Abstract
Jeff McMahan has recently proposed what he calls a “combined liability-lesser-evil justification.” Its core idea is that the fact that someone has no right against the infliction of a certain lesser harm (like squashing his finger) makes it easier for the necessity or lesser evil justification to justify inflicting a greater harm on him (like killing him). This idea has been taken up by authors like Saba Bazargan or Helen Frowe. I will argue that McMahan’s basic idea is implausible to begin with (since it implies that a person’s right to life becomes less stringent because he has forfeited some other right), leads to counter-intuitive results, and seems to stem from a confusion between discounting the rights of wrongdoers and “subtracting” one right from the other. I then argue that Bazargan’s conclusion that minimally responsible threats (MRTs) can sometimes be killed as well as certain other conclusions that Bazargan regards as a particular advantage of his “hybrid account” are single-handedly generated by one element of that account, namely by the lesser-evil discounting view. Thus, the hybrid view is redundant. Moreover, both the hybrid view and the lesser evil discounting view of killing MRTs have strongly counter-intuitive implications. Finally, I show that Frowe’s application of the combined justification to non-responsible threats is entirely arbitrary and therefore useless. “Combined liability-lesser-evil justifications” should be rejected.
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Notes
For another potential endorsement of such a justification, see Tadros (2014, 60 and 62). Since I have encountered this claim, let me note that Tadros did not endorse a combined justification already in Tadros (2011, 248-256). Tadros offers there a lesser-evil justification for harming innocent threats that is based on discounting the latter’s interests. Such a discount is not a combination (see also the discussion of Bazargan below). However, I said “potential” four sentences ago since it is not even clear that Tadros really goes beyond mere discounting in the later article. McMahan, for that matter, has recently admitted (unlike the other authors discussed here) that the combined justification has little if any practical significance. See McMahan (2017, 18-24, esp. 24, the first paragraph). My argument here is that it is even theoretically confused.
McMahan (2017) has recently tried to offer an alternative solution to one of these problems, namely to the problem of limiting the number of “lesser aggressors” that can permissibly be killed. This new alleged “solution” has been rightly criticized as entirely ad hoc and theoretically unfounded by Rodin (2017). Unfortunately, in turn, Rodin’s own alleged solution to the problem is theoretically incoherent, since it contradicts the very idea of a liability-justification (see Steinhoff 2017).
The possible distinction between lesser evil and necessity need not concern us for present purposes, since it does not affect the following argument.
The objection was raised by an anonymous reviewer, the communication is on file with the author.
The objection was raised by an anonymous reviewer.
I have come across the objection that a person might waive his right only on condition that the waiver not be factored in a combined justification to inflicting greater harm on him. Yes, that is conceivable, but this is not the case in my example. Al does not mention any such condition.
See note 2.
In this case, one could not argue that the killing of the larger number of people contained “fewer” rights violations – even if that mattered. It seems, however, that it doesn’t, given that intuitively one should save the larger number in both pairs of cases (in the pair with crushed fingers as well as in the pair without crushed fingers). In fact, it seems odd to say that completely crushing a person is “morally worse” than crushing and killing a person in such a way that her fingers remain intact. Morality is not that fetishistic.
For more on this difference, see the discussion of Bazargan below.
People who think that the right inclusion argument mentioned above has any merit should imagine the steamrolling to be painless (the steamroller is equipped with an anesthesia ray).
Note that I am not criticizing McMahan here for holding them liable. Although I reject McMahan’s explanation as to why they are liable (his moral responsibility account of defensive liability), they actually are liable, since they are the source of an imminent attack.
For additional reasons why it should be rejected, see also Kamm (2014, 502-503).
While this term is actually misleading, this need not concern us here. For an explanation as to why it is misleading, see my pertinent remarks here: http://peasoup.us/2017/07/journal-moral-philosophy-discussion-pea-soup-kerah-gordon-solmons-self-defence-multiple-threats-critical-precis-renee-jorgensen/.
He gives no indication as to how, in theory or in practice, these degrees of responsibility are to be measured.
“Consequently, for a lesser-evil justification to permit killing the MRT, it would have to permit inflicting a harm equivalent to the remaining 50% of the harm she would suffer in being killed.” (Bazargan 2014, 126)
The broken wrist example is Bazargan’s (2014, 122). The use of harm units is mine.
Bazargan (2014, 126-127) makes the same point with a more complicated example.
“Now, according to responsibility-based accounts of liability, an agent’s moral responsibility for a fact-relative wrongful harm is enough to make her liable to proportionate harm necessary to avert the harm she is imposing.” (Bazargan 2014, 120)
To emphasize this again: Bert, according to Bazargan, is liable to some harm, but he is not liable to be killed. Note also (with respect to the rights inclusion argument) that the lesser harm Bert is liable to cannot be included in the greater harm of death since his death is not necessary to divert the threat of harm he is responsible for. His death saves the first twin, not the twin facing him.
Of course, at some point a threshold might be reached where the consequences of one’s self-defense are so dire as to make the costs prohibitive. That is no problem for the self-defense justification as understood here. After all, if, as Bazargan thinks, there is something like a lesser evil justification that can justify overriding the rights of people, then there can also be a greater evil prohibition that can justify overriding the rights of people, including the right to self-defense.
The same point also applies to Frowe and McMahan in the context of non-responsible threats and “lesser aggressors,” respectively.
Bazargan (personal communication).
Saba Bazargan-Forward, “Commentary on Uwe Steinhoff’s ‘Just War Theory,’” ms. on file with the author. I talk of “Bazargan” when referring to the original article and of “Bazargan-Forward” when referring to said commentary, thus reflecting the name change of the author.
But see Steinhoff (2018).
Bazargan-Forward, “Commentary on Uwe Steinhoff’s ‘Just War Theory,’” ms. on file with the author, p. 3.
Ibid.
Ibid., p. 1.
Ibid.
Incidentally, the threshold idea does not even help either: if the threshold is, for example, losing a right to one’s finger, or even one’s arm, the fact still remains that a right to one’s arm is not the same as the right to one’s life, and therefore it is unclear (and we are certainly not given any explanation) why losing the former should diminish the stringency of the latter.
Frowe herself (2014, 69), however, refers to Tadros (2011, 251), which might be problematic, see note 1.
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Acknowledgements
The research presented in this paper was supported by a grant from the Research Grants Council of the Hong Kong Special Administrative Region, China (Project No. HKU 17612817). I am very grateful for this support. I also thank the participants of the November 2016 conference on self-defense at the School of Law of the University of San Diego for their feedback on a previous version of this paper. I owe special thanks to Saba Bazargan-Forward for very helpful written comments on the sections of the paper dealing with his account, Mattias Iser for written comments on the first section, and anonymous reviewers for their comments.
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Steinhoff, U. Against a “Combined Liability-Lesser-Evil Justification”. Philosophia 47, 533–553 (2019). https://doi.org/10.1007/s11406-018-9992-7
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DOI: https://doi.org/10.1007/s11406-018-9992-7