Defensive Liability: A Matter of Rights Enforcement, not Distributive Justice

Criminal Law and Philosophy 16 (3):539-553 (2022)
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The Moral Responsibility Account of Liability to Defensive Harm (MRA) states that an agent becomes liable to defensive harm if, and only if, she engages in a foreseeably risk-imposing activity that subsequently threatens objectively unjustified harm. Advocates of the account contend that liability to defensive harm is best understood as an aspect of distributive justice. Individuals who are liable to some harm are not wronged if the harm is imposed on them, and liability to defensive harm thus helps ensure that harm is borne by whoever has least of an objection of justice against being burdened with it—or so advocates of the MRA insist. In this paper, I argue that liability to defensive harm is not grounded in considerations of distributive justice. While it depends on the wider societal context what allocation of a burden is distributively most just, liability to defensive harm is a distinctly localised affair. I propose that liability to defensive harm is best understood as part of the enforcement dimension of our rights to non-interference. Framing liability in this way does not invalidate the MRA. It does, however, render subjective impermissibility accounts of liability particularly promising.



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Susanne Burri
Universität Konstanz

References found in this work

What is equality? Part 2: Equality of resources.Ronald Dworkin - 1981 - Philosophy and Public Affairs 10 (4):283 - 345.
Self-defense.Judith Jarvis Thomson - 1991 - Philosophy and Public Affairs 20 (4):283-310.
The ethics of killing in war.Jeff McMahan - 2004 - Ethics 114 (4):693-733.
Liability to Defensive Harm.Jonathan Quong - 2012 - Philosophy and Public Affairs 40 (1):45-77.
Self-defense and choosing between lives.Phillip Montague - 1981 - Philosophical Studies 40 (2):207 - 219.

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