Abstract
According to the evidence-relative view of liability to defensive harm, a person is so liable if and only if she acts in a way that provides sufficient evidence to justify a (putative) victim’s belief that the person poses a threat of unjust harm, which may or may not be the case. Bas van der Vossen defends this position by analyzing, in relation to a version of Frank Jackson’s famous drug example, a case in which a putative murderer is killed by a putative victim. Van der Vossen submits that the putative murderer is liable to be killed, which is a verdict that can be accommodated only by the evidence-relative view. We argue that Van der Vossen’s attempt to ground the evidence-relative view of liability to defensive harm fails. We also argue that this notion should be construed in fact-relative terms. This, however, does not mean that the notion of permissibility should necessarily also be understood in such a way in all possible cases. So, we explore whether the evidence-relative view of permissibility may be used in some contexts.
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Notes
For references, see, for instance, Peter A. Graham, “In Defense of Objectivism about Moral Obligation,” Ethics 121(1) (2010): p. 89 n. 3. For the distinction between the fact-relative, evidence-relative, and belief-relative senses of moral notions, see Derek Parfit, On What Matters, vol. 1 (Oxford: Oxford University Press, 2011), pp. 150–62.
For the original presentation of the case, see Frank Jackson, “Decision-Theoretic Consequentialism and the Nearest and Dearest Objection,” Ethics 101(3) (1991): pp. 462–3.
For the detailed presentation of Zimmerman’s view, see Michael J. Zimmerman, Living with Uncertainty: The Moral Significance of Ignorance (Cambridge: Cambridge University Press, 2008) and Ignorance and Moral Obligation (Oxford: Oxford University Press, 2014). For a succinct presentation, see Michael J. Zimmerman, “Is Moral Obligation Objective or Subjective?” Utilitas 18(4) (2006): pp. 329–61. Interestingly, Zimmerman used to argue that we should construe the notion of obligation in fact-relative terms. For his early view, see Michael J. Zimmerman, The Concept of Moral Obligation (New York: Cambridge University Press, 1996), pp. 10–20.
For remarks along these lines, see Helen Frowe, “A Practical Account of Self-Defense,” Law and Philosophy 29(3) (2010): pp. 249–52; Bas van der Vossen, “Uncertain Rights Against Defense,” Social Philosophy and Policy 32(2) (2016): p. 131.
There is no well-established characterization of the evidence-relative view in the literature; we provide this one on behalf of this position. Our characterization, however, is different from the one given by Jonathan Quong on behalf of the evidence-relative view. See Jonathan Quong, “Liability to Defensive Harm,” Philosophy & Public Affairs 40(1) (2012): p. 60.
In particular, Van der Vossen argues for a principle of defensive harm according to which “Y being liable to defensive force is part of X’s morally best bet if X is justified in believing either that Y is about to perform an objectively rights-violating act, or Y has culpably acted in a way that would, if successful, be such a rights-violating act, or both” (Van der Vossen, “Uncertain Rights Against Defense,” p. 142).
Susanne Burri and Bradley Strawser make comments that suggest that they also endorse the evidence-relative view, though it is not clear whether they would accept that a putative murderer is liable to be killed. See Susanne Burri, “Defensive Liability: A Matter of Rights Enforcement, not Distributive Justice,” Criminal Law and Philosophy 16(3): pp. 551–3; Bradley Jay Strawser, “Walking the Tightrope of Just War,” Analysis Reviews 71(3) (2011): pp. 537–8. Zimmerman defends a related view, although it is not completely clear whether he endorses the evidence-relative view strictly speaking. See Zimmerman, Living with Uncertainty, pp. 97–117.
In particular, the most important accounts of liability to defensive harm—the causal responsibility account, the moral responsibility account, the moral status account, and the culpability account—construe the notion of liability to defensive harm in fact-relative terms. For influential defenses of these accounts, see, respectively, Judith Jarvis Thomson, “Self-Defense,” Philosophy & Public Affairs 20(4) (1991): pp. 283–310; Jeff McMahan, “The Basis of Moral Liability to Defensive Killing,” Philosophical Issues 15(1) (2005): pp. 394–404; Quong, “Liability to Defensive Harm,” pp. 62–72; Kimberly Kessler Ferzan, “Culpable Aggression: The Basis for Moral Liability to Defensive Killing,” Ohio State Journal of Criminal Law 9(2) (2012): pp. 669–97. Victor Tadros also develops an important account that construes the notion of liability to defensive harm in fact-relative terms. See Victor Tadros, “Duty and Liability,” Utilitas 24(2) (2012): pp. 259–77.
Van der Vossen, “Uncertain Rights Against Defense,” p. 132.
Ibid., pp. 132–4.
Ibid., pp. 131–2. The original example is presented in Jeff McMahan, The Ethics of Killing: Problems at the Margins of Life (New York: Oxford University Press), p. 402 and it is also discussed in several other works.
See footnote 8.
Van der Vossen, “Uncertain Rights Against Defense,” pp. 134, 139, 144.
Ibid., pp. 134, 140, 142. Notice that this is just one of the two conditions of Van der Vossen’s principle of liability to defensive harm. Still, this is the relevant one in his analysis of Mistaken Self-Defense.
Ibid., p. 142 n. 28.
As should be clear, we assume the forfeiture view of liability to defensive harm according to which a person is so liable if and only if she has no right to not be harmed because she has forfeited that right. For a defense of this view, see Joanna Mary Firth and Jonathan Quong, “Necessity, Moral Liability, and Defensive Harm,” Law and Philosophy 31(6) (2012): pp. 680–2. Other theorists, especially Tadros, argue that liability should not be restricted to rights forfeiture. See Victor Tadros, “Causation, Culpability, and Liability,” in Christian Coons and Michael Weber (ed.) The Ethics of Self-Defence (Oxford: Oxford University Press, 2016), pp. 113–14. Still, Tadros would clearly also say that Customer is not liable to be killed.
Here we follow Jonathan Parry, “Liability, Community, and Just Conduct in War,” Philosophical Studies 172(12) (2015): p. 3315 n. 4. For references to important defenses of the causal responsibility account, the moral responsibility account, the moral status account, and the culpability account, see footnote 8.
Helen Frowe makes a related point. See Frowe, “A Practical Account of Self-Defense,” p. 261.
Quong makes a related point. See Quong, “Liability to Defensive Harm,” pp. 60–1.
Van der Vossen recognizes this point, although he does not develop its normative implications. See Van der Vossen, “Uncertain Rights Against Defense,” pp. 143–4.
This consideration is the one frequently invoked by so-called “revisionists” against so-called “traditionalists” to account for the moral inequality of combatants in the context of the philosophical discussion of the just war.
We would like to thank an anonymous reviewer for pressing us to develop this point.
Notice that the idea that rights against the imposition of harm protect those who hold them does not entail that they cannot be permissibly infringed in particular cases. Whether this is the case, however, depends fundamentally on their stringency.
For defenses of the fact-relative view of rights, see Helen Frowe, “Claim Rights, Duties, and Lesser-Evil Justifications,” Proceedings of the Aristotelian Society 89(1) (2015): pp. 267–74; Lisa Hecht, “Activating the Right to Be Rescued,” Journal of Moral Philosophy (published online ahead of print 2022), https://doi.org/10.1163/17455243-20213593, p. 16; Judith Jarvis Thomson, The Realm of Rights (Cambridge: Harvard University Press, 1990); Alec Walen, The Mechanics of Claims and Permissible Killing in War (Oxford: Oxford University Press, 2019), pp. 23–6.
Van der Vossen, “Uncertain Rights Against Defense,” p. 137; see also p. 144.
McMahan presents his particular understanding of moral responsibility in the context of developing his own account of liability to defensive harm—the moral responsibility account. According to this view, a person is morally responsible for posing a threat of unjust harm to another person if and only if she voluntarily chooses to engage in a foreseeable risk-imposing activity and that activity will eventuate in harms to a victim who has a right not to suffer them. (This is basically a paraphrase of the criterion as introduced in McMahan, “The Basis of Moral Liability to Defensive Killing,” p. 394.) It should be noted that this understanding of the notion of moral responsibility is different from the general concept of moral responsibility. For discussion, see Carolina Sartorio, “The Concept of Responsibility in the Ethics of Self-Defense and War,” Philosophical Studies 178(11) (2021): pp. 3561–77.
Admittedly, this is only a sketch of an argument—a proper argument would require a theory of causal contribution. But this sketch seems enough for our purposes here. For the presentation of a theory of causal contribution and its application to international defense cases (that is, war) rather than interpersonal defense cases, see Helen Beebee and Alex Kaiserman, “Causal Contribution in War,” Journal of Applied Philosophy 37(3) (2020): pp. 364–77.
To be sure, one can plausibly distinguish between different sorts of case within the second scenario. For example, it seems relevant whether, being aware of the fact that, if he reaches his phone, Mistaken Defender will develop the justified belief that he is trying to execute her, Customer pays no attention to this and does it anyway, or whether he does it deliberately, perhaps to scare Mistaken Defender. For an analysis of a case importantly similar to the latter, see Kimberly Kessler Ferzan, “The Bluff: The Power of Insincere Actions,” Legal Theory 23(3) (2017): pp. 168–202.
An anonymous reviewer, however, says that her view is that, in the scenario under consideration, Customer is more morally responsible than Mistaken Defender. This, we accept, is plausible. So, we grant that our view is not the only defensible one. Even if the reviewer’s view were the correct one, however, that would not affect the core of our argument, as we will now show.
The term “minimally responsible threats” is Saba Bazargan’s; McMahan uses different ones in different works. See Saba Bazargan, “Killing Minimally Responsible Threats,” Ethics 125(1) (2014): pp. 114–36.
We would like to thank an anonymous reviewer for pressing us to develop this point.
We would like to thank an anonymous reviewer for pressing us to clarify this point. Notice, however, that adopting this position is not innocuous either. This is because it entails that, by virtue of her unjust act, Defender becomes liable to be harmed and perhaps even killed, if that is the only way in which Murderer can save his life, which is counter-intuitive. Unfortunately, we do not have the space to address this problem here.
References
Beebee, Helen and Kaiserman, Alex, “Causal Contribution in War,” Journal of Applied Philosophy 37(3) (2020): pp. 364–77.
Bazargan, Saba, “Killing Minimally Responsible Threats,” Ethics 125(1) (2014): pp. 114–36.
Burri, Susanne, “Defensive Liability: A Matter of Rights Enforcement, not Distributive Justice,” Criminal Law and Philosophy 16(3) (2022): pp. 539–53.
Ferzan, Kimberly Kessler, “Culpable Aggression: The Basis for Moral Liability to Defensive Killing,” Ohio State Journal of Criminal Law 9(2) (2012): pp. 669–97.
Ferzan, Kimberly Kessler, “The Bluff: The Power of Insincere Actions,” Legal Theory 23(3) (2017): pp. 168–202.
Firth, Joanna Mary and Quong, Jonathan, “Necessity, Moral Liability, and Defensive Harm,” Law and Philosophy 31(6) (2012): pp. 673–701.
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Frowe, Helen, “Claim Rights, Duties, and Lesser-Evil Justifications,” Proceedings of the Aristotelian Society 89(1) (2015): pp. 267–85.
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Acknowledgements
We would like to thank Yitzhak Benbaji, Joseph Bowen, Alejandro Chehtman, Marcelo Ferrante, Francisco García Gibson, Ezequiel Monti, Rodrigo Sánchez Brígido, and two anonymous reviewers for Criminal Law and Philosophy for useful comments and suggestions on previous versions. All errors are our own.
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Rivera-López, E., Venezia, L. Against the Evidence-Relative View of Liability to Defensive Harm. Criminal Law, Philosophy 18, 45–60 (2024). https://doi.org/10.1007/s11572-023-09657-9
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DOI: https://doi.org/10.1007/s11572-023-09657-9