Abstract
Philosophers have had trouble defending the common sense view that it is permissible to impose significant cost on an innocent person who is about to harm you to prevent the harm from occurring. In this paper, I argue that such harm can be justified if one pays attention to the moral significance of imposing a cost on others. The constraint against harming people who give rise to cost by their presence or movements is weaker than the constraint against harming bystanders. Moreover, I argue that people who give rise to cost have a duty to take on some of that cost to help protect the person under threat.
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Notes
Of the more influential, see Jeff McMahan “Self-Defense and the Problem of the Innocent Attacker” Ethics 104 (1994): 252–290; Jeff McMahan “The Basis of Moral Liability to defensive Killing” Philosophical Issues 15 (2005): 386–405; Michael Otsuka “Killing the Innocent in Self-Defence”, Philosophy and Public Affairs 23 (1994): 74–94; David Rodin War and Self-Defense (Oxford: Clarendon Press 2002), at pp. 70–99
The most explicit support of such a view is found in Otsuka (1994)
A person may be innocent but not non-responsible if he is not at fault but has taken a permissible low risk. McMahan has distinguished between those innocent persons that have taken up a risky activity and those that have not. Someone who drives a car that, through no fault of her own, goes out of control is innocent but not non-responsible. By driving a vehicle one takes on the risk of becoming a threat to others if one’s brakes fail. See Jeff McMahan “The Ethics of Killing in War” Ethics 114 (2004): 693–733, and McMahan 2005
“If the cost cannot be divided, then it may turn out—depending on a number of factors—that the person under threat is the one who should bear it. (editor's note)”
Judith Jarvis Thomson “Self-Defence” Philosophy and Public Affairs 20 (1991): 283–310, at p. 298.
Thomson (1991), p. 290.
I am grateful to Jeff McMahan for pressing me on this point.
See Warren Quinn, “Actions, Intentions, and Consequences: The Doctrine of Double Effect” Philosophy & Public Affairs 18 (1989): 334–51, at p. 346–47, and Jonathan Quong “Killing in Self-Defense” Ethics 119 (2009): 507–537. Quong endorses Quinn’s view that the stringency of one’s right not to be killed depends on the mode of agency that is exercised in the killing. According to Quong, one “has more stringent rights not to be killed in certain ways (e.g., when one’s body or property is used as a means) than in other ways (when one’s body or property is not used as a means)” (Quong 2009, p. 521, n. 31).
See Quinn (1989).
This would also rule out appealing to Frances Kamm’s Principle of Secondary Permissibility. See Frances Kamm Intricate Ethics (Oxford University Press: Oxford 2007).
Needless to say, since I think the constraint against harming innocent and non-responsible people can be reduced without them having engaged in any action that is relevant to the situation, I also think that the constraint against harming people who innocently and non-responsibly give rise to cost through their actions can be reduced.
According to this definition, people who give rise to cost when their body removes or interposes an obstacle (through no action of their own, perhaps because they have been blown by the wind) and thereby make it the case that another person becomes exposed to a threat would not themselves be threats. That seems correct.
There is a growing literature on the topic and an increasing number of philosophers seem to support the view that causal contribution and liability can be combined. In addition to the three mentioned in footnote 1, see Zohar (1993) and Kimberley Kessler Ferzan “Justifying Self-Defense” Law and Philosophy 24 (2005): 711–749.
One reason for thinking that innocent threats, obstructors, and obstacles are not liable is that they may be owed compensation if the person under threat uses her permissible means of defence and bears no cost herself, but I will not explore this here.
See for instance Robert Nozick Anarchy, State, and Utopia (New York: Basic Books 1974): 34; Thomson (1991); Otsuka (1994); Jeff McMahan The Ethics of Killing: Problems at the Margins of Life (New York: Oxford University Press 2002): 409, and; Frowe 2008).
This would be a variation of the Duck case, as envisaged by Christopher Boorse and Roy Sorenson, in “Ducking Harm” Journal of Philosophy 85 (1988): 115–134. See also Kai Draper “Rights and the Doctrine of Doing and Allowing” Philosophy & Public Affairs 33 (2005): 253–280.
The distinction between the different types of actions that I am talking about here is different from the distinction between eliminative and opportunistic agency mentioned at the outset.
Considerations about why Mary is standing on the cushioning device might be important. For instance, it could be her mattress, and she could be in her bed.
Victor Tadros adopts this view in his book, The Ends of Harm (Oxford: Oxford University Press 2011, especially p. 129). Tadros argues that it can be permissible to harm people when they have an enforceable duty to make a certain sacrifice in order to prevent or mitigate harm to someone else but are unable or unwilling to act on that duty. I have expressed this view myself in earlier work, and sympathetic to Tadros position, but I do not want to rely on it here.
Helen Frowe ‘Threats, Bystanders and Obstructors’ Proceedings of the Aristotelian Society 108 (2008): 365–372, at p. 365. See also Noham Zohar “Collective War and Individualistic Ethics: Against the Conscription of ‘Self-Defense’” Political Theory 21 (1993): 606–622, at pp. 612–613, where he talks about the “villainous obstructor”; David Rodin War and Self-Defense (Oxford: Clarendon Press 2002), p. 82; Jeff McMahan Killing in War (Oxford: Oxford University Press 2010), pp. 170–3.
Frowe (2008), p. 368.
I develop and explore the full meaning of the theory of moral obstacles in ‘Moral Obstacles: An alternative to the doctrine of double effect’ Ethics 124 (2014): 481–506.
For a notable exemption, see Alec Walen “Transcending the Means Principle” Law and Philosophy 33 (2014): 427–464.
Thomson (1991), p. 292. The doctrine of double effect is often appealed to in the ethics of war. See, for instance, Michael Walzer Just and Unjust Wars (New York: Basic Book 1977): 151–153.
See Jeff McMahan “Intention, Permissibility, Terrorism, And War” Philosophical Perspectives 23 (2009): 345–372, at p. 345.
For criticisms of the doctrine, see Jonathan Bennett The Act Itself (Oxford: Clarendon Press 1996); John Harris “The Doctrine of Triple Effect and Why a Rational Agent Need Not Intend the Means to His End II: The Moral Difference Between Throwing a Trolley at a Person and Throwing a Person at a Trolley” Aristotelian Society 74 (2000): 41–57; Frances Kamm “Justifications for Killing Noncombatants in War” Midwest Studies in Philosophy 24 (2000): 650–692; “The Doctrine of Triple Effect and Why a Rational Agent Need Not Intend the Means to His End I” Aristotelian Society 74 (2000): 21–39; “Toward the Essence of Nonconsequentialism”, in A. Byrne, R. Stalnaker, and R. Wedgwood (eds.) Fact and Value, Essays on Ethics and Metaphysics for Judith Jarvis Thomson (Cambridge MA: The MIT Press 2001): 155–181; T. M. Scanlon Moral Dimensions: Permissibility, Meaning, Blame (Harvard University Press (2008); Judith Jarvis Thomson “The Trolley Problem”, in Rights, Restitution, and Risk (Cambridge MA: Harvard University Press 1986): 94–116; “Physician-Assisted Suicide: Two Moral Arguments”, Ethics 109 (1999): 497–518.
Examples are Bennett (1996) and Harris (2000).
For different attempts to provide an alternative defense of these intuitions, see, for instance, Frances Kamm Intricate Ethics, ch 5: “Toward the Essence of Nonconsequentialist Constraints on Harming” (Oxford: Oxford University Press 2007); and Scanlon (2008).
An earlier version of this paper was presented at the Australian National University and Katholische Friedensstiftung, Hamburg. I thank all participants. I have also benefited from discussions and/or written comments from Larry Alexander, Christian Barry, Bashshar Haydar, Robert Huseby, Ole Koksvik, Holly Lawford-Smith, Jeff McMahan, Jonathan Quong, and Uwe Steinhoff.
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Gerhard Øverland: Deceased
Gerhard Overland died unexpectedly a few weeks after contributing his article to this special issue. Other than a few small edits, and one editorial footnote, the text is as he submitted it.
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Øverland, G. Self-Defense and Giving Rise to Cost: On Innocent Bystanders, Threats, Obstructors, and Obstacles, and the Permissibility to Harm Them. Criminal Law, Philosophy 10, 831–847 (2016). https://doi.org/10.1007/s11572-014-9359-5
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DOI: https://doi.org/10.1007/s11572-014-9359-5