat to my life that ensues. In a second and perhaps even more common sort of case, the potential victim of aggression provoked the aggression. Sometimes defense is justified in such a case. Even a mild verbal insult may provoke a serious physical assault, but self-defense is not thereby rendered impermissible. On the other hand, if the provocation is severe, and especially if it is severe relative to the seriousness of the provoked threat, then defense is apt to be unjustified. Suppose, for example, that a woman, having on many occasions suffered serious physical abuse by her husband, understandably though unjustifiably attempts to strike him. It would then be morally wrong to strike her in defense of her husband.8

8. Not everyone’s intuitions support my argument here. See David Wasserman, “Justifying Self-Defense,” Philosophy & Public Affairs 16, no. 4 (1987): 356–78.

77

WAR A ND INDIVIDUAL RIGHTS

In all of these examples, if defense is impermissible, then the potential victim is not innocent: he is partly to blame for the threat to his own rights. However, as illustrated by cases in which, although there is provocation, the provocation is slight relative to the seriousness of the threat, defense is sometimes permissible even if the defended individual is not innocent. The natural way to handle such cases is to suppose that, at least typically, justice permits harming the aggressor in defense of his potential victim only if the aggressor is, in the relevant sense, more responsible than his potential victim for the relevant threat. That would explain why defense is impermissible in Mistake II, for only the aggressor’s potential victim is culpably responsible for the threat in that case. It would also explain why defense in cases of provoked aggression can be permissible or impermissible, depending on the severity of the provocation relative to the seriousness of the threat. If the provocation is mild and the threat relatively serious, then the aggressor is apt to be more at fault than his potential victim and defense is justified; but if the provocation is severe and the threat is relatively unserious, then the potential victim of the aggression is apt to be the more culpable party and defense is unjustified. As for cases in which someone exercises her rights knowing that this is likely to result in unjust aggression, the aggressor is almost always the one who is more at fault, and so defense is typically permissible even if the potential victim of the aggression should have avoided the aggression by not exercising her rights. On the other hand, if the aggressor is morally innocent and his potential victim ought to have avoided the threat by not exercising a right, then defense may be impermissible because the potential victim may be the only culpable party.

4.4. THE DEFENSE LIABILIT Y PRINCIPLE The discussion thus far supports the following formulation of a “defense liability principle,” a principle that identifies conditions under 78

L iability to D efense

which an unjust aggressor lacks a right not to be harmed in defense of his potential victim: The defense liability principle (first formulation): If (i) an individual x poses a threat of unjust harm to a second individual y (i.e., x behaves in such a way that, barring preventive action, x will infringe upon y’s rights and thereby jeopardize interests protected by those rights) and (ii) x is more responsible than y for that threat, then (iii) (ceteris paribus) it would not infringe upon x’s rights to eliminate or reduce the threat by inflicting necessary and proportionate harm on x.

Under what conditions is a person x more responsible than a person y for an undesirable outcome o? The discussion thus far recommends the following principles: First, if (as in Mistake I) x alone could have avoided producing (or contributing to the realization of) o, then x is more responsible than y for o. Second, if (as in Mistake II) x but not y culpably plays a role in o’s realization, then x is more responsible than y for o. Third, if (as in the spousal abuse example) x and y both culpably play a role in o’s realization, but x is more blameworthy for the role x plays than y is for the role y plays, then x is more responsible than y for o. Culpability must be defined broadly in these principles because it is not limited to moral blameworthiness. One can be culpable because one’s behavior is foolish or imprudent, just as one can be culpable because one’s behavior is despicable or immoral. Indeed, in Mistake II the person most at fault for the threat to his own life is largely blameworthy and so culpable in virtue of his foolishness rather than his immorality. I am hesitant to offer a full account of the relevant notion of responsibility, but I can say that to bear any responsibility for an outcome requires, at a minimum, that one avoidably contribute to its realization. Moreover, because there can be degrees of avoidability, there can be degrees of responsibility. There are at least two general sources of unavoidability: inability and unknowability. If a man drowns, for example, I am not (to even the slightest degree) responsible for that outcome if I would have needed the swimming 79

WAR A ND INDIVIDUAL RIGHTS

skills of a porpoise to rescue him, or if I had no way of knowing that he needed my help. Whereas these exculpating excuses preclude responsibility for an outcome, an adequate justification for producing a bad outcome does not preclude responsibility because sometimes justifiable behavior is nevertheless avoidable. One difficult question is whether morally required behavior ought to count as unavoidable for the purposes of assessing responsibility and hence liability. I am inclined to say that it should, but here I leave that question open. Responsibility requires neither moral blameworthiness nor moral praiseworthiness for the reasons mentioned above, and also because one can be responsible for outcomes that are neutral, just as one can be responsible for outcomes that are good or bad. Nevertheless, given that one is responsible for some bad outcome, one’s degree of responsibility will depend partly on whether one has a mitigating excuse for producing (or contributing to the production of) that outcome. Coercion, for example, can provide a mitigating excuse, as can exhaustion, drunkenness, or avoidable ignorance. It might be objected that because excuses come into play only in cases of bad outcomes, I should withdraw my suggestion that one can be responsible for a good or a neutral outcome no less than a bad one. In reply, whereas excuses require something bad to excuse, excuses have counterparts in the case of a good or a neutral outcome. Suppose, for example, that I do save a drowning person. The extent to which I am praiseworthy for my behavior is diminished if I was coerced to do so. “Yes, I jumped into cold and dangerous waters to rescue the child, but don’t give me too much credit: I only did it because the child’s father pointed his gun at my head and told me he would kill me if I didn’t rescue his child.” Moreover, coercion can diminish responsibility even in the case of a neutral outcome. “Yes I chose chocolate rather than strawberry ice cream, but only because the chocolate fanatic pointed his gun at my head and told me he would kill me if I didn’t choose chocolate.” Again, the relevant notion of responsibility admits of degrees because it can be more or less difficult to avoid bringing about (or contributing to) an outcome. Specifying the relevant criteria for 80

L iability to D efense

assessing the level of difficulty would be difficult, and I do not attempt to do so here; but perhaps one reasonable measure of difficulty is the percentage of people who do or would avoid the behavior in question in relevantly similar circumstances. Credibly threatened with death, for example, most of us would be willing to commit serious crimes. Exhausted from lack of sleep, many of us will be irritable and less kind to others. Many people raised by abusive parents become abusers themselves. Of course, not all obstacles to avoiding bad behavior count as excuses. If I betray a friend for the sake of a job promotion, I cannot excuse my behavior by pointing out that most greedy people would have done the same. Only obstacles to avoidance that are suitably external to the character of the agent in question are relevant to assessing the difficulty of avoidance and hence the degree of responsibility. Support for this account of the relevant sort of responsibility can be found in the fact that nonmoral excuses often have the same structure that I am proposing for moral excuses. If Casey strikes out, for example, he might attempt to offer the excuse that the glare from the sun was really bad. That would mitigate the criticism he merits for his failure because it would demonstrate that success was more difficult than one might expect, and one measure of difficulty here is the percentage of batters that might be expected to strike out under similar circumstances. Moreover, not all obstacles to Casey’s success would count as excuses. If Casey were to suggest that he struck out because he wasn’t a good curve-ball hitter and the pitcher was throwing him curves, that suggestion would not excuse his bad performance. Only obstacles to success that are suitably external to the skill of the batter in question are relevant to assessing the difficulty of success and hence the blameworthiness of failure. Assessing levels of responsibility in this sort of way is not an exact science, of course. Thus, there may well be actual cases in which it is difficult to say who could have more easily avoided contributing to a threat of unjust harm and so who is the more responsible party. Nevertheless, the existence of difficult cases is not a reason to reject the defense liability principle. 81

WAR A ND INDIVIDUAL RIGHTS

Together, the defense liability principle and the enforcement principle provide an explanation of the permissibility of defense in standard cases of justifiable defense. We must broaden the defense liability principle, however, if we are to account for the full justificatory scope of the appeal to defense; for under certain circumstances an appeal to defense can justify harming someone who does not pose a threat of unjust harm. This is because sometimes a group rather than an individual poses a threat of unjust harm. Suppose that some normally harmless flavoring is lethal if 90 drops of it are consumed in a short period of time. Suppose further that because they all want me dead, each of 100 assassins puts an individually harmless drop of that flavoring in my tea so that, collectively, they put more than enough of the flavoring in my tea to kill me. Then it is permissible for a third party who discovers the threat to my life to kill some or all of them if, for some reason, that is the only way to prevent them from murdering me. But here it is a group rather than an individual that would be prevented from unjustly harming me. To accommodate collective threats, the defense liability principle can be reformulated as follows: The defense liability principle (second formulation): If (1) an individual x poses a threat of unjust harm to a second individual y (i.e., x behaves in such a way that, barring preventive action, x will infringe upon y’s rights and thereby jeopardize interests protected by those rights), or x belongs to a group g that poses such a threat,9 and (2) x is more responsible than y for that threat, then (3) (ceteris paribus) it would not infringe upon x’s rights to eliminate or reduce the threat by inflicting necessary and proportionate harm on x. 9. In order for a group G to pose a threat, each member of G must in some way participate in posing that threat. When Iraq invaded Kuwait, for example, not every Iraqi belonged to the group that posed the threat of unjust conquest. Only Iraqis who participated in posing that threat were members of the group that posed the threat. Furthermore, not all of those Iraqis who did participate in the invasion bore responsibility for the threat. (The question of how to distribute responsibility for groups’ posing a threat of unjust harm among the members of the group is addressed in chapter 10.)

82

L iability to D efense

There is one way in which the defense liability principle must be narrowed, for it cannot plausibly be regarded as applying to all moral rights. Specifically, it does not apply to contractual rights. If, for example, the life of an early-morning swimmer is threatened by sharks due to a lifeguard’s failure to fulfill a contractual obligation to be on duty at dawn, it clearly would infringe upon the lifeguard’s rights to kill her to rescue the swimmer. (It would violate her rights, for example, to throw her to the sharks so that they eat her instead of the swimmer.) Not all contractual rights are subject to the same liability rules as basic natural rights, because the liability rules that govern a contractual right are created along with the right. Any potential for liability generated by a contract is itself among the terms of the contract. Although liability rules are seldom explicitly included in the terms of a contract, nevertheless implicit understandings or reasonable expectations typically determine the potential for liability.10 Accordingly, the notion of unjust harm in the defense liability principle must be narrowed, and so we arrive at the following principle: The defense liability principle (final formulation): If (1) an individual x poses a threat of unjust harm to a second individual y (i.e., x behaves in such a way that, barring preventive action, x will infringe upon y’s noncontractual rights and thereby jeopardize interests protected by those rights), or x belongs to a group g that poses such a threat, and (2) x is more responsible than y for that threat, then (3) (ceteris paribus) it would not infringe upon x’s rights to eliminate or reduce the threat by inflicting necessary and proportionate harm on x.

10. Contractual rights typically do generate a potential for liability to defense. More broadly, often people do consent to being held accountable for a threat of harm. If I “take responsibility for” someone else’s behavior, for example, I may be held accountable for that person’s bad behavior even if I am in no way morally or even causally responsible for it. I could broaden the defense liability principle so that it applies to such cases, but the source of liability in such cases is consent, and I want to distinguish defensive liability from liability generated by consent.

83

WAR A ND INDIVIDUAL RIGHTS

Let us say that an individual x is liable under the defense liability principle if and only if, because conditions 1 and 2 are satisfied and the ceteris paribus clause in 3 is satisfied, it would not infringe upon x’s rights to eliminate or reduce the relevant threat of unjust harm by inflicting necessary and proportionate harm on x. For the sake of brevity, let us also say of the liable individual that he or she is liable to (necessary and proportionate) defense. The enforcement principle and the defense liability principle are the core principles of justice in my enforcement account of the appeal to defense. They appear to accommodate moral common sense and common moral intuition in a wide variety of cases. Moreover, they provide not only an account of the permissibility of defense in the relevant cases, but also an account of the permissibility of forcing those who inflict unjust harm to compensate their victims. If, for example, you violate my property rights by maliciously throwing a rock through my window, then you, in effect, pose a threat of unjust harm. You have, of course, already infringed upon my rights and, in the short term, you have also unjustly harmed me; but whether in the long run you have unjustly harmed me (i.e., infringed upon my rights and thereby damaged interests protected by those rights) might well depend on whether you are forced to compensate me for the costs of cleaning up the broken glass and replacing the window. If I am “made whole” by reparations from you, then in the long run your infringement upon my rights does not harm me. Thus, forcing you to provide me with full compensation actually eliminates a threat of unjust harm. It appears, then, that the defense liability principle, coupled with the enforcement principle, provides a unifying account of two of Locke’s three enforcement rights: the right to defense and the right to take reparations. (I believe it can also provide a basis for the right to punish, but I do not argue that point here.)

84

L iability to D efense

4.5. THREE OBJECTIONS It might be objected that the defense liability principle cannot handle the following sort of case: Suicide Prevention. Smith sets out to murder the innocent Jones. Jones would sooner kill herself than be killed by Smith. Thus, if Smith is not killed in defense of Jones, Jones will take her own life to prevent Smith from killing her. I kill Smith in defense of Jones.

Clearly I justifiably kill Smith in this case. It is not implausible to suggest, however, that I thereby eliminate the threat that Jones and not Smith poses to Jones’s life. Thus, because on the defense liability principle Smith’s liability is limited to harm that eliminates or reduces a threat of unjust harm posed by Smith, it is not clear that the scope of the defense liability principle is broad enough to explain the liability of Smith in this case. This challenge can be met, but it does reveal that a rights enforcement account requires a broad notion of “eliminate or reduce a threat.” There is, for example, a broad sense in which I eliminate a threat of drowning by throwing a life preserver to an exhausted swimmer even if, had I not thrown the preserver, another person would have done so. Even if I had not intervened, the threat would have been eliminated. But I did intervene, and had no one intervened, that threat would not have been eliminated. This is not to provide a precise analysis of the relevant notion of “eliminate” of course, but it does suggest that there is a sense of “eliminate” such that my killing Smith in Suicide Prevention does eliminate the threat to Jones’s life posed by Smith even though Jones would have killed herself (and so eliminated that threat) had I refrained from intervening. A more serious objection to the defense liability principle is a response to my definition of “posing a threat of unjust harm” as

85

WAR A ND INDIVIDUAL RIGHTS

“behaving in such a way that, barring preventive action, one will infringe upon a right and thereby jeopardize an interest protected by that right.” My choice of “jeopardize” instead of “damage” makes it possible for liability under the defense liability principle even in cases where there is no objective threat of harm. Consider, for example, the following case: No Objective Threat. It is quite certain that Smith has removed the pin from his only grenade and, if not prevented from doing so, will toss the grenade in the direction of Jones in a malicious attempt to take innocent life. You quite reasonably believe that Jones’s life depends on your killing Smith before he has a chance to toss his grenade. You do kill him, but it turns out that the grenade was in fact a dud and so you did not have an objective (i.e., fact-relative) justification for doing so.

By seeking to murder Jones, Smith violates Jones’s right to selfownership and thereby jeopardizes her interest in survival (among other interests protected by that right). Thus, on the defense liability principle, Smith is liable to necessary and proportionate defense, and so killing him in defense of Jones, although objectively unjustified, does not infringe upon his rights. Most ethicists who have written on defensive liability defend views that are inconsistent with this result. They would prefer to say that because there is no objective threat to Jones, Smith is not liable to defense. Let us refer to such ethicists as “objectivists.” Some of them would claim that your act of defense in No Objective Threat is subjectively though not objectively justified (i.e., you have an evidence-relative though no fact-relative justification for defense), while others might say that your act of defense is merely excusable; but all of them would deny that Smith is liable to defense. I used to be an objectivist myself, but then I considered cases such as the following two: One-in-Ten A. It is quite certain that Smith has removed the pin from his only grenade and, if not prevented from doing so, will toss the grenade 86

L iability to D efense

in the direction of the innocent Jones in a malicious attempt to take her life. There is, however, only a one-in-ten chance that Smith’s tossing his grenade in the direction of Jones will kill Jones, for there is a nine-inten chance that the grenade is a dud. You have an opportunity to kill Smith before he has a chance to toss his grenade. You do so even though you know that there is only a one-in-ten chance that Smith will harm Jones if you do not harm Smith. As it turns out, the grenade was a dud. One-in-Ten B. There is only a one-in-ten chance that Smith has removed the pin from his only grenade and, if not prevented from doing so, will toss the grenade in the direction of the innocent Jones in a malicious attempt to take her life; for there is a nine-in-ten chance that Smith is a nice guy who has no interest in harming anyone. It is quite certain, however, that Smith’s removing the pin from his grenade and tossing it in the direction of Jones would kill Jones. You have an opportunity to kill Smith before he has a chance to toss his grenade. You do so even though you know that there is only a one-in-ten chance that Smith has any interest in harming Jones. As it turns out, Smith had no intention to throw his grenade.

Clearly there is a moral difference between the two cases: your killing Smith to avoid a one-in-ten chance of Smith’s killing Jones is morally blameless in One-in-Ten A, but morally blameworthy in Onein-Ten B. An objectivist cannot easily accommodate this result. Because in each case there is no objective threat, the objectivist must say that in each case there is no defensive liability. Furthermore, because in each case you know that there is only a one-in-ten chance that there is an objective threat, the objectivist cannot distinguish the two cases by claiming that an evidence-relative appeal to defense justifies your killing Smith in One-In-Ten A but not in One-InTen B, or by claiming that you have an exculpating excuse for killing Smith in One-In-Ten A but not in One-In-Ten B. The problem is that, if objectivism is true, your evidence of liability is no stronger in OneIn-Ten A than it is in One-In-Ten B, and so it is difficult to see how you could make an evidence-based appeal to defense, or claim ignorance as an excuse, in the one case but not in the other. Thus, it appears 87

WAR A ND INDIVIDUAL RIGHTS

that, in order for an objectivist to explain the clear moral difference between the two cases, she will need to discover an evidencerelative justification other than the appeal to defense to explain why your killing Smith is not morally blameworthy in One-In-Ten A. Such a move may be possible, but the simpler and more natural view is that your act of defense in One-In-Ten A can be justified (in the evidence-relative sense) on grounds of defense. My rights enforcement account can easily accommodate the clear moral difference between the cases precisely because liability under the defense liability principle requires only a subjective threat of unjust harm. Specifically, I have stipulated that to pose a threat of unjust harm is to behave in a way that, barring preventive action, will infringe upon a right and thereby jeopardize some interest protected by that right. To jeopardize an interest is to risk damaging it, and the relevant notion of risk is subjective in that whether there is a risk of damage to an interest is relative to an epistemic situation. In One-in-Ten A but not in One-in-Ten B, Smith behaves in such a way that, if you do not kill him, he will infringe upon Jones’s rights and (relative to his epistemic situation and yours) thereby impose a onein-ten chance of taking her life. Thus, under the defense liability principle, Smith is liable to (necessary and proportionate) defense in One-in-Ten A, but he is not liable to defense in One-in-Ten B. Partly because Smith is liable in One-in-Ten A, your killing Smith in that case is not morally blameworthy. Subjectively (though of course not objectively) it is a justifiable act of defense. In One-in-Ten B, on the other hand, you kill Smith even though you know that in all probability doing so will infringe upon his rights. Thus, your behavior in that case is neither subjectively justified nor excused. Your behavior is therefore morally blameworthy.11 11. It is worth noting that on my view defensive liability is relative to a potential defender. If we alter One-In-Ten A by adding another person who, unlike you or Smith, knows that the grenade is a dud, then relative to his epistemic situation there is no threat of unjust harm and so Smith is not liable. Thus, he would infringe upon Smith’s rights by killing Smith to stop him from throwing the grenade. That result strikes me as exactly the one we should want.

88

L iability to D efense

This treatment of the two cases at hand might be resisted on the grounds that, because the grenade is in fact a dud in One-in-Ten A, Smith does not pose a threat to Jones’s rights and so your killing Smith cannot possibly eliminate or even reduce a threat of unjust harm. I find such an objection implausible, however. Recall the example in chapter  3 of a sniper who, unbeknownst to anyone but himself, plays Russian roulette on passersby. He infringes upon rights even if he is lucky enough not to kill anyone (because the bullet never ends up in the right chamber). As luck would have it, he never damages the interests protected by the rights of his targets, but I see no reason to suppose that one must damage an interest protected by a right in order to infringe upon a right. Thus, I want to say that Jones right to her own person includes a right against Smith that Smith not take a substantial risk of killing Jones with a grenade, and Jones interest in not being killed would be jeopardized if Smith violated that right. Consequently, in Onein-Ten A your killing Smith does eliminate a threat of unjust harm posed by Smith. In One-in-Ten B, on the other hand, you know that there is only a one-in-ten chance that your killing Smith would eliminate or reduce a threat of unjust harm and a nine-in-ten chance that it would kill someone who has a right not to be killed. Thus, your act of defense is (objectively and subjectively) unjustified in that case and, because it is not even excusable, it is morally blameworthy as well. A third and even more serious objection to my formulation of the defense liability principle is a response to the fact that, even if an individual does not pose a threat of unjust harm, that individual can be liable under the defense liability principle in virtue of belonging to group that poses a threat of unjust harm. The worry is that this expansion of individual liability goes too far. It might seem, for example, that even the slightest contribution to a nation’s unjust aggression made by a citizen of that nation (e.g., paying federal taxes) could make the contributor a member of group that poses a threat of unjust harm and hence liable to necessary and proportionate defense. 89

WAR A ND INDIVIDUAL RIGHTS

In reply, a few points need to be made. First, when I speak of belonging to a group that performs some action, I am speaking in a very strict fashion. A group is simply a collection of individuals, and so we all belong to countless groups. A group can be said to act, however, only if each member of the group takes part in a collective action in the sense of doing something that partly constitutes a collective action. Suppose, for example, that I am a member of a public service organization and that the members of that organization meet to decide what public service to perform. Following the bylaws of the organization, various ideas are proposed and voted upon, with the result that an official “decision” is made to raise money to help the homeless. Suppose further that many members of the organization then coordinate their efforts to raise $100,000 for the homeless, but I sit at home and don’t lift a finger to help. Loosely speaking, I might reasonably claim that I belong to a group that raised $100,000 for the homeless, but I want to say that, in a stricter sense, because I did not take part in raising the money, I am not a member of the group that raised the money. In short, I am stipulating that to belong to a group that performs an action x, one must take part in the performance of x. This stipulation blocks the use of the defense liability principle to assign liability to persons simply in virtue of their being members in an organization some of the members of which, perhaps acting on behalf of the organization, collectively pose a threat of unjust harm. Second, it is important to distinguish carefully between belonging to a group that poses a threat and merely contributing to a threat that is posed by a group. I may have donated money to a political opposition group that uses that money to wage unjust war against the government, but it does not follow that I belong to the group that actually wages unjust war. Even if I am a member of the political opposition group to which I donated the money, it does not follow that I belong to the group that wages unjust war. If I do not myself take part in a collective act of violence, then I am not a member of any group that commits an act of violence. This is not to say that in such circumstances I cannot possibly be liable to defense. I might 90

L iability to D efense

be liable in virtue of posing a threat to a need right against me that I not contribute to unjust war or because I can be held accountable for what representatives of the relevant political opposition group do on behalf of the group. (I discuss these possible bases for liability in chapters 10 and 11.) The point here, however, is that one can contribute to a collective threat of unjust harm without belonging to the group that poses the threat. Finally, even if an individual does belong to a group that poses a threat of unjust harm, she is liable under the defense liability principle only if her responsibility for that threat is greater than that of the potential victim of the threat. The issue of how to distribute responsibility and hence liability for collective threats of unjust harm is a difficult one, and I do not attempt to resolve that issue here. I want to propose, however, that whether a member of a group bears any responsibility at all for a threat of unjust harm posed by that group depends partly on why the individual in question takes part in posing that threat. Suppose, for example, that Jones is a member of a band of pirates and that their captain has ordered them to bury alive a captive who had attempted to lead a mutiny. Suppose further that Jones is appalled that the captain would order such a thing and, although she wishes that the rest of the crew would join her in refusing to follow the captain’s order, she recognizes that, because most crewmembers are more than happy to take part in burying the captive alive, there is nothing she can do to prevent the murder. Finally, suppose that Jones also recognizes that, if she doesn’t throw a few handfuls of sand into the hole where the captive has been placed, she will be thrown in the hole with him and also buried alive. It seems to me that, under such circumstances, even if Jones does throw a little sand into the hole and so does take part in posing the threat of murder, she bears no responsibility for the crew’s posing that threat. This is because the flaw in the group that is responsible for its posing an unjust threat is reducible only to the moral shortcomings of her crewmates. Whatever her faults might be, they play no role here; for she doesn’t want the group to pose a threat of murder, and she takes part in posing such a threat only because her refusal to take 91

WAR A ND INDIVIDUAL RIGHTS

part would not prevent the captive from being murdered and would result in her being murdered. I believe that should be sufficient for her to avoid responsibility and hence liability under the defense liability principle.

4.6. FORFEITURE Let us proceed to consider whether my rights enforcement account is superior to alternative accounts. Some justice-based accounts appeal to the aggressor’s loss of rights to explain why self-defense is permissible in the relevant cases. Following others, let us refer to such accounts as “forfeiture accounts.” Is my rights enforcement account a species of forfeiture account? In relying on the defense liability principle, it does explain the permissibility of defense partly in terms of the aggressor’s lack of a right not to be harmed in defense of his potential victim. The account does not, however, rely on the claim that unjust aggressors forfeit or otherwise lose any right not to be harmed. Nevertheless, it is consistent with the rights enforcement account to ground the defense liability principle in a principle that identifies conditions under which someone loses a right not to be harmed. To do so would be to incorporate my rights enforcement account within a forfeiture account. I am not inclined to do so, however, for if a person x is liable under the defense liability principle, then the relevant right that x lacks is a right against others that they do not inflict necessary and proportionate harm on x to eliminate or reduce the threat of unjust harm posed by x. That right, it seems to me, is one that x never had and so, a fortiori, cannot lose.12 12. The possibility of a rights-based account of the appeal to defense that recognizes the aggressor’s lack of a right not to be harmed in defense of his potential victim, but nevertheless does not rely on the claim that the aggressor loses any right not to be harmed, has been largely ignored. (Judith Jarvis Thomson does not overlook this possibility. See her 1976 Lindley Lecture, “Self-Defense and Rights.”) Perhaps this is because it is often assumed that the right to life is simply an unqualified right not to be killed rather than a right not to be killed under certain

92

L iability to D efense

There are a variety of extant forfeiture accounts, each with its own peculiar difficulties. As others have observed, some forfeiture accounts fail because they entail the permissibility of harming aggressors for reasons other than defense.13 The problem arises because the absence of a right not to be harmed does not entail the permissibility of harming. The murderer may have forfeited his right to life, for example, but ordinarily it would be morally impermissible for a private citizen to execute or imprison him. John Locke attempted to bridge the gap between the aggressor’s forfeiture of rights and the permissibility of defense by appeal to a principle of beneficence. His “fundamental law of nature” requires, if possible, everyone’s life to be preserved, but should that prove impossible, preference must be given to innocent life (i.e., to the lives of those who have not forfeited their rights). Thus, on Locke’s view, although the fact that someone has forfeited his right to life does not by itself justify killing that person, (ceteris paribus) killing that person is justified if it is necessary to preserve the life of an innocent person.14 The well-known problem with Locke’s approach is that it justifies too much. Suppose, for example, that as a consequence of my carelessness, I accidently shoot and kill someone. Locke must say that since I have violated the right of my victim not to be killed, I have forfeited my own right not to be killed. Thus, in this example, if it were necessary to kill me in order to harvest my organs and thereby save the lives of innocent third parties in desperate need of organ transplants, then Locke’s forfeiture account has the absurd implication that it would be justified to do so. The rights enforcement account, on the other hand, avoids this difficulty because it provides a justification for harming someone only in situations where harming circumstances. By rejecting that assumption, the proponent of the prevention account can avoid appealing to a forfeiture of rights to explain the unjust aggressor’s lack of a right not to be harmed in defense of his potential victim. 13. E.g., George Fletcher, “The Right to Life,” Georgia Law Review 13 (1979): 1380–83. 14. John Locke, The Second Treatise of Government, ed. Thomas P. Peardon (Upper Sadle River, NJ: Prentice Hall, 1997), 11 (chap. III, par. 16).

93

WAR A ND INDIVIDUAL RIGHTS

someone eliminates or reduces a threat of unjust harm posed by that person (or by a group to which that person belongs). Some forfeiture accounts also avoid the difficulty here. Judith Jarvis Thomson has been interpreted as providing such an account.15 Thomson uses the following example: In a case that I will call Villainous Aggressor, you are standing in a meadow, innocently minding your own business, and a truck suddenly heads toward you. You try to sidestep the truck, but it turns as you turn. Now you can see the driver: he is a man you know has long hated you. What to do? You cannot outrun the truck. Fortunately, this is not pure nightmare: you just happen to have an antitank gun with you, and can blow up the truck. Of course, if you do this you will kill the driver.16

She also discusses two cases in which the aggressor has an exculpating excuse for the threat he poses. She offers the following explanation of why defense is permissible in each of her three cases: (2) In the circumstances, you have a right that he not kill you is true of each of them. If so, then surely (3) If he kills you, then he will violate your right that he not kill you is also true of each of them. But given that (4) If you do not kill him, he will kill you is also true of each of them, it surely follows that . . . they lack rights that you not kill them. A fortiori, you may kill them. Indeed, if these ideas are correct, then we have an explanation of why you may.17

Thomson rejects the assumption that there is a gap between someone’s lacking a right not to be killed and the permissibility 15. Judith Jarvis Thomson, “Self-Defense,” Philosophy & Public Affairs 20, no. 4 (1991): 283–310. 16. Thomson, “Self-Defense,” 283. 17. Thomson, “Self-Defense,” 300. 94

L iability to D efense

of killing that person. She claims that the permissibility of killing the driver in her example follows “a fortiori” from the driver’s lack of a right not to be killed. Thomson also claims that the driver lacks a right not to be killed because killing him is necessary to prevent him from violating your right to life. Thus, her account justifies harming an aggressor only if doing so is necessary to prevent that aggressor from violating the rights of his potential victim. Thomson’s account, however, is not adequately sensitive to the potential victim’s degree of responsibility. Her account implies, for example, that defense is permissible in Mistake II (the case in which I foolishly impersonate a suicide bomber resulting in someone’s trying to kill me in defense of the innocent), for the only way to prevent the aggressor from violating my right to life in that case is to kill him in self-defense. It might be objected that the aggressor does not threaten my right to life in Mistake II because I forfeit my right to life in that case. Such an objection would be consistent with Thomson’s account, for she does not claim that losing one’s own rights requires posing a genuine threat to the rights of others. I would need to be convinced, however, that one can forfeit one’s right to life without posing, or even having an interest in posing, a threat to anyone’s rights. Furthermore, on the Thomson account, the forfeiture of the right to life entails the permissibility of killing. Thus, if I do forfeit my right to life in Mistake II, then it appears that on her account even a third party who knows that I am not really a suicide bomber can permissibly kill me.18 Perhaps a more sophisticated forfeiture account would avoid such difficulties. Indeed, the rights enforcement account defended here might provide the outline of such an account, for the

18. Thomson could propose that whereas I forfeit my right not to be killed by the police officer, I do not forfeit my right not to be killed by a third party who knows that my gun is unloaded. Such a proposal would be ad hoc, of course, unless it was grounded in a general account of the forfeiture of rights. 95

WAR A ND INDIVIDUAL RIGHTS

enforcement principle might be just the sort of principle a forfeiture account needs to successfully bridge the gap between an aggressor’s loss of rights and the permissibility of defense. It remains an open question, then, whether a forfeiture account that incorporates my rights enforcement account is tenable.

4.7. MONTAGUE AND McMAHAN So far we have considered only rights enforcement accounts of the permissibility of defense; for both Locke’s and Thomson’s respective forfeiture accounts are also rights enforcement accounts: they explain the permissibility of defensive violence in the relevant cases partly by appeal to the fact that in such cases there is a threat to rights. Let us turn to accounts that are not rights enforcement accounts. I want to consider two such accounts, one of them Phillip Montague’s, the other Jeff McMahan’s. Both are quite similar to and, like Locke’s and Thomson’s accounts, influenced the development of the rights enforcement account defended here. Both nevertheless miss the mark because they do not give rights their due. Montague offers an explanation of the permissibility of defense in what he calls “standard cases,” defined as “cases in which fully culpable aggressors launch deadly threats against completely innocent victims, and in which the threats will succeed unless deadly force is used against the aggressors.”19 He proposes that such cases belong to a wider class of cases in which the following four conditions obtain: (i) individuals X1 . . . Xn are situated so that harm will unavoidably befall some but not all of them; (ii) that they are so situated is the fault of some but not all members of the group; (iii) the 19. Phillip Montague, “The Morality of Self-Defense: A Reply to Wasserman,” Philosophy & Public Affairs 18, no. 1 (1989), 81.

96

L iability to D efense

nature of the harm is independent of the individuals who are harmed; (iv) Y, who is not necessarily included in X1 . . . Xn, is in a position to determine who will be harmed.20

Montague’s “distribution thesis” is the claim that in such cases, (1) if Y is in X1 . . . Xn, then Y has a right to choose a distribution of harm “which favors the innocent over those whose fault it is that there is harm to be distributed,” and (2) if Y is not in X1 . . . Xn, then Y is required to choose such a distribution.21 As Montague points out, his account is not intended to be a complete account of the appeal to defense. He does not attempt to explain, for example, the proportionality restriction on the appeal to defense, for his distribution thesis applies only to cases in which “the nature of the harm is independent of the individuals who are harmed.” He also does not address cases in which the aggressor and his potential victim are partly at fault for the aggression. Suppose, however, that Montague could expand his account to handle all of the relevant cases. The account would still suffer a fatal flaw precisely because it is not a rights enforcement account, which is to say that it provides a justification for defense even in cases where there is no threat to anyone’s rights. To see this, notice first that, although Montague does not provide an analysis of the crucial notion of “fault,” he does equate a threat’s being someone’s fault with someone’s culpably creating a threat, and he suggests that one can culpably create a threat in at least three ways: intentionally; through one’s recklessness; or through one’s negligence. 22 As typically understood, culpability requires blameworthiness but not any infringement upon a right. Thus, 20. Phillip Montague, “Self-Defense and Choosing Among Lives,” Philosophical Studies 40, no. 2 (1981), 215. 21. Montague, “The Morality of Self-Defense,” 89. In a later work, Montague tries to extend the account to cover defense cases that are nonstandard in that the aggressor is morally innocent. See his “Self-Defense and Innocence: Aggressors and Active Threats,” Utilitas 12, no. 1 (2000): 62–78. 22. Montague, “Self-Defense and Choosing Among Lives,” 210.

97

WAR A ND INDIVIDUAL RIGHTS

Montague’s distribution thesis is vulnerable to counterexamples such as this one: Lay-Off: Five years ago a factory opened in a poor nation, but now the wealthy owner of the factory wants to close the factory so that he can start a business in the United States and become even wealthier. (For various financial and legal reasons, setting up his new business in the United States requires permanently closing the factory he currently owns.) He knows, however, that the very survival of some of his factory-workers depends on the factory’s not closing down; for it is quite certain that some of those workers will not be able to find another source of income, and there is no social safety net to support them if they do not. Nevertheless, the owner is about to begin the process of shutting down the factory. The manager of the factory can save the factory and its jobs only by killing the owner.

The owner knowingly creates a deadly threat to some of his workers, and he does so only for the sake of improving his already privileged economic status. His actions are therefore selfish and heartless and morally impermissible. Thus, given that culpability does not require any infringement of rights, I see no reason to deny that the owner culpably creates a deadly threat to his workers, and so it is his fault that he and those workers are so situated that death will unavoidably befall some of them. Because the manager is in a position to determine whether the owner or the workers will die, Montague’s distribution thesis therefore yields the incorrect result that the manager is morally required to kill the owner. The rights enforcement account, on the other hand, does not yield that result, for although the owner behaves immorally, he does not pose a threat of unjust harm. Closing the factory would be an instance of withdrawing aid, and withdrawing aid typically does not infringe upon rights.23 23. Montague could avoid the objection by defining “fault” narrowly so that fault requires an infringement of a right. He would then be proposing a rights

98

L iability to D efense

Let us turn, then, to McMahan’s account. In a 2005 article he proposes that “the criterion of liability to defensive killing is moral responsibility, through action that lacks objective justification, for a threat of unjust harm to others, where a harm is unjust if it is one to which the victim is not liable and to which she has not consented.”24 McMahan’s definition of “liability” is a bit narrower than my own. For him, to say that a person is liable to be killed is to say that he “has acted in such a way that to kill him would neither wrong him nor violate his rights, even if he has not consented to be killed or to be subjected to the risk of being killed.”25 Although McMahan does not explicitly define the relevant notion of a threat, that notion appears to be an objective one; for in discussing an example of a villain who seeks to kill you with a gun that he and you both reasonably but mistakenly believe to be loaded, he argues that because there is no threat to you, the villain is not liable and self-defense on your part is unjustified (though fully excusable).26 enforcement account of the appeal to defense in standard cases. It is not clear, however, that the account would succeed. One worry is that it is unclear whether, for example, an aggressor who draws his weapon with the intention to commit murder has already infringed upon rights as opposed to merely posing a threat to rights. My rights enforcement account requires only the latter; Montague’s would need the former. Another problem is that even if it is modified to require an infringement of rights, Montague’s account would still be unable to handle a revised version of LayOff in which the owner of the factory promised his spouse that he would abandon his plan to close the factory. By then endeavoring to close the factory, he breaks his promise and so infringes upon his spouse’s right that he keep his promise. Nevertheless, it remains implausible to suggest that killing him in defense of those whose lives are threatened by his actions would be justifiable. 24. Jeff McMahan, “The Basis of Moral Liability to Defensive Killing,” Philosophical Issues 15, no. 1 (2005), 394. 25. McMahan, “The Basis of Moral Liability to Defensive Killing,” 386. 26. McMahan, “The Basis of Moral Liability to Defensive Killing,” 391. Because his notion of a threat is an objective one, McMahan’s account cannot distinguish between cases like One-In-Ten A and One-In-Ten B (for the reasons discussed in section 5 of this chapter). In a later work (“Who is Morally Liable to be Killed in War,” Analysis 71, no. 3 (2011): 544–59), however, he seems to back away from the idea that liability requires an objective threat. Oddly, though, he suggests that liability requires the imposition of an “objective risk.” I am not sure what he means by that. An assessment of risk can be objective in the sense of being based on actual frequencies, for example, but the probability that a risk will be realized is always relative to an epistemic situation and so must be subjective in that sense.

99

WAR A ND INDIVIDUAL RIGHTS

In his 2009 book McMahan advances essentially the same account of liability. There he says that “responsibility for a wrongful threat is the criterion of liability to defensive attack” and then defines wrongful threats as “threats of harm to which the victim is not liable, via action that is objectively unjustified.”27 He also makes it clear that his account of the appeal to defense is a forfeiture account: on his view, those who are liable to a defensive attack have forfeited their right not to be subjected to a defensive attack.28 Furthermore, he emphasizes that liability does not require posing a threat oneself. Even if one is morally responsible for someone else’s posing a threat of wrongful harm, one can be liable to defense.29 Finally, he suggests that one need not be culpable in order to be liable. On McMahan’s account, the aggressor in Mistake I, though subjectively justified in his attack, is nevertheless liable to defense in virtue of having freely chosen to risk posing a wrongful threat and having had the bad luck to have that risk realized.30 McMahan’s account is quite similar to my rights enforcement account, but each difference corresponds to a difficulty for his account. First and foremost, because his account is not a rights enforcement account, it is untenable. On McMahan’s account, the unjust aggressor forfeits his rights, but not in virtue of posing a threat to rights. Thus, like Montague’s account, McMahan’s account has the unfortunate implication that the appeal to defense can justify violence even in the absence of any threat to rights. What McMahan requires is a “threat of unjust harm” or (in his later work) a “wrongful threat.” But his respective definitions of these expressions make clear that such threats can exist even when there is no threat to rights. For, again, “unjust harm” is defined by McMahan not as harm that results from an infringement upon a right, but rather as harm “to which the victim is not liable and to which she has not consented;” and “wrongful threats” are defined as “threats of harm to which the 27. Jeff McMahan, Killing in War (Oxford, UK: Clarendon Press, 2009), 42. 28. McMahan, Killing in War, 172. 29. McMahan, Killing in War, 205–8. 30. McMahan, Killing in War, 159–70.

100

L iability to D efense

victim is not liable, via action that is objectively unjustified.” Thus, in Lay-Off, McMahan must say that the owner poses a wrongful threat and even a threat of unjust harm; for the workers who would be harmed if the plant closes are not liable to harm, nor have they consented to be harmed, and the threat to them is posed through the owner’s objectively unjustified action. Thus, McMahan’s account appears to yield the incorrect result that killing the owner in defense of the workers is permissible. A second serious difficulty for McMahan’s account is raised by Seth Lazar: [B]y arguing that liability is grounded in responsibility for unjustified threats, not the fact that one poses the threat, McMahan opens the floodgates to total war. In a modern state we all make contributions, however small, to the capacity of our government to act. When our government goes to war, especially in liberal democracies, we are to some degree responsible for the threat that it poses. If this is enough to ground liability to lethal attack, then few besides children will escape liability.31

The rights enforcement account I offer avoids the difficulty here because it requires for liability that one either pose a threat of unjust harm or belong to a group that poses such a threat (where an individual or group x poses a threat of unjust harm if and only if x behaves in such a way that, barring preventive action, x will infringe upon someone’s rights and thereby jeopardize interests protected by those rights). Merely being responsible for contributing to someone else’s posing a threat of unjust harm does not generate liability. In his 2005 article, McMahan tries to avoid the sort of difficulty raised by Lazar by narrowing his notion of responsibility. He concedes that his account of liability would be too liberal if knowingly risking the creation of a threat of unjust harm, coupled with 31. Seth Lazar, “The Responsibility Dilemma for Killing in War: A Review Essay,” Philosophy & Public Affairs 38, no. 2 (2010), 188.

101

WAR A ND INDIVIDUAL RIGHTS

the realization of that risk, were sufficient for being responsible for a threat of unjust harm. Any woman who decides to have a child knowingly risks creating a threat of unjust harm, for no mother can be certain that her child will never pose such a threat. As McMahan points out, however, it would be impermissible to kill the mother of a serial killer even if, through some bizarre twist of fate, killing her were the only way to prevent her son from claiming another victim. McMahan attempts to render his account consistent with this fact by appealing to the notion of a proximate cause. He suggests that the mother of the serial killer is not responsible for the threat of unjust harm that results from her choice to have a child, partly because she is not the proximate cause of that threat.32 Even if this maneuver works for that case, however, it does not help McMahan’s account handle cases like Lay-Off, because the owner in Lay-Off is the proximate cause of the threat of harm that is the predictable and immediate effect of his decision to close the factory. Furthermore, assuming that a cause is not proximate if it is distant in both time and space from its effect and there are many intermediate causes between it and its effect, proximate causation is clearly not required for liability. If a long time ago I put an anthraxlaced letter in a bottle and cast it into the sea, I may be liable for the threat of unjust harm that I now pose to an islander who discovers the bottle today even if the bottle was carried many miles by currents, tides, a boat, and even a pelican or two over the course of many years. On my view, I am liable because I am solely responsible for posing a threat of unjust harm to the islander; and I pose such a threat because, barring preventive action, I put his life in danger by acting on something to which he has a right (namely, his own body), thereby infringing upon his right to his own person. In his most recent work, McMahan does not rely on the notion of a proximate cause to resist assigning liability to all civilians who contribute to an unjust war effort. Instead, he appeals to the idea that the causal contribution the typical civilian makes to her 32. McMahan, Killing in War, 396.

102

L iability to D efense

nation’s war effort is “small and inessential.”33 As we have seen, however, even if someone’s contribution to a threat is a mere “drop in the bucket,” she can be fully liable. Recall the example earlier of the group of 100 assassins, each of whom endeavors to put an individually harmless but collectively lethal drop of flavoring in my tea. Given that 90 drops constitutes a lethal dose, each individual assassin makes a small and inessential contribution to the threat to my life, but it is quite obvious that all of them are fully liable. 34 Thus, McMahan requires too much for full liability.

33. Jeff McMahan, “Who is Morally Liable to be Killed in War,” 549–50. 34. For excellent discussions of such cases, see Christopher Kutz, Complicity: Ethics and Law for a Collective Age (New York: Cambridge University Press, 2000), and Björn Petersson, “Co-responsibility and Casual Involvement,” Philosophia 41, no. 3 (2013): 847–66.

103

[ 5  ] NECESSIT Y AND ­P ROPORTION ALIT Y IN DEFENSE

Suppose that one can easily and safely prevent a murder by causing an elevator that the would-be murderer is riding to stall between floors. Then shooting the would-be murderer would be an unnecessary and hence presumptively wrongful way to prevent the intended murder. Suppose instead that one can defend one’s right to a soft drink only by killing the thief who will otherwise run off with it. Then one’s killing the thief, though necessary to prevent the intended theft, would be a disproportionate and hence presumptively wrongful response to a minor threat. I take it, then, that the right to defend the innocent against unjust aggression is limited to the infliction of necessary harm and is further limited to the infliction of proportionate harm. In chapter 4 I defended an account of defensive liability that respected these limits, but I did not define the relevant notions of “necessary” and “proportionate,” nor did I explain why liability under the defense liability principle is limited to necessary and proportionate harm. In this chapter I hope to fill in these gaps and thereby complete my account of the appeal to defense.

5.1. A DEFENSE OF INTERNALISM To that end, I want to address first the question of whether unnecessary or disproportionate defense infringes upon the rights of

104

N ecessity and ­P roportionality in D efense

an unjust aggressor. In chapter 4 I formulated the defense liability principle as follows: If (1) an individual x poses a threat of unjust harm to a second individual y (i.e., x behaves in such a way that, barring preventive action, x will infringe upon y’s noncontractual rights and thereby jeopardize interests protected by those rights), or x belongs to a group g that poses such a threat, and (2) x is more responsible than y for that threat, then (3) (ceteris paribus) it would not infringe upon x’s rights to eliminate or reduce the threat by inflicting necessary and proportionate harm on x.

I did not, however, address the question of whether this principle would remain true even if it were broadened by eliminating “necessary and proportionate” from its consequent. Here I want to defend the view that it would not, for there is a sense of “necessary” and a sense of “proportionate” such that liability to defense (i.e., liability in virtue of jointly satisfying conditions (1) and (2) in the defense liability principle) is itself limited to necessary and proportionate harm. Writers on the ethics of defense have begun to use the label “internalism” to refer to this sort of view. One opposing “externalist” view is that the only proportionality and necessity restrictions on the right to defense are both external to defensive liability. On that view, unnecessary defense and disproportionate defense, although (at least typically) morally wrong, do not infringe upon the rights of the unjust aggressor. Other opposing views are possible because one can be an internalist with respect to necessity but an externalist with respect to proportionality, or vice versa. Although I defend internalism with respect to both necessity and proportionality, I believe that there are limits to the right to defense that are external to defensive liability and that some of them can naturally be described as necessity and proportionality limits. (I identify one such limit in section 4 below.) Nevertheless, if we are to understand necessity and proportionality in defense, it is important to distinguish the

105

WAR A ND INDIVIDUAL RIGHTS

many sorts of considerations that can make defense wrongful even when it does not infringe upon the rights of an aggressor from those that determine whether defense would infringe upon the rights of an aggressor. Let us begin with what I take to be the easier case: disproportionate defense. If disproportionate defense does not infringe upon the aggressor’s rights, then it seems likely that its wrongness is to be explained in terms of the value of the unjust aggressor’s wellbeing. The question, then, is whether to explain the wrongness of disproportionate defense by reference to the unjust aggressor’s rights—“disproportionate defense is wrong because it would infringe upon the unjust aggressor’s rights”—or by appeal to the value of unjust aggressor’s well-being—“disproportionate defense would not infringe upon the unjust aggressor’s rights, but it would wrongly ignore the value of his well-being.” Elsewhere I have defended the latter option,1 but I now believe that I was mistaken to do so. Consider again the example of the thief who tries to steal a soft drink. Let’s call the owner of the soft drink “Joe.” I think Joe would infringe upon the thief’s rights by killing him even if that was the only way to prevent the theft. My primary reason is this. The right to defense is a right to eliminate or reduce a threat of unjust harm, and unjust harm (as I have defined it) requires an infringement upon a right. Thus, if we say that Joe’s killing the thief would not infringe upon the thief’s rights, then when Joe picks up his gun and prepares to fire it at the fleeing thief, Joe himself does not pose a threat of unjust harm and so the appeal to defense cannot justify killing him. That seems to me to be clearly wrong: killing Joe in defense of the thief can be justified on grounds of defense. Thus, I want to say that Joe does pose a threat of unjust harm to the thief and, therefore, the thief does have a right against others that they do not inflict disproportionate harm on him.2 1. Kai Draper, “Defense,” Philosophical Studies 145, no. 1 (2009): 69–88. 2. This kind of argument for internalism with respect to proportionality is not original to this book. It was first brought to my attention by Helen Frowe.

106

N ecessity and ­P roportionality in D efense

The success of this argument requires the assumption that the right to defense is a right to eliminate or reduce a threat of unjust harm. Thus, someone might reject the argument on the grounds that the right to defense is in fact a right to eliminate or reduce a threat of being impermissibly harmed. Consider again, however, the following example (from chapter 4): Suppose that I want to prove to you how fearless I am and so I freely and knowingly consent to be struck. Then in spite of my consent, you (morally) ought to refrain from striking me; for there is nothing of significant value to be gained by striking me, and doing so would harm me and might even seriously harm me. Nevertheless, if you wrongly attempt to strike me, my striking you to prevent you from succeeding would be an unjustified act of defense. That is easy to explain if the right to defense is limited to defense against threats of unjust harm, for by consenting to be struck, I waive my right not to be struck, and so preventing you from striking me would not prevent you from unjustly harming me. If, however, we say that the right to defense includes the right to defend against any threat of being impermissibly harmed, it appears that we are forced to say that it would be permissible for me to strike you in self-defense. Let us turn now to the harder case: unnecessary defense. Suppose that an unjust aggressor maliciously seeks to murder Joe and that Joe can at no cost to anyone thwart the attack by causing the aggressor’s elevator to stall between floors. If Joe knows this but nevertheless decides to defend himself by shooting the aggressor dead, would it be justifiable for the original aggressor, or a third party, to kill Joe if that were the only way to prevent Joe from killing the original aggressor? I am inclined to say no and I strongly suspect that most others would either share my intuition here or at least be less confident about the moral acceptability of defending malicious aggressors against unnecessary defense than about the acceptability of defending them against disproportionate defense. Indeed, the externalist might use the example to argue that there is no necessity restriction internal to defensive liability; for if Joe is not liable to defense when he unnecessarily tries to kill his 107

WAR A ND INDIVIDUAL RIGHTS

assailant, it might seem to follow that he does not pose a threat of unjust harm and so his act of unnecessary defense does not infringe upon his assailant’s rights. Such an argument cannot succeed, however, because it rests on the false assumption that posing a threat of unjust harm is sufficient for defensive liability. Notice that liability under the defense liability principle requires not only posing a threat of unjust harm (or belonging to a group that poses such a threat), but also being more responsible for that threat than its potential victim. In the case at hand, it is not at all clear that this second condition is met. If the original attack on Joe is a malicious attempt to murder him, then the internalist can say that, even though Joe’s needlessly violent response to that attack is unjust, his assailant is more to blame for the attack than Joe is, and hence Joe is not liable to defense.3 So far we have not found any reason to endorse either internalism or externalism with respect to necessity. An advantage for internalism appears, however, if we consider cases of unjust aggression in which the original aggressor is barely culpable or only minimally responsible for his aggression. Suppose again that we have an aggressor attempting to kill Joe and that the threat to Joe’s life is an unjust one. Suppose further that the aggressor is someone who reasonably though mistakenly believes that he must kill Joe to prevent Joe from unjustly killing him. He knows that he might be mistaken in his belief that Joe poses a threat of unjust harm, but the evidence strongly suggests that he is not mistaken, and so he blamelessly poses a threat to Joe’s life. Finally, suppose that Joe knows all of 3. These remarks, and even the defense liability principle, arguably need to be qualified in one respect. Even in a case where the victim of unjust aggression is more responsible for that aggression than the aggressor, the aggressor may have a sort of diminished liability. To use an unrealistically precise example, if the victim’s degree of responsibility is twice that of the aggressor, and if it is possible to divide the costs of defense between them, then perhaps it would not infringe upon the aggressor’s rights to impose 1/3 of the costs of defense on him, with the other 2/3 being imposed on the victim. (I would like to thank Jeff McMahan for reminding me of this point.) If, however, the costs cannot be divided, then only the more responsible party is liable to the costs of defense.

108

N ecessity and ­P roportionality in D efense

this, but nevertheless chooses to defend himself by killing his assailant even though causing his assailant’s elevator to stall between floors would be equally effective in averting the threat to his life. I am strongly inclined to think that in this case it would be permissible for a third party to intervene on behalf of the original aggressor and kill Joe if that is the only way to prevent him from killing the original aggressor. The salient difference between this case and the earlier one is that now Joe is more responsible than the original aggressor for the threat to the original aggressor’s life. The rest of the argument for internalism in the case of necessity proceeds like the argument for internalism in the case of proportionality: The right to defense is a right to eliminate or reduce a threat of unjust harm and, as defined in my defense liability principle, unjust harm involves an infringement upon a right. Thus, because killing Joe in defense of his assailant can be justified on grounds of defense, it follows that Joe must pose a threat of unjust harm to his assailant and, so, his assailant does have a right against others that they do not inflict unnecessary harm on him. Therefore, there is a necessity restriction on the right to defense that is internal to defensive liability.

5.2. NECESSARY HARM I want to turn now to the question of how to define that restriction. Often “necessary harm” is defined too narrowly. Sometimes, for example, it is suggested that harming an unjust aggressor can be justified on grounds of defense only if doing so is necessary to prevent him from harming his potential victim. Consider, however, the following two examples: Shoot or Shield: Smith is seeking to murder Jones. He has already fired one shot at Jones and, having just barely missed his target, has moved closer and is now preparing to take a second shot. He has only one bullet left and so if he fails to kill Jones with his second shot, he will no longer 109

WAR A ND INDIVIDUAL RIGHTS

pose any threat at all. I can prevent Jones from being harmed either by shooting Smith in the head before he can fire his gun a second time or by leaping in front of Jones so that the second bullet strikes and kills me instead of him. Although shooting Smith in the head will kill him, I choose that defensive option. Limited Time: I am rushing to the hospital to donate a kidney to a child whose survival depends on getting a kidney transplant immediately. On the way, I notice Smith attempting to kill the innocent Jones. I know that I could save Jones’ life without harming Smith at all, for I could simply drive Jones to the nearest police station where he would be safe. However, that would mean arriving at the hospital too late to save the life of the child. So I save Jones’ life in the only other way available to me: I kill Smith by shooting him with my handgun.

It is perfectly clear that my killing Smith in defense of Jones is permissible in each of these cases. Nor would it infringe upon Smith’s rights to kill him. (I explain why later in this section.) However, in neither case is it necessary that I kill Smith in order to prevent him from murdering Jones. Indeed, in both cases I can prevent Smith from killing Jones without harming Smith at all. Thus, the necessity restriction appears to be less restrictive than some have thought. One might be tempted to suppose that the salient feature of both Shoot or Shield and Limited Time is that killing the aggressor is necessary to prevent the death of someone. Given that supposition, “necessary harm” could be defined as “harm that is necessary to prevent someone from being harmed.” That definition would be too broad, however, as illustrated by the following example: Transplant Opportunity: I notice Smith attempting to kill the innocent Jones. I know that I could save Jones’ life without seriously harming Smith, for I could simply drive Jones to the nearest police station. However, that would entail the death of a child who could be saved if Smith’s kidneys were available for a transplant operation. So I save Jones’ life in the only other way available to me: I kill Smith by shooting him in the head with my handgun. 110

N ecessity and ­P roportionality in D efense

In this case no less than in Limited Time, killing Smith is necessary to prevent the death of someone who needs a kidney transplant, but here it seems clear that killing Smith in defense of Jones is impermissible precisely because it is, in the relevant sense, unnecessary. I propose that the relevant difference between Limited Time and Transplant Opportunity is this: In the former case, had I chosen to drive Jones to the police station, the death of the child would have been a cost of preventing Smith from unjustly killing Jones; for had I chosen not to prevent Smith from killing Jones, I would save the child’s life. In Transplant Opportunity, on the other hand, had I chosen to drive Jones to the police station, the death of the child would not have been a cost of preventing Smith from unjustly killing Jones; for had I decided not to prevent Smith from killing Jones, the child would have died anyway. This is a relevant difference because an unjust aggressor’s liability to defense is limited to enforcement costs—i.e., the costs of eliminating or reducing the threat of unjust harm that he poses.4 The enforcement costs to which an unjust aggressor is liable include, of course, costs that are necessary to eliminate or reduce the relevant threat of unjust harm. But they can also include costs that are necessary to ensure that the (expectable) enforcement costs of defense fall on a liable party rather than on some nonliable party. In Shoot or Shield and in Limited Time, Smith’s liability exceeds the minimum cost necessary to prevent him from unjustly harming his potential victim because exceeding that minimum is necessary to prevent an enforcement cost from falling on some nonliable party.

4. An alternative explanation of the difference between the two cases is that, in Limited Time but not in Transplant Opportunity, Smith poses a threat of unjust harm to the child. That explanation is flawed, however, for it leads to the mistaken conclusion that if I don’t come to Jones’s defense in Limited Time, then, because Smith does not pose a threat to the child by attacking Jones, he is not liable to being killed by me. Moreover, such an explanation is not available in Shoot or Shield because surely my opportunity to save Jones by jumping in front of the bullet does not mean that Jones poses a threat of unjust harm to me. 111

WAR A ND INDIVIDUAL RIGHTS

In Transplant Opportunity, on the other hand, killing Smith is necessary neither for defense nor to prevent an enforcement cost from falling on a nonliable party. The idea that those who pose threats of unjust harm can be liable to costs that exceed the minimum necessary to reduce the threat is quite common in discussions of corrective justice, but it has largely been overlooked in discussions of defensive justice.5 In many cases of securing just compensation, the plaintiff can “be made whole again” only if he is allowed to recover enforcement costs that go beyond the minimum cost necessary to compensate him for the unjust harm he has suffered. If, for example, Smith maliciously breaks my window, and repairing the window would cost $1,000, then my being made whole again may require me to sue Smith not only for that $1,000, but also for enforcement costs such court fees or even the cost of legal representation if such representation was necessary to winning my lawsuit. Otherwise I am left worse off in virtue of Smith’s violation of my property rights than if Smith had not violated my rights. In cases of defense, the same sort of consideration can apply. The unjust aggressor is liable to being harmed not only to prevent him from unjustly harming his potential victim, but also to prevent enforcement costs (i.e., the costs of preventing him from unjustly harming his potential victim) from falling on nonliable parties. The following definition of “necessary harm” accommodates these considerations and allows us to distinguish Limited Time from Transplant Opportunity: Where x is the only individual liable to defense, the harm a defender inflicts on x is necessary if and only if actions that would have inflicted less harm on x would have either (i) been less effective in reducing the relevant threat of unjust harm or (ii) resulted in greater enforcement costs for at least one nonliable party.

5. Recall that, like defensive justice, corrective justice is concerned with addressing threats of unjust harm.

112

N ecessity and ­P roportionality in D efense

Again, enforcement costs include any and all of the costs of eliminating or reducing a threat of unjust harm, where the relevant baseline for identifying enforcement costs is no enforcement at all. Given this definition of “necessary harm,” Smith’s death in Shoot or Shield and his death in Limited Time are both instances of necessary harm, whereas Smith’s death in Transplant Opportunity is an instance of unnecessary harm. For in the former two cases inflicting less harm on Smith would have resulted in greater enforcement costs for a nonliable party (namely, me in Shoot or Shield and the child in Limited Time); but in Transplant Opportunity disarming and restraining Smith would have prevented Smith from unjustly killing Jones and would have done so without imposing enforcement costs on any nonliable party. Notice that, on the proposed definition, the defender does not need to minimize enforcement costs that fall on the nonliable in order to stay within the boundaries of the unjust aggressor’s liability. He may even distribute such costs unjustifiably without infringing upon the rights of the unjust aggressor. Consider, for example, the following example: Limited Time II: I am rushing to the hospital to donate a kidney to my own child, and his survival depends on my prompt arrival. On the way, I notice Smith attempting to kill the innocent Jones. I know that I can save Jones’ life quickly enough to reach the hospital in time to save my child, but only by using my boxing skills to fight Smith, with the result that both Smith and I would suffer significant injury. I can also save Jones’ life without being hurt myself by using a knife on Smith, but that would result in a slightly more serious injury to Smith and would also require more time, preventing me from saving my child. I choose to use the knife.

No doubt I have acted wrongly here. For the sake of my child I should have used my boxing skills to defend Jones. Nevertheless, on my definition of necessary harm, I do not infringe upon Smith’s rights by using a knife rather than my fists to defend Jones, and 113

WAR A ND INDIVIDUAL RIGHTS

this in spite of the fact that I inflict greater injury on Smith in virtue of doing so. Perhaps most others would react differently to this case. The view I am defending here, then, might require some refinement. My definition of necessary harm applies only to cases in which there is a single liable party. Cases of multiple liable parties raise issues concerning the distribution of enforcement costs among the liable. Consider, for example, the case of the mobster who threatens to kill Smith unless Smith kills Jones. Suppose that Smith fires his weapon at Jones while the mobster looks on, and that Jones has exactly two paths to survival: one is to kill Smith, the other is to kill the mobster. (Once the mobster is dead, Smith will have no reason to continue his attack on Jones.) No one would say that killing the mobster in self-defense would infringe upon the mobster’s rights, but it is not obvious whether killing Smith in self-defense would infringe upon Smith’s rights. It does seem clear that Jones ought to kill the mobster rather than Smith, for even though both Smith and the mobster pose the threat to Jones’ rights, the mobster is more culpable than Smith for that threat.6 Nevertheless, I think it would be a mistake to suppose that Jones would be infringing upon Smith’s rights by killing Smith in selfdefense, for on that supposition it is unclear how we can distinguish between Jones’ killing Smith in self-defense and Jones’s killing an innocent third party in self-defense. Suppose, for example, that Jones can save her own life by shooting the mobster, shooting Smith, or pulling Brown, an innocent third party, in front of her so that Brown is the one who is shot by Smith. It would be much worse for Jones to kill Brown than to kill Smith; indeed, killing Brown would be a simple case of murder for the sake of self-preservation, but it would be odd to call killing Smith “murder.” Thus, I am inclined to suggest that, whereas killing the 6. I borrow this example from Lawrence Alexander, “Self-Defense and the Killing of Noncombatants: A Reply to Fullinwider,” Philosophy & Public Affairs 5, no. 4 (1976): 408–15.

114

N ecessity and ­P roportionality in D efense

bystander would infringe upon her rights, killing Smith would not infringe upon his rights. My rights enforcement account would still be able to accommodate the fact (if it is one) that killing Smith rather than the mobster would be impermissible. The enforcement principle does imply that it is permissible for Jones to secure her own right to life if she can do so without infringing upon the rights of others. However, this should not be understood as the claim that any action available to her that would prevent the infringement of her right to life and would not infringe upon the rights of others is permissible. Rather it should be understood as the claim that some action available to her that would prevent the infringement of her right to life and would not infringe upon the rights of others is permissible. It is therefore consistent with the enforcement principle to say that because the mobster is more responsible than Smith for the threat they pose to Jones’ right to life, Jones is morally required to kill the mobster instead of Smith. Further complications arise if the defender has the option of defending the potential victim by either inflicting harm of one magnitude on one aggressor or inflicting harm of a different magnitude on another aggressor. What ought to be done in such a case may be easy to discern, but what can be done without going beyond the boundaries of liability is another question. No doubt, among equally culpable aggressors, harm ought to be minimized (other things being equal); but if the defender inflicts a greater harm on one unjust aggressor when inflicting a lesser harm on another unjust aggressor would have served just as well, it is not clear (to me anyway) whether she has infringed upon the first aggressor’s rights. Nor is it obvious who is liable to what in cases where a lesser harm can be inflicted on a more culpable aggressor or a greater harm can be inflicted on a less culpable aggressor. I confess that I am uncertain how to handle these and other complications that arise in some cases of multiple aggressors, and so I do not have a complete definition of necessary harm to offer.

115

WAR A ND INDIVIDUAL RIGHTS

5.3. PROPORTIONATE HARM Given my understanding of “necessary harm,” “proportionate harm” cannot be understood, as it often is, as harm the magnitude of which is proportionate to the seriousness of the relevant threat. To see why, consider one more case: Shoot or Shield II: Smith is seeking to murder Jones. He has already fired one shot at Jones and, having just barely missed his target, has moved closer and is now preparing to take a second shot. He has only one bullet left, and so if he fails to kill Jones with his second shot, he will no longer pose any threat at all. I can prevent Jones from being harmed, either by shooting Smith in the head before he can fire his gun a second time, or by leaping in front of Jones so that the second bullet strikes me instead of him. Because I have a bulletproof vest, the latter option would result in a painful bruise to my torso but would not seriously injure me. Although shooting Smith in the head will kill him, I choose that defensive option.

In this case no less than in Shoot or Shield, killing Smith is necessary to ensure that the costs of enforcement fall on Smith rather than on a certain nonliable party (namely, me). Nevertheless, killing Smith is clearly impermissible here. I want to say that in this case killing Smith is disproportionate; but it is not disproportionate to the end of averting the threat posed by Smith, for that threat is a threat of killing Jones. Rather it is disproportionate to the end of my avoiding the enforcement cost of a painful bruise. I expect that some will be inclined to think that I am mistaken here, that the problem with killing Smith in Shoot or Shield II is that it is unnecessary. That is a natural reaction to the case, but only insofar as one’s reactions are guided by the assumption that in defense the only relevant end for assessing necessity and proportionality is that of preventing the one being defended from being unjustly harmed. What counts as necessary is, of course, relative to

116

N ecessity and ­P roportionality in D efense

an end. In both Shoot and Shield and Shoot and Shield II, killing Smith is unnecessary to achieve the end of preventing Smith from killing Jones, but necessary to achieve the end of ensuring that Smith rather than some nonliable party sustains the enforcement costs of preventing Smith from killing Jones. Proportionality is also relative to an end. Relative to the end of preventing Smith from killing Jones, shooting Smith is a proportionate means. However, in Shoot or Shield II, killing Smith is disproportionate to the end of ensuring that I do not suffer the enforcement cost of a painful bruise. My proposal, then, is that, if there is only one liable party, an assessment of whether some harm to that party is proportionate requires determining whether a harm of at least that magnitude is necessary to eliminate or reduce the relevant threat of unjust harm, or necessary merely to avoid or reduce enforcement costs for one or more nonliable parties. If neither, then the harm is unnecessary and no proportionality assessment is needed. If the former, then only the first standard listed following this paragraph applies and the harm inflicted on the liable party is proportionate if and only if it meets that standard. If the latter, then both of the following two standards apply and the harm inflicted on the liable party is proportionate if and only if it meets both standards: P1. Let x be an individual liable to defense in virtue of posing a threat of unjust harm to an individual y. Then the harm h a defender inflicts on x in defense of y is proportionate to the end of eliminating the threat to y if and only if the disvalue for x of h does not far exceed the disvalue for y of the unjust threat that the defender seeks to eliminate or reduce. P2. Let x be an individual liable to defense in virtue of posing a threat of unjust harm to an individual y. Any harm h a defender inflicts on x in excess of what is necessary to minimize the likelihood of x’s unjustly harming y is proportionate to the end of preventing an enforcement cost from falling on a nonliable party if and only if the disvalue for x of h does not far exceed the disvalue of that enforcement cost.

117

WAR A ND INDIVIDUAL RIGHTS

Given this procedure for assessing proportionality, the harm I inflict on Smith in Shoot or Shield II is disproportionate. For killing Smith is not necessary to prevent him from murdering Jones; rather it is necessary to prevent me from suffering an enforcement cost. Thus, P1 and P2 both apply and, although killing Smith does satisfy P1, it does not satisfy P2; for the harm I inflict on Smith in excess of what is necessary for defense is his death, and the disvalue for Smith of dying far exceeds the disvalue for me of the enforcement cost (a painful bruise) that I thereby avoid.

5.4. DO THE NUMBERS COUNT? Cases of multiple liable parties complicate matters, and I do not have a complete definition of proportionate harm to offer. Nevertheless, I would like to conclude this chapter by addressing one sort of complication that frequently arises in war. The question is whether inflicting harm in defense of self or other can be disproportionate in virtue of the number of aggressors who must be harmed. Suppose, for example, that one must kill 1,000 evil assassins to secure the life of a single innocent person who will otherwise be murdered by them. (To fill out the example a bit, suppose that each assassin puts an individually harmless amount of poison into someone’s food, because 900 of those small doses are collectively not only toxic but lethal and each assassin wants to take part in the assassination.) The total harm that successful defense would inflict in such a case (1,000 deaths) far exceeds the total harm that would thereby be avoided (one death). Nevertheless, I suspect that most of us would want to say that, because each of the 1,000 aggressors is liable to being killed, killing all of them could be permissible (although, perhaps, if we increase the number of aggressors in the example enough, some will be inclined to say that defense would then be impermissible). However, in those cases where multiple unjust aggressors are just barely culpable or minimally responsible for the threat of unjust 118

N ecessity and ­P roportionality in D efense

harm they collectively pose, it is not at all obvious that it would be proportionate to harm large numbers of aggressors in defense of a single person.7 Intuitions may differ here, but I am inclined to think that in such cases the numbers can determine whether defense is permissible: ceteris paribus, it is impermissible to kill, say, 1,000 minimally responsible aggressors who, collectively, will otherwise unjustly take the life of a single person. Notice, however, that the proposition that it would be impermissible to kill 1,000 minimally responsible aggressors is consistent with the proposition that, if necessary, it would not infringe upon the rights of any individual aggressor to do so. Moreover, although I have no argument to offer in support of my intuitions here, I find both of those propositions intuitively appealing. I for one would find it difficult to take seriously an aggressor in such a case who claimed that, because of the large number of aggressors who must be killed to save their potential victim, it would violate his individual rights to be killed in defense of that potential victim. Nor do I see any reason to suppose that there is some collective right in such a case that would be violated by defense. I find it plausible, then, to suggest that in assessments of proportionality for the purpose of determining the limits of liability, the numbers do not count. Nevertheless, even if the numbers don’t count in that respect, we can still ask the question, “Is there a sense of proportionality external to liability, and is proportionality in that sense sensitive to the number of aggressors who must be harmed for successful defense?” In section 1 above I defended the internalist conclusion that there are both necessity and proportionality limits to defensive liability. However, it does not follow from that conclusion that there are no necessity or proportionality limits to the right to defense that are external to defensive liability. Thus, Jeff McMahan distinguishes narrow proportionality 7. This sort of case was first brought to my attention by Jeff McMahan at a conference on the ethics of war at the University of California, San Diego in March 2013.

119

WAR A ND INDIVIDUAL RIGHTS

from wide proportionality, the former being internal to liability, the latter external to it.8 I believe that McMahan could with equal justification distinguish wide from narrow necessity, although to date he has chosen not to do so. I also believe, however, that once one leaves the boundaries of liability, defining the scope of the right to defense in terms of proportionality and necessity loses much of its usefulness. This is because whether it is justifiable to inflict on an aggressor harm to which he is liable can depend on many different moral factors and it is awkward at best to try to squeeze all of them into the two categories of necessity and proportionality. That being said, cases of multiple aggressors who are barely culpable or only minimally responsible for unjust aggression are best accommodated by recognizing a restriction on the right to defense that is external to liability and could naturally be described as a proportionality restriction.9 I propose the following account of this restriction: Regardless of how many aggressors there are, if one or more of them must, for example, be killed to defend a single individual who would otherwise be unjustly killed by them, then justice will typically favor the costs to fall on the more responsible parties. However, that consideration of justice is relatively weak when the aggressors are barely culpable or minimally responsible. Accordingly, only if the number of barely culpable or minimally responsible aggressors who must be killed for successful defense is relatively small will justice take precedence over beneficence; for then what justice wants to allow will be only weakly opposed by beneficence. If, however, successful defense requires killing a large enough number of barely culpable or minimally responsible unjust aggressors, then beneficence will so strongly oppose what justice only weakly supports that justice will yield. Thus, although in such a case all of the aggressors are liable to being killed if doing 8. Jeff McMahan, Killing in War (Oxford: Clarendon Press, 2009). 9. Notice that recognizing the existence of a proportionality restriction external to liability does not vindicate externalism; for as defined above, externalism with respect to proportionality entails the denial of the internalist thesis that there is a proportionality limit to defensive liability.

120

N ecessity and ­P roportionality in D efense

so is necessary to prevent them from unjustly killing their potential victim, considerations of well-being make it impermissible to kill them. If we want, we can say that killing them would be disproportionate.10

10. This account of liability in cases of multiple aggressors is similar to the account Jeff McMahan presents in New Essays on the Ethics of War, eds. Saba Bazargan and Sam Rickless (New York: Oxford University Press, forthcoming).

121

[ 6  ] LIBER ATING JUST WAR THEORY FROM DOUBLE EFFECT

In theory, recourse to war could be justified by a simple appeal to defense: an army goes to war and secures threatened rights by inflicting necessary and proportionate harm on only those who, under the defense liability principle, are liable to such harm. In practice, however, waging war in the 21st century often involves inflicting unnecessary harm and disproportionate harm on unjust aggressors, and always involves engaging in acts of violence that harm at least some innocent bystanders. (Recall that I am using the expression “innocent bystander” to mean “someone who is not liable under the defense liability principle.”) It is not surprising, then, that those who reject just war theory in favor of antiwar pacifism (the view that recourse to war is never justified) often appeal to the rights of innocent bystanders as a basis for their position. In response, most just war theorists concede that in determining whether recourse to war would be justified, political leaders need to carefully consider not just the value of the ends for which the war would be fought, but also the extent to which waging war would infringe upon the rights of innocent bystanders. They maintain, however, that sometimes waging war has enough positive value to justify the infringement upon rights that it requires. In traditional just war theory, the principle of double effect (hereafter PDE) is identified as the relevant standard for assessing whether the benefits of waging war justify its costs. Under that principle, intentionally killing an innocent person is very difficult

122

L iberating J ust W ar T heory

(and on some formulations impossible) to justify, but a course of action that has as a foreseen consequence the death of one or more innocent persons is justified if the loss of innocent life is an unintended side effect of pursuing a good end the value of which is proportionate to the disvalue of that loss.1 My aim in this chapter is to show that PDE has no role to play in an adequate just war theory. I also consider and reject the suggestion that just war theory should employ either of two close cousins to PDE, one of them a principle widely known as the “means principle” (hereafter MP), the other a principle that some refer to as the “restricting claims principle” (hereafter RCP).2

6.1. THE STRUCTURE OF MY ARGUMENT The core idea of PDE is that (other things being equal) harming an innocent person is more difficult to justify if the harm is intended in the sense of being sought as an end, or as a means to an end, as opposed to being a mere foreseen side effect of pursuing some good end. The core idea of MP, on the other hand, is that harming an innocent person is more difficult to justify if the harm is a consequence of using that person as a means to achieving one’s ends. Finally, RCP states that restricting claims are less weighty than claims that are not restricting, where a claim against an agent is restricting if and only if, should the agent respect that claim as a right, she would be restricted from doing what she could otherwise permissibly do if the claimant were absent. For the sake of clarifying the structure of my argument, it will be useful to distinguish those formulations of PDE, MP, and RCP 1. It is not obvious how the relevant notion of an “innocent person” is to be defined here, but one possibility is “someone who is not liable to being killed.” 2. The label is Alec Walen’s. Walen defends RCP in “Transcending the Means Principle,” Law and Philosophy 33, no. 4 (2014): 427–64. Gerhard Overland defends a very similar principle in “Moral Obstacles: An Alternative to the Doctrine of Double Effect,” Ethics 124, no. 3 (2014): 481–506.

123

WAR A ND INDIVIDUAL RIGHTS

that are “strongly discriminating” from those that are only “weakly discriminating,” where a formulation is strongly discriminating if and only if it tells us that some actions are much harder (say, at least twice as hard) to justify than others. My argument can then be characterized as having the following two parts. First, I argue that the prospects for successfully defending a strongly discriminating formulation of PDE, MP, or RCP are dim. Second, I argue that even if some weakly discriminating formulation of one of these principles is true, such a principle is virtually useless as a guide to making political decisions about whether to wage war or military decisions about how to wage war. Before proceeding, it is worth pausing to note that, quite arguably, PDE has had tremendous influence on international law and other standards for military conduct. In the Law of Armed Conflict, for example, a distinction is drawn between harming noncombatants directly (i.e., as a foreseen consequence of attacking them), and harming them indirectly (i.e., as a foreseen consequence of attacking military targets). The former is a war crime, the latter is not. Moreover, although under the Law of Armed Conflict some acts that are not criminal are nevertheless prohibited, harming noncombatants indirectly is not even prohibited so long as the harm is minimized and there is an adequate military justification for the attack that inflicts the harm.3 The legal distinction follows the contours

3. Article 85 of Additional Protocol I (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977) states that acts of terror warfare such as “making the civilian population or individual civilians the object of attack . . . shall be regarded as grave breaches.” The same article also states that “grave breaches of these instruments shall be regarded as war crimes.” Article 57 says that “those who plan or decide upon an attack shall . . . take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects,” and they shall also “refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. . . .”

124

L iberating J ust W ar T heory

of PDE, and it seems quite likely that PDE was at least part of its original rationale.4 Although difficult to assess, it seems to me that PDE’s prominence in just war theory and its influence on accepted norms of warfare are not without significant costs. PDE makes it easy for powerful nations to rationalize war efforts that infringe upon the rights of huge numbers of innocent bystanders; for it is not difficult for such nations to wage war without intentionally harming innocent bystanders, and so PDE allows them to write off as “unintended side effects” the unjust harm they inflict on so many. Of course, PDE does require warfare that generates collateral damage to achieve benefits proportionate to the extent of that damage; but in the fog of war it is not difficult for government and military leaders to give mere lip service to proportionality by offering flimsy appeals to political goals or to military necessity instead of anything even remotely resembling a serious costbenefit analysis. Still, the fact that a principle can be misapplied or abused does not show that the principle itself is unreliable, and most ethicists who write on just war theory believe that PDE, or something like PDE, must play a role in an adequate just war theory. Most attempts to defend PDE, MP, or RCP appeal, at least in part, to moral common sense or common moral intuition. In many cases an attempt is made to buttress this intuition-based support by providing some underlying rationale for the principle. What I hope to accomplish here is to undermine the intuition-based case for a strongly discriminating version of any of these principles. It is common to find critics of PDE conceding that the principle has the support of common intuition in a wide range of cases, but arguing that the various formulations of 4. The extent to which the Law of Armed Conflict was in fact formulated to encode the moral principles of traditional just war theory is a matter of historical debate. I am inclined to agree with the view of Davida E. Kellogg that the Law of Armed Conflict was “specifically intended to encode and enact the moral principles the Just War Tradition embodies.” See her “Terrorism and the Laws of War,” Military Review (Sept–Oct, 2005): 50–7.

125

WAR A ND INDIVIDUAL RIGHTS

PDE that are offered for the sake of accommodating moral intuition in those cases also contradict moral intuition in other cases. I want to reach a stronger conclusion, for I want to show not only that strongly discriminating formulations of PDE (and MP and RCP) contradict common moral intuition in certain cases, but also that the sorts of cases that might seem to provide intuition-based support for such a formulation, and might motivate continuing to look for a strongly discriminating formulation that is not vulnerable to counterexamples, actually provide no real support at all for any such formulation.

6.2. PDE, MP, AND RIGHTS Traditional formulations of PDE are strongly discriminating. On such formulations, there is an absolute prohibition against intending to take innocent life; but one can justifiably take innocent life if (i) one does not intend the death in question (and one does not violate any other absolute moral prohibition) and (ii) taking that life is necessary to achieve good that is proportionate to the evil one produces. If it were true, a traditional formulation of PDE would be well-suited to serve as a basis for the legal distinction between directly and indirectly harming noncombatants. Consider, however, one of Judith Jarvis Thomson’s well-known trolley cases5: Push. This is the case in which five lives are threatened by a runaway trolley and the only way someone (call her “Rescuer”) can save those lives is to push a very large man (“Victim”) off a bridge and onto the tracks below so that the trolley will strike him and, as a consequence of the drag created by the enormous bulk of his body, come to a stop before it reaches the five. Rescuer chooses to save the five lives, and so Victim dies as a foreseen consequence of being struck by the trolley. 5. Judith Jarvis Thomson, “The Trolley Problem,” in Rights, Restitution, and Risk (Cambridge, MA: Harvard University Press, 1986).

126

L iberating J ust W ar T heory

Let us assume that what common intuition tells us about this case is correct: Rescuer’s killing Victim is unjustified and would remain so even if Rescuer saved ten or fifteen or twenty lives by killing Victim. This assumption threatens traditional formulations of PDE because, in Push, it appears that, strictly speaking, Victim’s death is neither Rescuer’s end nor the means by which she achieves her end and so is “unintended” in the relevant sense. Her means to saving the five includes pushing Victim off the bridge, Victim’s being struck by the trolley, and his body’s creating drag on the trolley; but any injury to Victim that results from her use of these means appears to be a regrettable side effect of the intended effects of her behavior. Because the benefits of pushing Victim off the bridge are substantially greater than its costs, traditional formulations of PDE wrongly imply that Rescuer justifiably kills Victim in Push.6 Notice, however, that Rescuer uses Victim himself as a means to achieving her end; and on MP that is supposed to be a morally salient feature of cases like Push, one that makes it more difficult to justify a killing in terms of benefits. (RCP is also aligned with 6. The literature on double effect contains several discussions of whether the defender of PDE can loosen her definition of “intended” so that some deaths, even though they are not, strictly speaking, intended, can, for the purposes of the principle, be counted as such because what is intended in the narrow sense is closely connected to the death in question. Even if such an approach rescues PDE from cases like Push, however, it cannot prevent other cases I discuss later (e.g., Push Car II and Landslide) from being used to undermine traditional formulations of PDE. Moreover, I doubt that such a maneuver can rescue traditional formulations of PDE even from Push. Consider, for example, Jonathan Bennett’s suggestion that if a first event’s occurring without a second event’s occurring is “inconceivable” in the loose sense that “we have not the faintest idea” how the first event might occur without the second one occurring, then if we count the first event as a means for the purposes of applying PDE, the second event should count as a means as well. In the case at hand, it seems to me to be conceivable that the trolley might hit the large man and even be stopped by him without killing him, for there might be some slight chance that, say, only his legs bear the brunt of the collision and create the necessary drag to stop the trolley. See Bennett’s The Act Itself (New York: Oxford University Press, 1995), 208–13.

127

WAR A ND INDIVIDUAL RIGHTS

common moral intuition in cases like Push, but right now I want to focus on MP.) Consider, however, the following example: Push II. To save the lives of five persons, Rescuer must cross a very narrow bridge. Unfortunately, Victim is on that bridge, and Rescuer cannot get across in time to save the five unless she immediately pushes him off of the bridge. She does so even though she knows that, because he will land on the trolley tracks, Victim will be struck and killed by an approaching trolley.

Judging by discussions of similar cases in the literature, the common intuition here is that Rescuer’s killing Victim is once again unjustified, and this in spite of the fact that she does not use Victim (or Victim’s being struck or killed by the trolley) as a means to her end. It seems clear that in Push II no less than in Push, Rescuer infringes upon the rights of Victim by acting on his body in a way that results in his death. Indeed, many of the actions that MP favors are infringements of rights and, as such, are very difficult to justify. Nevertheless, the proponent of a strongly discriminating formulation of MP would have us believe that those infringements upon rights that the principle discriminates against are, other things being equal, not only more difficult, but much more difficult, to justify than infringements upon rights that the principle discriminates in favor of. I see no reason to suppose that this is true. Judging by my own intuitions, it is not much more difficult to justify harmful behavior of the sort illustrated by Push than it is to justify harmful behavior of the sort illustrated by Push II. There would be intuition-based support for a strongly discriminating formulation of MP if there were some number n such that our intuitions informed us that if Rescuer’s killing Victim in Push II would save n lives, killing Victim would be justified, but her killing Victim in Push would remain unjustified even if she were to save 2n lives. My own intuitions inform me, however, that no such discrimination is possible, and I suspect that most others would agree. 128

L iberating J ust W ar T heory

Of course, even if I am right about that, we do not have a conclusive reason to reject strongly discriminating formulations of MP. Contemporary formulations of MP typically include an otherthings-being-equal clause, thus insulating MP to some extent against counterexamples. Exploiting that clause, the defender of a strongly discriminating version of MP can respond to cases like Push and Push II by insisting that there must be some moral factor present in Push II but absent in Push that closes the moral distance between them in terms of how difficult it is to justify killing Victim in those kinds of cases. Given the difficulty of proving a negative, that suggestion will be difficult to prove false. Nevertheless, Push and Push II are quite similar. Thus, unless one can identify the relevant moral factor that is allegedly present in Push II but absent in Push, at least the tentative conclusion must be that, because killing is not much more difficult to justify in cases like Push II than in cases like Push, we should reject strongly discriminating formulations of MP.

6.3. QUINN’S DEFENSE OF DOUBLE EFFECT Not surprisingly, formulations of PDE and MP have been proposed that place Push II as well as Push among the actions that the principle discriminates against. Perhaps the best-known of these is Warren Quinn’s formulation of PDE, and I want to consider it in some detail.7 Rescuer’s behavior in Push is an example of what he calls “harmful exploitation,” and her behavior in Push II is an example of what he calls “harmful elimination.”8 In the former sort of case, a person x provides a second person y with an opportunity to achieve a certain end. (In Push, for example, Victim’s presence on the bridge presents Rescuer with the opportunity to save the five.) Without x’s consent, y exploits that opportunity and, as a foreseen 7. Warren Quinn, “Actions, Intentions and Consequences: The Doctrine of the Double Effect,” Philosophy & Public Affairs 18, no. 4 (Autumn 1989): 334–51. 8. Quinn, 344.

129

WAR A ND INDIVIDUAL RIGHTS

consequence, infringes upon x’s right not to be harmed. In cases of harmful elimination, on the other hand, x presents a threat or an obstacle to y’s achieving a certain end. (In Push II, for example, Victim’s presence on the bridge is an obstacle to Rescuer’s saving the five.) Without x’s consent, y eliminates that obstacle or threat and, as a foreseen consequence, infringes upon x’s right not to be harmed.9 Quinn proposes that in both kinds of cases, the inflicted harm is much more difficult to justify in virtue of the role the victim plays in the agent’s means-end reasoning. The agent does not merely foresee that her pursuit of her end will harm her victim; she “intends something for” her victim, something to which the victim does not consent and in virtue of which he is harmed. According to Quinn, that is what makes her behavior much more difficult to justify. Quinn’s explanation of the apparent relevance of such intentions is broadly Kantian. He suggests that, other things being equal, the agent who intends something for his victims when he harms them treats them with greater disrespect than he would if he were to harm them without such an intention. In such cases, Quinn proposes, the agent “sees” his victims “as material to be strategically shaped or framed by his agency” (regardless of whether they consent to that shaping or framing). Thus, the agent’s behavior is inconsistent with the Kantian ideal that “each person is to be treated, so far as possible, as existing only for purposes he can share.” Quinn further proposes that (other things being equal) harmful exploitation is more difficult to justify than harmful elimination, because the disrespect with which the agent treats his victim is morally more offensive. The suggestion appears to be that it is more disrespectful to treat others as mere resources to be exploited than to treat them as mere threats or obstacles to be eliminated.10 9. Quinn does not explicitly say that an act that causes harm counts as harmful exploitation or harmful elimination only if the harm is foreseen. As shown by Fischer et al., however, Quinn’s PDE is obviously mistaken if it is understood to apply to unforeseen harm. See John Martin Fischer, Mark Ravizza, and David Copp, “Quinn on Double Effect: The Problem of ‘Closeness,’” Ethics 103, no. 4 (July 1993): 707–25. 10. Quinn, “Doctrine of Double Effect,” 348–51.

130

L iberating J ust W ar T heory

Quinn’s attempt to reformulate and defend PDE so that it incorporates the core idea of MP is ingenious, but is his principle tenable?11 Consider this case: Push Car. Victim is in his car, and Rescuer’s car is behind Victim’s car on a bridge above the trolley tracks.The only way for Rescuer to save five people who are threatened by a runaway trolley is to use her car to push Victim’s car off the bridge and onto the tracks below, thus blocking the path of the trolley. Unfortunately, there is no time to warn Victim so that he can leave his car before she pushes it. Thus, when she does push Victim’s car onto the tracks to save the five, Rescuer foresees that Victim will be killed when the trolley strikes his car.

In this case Rescuer does not intend anything for Victim, for it is Victim’s car that she uses to stop the trolley. Her behavior here, however, does not seem less wrong than her behavior in Push II or even Push. Perhaps some would disagree. I suspect, however, that almost no one would suppose that it is much easier to justify killing in cases like Push Car than it is to justify killing in cases like Push II or even in cases like Push. In all three kinds of cases there is an infringement of rights that makes it highly difficult to justify Rescuer’s behavior by appeal to the good that it achieves, and, unless my own intuitions are eccentric here, the suggestion that the justificatory burden is much greater in cases like Push and Push II than in cases like Push Car is clearly the wrong result. Of course, there may be some moral factor in Push Car that is not present in Push or Push II that might be partly responsible for the size of the justificatory burden in cases like Push Car. Because Quinn’s principle does require other things to be equal, the mere introduction of cases like Push Car does not conclusively show that 11. Jeff McMahan proposes an amendment to Quinn’s formulation of PDE in “Revising the Doctrine of Double Effect,” Journal of Applied Philosophy 11, no. 2 (1994): 201–12. That amendment would not, however, enable Quinn’s formulation of PDE to avoid the objections I raise in this section.

131

WAR A ND INDIVIDUAL RIGHTS

Quinn’s principle (understood as strongly discriminating) is false. Push and Push Car are highly similar, though, and so, unless that alleged factor can be identified, my tentative conclusion must be that such cases undermine Quinn’s principle.

6.4. RECENT ATTEMPTS TO IMPROVE UPON QUINN Some moral philosophers have sought to refine PDE or MP by expanding Quinn’s notion of harmful exploitation so that it encompasses one’s behavior in cases like Push Car. In a recent paper on the ethics of self-defense, Jonathan Quong defends MP, arguing that to treat a person as a mere means encompasses using anything to which that person has a right (without his or her consent).12 On Quong’s view, Rescuer’s behavior in both Push Car and Push II counts as harmful exploitation, and is especially difficult to justify, not because she uses Victim’s body, but rather because she uses something else to which Victim has a right. In Push Car she uses Victim’s car; and in Push II, she uses the space on the bridge that Victim had been using and hence had a right to continue to use.13 (Recall that Rescuer needs to pass through that space to save the five.) Quong’s approach to defending MP does have the virtue of bringing a wide variety of the relevant cases under the single notion of harmful exploitation. However, this unification is achieved at the cost of undermining Quinn’s attempt to identify a compelling rationale for thinking that harmful exploitation is especially difficult to justify. It is one thing to complain, “You used me!” but quite another to complain, “You used my car!” Because cars are mere resources to be exploited, there is nothing disrespectful in seeing them as such. 12. Jonathan Quong, “Killing in Self-Defense,” Ethics 119, no. 3 (2009): 507–37. 13. Quong argues that one ordinarily has a right to the space one occupies, and I am inclined to agree with him on this point.

132

L iberating J ust W ar T heory

An even more serious problem is illustrated by the following kind of case: Push Car II. Same as Push Car except that Victim does not own the car that Rescuer pushes. Against Victim’s will, one end of a chain was attached to his wrist, and the other end was attached to the door of a third party’s car.

On Quong’s view, Rescuer’s behavior in Push Car II is not harmful exploitation, for she does not use anything that belongs to Victim to save the five. If we assume that Victim is to the side of the car as Rescuer pushes the car from behind, she does not even use any space to which Victim was entitled. Perhaps not everyone will share my own intuition here, but even if some find Rescuer’s behavior in cases like Push Car to be more difficult to justify than her behavior in cases like Push Car II, I strongly doubt that many will be inclined to say that her behavior in cases like Push Car is much more difficult to justify than her behavior in cases like Push Car II. Of course, there may be some moral factor in Push Car II that is not present in Push Car (or in Push or Push II) that might be responsible for the similarity in the justificatory burden in those two cases. Again, however, I cannot imagine what that factor might be. Perhaps the following pair of cases is even more clearly a difficulty for Quong’s view (assuming he is proposing a strongly discriminating principle): Boulder. Stopping the (unoccupied) trolley that threatens five lives requires Rescuer to roll a boulder down a hill so that it comes to rest at the bottom of the valley where the trolley tracks run. The boulder will provide an effective shield, preventing the trolley from reaching the five persons farther down the line. The problem is that Victim is right in the path that the boulder must travel if it is to reach the tracks and stop the trolley. The boulder itself will roll right over him, and he will be killed as a consequence. Nevertheless, Rescuer rolls the boulder. 133

WAR A ND INDIVIDUAL RIGHTS

Landslide. Here, stopping the trolley that threatens five lives requires Rescuer to cause a landslide so that rocks pile up at the bottom of the valley where the trolley tracks run. The rocks will provide an effective shield, preventing the trolley from reaching the five persons farther down the line. The problem is that Victim is in the only available path for the landslide and will be killed by falling rocks. Nevertheless, Rescuer causes the landslide.

On Quong’s view, Rescuer harmfully exploits Victim in Boulder, for, in that case, she needs to use the space occupied by Victim in order to rescue the persons on the track. In Landslide, on the other hand, Rescuer does not harmfully exploit Victim, for we can assume that Rescuer does not use the space occupied by Victim in that case because the rocks that hit Victim do not even reach the tracks. The cases are otherwise nearly identical. It seems quite clear, however, that Rescuer’s behavior in cases like Boulder is not much more difficult to justify than her behavior in cases like Landslide. Thus, if Quong is understood to be offering a strongly discriminating formulation of MP, it appears that cases like Boulder and Landslide undermine his principle. The basis for another possible development of Quinn’s position can also be found in the literature on the ethics of self-defense. Arguing that the right to self-defense extends to killing persons attached to threats, Helen Frowe follows Gerald Lang in proposing that if, for example, someone is innocently aboard a runaway trolley that threatens to kill you, that person is part of a composite object that threatens to kill you and so you may kill him in self-defense (perhaps by firing a rocket at the trolley).14 Applying Frowe’s ideas to Push Car and Push Car II, one might propose that, in each of these cases, Victim is part of a composite object that Rescuer uses to stop the trolley, and so Rescuer’s behavior is harmful exploitation in that 14. Helen Frowe, “Equating Innocent Threats and Bystanders,” Journal of Applied Philosophy 25, no. 4 (2008): 277–90. Frowe credits Lang with the idea here, citing his unpublished manuscript.

134

L iberating J ust W ar T heory

Victim is harmed as a consequence of Rescuer’s exploiting something of which Victim is a part. Frowe’s approach might enable Quinn to handle Push Car, but it will not have the desired result in Push Car II. For clearly mere attachment to an object that is being used is not sufficient for being part of a composite object that is being used. I can lean against, or even sit passively inside of, a crane as someone else uses it to lift something, for example, without being a part of any composite object that is used to lift something. Perhaps if something is attached to an object and also contributes to the end for which that object is used, it is then a part of a composite object that is used to achieve that end. It may be the case, for example, that even a fly sitting on a wrecking ball that is used to destroy a building would be part of a composite object that is used to destroy the building if in fact the mass of the fly contributes, however slightly, to the force of the ball’s destructive impact with the building. In Push Car II, however, we may assume that whereas the car lands in front of the trolley and creates the necessary drag to stop it, Victim, although attached to the car by a chain, collides with the trolley in such a way that he makes no contribution at all to the forces that stop the trolley. We can even imagine that, when Rescuer pushes the car off the bridge, she foresees that the chain will come off Victim’s wrist on the way down so that Victim is no longer attached to the car when the trolley hits both him and the car. Neither of these qualifications to Push Car II makes Rescuer’s behavior seem any less wrong, but they do make it clear that Victim is not part of a composite object that Rescuer uses to achieve her end. Furthermore, even if I am mistaken and so in Push Car II Victim is part of a composite object that Rescuer uses, it is very clear that Victim is not a part of a composite object that Rescuer uses to stop the trolley in Landslide. Thus, Lang’s notion of a composite object does not extend the notion of harmful exploitation far enough to avoid the difficulties I have identified for strongly discriminating formulations of PDE and MP. 135

WAR A ND INDIVIDUAL RIGHTS

6.5. THE RESTRICTING CLAIMS PRINCIPLE Let us turn our attention to another cousin of double effect: RCP. In an ingenious attempt to find a principle that can more successfully accommodate common moral intuition than do PDE or MP, Alec Walen proposes that “all else equal, restricting claims are substantially weaker than non-restricting ones,” where a claim against an agent is restricting if and only if, should the agent respect that claim as a right, she would be restricted from doing “what she could otherwise permissibly do for herself or others . . . if the claimant were absent.”15 If “substantially weaker” here means or entails “much weaker,” then Walen is proposing a strongly discriminating principle. Let us assume that this is his intent. To handle cases like Push Car, Walen echoes Quong by narrowing the notion of a restricting claim against a person S so that it includes only those claims against S such that S’s respecting the claim means that S cannot achieve some good that S could achieve if the claimant and everything to which the claimant has a right were absent.16 At least arguably, then, he can handle even a case like Push II, because there Victim’s claim can be seen as nonrestricting if we assume that Victim has a right to the space he occupies. (It is difficult, however, to make sense of the question of whether Rescuer could save the five if the space occupied by Victim were absent.) His view quite clearly fails, however, to accommodate cases like Push Car II and Landslide. Victim’s claim against Rescuer is restricting in those cases, for if Victim and all that is his were absent, Rescuer would be able to save the five. Thus, it appears that a strongly discriminating formulation of RCP implies that Rescuer’s behavior in cases like Push Car II and in cases like Landslide is much easier to justify than her behavior in cases like Push Car. Intuitively, that is the wrong result. Perhaps Walen would suggest that some restricting claims are as strong as some nonrestricting claims, and that the 15. Walen, 431. 16. Walen, 452–8.

136

L iberating J ust W ar T heory

restricting claims in Push Car II and Landslide, respectively, are examples of those. Still, until he also provides the criterion by which we can distinguish the stronger restricting claims from the weaker, Push Car II and Landslide will remain a difficulty for his account. RCP is also threatened by cases that do not threaten Quinn’s formulation of PDE or Quong’s formulation of MP. Consider this case: Push III. The terrorist is about to execute five innocent persons and, so long as he stays safely inside his fortified bunker, there is nothing Rescuer can do to stop him. Fortunately, the terrorist would much prefer to do the execution outside the bunker, and so Rescuer’s plan is to shoot him when he comes out. Alas, the terrorist sees Victim on a nearby bridge and, worried that Victim might interfere with the execution, prepares for an indoor execution. The only way Rescuer can change his mind so that she can save the five is to immediately push Victim so that he falls off the bridge. (The terrorist will assume that Victim freely left the area and will decide once again to do the execution outside.) Rescuer pushes Victim even though she knows that Victim will fall in front of a trolley and be killed.

Here Victim’s claim against Rescuer is restricting because if Victim and everything to which he has a right were not present, the terrorist would come outside and Rescuer would be able to shoot him and save the lives of the five hostages. Thus, unless Walen can qualify his view so that the restricting claim here turns out to be as strong as some nonrestricting claims, he must say that Rescuer’s behavior in this sort of case is much easier to justify than her behavior in a case like Push or Push II or Push Car. Intuitively, that is once again the wrong result.

6.6. ALLEGED SUPPORT FOR A STRONGLY DISCRIMINATING PRINCIPLE Let us take stock. We have been assessing formulations of PDE, MP, and RCP that strongly discriminate against certain sorts of actions 137

WAR A ND INDIVIDUAL RIGHTS

and in favor of others. I have not denied that the actions against which these principles discriminate are actions that are, in fact, very difficult to justify. The problem I have raised for each of these principles is that, when we are careful to hold other moral variables equal and compare actions that infringe upon rights, those actions that are strongly favored by the principle in question appear to be as difficult to justify, or at least nearly as difficult to justify, as the actions that are strongly disfavored by the principle. Nor can I think of any way to extend the notion of an intended effect, or the notion of harmful exploitation (or harmful elimination), or the notion of a restricting claim, so that some strongly discriminating formulation of PDE, MP, or RCP can overcome this difficulty. This may, of course, merely reflect a lack of ingenuity on my part; but at the very least, it remains to be shown that cases like Push Car II or Landslide cannot be paired with cases like Push or Push II or Boulder to undermine any strongly discriminating formulation of PDE, MP, or RCP. It might be argued, however, that other pairs of cases do support the claim that some strongly discriminating formulation of PDE, MP, or RCP must be true. Walen tries to garner support for RCP by pairing a case that is essentially identical to Push with a case that is essentially identical to the following: Sidetrack. Rescuer prevents a runaway trolley from striking and killing five persons by deflecting it onto a sidetrack, with the foreseen consequence that it strikes and kills Victim.

Because in Sidetrack Victim’s claim against Rescuer is restricting whereas in Push it is not, and because the common intuition in Sidetrack but not in Push is that Rescuer’s killing Victim is justified, Walen believes that such cases provide intuition-based support for RCP.17 It is doubtful, however, that the only morally relevant difference between Push and Sidetrack is that in Push the claim against Rescuer 17. Walen, 431–2.

138

L iberating J ust W ar T heory

is restricting whereas in Sidetrack the claim against Rescuer is nonrestricting. As Philippa Foot first noticed, one variable that appears to be playing a role in making it far easier to justify inflicting harm in cases like Sidetrack than in cases like Push is that Sidetrack is a case in which a threat is merely deflected, whereas Push is a case in which a threat is initiated. Deflecting harm seems to be a special sort of case: if one’s aim is to prevent harm by shielding oneself or others from a threat, then the mere knowledge that the threat will thereby be deflected in the direction of an innocent bystander is not a reason to think that the balance of harm inflicted to harm averted needs to be high in order for one’s actions to be justified.18 It is not easy to say why that should be so, but we shouldn’t try to force our intuitions about cases of deflection into the service of a strongly discriminating formulation of RCP. Quinn relies on three pairs of cases to provide intuitive support for his reformulation of PDE. One is a pair of abortion cases. In both of these cases, a woman’s pregnancy threatens her life. In the first of them, a craniotomy is performed on a fetus as a means to removing the fetus from the woman’s body; in the second, a hysterectomy is performed as a means to terminating the pregnancy. He describes the other two pairs as follows: In the Case of the Strategic Bomber (SB), a pilot bombs an enemy factory in order to destroy its productive capacity. But in doing this he foresees that he will kill innocent civilians who live nearby. Many of us see this kind of military action as much easier to justify than that in the Case of the Terror Bomber (TB), who deliberately kills innocent civilians in order to demoralize 18. See Philippa Foot, “Morality, Action and Outcome,” in Morality and Objectivity, ed. Ted Honderich (London: Routledge and Kegan Paul, 1985), 23–38. See also: Gregory S. Kavka, “A Critique of Pure Defense,” Journal of Philosophy 83, no. 11 (Nov. 1986): 625–33; and Samuel C. Rickless, “The Doctrine of Doing and Allowing,” Philosophical Review 106, no. 4 (1997): 555–75. Foot speaks of “diverting” a threat rather than “deflecting” a threat. Frances Kamm also defends the significance of the distinction between redirecting an existing threat and creating a new threat. See her Intricate Ethics (New York: Oxford University Press, 2007).

139

WAR A ND INDIVIDUAL RIGHTS

the enemy. Another pair of cases involves medicine: In both there is a shortage of resources for the investigation and proper treatment of a new, life-threatening disease. In the first scenario doctors decide to cope by selectively treating only those who can be cured most easily, leaving the more stubborn cases untreated. Call this the Direction of Resources Case (DR). In the contrasting and intuitively more problematic example, doctors decide on a crash experimental program in which they deliberately leave the stubborn cases untreated in order to learn more about the nature of the disease. Call this the Guinea Pig Case (GP). In neither case do the untreated know about or consent to the decision against treating them.19

I contend that none of Quinn’s three pairs of cases provide a reason to suspect that some strongly discriminating formulation of PDE (or MP or RCP) is true. Presumably he would concede that his pair of abortion cases provides no such reason, for he points out that some people feel that the intended killing of the fetus in the craniotomy case is “not much harder to justify” than the foreseen but unintended killing of the fetus in the hysterectomy case. 20 Moreover, using moral intuitions about abortion and killing in war to support any formulation of PDE is methodologically suspect, for such intuitions are too controversial and too likely to be polluted by common practice, tradition, and ideology to have much evidential value. Furthermore, if we consider cases of terror bombing and tactical bombing that are very similar to each other, I doubt that most of us do have Quinn’s intuition that the tactical bombing would be “much easier to justify.” Suppose, for example, that the only way to induce the enemy to surrender is to detonate an atomic bomb above a city, foreseeably killing tens of thousands of persons in the city below. Now compare two versions of the case. In the first, the bomb is detonated in order 19. Quinn, “Doctrine of Double Effect,” 336. 20. Quinn, “Doctrine of Double Effect,” 350.

140

L iberating J ust W ar T heory

to kill the inhabitants of the city. The enemy is expected to surrender immediately in order to avoid further losses of life. In the second, the bomb is detonated over the city in order to destroy the enemy’s weaponry (unbeknownst to its own civilian population, the enemy’s leaders have distributed this weaponry across the city), and the loss of civilian life is foreseen but unsought. The enemy is expected to surrender immediately in order to avoid further losses of weaponry. Is it really true that these two acts seem morally far apart? I would need to see empirical evidence that the common intuition would be that the second act would be much easier to justify by appeal to the value of securing immediate surrender. 21 Thus, it appears that insofar as Quinn’s examples can be used to make a case for a strongly discriminating formulation of PDE, the success of that case depends on the contrast between GP and DR. Nor does this set Quinn apart: many writers have relied heavily on cases quite similar to GP and DR to provide intuitive support for PDE. Even Philippa Foot, in the course of arguing against PDE, concedes that in a pair of cases quite similar to GP and DR, it does seem to make a moral difference that the agent aims at the harm in the one case but not the other.22 I think it important, then, to point out that my rights-based alternative to DDA provides at least as good an explanation as PDE (or MP or RCP) of the common intuition that there is a clear and substantial moral difference between such cases. As discussed in chapter 3, Quinn’s work on DDA,23 although flawed, correctly ties the doctrine to intentions. What he fails to

21. Jonathan Bennett argues that there is no moral difference between strategic and terror bombing. See his “Morality and Consequences,” in The Tanner Lectures on Human Values 1981 II, ed. Sterling McMurrin (Salt Lake City and Cambridge, UK: Univ. of Utah Press and Cambridge Univ. Press, 1981), part III. 22. Philippa Foot, “The Problem of Abortion and the Doctrine of Double Effect,” in Bonnie Steinbock and Alastair Norcross eds., Killing and Letting Die, 2nd edition (New York: Fordham University Press, 1994), 266–79. 23. Warren Quinn, “Actions, Intentions, and Consequences: The Doctrine of Doing and Allowing,” Philosophical Review 98, no. 3 (1989): 287–312.

141

WAR A ND INDIVIDUAL RIGHTS

notice, however, is that if his argument concerning the relevance of intentions to a proper understanding of DDA is correct, then the substantial moral difference between GP and DR can be explained in terms of that doctrine rather than PDE. For in GP the doctors intend the progression of the disease so that they can study it, but in DR the progression of the disease in those allowed to die from it is not intended. Thus, it turns out that Quinn’s own work on DDA undermines his defense of PDE, and even the contrast between GP and DR fails to provide genuine support for a strongly discriminating formulation of PDE, MP, or RCP. Of course, it is possible that PDE and my rights-based alternative to DDA both identify moral variables sufficient to justify our moral intuitions about GP and DR, but the point is that, given the existence of a compelling account of those intuitions in terms of my rights-based alternative to DDA alone, the fact that PDE also provides an account does not constitute positive support for PDE. There are other kinds of cases that might seem to provide strong support for some formulation of PDE, MP, or RCP. Whether we create a police force, produce and sell pharmaceuticals, or build a major highway, it is foreseeable that, at least in the long run, completely innocent persons will be seriously harmed as a consequence of our actions. Sometimes police officers abuse their authority by engaging in acts of brutality, people foreseeably die in automobile collisions on any major highway, and many if not most pharmaceuticals have deadly side effects for some users. In these cases and many others, harm done to the innocent, though unintended, is completely foreseeable, and yet no one would suggest that such actions ought to be avoided altogether. PDE, MP, or RCP might be invoked to explain why such behavior can be morally permissible in spite of its costs to the innocent; but there are other, more compelling, explanations. In some of the cases just mentioned (e.g., selling pharmaceuticals), the risks are freely assumed. In others (e.g., providing a net increase in security by creating a police force), we provide compensation for a set of risks some of which are foreseeably realized. (I will have more to say 142

L iberating J ust W ar T heory

about freely assumed risk and compensation for risks in chapter 7.) In still others, the harm we produce is dwarfed by the benefits we achieve. (I will also discuss this sort of justification in chapter 7.) What is usually overlooked, however, is that in most such cases we do not infringe upon rights partly because we neither act on anyone’s person or property in a way that results in harming them, nor do we allow some other object to act on them or their property in order to achieve our ends. We do enable others to act on other persons in a way that harms them, but we ourselves do not threaten the right of self-ownership at all. Thus, any claims against us are mere need claims and so are subject to being defeated by our own needs, or the needs of third parties. To better appreciate this crucial point, consider the following two cases: Coercion I. Jones, who happens to be standing beside you, wants to kill Smith, but Smith is a good distance from him and Jones is a poor shot. He knows, however, that you are an excellent shot. Accordingly, he provides you a gun and, aiming another gun at your head, demands that you shoot and kill Smith. You know that Jones will kill you if and only if you do not kill Smith. You choose to kill Smith. Coercion II. Jones, who happens to be standing beside you, wants to kill Smith, but Smith is a good distance from him and Jones does not have a long-range weapon. He knows, however, that you have a long-range weapon. Accordingly, he aims his gun at your head and demands that you hand over your weapon. You know that Jones will kill you if and only if you do not hand over your weapon. You also know that he will kill Smith if and only if you do hand over your weapon. You hand over your weapon.

Many (including myself) have the intuition that you may save your own life in cases like Coercion II, but not in cases like Coercion I. RCP cannot be used to account for such intuitions, because in both cases, Smith’s claim against you is restricting. (If Smith were 143

WAR A ND INDIVIDUAL RIGHTS

not present, you would not be coerced by Jones and so would be able to avoid being killed by Jones.) PDE and MP, on the other hand, do provide a way to discriminate between these cases. On my view, however, the correct way to discriminate between them is by reference to the fact that only in Coercion I do you infringe upon Smith’s right of self-ownership, for only in that case do you act on Smith in a way that results in his death. In Coercion II, you enable Jones to act on Smith in a way that kills him, but you do not act on him yourself. Thus, his only relevant claim against you is a need claim that you not enable Jones to kill him by providing Jones with a gun. That claim, however, is defeated by your own need to provide Jones with a gun. Similarly, if we create a police force, we do not thereby eventually act on the future victims of police brutality or intend the brutality they suffer. Thus, we do not violate the respective rights of self-ownership of those future victims. Furthermore, any need claim they have against us that we not establish the police force is defeated by the needs of the far greater number of persons who can be expected to benefit from police protection. Perhaps I am overlooking some genuine, intuition-based support for a strongly discriminating formulation of PDE, MP, or RCP; but I am unaware of any cases that provide such support. We have seen that pairs of cases like GP and LR, or Coercion I and Coercion II, cases that might seem to provide support for a strongly discriminating formulation of one of these principles, can be explained in terms of other principles. Moreover, if PDE or one of its cousins is to receive the support of moral intuition, then it must be formulated in a way that reflects what intuition tells us about the extent to which your behavior in a case like Push Car II is easier to justify (in terms of the number of lives saved) than your behavior in a case like Push; and I strongly suspect that most will be inclined to say that your behavior in Push Car II is at most a little easier to justify than your behavior in Push. Thus, my suspicion is that moral intuition provides support for only a weakly discriminating formulation of PDE, MP, or RCP. 144

L iberating J ust W ar T heory

6.7. THE IRRELEVANCE OF WEAKLY DISCRIMINATING PRINCIPLES I do not deny that certain pairs of cases provide some support for the suggestion that some weakly discriminating formulation of PDE, MP, or RCP must be true.24 (Recall that a weakly discriminating formulation of one of these principles will imply that, other things being equal, an action favored by the principle is easier, but not much easier, to justify than an action not favored by the principle.) Thus, even though, to my knowledge, no one has yet managed to formulate one of these principles in a way that does justice to common intuition, perhaps the prospects for doing so are bright enough to make it worthwhile to consider whether a weakly discriminating formulation of PDE, MP, or RCP could play a significant role in a just war theory. Let us suppose, then, that some weakly discriminating formulation of one of these principles is true. Can we now conclude that the principle in question provides a useful tool for assessing decisions about whether or how to wage war? For two reasons, the answer appears to be no. First, a formulation of PDE, MP, or RCP that merely states that actions of one sort are easier to justify than actions of another sort will provide little or no guidance to the political or military decision-maker. This is not to say that PDE, MP, or RCP needs to be formulated in a way that precisely specifies how much easier it is to justify actions favored by the principle. Borderline cases are fine, but only if there are also clear cases. To be useful, then, PDE, MP, or RCP must, at least in conjunction with some other principle or principles, imply that within some specifiable range of numbers, your behavior in a case like Push Car II, but not in a case like Push, would be justified if the number 24. It is difficult to determine, however, whether such cases provide support for PDE and MP or for some principle useful for assessing degrees of viciousness but not degrees of wrongness. Intuitive support for PDE or MP would, as I have suggested above, require specifying some number such that if that number of persons were saved in each case, your action in Push would seem unjustified, but your action in Push Car II would seem justified.

145

WAR A ND INDIVIDUAL RIGHTS

of persons saved were to fall within that range. I for one am unable to identify any such range, and so I suspect that common intuition will at best justify a formulation of PDE, MP, or RCP that is virtually useless as a guide to conduct.25 Let us suppose, however, that some relevant range of numbers can be specified. Even then, a weakly discriminating formulation of PDE, MP, or RCP is not apt to provide much guidance to political and military decisions pertaining to war, for, typically, such decisions can be based only on very rough cost-benefit calculations. Thus, if, for example, a particular decision to harm noncombatants as a side effect of attacking a military target can be justified by appeal to the benefits that might be secured, then in all likelihood a weakly discriminating formulation PDE, MP, or RCP will provide no reason to deny that a comparable decision to produce the same benefits by intentionally harming noncombatants would also be justified. If, conversely, a particular decision to intentionally harm noncombatants cannot be justified by appeal to the benefits that might be secured, then in all likelihood a weakly discriminating formulation of PDE, MP, or RCP will provide no reason to deny that a comparable decision to produce those same benefits by harming noncombatants as a side effect of attacking a military target would also be unjustified. Traditional formulations of PDE are at least relevant to military decision-making partly because they are absolutist: on such formulations, intentionally killing the innocent is murder and always wrong, whereas killing the innocent as a foreseen side effect of pursuing a good end is justified if the good of the end is proportionate to the evil of the loss of innocent life. Perhaps some would object that I have been too quick to deny that there is intuitive support for a strongly discriminating formulation of PDE, for to many, it does seem that murder is absolutely prohibited. I doubt, however, that 25. It might be objected that even a principle that says merely that one sort of action is easier to justify than another sort could be useful because it would imply that in cases where one can achieve one’s objective through either sort of action, one ought, other things being equal, to engage in the sort of action that is easier to justify. I suspect, however, that in war such cases are very rare.

146

L iberating J ust W ar T heory

it would seem to many that, for example, whereas your behavior in Push is murder and so would be morally wrong regardless of how many lives it saved, your behavior in Push Car II is not murder and so would not be wrong if a sufficient number of lives were saved. Thus, I see no reason to suppose that the line between killing that is absolutely prohibited and killing that is not absolutely prohibited corresponds to any line drawn by PDE. My conclusion in this chapter is that the case is weak for supposing that in war PDE, MP, or RCP is useful for determining whether killing innocent bystanders can be justified. If we rely on our moral intuitions, we should reject strongly discriminating formulations of these principles; and weakly discriminating formulations are not relevant enough to political decisions about whether to wage war, or to military decisions in war, to play a significant role in a just war theory.26

26. My argument in this chapter might be taken as a basis for thinking that the distinction in the Law of Armed Conflict between directly and indirectly attacking noncombatants should be rejected. However, I believe, though I do not argue it here, that the distinction can be grounded in its usefulness for reducing unjust harm in war.

147

[ 7  ] THE RIGHTS OF INNOCENT BYSTANDERS

It might seem that my conclusions thus far provide a foundation for antiwar pacifism rather than for just war theory. Given that, in practice, even the most discriminate of war efforts include military operations that injure or kill large numbers of innocent bystanders, and given that the principle of double effect is not available to justify such violence, it might seem unrealistic to suppose that the decision to wage war is compatible with a proper respect for individual rights. Indeed, one of the most common arguments for antiwar pacifism rests on the claim that, given the nature of modern warfare, it is impossible to go to war without violating the rights of innocent bystanders who are inevitably killed as a consequence of military operations. In this chapter, however, I undermine that argument by explaining: first, why recourse to war can be justified even if it predictably results in violations of rights; second, why harming innocent bystanders need not infringe upon their rights; and, third, why harming innocent bystanders can be justified even when it does infringe upon their rights.

7.1. UNAUTHORIZED VIOLENCE It might be suggested that waging war cannot possibly respect rights because it predictably involves violating (i.e., unjustifiably infringing upon) at least some rights. Take, for example, NATO’s recent war effort in Afghanistan. Even the most ardent defender of that effort 148

R I G H T S O F I N N O C E N T B Y S TA N D E R S

would readily admit that the American soldier who, acting on his own initiative, killed 17 civilians in Afghanistan’s Kandahar province in March 2012 violated the rights of his victims. Such murders are not an unforeseen consequence of the decision to wage war. Indeed, I am prepared to concede that, whenever a large-scale war effort is undertaken, it is predictable that violations of rights will occur. The predictability of such disrespect for rights does not, however, warrant the adoption of antiwar pacifism; for there is no inconsistency in claiming that, even though waging war predictably results in violations of rights, the decision to wage war does not itself violate rights. Suppose that, acting within the scope of her political authority, the political leader of nation x decides to take her nation to war against the government and armies of nation y in order to stop them from committing genocide. Suppose further that x’s leader does this knowing that it will result in attacks on x by y’s army that will violate the rights of those citizens of x who are harmed by the attacks. Obviously it does not follow from these suppositions that in deciding to go towar x’s leader violates the rights of those fellow citizens who are harmed by y’s army. The political leaders and armed forces of y violate those rights, but the political leader of x does not. The fact that the decision to wage war need not violate the rights of those who, as a result of that decision, have their rights violated by the enemy is to be explained in terms of certain features of rights that were identified in chapters 2 and 3. In the preceding example, soldiers in y’s army act on the persons of their victims in x in ways that harm them and thereby violate their respective rights of selfownership. The leader of x and the members of x’s armed forces, on the other hand, do not act on the victims of y’s war effort at all, nor do they intend their enemy to act in ways that violate the rights of those victims, nor do they in some other way violate rights. Rather, they merely create conditions under which y’s leader and armed forces predictably violate rights. Of course, as the example from the war in Afghanistan illustrates, a decision to wage war predictably results not only in the 149

WAR A ND INDIVIDUAL RIGHTS

enemy’s violating rights, but also in violations of rights by one’s own armed forces. In part, this is because one predictable result of choosing to send armed forces to war is that some members of those forces will commit unauthorized acts of violence that violate rights. Does it follow from the fact that all war efforts contain such unauthorized violations of rights that the decision to wage war itself violates rights? The common view here is that the answer is no. So long as the violations are unauthorized and contrary to military policy, and adequate steps are taken to minimize their number and seriousness, they do not by themselves provide a basis for the conclusion that the decision to wage war is itself a violation of rights. Once again an appeal to certain features of rights provides the correct explanation for the apparent moral facts. Even though unauthorized violations of rights are predictable, those who authorize war do not act on the victims of those violations of rights, nor do they typically intend the unauthorized behavior to occur. Rather they merely create conditions under which some members of their own armed forces predictably violate rights. Thus, they need not infringe upon the rights of the victims of the unauthorized violence inflicted by members of their nation’s armed forces.

7.2. EXCUSABLE VIOLENCE Unauthorized violations of rights are not the only sort of violation of rights that most if not all war efforts contain. At least typically, those who authorize war know that, as a consequence of doing so, some members of their own nation’s armed forces will excusably1 1. In chapter 4 I distinguished between a mitigating excuse and an exculpating excuse. Where the former exists, the action is only partly excusable and so still blameworthy, though to a lesser degree than it would be without the excuse. Where an exculpating excuse is available, the action in question is fully excused and hence blameless. In this chapter, when I use the term “excusable” or “excusably” to describe an agent or action, I mean that, because of the presence of an exculpating excuse, the action is not blameworthy at all. In short, in this chapter, “excusable” implies “blameless.”

150

R I G H T S O F I N N O C E N T B Y S TA N D E R S

inflict harm on those who are not liable to harm. In a war in which the enemy consists of insurgents embedded in the general population, for example, it can be quite predictable that innocent bystanders who are not liable to harm will be harmed because they are mistaken for insurgents. If harming insurgents can be justified by the appeal to defense, and the mistakes in question are reasonable, then it may well be that the harm to innocent bystanders mistaken for insurgents is excusably inflicted. The question arises, then, whether the knowledge that waging war will result in some members of one’s own armed forces excusably inflicting harm on innocent bystanders means that the decision to wage war would violate rights. It would be a mistake, I think, to base an answer of no on the premise that excusable behavior cannot itself violate rights. Recall the example (Mistake I) of the individual who reasonably though mistakenly believes that he must shoot me to prevent me from committing murder. His excuse of unavoidable ignorance may well be exculpating and, if it is, then he cannot be blamed at all for shooting at me. Nevertheless, since he cannot be certain that I pose a threat, he freely risks unjustifiably shooting at someone who is not liable to being shot; and I see no reason to deny that, since that risk is realized, he violates my rights by shooting at me. Similarly, the soldier in the counterinsurgency operation who excusably mistakes an innocent bystander for an insurgent (blamelessly) violates the rights of that bystander if he wounds or kills him. Even though excusable harm can infringe upon rights, one might still think that the predictability of one’s own armed forces excusably infringing upon rights does not mean that one’s decision to wage war infringes upon rights. Consider, however, the following three cases: Case 1: The president of some nation decides to fight an air war, bombing military targets, but knowing that some innocent bystanders who happen to live near to some of those targets will be killed as collateral damage. None of the killings of innocent bystanders are excusable. 151

WAR A ND INDIVIDUAL RIGHTS

Case 2: The president of some nation decides to wage counterinsurgency warfare, knowing that some innocent bystanders will be mistaken for insurgents and, so, killed. All of the killings of innocent bystanders are excusable, because all of the mistakes are reasonable. Case 3: The president of some nation decides to wage war, knowing that some innocent bystanders will be killed in unauthorized attacks. None of the killings of innocent bystanders are authorized or excusable.

Let us assume that in all three cases the innocent bystanders who are killed have a right not to be killed. Given that assumption, it is clear that the president’s decision in Case 1 infringes upon the rights of innocent bystanders. In Case 3, on the other hand, the decision to wage war need not infringe upon the rights of the innocent bystanders who are killed. What are we to say, then, about Case 2? Here, the president’s decision, like her decision in Case 1, infringes upon the rights of those innocent bystanders who are harmed. For in Case 2 as in Case 1, the president authorizes a set of actions, intending those authorized actions to be carried out, and foreseeing that some of those authorized actions will infringe upon rights. She herself thereby infringes upon rights. What distinguishes Case 1 and Case 2 from Case 3 is that, in the former cases but not in the latter case, the decision to go to war involves intending acts that foreseeably inflict unjust harm. As discussed in chapter 3, intending the action of a person or object under one’s control is akin to acting oneself. Thus, if a leader sends armies to war intending actions some of which, excusably or not, infringe upon rights, she herself infringes upon rights. By contrast, the leader who authorizes war knowing that doing so will result in some unauthorized actions that inflict unjust harm, but not intending those actions, merely creates the conditions under which others will infringe upon rights; she does not infringe upon rights herself. Indeed, even if I am mistaken to suppose that excusably inflicting harm can infringe upon rights, my conclusion about Case 2 still holds. To see this, one needs to recognize that harm that is unforeseeable and hence excusable at the operational level (the level 152

R I G H T S O F I N N O C E N T B Y S TA N D E R S

of military operations) can be foreseeable and hence not excusable at the strategic level (the level of general strategic deliberation) or at the political level (the level at which decisions are made about whether to go to war, surrender, etc.). At the strategic and political levels, it may be foreseeable and in no way excusable that, for example, counterinsurgency warfare will result in some innocent bystanders being mistaken for insurgents and hence killed by mistake; and this is true even if the soldiers who carry out the counterinsurgency operations and so kill some innocent bystanders by mistake are fully excused for their mistakes. We may conclude, then, that if one decides to go to war knowing that some members of one’s own armed forces will excusably harm persons who have a right not to be harmed, then, regardless of whether excusably doing harm can infringe upon rights, one’s decision to wage war infringes upon rights. It might be objected that if the decision to wage war is, in part, a decision to authorize behavior some of which, quite predictably, will excusably violate rights, then the decision to wage war itself is a violation of rights. In reply, we need to distinguish once again the operational level from the political level. The individual soldier who, for example, mistakes an innocent bystander for an insurgent and so excusably kills someone who has a right not to be killed has no justification for her behavior. Thus, she unjustifiably (though excusably) infringes upon rights. It does not follow, however, that the political leaders who sent that soldier to war do not have a justification for the excusable harm that, predictably, their war effort inflicts. Harm that at the operational level violates rights can, at the political level, be a justifiable infringement upon a right. (More on the sort of justification that might be available in war can be found in section 5.)

7.3. LIABILIT Y THROUGH ASSUMED RISK In our discussion of cases 1–3, I stipulated that the innocent bystanders in those cases have a right not to be killed. I now want 153

WAR A ND INDIVIDUAL RIGHTS

to argue that sometimes innocent bystanders can be harmed and even killed without any infringement upon their rights. Innocent bystanders are, under my stipulative definition, not liable under the defense liability principle. But satisfying the two conditions in the antecedent of that principle is not the only possible source of liability. Another source is free and informed consent. Harming (or even killing) someone who freely and knowingly consents to be harmed (or killed) is sometimes unjustifiable, but even then it does not infringe upon the consenter’s rights. Of course, liability generated by consent is not very relevant to our concerns, as those who are harmed in war almost never consent to be harmed (nor do they otherwise voluntarily waive or relinquish their right not to be harmed). Similarly, although punitive liability is a possible source of liability in war, it is rare to find a death or serious injury inflicted by war that can be justified on punitive grounds. Because of his crimes against humanity, Adolf Hitler was liable to punishment; and I would even go so far as to suggest that there would have been no infringement upon his rights had he been killed for purely punitive reasons by Allied forces during their final assault on Germany in World War II. The Allies could not, however, have justified on punitive grounds killing innocent bystanders in the German population. (Even the average soldier in Hitler’s army, although to some degree culpable for participating in Germany’s unjust aggression, was not a suitable candidate for capital punishment.) It appears, then, that neither liability arising from consent nor punitive liability is likely to play a significant role in justifying harming innocent bystanders in war. Several just war theorists have suggested, however, that in some wars one can find innocent bystanders who, in virtue of putting themselves in harm’s way, are liable to being harmed or even killed. The basic idea here is that in war it does not infringe upon rights to injure or kill those persons who, by freely and knowingly entering, or even failing to leave, an area that contains military targets, “assume the risk” of being injured or killed. The journalist who freely and knowingly chooses to risk her own life by entering a battlefield provides an example here. 154

R I G H T S O F I N N O C E N T B Y S TA N D E R S

The civilian living or working near a military target who does not respond to a warning of an impending attack on that target is perhaps the most common example. The military noncombatant (e.g., the chaplain or medic) who voluntarily accompanies combatants on bases or ships also falls into this category. In these cases and others as well, an individual can be liable without waiving or relinquishing or forfeiting their own rights and without infringing upon or posing a threat to anyone else’s rights. Although those who are liable in this kind of case are not liable under the defense liability principle, that principle nevertheless can be used in an argument that shows that they are liable. Recall that the defense liability principle is this: The defense liability principle: If (1) an individual x poses a threat of unjust harm to a second individual y (i.e., x behaves in such a way that, barring preventive action, x will infringe upon y’s non-contractual rights and thereby jeopardize interests protected by those rights), or x belongs to a group g that poses such a threat, and (2) x is more responsible than y for that threat, then (3) (ceteris paribus) it would not infringe upon x’s rights to eliminate or reduce the threat by inflicting necessary and proportionate harm on x.

With that principle in mind, consider the following example: Shield I: You are the innocent victim of a malicious attempt on your life. Your assailant has a gun, but so do you; he is firing his gun at you, and you hope to fire back at him. The problem is that your assailant has ducked behind a parked car. Jones is in that car, and the car is running, but Jones has decided to look at a road map before driving off. Neither you nor your assailant poses any risk to Jones, because the car is entirely bullet-proof, but unless Jones moves his car immediately, it will be unlikely that you will be able to save your life, because you will not be able to get a clear shot at the assailant. You signal to Jones to move his car immediately and he understands your predicament, but he has no intention to leave. 155

WAR A ND INDIVIDUAL RIGHTS

In this case I am strongly inclined to say that Jones poses a threat to your rights by not moving his car. I take this to be obvious if his objective in not moving his car is to ensure that you are killed. But even if his objective in not moving out of your way is merely to avoid the inconvenience of having to leave before he finishes looking at his map, I find it very plausible to suggest that he threatens and, if you are killed, violates a right you have against him to not prevent you from saving your life. Now consider a similar example: Shield II: You are the innocent victim of a malicious attempt on your life. Your assailant has a gun and you have a grenade; he is firing his gun at you, and you are preparing to toss your grenade at him. The problem is that your assailant has ducked behind a parked car. Jones is in that car, and the car is running, but Jones has decided to look at a road map before driving off. Your assailant poses no risk to Jones because the car is entirely bullet-proof, but the car is not grenade-proof and so, if Jones does not move his car immediately, saving your own life by tossing your grenade at your assailant will kill Jones as well as your assailant. You tell Jones to move his car immediately or suffer the consequences; but even though he understands your predicament and his own, he stays put.

Here I suspect that most of us will be strongly inclined to say that it is permissible for you to throw the grenade. Furthermore, I want to argue that the claim that killing Jones in this case would not infringe upon his rights can be justified indirectly by appeal to the defense liability principle. The argument proceeds as follows: Suppose that killing Jones would infringe upon Jones’ rights. Then it would be impermissible to throw the grenade. But if that is the case, then Shield II is like Shield I in that, by not moving his car, Jones poses a threat to your right against him that he not prevent you from saving your life. In Shield II it would be Jones’ rights rather than his car that would be the obstacle to your attempt to defend yourself, but rights no less than cars can be obstacles. Given that Jones would be 156

R I G H T S O F I N N O C E N T B Y S TA N D E R S

more responsible than you for this threat to your rights, it follows that Jones is liable under the defense liability principle to necessary and proportionate defense, and so it would not infringe upon Jones’ rights to kill him. But that contradicts our initial supposition that your killing Jones would infringe upon his rights. Accordingly, as it yields a contradiction, our initial supposition must be false, and so we arrive at the conclusion that it would not infringe upon Jones’ rights to kill him. Again, although this argument appeals to the defense liability principle, the suggestion is not that Jones is liable under that principle. For Jones does not threaten your rights by remaining where he is, and where there is no threat to rights, there is no liability under the defense liability principle. It might be objected that, just as in Shield I Jones violates your right against him that he not prevent you from saving your life, so in Shield II Jones poses a threat to your right against him that he not prevent you from saving your own life. This cannot, however, be correct. For in Shield II, Jones’ car is not a physical obstacle to your saving your own life (since the grenade will do its job even if the car is not moved), and given that you are permitted to throw the grenade in spite of Jones’ rights, those rights are not a moral obstacle to your saving your own life (i.e., they are not something that, if not removed, will prevent you from saving your own life). The argument does assume that, just as one can have a right to the removal of a physical obstacle, so one can have a right to the removal of a moral obstacle. To see that this assumption is true, consider a case in which Jones has an innocent child in the car with him. Saving your own life is possible only if you toss a grenade at your aggressor, but unless Jones drives away in his car, such an act of self-defense would kill the child. Here, it is quite clear that Jones violates your right to his removal of a moral obstacle to your thwarting unjust aggression. Moral obstacles, no less than physical ones, can prevent one from achieving important ends, and so for the same reasons that one can have a right against others that they remove a physical obstacle, one can also have a right against others that they remove a moral obstacle. 157

WAR A ND INDIVIDUAL RIGHTS

The argument here also depends on the assumption that one can have a positive right against others that they get out of the way so that one can prevent unjust harm. I have not defended the existence of such a right here, nor am I prepared to do so. Nevertheless, it has often been pointed out that in one-off emergency situations, the case for positive need-based rights against others is at its zenith.2 The case for the existence of such a right in particular cases will be weaker to the extent that getting out of the way would be costly. In some cases, it is merely inconvenient to get out of the way. In other cases, someone’s livelihood or success in his occupation might depend on remaining in an area that contains military targets. Because any claim against someone that he exits a battlefield would most likely be need-based, it could be defeated by the needs of the others, including the person against whom the claim is held. Thus, in the extreme case in which the noncombatant’s life depends on staying in the area of a military target, it will be impossible to justify killing that noncombatant by appeal to the assumption of risk. On the other extreme, where the noncombatant could with only minor inconvenience leave the area of the military target, an appeal to the assumption of risk is highly plausible. Other cases take varying shades of gray. It should also be pointed out that in some cases the appeal to assumed risk does not require recognition of any positive right, for in some cases the risk may be assumed by entering rather than merely failing to leave an area. In those cases the relevant (hypothetical) right is a negative right, a right against someone that he does not create an obstacle by entering an area. The war correspondent, for example, may want to enter a battlefield for the sake of furthering her career. On the (false) assumption that her rights would be a moral obstacle to killing her even if she enters the battlefield, those waging just war in the area would have a negative right that she not impede their military operations by entering 2. Fiona Woolard ably defends the existence of such rights in Doing and Allowing Harm (Oxford: Oxford University Press, 2015).

158

R I G H T S O F I N N O C E N T B Y S TA N D E R S

the area. It would then follow that she would be liable under the defense liability principle to being harmed, if necessary, so that her entering the battlefield does not impede military operations in the area. Thus, once again we must reject our initial assumption that, if she enters the area, her rights are a moral obstacle to killing her. In some cases, then, an appeal to assumed risk can provide a reasonable (though perhaps not incontestable) justification for harming an innocent bystander. A military commander might know, for example, that a journalist has chosen to take the risks of working in the area of military targets. If that commander reasonably believes that an immediate attack on those targets is necessary to save lives, and that such an attack is likely to kill the journalist, he can appeal to assumed risk as a justification for proceeding with the attack. In other cases, assumed risk will not provide a reasonable justification for the infliction of harm, but it will nevertheless show that there is no infringement upon rights. It may turn out, for example, that the journalist who chooses to assume the risk of, say, being embedded with insurgents, is killed because she is mistaken for an insurgent. If the mistake is a reasonable one, then she is killed excusably but not justifiably. 3 Notice, however, that unlike most excusable killing, killing her does not infringe upon her rights because she assumed the risk of being mistaken for an insurgent by choosing to be embedded with the insurgents. This receives support from the fact that we do not think that it would be justifiable for her to kill in self-­defense the soldier who will otherwise excusably take her life. If her rights were threatened by the soldier, the appeal to defense would provide a justification for self-defense. It appears, then, that her rights are not threatened. 3. Arguably, at least some of the killings of journalists in Iraq by US forces were excusable. (The Committee to Protect Journalists claims that at least 16 journalists were killed by US forces in the recent conflict there.) See “Video shows US attack that killed Rueters staffers in Iraq,” accessed June 19, 2014, http://cpj.org/2010/04/ wikileaks-video-iraq-attack-killed-reuters-staffers.php.

159

WAR A ND INDIVIDUAL RIGHTS

7.4. EX ANTE COMPENSATION Although in war some innocent bystanders are liable in virtue of the risks they assume, most are not. Under certain circumstances that can arise in war, however, even innocent bystanders who are not liable to being harmed can be harmed without infringing upon their rights. Consider the case of a nation about to commence a war of liberation on behalf of an oppressed people. Suppose that the war is to be fought in areas inhabited by the people to be liberated, making it predictable that some of the intended beneficiaries of the effort will be killed by their “liberators” as a foreseen side effect of attacks on military targets. Suppose further, however, that all of the intended beneficiaries, even the ones who will ultimately be killed, are actually better off (in terms of expectable benefit) at the outset of the war, because, for each individual, the small chance of being killed as a side effect of the liberation effort is more than compensated for by the high likelihood of reaping the benefits of liberation. In that case, we cannot say of those innocent bystanders who are killed that the liberators who kill them infringe upon their rights; for those innocent bystanders who are killed will have received compensation for the risks that were knowingly imposed on them and, in their particular cases, are regrettably realized. Such compensation is sometimes called “ex ante compensation” because the compensation is provided prior to the harm that is inflicted. The expression is somewhat misleading, because the compensation that is provided in such cases is actually compensation for the risk of harm rather than the harm itself. Nevertheless, because being compensated for a risk of harm can obviate the need to compensate for the harm if that risk is realized, the term is an apt one. Such a justification for the foreseeable killing of innocent bystanders has been defended by more than one writer on the ethics of war,4 and it seems to me to be unimpeachable. But let us consider 4. See, for example, Jeff McMahan, “The Just Distribution of Harm between Combatants and Noncombatants,” Philosophy & Public Affairs 38, no. 4 (2010), 359–65.

160

R I G H T S O F I N N O C E N T B Y S TA N D E R S

a possible source of disagreement. It might be objected that ex ante compensation is not by itself sufficient to justify the foreseeable killing of innocent bystanders. Their consent to being exposed to the risks of the war effort would also be necessary. An analogy might seem to offer support for this contention. Often, the expected benefits of surgery exceed the expected cost of the attendant risks, but that does not give the surgeon license to proceed with a surgery without the consent of her patient. The rights of the patient who refuses surgery are infringed upon by the surgeon who performs the surgery anyway, and this is the case even if the patient receives expected benefits that exceed and so fully compensate him for the risks of the surgery. The analogy is strong, however, only in the case in which the potential beneficiaries of the war of liberation don’t want the help of their would-be liberators. In other cases, with the exception of little children and others who are not competent to assess the matter, the vast majority of the intended beneficiaries of a war of liberation may desire the expected benefits of the war. Few may actually express consent to the war effort, but they would express such consent if they had the occasion to do so. Thus, in their case, the more apt analogy is that of the emergency room doctor who must decide whether to operate on a patient who cannot consent to surgery because she is unconscious. If the expected benefits of doing the surgery well exceed its expected costs, the surgeon may proceed without the consent of the patient; and even if the surgery actually kills the patient because one of its risks are realized, we would not say that the physician violated the rights of his unfortunate patient. Hypothetical consent is an adequate substitute for actual consent in such a case, because it is consistent with respecting the autonomy of the individual in question and it displays a proper concern for that individual’s well-being. Furthermore, if we alter the case so that the patient is a child who is incapable of free and informed consent, autonomy is not yet a consideration, and the child has no need-based right not to be subjected to a surgery that has net expected benefits for her. Thus, once again, the surgery, 161

WAR A ND INDIVIDUAL RIGHTS

even if it proves fatal, does not infringe upon rights. By analogy, even without the express consent of its potential beneficiaries, a war of liberation might not infringe upon anyone’s rights in spite of the harm it inflicts on innocent bystanders, because those innocent bystanders might include only those receive compensation for the risks of war and who are either incapable of free and informed consent or else would, if given the opportunity, consent to the risks of a war of liberation in the hopes of obtaining the benefits of liberation. Of course, in a war of liberation, it may be the case that some of the innocent bystanders who are killed would not have consented to the risks imposed upon them and, in their case, realized. Such persons fall into two categories. The first are those who do receive full compensation for the risks imposed upon them, but nevertheless would prefer not to incur those risks. The second category includes those who, because they benefit from the current social order, or because they will probably suffer at the hands of the oppressive regime if there is a war of liberation, or for some other reason, are not fully compensated for the risks imposed on them. Let us address the two categories separately, beginning with those who are compensated adequately but would nevertheless prefer not to be exposed to the risks of war. Consider the following analogy: Jones is solely responsible for his attempt to take Smith’s life. You can save Smith by killing Jones, but there is a small chance that an innocent bystander named Brown will be killed by a stray bullet from your gun. On the other hand, there is a greater chance that Jones will proceed to kill Brown if he successfully kills Smith. Nevertheless, Brown irrationally tells you not to risk killing him by defending Smith.

I believe that it is permissible for you to proceed in this case, but I do concede that proceeding would (justifiably) infringe upon the rights of Brown. By analogy, a war of liberation that imposes risks 162

R I G H T S O F I N N O C E N T B Y S TA N D E R S

on innocent bystanders who, although mentally competent, do not want to bear those risks, infringes upon the rights of those persons even if the war fully compensates them for those risks. Those who do not, or would not, consent to a war of liberation because, for them, the expected costs of such a war would exceed the war’s expectable benefits even more clearly have their rights infringed upon by the war if the war claims their lives. It might be objected that an exception should be made for those individuals who would not benefit from the war because they reap the benefits of injustice in the pre-liberation social order. Assuming, however, that the individuals in question are not responsible for the unjust benefits they receive, the objection fails. One cannot justify imposing risks of physical harm on such persons by appeal to the fact that, if they did not receive the benefits of injustice, they would benefit from liberation. Hypothetical expectable benefits cannot justify actual expectable costs. Of course, in the fog of war it may be very difficult to know with any precision how many would consent to a war of liberation. Nevertheless, rough estimates can sometimes be made and can be very relevant to assessing the moral acceptability of a war effort. In Afghanistan, for example, opinion polls provided some insight into the attitudes of Afghans toward the NATO war effort in their country and indicated broad support for the NATO mission.5 Of course, one complication here is that attitudes can change. It does appear that support for the presence of foreign troops in Afghanistan waned as the war dragged on. Another complication is that many of those Afghans who supported the presence of foreign troops in their country opposed some of the military tactics used by those troops that endangered innocent bystanders. 5. Even as late as 2010, a Washington Post/ABC News/BBC/ARD poll indicated that the vast majority of Afghans thought that it was at least mostly good that the United States brought down the Taliban government in 2001, and the majority at least somewhat supported the continued presence of US and NATO forces in their country. See http://www.washingtonpost.com/wp-srv/politics/polls/­ postpoll_12062010.html.

163

WAR A ND INDIVIDUAL RIGHTS

We are now in a position to formulate the relevant standard to apply in the sorts of cases we have been discussing: The ex ante compensation principle: If an individual x is fully compensated for a risk and is either incapable of free and informed consent or would, if given the opportunity, consent to bear that risk, then (ceteris paribus) the realization of that risk does not infringe upon x’s rights.

Perhaps some would be inclined to believe that where there is ex ante compensation for some harm there is still an infringement upon rights, though an excusable one. Consider, for example, the emergency room surgeon who compensated her patient for the risk she imposed on him because the surgery was far more likely to save his life than take it. It might be suggested that the surgery actually does violate the patient’s rights, but the physician is fully excusable for that violation. I find that suggestion implausible for two reasons. First, unjust harm ordinarily calls for compensation, but clearly a court ought to dismiss any wrongful death suit filed against the physician. Given that someone is adequately compensated for a risk, neither he (nor his family if he is deceased) has a right to be further compensated for the realization of that risk. Second, if the surgery would infringe upon the patient’s rights, then, just prior to the surgery, the surgeon would pose a threat of unjust harm and, being more responsible for that threat than is the potential victim, would be liable to necessary and proportionate defense. I take it to be obvious, however, that if a third party somehow discovered that, unbeknownst to the surgeon, surgery would kill the surgeon’s patient, he would nevertheless be unable to justify killing the surgeon even if that were the only way to prevent the surgery and so save the life of the patient. In a war between genuine oppressors and genuine liberators, what is the likelihood that, under the ex ante compensation principle, there is no infringement upon the rights of any innocent bystander? Although it is impossible to answer this question in the abstract, my guess is that, in spite of the ex ante compensation 164

R I G H T S O F I N N O C E N T B Y S TA N D E R S

principle, even the noblest of liberation war efforts will infringe upon the rights of some innocent bystanders. Indeed, although I have now identified three ways to do harm in war without infringing upon rights (defense, assumed risk, and ex ante compensation), ultimately I am prepared to concede to the antiwar pacifist that, in the 21st century, it is impossible, or at least nearly impossible, to wage war without infringing upon rights. Evidence for that proposition is readily at hand: there are no historical examples of recent war efforts that surgically discriminated between the liable and the nonliable, or provided ex ante compensation to all of the nonliable victims of the effort. Nor is it easy to imagine a realistic scenario in which such a war might be fought in the foreseeable future.

7.5. JUSTIFIABLE INFRINGEMENTS UPON RIGHTS Given that recourse to war inevitably infringes upon rights, how can recourse to war be morally acceptable? One possible answer to that question can be found in traditional just war theory, for on that theory, sometimes an appeal to the principle of double effect can justify acts that foreseeably harm, or even kill, innocent bystanders. In chapter 6, however, I argued that the principle of double effect has no role to play in an adequate just war theory. A better answer is available to those who occupy what I shall refer to as a “moderate deontological perspective.” That perspective is to be distinguished from an absolutist deontological perspective in the following way. The absolutist believes that certain kinds of actions (intentionally taking innocent life and torture are typical examples) are always wrong, regardless of their consequences. By contrast, the moderate deontologist believes that, although, for example, killing (even intentionally) someone who has a right not to be killed cannot be justified simply by an appeal to overall consequences, if its consequences are good enough, it is justified. Thus, given a moderate deontological perspective, killing one person (who has a right not to be killed) to 165

WAR A ND INDIVIDUAL RIGHTS

prevent two murders is (ceteris paribus) unjustified, but killing one person to prevent 10,000 murders is (ceteris paribus) justified. Is moderate deontology an incoherent mix of deontology and consequentialism? I am aware of no reason to suppose that it is. The moderate deontologist can say that while he recognizes the importance of the deontological constraints on behavior that consequentialists reject, he also recognizes the importance of overall consequences. Accordingly, if the overall consequences of a course of action would be good enough, then the deontological considerations that weigh against that course of action may have to yield. Of course, once we discover the basis or bases for deontological constraints, we may find that recognizing such constraints requires an absolute prohibition of acts such as torture or murder. In the absence of such a discovery, however, I see no reason to presume that deontology requires absolutism. Nevertheless, the absolutist might object that I am not entitled to presume that absolutism is false; and if the relevant standard is that of common moral intuition, certain kinds of infringements upon rights seem to most of us to be unjustifiable regardless of the consequences. I have no decisive argument against absolutism to offer in reply, and I am uncertain whether common intuition favors absolutism or moderate deontology (although I suspect it is the latter). Be that as it may, moderate deontology does have the advantage of offering a uniform standard for distinguishing justifiable from unjustifiable infringements upon rights. The moderate deontologist can say, for example, that if I had to steal a baseball bat to escape being murdered, it could be morally permissible for me to do so; for although stealing the bat might well inflict unjust harm on the owner of the bat, it would be the only way to prevent far more unjust harm from being inflicted on me. The moderate deontologist uses the same logic to reach the conclusion that infringements upon the right to life can be justified. He will say, for example, that it would be justifiable to deliberately take the life of a single innocent person if taking that life were necessary to prevent terrorists from detonating a nuclear bomb in the center of a major US city. The 166

R I G H T S O F I N N O C E N T B Y S TA N D E R S

unjust harm inflicted is death, but if thousands of lives are saved, then that one unjust death is a tragic but necessary evil. Absolutists typically want to accept the permissibility of an infringement upon rights in a case like the baseball bat example, but not in a case like the nuclear terrorism example. It is not easy, however, to justify such a distinction.6 Indeed, I would like to argue that absolutism with respect to infringements upon the right to life is untenable. Consider the following line of reasoning: 1. For some number n, it can be permissible for one person to take a 1/n chance of killing a second person to save the life of a third person (and this is true regardless of whether the person put at risk is liable to being killed or compensated for the risk). 2. Thus, for any number m, it can be permissible for each of m persons to impose such a risk on one person (so that, collectively, they put each of m other persons at risk) to save one life (so that, collectively, they save m lives). 3. For some number m, if each of m persons takes a 1/n chance of killing someone, almost certainly this will result in at least one of those m persons killing someone. 4. Thus, it can be permissible for each member of a group to behave in a way that, if all of them do behave in that way, would almost certainly kill someone (and this is true regardless of whether the person killed is liable to being killed or compensated for the risk of being killed).

This argument appears to me to be sound. I cannot imagine anyone rejecting the first of the argument’s two assumptions (premise 1). I suspect that nearly everyone imposes tiny risks of death on others 6. Many absolutists appeal to the “sanctity of human life” as a basis for saying that the right to life, as opposed to other rights, cannot justifiably be infringed upon. It is, however, notoriously difficult to explicate the relevant notion of “sanctity.” Setting that aside, it is also very difficult to explain why recognizing the sanctity of human life would not be a reason to reject a double effect justification for taking innocent human life.

167

WAR A ND INDIVIDUAL RIGHTS

to achieve trivial ends, and no one seems to be worried about it. Be that as it may, we are all very much willing to tolerate imposing very small risks of death for the sake of saving lives. The second assumption (premise 3) is a matter of simple mathematics and so is undeniable. Because the conclusion 4 clearly follows from premises 2 and 3, the argument’s success would seem to turn on whether premise 2 follows from premise 1. Premise 2 does not follow deductively from premise 1, of course, but it would be extraordinary to affirm 1 but deny 2. The justifiability of imposing a small risk of death on one person to save the life of a second person surely does not depend on whether others do the same. Now let m and n be numbers such that to save m lives it can be permissible for each of m persons to impose a 1/n risk of death on one person even though, if all of them do behave in that way, it is quite certain that at least one of them will unjustly kill someone (i.e., kill someone as a consequence of infringing upon that person’s rights). And suppose that I am in a position of authority with respect to an army of m soldiers, and that our nation has called upon us to wage war to prevent someone from using a nuclear weapon to take m lives. Then if the only way to prevent the nuclear weapon from being used is for me to authorize each of my m soldiers to impose a 1/n risk of death on one person, I can permissibly do so; for in doing so I authorize only what a group of individuals could justifiably do without authorization. If this is correct, then in principle it can be permissible to authorize war knowing that one’s armed forces will almost certainly unjustly kill someone as a consequence of acting as one has authorized them to act. This argument does not show that war efforts that unjustly kill innocent bystanders are sometimes justified, for it does not establish that m and n are small enough numbers to allow for the practical possibility of each soldier in an army of m soldiers imposing no more than a 1/n chance of killing someone. But if sound, it does provide a basis for rejecting the proposition that deliberately killing someone who has a right not to be killed is in principle unjustifiable. In other words, it undermines the absolutist view that deliberately taking innocent life is necessarily morally wrong. 168

[ 8  ] HOW TO JUSTIF Y WAGING WA R

Thus far, I have sought to establish a solid moral foundation for just war theory. To that end, I have identified our most basic rights (chapter 2), discussed the sorts of harmful actions that infringe upon them (chapter 3), explored the nature and scope of the right to defense (chapters 4 and 5), and assessed some possible justifications for harming innocent bystanders (chapters 6 and 7). The foundation is complete, and in this chapter I want to build on it by providing an answer to what is arguably the most important question that just war theory addresses: “What justifies recourse to war?”

8.1. THE JUSTIFIABLE WAR PRINCIPLE In chapter 7 I defended a moderate deontological approach to rights. Relying on that approach, I now want to formulate a single, precise standard for assessing whether recourse to war is justified. Whether any course of action is justified depends on what alternatives are available. Serious alternatives to war typically have the advantage of inflicting less unjust harm than war would inflict, an advantage that (if war is to be justified) must be overcome by the overall advantages of going to war. In some cases, however, consideration may be given to alternatives that would inflict more unjust harm than going to war would inflict. If, for example, the choice is between war and economic sanctions, and the latter would prevent lifesaving medicine from reaching the ill, then economic sanctions might infringe upon rights. The unjust harm that would result from the sanctions might even exceed the unjust harm that would result from war. In assessing whether recourse to war would be justified, 169

WAR A ND INDIVIDUAL RIGHTS

then, sometimes we need to consider what would justify choosing war instead of alternatives that would inflict more unjust harm, as well as considering what would justify choosing war instead of alternatives that would inflict less unjust harm (or no unjust harm at all). I would like to propose the following principle to handle both kinds of possible alternatives: The justifiable war principle: Recourse to war is justified if (i) for any available alternative to war that would inflict as much or more unjust harm, the overall consequences of choosing war would be at least as good as the overall consequences of choosing that alternative, and (ii) for any available alternative to war that would inflict less unjust harm, the disadvantage, in terms of inflicting more unjust harm, of choosing war rather than that alternative is far outweighed by the overall advantage of choosing war rather than that alternative.

The justifiable war principle has certain features that require explication. First, the principle relies on the notion of “inflicting unjust harm.” On my use of the expression, an individual (or group) x inflicts unjust harm on an individual (or group) y if and only if x infringes upon y’s rights and, as a consequence, damages interests protected by those rights. Notice that not all of the harm that results from an infringement upon rights is unjust harm. If I infringe upon someone’s right of self-ownership by breaking his leg, for example, the damage to that person’s interest in not suffering the pain and inconvenience of having a broken leg is among the unjust harm I have inflicted; but if, as a consequence of my violation of my victim’s rights, my victim proves to be a very annoying patient at the hospital where his broken leg is treated and so damage is done to the interests that doctors and nurses have in not being annoyed by their patients, that is not unjust harm that I have inflicted, for those interests are not protected by the right that I violated (my victim’s right of self-ownership). The expression “far outweighed” (in condition ii) is vague, and so the question arises as to how to distinguish cases of far outweighing from cases of outweighing but not far outweighing. I doubt that 170

H ow to J ustify W aging W ar

a sharp line can be drawn, but we can recognize clear cases on each side of the line. Suppose, for example, that by infringing upon one individual’s right to life we prevent someone else from infringing upon the right to life of n individuals (where n is a natural number greater than one). Most moderate deontologists will say, for example, that if n = 2 or even 10, then (ceteris paribus) our behavior is unjustifiable, but if n = 1,000,000, 100,000, or even 10,000, our behavior, if necessary in the relevant sense, is justifiable. I am uncertain what most moderate deontologists would be inclined to say if n = 1,000 or n = 100, but I suspect that with those numbers we are at least in the vicinity of an area where intuitions differ and reasonable people can disagree. The standard I use to make my own assessment of where to draw the line is based on my belief (not defended here) that imposing a 1/n chance of death upon a single nonliable party to achieve a certainty of saving one life is (ceteris paribus) permissible if and only if taking one life to save n lives is (ceteris paribus) permissible. Because I would, for example, regard it as permissible to impose a 1/1,000 chance of death to achieve a certainty of saving one life, I infer that it is also permissible to kill one person to save 1,000 lives. For some reason my intuitions about the permissibility of imposing risks of death are less murky than my intuitions about the permissibility of killing, and so I reason from the former to conclusions about the permissibility of killing. Others might have clearer intuitions about killing and so reason from those intuitions to conclusions about imposing a risk of death. Applying the justifiable war principle would, of course, require a cost-benefit analysis, but the required analysis is not of the usual utilitarian sort.1 This becomes clear if one examines the respective 1. Of course, difficult axiological issues of various sorts, many of them well beyond the scope of this book, would have to be resolved in order to be able to perform such an analysis under any circumstances that might arise. That is not a reason, however, to reject a just war theory that includes the justifiable war principle, for no plausible just war theory will say that it is possible to assess the justifiability of war without comparing the value of going to war with the value of not going to war, and such comparisons inevitably raise deep issues concerning axiology.

171

WAR A ND INDIVIDUAL RIGHTS

roles that liability and ex ante compensation play in a justification for war that appeals to the justifiable war principle. Both of those considerations provide a basis for saying that in war it is possible to inflict harm on some individuals without infringing upon their rights; and the more violence that does not infringe upon rights, the less violence will remain that does infringe upon rights, and so the easier it will be to justify the remainder by appeal to the overall advantages of war. Furthermore, it is crucial to recognize that in calculating the overall advantage of going to war for the sake of determining whether condition ii is satisfied, the harm to be inflicted on those who are liable under the principle of defense, or liable because they assume the risk of being harmed, must be appropriately discounted, thus making war easier to justify on the justifiable war principle. Not all harm that is to be discounted on grounds of liability is to receive the same discount. As revealed by our discussion of proportionality in the final section of chapter 5, harm inflicted on minimally responsible aggressors who are liable to that harm, for example, is to receive less of a discount than harm inflicted on fully responsible aggressors liable to that harm. Notice that one important implication of discounting harm to the liable is that even a war effort that inflicts more harm than it prevents can turn out to be justified under the justifiable war principle. For it may be that the vast majority of those persons who are harmed by a war effort are liable under the defense liability principle, and once harm to them is appropriately discounted, even a war effort that inflicts more harm than it prevents might (relative to alternatives that inflict less unjust harm) have an overall advantage that far exceeds its disadvantage in terms of inflicting more unjust harm. Now this implication might seem unacceptable, for one might suppose that the deontologist would be inclined to agree with the classical utilitarian that a war that foreseeably inflicts more harm than it prevents must be unjustified. But consider an analogy. Suppose that Jones is maliciously and without provocation trying to take my life and that the only way I can prevent him from 172

H ow to J ustify W aging W ar

succeeding is to kill him by tossing my grenade at him. Then Jones is liable (under the defense liability principle) to be killed, and so killing him does not infringe upon his rights. Suppose further that if I do toss my grenade at Jones, I will injure, though not seriously, an innocent bystander. (Perhaps shrapnel from the grenade will cut the bystander deeply enough to require a few stitches.) In that case, I cannot justify throwing the grenade simply by an appeal to defense, for such an appeal will not justify the harm I impose on the bystander. Moreover, other things being equal, the traditional utilitarian will condemn throwing the grenade, because the total harm I inflict by doing so (the death of Jones and the relatively minor harm to the bystander) is greater than the total harm I thereby prevent (my own death). Of course, the utilitarian will be quick to point out that other things are not apt to be equal in such a case, for by killing Jones I may well incapacitate a dangerous person or help to deter similar acts of aggression. Still, it seems quite clear that it is unnecessary to appeal to these speculative benefits to justify my action, for surely my act of self-defense is justified even if I do knowingly inflict more harm than I prevent. Furthermore, the natural way to justify it is to appeal first to the aggressor’s liability to necessary and proportionate defense and to appeal second to the fact that, although throwing the grenade does infringe upon the bystander’s rights, the severity of the unjust harm I inflict on that bystander is far outweighed by the severity of the unjust harm to myself that I prevent by throwing the grenade. Surely no reasonable person would reject this justification on the grounds that I have not shown that the total (expectable) harm I inflict is less than the total (expectable) harm I thereby prevent. The strategy that one may be able to use to justify a war effort is similar to the one that is clearly available to me in the preceding example. In the grenade example, I can appeal to the fact that throwing the grenade is the only way to prevent an infringement upon my rights that would be far more serious than my infringement upon the rights of the innocent bystander. The harm I inflict on the attacker, if not altogether irrelevant, can at least be discounted 173

WAR A ND INDIVIDUAL RIGHTS

substantially due to his liability under the principle of defense and his high degree of responsibility. Similarly, one can justify a decision to wage war by appealing to the fact (assuming it is one) that, although waging war will inflict unjust harm, it is the only way to prevent far more unjust harm from being inflicted. The harm to those who are liable to defense, if not altogether irrelevant, can at least be discounted substantially, and the traditional utilitarian is mistaken to suppose that war can be justified only if the total harm it inflicts is surpassed by the total benefits it achieves. I believe that the justifiable war principle provides a reliable standard for moral assessments of recourse to war. I recognize, however, that because the justifiable war principle offers only conditions jointly sufficient for justifiable recourse to war, it does not provide a complete answer to the question of what justifies recourse to war. Nevertheless, I believe that condition ii in the principle is a necessary condition for justified recourse to war and that, if condition i were a little easier to satisfy, it too would be a necessary condition for justified recourse to war. Any specific proposal about how condition i ought to be broadened would, however, be controversial (even among moderate deontologists) and so would raise substantial doubts about the reliability of the justifiable war principle. Thus, in formulating that principle I have chosen to sacrifice completeness for the sake of reliability. It might seem surprising that there would be only one way to justify war; but given that, in the 21st century, the decision to wage war inevitably infringes upon rights, I do not see how recourse to war can be justified without an appeal to the value of its overall consequences. If rights are to be taken seriously, inflicting unjust harm can be justified only by appeal to a benefit so large (relative to the unjust harm) that the strong moral presumption against inflicting unjust harm is overcome. In the case of war, that benefit is likely to be the prevention of unjust harm (where the amount of unjust harm prevented far exceeds the amount inflicted). Preventing genocide, for example, can justify a war that predictably kills a relatively small number of persons who have a right not to be killed. 174

H ow to J ustify W aging W ar

8.2. IS THE JUSTIFIABLE WAR PRINCIPLE TOO DEMANDING? It might be objected that condition ii in the justifiable war principle could be formulated much more broadly without raising any doubts about the reliability of the justifiable war principle. One basis for such an objection can be illustrated by the following example: Suppose that we go to war to achieve some important good, but condition ii in the justifiable war principle is not satisfied because, say, should we pursue diplomatic measures instead of war, we would achieve the same good without any infringement upon rights. Going to war might nevertheless be justifiable, for all of the available evidence might suggest that pursuing diplomatic measures would not work and would only make going to war much more costly. This suggestion can be dismissed, however, on the grounds that it confuses fact-relative and evidence-relative justification. In the envisioned scenario, war might well be justified in the evidencerelative sense, but it would be unjustified in the fact-relative sense. My primary concern in this book has been to identify principles relevant to fact-relative justification. Granted, the evidence-relative principles are the only relevant ones for actual decision-making, but they are to be derived from the fact-relative principles. Thus, I believe that a work such as this one, aimed primarily at identifying the moral foundations of just war theory, can legitimately focus on fact-relative justification. It might also be objected that, because there is no moral requirement to choose the most charitable of a variety of charitable courses of action, condition ii of the justifiable war principle could be formulated much more broadly. Donating money to an orphanage is not morally wrong, for example, even if the same amount of money donated to earthquake relief would do far more good. Similarly, if, say, the choice is between a war effort that would save many lives at the expense of unjustly killing a few innocent bystanders and an earthquake relief effort that would also save many lives, then even if the latter would achieve as much good as the former 175

WAR A ND INDIVIDUAL RIGHTS

but at no expense to rights, it does not follow that choosing war would be unjustified. I would concede that there is no moral requirement to always choose the most charitable among a variety of possible charitable courses of action. Nevertheless, if we are to take rights seriously, it seems to me that we cannot choose a course of action that infringes upon rights instead of one that does not unless we can justify that choice in terms of the far superior outcome to be achieved by infringing upon rights. Imagine saying to the innocent bystanders who are seriously harmed by our war effort: “We regret the fact that we infringed upon your rights and, as a consequence, you were seriously injured. We take your rights very seriously, but we preferred to go to war even though we could have done just as much good without infringing upon anyone’s rights had we chosen to provide earthquake relief.” I take it that our claim to have taken rights seriously would ring hollow in the ears of our victims. 2 A third possible basis for the suggestion that condition ii could be formulated much more broadly is the view that, in assessing whether the overall net advantage of war justifies the unjust harm it inflicts, one should only count as a disadvantage unjust harm. Consider again the example of unjust aggression against me that can only be thwarted if I throw a grenade at Jones (the aggressor), thereby killing him and slightly injuring an innocent bystander in his vicinity. Now modify the example so that I know that, as a 2. For this reason I reject the view that in assessing whether the costs of war are excessive, one need only consider alternatives that involve pursuing the same just cause. That view is briefly defended by Tom Hurka in “Proportionality in the Morality of War,” Philosophy & Public Affairs 33, no. 1 (2005), 41. Hurka also endorses (pp. 40–1) the view that in assessing whether the costs of war are excessive, one must only consider benefits that constitute the just cause. That restriction strikes me as far too demanding, and it has no analogue in cases of individual self-defense. If a war effort’s just cause is preventing a specific government from using nuclear weapons against innocent civilians, but the war also has the benefit of deterring the use of nuclear weapons by other governments, then why shouldn’t the latter benefit help to justify the war’s collateral damage?

176

H ow to J ustify W aging W ar

consequence of my killing Jones, Jones, brother will avenge Jones, death by taking the lives of two of my colleagues. The common intuition here, as reflected in the law of self-defense, is that self-defense is permissible even though, having discounted the harm to the liable party, the overall disadvantage of self-defense still exceeds its overall advantage.3 That consequence can be avoided, however, if only the unjust harm that I inflict enters into the calculation of the net overall advantage relevant to justifying a course of action that infringes upon rights; for it is Jones, brother and not me who would inflict the unjust harm on my colleagues. I find that my own intuitions, although somewhat murky here, actually inform me that I should simply allow myself to be harmed in the case at hand. I worry, however, that my intuitions about this sort of case might be eccentric. Nevertheless, I am quite confident that morality does not allow us to simply disregard the harmful effects of our actions so long as those effects are directly brought about by other agents. Even in a case like the one we have been considering, if the consequences for others of self-defense would be bad enough, it will be clear to almost anyone that self-defense would be impermissible. Suppose, for example, that defending my own life by throwing the grenade at Jones would result in Jones brother taking revenge by detonating a nuclear bomb in downtown Los Angeles. Then it is undeniable that I am morally required to refrain from throwing the grenade. One possible explanation here is that, collectively, the need claims of the various possible victims of the bomb would be too weighty to be defeated by my need for self-defense, and so those claims would constitute need rights against me. Then my act of self-defense would be an instance of my unjustly harming the victims of the bomb. In the first version of the case, on the other hand, the need claims of my two colleagues are defeated by my need for self-defense and so do not constitute rights against me. 3. I owe my awareness of this sort of case and the puzzles it raises to Helen Frowe.

177

WAR A ND INDIVIDUAL RIGHTS

Absent the fact that my act of self-defense would unjustly harm an innocent bystander, my act of self-defense would therefore be unquestionably justified. I am not entirely confident in my position here, but it seems to me that what is appropriate in such cases is to recognize that, in performing the cost-benefit analysis required to determine whether an infringement upon rights is justifiable, harmful consequences of the course of action being assessed are to be discounted (though not completely disregarded) if the agent in question does not unjustly inflict the harm, and that is the case even when those who are harmed are not liable to being harmed. I leave as an open question, however, what sort of discount would be appropriate.

8.3. THE FLAWS OF TRADITIONAL JUS AD BELLUM Traditional just war theorists would claim that the justifiable war principle is not demanding enough. According to traditional jus ad bellum, there are several conditions that must be satisfied in order for recourse to war to be justified. Specifically, war must be used only as a last resort, it must be declared by a competent authority, there must be a just cause for going to war, war must be undertaken with the right intention, the benefits to be achieved through war must be proportionate to war’s anticipated costs, and there must be a high probability of achieving those benefits. On my view, the traditional theory is incorrect, and justified recourse to war requires only the satisfaction of the two conditions of the justifiable war principle. We should not, however, exaggerate the difference between the two requirements of the justifiable war principle and the several requirements of traditional jus ad bellum; for some of the latter requirements are implicit in, and rendered precise by, the justifiable war principle. In particular, just cause, necessity (last resort), and proportionality limits are all built into the justifiable war 178

H ow to J ustify W aging W ar

principle.4 The principle justifies the choice of war only if some good (the just cause) is achieved; and it justifies the choice of war only if war is necessary in the sense that any disadvantage war has to any alternative to war in terms of inflicting more unjust harm is far outweighed by, and in that sense proportionate to, the overall advantage of choosing war rather than that alternative. 5 Notice that both the necessity assessment and the proportionality assessment required to apply the justifiable war principle are external to defensive liability. Thus, one important consequence of my views is that an assessment of whether waging war would be justified requires necessity and proportionality assessments at two distinct levels. First, in order to identify how much of the total harm a proposed war effort would inflict is unjust harm, one must determine how much of that total is inflicted on those who are liable to the harm they suffer, and that requires taking into account the necessity and proportionality limits internal to liability under the defense liability principle (and, by extension, to liability generated by assumed risk). Once one has determined how much unjust harm would be inflicted by choosing to wage war, one must then determine whether that amount can be justified under the justifiable war principle; and that will require an assessment of whether the necessity and proportionality conditions in that principle are satisfied. Suppose, for example, that we go to war to defend some disputed territorial right of minor significance. Then the severe injuries and deaths we inflict even on liable combatants might fail to satisfy the proportionality limit internal to the defense liability principle, because the severity of those harms would far exceed the severity of

4. Something like the traditional requirement of a high probability of success would be incorporated into any adequate formulation of the principles relevant to evidence-relative justification for war. Again, my focus here is fact-relative justification. 5. Of course, one doesn’t want to exaggerate the similarities, either. The costbenefit analysis required by the justified war principle is quite different from the various kinds of analyses required by various formulations of the proportionality and last-resort requirements of traditional jus ad bellum.

179

WAR A ND INDIVIDUAL RIGHTS

the unjust harm that we would prevent by securing our territorial right. Such a war might then fail to satisfy the proportionality condition in the justifiable war principle, because the prevention of the infringement upon our territorial rights would not be an advantage of waging war great enough to far outweigh the disadvantage of the unjust harm such a war effort would require. If traditional jus ad bellum demanded only necessity, proportionality, and just cause, my own jus ad bellum proposal might be seen as a refinement of the traditional view. Traditional just war theorists err, however, in demanding of war that it is undertaken with the right intention. As others have pointed out, it is possible to do the right thing for the wrong reasons. I might defend the innocent victim of unjust aggression because I am a bloodthirsty lover of violence, for example, but it does not follow that my act of defense is unjustifiable. Similarly, war might, for example, be undertaken by a political leader because he or she is a bloodthirsty lover of violence (or, more realistically, a lover of the political advantages of pursuing war), but if the war prevents genocide at the cost of infringing upon the rights of a few innocent bystanders, it might well be justified.6 Traditional jus ad bellum also comes into conflict with my own proposal in demanding that war be declared or initiated by a “competent authority.” Traditional just war theorists generally recognize that in some nations the authority to involve the nation in war resides in a single office-holder, and in other cases it resides in a parliament or congress or other political body. Not wanting to deny that revolutionary war can sometimes be justified, some traditional theorists even suggest that, sometimes, individuals who hold no political office have the authority to initiate a war effort. There are various proposals on how to spell out what makes an authority competent to determine whether to wage war, but there is general agreement among traditional just war theorists that declaration

6. See Gregory S. Kavka, “Was the Gulf War a Just War?,” Journal of Social Philosophy 22, no. 1 (1991): 20–9.

180

H ow to J ustify W aging W ar

by a competent authority is a necessary condition for justified recourse to war. Given the justifiable war principle, on the other hand, war can sometimes be justified even if it is not initiated by a competent authority, and I want to argue that this is the correct result. Consider first revolutionary war. Early traditional just war theorists seemed to regard all revolutionary wars as inherently unjustifiable, because such wars cannot possibly be declared by a competent authority; but some contemporary traditionalists want to define “competent authority” in a way that makes room for the possibility of a justified revolution. Nevertheless, it is difficult to see how any such definition could give adequate license to waging war against the government of one’s own nation. One might, for example, try to identify as a competent authority in a revolution those revolutionary leaders who have the allegiance of the people, or at least a majority of the people. To require such leadership is to demand too much, however, for there is no reason to suppose that, from the outset, a justifiable revolution requires discernible leaders. Nor should we demand of a revolution that it is endorsed by the majority of the citizenry. An oppressed minority could be justified (on grounds of defense) in destroying a government supported by the majority if that were the only way to secure their rights. Even a popular government cannot justifiably demand allegiance if it proves to be too great a threat to the rights of even a small minority. We should also reject the traditional just war theorist’s claim that international war cannot possibly be justified unless it is initiated by a competent authority. As we have seen, the decision to wage war is at least in most cases a decision to infringe upon rights, but under certain circumstances that decision can be justified under the justifiable war principle. In applying that principle to assess a nation’s war effort, it is tempting to consider only the rights of the potential victims of that nation’s armed forces. But a decision to wage war can also infringe upon the rights of the military personnel who are unjustly sent to fight that war or of the citizens of the nation who have a right to expect that their government’s decisions about 181

WAR A ND INDIVIDUAL RIGHTS

whether to wage war conform to the law. Where such an infringement upon rights occurs, it would need to be taken into account in any assessment of whether the decision to wage war is justifiable under the justifiable war principle. Thus, on the (debatable) assumption that President Obama exceeded his constitutional powers in involving the United States in war in Libya without congressional authorization, he infringed upon the right of Americans to the federal government’s adherence to the US Constitution. In assessing whether the decision to go to war in Libya was justified, then, that unjust harm would need to be added to other unjust harm inflicted by that decision in order to make a proper assessment of whether the decision was justified under the justifiable war principle.7 Such an infringement upon the rights of the citizen is difficult to justify, but that does not distinguish it from, say, infringing upon the rights of little children by killing them as a predictable side effect of bombing military targets. If war can be justified in spite of the latter sort of infringement upon rights, then surely war can be justified in spite of the former sort of infringement upon rights. The justifiable war principle takes all such infringements upon rights very seriously, but also recognizes that in extreme circumstances so much may be at stake that even serious infringements upon rights can be justified. It appears, then, that the justifiable war principle gives due respect to desirability of war’s being initiated by a competent authority without producing an unreasonably strict criterion.8

7. Furthermore, suppose that a nation uses shanghaied soldiers to fight its wars, or that it violates the terms of its contract with soldiers by forcing them to remain in active duty when they should have been allowed to terminate their military service. Then its improper enlistment or retention of military personnel would also infringe upon rights and so would need to be taken into account in applying the justifiable war principle to a particular decision to wage war. 8. Several other writers on the ethics of war have also rejected the competent authority requirement in traditional just ad bellum. For excellent examples, see Cécile Fabre, Cosmopolitan War (Oxford: Oxford University Press, 2012), 142–8, and Uwe Steinhoff, On the Ethics of War and Terrorism (Oxford: Oxford University Press, 2007), chap. 1.

182

[ 9  ] THE SCOPE OF LIABILIT Y IN WAR

As discussed in chapter 8, if we are to assess whether recourse to war would be justified under the justifiable war principle, we must determine (or, more realistically, estimate) how much unjust harm our envisioned war effort would inflict. By definition, if someone is liable to the harm inflicted on her, then that harm is not unjust (i.e., does not infringe upon her rights). Thus, one of the most important questions a just war theory must answer is, Who in war is liable to harm? Building on the foundation of earlier chapters, I want to address that question in this chapter. I begin by distinguishing those combatants who are liable to harm from those who are not. I find that most (though not all) combatants who participate in an unjust war effort are liable. I proceed to consider whether a noncombatant, in virtue of assisting combatants, can also be liable. I argue that, because assisting unjust aggression can violate need rights, some noncombatants are liable. However, I also explain why most contributions to an unjust war effort by noncombatants do not generate liability.

9.1. COMBATANTS AND MILITARY PERSONNEL The traditional view is that in war all and only combatants are liable to being attacked. Combatants are usually taken to include those persons who, in some sense, directly participate in the use of military force. Because directness is a matter of degree, such a definition leaves room for borderline cases. Moreover, perhaps because of the 183

WAR A ND INDIVIDUAL RIGHTS

common assumption that only combatants are liable, there is a tendency in the literature to stretch the notion of a combatant so that at least most members of a nation’s armed forces turn out to be combatants. Thus, “participation” ends up being understood so broadly that one can “participate” in the use of military force and so qualify as a combatant even if one has no intention to engage in combat and even if one is not deployed to engage in combat. For the purposes of this chapter, then, I would like to use an alternative definition of “combatant,” one that I think captures the ordinary meaning of the word as well as being adequately precise. Thus, I stipulate that “combatant” means “someone who fights (in a war), or intends to fight,1 or is deployed to fight.” To fight, in the relevant sense, is to attempt to perform, or attempt to take part in performing, an act of violence against persons or property. On this definition, a soldier who provides logistical support, or even crucial military intelligence, need not be a combatant. On the other hand, if he is deployed to engage in combat, he is a combatant even if he never actually picks up a weapon. At first glance, the traditional view might seem to be at least roughly correct, for whereas in war combatants typically do fight and hence are directly responsible for threats of harm, noncombatants do not fight and mostly fall into one of two innocuous classes: those civilians whose employment has nothing to do with the production of military weaponry or the maintenance of armed forces, and those who are not employed at all, including (among others) not only those who cannot find work, but also huge numbers of little 1. Unconditionally intending to fight clearly qualifies one as a combatant, but we should also allow that in certain sorts of cases conditionally intending to fight can also qualify one as a combatant. The soldier who goes on patrols and intends to fire his weapon if he encounters the enemy is clearly a combatant, even though his intention to fight is only a conditional one. On the other hand, even a civilian far from any battlefield might have the intention to fight if the enemy ultimately invades his neighborhood and attempts to kill him or his loved ones. Having that sort of conditional intention should not qualify anyone as a combatant. I think that the relevant difference here is that, in virtue of his conditional intention to fight, the soldier on patrol poses a significant threat; the civilian, on the other hand, poses no significant threat in spite of having a conditional intention to fight, because it is so unlikely that the condition in question will be satisfied.

184

SCOPE OF LIABILIT Y IN WAR

children, students, and retirees. If we take a closer look, however, we see a much more complex picture. In the first place, combatants whose violence can be justified on grounds of defense are not themselves a threat to rights and, so, harming them in defense of the unjust aggressors they are trying to stop typically does infringe upon their rights. Of course, should combatants participating in a justifiable war effort threaten the rights of innocent bystanders, they may be liable to violence in defense of the rights of those bystanders; but the important point here is that combatants cannot be liable under the defense liability principle simply in virtue of posing a threat of harm—they must pose (or belong to a group that poses) a threat of unjust harm.2 Are combatants who participate in an unjust war effort (hereafter “unjust combatants”) liable? Not all of them, but I doubt that there are many wars in which more than a small percentage of them would escape liability. Many philosophers who write on the ethics of war disagree with this assessment. My general view is that the philosophers in question either underestimate the scope of the appeal to defense or fail to recognize assumed risk as a source of liability, but let us consider some of their specific arguments. Some writers emphasize the diminished responsibility of many unjust combatants as a basis for questioning their liability. Thus, they point to the fact that some unjust combatants are coerced to fight, while others mistakenly believe that they ought to fight.3 However, although 2. That those combatants in war who can justify their use of force by appeal to defense typically are not themselves liable to defense is a point that, rather surprisingly, many do not concede. It has been thoroughly and admirably defended by Jeff McMahan in Killing in War (Oxford, UK: Clarendon Press, 2009) and by Lionel McPherson in “Innocence and Responsibility in War,” Canadian Journal of Philosophy 34, no. 4 (2004): 485–506. (See also McMahan’s “On the Moral Equality of Combatants,” Journal of Political Philosophy 14, no. 4 [2006]: 377–93.) Their arguments in its defense appear to me to be decisive. 3. See, for example, Seth Lazar, “The Responsibility Dilemma for Killing in War: A Review Essay,” Philosophy & Public Affairs 38, no. 2 (2010), 212. Lazar claims that “[m]inimal moral responsibility is an inadequate basis for liability to be killed: a sudden and painful death is a profoundly disproportionate response to innocent inadvertence.”

185

WAR A ND INDIVIDUAL RIGHTS

coercion diminishes responsibility, in at least most cases it does not eliminate responsibility; and the combatant who unwittingly engages in unjust aggression is like the aggressor in Mistake I: she risks posing a threat to rights and, because that risk is realized, she does pose a threat to rights. Thus, even the combatant who is coerced to participate in unjust aggression, or who reasonably though mistakenly believes that her nation’s war effort is justified, may bear some responsibility for a threat of unjust harm that she (or a group to which she belongs) poses. Consequently, unless the potential victims of that threat bear at least as much responsibility for it as she does, she can be liable under the defense liability principle to necessary and proportionate defense. Douglas Lackey denies the liability of most soldiers on the grounds that the appeal to defense justifies killing only those responsible for an “immediate danger of death” and so does not justify killing soldiers who are not currently engaged in combat. On his view, for example, killing combatant soldiers sleeping in their barracks cannot be justified on grounds of defense.4 The following hypothetical reveals that Lackey is mistaken. Suppose that, two days ago, Jones hid an IED in a public place and that he plans to detonate it in two days. Suppose further that there is no chance of our discovering where the IED is hidden. Even if we find Jones sleeping in his bed, and even though he poses no threat of harming anyone in the immediate future, I take it to be obvious that if the only way to prevent Jones from detonating the IED and thereby killing innocent persons two days from now is to kill Jones immediately—­perhaps we know that if we do not kill him now he will escape and in all probability detonate the IED—then the appeal to defense justifies killing Jones immediately. Nor is there any basis to reach a different conclusion if we alter the case by changing the two days to two weeks or two months or even two years. The crucial question in such cases is whether inflicting harm in defense is immediately necessary 4. Douglas Lackey, The Ethics of War and Peace (Upper Saddle River, NJ: PrenticeHall, 1989), chap. 2.

186

SCOPE OF LIABILIT Y IN WAR

to eliminate a threat of unjust harm. Whether the unjust aggressor is currently using a weapon or whether the relevant threat is a threat of being harmed in the near or in the distant future is irrelevant. It might be objected that part of what makes defense permissible in my example is that Jones is, at least in a broad sense, currently engaged in an act of aggression in virtue of having planted an IED in the past and intending to detonate it in the future. Thus, that example does not undermine the thought (and perhaps this is what Lackey intended) that liability to defense requires actual aggression, or at least imminent aggression, and so cannot extend to those many combatants who are not fighting, or even about to fight at the time they are killed. If we follow others and draw a distinction between preemptive defense (defense in response to an imminent threat of aggression) and preventive defense (defense in response to a threat of aggression in the relatively distant future), the thought is that whereas the justificatory scope of the appeal to defense may extend to preemptive defense, it does not extend to preventive defense.5 If that thought were correct, then we could conclude that the appeal to defense cannot be used as a justification for killing unjust combatants who are not already fighting or about to begin fighting. Once again, however, the mistake is that of defining the scope of defensive liability too narrowly. A threat of unjust harm can exist long before there is any possibility of actual violence or aggression, and so long as it is immediately necessary to address such a threat, preventive defense can be justified. If someone sincerely declares an intention to murder me five years from now, for example, and if I really do have good evidence that if I do not kill him now, he will fulfill his intention, then preventive defense is clearly 5. Notice that a related issue arises if we address the jus ad bellum question of when the appeal to defense can justify going to war. Some argue that whereas preemptive defense can be a just cause for recourse to war, preventive defense cannot. For a thorough discussion of that issue, see Jeff McMahan, “Preventive War and the Killing of the Innocent,” in Richard Sorabji and David Rodin, eds., The Ethics of War: Shared Problems in Different Traditions (London: Ashgate, 2006), 169–90.

187

WAR A ND INDIVIDUAL RIGHTS

morally permissible even though he is neither currently engaged, nor about to engage, in unjust aggression against me. Of course, it may well be the case that when there is a threat of someone’s being unjustly harmed in the remote future, rarely is there enough evidence that defense is immediately necessary to justify (in the evidence-­based sense of justification) defense; but the point remains that the relevant standard here is necessity, and so, at least in principle, preventive defense can fall within the justificatory scope of the appeal to defense. Moreover, it is not unrealistic to suppose that in war, sometimes preventive defense does satisfy the standard of necessity. Imagine a scenario in which new Al Qaeda recruits are traveling to a city where they plan to commit acts of terror. If we know that the least costly (in terms of loss of life) way to reduce the likelihood of their killing innocent citizens of that city is to attack them en route to their destination, then attacking them en route can be justified on grounds of defense. Moreover, the length of their journey plays no role here: even if their destination were a year’s travel away, they would be liable to necessary and proportionate defense. Given the right sort of circumstances, the appeal to defense could even justify invading a nation and attacking soldiers who, but for the invasion, would pose no threat of unjust harm to anyone. Suppose, for example, that the government of nation x uses paramilitary organizations to carry out a program of genocide within its own borders. Suppose further that x’s army is not involved in this program and is used only to defend x against invaders. Finally, suppose that the leaders of another nation y authorize y’s army to invade x for the humanitarian purpose of stopping x’s program of genocide. Then y’s army may be able to justify on grounds of defense unprovoked attacks against x’s army. For y’s army has a moral right to invade to stop the genocide, and once they decide to exercise that right, the combat soldiers in A’s army do pose a threat of unjust harm in virtue of their being prepared to attack the invaders. (Recall that to say that some person or group x poses a threat of unjust harm is to say that, unless prevented from doing so, x will infringe upon a 188

SCOPE OF LIABILIT Y IN WAR

right and thereby jeopardize interests protected by that right.) Of course, the members of y’s army could prevent themselves from being unjustly threatened by x’s army by simply not invading, but that would have huge costs for the potential victims of the genocide. Consequently, the members of x’s army who are prepared to fight the invaders are liable to defense, and attacking and even killing them could satisfy the necessity and proportionality restrictions in the defense liability principle. Perhaps the most serious argument that many unjust combatants are not liable to defense is identified by Seth Lazar.6 Lazar cites studies that conclude that a high percentage of combatants are incompetent or otherwise ineffective and so make no contribution at all to any threat of harm. Liability under the defense liability principle requires posing, or belonging to a group that poses, a threat of unjust harm. Thus, if Lazar is correct, it appears that I must concede that a high percentage of unjust combatants are not liable under the defense liability principle. It is tempting to respond to Lazar by appealing to the fact that, in the midst of battle, it is impossible to distinguish the effective combatants from the ineffective combatants, and so there may well be an evidence-relative defense justification for attacking ineffective unjust combatants even if there is no fact-relative defense justification. Such a response, however, is relevant only at the level of the actions of individual soldiers fighting in a war. A particular just combatant might shoot a particular unjust combatant not knowing, for example, that his target is a pacifist who can’t bring himself to fire his gun and so poses no threat to anyone; such an act might nevertheless be justified in the evidence-relative sense. However, at the political level of deciding whether to wage war, at the strategic level of general war planning, and even at the operational level, where the question is what specific military operations to pursue, it may be foreseeable that some portion of those one can expect to kill if certain military options are chosen will be combatants who pose 6. Lazar, “The Responsibility Dilemma,” 180–213.

189

WAR A ND INDIVIDUAL RIGHTS

no threat of unjust harm. Thus, at those levels, no evidence-relative appeal to defense can justify choosing options that would predictably kill those combatants. Lazar’s argument is directed at Jeff McMahan, whose position on defensive liability (at the time of the criticism) committed him to saying that ineffective combatants cannot be liable to defense. Under my defense liability principle, however, many ineffective (unjust) combatants are liable. Granted, under that principle, liability requires posing a threat of unjust harm (or belonging to a group that poses such a threat). Nevertheless, partly to ensure that my account can handle cases like One-In-Ten I and One-In-Ten II, I have stipulated that to pose a threat of unjust harm is to behave in such a way that, barring preventive action, will infringe upon another’s (noncontractual) rights and thereby jeopardize interests protected by those rights. To jeopardize interests requires only raising the probability that those interests will be damaged. Many ineffective combatants do that. The pacifist combatant who has no intention of firing his weapon may not jeopardize any interests protected by a right. The incompetent combatant, on the other hand, may in virtue of his inept attempts to kill, infringe upon rights in a way that does increase the likelihood that he will damage interests protected by those rights. After all, a lucky shot could find its target. Moreover, an ineffective combatant might make it more difficult for just combatants to fight effectively, and that could threaten the need rights of those just combatants. Harming an ineffective combatant might then reduce the threat of unjust harm that he poses. Of course, if the risk he poses is small enough, proportionality will preclude his liability to being killed. Nevertheless, given my defense liability principle, the mere fact that some aggressor would not harm anyone even if he is not harmed in defense does not shield him from liability. I am uncertain how common it is in war for a large percentage of combatants to be so ineffective that even in my sense of threat they do not pose, or even belong to a group that poses, a threat of unjust harm. But I do concede that such combatants are not liable 190

SCOPE OF LIABILIT Y IN WAR

to defense.7 Nevertheless, even if harming ineffective combatants cannot be justified on grounds of defense, it does not follow that they escape liability to being harmed; for, as discussed in chapter 7, sometimes those who voluntarily assume a risk of being harmed thereby incur liability to harm, and in many cases combatants do voluntarily assume a risk of being harmed. Ineffective combatants typically do, after all, maintain close proximity to effective combatants, and typically there is no way to discriminate between effective and ineffective combatants. Thus, the following case appears to provide an apt analogy: I am pursued by two dozen ninja assassins. Half of them are highly skilled and so pose a serious threat to my life. The other half of them are so incompetent that they pose no threat to me at all. Somehow I know all of this, and now I see all of them approaching me. I can’t tell the competent from the incompetent ones, and so I realize that successfully defending my own life will require me to kill each and every one.

Intuitively, it seems clear that it would be permissible for me to kill all of the ninjas. Those who pose a threat to my life are liable under the defense liability principle; and those who pose no threat of harm nevertheless assume the risk of being killed because they voluntarily place themselves in a situation in which successful defense against unjust aggression is likely to require harming them. Some ineffective combatants, like the ineffective ninjas in the story, are not liable under the defense liability principle, but they are liable in virtue of their voluntarily assuming the risk of being harmed. (Of 7. Saba Bazargan argues that even ineffective combatants can be liable to defense in virtue of having voluntarily accepted a role as a combatant. I am uncertain whether Bazargan is correct, but I am quite certain that his argument is worthy of serious consideration. If he is correct, then some combatants and even some noncombatant military personnel who escape liability under my principles are nevertheless liable. This may or may not increase the scope of liability in war enough to make a practical difference, but in either case the theoretical implications of Bazargan’s view are interesting and important. See his “Complicitous Liability in War,” Philosophical Studies 165, no. 1 (2013): 177–195.

191

WAR A ND INDIVIDUAL RIGHTS

course, this group would not include ineffective combatants who are coerced to fight, because they would not voluntarily assume the risk of being harmed.) Thus far my concern has been to establish the liability of most (though not all) unjust combatants, and it is important to keep in mind that the distinction between combatants and noncombatants at most only roughly corresponds to the distinction between military personnel and civilians. In many wars, some civilians are combatants, either because they are insurgents, or belong to civilian militias, or take up arms in response to an invasion, etc. Insofar as such civilians pose a threat of unjust harm (or belong to a group that poses such a threat), and are more responsible for that threat than the potential victims of that threat, they are liable to necessary and proportionate defense. Less often noticed is just how many members of a nation’s organized military qualify as noncombatants. Medics and chaplains are often recognized as noncombatants, but military personnel can include mapmakers, computer technicians, typists, cooks, mechanics, lawyers, police, and journalists, to give just a few examples of other military noncombatants. Moreover, a nation at war may not devote all of its military forces to the war effort; thus, even in the midst of war, many combat soldiers in the warring armies may be noncombatants in virtue of neither fighting, nor intending to fight, nor being deployed to fight. Some of the same points that apply to ineffective combatants apply to military noncombatants. In some cases, uniformed military personnel can reasonably though mistakenly be taken to be combatants even if they are not. In those cases, killing them may be justified in the evidence-relative sense. However, at the political level of deciding whether to wage war, at the strategic level of general war planning, and even at the operational level, where the question is what specific military operations to pursue, it may be foreseeable that some proportion of those one can expect to kill if certain military options are taken will be military noncombatants. Often it is clear, for example, that an attack on a military base or large warship will injure or kill noncombatant military personnel along with 192

SCOPE OF LIABILIT Y IN WAR

combatants. In such a case, are the noncombatants to be regarded as innocent bystanders whose rights are threatened by the attack? Sometimes the answer is no, because some military noncombatants indirectly contribute to unjust aggression in the right sort of way to incur liability. (In this regard they are relevantly similar to many civilian noncombatants, and I address the general issue of what sort of contributions to a war effort can generate noncombatant liability in sections 2–4 in this chapter.) Moreover, in many cases military noncombatants who are not liable to defense do voluntarily assume a risk of being harmed and so incur liability in that way. I can find no reason, however, to suppose that the mere fact that someone is a member of a military organization that is waging unjust war makes that person liable. Like civilian noncombatants, those military noncombatants (and even combatants) who pose no threat of unjust harm (and who bear no responsibility for any threat of unjust harm posed by the military organization to which they belong) are genuine innocent bystanders—they are not liable under the defense liability principle. Unless such persons are liable in virtue of voluntarily assuming the risk of being harmed, it is likely that killing them does infringe upon their rights.

9.2. THOSE WHO ASSIST UNJUST AGGRESSORS Locke suggests that those who “assist” unjust aggressors incur liability.8 He does not, however, venture into the difficult issue of how to define the relevant notion of assistance. There are numerous ways in which a noncombatant, whether a civilian or a soldier, can contribute to a war effort; and in some very common sorts of cases it is by no means obvious whether the relevant contribution generates liability to defense. The traditional example of the civilian noncombatant 8. John Locke, Second Treatise of Government, ed. Thomas P. Peardon (Upper Saddle River, NJ: Prentice Hall, 1997), 102 (chap. XVI, par. 179).

193

WAR A ND INDIVIDUAL RIGHTS

who might nevertheless be liable even to direct attack in war is the worker at a munitions factory, but what distinguishes that sort of noncombatant from any number of others who in various ways contribute to a war effort? According to some, there is no relevant distinction here and, so, on one (surprisingly common) extreme, we have the view that if a nation is at war and that war is unjust, then most of that nation’s adult citizens (and perhaps a good portion of its preadult citizens as well) fall into the category of those who, because of their contribution to unjust aggression, are liable to defense. Another common “total war doctrine” is that, whereas most noncombatants in a nation engaged in limited war retain their immunity, in instances of total war most noncombatants (or at least most noncombatants whose nation’s war effort is unjust) lose their immunity. Indeed, the Oxford Companion to Military History tendentiously defines a total war as a war “in which the whole population and all the resources of the combatants [i.e., the warring nations] are committed to complete victory and thus become legitimate military targets.”9 The suggestion that in some instances the whole population of a nation is “committed to” its nation’s war effort reeks of hyperbole; but no doubt there are cases in which huge segments of a nation at war do contribute to their nation’s war effort. This was certainly the case in some of the nations that participated in World War II, because whole economies were transformed to better serve the purpose of victory. Even in more limited conflicts, it is typical to find that many if not most adult citizens of a nation at war—and even many pre-adults and noncitizens—financially support that nation’s war effort by, for example, purchasing war bonds, or paying a war tax, or at least by paying taxes that enter into general funds used partly for military purposes.10 Moreover, many of those who 9. Richard Holmes, ed., Oxford Companion to Military History (Oxford, UK: Oxford University Press, 2001). 10. Of course, some taxpayers have more money spent on them by taxes than they contribute. So it is not clear that, on balance, they contribute financially to the war effort. Even so, a sizable population of noncombatants financially support whatever large-scale military ventures their nation might undertake.

194

SCOPE OF LIABILIT Y IN WAR

participate in a nation’s economy as a worker or a consumer thereby contribute to the health of that economy and hence indirectly support any war effort that would collapse but for the health of that economy. It would be absurd, however, to base a broad assignment of noncombatant liability on the principle that anyone who makes any sort of contribution whatsoever to unjust aggression can be liable to defense. Women who choose to have children risk creating threats of unjust harm, for no mother can be certain that her child will never pose such a threat. Nevertheless, it would be clearly impermissible, for example, to kill the mother of a serial killer even if, through some bizarre twist of fate, killing her were the only way to prevent her son from claiming another victim. It might be suggested that the mother escapes liability in virtue of being morally innocent with respect to the threat posed by her son. However, as discussed in chapter 4, even being morally blameworthy for behavior that results in a threat to rights does not guarantee liability to defense. Engrossed in what he is doing, the selfish local might fail to advise the tourist that he is walking towards a neighborhood that is unsafe; but even if his selfishness in this regard results in a threat to the rights of that tourist by, say, a robber, the selfish local is not liable to defense. It might also be suggested that in my examples the agent escapes liability in virtue of being responsible for only a risk of a threat that, although ultimately realized, is nevertheless very small. However, even behavior that quite predictably results in a threat to rights may not generate liability. If I merely grow crops and sell them to retailers who in turn sell them to consumers at the local marketplace, it is preposterous to suppose that I am liable for the threat to rights posed by local criminals who, although I cannot identify them, I can expect to be among those who ultimately consume the food I produce. Nor does it matter whether the criminals would find food elsewhere should I stop producing it; even if the only food available in the area were produced by me, I would not be liable for the criminal behavior of those who would then need to consume my food in order to have the strength to engage in such behavior. 195

WAR A ND INDIVIDUAL RIGHTS

Perhaps in response to such obvious limits to liability, Robert K. Fullinwider proposes that only those who pose an “immediate and direct threat” can be liable to defense.11 Because noncombatants do not pose such a threat, Fullinwider concludes that noncombatants are not liable. His proposal is too restrictive, however, for as others have observed,12 there are obvious examples of persons who fall within the justificatory scope of the appeal to defense even though they only indirectly contribute to a threat. How directly one contributes to a threat depends, I take it, on the number of acts or events in the causal chain between one’s own actions and the threat. Thus, if a crime lord orders someone to be murdered, the number of links in the chain of command from him to the “foot soldier” who actually fires the gun determines, in part, how directly responsible the crime lord is for the threat that results from his orders. It does not, however, determine whether he is liable or not: he is liable to necessary and proportionate defense regardless of the number of links in the chain of command. Similarly, political leaders who authorize unjust aggression are among the clearest examples of persons who can be liable to defense in war regardless of how indirect their responsibility for the violence they authorize might be. Or consider the individual who smuggles guns knowing that ultimately they will be delivered to a violent drug cartel. He does not pose a direct threat of harm, but surely he is liable to being harmed in defense of the potential victims of the criminal violence he seeks to enable. Not surprisingly, then, most just war theorists reject both Fullinwider’s view that, even in a nation engaged in unjust war, few if any noncombatants are liable and the opposite extreme that, in a nation engaged in unjust war, most or all noncombatants are liable. Various intermediate positions have been defended, but no consensus has emerged. Indeed, even at the level of moral intuition about 11. Robert K. Fullinwider, “War and Innocence,” Philosophy & Public Affairs 5, no. 1 (1975): 90–7. 12. E.g., Lawrence Alexander, “Self-Defense and the Killing of Noncombatants: A Reply to Fullinwider,” Philosophy & Public Affairs 5, no. 4 (1976): 408–15.

196

SCOPE OF LIABILIT Y IN WAR

particular cases, there appears to be wide disagreement among just war theorists on which noncombatants are liable to defense. Such disagreement argues for a more theoretical approach to the issue than one finds in some of the relevant literature. If we can discover why the mother of the serial killer, or the selfish local, or the ordinary food or gun producer is not liable to defense in spite of his or her contribution to unjust aggression, or why the crime lord or the gun smuggler is liable even though they pose no direct threat of harm, then we can apply that understanding to the issue of noncombatant liability in war. Let us turn, then, to the discussion of rights in chapters 2 and 3, and to the account of defensive liability in chapter 4, for those chapters provide a theoretical framework that should be useful in this regard. On my rights enforcement account of the appeal to defense, not everyone who contributes to unjust aggression is liable to defense; rather, liability under the defense liability principle is restricted to those who, in virtue of their contribution, both pose a threat of unjust harm (or belong to a group that poses such a threat) and bear more responsibility for that threat than do its potential victims. In chapters 2 and 3 I identified three common ways to unjustly harm someone: (Category 1) x (an individual or group) acts on something to which y (another individual or group) has a right in a way that damages interests protected by that right. (Category 2) x has control over whether a causal process begins or continues, x intends that it does begin or continue, that causal process alters an object to which y has a right, and, as a consequence of that alteration, interests protected by that right are damaged. (Category 3) x performs an act a even though: (i) y has a need claim against x that x refrain from performing a; (ii) because that claim is undefeated by any competing claims that might exist, it constitutes a right; and (iii) the performance of a by x damages interests protected by that right. 197

WAR A ND INDIVIDUAL RIGHTS

It is important to keep in mind that there are exceptions in all three sorts of cases. Suppose, for example, that x does act on something to which y has a right in a way that damages interests protected by that right. If y freely and knowingly consented to the harm x’s actions inflict on y, or y is liable under the defense liability principle to the harm x inflicts on y, or y is harmed because x rationally persuades x to engage in a dangerous activity, then x does not infringe upon y’s rights. Nor do these examples exhaust the possible exceptions here. In the light of these earlier conclusions, some of our examples appear less puzzling. Consider again the case of the selfish local. Although he is morally to blame for failing to warn the tourist, the tourist does not have a right against him to be warned, and so the local poses no threat to the tourist’s rights at all. Thus, although the selfish local is blameworthy for not protecting the tourist, he is not liable to defense. Similarly, in the case in which I produce and sell food to my community knowing that some of my customers will be criminals who need food to pose threats of unjust harm, no one has a right against me that I stop selling food to prevent myself from enabling criminal behavior. Thus, I pose no threat to rights, and so I am not liable to defense. On the other hand, the gun smuggler would violate need rights by smuggling guns to a drug cartel; and the crime lord, by intending the act of murder he authorizes, would violate the right to self-ownership of his victim (in virtue of falling into category 2).

9.3. MUNITIONS WORKERS Notice that one important implication of my theoretical framework is that there is at least one salient difference between unjust combatants and the noncombatants who assist them, for it is only the former that can fall into category 1 above. In order to accommodate intuition in various cases (see chapters 3 and 6), I have suggested that the notion of “acting on” relevant to the power of exclusion in the right of self-ownership applies only in cases where a causal 198

SCOPE OF LIABILIT Y IN WAR

process does not include the actions of another agent. Thus, at least typically, noncombatants who assist unjust combatants infringe upon the right of self-ownership only if their assistance places them in category 2. Because I doubt that many noncombatants fall into that category, I believe that most noncombatants who pose a threat of unjust harm in virtue of assisting unjust combatants do so in virtue of infringing upon need rights. Consider, for example, workers in factories that produce the munitions for combatants (hereafter “munitions workers”). Just as need rights provide a basis for the liability of the gun smuggler, they also provide a basis for the common view that in war some munitions workers are liable. Perhaps, though, some will doubt my assumption that the smuggler is liable. So let me provide a clearer example. Suppose that a murderer offers me a six-pack of beer in exchange for my gun. Suppose further that I know that he wants my gun because he wants to use it to commit another murder, a murder that he would be unable to commit should I decline his offer. It then seems obvious that if I attempt to exchange my gun for the beer, and I do so knowing that if he receives the gun it is likely that he will use it in an attempt to commit a murder, then I am liable to (necessary and proportionate) defense. The source of my liability is that I pose a threat of unjust harm (and I am more responsible for that threat than its potential victim). Unlike the murderer, however, I do not pose a threat to the right of self-ownership. Rather I pose a threat to a negative need right. The potential victim of the murderer has a need claim against me that I not enable the murderer to pose a threat to his or her life. Partly because my refusal to enable the murderer to pose that threat would not prevent anyone’s needs from being met, that claim is undefeated and so constitutes a right. Similarly, the munitions worker who knows that his government’s war effort is unjust and yet contributes to that effort by producing weapons for the military may pose a threat to a negative need right, a right against him that he not produce weapons for the military. Assuming that his working at the munitions plant is not 199

WAR A ND INDIVIDUAL RIGHTS

crucial to meeting his own or someone else’s needs, that claim is apt to be undefeated and hence constitutes a right. In the typical case the munitions worker will be more responsible for the threat he poses to such a right than those whose rights are threatened. Thus, workers of that sort can be liable under the defense liability principle. Accordingly, if bombing a munitions plant is necessary to reduce the threat that weapons will be produced there and will be used to inflict unjust harm, then it may be the case that munitions workers who are killed in the bombing are not unjustly killed. (The killing would, of course, need to satisfy the necessity and proportionality restrictions in the defense liability principle.) Even the munitions worker who is unaware that his nation’s war effort is unjust can be liable. Recall that in chapter 4 I defended the following principle: If (i) an agent s freely and knowingly risks performing some action a, (ii) s does not provide compensation for that risk, (iii) s’s freely and knowingly performing a would pose a threat to a right, and (iv) the risk is realized (i.e., s does perform a), then s poses a threat to a right.

Most munitions workers who are unaware that their government’s war effort is unjust know that they might be producing weapons that, barring preventive actions such as an air raid on the munitions factory where they work, will end up in the hands of unjust aggressors. Thus, they freely and knowingly risk doing something that, if they were to do it freely and knowingly, would pose a threat to a need right against them that they not provide weapons to unjust aggressors. Because they provide no compensation for that risk, and that risk is in fact realized, the principle stated in this paragraph yields the conclusion that they do pose a threat of unjust harm. Indeed, even if their ignorance is blameless, they pose a threat of unjust harm and so may be liable to defense. Of course, the typical worker at a munitions factory does not by herself provide munitions to anyone. Rather, she merely takes part in a group’s providing munitions. Individually, then, the typical 200

SCOPE OF LIABILIT Y IN WAR

munitions worker does not pose any threat to anyone’s needs and so cannot possibly pose a threat to a need right. Nevertheless, it does not follow that she escapes defensive liability; for under the defense liability principle, even if it is only a group to which she belongs that poses the threat of unjust harm, if she is more responsible for that threat than its potential victims are, she can be liable.13 Indeed, even if her contribution to the relevant threat is a mere “drop in the bucket,” she can be fully liable. (Recall the example in chapter 4 of the group of 1,000 assassins each of whom endeavors to put an individually harmless but collectively lethal drop of flavoring in my tea. Given that 900 drops constitutes a lethal dose, no individual assassin makes a significant contribution to the threat to my life, but it is quite obvious that all of them are fully liable.)14 13. The fact that individual liability can be generated by a collectively posed threat also undermines the following objection: In some cases the munitions worker cannot make anyone worse off by doing his job because he is easily replaceable: if he didn’t do his job, someone else would. Since the replaceable munitions worker cannot make anyone worse off by producing weapons, it appears that his producing weapons cannot possibly pose a threat of unjust harm, and so his producing weapons does not make him liable under my defense liability principle. What follows is that either replaceable munitions workers are not liable (or at least not in virtue of producing weapons for the military) or else my defense liability principle is too restrictive. To deny the liability of some munitions workers on the grounds of their being replaceable, however, would have the absurd implication that even unjust combatants who fire their weapons at little children can avoid liability in virtue of being replaceable. Thus, if the objection succeeds, it ultimately shows that my defense liability principle is too restrictive. One possible response to the objection would be to maintain that one way to unjustly harm someone is to act in a way that is sufficient, though not necessary, to cause unjust harm. I am inclined to think, however, that in a case of overdetermination it is the relevant group that poses the threat of harm. In a case where a murder is overdetermined because two or more persons simultaneously inflict fatal wounds, for example, I am inclined to say that even though no individual inflicts unjust harm, a group of individuals does. Thus, even if the replaceable munitions worker does not pose a threat of harm, she and her potential replacements do. 14. For excellent discussions of such cases, see Christopher Kutz, Complicity: Ethics and Law for a Collective Age (New York: Cambridge University Press, 2000), and Björn Petersson, “Co-responsibility and Casual Involvement,” Philosophia 41, no. 3 (2013): 847–66.

201

WAR A ND INDIVIDUAL RIGHTS

Of course, this raises the important question of what is required for individual responsibility for group behavior. I will have more to say about that in chapter 10, but let me say something briefly here. Focusing on the case at hand, let us suppose that, if all or even most of the munitions workers at a certain factory were to join together in opposition to the war by refusing to work, there would be fewer weapons for their nation’s military to use to unjustly kill just combatants, and so the threat of unjustly killing just combatants would be reduced. Under those circumstances, munitions workers at that factory collectively might well pose a threat of unjust harm, because the relevant just combatants have a negative need right against them that at least most of them refuse to work, and violating that right would jeopardize the interest those just combatants have in avoiding injury and death. It seems clear that at a minimum any munitions worker who (1) continues to work at the factory and (2) does not want to take part in what she and her colleagues are under an obligation to do (which is to refuse to work) shares in the responsibility for the collective failure of munitions workers to refuse to work. Assuming that such a worker is more responsible than are the just combatants for this collective failure, she could then be liable to attack under the defense liability principle. The more difficult question is whether liability to defense in this sort of case can be generated simply by continuing to work at the munitions factory. I am inclined to say no, partly because a worker might be opposed to her nation’s unjust war effort and continue to work in the munitions factory only because she knows that her fellow workers are unwilling to join with her in doing what collectively they ought to do, which is to stop production at the factory by refusing to work. She might even continue to work only because she knows that if she were to quit her job, her replacement would almost certainly do a better job and so the threat to just combatants would be even greater. In the latter case especially, it seems to me intuitively clear that holding her responsible for the group’s failure would be unjust. Thus, I am inclined to say that she is not liable. 202

SCOPE OF LIABILIT Y IN WAR

9.4. FARMERS AND TA XPAYERS Let us turn to another important and controversial sort of case, the case of those who make economic contributions to an unjust war effort. I want to argue that, for the most part, those who directly or indirectly provide economic support to an unjust war effort (e.g., by providing food or medicine or shelter to the military, paying taxes, participating in and so contributing to the health of the economy, purchasing war bonds) are not liable under the defense liability principle. I will focus on two cases: the case of those who pay taxes that are used to finance the war (hereafter “taxpayers”), and the case of farmers who supply food to the military (hereafter “farmers”)—­ but much of what I have to say about taxpayers and farmers would also apply to classes of noncombatants who make other sorts of economic contributions to an unjust war effort. Taxpayers and farmers appear to be similar in certain relevant respects to munitions workers. Collectively, each group makes a vital contribution to their nation’s war efforts. Thus, the potential victims of their nation’s unjust war efforts may well have a need claim against them that they not make that contribution. Are there any relevant differences between farmers or taxpayers, on the one hand, and munitions workers, on the other—differences that would justify assigning liability to munitions workers but not to farmers and taxpayers? If writers such as Fullinwider are correct, whether one is liable or not can depend partly on how direct one’s contribution to unjust aggression is. Thus, one might suggest that because the contribution of the munitions worker is more direct than that of the taxpayer or even the farmer (whose crops need to be processed before being delivered to the military), the taxpayer and the farmer may not be liable even if the munitions worker is. We have already seen, however, that indirectness as such does not protect one from liability. The leader of a criminal organization who authorizes murder but is well-insulated from the threat of criminal sanctions by a long chain of command can be liable even though his contribution to the murder is very indirect. I have not discovered 203

WAR A ND INDIVIDUAL RIGHTS

any persuasive argument that directness is ever relevant to liability, and so my tentative conclusion is that it is irrelevant. Thomas Nagel attempts to draw a qualitative line between munition workers and farmers. He writes: The threat presented by an army and its members does not consist merely in the fact that they are men, but in the fact that they are armed and are using their arms in the pursuit of certain objectives. Contributions to their arms and logistics are contributions to this threat; contributions to their mere existence as men are not. It is therefore wrong to direct an attack against those who merely serve the combatants’ needs as human beings, such as farmers and food suppliers, even though survival as a human being is a necessary condition of efficient functioning as a soldier.15

Perhaps one might attempt to extend Nagel’s argument so to provide a basis for saying that the taxpayer is not liable, for tax revenue as such does not contribute to the “soldier qua soldier.” It appears, however, that Nagel is mistaken. Suppose that, in order to avoid being captured or killed, the terrorists reside in remote caves and so must have food supplies delivered to them. I suspect that most would be inclined to say that, if I decide to make those deliveries because I am sympathetic to terrorism or even because the terrorists pay well, then I am liable to defense. If this example seems less than compelling, consider the following more fanciful one: Suppose that the villain has been firing his gun at you, but he is about to lose consciousness and so cease to pose a threat of unjust harm. (Perhaps he is very weak because he has not received adequate food and water for days.) If, knowing this, I nevertheless sell him a bottle of water and as a foreseen consequence he continues to attack you, then clearly it would be permissible for you to kill me if that were necessary to prevent him from taking your life. My 15. Thomas Nagel, “War and Massacre,” Philosophy & Public Affairs 1, no. 2 (1972), 140.

204

SCOPE OF LIABILIT Y IN WAR

contribution is to the villain’s mere existence as a human being, but that cannot protect me from liability to defense in this case, or so I suspect most of us are strongly inclined to believe.16 Our results from earlier chapters reveal why Nagel’s distinction is not the relevant one. It only roughly tracks the relevant distinction, which is that between posing a threat of unjust harm and not posing such a threat. In the case in which I provide water to the villain, thereby enabling him to continue firing his gun at you, we can explain my liability to defense in terms of the fact that you have a (negative) need right against me that I not enable the killer to kill you. Thus, by giving the killer the water, I pose a threat of unjust harm and so incur liability. Similarly, in the example of my delivering food to the terrorists who reside in remote caves and so depend on my deliveries to successfully commit acts of terrorism, the potential victims of those terrorists have a need right against me that I not enable the terrorists to commit acts of terrorism by delivering food to them, and so once again I pose a threat of unjust harm. Because I am more responsible for that threat than those potential victims are, I am liable to necessary and proportionate defense. One genuinely relevant difference between most taxpayers and most munitions workers is that, unlike paying taxes, working in a munitions factory is rarely coerced. Payment of taxes is often coerced, because tax evasion is often penalized. Of course, coercion by itself does not negate liability. The conscripted combatant participating in unjust aggression may well be coerced to participate, but he can nevertheless be liable to defense. Thus, one might suppose that consistency requires the conclusion that the fact that the taxpayer is coerced to pay taxes is irrelevant to the question of whether he is liable. For some of us, however, the coercion of the taxpayer seems to be relevant even though the coercion of the conscripted combatant 16. Cécile Fabre also rejects what she calls the “moralized functionalist view” that there is a moral difference between the act of providing food and the act of providing guns. See “Guns, Food, and Liability to Attack in War,” Ethics 120, no. 1 (2009), 50–6.

205

WAR A ND INDIVIDUAL RIGHTS

does not, and this intuition can be defended by appeal to some of our conclusions about rights in chapters 2 and 3. The argument I want to offer proceeds as follows: With the exception of certain ineffective combatants, conscripted unjust combatants pose a threat of unjust harm in virtue of infringing upon the right of selfownership of their potential victims and thereby jeopardizing interests protected by those rights. The coerced taxpayer, on the other hand, is not likely to pose a threat to anyone’s right of self-­ ownership, for he does not act on, or belong to a group that acts on, the persons of others in a way that jeopardizes interests protected by the right of self-ownership. Furthermore, although the potential victims of the unjust war effort in question might have a need claim against taxpayers that they do not financially support their government’s unjust aggression, because paying his taxes is coerced, such a claim might well fail to constitute a right, because it is defeated by the taxpayer’s own need to avoid the costs of not paying taxes. Thus, it appears that in many cases the coerced taxpayer does not threaten any rights by paying taxes. The premise that the taxpayer need not pose a threat to anyone’s right of self-ownership is based on the suggestion, discussed in chapter 3, that we do not regard the free decisions of others as links in a causal process for the purposes of assessing whether one person acts on another and thereby poses a threat of unjust harm. Thus, although tax payers may enable soldiers to pose a threat to the right of self-ownership, the taxpayers themselves need not pose a threat to that right. Their case is analogous to that of the jailor who lets the hardened criminal out of jail because the criminal has served his time. The jailor may know, or at least strongly suspect, that he is thereby enabling the criminal to commit new crimes. No one would suppose, however, that the jailor himself thereby violates the rights of the criminal’s future victims. Enabling someone to create a threat is not the same as initiating a threat. Thus, taxpayers need not themselves pose a threat to the right of self-ownership even when, collectively, they enable their nation’s armed forces to do so. 206

SCOPE OF LIABILIT Y IN WAR

It might be objected that if coercion does not preclude conscripted combatants from threatening their potential victims’ respective rights of self-ownership, then coercion should not preclude taxpayers from threatening the need rights of the potential victims of their contributions to unjust aggression. This objection raises theoretical questions about rights that I am not prepared to answer here, but I can say that, if common moral intuition is to be our guide, need claims are much more easily defeated than are the claims of self-ownership. Recall, for example, two cases from chapter 6: Coercion I. Jones, who happens to be standing beside you, wants to kill Smith, but Smith is a good distance from him and Jones is a poor shot. He knows, however, that you are an excellent shot. Accordingly, he provides you a gun and, aiming another gun at your head, demands that you shoot and kill Smith. You know that Jones will kill you if and only if you do not kill Smith. You choose to kill Smith. Coercion II. Jones, who happens to be standing beside you, wants to kill Smith, but Smith is a good distance from him and Jones does not have a long-range weapon. He knows, however, that you have a long-range weapon. Accordingly, he aims his gun at your head and demands that you hand over your weapon. You know that Jones will kill you if and only if you do not hand over your weapon. You also know that he will kill Smith if and only if you do hand over your weapon. You hand over your weapon.

Killing you in defense of Smith seems justified in Coercion I but not in Coercion II, and this difference can be explained by appeal to the fact that in the former case you threaten Smith’s right of selfownership, but in the latter case, because your need not to be shot by Jones defeats Smith’s need claim against you that you not give Jones your gun, you do not threaten Smith’s rights. It might also be objected that my reasoning leads to the conclusion that many munitions workers in a nation engaged in unjust 207

WAR A ND INDIVIDUAL RIGHTS

aggression also avoid liability. Like taxpayers, munitions workers may enable others to pose threats to rights, but, partly because they do not themselves act on the victims of the weapons they help to produce, they typically do not threaten anyone’s right of self-­ ownership. Moreover, many governments at war might be prepared to coerce munitions workers to keep working if there was any threat of an organized strike. Then the needs of the munitions workers would defeat the need claims of the relevant just combatants and so, because, even collectively, the munitions workers would not pose a threat to any need right, none of them would be liable. Even in the absence of such coercion, if the munitions workers need their jobs to survive, any need claim against them that they refrain from helping to produce weapons would be defeated by their own economic needs.17 I believe that in such cases, munitions workers, like most taxpayers, would escape liability. This point has limited relevance, though, because many munitions workers can safely refuse to work and can meet their basic economic needs without making weapons. In the case of taxpayers, on the other hand, any tax revolt serious enough to hamper a war effort is apt to wreak havoc on a nation’s economy, causing various basic economic needs to go unfulfilled. Thus, it seems unlikely that just combatants would have a need right to a tax revolt on the part of the taxpayers in the nation that is engaged in unjust war against them. It is much more likely that just combatants would have a need right against munitions workers that they refuse to produce weapons for those engaged in unjust aggression. Suppose, however, that in some particular case there is a right to a tax revolt and, yet, not enough taxpayers refuse to pay taxes to effectively undermine their nation’s unjust war effort. Even then, only those individual taxpayers who are responsible for the failure of taxpayers to revolt are liable, and such responsibility would 17. One exception here might be a case in which the weapons they supply are likely to inflict massive casualties. In such a case, the need claims of the many potential victims of relevant weapons might overwhelm the need claims of the relatively few munitions workers.

208

SCOPE OF LIABILIT Y IN WAR

require more than just paying one’s own taxes. If I, the individual taxpayer, would enthusiastically participate in a tax revolt, but the lack of interest in such a revolt on the part of most of my fellow citizens makes such a revolt impossible, then I do not bear any responsibility for the collective failure of taxpayers in my nation to generate such a revolt, and so I escape liability. As for farmers, one could argue that they are more like munitions workers than taxpayers in that their contributions to a war effort are not usually coerced. It is difficult to imagine, however, a successful collective effort on the part of food producers or suppliers to deny their own nation’s armed forces the food they need to fight. Moreover, if they supply the general population as well as the military, refusing to produce food could have a negative impact on the ability of civilian citizens to meet their needs. Thus, it is hard to see how there could be a need right against them that they refuse to provide food to the military. It appears, then, that those who assist unjust combatants by merely paying taxes or providing food or other economic goods to the military rarely pose a threat of unjust harm and so are rarely liable under the defense liability principle. Furthermore, even munitions workers may not be liable under that principle. If they are coerced to work, or they do so out of economic necessity, then there may be no need right against them that they refuse to work; and if there is no right against them that they refuse to work, then they do not pose a threat of unjust harm by continuing to work.18

18. It should be noted that, although my principles entail that some classes of noncombatants can be liable to defense, I do not intend to suggest that there is no rational basis for the laws of war that protect those classes of noncombatants. Those laws can be justified on the grounds that the protection they provide greatly reduces the human costs of war. Thus, considerations of well-being may justify legal immunity to attack even when moral immunity is absent.

209

[ 10  ] CITIZENSHIP AND LIA BILIT Y

In chapter 9 I exposed the implausibility of basing a total war doctrine on the proposition that, when a nation’s whole population contributes to unjust aggression, its whole population is liable to defense. It is worth noting that, because such a doctrine must appeal to economic contributions in order to cover anything close to the “whole population” of a nation, it will be difficult to confine its (mistaken) assignment of liability to that population; for in this era of global economic ties, many noncitizens living in other nations might well make economic contributions to an unjust war effort that are comparable to the contributions made by citizens and noncitizen residents. Yet to my knowledge no one believes that liability in war has that broad of a reach. I suspect that this is because citizenship itself is playing some role in the thinking of those who believe in total war. Be that as it may, many do find it less objectionable to inflict (necessary and proportionate) harm on noncombatants who are citizens of a state engaged in unjust war than on noncombatants who belong to states that are not involved in unjust war. Thus, in this chapter I want to consider the possibility that liability to defense can be extended to many noncombatants at least partly on the basis of their citizenship in a nation the armed forces of which are engaged in unjust war. The suggestion that citizenship can be a basis for liability was common in 18th-century Europe. The dominant view among European moral and legal theorists of that time was the collectivist one that, because whole political societies go to war, any citizen of a nation waging unjust war is a legitimate target. Of course, the assumed conception of a citizen was such that it excluded women and 210

C itizenship and L iability

children, but every adult male was thought to be a part of the state and hence liable for the state’s misdeeds. I dismissed such collectivist arguments in chapter 1. Mere membership in an organized group cannot make one accountable for its misdeeds. Here I want to consider two additional arguments to the conclusion that the typical citizen is liable to defense when her government engages in unjust aggression. Roughly stated, the first is the argument that, because the government is the agent of the citizen, the citizen can be held accountable for her government’s behavior and so is liable to defense when her government poses a threat of unjust harm. The second is the argument that, because citizens are under an obligation to prevent their government from engaging in unjust aggression, they are liable to defense if they fail to fulfill that obligation.

10.1. AGENCY AND LIABILIT Y It is commonplace to suggest that governments, or at least legitimate ones, act as the agents of their citizens. Government officials certainly claim to act in the name of, and on behalf of, the citizenry; and they do so even when they wage war. Furthermore, in many nations the people are regarded as sovereign, and the government is thought to consist of “public servants” entrusted to fulfill the functions of political society on behalf of the people. Thus, given that we often do hold people responsible for what their agents do on their behalf, it is not surprising that some writers have proposed that when the government of a nation involves that nation in unjust aggression, the citizen can justifiably be held accountable for that aggression and so become liable to necessary and proportionate acts of defense. Agency is a relation between two parties, the agent and the principal. The agent acts for the principal, typically at her request or by her command, and often under her guidance or direction. The primary function of an agent, like that of a representative, is to extend the agency of the principal—that is, to help her accomplish what she 211

WAR A ND INDIVIDUAL RIGHTS

would find impossible or at least more difficult or costly to accomplish on her own. Although they serve the same general purpose, agency and representation are not identical. Some principals are represented by their agents, others are not. If I hire someone to negotiate a contract for me, that person is my agent and my representative; but if I hire someone to care for my garden when I am away, the gardener is my agent but not my representative. Agency can also be distinguished from benefaction. If I buy my daughter a car on her sixteenth birthday, I am her benefactor but not her agent; and this remains the case even if I buy her the car at her request. These are very general remarks, and a more precise analysis of the agency relation might be desirable. Nevertheless, I think we can get along without one, because the relevant question for our purposes is not whether a government acts as the agent of its citizenry, but whether the citizen can justifiably be held accountable for her government’s unjust aggression. Even if there is an agency relation between the citizen and the government, we might find that it is a peculiar one in that the citizen is never liable for the actions her government performs on her behalf. On the other hand, even if there is no agency relation between the government and the citizen, we might find that the citizen can be liable for her government’s misdeeds for precisely the same reason that, in the typical case, the principal can be liable for the misdeeds of her agent.1 Let us proceed, then, to address three questions: First, why is the principal in an agency relation often liable for the misbehavior of her agent? Second, what are the limits of her liability? And third, what do the answers to those two questions imply about whether the citizen is liable for her government’s unjust aggression? 1. My own view, which is I do not defend here, is that when the principal is liable for her agent’s behavior, that liability is not produced by, and so is not to be explained in terms of, the existence of an agency relation. On the contrary, it is more plausible to explain the existence of an agency relation partly in terms of the potential for liability, for whether we posit an agency relation seems to depend partly on whether we find the potential for one person’s being liable for the behavior of another.

212

C itizenship and L iability

Consider first the case of a hired killer. Here the principal authorizes (in the broad sense of authorization that does not imply any right to grant authority or to perform an authorized action) his agent to commit murder on his behalf, and there is no question that the principal is liable to necessary and proportionate defense in relation to any threat to the right to life that his agent creates on his behalf. A simple explanation for such liability appears to be readily available. There is no moral difference between hiring someone to kill and endeavoring to kill someone oneself. In both cases one uses something to achieve the end of someone’s being killed. In the latter case one might use a knife or a gun or poison or even one’s bare hands, and in the former case one uses another person. In both cases one is, through one’s actions, fully (even if not solely) responsible for posing a threat of unjust harm. Notice that the agency relation does not play a crucial role here. The liability of the killer’s employer does not depend on that relation, for even if he sought to achieve his end by merely encouraging another person to kill someone, or by manipulating him to do so by telling a lie (as Iago does to Othello), his responsibility for posing a threat of unjust harm would be the basis of his liability. At a more theoretical level, things are more complicated. As discussed in chapter 3, where a person x has a right to an entity o, one way to infringe upon x’s right to o is to act on o without x’s consent in a way that results in damage to the interests protected by x’s right to o. In the simplest cases, someone’s acting on o involves a causal process linking that person’s basic actions with some change in o, and such a process involves a spatiotemporally continuous causal chain from that person to some change in o. However, we do not regard the decisions of others as events in a causal process for the purposes of assessing whether one person acts on something to which another person has a right. Thus, we need some substitute for a simple causal process if we are to justify placing, for example, the hired killer’s decision to kill on his employer’s behalf in a chain of events that constitutes the employer’s infringing upon the right of self-­ownership. In ordinary life we speak of authorizing and instigating and inciting, 213

WAR A ND INDIVIDUAL RIGHTS

and so on, when we find reason to hold one person responsible for the violent behavior of another. In such cases one relevant factor is intention. Recall that one way to inflict unjust harm is this: (Category 2) a person x has control over whether a causal process begins or continues, x intends that it does begin or continue, that causal process alters an object to which y has a right, and, as a consequence of that alteration, interests protected by that right are damaged.

The employer of the hired killer has control over whether that killer initiates a causal process that, assuming the killer is successful, ultimately alters the intended victim’s body in a way that kills her. And he intends that causal process to be initiated. Thus, we can say that the one who hires the killer poses a threat to the intended victim’s right to her own person and a threat of unjust harm. Thus far we have considered only the simple case in which the principal specifically authorizes the actions of his agent for which he can then be held accountable. It would be a mistake, however, to suppose that agency yields liability only if the relevant actions are specifically authorized. The principal never specifically authorizes each and every action the agent performs on her behalf. Rather, the principal authorizes one or more actions that can be performed in a variety of ways, and the agent is expected to choose among those various ways, sometimes with the additional expectation that the agent will make such choices based on what she can reasonably expect would best fulfill the principal’s wishes. Insofar as the agent does act in that way, specific authorization is not required for legal liability.2 The law here is a reflection of morality, for falling into category 2 does not require intending any specific causal process. I might incite violence and be liable to defense in virtue of my 2. In the law of agency, if the agent acts as she can reasonably expect the principal would want him to act, the principal can be held accountable even for unforeseen actions performed by the agent. There are a variety of subtle issues concerning whether legal liability and moral liability to defense coincide in that sort of case, but I shall not pursue those issues here.

214

C itizenship and L iability

intention that someone initiate a violent causal process. I do not need to intend a knifing or a shooting or some other specific sort of harmful causal process to incur liability. Notice that my only example thus far is a case in which the principal authorizes the agent to engage in unjust behavior. Ordinarily, the principal in an agency relation authorizes actions that are not inherently unjust, and it is at least implicit that the scope of the agent’s authority is limited by the rights of others. Thus, if I hire a gardener, it may well be within the scope of his authority to pull weeds from my garden even if I do not explicitly authorize that specific activity, but without my explicit authorization to ignore at least some moral constraints for the sake of my garden, it would not be within the scope of his authority to poison neighborhood cats that sometimes dig up my flowers. If he nevertheless does that, he is liable (e.g., to the costs of compensating those whose cats were poisoned), but I am not. Importantly for our purposes here, the law also recognizes the existence of agency, with the usual potential for a principal’s liability for her agent’s behavior, in certain cases where the principal has no intention to authorize someone to act as her agent. In the law of agency, if someone acquiesces in another person’s claims to represent him, that acquiescence can create an agency relation even in the absence of express authorization on the part of the principal. James Child attempts to exploit this fact to establish the ordinary citizen’s liability for her government’s unjust war efforts. He points out that governments claim to represent their citizens and when they go to war they typically purport to be acting on behalf of, and in the name of, the citizens they claim to represent. He also points out that most citizens acquiesce in those claims. His conclusion is that liability can be extended to any adult citizen who does not openly oppose her government’s unjust aggression or otherwise renounce her government’s claim to act as her agent in waging war. 3 3. James Child, “Political Responsibility and Non-Combatant Liability,” in Political Realism and International Morality: Ethics in a Nuclear Age, eds. Kenneth Kipnis and Diana Meyers (Boulder, CO: Westview Press, 1987).

215

WAR A ND INDIVIDUAL RIGHTS

One way to resist Child’s argument is suggested by John Locke: Secondly, I say then the conqueror gets no power but only over those who have actually assisted, concurred, or consented to that unjust force that is used against him. For the people having given to their governors no power to do an unjust thing, such as is to make an unjust war—for they never had such a power in themselves—they ought not to be charged as guilty of the violence and injustice that is committed in an unjust war any farther than they actually abet it, no more than they are thought to be guilty of any violence or oppression their governors should use upon the people themselves or any part of their fellow subjects, they having empowered them no more to the one than to the other.4

Locke was certainly sympathetic to the idea that in a legitimate political order, the government acts as the agent of the people, who, in Locke’s view, constitute a political society that, although sovereign, entrusts government to exercise political power on its behalf. Nevertheless, as the people themselves do not have the authority to act unjustly, their grant of political power to government cannot be taken to be an attempt to establish in government the authority to act unjustly. Thus, the government’s acting as the agent and trustee of the people does not justify holding the people accountable for their government’s unjust aggression. Accordingly, Locke proposes that only those citizens who assist, concur, or consent to their nation’s unjust aggression are liable. If Locke is right, then even if the government is my agent, the presumption should be that I, the citizen, do not authorize the government to wage unjust war on my behalf, and only my specific positive support or consent can defeat that presumption. By contrast, Child wants to say that because the government claims to be acting 4. John Locke, The Second Treatise of Government, ed. Thomas P. Peardon (Upper Saddle River, NJ: Prentice Hall, 1997), 102 (ch. XVI, par. 179).

216

C itizenship and L iability

as my agent when it wages unjust war, the presumption is that it is authorized by me to do so, and only if I raise positive objections to its claims to be acting as my agent is that presumption defeated. Perhaps Child’s argument has some plausibility. Consider again the example of the gardener who poisons neighborhood cats as part of caring for his employer’s garden. If the employer is simply unaware of his gardener’s actions, he is not liable; but if he is aware and nevertheless does not raise any objection to his gardener’s behavior, then his acquiescence does seem to be a plausible basis for “implied authorization” and hence liability. Accordingly, I would like to rely on a different sort of objection to Child’s argument. On my view, a closer look at the conditions under which acquiescence can generate legal liability for an agent’s behavior reveals a clear flaw in that argument. In the law of agency, if (i) the principal acts in such a way that his agent can reasonably conclude that he has been granted authority to do something, and (ii) the principal knows, or should know, that his actions make it reasonable for the putative agent to draw that conclusion, then the law is prepared to hold the principal responsible for her agent’s actions even if the principal does not intend to authorize those actions.5 Acquiescence in an agent’s actions on the principal’s behalf can constitute this sort of implied authorization. The problem for Child’s view is that, where the agent claims to act on behalf of the principal, the principal’s acquiescence in those claims does not make her accountable for them if that acquiescence does not make it reasonable for the putative agent (or third parties) to believe that authority has been granted. If it is clear to everyone concerned that not acquiescing would be futile or costly, then acquiescence may not make it reasonable to believe that the principal wants the agent to act as he does. Most everyone knows that, at least typically, renouncing one’s government’s claims to be acting in one’s name in waging war is futile—in response, the government will go on waging war and claiming that it is doing so on behalf of, and in the name of, all of its citizens. Moreover, such 5. Restatement of Agency, 2nd edition (American Law Institute 1958), sections 8 and 57. 217

WAR A ND INDIVIDUAL RIGHTS

renunciation can be highly costly—one can end up in prison or worse if one protests one’s government’s war effort. Thus, if the law of agency is to be our guide, the liability of the ordinary citizen typically cannot be established by the citizen’s mere acquiescence in its government’s unjust aggression. Of course, the law does not always reflect morality, but here morality seems to demand the limits to liability that the law recognizes. It would be manifestly unjust to impose liability on someone for the actions of another on the mere grounds that the latter claims to be acting as the agent of the former in the performance of some unjust act and the former fails to pointlessly or at great cost to themselves renounce those claims. Notice that Child’s argument relies on the (mistaken) premise that mere acquiescence on the part of the citizen to her government’s claims to be acting on her behalf in waging war is a sufficient basis for holding the citizen responsible for her government’s actions. Alternatively, one can argue that at least in democracies the path to agency and liability is a product of the citizen’s participation in the political process. Thus, Michael Green argues: In a perfect democracy each and every person would be equally and fully responsible for the actions of his government. Each would be equally responsible because each would in theory be an equal participant in the political process insofar as each would count as one and no more than one. Each would be fully responsible, because if the method of consent has been in operation, each has agreed to the decision reached by that method, or, if not that, to be bound by whatever decision was reached by that method. Since each individual would be politically responsible either by actively participating or by withdrawing and allowing the decision to be made, and since each would do this voluntarily and purposively with all available knowledge of what they were doing, each and every individual would become morally and politically responsible for the decision so made.6 6. Michael Green, “War, Innocence, and Theories of Sovereignty,” Social Theory and Practice 18, no. 1 (1992), 51. 218

C itizenship and L iability

Green goes on to argue that perfect democracy is not actually necessary for the citizen’s accountability, and here the acquiescence of the citizen does play a role in his reasoning: [The] claim that if a country is not a perfect democracy, then responsibility for war falls mainly on the government officials is also not obvious. Even if the government is tyrannical, it is not clear that according to democratic theory the people are to be absolved of responsibility for the acts of their government. Locke reserved to the people a right of revolution by which the people not only may but indeed ought to overthrow and resist a tyrannical government in which an individual or group attempts to substitute its will for the general will or one in which power has been usurped by an individual or group without consulting the people. Insofar, then, as the nation doesn’t oppose such a government, it thereby lends legitimacy to it and its actions so that it comes to express the general will of that people. Within democratic theory, it is not clear that even children, the insane, and the mentally handicapped are innocent. These have guardians who represent their interests. These guardians are still bound by and to the general will of the society in which they find themselves in representing their interests.7

Green’s argument does not work even in the case of a perfect democracy. He cites Locke here, but he does not notice that Locke himself explained why such an argument for holding the citizen responsible for their government’s unjust aggression fails. Granted, those who vote for a specific candidate expressly authorize that candidate to act on their behalf, and they also implicitly authorize whoever wins the election to act on their behalf. Nevertheless, as Locke points out in the passage quoted earlier, citizens cannot be taken to authorize unjust aggression merely by entrusting a person (or government) with political power. Even if a political candidate has 7. Green, “War, Innocence, and Theories of Sovereignty,” 51–2. 219

WAR A ND INDIVIDUAL RIGHTS

made a campaign promise that amounts to a commitment to engage in unjust aggression, voters who vote for him cannot be understood as therefore authorizing unjust aggression. A vote for a candidate is not an endorsement of that candidate’s entire agenda. Nevertheless, Green is partly correct. At least in certain cases, ordinary citizens can by their political behavior become liable to defense. The most obvious case here is historically very rare: those who directly vote on the question of war, and vote in favor of it, may be liable to defense if that war is an unjust one. Much more common is the case in which those who hold certain political offices determine whether to take their nation to war, and the average citizen is liable because they help to provide the political support (in the form of votes, campaign contributions, support rallies, etc.) necessary to initiating or sustaining a war effort. Such political contributions to war, like the military and economic contributions discussed in chapter 9, can threaten need rights and so generate liability.

10.2. NONINTERVENTION AND LIABILIT Y Another possible path to noncombatant liability relies on the premise that, collectively, ordinary citizens (sometimes) can and should stop their government from engaging in unjust aggression. If they fail to do so, they are liable to defense in virtue of wrongfully allowing unjust aggression. Spokespersons for the United States Air Force offered this sort of argument in 1991 in response to a Harvard public health team’s projection that well over a hundred thousand Iraqi civilians would die from the delayed effects of the bombing during the Gulf War. In one such briefing, a senior Air Force officer defended the view that Iraqi civilians were not entirely innocent on the grounds that they “do live there, and ultimately, the people have some control over what goes on in their country.”8 8. As reported by Baton Gellman, “Storm Damage in the Gulf,” Washington Post, national weekly ed., July 8–14, 1991, 6.

220

C itizenship and L iability

Fully elaborated, the argument suggested by the officer’s remarks would have two parts. The first part would proceed as follows: Ordinary citizens of Iraq have some control over their government, and they should have exercised that control by undermining their government’s aggression against Kuwait. Because they failed to do that, they were partly responsible for that aggression and in that sense were not innocent. The second part of the argument would begin with the premise that ordinary citizens of Iraq were partly responsible for their government’s unjust aggression against Kuwait and, on that basis, conclude that killing them was justified. It is not obvious by what path the officer quoted earlier intended to reach this conclusion from that premise, but the most sympathetic interpretation is that the second part of the argument moves from the premise that ordinary Iraqis shared in the blame for their nation’s unjust aggression against Kuwait to the conclusion that they could justifiably be killed on grounds of defense. I want to assess the Air Force officer’s argument, but I will not address every plausible objection that might be raised. In particular, I will not consider objections that rest on particular empirical claims about the Gulf War; for my primary concern is not with any particular conflict, but rather with the species of argument exemplified by the officer’s remarks. The objections I will consider, then, are the sort of objections that might be raised whenever this sort of argument is advanced. The first one proceeds as follows: Setting aside the question of whether killing Iraqi civilians satisfied the necessity and proportionality restrictions on the appeal to defense, the officer’s argument does not even show that ordinary Iraqi civilians were liable to necessary and proportionate defense. It is widely recognized that liability to defense requires participation in, or at least some contribution to, unjust aggression. Thus, the mere fact that Iraqi civilians did not prevent Saddam Hussein’s aggression in no way undermined their status as innocent bystanders vis-à-vis that aggression. Consequently, the argument fails to establish that they could justifiably be killed on grounds of defense. 221

WAR A ND INDIVIDUAL RIGHTS

In chapter 4 I argued that the appeal to defense justifies harming only those who either pose a threat of unjust harm or belong to a group that poses such a threat, where to pose a threat of unjust harm is to behave in such a way that, barring preventive action, one will infringe upon rights and thereby jeopardize interests protected by those rights. It would be implausible to suppose that the Air Force officer was suggesting that, individually, each private citizen of Iraq had an obligation to stop Iraqi aggression. His suggestion was that, collectively, ordinary citizens of Iraq should have stopped Iraqi aggression. Given condition 1 in the defense liability principle, the crucial question, then, is whether the citizens of Kuwait whose rights were threatened by the invasion had a right against Iraqi citizens that, collectively, they prevent or stop their government’s unjust aggression. If such a right did exist, then the fact that most ordinary Iraqi civilians neither participated in, nor even contributed to, unjust aggression against Kuwait does not by itself preclude the possibility that they could justifiably be harmed on grounds of defense. Thus, the first objection to the Air Force officer’s argument fails. I will return later to the question of whether Kuwaitis had a right against ordinary Iraqis that they prevent their government from invading Kuwait. For now, let us simply assume that they did, and explore the extent to which that would make killing Iraqis potentially justified on grounds of defense. From the premise that some group of Iraqis failed to fulfill an obligation to protect Kuwaitis from Iraq’s government, one cannot leap to the conclusion that every member of that group was liable to necessary and proportionate defense; for given condition 2 in the defense liability principle, liability can be extended only to those members of the group who bear more responsibility for the threat of unjust harm posed by the group than do the potential victims of that threat. Thus, those members of the relevant group who bore no responsibility at all for the failure of the group to fulfill its obligation could not possibly have been liable under the defense liability principle. Suppose, for example, that some citizen of Iraq did her part in what some group of Iraqis ought to have done to prevent the invasion of Kuwait in the unfulfilled 222

C itizenship and L iability

hope that other members of the group would do their respective parts as well. Then she would not have been liable, for she would not have been any more responsible for the group’s failure to fulfill its obligation to protect Kuwaitis than the average Kuwaiti (i.e., condition 2 in the defense liability principle would not have been satisfied). Thus, the Air Force officer’s argument requires some additional premise (or premises) so that the argument discriminates between those private citizens in Iraq who bear some responsibility for the collective failure of private citizens in Iraq to stop Iraqi aggression, and those who do not. In order to determine what premise (or premises) should be added, we must identify the conditions under which a member of a group bears responsibility for the failure of that group to act as it should. Let us employ another example: Riot: Anti-immigrant sentiment boils over and a riot threatens a poor, immigrant neighborhood. No single police officer can protect anyone in the immigrant community against the rioters; indeed, a single police officer would almost certainly be seriously injured or killed if he or she tried to do so. By coordinating their actions, however, the members of the police department’s riot squad could, at little risk to themselves, stop the riot. Moreover, it is their collective duty to do just that. They fail to fulfill their duty, though, because they all share the anti-immigrant sentiments of the rioters and so have no interest in stopping the riot.

In this example, every member of the riot squad shares in the blame for the failure of that squad to fulfill its obligation to stop the riot.9 9. Michael Zimmerman points out that the expression “share the blame” can be misleading in a case like this, because it might suggest that each individual bears only partial and hence diminished responsibility. See “Sharing Responsibility,” American Philosophical Quarterly 22, no. 2 (1985): 115–22. By employing this expression, I do not mean to suggest that responsibility for the failure of a group to act as it should is to be divided up like pie so that the larger the group, the less responsibility borne by each of its members. The responsibility in a case like Riot is shared in the way that an experience can be shared—each sharer fully participating in it.

223

WAR A ND INDIVIDUAL RIGHTS

Furthermore, their blame does not depend on the assumption that each of them was individually capable of preventing the squad’s failure. If we suppose that each of them knew that attempts to persuade the other officers to oppose the riot would be ridiculed, and that threats or coercion would be thwarted by superior force, then we may suppose that there was nothing the members of the riot squad, as individuals, should, or even could, have done to stop the riot. Yet we would still want to blame all of these officers for the failure of the riot squad to meet its collective obligation to the immigrant community to stop the riot. It might be proposed that we can assign responsibility to them on the basis of the following principle: R1: When a group fails to fulfill an obligation, all and only those members of the group who fail to do what would have been their part in the group’s fulfilling that obligation are responsible for the group’s failure.

But this principle is false, for it may be that a member of the group fails to do her part for a legitimate reason.10 Suppose, for example, that we revise Riot so that we have a particular member of the riot squad, Officer Goodfellow, wanting to join with the other members of the riot squad in the necessary operation to stop the riot, but doing nothing because he knows that the other officers have no interest in taking part in such an operation. Then Goodfellow does not bear any responsibility for the failure of the riot squad to stop the riot, and this in spite of the fact that Goodfellow does not do (what would have been) his part in such an operation, which would have involved, say, donning riot gear, facing the rioters, and demanding their dispersal. Goodfellow has a good reason not to do his part, given that the other officers will not do theirs, namely, that 10. This point has been made by several writers, for example, Stanley Bates, “The Responsibility of ‘Random Collections,’” in Collective Responsibility, eds. Larry May and Stacey Hoffman (Lanham, MD: Rowman and Littlefield, 1991), 101–8.

224

C itizenship and L iability

doing his part would be both futile and dangerous. Thus, to assign liability to Goodfellow would be tantamount to making him liable in virtue of his failing to act in a completely irrational fashion. Although there is a very weak sense in which he could have avoided such ­liability—he was, in some sense perhaps, free to act stupidly— such liability would be unfair. One might suggest that R1 is at least half right: only those members of a group who fail to do their part in what the group is under an obligation to do share responsibility for the group’s failure to fulfill its obligation. However, even that is incorrect. Let us alter our example again so that one of the members of the riot squad, Officer Sneak, does his part in what the riot squad should do—that is, he does exactly what he would be required to do if the riot squad were to oppose the rioters. (We can suppose that, unlike Goodfellow, Sneak can safely do his part.) Given that other members of the squad are not doing their parts, Sneak knows that nothing he can do would impede the riot. Nevertheless, Sneak “goes through the motions” anyway because he fears that he will lose his job if he does not. Moreover, let us suppose further that he would not do his part if he thought that he might thereby help to impede the riot, for he despises the immigrants and would never lift a finger to protect them from harm. Given these suppositions, I think it is clear that in spite of doing his part, Sneak still shares in the blame for the riot squad’s failure to fulfill its obligation to stop the riot, for he is no more willing than any other member of the squad to take part in stopping the riot. We can avoid the difficulties of R1 with: R2: When a group fails to fulfill an obligation, all and only those members of the group who are responsible for being unwilling to take part in the group’s fulfilling its obligation are responsible for the group’s failure.

In the original example, the riot squad is under an obligation to protect the immigrant community, but none of the members of 225

WAR A ND INDIVIDUAL RIGHTS

the squad is willing to take part in doing so. So, like R1, R2 entails that each of them shares responsibility for their collective failure to protect the immigrant community. Unlike R1, however, R2 is not threatened by the introduction of Goodfellow and Sneak to the example. Because Goodfellow is willing to take part in a group effort to stop the riot, R2 avoids the incorrect implication that Goodfellow bears any responsibility for the riot squad’s collective failure. Moreover, R2 implies correctly that Sneak does bear responsibility for that failure; for even though Sneak does his part in what the riot squad is under an obligation to do, he is inexcusably unwilling to take part in what the squad is under an obligation to do. The preceding remarks suggest the following reformulation of the Air Force officer’s argument: Collectively, Iraqi civilians ought to have stopped their government’s unjust aggression toward Kuwait, because, collectively, they were under an obligation to the potential victims of that aggression to do so. Inasmuch as their failure to fulfill this obligation was due to the fact that many of them supported the unjust aims of their government, or were apathetic, or for some other reason were culpably unwilling to take part in a collective effort to stop Iraqi aggression, R2 yields the conclusion that those individuals shared responsibility for this failure. Of course, it was impossible to know precisely which Iraqi civilians were responsible. Nevertheless, it is safe to assume that a significant percentage of them were. Those civilians who were responsible were liable to necessary and proportionate acts of defense aimed at protecting the potential victims of Iraqi aggression. Thus, during the Iraqi invasion and occupation of Kuwait, a significant percentage of Iraqi civilians were liable to defense. Before evaluating this reformulation of the original argument, it is important to emphasize what it cannot prove, lest we “permit the confusion of war to sweep all together.” It cannot prove that the vast majority of Iraqi civilians were liable during the Gulf War, for it does not embrace little children, since we cannot say of them that they were culpably unwilling to take part in a collective 226

C itizenship and L iability

effort to thwart unjust Iraqi aggression. Moreover, it cannot even undermine the immunity of all those adult Iraqi civilians who freely and knowingly chose to do nothing in opposition to their government’s unjust aggression; for some of them may have been willing to take part in a collective effort to stop the aggression against Kuwait, but did nothing simply because they reasonably believed that most other Iraqis were unwilling to take part in such an effort. We may find these citizens blameworthy for not having made some sort of symbolic protest against the invasion of Kuwait, but R2 does not support the conclusion that they bore any responsibility for the failure of the Iraqi civilian populace to undermine the invasion. Given these limitations, is the argument purely academic? Not necessarily, for, again, the more noncombatants who are liable under the defense liability principle, the easier it is to justify war by appeal to the justifiable war principle. Of course, the argument has relevance only if it is sound, and the premise that Kuwaitis had a right against the Iraqi civilian populace that it effect the withdrawal of Iraq from Kuwait (or prevent the invasion of Kuwait) is by no means obviously true. At least two arguments against that premise might be advanced. One is the argument that private citizens living in Iraq could not have been responsible for failing to stop their government’s aggression because it was not within their power to do so. Collective action requires individuals to coordinate their actions with others to achieve a common end. Where such coordination is impossible, collective action is impossible; and where collective action is impossible, no one can be responsible for the absence of collective action. Under what conditions can a large group of citizens effectively coordinate their actions to stop their government from engaging in unjust aggression? There are at least three types of cases to consider. First, we may find that the members of the relevant group cannot successfully coordinate their actions without first establishing some sort of organizational structure for the group. In such cases, a group can act only if it is possible for it to organize itself in the necessary 227

WAR A ND INDIVIDUAL RIGHTS

way.11 Perhaps the case at hand is of this type, for it seems likely that only through (illegally) organized opposition, and perhaps only through organized rebellion, could ordinary citizens of Iraq have succeeded in restoring an independent Kuwait. In any case, we cannot blame the citizens of a nation for failing to stop unjust aggression if it was impossible for them to accomplish the necessary organization to do so. If the government can, through its mechanisms of internal control, nip in the bud any attempt to organize opposition to its policies, then the citizens are essentially incapable of organized opposition and thus cannot be blamed for failing to muster such opposition. Moreover, this is no less true even if the citizens all support the unjust policies of their government and so have no interest in opposing them anyway. In a second type of case, even a very large group of citizens can act without first organizing itself. It may be clear to nearly everyone, for example, that if enough people “take to the streets” to protest some imminent injustice, this may be sufficient to prevent the injustice. No formal or even informal group decision procedures and hence no organized group structure would be required in such a case. In a third type of case, groups of civilians can exploit preexisting group decision procedures to prevent unjust aggression, for example, by the majority voting for the candidates who oppose that aggression. This does not apply to the Iraqi case, but in more democratic nations, it may be quite common. Thus, the objection at hand may or may not succeed, depending on what Iraqi civilians could have done to cause the withdrawal of Iraq from Kuwait. In order for the Air Force officer to make his case, then, he would have to explain how Iraqi civilians could have 11. Virginia Held discusses this type of case in “Can a Random Collection Be Responsible?” See Collective Responsibility, 89–100. Held makes the point that a group can have a duty to perform an action only if the members can reasonably be expected to know what action is called for and what part each should play in the performance of that action. She also rightly points out that even in the absence of such knowledge, if it is clear that some action is called for, then the group, or certain individuals therein, may have a duty to organize the group in a way that enables it to determine what action is called for and what part each should play.

228

C itizenship and L iability

successfully coordinated their efforts to cause the withdrawal of Iraq from Kuwait. Specifically, he would have to argue either that Iraqi civilians were capable of organizing themselves into one or more effective opposition groups, or that such organization was unnecessary because effective collective action on the part of Iraqis would have required only a sufficient number of civilians engaging in more or less random acts of rebellion. Even if private citizens in Iraq could have stopped the invasion of Kuwait, there is a second, rather obvious, objection to the claim that they were under an obligation to have done so; for if the Kuwaitis had a right against Iraqi noncombatants that they stop the invasion of Kuwait, then this right was positive rather than negative, a right to be saved from harm rather than a right not to be harmed. It has often been suggested, however, that our basic rights are purely negative, and positive rights are, therefore, “special rights,” rights that are generated either by special relationships or by voluntary behavior. A child may have a positive right to be saved from drowning by her parent, for example, because of the special relationship between them. Or I may have a positive right to be saved from an assassin by a bodyguard because the bodyguard has, by voluntarily assuming the duties of a bodyguard, conferred upon me the right to be defended by her in certain circumstances. In the absence of such special circumstances, however, no one has a positive right to aid, or so it is might be suggested. If this is correct, then if the citizens of Kuwait had a right against private citizens of Iraq that they cause the withdrawal of Iraq from Kuwait, that right was a special right. But then it seems like a short step to the conclusion that the Kuwaitis had no such right, for it is difficult to see what the Iraqis might have done that would have conferred such a right upon the Kuwaitis, and there does not seem to be any special relationship that could have generated such a right. Refuting this objection would be no easy task, but it is worth mentioning that the assumption that our basic rights never demand positive aid from others is highly dubious. Suppose, again, that an assassin seeks to murder me. If my bodyguard is off-duty, and if you 229

WAR A ND INDIVIDUAL RIGHTS

alone can easily and without risk to yourself rescue me from an assassin, then it is not implausible to suggest that I do have a right against you that you rescue me. Of course, if you can save my life only at great cost or risk to yourself, then no such right would exist. Perhaps, then, a case could be made for the claim that, other things being equal, a group of private citizens who can prevent their government from engaging in unjust aggression without suffering substantial costs or taking substantial risks is under an obligation to the potential victims of that aggression to do so. If, however, collective action to prevent unjust aggression would be violently resisted by the government, or otherwise have a disastrous outcome, then it is difficult to see how there could be an obligation to engage in such action. In the particular case of Iraqi civilians, it seems plausible to suggest that any attempt to oust Hussein or otherwise cause the withdrawal of Iraq from Kuwait would have been violently resisted (at least at the stage during which the attempt was being organized). Thus, even granting the controversial assumption that basic rights can be violated by the failure to render positive aid, it is difficult to see how Iraqi civilians could have violated the rights of the Kuwaitis by not causing Iraq to withdraw from Kuwait. In other cases, though, we may find that some group of private citizens can easily and safely prevent their government from wrongfully harming others. In more democratic nations, for example, ordinary citizens can use the ballot box or organized protest to prevent their nation from engaging in unjust aggression. It would be difficult to establish the existence of an obligation to do so, but suppose that the case could be made. Suppose further that one of these democratic nations unjustly invades some other nation. By R2, those citizens who are responsible for being unwilling to do their part in a collective effort to stop their nation’s unjust aggression share in the blame for the citizenry’s failure to fulfill its collective obligation to stop that aggression. Assuming that the potential victims of the aggression are not responsible for it, that would establish the conclusion that those citizens are liable to defense. 230

C itizenship and L iability

To conclude, arguments against noncombatant immunity of the sort considered in this section are problematic in two respects. First, they are apt to be very limited in their scope. Those that rest on R2 threaten only the immunity of noncombatants who are responsible for being unwilling to take part in a collective effort to undermine their government’s unjust aggression. Second, such arguments can succeed only if they overcome the substantial obstacle of establishing that, collectively, the noncombatants in question are under an obligation to the potential victims of their nation’s unjust aggression to interfere with that aggression. In many cases it will not even be possible to show that the noncombatants in question have the ability, let alone an obligation, to hinder their nation’s unjust aggression; and even if it is established that the noncombatants in question not only can but ought to undermine their nation’s unjust aggression, this does not by itself show that they are under an obligation to the potential victims of that aggression to do so. Nevertheless, it would be premature to conclude that arguments like the Air Force officer’s cannot possibly succeed, for it has not been established here that no individual or group ever has a right against private citizens of other nations that they prevent or hinder their government’s unjust aggression.

231

[ 11  ] CONCLUSIONS

In the first seven chapters of this book, I attempted to lay a foundation for a just war theory that is consistent with a proper respect for individual rights. On the basis of that foundation, I offered in chapter 8 an answer to the jus ad bellum question of what justifies recourse to war, and I addressed in chapters 9 and 10 the jus in bello question of who in war is liable to harm. Of course, much would need to be added to produce a complete just war theory, but I leave that for another work. Here I want to conclude with a brief discussion of the prospects for justified recourse to war in the 21st century. I have conceded to the antiwar pacifist that, given the nature of contemporary warfare, recourse to war in the 21st century is, inevitably, an infringement upon rights. Nevertheless, I have argued that some infringements upon rights are justifiable, and partly on that basis I have proposed the following principle for assessing whether recourse to war is justifiable: The justifiable war principle: Recourse to war is justified if (i) for any available alternative to war that would inflict as much or more unjust harm, the overall consequences of choosing war would be at least as good as the overall consequences of choosing that alternative, and (ii) for any available alternative to war that would inflict less unjust harm (or none at all), the disadvantage, in terms of inflicting more unjust harm, of choosing war rather than that alternative is far outweighed by the overall advantage of choosing war rather than that alternative.

232

C onclusions

Given the enormous levels of harm that any (sustained) war effort predictably inflicts, it might seem impossible for war to be beneficial enough to be justified under this principle. Thus, unless there is some other justificatory principle that war can satisfy, it might seem that I am committed to antiwar pacifism. I have argued, however, that when recourse to war is necessary to protect rights that would otherwise be violated, it is sometimes the case that much of the harm one can expect to inflict can be inflicted without infringing upon the rights of those who are harmed. I have referred to as liable those who, due to their own behavior, can be harmed without infringing upon their rights. In addition, I have argued that in war there are two common species of liability. First and by far the most common is liability under the following principle: The defense liability principle: If (1) an individual x poses a threat of unjust harm to a second individual y (i.e., x behaves in such a way that, barring preventive action, x will infringe upon y’s noncontractual rights and thereby jeopardize interests protected by those rights), or x belongs to a group g that poses such a threat, and (2) x is more responsible than y for that threat, then (3) (ceteris paribus) it would not infringe upon x’s rights to eliminate or reduce the threat by inflicting necessary and proportionate harm on x.

Second and less common is the liability of those who voluntarily assume a risk of being harmed. That liability is not to be confused with liability to defense, because those who assume a risk of being killed need not thereby pose a threat of unjust harm, but I have argued that such liability is an indirect consequence of the defense liability principle. Especially in wars of liberation, the justificatory burden imposed by the justifiable war principle is also lightened in virtue of the following: The ex ante compensation principle: If an individual x is fully compensated for a risk and is either incapable of free and informed consent or 233

WAR A ND INDIVIDUAL RIGHTS

would, if given the opportunity, consent to bear that risk, then (ceteris paribus) the realization of that risk does not infringe upon x’s rights.

Partly because of the two species of liability, and partly because of the possibility of ex ante compensation for some harm to innocent bystanders, a war effort aimed at defending rights can, at least in some cases, be waged without infringing upon the rights of most of its victims. Thus, if the relatively small amount of harm that cannot be inflicted without infringing upon rights is far exceeded by the overall advantage of waging war, then going to war can be justified by appeal to the justifiable war principle. It is not unrealistic to suppose that even in the 21st century recourse to war can sometimes be justified in this fashion. Obviously precision here is impossible, but sometimes the benefits of waging war are almost certainly huge (e.g., war can sometimes reasonably be expected to prevent or halt genocidal slaughter), and if care is taken to fight in a way that discriminates between those who are liable and those who are not liable, sometimes the total unjust harm a war effort can reasonably be expected to inflict on those who are not liable is far exceeded by the total unjust harm that effort can be expected to prevent. Of course, political leaders ought to consider very carefully the expectable value of the consequences of going to war, and they should also beware of exaggerated claims about the necessity of recourse to war. Those who recommend the horrors of war for the sake of regime change, for example, often irrationally assume that the grass will be much greener on the other side of the hill. Sometimes that is how it turns out, but it is also often the case that one bad regime is replaced by another bad one, and the costs of the change in terms of death and misery dwarf any benefits of the change. The benefits of war are often highly speculative whereas, at least typically, a large portion of the costs of war are virtually certain. In a trade-off between uncertain benefits and certain costs, the magnitude of the possible benefits must far exceed the magnitude of the possible costs in order for the expectable benefits to exceed, let alone far exceed, the expectable costs. 234

C onclusions

Furthermore, as discussed in chapter 8, political leaders need to be sensitive to the range of alternatives to war. If the resources war would require could be used for some peaceful pursuit with the consequence that equal or greater benefits would be produced, but less or no unjust harm would be inflicted, then a proper respect for the rights of the potential victims of war requires that war be abandoned, if necessary, for the sake of pursuing that peaceful alternative. Thus, even a war that would produce huge benefits and inflict relatively little unjust harm cannot justifiably be fought if an available alternative exists that produces at least as much good but inflicts less unjust harm. It is also worth bearing in mind that benefits for future generations are, at least arguably, of little significance in assessing war. Although the issue is debated among population ethicists, in my own view and that of many others, there is relatively little reason to prefer the existence of one well-off group to a less-well-off group if the two groups share no members and each member of the latter group (on balance) benefit substantially from life. At the very least, those whose lives are well worth living cannot reasonably complain on self-interested grounds about the consequences for them of political decisions that, had those decisions not been made, would have resulted in their never having existed. If, for example Kuwaiti citizens born in the 21st century are better off in virtue of the Gulf War of the 1990s, this does not necessarily provide much help to an attempt to justify the costs of that war. For had there been no Gulf War, the citizens of Kuwait born in the 21st century would be an entirely different group of people (or at least nearly so); and so long as they would (were they to exist) benefit substantially from life, they would have reason to be glad that there was no attempt to drive Iraq out of Kuwait. How often recourse to war is justified under the justifiable war principle is something that can and should be debated. I have conceded that war might be justifiable under some broader principle because the first condition of the justifiable war principle might be needlessly restrictive in its formulation, but I doubt that that 235

WAR A ND INDIVIDUAL RIGHTS

condition could be widened enough to significantly add to the potential for recourse to war to be justified. In my own view military force is rarely a morally acceptable use of the resources it requires, but my primary aim here has been to identify the relevant standards for making such an assessment. I will leave it to those who are more knowledgeable than I am on the efficacy of war to apply those standards to specific cases.

236

APPENDIX

Need Rights and Compensation

In this appendix I attempt to answer the question of why we owe compensation to others for losses we impose on them even in cases (hereafter referred to as “necessity cases”) where, acting out of necessity, we justifiably impose the losses. My aim is to further defend the existence of negative need rights by showing that the standard philosophical account of the duty to compensate in necessity cases is incorrect and that we can better account for the duty to compensate in such cases by way of an account that appeals to negative need rights. In order to distinguish my position from the existing alternatives, it will be useful to begin by distinguishing two categories of compensatory duties: 1. Duties to compensate for wrongful losses. This is the domain of corrective justice. If I maliciously throw a stone through your window and, as a foreseen consequence, you incur losses (e.g., the cost of replacing the window), my duty to compensate you for those losses is of this sort. It is a duty to correct or repair the damage I have done by invading your rights. 2. Duties to compensate as part of an exchange. If I agree to pay you to build a fence, and you build the fence in accordance with the terms of our agreement, then my duty to compensate you falls into this category. There is an exchange to be completed here, but no wrong or injury to correct or repair. Accordingly, this sort of duty does not fall within the domain of corrective justice. Rather, it is generated by the moral rules that govern exchanges of goods, services, privileges, and other benefits, rules that determine what constitutes, and how to conduct, a fair exchange. 237

A ppendix

Let us say that an exchange account of the duty to compensate in necessity cases places this duty in the second category, while a corrective justice account places the duty in the first category. I offer an exchange account. The account I offer is similar to corrective justice accounts in that it claims that justice demands compensation in necessity cases. Unlike corrective justice accounts, however, it claims that the duty to compensate in necessity cases is a duty to compensate as part of an exchange. Accordingly, I will refer to it as a “fair exchange account.” Joel Feinberg proposes a corrective justice account. His well-known case of the desperate hiker is his main example of a necessity case: [Y]ou are on a back-packing trip in the high mountain country when an unanticipated blizzard strikes the area with such ferocity that your life is imperiled. Fortunately, you stumble onto an unoccupied cabin, locked and boarded up for the winter, clearly somebody else’s private property. You smash in a window, enter, and huddle in a corner for three days until the storm abates. During this period you help yourself to your unknown benefactor’s food supply and burn his wooden furniture in the fireplace to keep warm.1

It seems clear that you owe the cabin owner compensation for his losses; and it seems just as clear that you justifiably imposed those losses. (Indeed, if you have loved ones or dependents, it would be irresponsible of you to allow your own life to be imperiled in order to avoid making use of the property of the cabin owner.) Feinberg proposes that you owe compensation because you have infringed upon the cabin owner’s rights. Building on Feinberg’s suggestion, it might be proposed that the operative principle of corrective justice in necessity cases is roughly captured by the following principle: F1: other things being equal, if someone infringes upon the rights of another, then the first party has an obligation to fully compensate the second party for any loss or injury that is a foreseeable consequence of that infringement.

One reason why a corrective justice account of this sort is attractive is that it would connect necessity cases to the more usual sort of case in which someone unjustifiably inflicts an injury; for given F1, we can say that the duty to compensate in both kinds of cases is generated by an infringement upon the rights of the injured party. However, a successful development of 1. Joel Feinberg, “Voluntary Euthanasia and the Inalienable Right to Life,” Philosophy & Public Affairs 7, no. 2 (1978), 102.

238

A ppendix

such an account must accomplish two difficult tasks. First, an adequate defense of F1 must be provided. Second, it must be shown that F2: in necessity cases, there is an infringement upon the rights of the party that incurs the loss.

Jules Coleman undertakes the second task in what is perhaps the most sophisticated development of the Feinberg account.2 His argument for F2 rests on the plausible idea that property rights confer powers to exclude and alienate. As discussed earlier, if the holder of a property right has the power to exclude, then others are under an obligation to her to refrain from a variety of possible uses of her property without first securing her consent. Accordingly, in discussing a necessity case in which Hal, a diabetic, breaks into Carla’s house to obtain some of her insulin, Coleman proposes that, “Hal does not secure Carla’s consent, and, in that sense, his conduct infringes on her right; it is contrary to the claims her rights impose on him.” Coleman’s suggestion, then, is that Hal’s need in no way extinguishes Carla’s power to exclude and, therefore, Hal infringes on Carla’s rights by taking her insulin without her consent.3 Coleman himself, however, recognizes a serious objection to his claim that Hal’s need does not extinguish Carla’s power to exclude. If the property owner has the power to exclude, then it is within her rights to withhold her property from others. Hence, it appears that there is no power to exclude in necessity cases, because, even if they are in a position to do so, property owners cannot justifiably withhold the needed goods in these cases. Coleman attempts to avoid the problem by suggesting that, in necessity cases, the property owner would wrongly exercise his power to exclude should he withhold his goods from the party in need. He writes: We need to keep in mind the distinction between wrongdoing and wrong. The victim has the relevant property right. That means that he or she can exclude or just say “no.” Had she been home when danger happened upon Hal, Carla could have excluded Hal’s use. Had the cabin owner in Feinberg’s example been at home, he could have excluded the back-packer. In each case, doing so would have been action within the victim’s rights. On the other hand, right holders may unreasonably or wrongly insist upon enforcing their rights. They may do so maliciously, without reason, or otherwise unjustifiably. At some point we might 2. Jules Coleman, Risks and Wrongs (Cambridge, UK: Cambridge University Press, 1992). 3. Coleman, Risks and Wrongs, 299–302.

239

A ppendix

feel that someone’s acting within his rights is so unreasonable as to subject the right holder to moral, if not legal liability, for the consequences of exclusion.4

The difficulty here is that, if the property owner is morally required not to exclude, then it is not clear what content there is in claiming that, nevertheless, it is within the rights of the property owner to exclude. This is not to say that the notion of a right to act wrongly is incoherent. Those who have defended the coherence of this notion have plausibly suggested that the normative content of such a right is that it can be justifiably enforced and that others cannot justifiably interfere if the right holder chooses to exercise it. For example, to affirm that a Nazi’s right to free speech includes the right to wrongfully disseminate racist propaganda is to affirm, at least in part, that the relevant authorities can justifiably prevent others from, or punish others for, interfering with the Nazi’s attempt to disseminate his propaganda, and that such interference is unjustifiable. However, this way of cashing out the normative content of a right to act wrongly is not available to Coleman, for it seems clear that, in necessity cases, one cannot justifiably enforce the relevant property right, and one can justifiably interfere with any attempt on the part of the right holder to exclude. Hal should neither be prevented from nor punished for obtaining Carla’s insulin. Moreover, Hal, or someone acting on Hal’s behalf, can justifiably break into Carla’s house and take her insulin if this is made necessary by her refusal to surrender it to him. Coleman could suggest that the normative content of saying that it is within Carla’s right to withhold the insulin from Hal reduces to the fact that Hal must compensate Carla for taking the insulin without her consent. However, Coleman’s account would then be circular. For his account is an attempt to explain, for example, Hal’s duty to compensate Carla in terms of Carla’s power to exclude Hal. Thus, Coleman is precluded from reducing the claim that Carla has the power to exclude Hal to the claim that Hal must compensate Carla if he takes her insulin without her consent. Setting Coleman’s particular argument for F2 aside, there is some reason to suppose that any argument for F2 will fail; for in necessity cases, the party in need has the power to exclude others, including the property owner, from the use of the needed goods. This is why the court in Vincent recognized that the party in need is entitled to compensation from the property holder for any losses incurred by the refusal of the property holder to surrender the needed goods. If the party in need rather than the property owner has the power of exclusion, however, then it is unclear in what 4. Coleman, Risks and Wrongs, 301.

240

A ppendix

sense the party in need can be said to invade the rights of the property owner by seizing the needed goods. It cannot be the case that the property owner and the party in need each have the power to exclude the other; and the suggestion that, for example, Hal exercises his rights when he infringes upon the rights of Carla is implausible if not incoherent.5 Suppose, however, that I am wrong and that F2 is secured. It would remain to establish Fl. It might be proposed that F1 is an intuitively secure starting point for moral argument and so requires no defense.6 However, one reason why F1 cannot simply be assumed is that it seems to be vulnerable to counterexamples.7 The point has been made by Phillip Montague: According to the . . . Feinberg position, A’s duty to compensate B in the original example rests on A’s having infringed a right of B’s in burning his furniture. But if A does infringe a right of B’s when he burns B’s furniture to keep himself from freezing to death, then he would also infringe a right of B’s if he burns B’s furniture to keep C from freezing to death. Yet if anyone owes B compensation in the latter case, it is C rather than A; whereas if anyone has infringed a right of B’s in this case, it is A rather than C. Nor will it do to maintain that if someone owes B compensation for the loss of his furniture, a right of B’s must have been infringed by someone when his furniture was burned. For suppose that B burns his own furniture as the only means of preventing C from freezing to

5. Coleman himself expresses doubts about his account of necessity cases in a lengthy endnote, pp. 475–8, n. 7. 6. Coleman offers very little in defense of the claim that a justifiable infringement of rights can generate a duty to compensate. He does suggest that, if losses result from an infringement on the rights of another, then those losses are the responsibility of the one who inflicts the loss and, hence, “they are his, and, therefore, his to repair” (p. 326). Surely, however, more needs to be said here, for we might wonder why losses for which I am responsible should be mine to repair if I justifiably imposed those losses. 7. Another reason is this: If justifiable infringements on rights generate duties of compensation, then why not say that, for example, if Hal destroys some of Carla’s insulin in an unavoidable accident, then this unintentional infringement of rights also generates a duty to compensate? Coleman rightly rejects this suggestion (pp. 270–84). Thus, he owes us an account of why justifiable infringements, but not unintentional infringements, generate duties to compensate. Nor is this debt discharged simply by noting that justifiable infringements, unlike unintentional ones, are the responsibility of the injurer; for what is at issue, here, is whether responsibility is relevant.

241

A ppendix

death. It seems to me that if C owes B compensation when A burns B’s furniture to save C, then C also owes B compensation when he burns his own furniture to save C. (Montague’s emphases)8

Of course, Feinberg and Coleman are not committed to saying that all duties to compensate are generated by infringements upon rights. Coleman explicitly denies this. Thus, they could suggest that in the case in which B burns B’s own furniture to save C, C’s obligation to compensate B is a debt of gratitude. However, the case in which A burns B’s furniture to save C is more difficult for their account. They could insist that A does have a duty to compensate B in this case, and suggest that this duty is easily overlooked because C has a debt of gratitude to A to pay A’s debt to B for A. Suppose, however, that C cannot compensate B. It still seems to me that the entire cost of replacing the furniture should not fall on A. My own intuition is that, at the very most, A should pay half of the costs in question. I am inclined to think that Feinberg’s example and Montague’s two variants are morally homologous and, therefore, even if there is an infringement on rights in two of the three cases, this infringement does not generate the duty to compensate in those cases.9 Instead, I will now argue that the desperate hiker’s duty to pay the cabin owner in Feinberg’s example and Montague’s variants, like the duty to honor a contract, is a duty to compensate as part of a fair exchange. I will try to show that a just system of exchange would require compensation from the desperate hiker in Feinberg’s example and in Montague’s two variants. There is, of course, a prima facie case against this thesis. Duties to compensate as part of a fair exchange are typically contractual; but if the paradigm of a fair exchange involves a contract, then we may want to explain obligations to compensate as part of a fair exchange in terms of the general obligation to keep a voluntary agreement. In Feinberg’s example you destroy the cabin owner’s property without making any agreement to compensate him for this. So your obligation there is not generated in this way.

8. Phillip Montague, “Davis and Westen on Rights and Compensation,” Philosophy & Publicc Affairs 14, no. 4 (1985), 393. 9. Montague agrees. He suggests that the operative principle in all three cases is: “if X must suffer a property loss in order that Y not be seriously harmed, then (assuming Y’s being at risk is in no way X’s fault) Y has a prima facie duty to compensate X for his loss.” Montague’s principle may be extensionally adequate, but it does little to explain why compensation is owed in the three kinds of cases. See “Davis and Westen on Rights and Compensation,” 393–4.

242

A ppendix

Can this prima facie case against a fair exchange account be overcome? Proponents of the economic theory of law10 have argued that, for the sake of efficiency, forced exchanges will be permitted in an adequate system of exchange. If you fully compensate the cabin owner in exchange for the use of his cabin, for example, the exchange is an efficient one. Since there is no possibility of contract here, the exchange must be forced upon the cabin owner. Our question here, however, is why justice demands compensation in necessity cases; and the economic theory of the law offers no answer to that question. Nevertheless, one might attempt to put a gloss of justice onto an economic exchange account by appealing to a notion of “hypothetical contract.” If an exchange would be efficient, then it would be agreed to if the parties involved had the opportunity to do so.11 In Feinberg’s case, for example, your desperate and undeserved need cannot be met except by making use of the cabin owner’s property, but the cabin owner is not available to agree to sell his property to you. If the cabin owner were there, however, it may well be true that he would agree to let you use his cabin in exchange for your guarantee to fully compensate him for any property you destroy. Thus, it is tempting to suppose that, in Feinberg’s example, you must compensate the cabin owner because you must act in accordance with an agreement that would have been made but for the absence of one of the relevant parties. The obvious objection here, however, is that it may not be true that you and the cabin owner would agree to your use of his cabin in exchange for full compensation for any losses he thereby incurs. In the first place, he might be the sort of person who would ask for more than full compensation in an attempt to profit from your need. (Notice that such an exchange might also be efficient.) Or you might attempt to exploit his pity by demanding an unreasonably low price. Furthermore, it might be the case that the cabin owner would refuse to bargain at all. Or you might be the one who 10. On that theory, tort law is an instrument for facilitating efficient exchanges in a market system. For reasons of efficiency, voluntary exchange is generally to be preferred, but sometimes high transaction costs preclude this sort of exchange. This is where tort law comes in. I may invade the rights of others without their permission if I am prepared to compensate them for any losses I thereby cause. Accordingly, necessity cases are instances in which forced exchanges are permitted by law for the sake of efficiency. 11. Certain proponents of the economic theory of law do appeal to the notion of hypothetical consent at various points in their theory. See, for example, Richard A. Posner, “Utilitarianism, Economics, and Legal Theory,” Journal of Legal Studies 8, no. 1 (1979). For an excellent critique of Posner’s use of the notion of hypothetical consent, see Ronald Dworkin, “Why Efficiency?—A Response to Professors Calabresi and Posner,” Hofstra Law Review 8, no. 3 (1980): 563–90.

243

A ppendix

refuses to bargain, say, because you unreasonably insist that he should let you use the cabin without paying him anything. In partial reply to this objection, it might be suggested that the relevant hypothetical agreement is not necessarily one that would be reached, but rather one that would be reached if both parties followed the moral rules that govern bargaining. So, for example, if the cabin owner would have asked an unreasonable price for the privilege to use his cabin, you only need to pay him the reasonable fraction of that price. The cases in which you or the cabin owner would have refused any agreement are more difficult, though. It might be suggested that, if the cabin owner would not agree to selling you the right to use his cabin, then your desperate need gives you the right to use that cabin free of charge; and as for the case in which you would refuse to agree to compensation, it might be proposed that it is impermissible for you to use the cabin if you are not willing to pay for the privilege. I am not, however, satisfied with these suggestions. It is not clear to me that you do not owe compensation in the case where the cabin owner would refuse to let you use his cabin; and if your need permits you to use the cabin without its owner’s hypothetical consent in the case in which the owner would refuse to consent to its use, why doesn’t that same need also permit you to use it in the case in which you do not have the owner’s hypothetical consent because you would not agree to pay for the use? So neither actual agreement nor hypothetical agreement seems to provide an adequate basis for a duty to compensate in necessity cases. How, then, can we produce a fair exchange account of the duty to compensate in such cases? Let us take stock. It is tempting to assume that the paradigmatic case of a fair exchange is one that is agreed to by all parties to the exchange after fair bargaining. Because such an exchange is sometimes inconvenient or impossible, an adequate system of exchange will sometimes recognize hypothetical agreement; but by adding hypothetical agreement to actual agreement within a system of exchange, we do not thereby alter our paradigm or add another paradigm; we simply expand our system by building around the agreement paradigm. However, this paradigm is ill-suited to dealing with cases like Feinberg’s, in which one party’s extreme need seems to permit that party to invade another party’s goods. The cabin owner’s (actual or hypothetical) agreement to your use of his property would be rather superfluous in Feinberg’s example, for you would be entitled to use that property even if the cabin owner were available and explicitly refused to let you use it. Nevertheless, I suggest that we do not need to abandon our attempt to find a fair exchange account of the obligation to compensate in necessity cases. Instead we should reject the assumption that the only paradigm of a just and fair exchange is the agreement paradigm; for some exchanges are just

244

A ppendix

even though they are not agreed to by each party to the exchange. Suppose, for example, that a married couple owns property, but only one of them can use that property since they have separated and are seeking divorce. In such cases, it may be that the best way to adjudicate between the competing property rights is to divide the property between them or, if that is not possible, to insist that one party relinquish his or her claim to the property in exchange for some reasonable compensation from the other—say, half the going price of the property. Notice that, in such cases, a civil court will impose a settlement if the parties to the dispute cannot reach an agreement. We find this acceptable because some exchange must be made; for if only one party enjoys the benefits of the property, then the other’s valid claim is not recognized at all. So exchanges are sometimes necessary to provide a fair compromise in cases of competing claims. Furthermore, at least some exchanges of this sort are clearly just even if they are not agreed to by each party to the exchange. Now it might be proposed that, if we recognize the existence of need rights (at least in the case of undeserved needs), then we can see necessity cases as cases in which need rights compete with property rights, thereby making an exchange imperative because this is the only way to satisfy the legitimate claims of both parties. Furthermore, it might seem plausible to suppose that the fair way to adjudicate this conflict between rights is to make the property owner relinquish his right to the needed goods in exchange for compensation from the one who needs them. With respect to necessity cases, then, it seems reasonable to suggest that the party in need has an obligation to compensate as part of a fair compromise necessitated by the conflict between her need right and a competing property right. However, this account has at least one serious flaw; for if you and the cabin owner have competing rights to the cabin, then it is not clear why the best way to adjudicate between these two rights is to provide you with the needed use of the cabin in exchange for your full compensation of the cabin owner. After all, if the cabin was joint property, and one of the joint owners destroyed the furniture in it, then that person would owe the other joint owner only half of what the furniture was worth. Furthermore, it is implausible to suppose that needs generate simple rights to what is needed. We all need food, shelter, and medical care, but this does not guarantee that we have valid claims to these goods. Even if he is starving, Feinberg’s hiker cannot stumble into my mountaintop grocery store and propose that, since (through no fault of his own) he needs food, and since mine is the only food store accessible to him, he therefore has a valid claim to the food in my store, and so he and I should begin negotiations as to how to adjudicate between our conflicting claims. If he did, and if I discovered that he had plenty of money to pay for the food he needed, it would be reasonable for

245

A ppendix

me to ask him, “If you need food, then why don’t you just buy some?” Thus, we still lack an adequate account of the duty to compensate in necessity cases. Nevertheless, the example of the mountaintop food store is suggestive; although it is implausible to suppose that the hiker has a simple right to the food he needs, it is not implausible to suppose that he does have a right to purchase the food he needs. If I refused to sell him food, it would be within his rights to pay for the food and take it without securing my consent. Nor would this action infringe upon my property rights. On the contrary, I would violate his rights should I try to stop him; for although the food is my property, he has the power to exclude me from that property insofar as that is necessary to meet his needs. The intuitive plausibility of these remarks lends credibility to the fair exchange account that I want to propose. The account is essentially this: In the typical necessity case, the person in need has a right to purchase needed goods and, therefore, the typical necessity case is a case in which, because someone has a right to an exchange, the exchange can be just even if it is not agreed to by each party to the exchange. Furthermore, the party in need who fails to compensate the property holder in a typical necessity case acts wrongly for the simple reason that his taking the needed goods without paying for them constitutes an act of theft. Thus, when the law imposes liability in necessity cases, it enforces property rights by preventing theft. The account rests on the plausible idea that rights sometimes place limits on each other. My suggestion is that, although need rights and property rights do not compete, they do limit each other. The distinction here is subtle, but real. Competing rights do, in some sense, place limits on each other; however, sometimes rights limit each other, but do not compete. It would be at best awkward to say that my right to liberty competes with your right to liberty, for example. Nevertheless, the two rights do place limits on each other. As has often been suggested, my right to liberty ends where yours begins, and vice versa. Similarly, I want to argue that, for example, the need right of Feinberg’s hiker limits, and is limited by, the property right of the cabin owner; by considering the limits that these two rights place on each other, we can see that the hiker has a right to purchase the needed goods. The argument is this: The hiker has a need right to property that is not his. It is not difficult to see, however, that this right cannot simply extinguish, as opposed to merely eroding, the cabin owner’s property right; forif the basis for the hiker’s need right is his need, as it surely is, then, other things being equal, that right can only limit other rights to the extent necessary to meet the relevant need. The hiker does not need to avoid paying

246

A ppendix

for his use of the cabin. Thus, his need, by itself, cannot entitle him to free use of the cabin. Accordingly, the cabin owner’s property right is not completely extinguished, for, at the very least, he retains the right to sell his property. Correspondingly, the hiker’s need right is limited by the property right of the cabin owner; for, in virtue of that property right, the hiker only has a right to purchase what he needs (as opposed to having it free of charge). It remains to account for the amount of compensation that is owed in necessity cases. For the sake of precision, let us say that full compensation in such a case would be compensation that was sufficient to guarantee that the property holder would not suffer a net loss from the exchange, but insufficient to secure for the property holder a net gain from the exchange. In the most typical necessity case, full compensation seems to be required. However, it might be supposed that my account would permit, for example, the cabin owner to ask for more than full compensation. After all, the hiker does not need to pay only full compensation for his use of the cabin. So how can his need claim restrict the cabin owner to demanding only full compensation for his needed goods? A full answer would require a complete account of rights within a market system, and I am not prepared to offer such an account. Nevertheless, a partial answer can be given. Consider a variant of Feinberg’s example, in which the cabin owner is on his property when the hiker approaches his cabin. The cabin owner sees that the hiker is in desperate need and, hoping to profit from that need, demands $100,000 for the use of his cabin. This is a paradigmatic case of exploitation and, presumably, an adequate system of fair exchange will prohibit this sort of unfair bargaining. If this is so, however, then need claims do limit the amount of compensation that can be demanded for needed goods within an adequate system of fair exchange. Ordinarily, the cabin owner’s property right would entitle him to demand any amount of money for the use of his cabin. But the desperate hiker’s need limits the cabin owner’s property right by narrowing the scope of what the owner is entitled to do in virtue of possessing that right. The hiker can demand a reasonable price and, if the owner refuses, the hiker can simply pay the owner what is fair and then appropriate the purchased goods without securing the owner’s consent. Nor would this infringe on the owner’s property right, for that right does not entitle the owner to exploit the hiker’s need. Nevertheless, my account does suggest that the property holder may ask for more than full compensation in certain necessity cases. In the example of the mountaintop food store, the owner would have the right to ask the hiker to pay the marked price for the food even though the owner would thereby profit from the exchange. This would not be unduly exploitative, for the store owner’s livelihood depends on selling needed goods for

247

A ppendix

a profit. Furthermore, it would not make any difference if the store was closed and the hiker broke into the store to meet his needs. He should still pay the store owner the marked price for the food he consumes. Since our intuitive judgment is that the hiker would owe the store owner more than full compensation, it is an advantage of my account that it allows for this possibility. The Feinberg-Coleman account, on the other hand, is at a disadvantage here, for corrective justice only yields duties to pay full compensation. My account also allows for the possibility that, in certain necessity cases, less than full compensation is fair. For example, if Feinberg’s hiker knew that he would never be able to fully compensate the cabin owner for use of his cabin, then he would need to purchase the relevant goods for less than their market value, and hence his need would entitle him to a bargain. The limiting case here is the one in which the hiker would never be capable of even partially compensating the owner. In that highly unlikely case, the hiker’s need would entitle him to free use of the cabin. Perhaps the most significant advantage of the account that I am offering is that, unlike the Feinberg-Coleman account, it provides an explanation of why compensation is owed in cases like Montague’s two variants of Feinberg’s example. Consider, for example, the variant in which a third party breaks into the cabin on behalf of the imperiled hiker. Here we can say that the hiker’s need entitles the third party no less than the hiker to procure the needed goods, but we can also say that the party in need and not the third party thereby acquires a duty to compensate. The third party can be seen as acting as the agent of the imperiled hiker,12 exercising her right to an exchange by appropriating the needed good and thereby incurring for her an obligation to compensate the owner.13 Given a corrective justice account, on the other hand, this way of handling third-party necessity cases is unavailable; for if I unjustifiably invade your rights, then, even if I am acting as someone’s agent, I acquire a duty to compensate you 12. Depending on the condition of the hiker, the agency relation might be based on hypothetical rather than actual authorization, but I see no reason to think that the benefits of agency should be restricted to those who are capable of actual authorization. Among others, infants, persons in a coma, and even semiconscious hikers sometimes need an agent, but are incapable of authorizing someone to act in that capacity. 13. Even in the variant in which the cabin owner destroys his own furniture to meet the hiker’s needs, the benefactor can plausibly be seen as the hiker’s agent. The only difference is that, in exercising the hiker’s rights by destroying his own furniture, the cabin owner incurs for the hiker an obligation to compensate his agent. Sometimes agents do incur for their principals debts to the agents themselves. In the particular case, there may be a conflict of interest that raises questions about the legitimacy of such an action, but this is not a worry in the case at hand.

248

A ppendix

for any losses you incur as a result of the invasion. Thus, if necessity cases involve justifiable invasions of rights that generate duties of compensation for the same reason that unjustifiable invasions of rights generate such duties, then the fact that the third party acts as an agent of the party in need would not relieve the third party of liability. The fair exchange account also helps us to understand the problematic variant of Feinberg’s example in which the cabin owner actually or hypothetically refuses to allow you to enter his cabin. In such a case it seems reasonable to force the fair exchange on the cabin owner, which would require you to compensate him for the property you seize. In that way you exercise your own rights without invading the rights of the cabin owner. We may be hesitant, however, to say that you must compensate in this case, because we may feel that, if the cabin owner refuses to respect your legitimate need claim, you are released from your obligation to respect his property claim. In conclusion, the fair exchange account is superior to the corrective justice account. As the former posits negative need rights, its superiority to the latter reinforces the conclusion, defended in chapters 2, 3, and 6, that negative need rights do indeed exist.

249

INDEX

absolutism, 38 n. 1, 126, 146–7, 165–8 Afghanistan, war in, 148–9, 163 agency between government and citizen, 211, 215–20 law of, 214, 215, 217–8 and liability, 212, 213–20, 248 nature of, 211–2 antiwar pacifism, 122, 148–9, 165 autonomy, 27, 34–6, 58, 61, 161 axiology, 171, n. 1 Bazargan, Saba, 191 n. 7 Bennett, Jonathan, 127 n. 6 Boorse, Christopher, 46 Child, James, 215–8 Coleman, Jules, 239–42, 248–9 collective action, 7–8, 82, 90, 227–30 collective duty, 7–9, 222–3 collective rights, 7, 9 collective responsibility, 7–8 collectivism, 5–9, 210–1 combatants conscripted, 205–7 definition of, 184 ineffective, 189–92 just, 202, 208 liability of, 183–92, 201 n. 13, 205–6

compensation, 26, 28–30, 32, 75–6, 84, 112, 142–3, 200, 237–49 ex ante, 75–6, 160–5, 172 competent (or legitimate) authority, 180–2 competition cases, 74 n. 6, 216 consent, 20–1, 33, 35, 54–5, 61, 67, 75, 83 n. 10, 99–107, 129–30, 132, 154, 198, 218, 239 hypothetical, 161–4, 243–7 consequentialism, 12–3, 36, 66, 166, 173–4 corrective justice. See compensation defense, right to, 65–121 forfeiture accounts of, 92–6 McMahan’s account of, 99–103 Montague’s account of, 96–8, 98–9 n. 23 Thomson’s account of, 94–5 defense liability principle, 78–92, 105, 108–9, 122, 154, 155–9, 172, 179, 185–6, 189, 190, 193,197–203, 222–3 defensive violations of moral rules, 74 n. 6 democracy, 218–20 deontology, 13, 68 n. 3 absolutist, 165–8 moderate, 165–8, 171, 172–4 251

INDEX

desert, 33 doctrine of battlefield equality, 185 doctrine of doing and allowing, 37–53 doctrine of double effect. See principle of double effect ducking harm, 46–9

insurgents, 151, 153 intentions and the doctrine of double effect, 122–3, 127 and rights, 60–4 intermediate agency, 51 international law, 124–5. See also law of nations and Law of Armed Conflict

economic sanctions, 169 economic theory of law, 243 enforcement costs, 111–4, 116–8 enforcement principle, 68–9, 84, 95–6, 115 ex ante compensation principle, 164 excuses, 73–4, 79–81, 87, 164 exculpating vs mitigating nonmoral, 80–1 in war, 150–3, 159

journalists, liability of, 154, 158–9 just cause, 178–9 just war theory, traditional, 2–3, 165, 178–82 justifiable war principle, 170 justification fact-relative vs evidence-relative, 65–6, 86–9, 175

farmers, liability of, 203–5, 209 Fabre, Cécile, 205 n. 16 fairness, 33 Feinberg, Joel, 238–42, 245–9 Fletcher, George, 50 n. 20 Foot, Philippa, 40, 42–5, 52–3, 139, 141 Frowe, Helen, 134–5 Fullinwider, Robert K., 196 Geneva conventions, 124 n. 3 Green, Michael, 218–20 Gulf War, 220, 226–7 Hall, Ned, 51–2 harmful elimination, 129–30 harmful exploitation, 129–30, 132–4,134–5 Hitler, Adolph, 154 Hussein, Saddam, 221, 230 Hurka, Tom, 176 n. 2 individualism, 5–9 innocent aggressors, 69–71, 74–6 innocent bystanders definition of, 17 justifications for harming, 148–68, 176 innocent threats, 71–74

Kagan, Shelly, 49–50 Kamm, Frances, 63–4 Lackey, Douglas, 186–8 Lang, Gerald, 134–5 last resort, 178–9 Law of Armed Conflict, 124–5, 147 n. 26, 209 n. 18 law of nations, 5–6 Lazar, Seth, 101–3, 189–92 liability through assumed risk, 153–9 of citizens, 210–2, 215–20, 220–231 of combatants and military personnel, 183–92 to defense, 65–103 definition of, 6 of noncombatants, 193–209 to punishment, 35, 154 and the justification of war, 171–4 libertarianism, political, 24, 33 Libya, war in, 182 Locke, John, 18–27, 31–4, 84, 93–4, 216, 219 Lockean proviso, 23–4, 27

252

INDEX

McMahan, Jeff, 6, 72, 99–103, 119–20, 131 n. 11, 190 means principle, 123, 127–9, 132–4, 144, 145–7 methodology, 9–11, 132–4 mixing argument, 21–2, 33–4 Montague, Phillip, 96–8, 98–9 n. 23, 241–2 moral intuition, 10–2 moral obligation, definition of, 14 moral parasitism, 33 munitions workers, liability of, 198–202, 207–8 Nagel, Thomas, 204–5 necessity in defense, 107–115, 179 noncombatants, 124, 126, 146, 147 n. 26, 158. 184–5, 210–31 civilian, 193–209 military, 155, 192–3 Nozick, Robert, 71–2 Obama, Barrack, 182 other-defense. See defense pacifism. See antiwar pacifism population ethics, 235 principle of double effect alleged support for, 137–144 as a basis for military decisionmaking, 145–7 influence on international law, 124–5 Quinn’s formulation of, 129–32, 134–5, 139–42 traditional formulation of, 122–3, 126–7, 146–7 probability of success, 179 n. 4 problem of scarcity, 23–4, 27 proportionality in defense, 104–7, 116–8, 118–21 in cases of multiple aggressors, 118–21 narrow vs wide, 119–20

and responsibility, 118–9 in war, 178–80 provoked aggression, 77–8 proximate cause, 102 Quinn, Warren, 38 n.1, 39–42, 43, 61–4, 129–32, 132–5, 139–42 Quong, Jonathan, 132–4 Rachels, James, 40 n. 6 responsibility for collective wrongdoing, 223–9 comparative, 70, 76–8, 79, 107–8 and liability to defense, 79–81 responsibility dilemma, 101–3, 189–92 restricting claims principle, 123, 136–7, 143–4, 145–7 restriction of use, 23, 26 revolutionary war, 180–1 Rickless, Samuel C., 43 n. 11 right intention, 180 rights basis for, 31–6 contractual, 83, 242–5 defeasibility of, 14–6 to do wrong, 20, 240 of first arrival, 24, 58–9 to liberty, 20, 60–1, 246 to life, 3, 55 n. 25, 92–3 n. 12, 93, 95, 115, 166–7 to meet needs (need rights), 25–31, 31–2, 56–8, 90–1, 143–4, 177–8, 197–8, 199–202, 205,207–9, 245–9 national, 7, 9 positive, 25, 30 n. 7, 31, 35–6, 58, 59–60, 158, 229–30 to property, 9, 19–20, 21–4, 25–30, 32–34, 56–7, 60, 239–40, 245–9 of self-ownership, 18–21, 31, 34–5, 53–4, 55, 58, 143–4, 170, 198–9, 206–8, 213 territorial, 9 n. 8, 179–80

253

INDEX

risk assumption of, 142–3, 153–9, 191–2 and rights, 60, 89 Rousseau, Jean-Jacques, 5

unauthorized violence in war, 148–50 unjust harm, definition of, 53, 83 utilitarianism. See consequentialism Vincent v. Lake Erie Transportation Co., 28

self-defense. See defense Sorensen, Roy, 46 taxpayers, liability of, 203–9 terror bombing, 139–41 Thomson, Judith Jarvis, 14–5, 92 n. 12, 94–5, 126 threat of unjust harm, definition of, 68, 85–8 total war, 194–5, 210 trolley cases, 126–7, 138–9

Walen, Alec, 15, 136–7, 138–9 Walzer, Michael, 7 war crime, 124 war of liberation, 160–5 Wasserman, David, 15 withdrawing aid, 98 Zimmerman, Michael, 223 n. 9 Zohar, Noam, 6 n. 4

254