According to the dominant position in the just war tradition from Augustine to Anscombe and beyond, there is no "moral equality of combatants." That is, on the traditional view the combatants participating in a justified war may kill their enemy combatants participating in an unjustified war - but not vice versa (barring certain qualifications). I shall argue here, however, that in the large number of wars (and in practically all modern wars) where the combatants on the justified side violate the (...) rights of innocent people ("collateral damage"), these combatants are in fact liable to attack by the combatants on the unjustified side. I will support this view with a rights-based account of liability to attack and then defend it against a number of objections raised in particular by Jeff McMahan. The result is that the thesis of the moral equality of combatants holds good for a large range of armed conflicts while the opposing thesis is of very limited practical relevance. (shrink)

Jeff McMahan has argued against the moral equivalence of combatants (MEC) by developing a liability-based account of killing in warfare. On this account, a combatant is morally liable to be killed only if doing so is an effective means of reducing or eliminating an unjust threat to which that combatant is contributing. Since combatants fighting for a just cause generally do not contribute to unjust threats, they are not morally liable to be killed; thus MEC is mistaken. The problem, (...) however, is that many unjust combatants contribute very little to the war in which they participate—often no more than the typical civilian. Thus either the typical civilian is morally liable to be killed, or many unjust combatants are not morally liable to be killed. That is, the liability based account seems to force us to choose between a version of pacifism, and total war. Seth Lazar has called this “The Responsibility Dilemma”. But I will argue that we can salvage a liability-based account of war—one which rejects MEC—by grounding the moral liability of unjust combatants not only in their individual contributions but also in their complicit participation in that war. On this view, all enlistees, regardless of the degree to which they contribute to an unjust war, are complicitously liable to be killed if it is necessary to avert an unjust threat posed by their side. This collectivized liability based account I develop avoids the Responsibility Dilemma unlike individualized liability-based accounts of the sort developed by McMahan. (shrink)

McMahan argues that justification defeats liability to defensive attack (which would undermine the thesis of the "moral equality of combatants"). In response, I argue, first, that McMahan’s attempt to burden the contrary claim with counter-intuitive implications fails; second, that McMahan’s own position implies that the innocent civilians do not have a right of self-defense against justified attackers, which neither coheres with his description of the case (the justified bombers infringe the rights of the civilians) nor with his views about (...) rights forfeiture, is unsupported by independent argument, and, in any case, extremely implausible and counter-intuitive; and third, that his interpretation of the insulin case confuses the normative relations between an agent’s justification and non-liability on the one hand and permissible or impermissible interference with the agent’s act on the other. Similar confusions, fourth, affect his discussion of liability to compensation. (shrink)

In most cases, liability in tort law is all-or-nothing—a defendant is either fully liable or not at all liable for a claimant's loss. By contrast, this paper defends a causal theory of partial liability. I argue that a defendant should be held liable for a claimant's loss only to the degree to which the defendant's wrongdoing contributed to the causing of the loss. I ground this principle in a conception of tort law as a system of corrective justice (...) and use it to critically evaluate different mechanisms for “limiting” liability for consequences of wrongdoing and for “apportioning” liability between multiple wrongdoers. (shrink)

The paper considers the proper method for theorizing about criminal jurisdiction. It challenges a received understanding of how to substantiate the right to punish, and articulates an alternative account of how that theoretical task is properly conducted. The received view says that a special relationship is the ground of a tribunal’s authority to prosecute and, hence, that a normative theory of that authority is faced with identifying a distinctive relation. The alternative account locates prosecutorial standing on an institution’s capacity to (...) address the basic reasons generating criminal liability. This reframes the normative issues at stake, and has the result that various, perhaps quite heterogeneous, considerations can substantiate penal authority. It also eliminates the existence of a special relation as a necessary condition for legitimate criminal accountability. The argument proceeds by offering an analysis and account of universal jurisdiction. Not only does the alternative elegantly perform where the received view struggles, it can accommodate much of what motivates the pursuit of relational ties in existing efforts to vindicate jurisdictional conclusions. (shrink)

This paper is a response to Jeff McMahan's "Just Cause for War". It defends a more permissive, and more traditional view of just war liability against McMahan's claims.

Adil Ahmad Haque argues that civilians who contribute to unjust lethal threats in war, but who do not directly participate in the war, are not liable to defensive killing. His argument rests on two central claims: first, that the extent of a person’s liability to defensive harm in virtue of contributing to an unjust threat is limited to the cost that she is initially required to bear in order to avoid contributing, and, second, that civilians need not bear lethal (...) costs in order to avoid indirectly contributing to unjust lethal threats. I argue that Haque’s defence of each claim fails. (shrink)

Standard theories of liability say that X is liable to Y only if Y was harmed, only if X caused Y harm, and (usually) only if X was at fault. This article offers a series of criticisms of each of these claims, and use them to construct an alternative theory of liability in which the nature of X's having imposed a risk of harm on Y is central to the question of when X is liable to Y, and (...) for how much. The article ends with some conjectures on ignorance as an excusing condition. (shrink)

There may be circumstances in which it is morally justifiable intentionally to kill a person who is morally innocent, threatens no one, rationally wishes not to die, and does not consent to be killed. Although the killing would wrong the victim, it might be justified by the necessity of averting some disaster that would otherwise occur. In other instances of permissible killing, however, the justification appeals to more than consequences. It may appeal to the claim that the person to be (...) killed 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. In these cases, I will say that the person is liable to be killed. Although I borrow the notion of liability from legal theory, and although much of what I say will be informed by the literature on liability in both tort law and criminal law, my concern in this article is with moral rather than legal liability. (shrink)

This article is a response to commentaries on my book, Killing in War, by Cécile Fabre, Alex Leveringhaus and Victor Tadros. It discusses the implications of the approach I have defended for the morality of war for such issues as internecine killing in war, humanitarian intervention and the bases of individual liability to attack in war.

Does undercover police work inevitably wrong its targets? Or are undercover activities justified by a general security benefit? In this article I argue that people can make themselves liable to deception and manipulation. The debate on undercover policing will proceed more fruitfully if the tactic can be conceptualised along those lines, rather than as essentially ‘dirty hands’ activity, in which people are wronged in pursuit of a necessary good, or in instrumentalist terms, according to which the harms of undercover work (...) are straightforwardly overcome by its benefits. This article motivates the ‘liability view’ and describes its attractions, challenges, and implications. (shrink)

In his recent book, Killing in War, Jeff McMahan sets out a number of conditions for a person to be liable to attack, provided the attack is used to avert an objectively unjust threat: (1) The threat, if realized, will wrongfully harm another; (2) the person is responsible for creating the threat; (3) killing the person is necessary to avert the threat, and (4) killing the person is a proportionate response to the threat. The present article focuses on McMahan's second (...) condition, which links liability with responsibility. McMahan's use of the responsibility criterion, the article contends, is too restrictive as an account of liability in general and an account of liability to be killed in particular. In order to defend this claim, the article disambiguates the concept of liability and explores its role in the philosophical analysis of the permission to cause harm to others. (shrink)

Corporations, through their products and behaviors, exert a strong effect on the well-being of populations. Industries including frearms, motor vehicles, tobacco, and alcohol produce and market products negatively impact public health. All of these industries are composed of corporations, which are legal fctions designed to provide limited exposure to liability, through a variety of mechanisms, for their investors and directors. This means that when actions are taken on behalf of a corporate entity, the individuals responsible generally will not face (...) personal liability for the negative results of those actions. To illustrate this point, this article considers corporate products or practices that have caused harm in varied settings, and analyzes the role that limited liability played in these cases. In addition, the article identifes ways to modify or eliminate some of the principles and practices that accompany limited liability. (shrink)

Tim Mawson argues that the ability to choose what one knows to be morally wrong is a power for some persons in some circumstances, but that it would be a mere liability for God. The lynchpin of Mawson 's argument is his claim that a power is an ability that it is good to have. In this rejoinder, I challenge this claim of Mawson 's, arguing that choosing a course of action is always an exercise of power, whether or (...) not it is good for one to have that power. I then go on to develop an argument for saying that if it is not good for God to have the ability to make evil choices, then it isn't good for us to have it either, in which case the free-will defence is unsustainable. (shrink)

This article explores the extent to which the magnitude of harm that a person is liable to suffer to avert a threat depends on the magnitude of her causal contribution to the threat. Several different versions of this view are considered. The conclusions are mostly skeptical—facts that may determine how large of a causal contribution a person makes to a threat are not morally significant, or not sufficiently significant to make an important difference to liability. However, understanding ways in (...) which causation may be scalar helps to deepen our understanding of other morally significant facts, such as responsibility. (shrink)

This essay argues that culpability and responsibility are independent notions, even though some of the same facts make us both responsible and culpable. Responsibility for one’s conduct is grounded in the strength of the agential connection between oneself and one’s conduct. Culpability for one’s conduct is the vices that give rise to that conduct. It then argues that responsibility and culpability for causing a threat are each grounds of liability to defensive harm independent of the other.

This account of civil liability for animals in a range of ancient, mediaeval and modern legal systems (based on a series of studies conducted early in my career: (s.1)) uses semiotic analysis to supplement the insights of conventional legal history, thus balancing diachronic and synchronic approaches. It reinforces the conventional historical sensitivity to anachronism in two respects: (1) (logical) inference of underlying values from concrete rules (rather than attending to literary features of the text) manifests cognitive anachronism, an issue (...) manifest in biblical scholarship’s discussion of the stoning of the homicidal ox in Exod. 21:28 (s.2); (2) the application of modern notions of literal (rather than narrative) meaning not only manifests a semiotic anachronism but here also obscures the institutional origins of many of the rules in a system heavily reliant on self-help and informal settlement. (shrink)

The current rise in malpractice litigation has led to concern in the research community as to the prospect of litigation against researchers. Clearly as the responsibility for the day-to-day conduct of the research falls upon the researchers they will be potentially liable should there be negligence in the conduct of the research project itself. But to what extent can the research ethics committee and its members be held liable should harm result to the research subject? How far does the prospect (...) of the threat of litigation equate with the reality of the prospect of liability? Although the NHS research governance framework suggests that primary responsibility for the conduct of the trial is with the researcher this does not mean that REC members will be immune from actions in tort where research subjects suffer harm in the conduct of a research project approved by their NHS REC. This paper focuses upon the prospect for liability in the law of tort of NHS RECs and their members. While in practice the vast majority of such claims are unlikely to be successful members of RECs may incur resultant legal costs as a consequence of involvement in proposed litigation. It is submitted that the scope of indemnity provision provided to RECs and their members should be precisely determined, otherwise there is a real prospect that the risk of malpractice litigation may deter individuals from serving on such committees. (shrink)

The article deals with the question whether a state might be held liable for the infringement of the European Convention on Human Rights if its national court of last instance fails to implement the obligation to make a reference for a preliminary ruling to the Court of Justice of the European Union under the conditions laid down in Article 267 of the Treaty on the Functioning of the European Union and developed in the case-law of the Court. Relying on well-established (...) practice that an arbitrary decision not to refer a question for a preliminary ruling theoretically could infringe the right to a fair trial, the author analyses the practical application of the “arbitrariness rule” and discusses whether the European Court of Human Rights has established any specific criteria that national courts are required to bring into play in order to substantiate the decision not to refer. (shrink)

A person who is liable to defensive harm has forfeited his rights against the imposition of the harm, and so is not wronged if that harm is imposed. A number of philosophers, most notably Jeff McMahan, argue for an instrumental account of liability, whereby a person is liable to defensive harm when he is either morally or culpably responsible for an unjust threat of harm to others, and when the imposition of defensive harm is necessary to avert the threatened (...) unjust harm. Others may favour a purely noninstrumental account of liability: one that looks only to the past behaviour of the potentially liable person. We argue that both views are vulnerable to serious objections. Instead we develop and defend a new view of liability to defensive harm: the pluralist account. The pluralist account states that liability to defensive harm has at least two bases. First, if an attacker is morally or culpably responsible for an unjust attack then he has forfeited what we call his agency right, and in doing so he has made himself partially liable to defensive harm. Whether the attacker is fully liable to defensive harm depends, however, on whether the imposition of defensive harm would infringe a different right held by the attacker: his humanitarian right. Humanitarian rights are rights to be provided with urgently needed resources or to be protected from serious harms when others can do so at reasonably low cost. We argue the pluralist account avoids the objections to which the instrumental and noninstrumental views are vulnerable, coheres with our intuitive reactions in a wide range of cases, and sheds new light on the way different rights combine to determine a person's liability to suffer harm. (shrink)

David McCarthy has recently suggested that our compensation and liability practices may be interpreted as reflecting a fundamental norm to hold people liable for imposing risk of harm on others. Independently, closely related ideas have been criticised by Stephen R. Perry and Arthur Ripstein as incompatible with central features of negligence law. We aim to show that these objections are unsuccessful against McCarthy’s Risk–liability theory, and that such an approach is a promising means both for understanding the moral (...) basis of liability for negligence and for reasoning about possible reforms of the institution of negligence law. (shrink)

The risk of tort liability for health maintenance organizations and other managed care plans has dramatically increased in recent years. This is due in part to the growing percentage of health care rendered through managed care plans. The cost-containment mechanisms commonly used by managed care plans, such as limiting access to services and/or choice of providers, creates a climate ripe for disputes that may end up in court. As dissatisfied patients and providers seek recourse in the courts, tort doctrines (...) are extended and new legal theories emerge as needed. For example, the concepts of direct and vicarious tort liability developed in the hospital context have been extended by courts to encompass HMOs. vicarious liability claims, based on ostensible agency or respondeat superior doctrines, have been brought against HMOs and managed care plans for negligent treatment by physicians selected to provide care to members. (shrink)

Corporations, through their products and behaviors, exert a strong effect on the wellbeing of populations. Public health practitioners and academics have long recognized the harms associated with some corporations’ products. For example, firearms are associated with approximately 30,000 deaths in the United States each year1 and over 200,000 deaths globally. Motor vehicles are associated with about 40,000 deaths in the United States each year and over 1.2 million deaths globally. Tobacco products kill about 438,000 people each year in the United (...) States5 and about 4.9 million people worldwide. In addition to producing unsafe or harmful products, some corporations behave in ways that negatively impact the public’s health, such as marketing alcohol to youth and other vulnerable populations. Given these observations, one can conclude that it is possible to quantify the public health impact of individual industries, such as firearms, motor vehicles, tobacco, and alcohol. Health professionals can then target these individual industries to prevent or lessen the harms they cause. (shrink)

In contrast to theoretical discussions about potential professional liability of clinical ethicists, this report gives the results of empirical data gathered in a national survey of clinical medical ethicists. The report assesses the types of activities of clinical ethicists, the extent and types of their professional liability coverage, and the influence that concerns about legal liability has on how they function as clinical ethicists. In addition demographic data on age, sex, educational background, etc. are reported. The results (...) show that while nearly one third (28.9%) of the ethicists regularly make recommendations about patient care, only 10.8% of them regularly make entries in the medical record; only approximately half (53.0%) of them are covered by professional liability (malpractice) insurance; and the vast majority (84.3%) of them say that concerns about legal liability do not influence the way they function as clinical ethicists. (shrink)

Repositories of tissues, cell lines, blood samples, and other biological specimens are crucial to genomics, proteomics, and other emerging forms of biomedical research. Creation of these repositories by individual researchers and their affiliated organizations, commercial entities, and even governments has been labeled “biobanking” in the bioethics literature. Biobanking as a metaphor for the collection, transfer, and use of these specimens suggests a framework for the legal response to conflicts that may arise - one embedded in principles of contract law and (...) property ownership with an overlay of legislatively authorized regulation of the “industry.”. (shrink)

This essay applies Hegel's theory of remedies to the question of whether and when breach of a penal statute should attract civil liability in tort. For Hegel, the purpose of a remedy is to vindicate the human right to self-determination by refuting the claim to validity implied in intentional or negligent acts that infringe this right. Accordingly, in determining the civil effect of legislation, a distinction must be made between statutes that effectuate pre-existing rights and those which create new (...) rights in the attempt to maximize aggregate welfare. The former should confer a civil right of action, the latter should not. Statutes that impose a duty of affirmative action should be enforced civilly if their purpose is to protect individual autonomy in circumstances where one person has gained control over the welfare of another. And statutes that protect persons from exposure to unreasonable risk should confer a civil right of action provided that the conditions of ordinary negligence liability are met. These conditions ought to supplant those connected with the legislative intent theory of statutory torts. (shrink)

There is much to admire in Michael Walzer’s discussion of terrorism and just war. I particularly applaud his insistence that liability to attack is a matter of action rather than membership or collective identity. “It is,” he writes, “the extension of violence or the threat..

In this contribution we will explore some of the implications of the vision of Ambient Intelligence (AmI) for law and legal philosophy. AmI creates an environment that monitors and anticipates human behaviour with the aim of customised adaptation of the environment to a person’s inferred preferences. Such an environment depends on distributed human and non-human intelligence that raises a host of unsettling questions around causality, subjectivity, agency and (criminal) liability. After discussing the vision of AmI we will present relevant (...) research in the field of philosophy of technology, inspired by the post-phenomenological position taken by Don Ihde and the constructivist realism of Bruno Latour. We will posit the need to conceptualise technological normativity in comparison with legal normativity, claiming that this is necessary to develop democratic accountability for the implications of emerging technologies like AmI. Lastly we will investigate to what extent technological devices and infrastructures can and should be used to achieve compliance with the criminal law, and we will discuss some of the implications of non-human distributed intelligence for criminal liability. (shrink)

Should there be civil liability when a person who could easily and without risk rescue another fails to do so? It is argued that the failure to act does not cause the harm that follows, and that the misfeasance/nonfeasance distinction provides no basis for liability. In spite of this, it is maintained that there can sometimes be a duty to rescue, and even a right to be rescued, even in the absence of a voluntary undertaking or an explicit (...) assumption of responsibility.There are convincing arguments for some sort of legal recognition of a duty to rescue, but these arguments do not support tort liability. Nor is a case for tort liability made with the argument that a growth of tort law in this direction would be compatible with the values most centrally involved in the division between torts and contracts. Furthermore, there is a case against tort liability — namely, that the purpose of tort liability is to compensate, that there are certain sorts of situations in which compensation is apposite, and that failure to rescue does not fit into these categories. Criminal liability is the appropriate way for the law to recognize a duty to rescue. (shrink)

The risk of tort liability for health maintenance organizations and other managed care plans has dramatically increased in recent years. This is due in part to the growing percentage of health care rendered through managed care plans. The cost-containment mechanisms commonly used by managed care plans, such as limiting access to services and/or choice of providers, creates a climate ripe for disputes that may end up in court. As dissatisfied patients and providers seek recourse in the courts, tort doctrines (...) are extended and new legal theories emerge as needed. For example, the concepts of direct and vicarious tort liability developed in the hospital context have been extended by courts to encompass HMOs. vicarious liability claims, based on ostensible agency or respondeat superior doctrines, have been brought against HMOs and managed care plans for negligent treatment by physicians selected to provide care to members. (shrink)

The question of liability in the case of using intelligent agents is far from simple, and cannot sufficiently be answered by deeming the human user as being automatically responsible for all actions and mistakes of his agent. Therefore, this paper is specifically concerned with the significant difficulties which might arise in this regard especially if the technology behind software agents evolves, or is commonly used on a larger scale. Furthermore, this paper contemplates whether or not it is possible to (...) share the responsibility with these agents and what are the main objections surrounding the assumption of considering such agents as responsible entities. This paper, however, is not intended to provide the final answer to all questions and challenges in this regard, but to identify the main components, and provide some perspectives on how to deal with such issue. (shrink)

Beginning with the seminal work by Williams and Nagel, moral philosophers have used auto accident hypotheticals to illustrate the phenomenon of moral luck. Moral luck is present in the hypotheticals because two equally careless drivers are assessed differently because only one of them caused an accident. This Article considers whether these philosophical discussions might contribute to the public policy debate over compensation for auto accidents. Using liability and insurance practices in the United States as an illustrative example, the Article (...) explains that auto liability insurance substantially mitigates moral luck and argues that, as a result, the moral luck literature is unlikely to make a significant contribution to this public policy debate. The debate would benefit more from philosophical analysis of victims’ luck, which is not as substantially mitigated by liability insurance. (shrink)

Notwithstanding the demands of retributive desert, strict criminal liability is sometimes defensible when the strict liability pertains, not to whether conduct is to be criminalized at all, but to the seriousness of the actor’s crime. Suppose an actor commits an intentional assault or rape, and accidentally brings about a death. Punishing the actor more seriously because the death resulted is sometimes justifiable, even absent proof of his independent culpability as to the death. But what punishment is proportionate for (...) such an actor? Should he be punished as harshly as an intentional or knowing killer? This article offers a framework for analysing these difficult questions. After rejecting a broad forfeiture justification for strict liability in grading, it articulates a more promising set of arguments, premised on the actor’s ‘change of normative position’ by choosing to commit a crime. Three principles of culpability sometimes justify strict liability in grading: holistic culpability, attention to the degree of unjustifiability of the risk, and rough comparability in culpability. Strict liability in grading can be appropriate when the risk of committing the more serious crime (i) is a risk intrinsic to the less serious crime or (ii) is minimally foreseeable. The article also addresses the relevance of moral luck, ie the principle that the fortuitous occurrence of a result or circumstance increases the actor’s just deserts. Even if moral luck is recognized, it cannot fully justify strict liability in grading. (shrink)

Bruno Bauer’s response to Max Stirner’s Der Einzige und sein Eigentum is here examined closely, for the first time. In working out their concepts of freedom and self-determination, the Hegelian Left stressed different elements in the synthesis which Hegel himself had effected. Options appear that can be described as generally Fichtean or Spinozistic; each has distinct political and ethical implications. Bauer’s claim is that Stirner “Unique One” is to be understood as a version of Spinozist substance, which fails to rise (...) to the Fichtean-Hegelian standpoint of rational subjectivit y which his own thought represents. The paper endorses Bauer’s conclusion that essential differences between his republicanism and universalism, as opposed to Stirner’s anarchism and particularism, can be traced to divergent receptions of Fichte and Spinoza, as mediated through Hegel. With references to Hegel’s critiques of Spinoza, the paper reconstructs Bauer’s argumentation on the inadequacies of a merely substantial view of freedom. (shrink)