Abstract
The best theory of killing under non-consequentialism , forfeiture theory, has serious problems. At the heart of morality is an attempt to tell people how to behave when there is conflict (for example, threats and violence). If forfeiture is the best non-consequentialist theory and it fails to provide an adequate account of conflict, then non-consequentialism fails at a task that is central to morality.
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Notes
- 1.
A forfeiture theory of just war killing can be seen in David Rodin, War & Self-Defense, pp. 70–77. People who assert that a criminal forfeits some of his moral rights include Stephen Kershnar, “The Structure of Rights Forfeiture in the Context of Culpable Wrongdoing,” 57–88, A. John Simmons, “Locke and the Right to Punish,” 238–252, Judith Jarvis Thomson, The Realm of Rights, 365–366, Vinit Haksar, “Excuses and Voluntary Conduct,” 317–329, Murray Rothbard, The Ethics of Liberty, Alan Goldman, “The Paradox of Punishment,” 30–46; Roger Pilon, Criminal Remedies: Restitution, Punishment, or Both, 348–357. These theories differ with regard to whether right forfeiture is a fundamental feature of rights or explained by a more fundamental principle.
- 2.
See Jeff McMahan, Killing in War, 51–60, Jeff McMahan, “On the Moral Equality of Combatants,” 377–393, Jeff McMahan, “The Basis of Moral Liability to Defensive Killing,” 386–405.
- 3.
See George Fletcher, Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory, 367–390, esp. 371.
- 4.
For a similar conclusion, see A defense of the notion that culpability, responsibility, and agency are not necessary for liability to defensive violence, see Judith Jarvis Thomson, “Self-Defense,” 283–310 and Judith Jarvis Thomson, “Self-Defense and Rights”.
- 5.
Forfeiture provides a unified account of these constraints, perhaps as primitive features of how forfeiture works. For a discussion of these constraints independent of forfeiture, see Brian Orend, The Morality of War, ch. 4.
- 6.
Older versions of this paradox can be seen in Stephen Kershnar, “Consent-Based Permission to Kill People and Break Their Things,” 34–53. For a developed exploration of this argument, see Tim Campbell, personal communication.
- 7.
See Judith Jarvis Thomson, “The Trolley Problem,” 1395–1415 and Phillipa Foot, “The Problem of Abortion and the Doctrine of the Double Effect,” 5–15.
- 8.
Ronald Dworkin, “Rights as Trumps,” pp. 153–67 and Alan Gewirth, “Are There any Absolute Rights?” pp. 81–109. See, also, Hillel Steiner, An Essay on Rights.
- 9.
Older versions of this paradox can be seen in Otsuka, “Killing the Innocent in Self-Defense,” 74–94, esp. n. XX, Stephen Kershnar, “Consent-Based Permission to Kill People and Break Their Things,” 34-53, Stephen Kershnar, “Fetuses are like Rapists: A Judith-Jarvis-Thomson-Inspired Argument on Abortion,” 88–109. For a developed exploration of this argument, see Tim Campbell, personal communication.
- 10.
While it is not clear that people have such fantasies, people frequently have violent sexual fantasies or would do so were they to watch violent pornography and one can imagine other scenarios in which people consent to sex only if the other does not. On one study, over half of the men shown depictions of rape were aroused by it. The experimenters were able to get many of the remaining men aroused by getting them to drink alcohol, think that they had drunk alcohol, change the narration from a man to a woman, or inform them that sexual arousal during the depiction of rape was normal. See Alfred Heilbrun and David Seif, “Erotic Value of Female Distress in Sexually Explicit Photographs,” pp. 2447–2457. This study is dated, but I know of no more recent study that explores the tendency of minor changes to arouse previously non-aroused viewers of distressed females in sexual situations. In several studies, a substantial percentage of women (51% in one study) fantasized about forced sex with a man. L. A. Pelletier and E. S. Herold, “The Relationship of Age, Sex Guilt and Sexual Experience with Female Sexual Fantasies,” pp. 250–256. Other studies showing the frequency of forced sexual fantasies include D. S. Strassberg and L. K. Licker, “Force in Women’s Sexual Fantasies,” pp. 403–414; D. Knafo and Y. Jaffe, “Sexual Fantasizing in Males and Females,” pp. 451–462. On some interpretations, these are rape fantasies. On some accounts, sexual force fantasies are not rape fantasies. S. Bond and D. Mosher, “Guided Imagery of Rape: Fantasy, Reality, and the Willing Victim Myth,” pp. 162–183. These fantasies correlate with what appear to be signs of sexual health. Specifically, these fantasies correlate with erotophilia and openness to sex. There also appears to be an indirect relation between a lower level of sexual guilt and forceful sexual fantasy. One researcher, Julie Shulman, hypothesizes that in women, lower sexual guilt brings about greater erotophilic pleasure, which then increases the use of forceful sexual fantasies. The first two claims can be seen in Julie Shulman, “Guilty or Not? A Path Model of Women’s Sexual Force Fantasies,” The Journal of Sex Research, vol. 43 (2006), pp. 368–377.
- 11.
See McMahan, Killing in War, 51–60, McMahan, “On the Moral Equality of Combatants,” 377–393, and McMahan, “The Basis of Moral Liability to Defensive Killing,” 386–405.
- 12.
The argument works for Jeff McMahan’s moral responsibility theory and a culpability theory of forfeiture. The culpability theory asserts that a person forfeits if and only if he is blameworthy for attacking based on his belief or negligence with regard to the other person’s not being an unjust threat. See, also, the Doctrine of Double Effect.
- 13.
For theories of desert that are compatible with consequentialism, see Fred Feldman, “Adjusting Utility for Justice: A Consequentialist Reply to the Objection from Justice,” 567–585, Thomas Hurka, Virtue, Vice, and Value chs 1–2; Thomas Hurka, “The Common Structure of Virtue and Desert,” 6–31; Shelly Kagan, “Equality and Desert,” 298–314; Neil Feit and Stephen Kershnar, “Explaining the Geometry of Desert,” 273–298. For a rights-based account, see Amartya Sen, “Rights and Agency,” 3–39.
- 14.
The idea for this case comes from Otsuka, ibid.
- 15.
See Van Inwagen 2000. “The Eighth Philosophical Perspectives Lecture: Free Will Remains a Mystery.” 1–19.
- 16.
The benefit or interest theory asserts that rights function to protect interests. As such they are constituted by a claim. See, e.g., David Lyons, Rights, Welfare and Mill’s Moral Theory, Neil MacCormick, “Rights in Legislation,” 189–209; Joseph Raz, The Morality of Freedom, and Matthew Kramer, “Rights Without Trimmings,” 7–111.
- 17.
For a classic statements of it, see R. B. Brandt, Ethical Theory, J. O. Urmson, “The Interpretation of the Moral Philosophy of J. S. Mill,” 144–152, S. Toulmin, The Place of Reason in Ethics. For more recent accounts, see Brad Hooker, Ideal Code, Real World: A Rule-Consequentialist Theory of Morality, T. Mulgan, The Demands of Consequentialism.
- 18.
See J. J. C. Smart, “Extreme and Restricted Utilitarianism,” 344–354.
- 19.
The idea for this objection comes from Smart, “Extreme and Restricted Utilitarianism,” 344–354.
- 20.
See B. Eggleston, “Conflicts of Rules in Hooker’s Rule-Consequentialism,” 329–350.
- 21.
This idea and the two arguments that follow come from Brad Hooker, “Rule Consequentialism”.
- 22.
I am very grateful to Randy Dipert, Jim Delaney, John Keller, Bob Kelly, Jake Monahan, B. J. Strawser, and especially Neil Feit and David Hershenov for their extremely helpful comments and criticisms of this paper. I am also grateful to the PANTC and Blameless Buffalo Reading Groups for discussing the ideas that led to this paper.
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Kershnar, S. (2018). Problems with Forfeiture. In: Total Collapse: The Case Against Responsibility and Morality. Springer, Cham. https://doi.org/10.1007/978-3-319-76950-9_3
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