Necessity, Moral Liability, and Defensive Harm (original) (raw)
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Rights Forfeiture and Liability to Harm
A popular strategy to justify liability to punishment or defensive harm appeals to the idea of forfeiture, namely the idea that by acting in certain ways we lose some of our moral rights. I argue that this strategy gives rise to a dilemma. Theories that aim to justify liability to punishment or defensive harm by relying exclusively on forfeiture are incomplete because conceptually, the notion cannot do significant justificatory work unless we invoke some more fundamental moral principle to give substance to it (Incompleteness Objection). However, once we do that, the notion becomes redundant and can be dispensed with at the level of justification (Redundancy Objection). This is not to say that forfeiture should be banned from philosophical discourse. Two valuable roles are played by it: first, the notion performs an important heuristic function, in that it marks the difference between two distinct ways of justifying the infliction of harm; second, the notion works as an intermediate conclusion in arguments that ground the permissibility of inflicting harm in suitably fundamental moral notions, thereby facilitating discussion among those who disagree about what these notions are. These functions are by no means trivial, but they should not be confused with the justificatory role often attributed to forfeiture.
XII—What Follows from Defensive Non-Liability?
Proceedings of the Aristotelian Society
Theories of self-defence tend to invest heavily in 'liability justifications': if the Attacker is liable to have defensive violence deployed against him by the Defender, then he will not be wronged by such violence, and self-defence becomes, as a result, morally unproblematic. This paper contends that liability justifications are overrated. The deeper contribution to an explanation of why defensive permissions exist is made by the Defender's non-liability. Drawing on both canonical cases of self-defence, featuring Culpable Attackers, and more penumbral cases of self-defence, involving Non-Responsible Threats, a case is assembled for the 'Non-Liability First Account' of selfdefence. I Introduction. In canonical cases of individual self-defence, in which an Attacker culpably attacks an innocent Defender, something normatively eventful happens to both of them: the Attacker seems to lose normative powers, whereas the Defender appears to gain normative powers. When the conditions for permissible self-defence are in place, the Attacker is no longer protected by a right against harm which he used to have, and the Defender acquires a right, to inflict harm, which she did not used to have. The normative baton is somehow passed from one of these agents to the other. We can refer to this as the 'Central Normative Transition of Self-Defence', or the 'Central Normative Transition' for short (Lang 2014, p. 38). What explains the Central Normative Transition? What are the moving parts of that explanation, and how are they related to each other? These are the questions which concern me here. The argument unfolds as follows. §II sets up the basic picture in more detail. In §III, I outline the Falling Man case, in which the Defender is threatened by a falling person who is not exercising his agency at all. With the aid of a further familiar case, Rolling Stone, § §IV to VII explore various puzzles and slowly build up a case for what I call the Non-Liability First Account. §VIII returns to the canonical case of self-defence to see how, even here, the Non-Liability First Account has an important role to play.
Material contribution, responsibility, and liability (forthcoming in Journal of Moral Philosophy)
In her inventive and tightly argued book Defensive Killing, Helen Frowe defends the view that bystanders—those who do not pose threats to others—cannot be liable to being harmed in self-defence or in defence of others. On her account, harming bystanders always infringes their rights against being harmed, since they have not acted in any way to forfeit them. According to Frowe, harming bystanders can be justified only when it constitutes a lesser evil. In this brief essay, I make the case that some bystanders can indeed be liable to harm. They can be liable, I will argue, because they can be morally responsible for threats of harm, and in becoming responsible they can forfeit their rights. While bystanders cannot be responsible for initiating threats, they can become responsible for the persistence of threats, and for culpably failing to prevent them from being initiated in the first place.
The Morality of Strict Liability
1976
Accidents occur; personal property is damaged and sometimes is lost altogether. Accident victims are likely to suffer anything from mere bruises and headaches to temporary or permanent disability to death. The personal and social costs of accidents are staggering. Yet the question of who should bear these costs has turned the heads of few philosophers and has occasioned surprisingly little philosophic discussion. Perhaps that is because the answer has seemed so obvious; accident costs, at least the nontrivial ones, ought to be borne by those at fault in causing them.' The requirement of fault at one time appeared to be so deeply rooted in the concept of personal responsibility that in the famous Ives 2 case, Judge Werner was moved to argue that liability without fault was not only immoral, but also an unconstitutional violation of due process of law. Al
The morality of strict tort liability
Markets, Morals, and the Law, 2002
Accidents occur; personal property is damaged and sometimes is lost altogether. Accident victims are likely to suffer anything from mere bruises and headaches to temporary or permanent disability to death. The personal and social costs of accidents are staggering. Yet the question of who should bear these costs has turned the heads of few philosophers and has occasioned surprisingly little philosophic discussion. Perhaps that is because the answer has seemed so obvious; accident costs, at least the nontrivial ones, ought to be borne by those at fault in causing them.' The requirement of fault at one time appeared to be so deeply rooted in the concept of personal responsibility that in the famous Ives 2 case, Judge Werner was moved to argue that liability without fault was not only immoral, but also an unconstitutional violation of due process of law. Al
Buffalo Criminal Law Review, 2005
Dean Hurd and Professors Harel, Husak, and Simons have raised a number of interesting questions in connection with my argument for comparative criminal liability pursuant to which the victim's conduct should be taken into account for proper determination of the perpetrator's liability. 1 In "Victims and Perpetrators," I suggested that our rights are not static but depend on our actions. Based on that principle, which I called the principle of conditionality of rights, victims may reduce their right not to be harmed either voluntarily, by consent, waiver, or assumption of risk, or involuntarily, by an attack on some legally recognized rights of the perpetrator. If that happens, perpetrators should be entitled to a defense of complete or partial justification, which would eliminate or diminish their criminal liability. This article is an attempt to further develop the proposed theory of comparative criminal liability while addressing the most important issues brought up by the commentators. These issues can be divided into three
Rights-based Justifications for Self-Defense
International Journal of Applied Philosophy, 2022
I defend a modified rights-based unjust threat account for morally justified killing in self-defense. Rights-based moral justifications for killing in self-defense presume that human beings have a right to defend themselves from unjust threats. An unjust threat account of self-defense says that this right is derived from an agent's moral obligation to not pose a deadly threat to the defender. The failure to keep this moral obligation creates the moral asymmetry necessary to justify a defender killing the unjust threat in self-defense. I argue that the other rights-based approaches explored here are unfair to the defender because they require her to prove moral fault in the threat. But then I suggest that the unjust threat account should be modified so that where the threat is non-culpable or only partially culpable, the defender should seek to share the cost and risk with the threat in order for both parties to survive.