Abstract
McMahan argues that justification defeats liability to defensive attack (which would have far-reaching consequences for the ethics of war, in particular for 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 (or lack thereof) 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.
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Notes
McMahan is not the first author to assume a moral inequality of combatants. In fact – and against a widespread but mistaken opinion – this was the traditional view in just war theory. For brief historical overviews of this idea, see Steinhoff (2012a, section 2); Ryan (2011); Reichberg (2013); Biggar (2013, esp. 191-196). An anonymous reviewer states, however, that the standard modern view, which is “fully embodied in the laws of war, is the moral equality of soldiers”; and this, allegedly, makes McMahan a “radical revisionist of current doctrine.” In my view, the reviewer equates “the standard modern view” with the Walzerian view. In light of an unbroken Catholic tradition from Aquinas via Vitoria and Suárez (and many others) to Anscombe, Coady, and Biggar, however, there is no reason to take Walzer as “the standard.” Moreover, the laws of armed conflicts do not say anything about moral equality. What is actually embodied in the laws of war is the view that soldiers should have a legal right to participate in unjustified wars and should therefore not be legally punished for such participation. This, however, is a view taken by McMahan (2008b) himself, and it is a view taken 400 years before McMahan by Grotius (who rejected moral equality). Thus, there is no “radical revision” (see Steinhoff 2012a, section 2).
In fact, if all these details were relevant, McMahan’s example would have little applicability to actual wars: there are no real instances of bombing military targets that have all the features of McMahan’s case. (For instance, in McMahan’s example the villagers who get killed are citizens of a neutral country, living near the border, and they do not get killed by the bombs themselves, but by the debris that is hurled over the border, and they have no close personal relations to each other.)
For the complete example, see McMahan (2014a, 104-105).
So argues an anonymous reviewer.
McMahan is not entirely correct. My claim right to do x myself is a right against interference, but my claim right that someone else do x is not a right against interference, but, obviously, a right that that person does x. This distinction need not concern us for present purposes.
One might suggest that if the villagers had no right to life in the first place, the proportionality considerations of the necessity justification would have taken a completely different turn, justifying much more collateral damage than is justified under the therefore necessary assumption that the villagers do have a right to life. However, it is simply not true that this assumption is necessary to get the “right” results as far as proportionality is concerned. The innocence of the villagers is quite capable of according their interests in life a sufficient weight; but if it turns out that killing 5 innocent bystanders is proportionate, then, one could argue, they lose (if not “forfeit” in McMahan’s sense) their right to life. McMahan, however, does not argue that. My question is why: what principled reason is there for stripping the civilians of their right to self-defense but not of their right to life? This different treatment of the two rights seems to be simply arbitrary.
This suggestion has been made by an anonymous reviewer. Note that I myself nowhere base the right to self-defense on a right to life. After all, one may defend not only one’s life, but also lesser things, like bodily integrity, property, or even honor. For my argument in this paper, however, it is irrelevant whether an innocent person’s right to lethal self-defense against attempts at his life are based on a right to life or whether it is part and parcel of a fundamental, underived right to engage in necessary and proportionate self-defense against unjust attacks. Personally, I subscribe to the latter view (Steinhoff 2016).
An anonymous reviewer remarks that if the bombing is lawful then the harm to the bystanders must be lawful too. However, I precisely deny that the bombing would be lawful under the circumstances. (According to Article 1 of the Hague Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, “[t]he territory of neutral Powers is inviolable,” and killing neutrals located in their own territory would certainly amount to a violation of said territory.) This does not contradict the assumptions of McMahan’s example, though. After all, he talks about moral justification, not legal justification.
On McMahan’s account – but not definition – of liability people can only be liable to defensive harm if there is, so to say, a reason to harm them. In particular, on his account a person cannot be liable to defensive harm if harming that person would do no good (for example save the defender). I reject such an account of liability, and so do others. See Firth and Quong (2012); Frowe (2011, 545, n. 31); Steinhoff (2012b, 220-224) and “Shortcomings of and Alternatives to the Rights-Forfeiture Theory of Justified Self-Defense and Punishment,” ms. available at http://philpapers.org/rec/STESOA-5 .
His misperception might be due to his preoccupation with liability.
Note that by accepting the existence of agent-relative justifications I am in no way contradicting my rejection, in the previous section, of the idea that one’s self-preference is sufficient to override the rights of innocent, non-liable people. After all, on my account the bombers are liable.
Jeff McMahan, “Self-Defense against Justified Threats,” (Lecture notes, Sheffield, August 2010), unpublished ms., on file with author, p. 6.
This also takes care of an objection of Stephen Shalom’s (personal communication). He imagines a D-Day* which differs from the actual D-Day in that in this war the Allies are not also intent on safeguarding their own imperialist interests and do not engage in indiscriminate bombing of civilians, etc., thus the war is clearly justified. He claims, however, that by my argument it would be “perfectly justified for a French civilian to shoot down an Allied plane, thereby making it more likely that the invasion (and the just war for a just cause) will fail. But not simply one civilian. Because defense of others is permitted, all French civilians would be – by [my] argument – doing the right thing if they volunteered to serve in the German air-defense corps. And the German military too … would be justified in shooting down the planes in defense of others.” However, I neither say nor imply that the French civilians would “do the right thing” if they shot down Allied planes. My account does not even imply that they are permitted to do this. It has to be taken into account here, after all, that the Allied invasion benefits them. That, however, is not how the usual tactical bomber example is set up, where the threatened civilians belong to a neutral party. And finally, again, my account certainly does not imply that the French armed forces can join the Germans in defending their civilians against the Allied forces.
There are further problems with McMahan’s example and the use he tries to make of it, in particular his inclination of tarring all “unjust combatants” with the same brush: it is simply not true that all of them provoked the action of the allegedly justified combatants in the first place. See in this context Steinhoff (2012a, 351-352 and 361). The exception to agent-neutral liability mentioned above also becomes relevant again here (2012a, 357–358).
In Steinhoff (2012a, section 4.4), I argued that McMahan got the law wrong.
Cases like these show that it is necessary to distinguish permissions from liberty rights. For example, a person A might have a liberty right against person B to kill B without being permitted to kill B. In other words, just as claim rights can sometimes be justifiably violated for the greater good, liberties, for the sake of the greater good, must sometimes not be exercised. See Steinhoff (2012a, 347, n. 15).
Quite a number of philosophers and legal scholars deny that lethal defense of property is ever justifiable – even of very expensive property. See, for instance, Rodin (2002, 43-48); Sangero (2006, 252-257); and especially Leverick (2006, section 7), see there also for numerous further references. This would suggest a categorical difference between property on the one hand and life and limb on the other. But then there is no reason to assume that how we may react to an infringement of property rights can teach us much about how we may react to the infringement of our right to life and bodily integrity.
I have provided a number of arguments for this precise claim, both on the legal and the moral level, in Steinhoff (2012a, section 4.4).
An anonymous reviewer raised this objection to my example.
I do not think that this would be “ideal” at all, but I set this issue aside here.
McMahan suggests that the passerby has “already devoted her time to the rescue,” (2014a, 121), but that seems to be clearly outweighed by being able to have personally saved a life in an emergency situation (this might give one an emotional “boost” and significant recognition).
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Acknowledgments
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 17610315). I am very grateful for this support. I am also grateful to an anonymous referee for useful comments.
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Steinhoff, U. The Liability of Justified Attackers. Ethic Theory Moral Prac 19, 1015–1030 (2016). https://doi.org/10.1007/s10677-016-9712-y
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DOI: https://doi.org/10.1007/s10677-016-9712-y