Punishing attackers in self-defence.

Lars Christie

First draft. Please do not quote, cite, or circulate.

What is the difference between a punitive act and a defensive act? How do the justifications of the two kinds of act differ? A number of theorists of punishment have advanced the idea that punishment and self-defence can be justified on similar grounds. Yet most theorists of self-defence reject the inverse claim: that harming others in self-defence can be justified on punitive grounds.

Severing the spheres of defensive and punitive harm allows theorists of defensive harm to advance claims that would have less plausibility if we thought these spheres were either governed by the same principles or by principles which overlapped to a great extent. To see this, first consider the widespread belief that non-culpable threateners can be liable to defensive force. With few exceptions, theorists of self-defence believe that an agent who would not be liable to punitive harm, can nevertheless lose her right against lethal defensive harm, even if she has not acted culpably in any way. 1 Secondly, consider the widespread belief that only agents who are casually connected to an objective threat can be liable to defensive harm. Again, there is a widespread consensus that causal responsibility for an objectively wrongful attempt is a necessary condition for liability to defensive harm. Futile attempts and subjectively wrongful but unknowingly justified threateners do not fulfil this condition, and are consequently not considered liable to any defensive harm on standard accounts of self-defence. Yet these agents are regularly held liable to punitive harm.

1 One notable exception to this consensus is Kimberly Ferzan, who defends the view that culpability is necessary for liability. (Ferzan, 2005, 2012)

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Categorically distinguishing the spheres of punitive and defensive harm removes the burden of explaining both why causal responsibility is necessary for liability to defensive but not punitive harm, and why culpability is necessary for liability to punitive but not defensive harm.

Contemporary authors on self-defence typically draw the distinction between punitive and defensive harm by assuming or accepting that the former harm can be given a retributivist justification. With this assumption in place, liability to defensive harm is contrasted with liability to punitive harm by pointing to the role that desert plays in the former context. I refer to the claim that that the two spheres can be distinguished by reference to the notion of desert as the separateness claim. In this essay, I direct two challenges to the separateness claim. The first challenge asks whether adherents of the separateness claim can provide a coherent and convincing answer to the question of how spheres of punitive and defensive harming interact. In particular, I will focus on the question of whether a person can become liable to both punitive and defensive harm for the same threat and the question of whether a victim may sometimes be permitted to inflict both punitive and defensive harm on his attacker. In the first section , I explore whether there can be a combined justification for the infliction of harm relying partly on punitive and partly defensive justifications. I point out that the possibility of combined justifications generates counterintuitive verdicts and severely complicates our overall assessment of permissible harm impositions in manner that adherents of the separateness claim so far have failed to address.

The second challenge I raise in this paper is directed at those who combine the separateness claim with the intuitively plausible view that culpability is relevant to liability to defensive harm (especially to considerations of proportionality and necessity). In the second section, I investigate whether culpability can be granted non-retributivist relevance in defensive harming. In particular, I discuss the whether the proposal advanced by Jeff McMahan that liability can be justified on distributive grounds is compatible with the view that culpability is relevant to liability

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to defensive harm. In the third section I show how the most plausible explanation of the relevance of culpability to liability appeals to the notion of morally weighted harms. Once this notion is granted, however, the plausibility of the separateness claim is severely undermined. Or so I will argue.

1 The interaction between desert and liability to defensive harm.

Insisting that the justification for punitive and defensive have separate and independent bases opens the possibility of a combined justification which appeals to both. Consider how McMahan suggests that desert may supplement liability to defensive harm in the following manner:

“Suppose that [A] is liable only to X amount of defensive harm but that successful defense requires that X+N amount of harm be inflicted on him. If [A] earlier committed a wrong for which he deserves to suffer N amount of harm, that can make it permissible to inflict X+N amount of harm on him, with the effect of successfully defending his potential victim.”2

Although McMahan thinks that it is better to institutionalize the infliction of deserved harms, a person who has not been punished according to his desert by legal institution “would not be wronged by an unauthorized individual who inflicted on him the harm he deserved”. 3 Similarly Ferzan claims that a victim may impose harm which is disproportionate on grounds of liability to defensive harm, if this harm is necessary to avert an unjust threat and if the this excess harm can be independently justified on grounds of desert (Ferzan, 2017, p. 14). 4 Ferzan argues “it seems odd to say that B [victim or third party] could impose X, and the state could impose Y, but no one may impose X+Y, as it seems that A cannot

2 http://peasoup.typepad.com/peasoup/2012/01/ethics-discussions-at-pea-soup-john-gardner-and-fran%C3%A7ois-tanguay-renauds-desert-and-avoidability-in-.html3 http://peasoup.typepad.com/peasoup/2012/01/ethics-discussions-at-pea-soup-john-gardner-and-fran%C3%A7ois-tanguay-renauds-desert-and-avoidability-in-.html4 Ferzan adds the following feature to the example: because of a procedural error by the state, the threatener will not be punished for his previous wrongdoing, and everyone knows this fact.

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complain about ultimately receiving X+Y” (.p. 17). Ferzan explicitly extends her view to cover agents who are not liable to any defensive harm at all, accepting that one may punitively kill culpable non-threatening agents in order to thwart attacks by other agents (Ferzan, 2017, footnoe 17). 5

The cases invoked by Ferzan and McMahan are ones in which the wrongdoer deserves to be harmed for a prior offense, yet this cannot be a necessary feature of the case. If desert and liability are distinct and independently legitimate justifications for harm imposition, culpable responsibility for the same wrongful threat should make the threatener liable to both X amount of defensive harm and N amount of punitive harm. By the lights of the combined justification, there is no reason to think that victim couldn’t impose X + N amount of harm derived from the same wrongful threat as a part of a necessary defence. This would mean that full culpable responsibility for the same wrongful act would count twice over: first to increase the amount of defensive harm it would be proportionate to inflict on the liable party to thwart the threat she poses (compared to if the threatener was minimally nor non-culpably responsible) and secondly to justify the additional infliction of deserved harm. This seems odd.

Moreover, if it can be permissible to impose harm on an aggressor exceeding the amount which would be defensively proportionate on the condition that the aggressor deserves this excess harm, then presumably if victim imposes harms that are unnecessary for defensive purposes this also would not wrong the threatener. This means that even if victim could avert a threat from a culpable aggressor at a trivial cost, she could

5 Larry Alexander (Alexander, 2016, p. 24) defends the same view. Helen Frowe, who also excepts the categorical distinction between desert and liability, admits that if we allow for victims to appeal to punitive justification for imposing harm on the on their threatener, we would also have to permit the imposition of punitive harm when the threatener is no longer posing a threat. Frowe takes this to be an argument for why the imposition of harm on punitive grounds on an aggressor during an attack cannot be permitted. Frowe seems to think that this amounts to an argument against the permissibility of punitive justification of harm, although she also concedes that “even though a victim ought not to inflict punishment herself, a culpable aggressor is nonetheless liable to punitive harm, and thus may not try to avert it” (Frowe, 2014, pp. 108-109).

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nonetheless permissibly inflict the full amount of punitive harm corresponding to the threatener’s desert without wronging the aggressor. 6

Needless to say, the possibility for combined justifications leads to highly revisionist conclusions that have not adequately explored by theorists of self-defense who accept the separateness claim. One consequence of the possibility of a combined justification of harm imposition is that theorist who restrict their theorizing to liability to defensive harm will be severely limited in their ability to deliver a verdict about whether an aggressor has been wronged by victims’ harmful action. All they can say – before they have also taken account for a person’s desert – is that the amount of harm impose by victim can be justified (or not) from the perspective of liability to defensive harm. As such, they cannot draw any general conclusions about permissibility, since we cannot know whether the threatener is wronged by what is (dis)proportionate or (un)necessary judged by standards of liability to defensive harm until we have also accounted for that persons’ desert.

One might think that the most obvious implication of introducing two separate bases which can justify the imposition of harm, would be to vastly increase the total amount of non-consensual harm an agent may impose on a wrongdoer. This does not, however, necessarily follow. If a threatener’s prior culpable offense can be invoked to justify harm which would be disproportionate on defensive grounds, then the combined justification should be open to the view that a person’s prior praiseworthy deeds may make them deserving of increased protection against harm as well. In fact, once we accept that desert is entirely different from liability and allow this to affect the permissibility of harm imposition, it is not clear why we should restrict our assessment of desert to the threatener, and not also to bystanders and victims. I lack the space to pursue this implication further here, but it should be clear that combined justification

6 Ferzan maintains that imposing deserved harm on a person when this is not necessary for defensive purposes would unjustified, because it would violate the social contract (2017, p. 26). It would not, however, wrong the threatener, who thereby could not defend himself against the imposition of such harm.

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will produce highly revisionist conclusions which would threaten to undermine much of the motivation for establishing the conditions for lesser evil and liability justification altogether, since judgements about the permissibility of the imposition of harm may always be altered by desert based considerations.

While none of these observations amount to decisive objections to the separateness claim, they do advert to the theoretical cost of defending it in terms of complexity and plausibility. As such it should at a very least serve to motivate us to take a closer look at how theorists of self-defence have tried to account for the role of culpability in self-defence without resorting to notions of desert.

2 The role of culpability in defensive harm

Although there is disagreement among liability theorists about the necessity of culpability for liability, there is broad agreement that culpability is relevant to liability. This relevance is intuitive across a range of considerations relevant in cases of self-defence. Consider first proportionality. It is very intuitive that the amount of force a victim or a third party may use to repel a person who through his own volition culpably and maliciously threatens to break a victim’s leg is greater than the amount of force a victim or a third party may use to repel a person who is either severely coerced or duped into believing that breaking victim’s leg is the only way to save the victim himself. The intuitive relevance of culpability to liability can also be seen if we consider the maximum number of aggressors we think can be liable to defensive harm in order to save a single person. If a victim is attacked by 10 fully culpable aggressors, it is intuitive to think that they are all liable to defensive harm and that victim may kill all of them in order to save his life. If we change the situation, such that the 10 threateners are all non-culpable – for instance because they are brainwashed or act under extreme duress – it is much less intuitive to claim that it would be

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permissible to kill all ten non-culpable aggressors in self-defence. 7 Consider also the requirement of retreat. If a person could either defensively kill or escape a non-culpable threat at some minor cost to himself, it seems plausible that he ought to do so, whereas the requirement seems much less demanding if the attacker were fully culpable. Finally and relatedly, the victim’s requirement for cost sharing seems much stronger in cases where she is facing a non-culpable threatener compared to cases where she faces a fully culpable threatener: If victim or third party could avert a lethal risk posed by a fully non-culpable agent by either accepting a severe burn or by killing the threatener, her reasons for so doing seem much stronger than if the if the threatener was posing the threat fully culpably. In all of these cases, it seems the culpability of the threatener is highly relevant to their liability to defensive harm.

2.1 Culpability and distributive justice

The challenge for authors who defend the separateness claim is to account for how culpability can be granted the intuitive role adverted to above without appeal to desert. One prominent attempt to do this comes from Jeff McMahan’s influential Responsibility Account. According to McMahan, a liability justification is grounded in considerations of justice in the distribution of unavoidable harm (2005, 2009a, 2009b, 2011a, 2011b, 2014). McMahan’s proposal is important because it holds out the promise of providing a justification for defensive harm which does not appeal to any notion of retributive justice, while also granting culpability relevance. If successful, this account would provide support for the separateness claim. Many authors on the topic of self-defence share

7 There is a further debate about whether a person’s liability to defensive harm is insensitive to the number of other threateners who simultaneously or sequentially threaten the same victim. This debate is irrelevant for our purposes, however. Even if we think liability is insensitive to numbers in this way such that a threatener remains liable to the same amount of defensive harm regardless of how many other threateners there are, it still seems impermissible to defensively kill ten non-culpable threateners to save the life of one person (even if it didn't wrong any one of the threatens considered individually). For discussion of this issue, see McMahan (2017)

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McMahan’s claim about the role of distributive justice to defensive harming, although they may not share his precise formulation of it.8 As McMahan states, “the determination of liability to defensive harm is a matter of justice in the ex-ante distribution of unavoidable harm” (McMahan, 2009b, p. 117).9 By the lights of McMahan’s Responsibility Account “liability to harmful preventive action arises from moral responsibility for a threat of unjustified harm. On that assumption, if I alone am responsible for the fact that either I or another person will unavoidably suffer harm, then I am liable to suffer that harm” (McMahan, 2014).

Importantly, a person need not have acted culpably in order to become morally responsible for an unjust threat. It is enough that they have acted in a way that foreseeably imposes a small risk of harm to an innocent. According to the Responsibility account, a conscientious driver, whose car through no fault of the driver veers off the road threatening to kill a pedestrian becomes liable to defensive harm. As McMahan explains “the Responsibility Account treats liability to defensive action as strict, as in the case of the conscientious driver. It says to all people who engage in socially permitted risk-imposing activities such as driving: ‘You know that if you drive you impose a very small risk on other innocent people. If you choose to drive, the consequences are your responsibility unless others also contribute to the outcome through their own risk-imposing activities. You will be liable to defensive action even if you satisfy the relevant standards of due care ’”(McMahan, 2005, p. 395).

McMahan also claims, however, that “a person’s liability is greater when his action is culpable, and the degree of his liability varies with the degree of his culpability.” (McMahan, 2005, p. 395). McMahan shares this view with a number of theorists of self-defence, and as illustrated 8 Among authors who share the idea that defensive harm is governed by principles of distributive justice are Michael Otsuka (2016) Saba Bazargan (2014), Philip Montague (1995), Kerah Gordon Solomon (2017) and until recently at Kimberly Ferzan (2005, 2012).9 See also “it is permissible as a matter of justice in the ex-ante distribution of harm to ensure that it will be the person responsible for the threat who is killed rather than an innocent bystander, assuming that other relevant considerations are equal.” (2012a, p. 299)

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above, it is also very plausible claim. 10 Nevertheless it is hard to square this claim with the position that liability arises from voluntary risk imposition. As McMahan makes clear, it is not the driver’s culpability that makes her liable to preventive harm. Rather, it is “The driver’s earlier voluntary choice to impose the risk on others provides the basis of her liability to defensive action” (McMahan, 2009b). The critical question for determining liability is thus not for what reason a person imposes a risk of unjust harm, but whether it is done voluntarily. McMahan recognizes that reasons for engaging in risk-imposing activities range across “a spectrum from culpable to morally neutral to praiseworthy.” (McMahan, 2005, p. 399). Yet he explicitly rejects the idea that positive moral reasons for risk-imposition can block liability if the risk eventuates. McMahan illustrates this point with the example of an ambulance driver who faultlessly veers off the road threatening to kill a pedestrian. According to McMahan, the ambulance driver is also liable to be killed in self-defence because “the Ambulance Driver took a risk of killing a person and now as a result of bad luck threatens to kill someone accidentally”, (p. 167). This is so, even if McMahan recognizes that the ambulance driver has a positive moral reason to drive. (2005:399 and 2009:165). This verdict invites an obvious objection. If we hold agents who voluntarily impose risk for praiseworthy reasons equally liable to those who do so for morally neutral reasons (if they end up causing harm to others), on what principle should we think that those who voluntarily impose risk for culpable reasons should be incur greater liability?

It may seem that the Responsibility Account tries to capture two different ideas that independently seem plausible, which are not mutually compatible. The first idea, which is the stated distributive rationale behind the Responsibility Account, is that agents who voluntarily engage in risk-imposing behaviours ought to carry the cost if the risk

10 Among those who hold the view that a persons’ culpability is relevant to liability are: Saba Bazargan, “Killing Minimally Responsible Threats,” Ethics 125 (2014): 114–36; Kai Draper, “Defense,” Philosophical Studies 145 (2009): 81; Rodin, “Justifying Harm,” pp. 80–84; Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law (Oxford: Oxford University Press, 2011), p. 332; and Suzanne Uniacke, “Proportionality and Self-Defense,” Law and Philosophy 30 (2011): 26

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materializes. This idea rests on a luck egalitarian notion that agents ought to carry the harms and benefits flowing from their own voluntarily choices when the possibility of such consequences were foreseeable.11 The second idea, which McMahan describes but does not fully explain or embrace, is the idea that the extent to which an agent ought to carry the cost of his own choices depends on the reasons why the agent made the choice. When McMahan claims that positive reasons for risk imposition cannot block liability attribution, he seems to rely on the first idea. When he claims that culpability increases a person’s liability, he seems to be relying on the second. As I will argue, the two are not clearly compatible.

2.1.1 Distributive justice and “fair shares”

According to McMahan the purpose of liability justification is to distribute harm made unavoidable by a morally responsible threatener “in a way that best approximates the ideally just distribution,“ where this means a distribution where “each person takes his or her fair share of the harm” (McMahan, 2011a, p. 155). By the lights of the luck – egalitarian idea, it would seem that the fair share of harm for the risk imposer is the entire amount. After all, if her basis for liability is her earlier voluntary choice to impose the risk on others, then this seems to suggest she should carry all of the cost. Moreover, the Responsibility Account is often stated in a language of rights. This language is used to express the claim that the when voluntary risk imposers – even non-culpable ones – impose unjust harm on victims, they violate their victim’s rights. 12 This reasoning also suggests that the victim is permitted to shift the entire unjust harm back to the risk imposer in order to protect her right. So both the luck egalitarian idea and the rights language advises that the entire amount of the unavoidable (and if imposed on victim, unjust) harm ought to be shifted back to the risk imposer.

11 For a spelling out of the Responsibility Accounts luck egalitarian underpinnings, see Gordon‐Solmon (2017)12 On McMahan’s account, the connection between unjust harm and rights violation is conceptual: Unjust harm is defined as harm that an agent has a right against (2005, p. 294).

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Nevertheless, McMahan suggests that the fair share is proportional to the risk imposer’s degree of responsibility (2005, p. 394; 2014, p. 26). According to McMahan only if the risk imposer is fully culpable does the risk imposer’s fair share of the ideal distribution of harm amount to the entire unavoidable harm. In a scenario where the risk imposer is minimally culpable or non-culpably responsible, her fair share of the ideal distribution only amounts to a portion of the total amount of the unavoidable harm. It is only in the case that harm is indivisible – as with the above case of the conscientious driver– that a non-culpable risk imposer becomes liable to an amount of harm that exceeds her fair share of the ideally just distribution. This is because, according to McMahan, “a liability justification for harming allocates unavoidable harms in the way that best approximates the ideally just distribution” (2011a, p. 155, my emphasis). Even if killing the conscientious driver in self-defence deviates from the ideal distribution of unavoidable harm, because imposing the entire amount of unavoidable harm on her exceeds her fair share of the harm, the deviation from the ideal distribution is smaller than if the innocent pedestrian was killed instead.

Things look different in cases where harm is divisible. If harm is divisible and the risk imposer is non-culpable, by McMahan’s lights the innocent victim ought to accept some harm if by so doing he can avoid shifting the entire threat of harm back to the risk imposer. Consider how McMahan describes the situation of facing a non-culpable threatener:

But because he is not culpable, the outcome in which he gets all the harm and I get none may not be ideally just. Even though I bear no responsibility for our predicament, I ought, if possible, to accept a certain amount of harm to avoid killing [the non-culpable threatener]. If, for example, I could prevent him from killing me by merely wounding him, though this would require me to suffer a significant harm, such as the loss of a finger, it might be that he would be liable only to be wounded, not to be killed, and I would have to accept, though I would not be liable to, the loss of a finger. For that would be my fair share. (McMahan, 2011a, pp. 155-156)

As plausible as McMahan’s claim sounds, it is not clear that the Responsibility Account can deliver this verdict. To see this, we must ask

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why the I, innocent victim in this case, must take this harm onto myself. After all, as the example makes clear, I bear no responsibility for the situation. The threatener’s minimal moral responsibility entails that he has made a voluntary choice to impose a risk of unjust harm on me, so the conditions of liability are fulfilled for his part. Why am I, on this reasoning, then obliged to take on a cost in order to prevent him from violating my rights? The loss of a finger would be an unjust harm so would also violate my rights.13 Which reasons does the Responsibility Account offer to justify why I should accept this unjust harm? By the luck egalitarian reasoning, I would not wrong the threatener if I shift unavoidable harm back to him. If the “fair share” of the threatener is proportional to his moral responsibility for creating the threat, in virtue of what is the share of harm that the innocent victim ought to carry under the ideal distribution count as fair? It may be tempting to argue that although the victim in fact has a right against having her fair share imposed on her, the value of the welfare makes it permissible or even required to infringe the victim’s right against this harm. Reaching for this explanation however makes it hard to explain why the victim shouldn’t equally be required to share the harm with the culpable threatener, if by doing so he would save the threatener a significant amount of harm.

Just at it is hard to make sense of the victims’ “fair share” by the lights of the Responsibility Account, it is similarly difficult to understand how harm in excess of the threatener’s fair share should be justified. Should a deviation from the ideal distribution of harm in favour or the threatener count for the same, morally speaking, as an equal sized deviation in the victim’s favour? To put the question differently, is it equally bad to impose harm on a morally responsible threatener above his fair share as it is to impose harm on the victim above her fair share? To simplify things, let assume harm could be measured in units. Assume the ideal distribution of harm, corresponding to threatener’s moral responsibility, is 90 units to the threatener and 10 units to the victim. Assume that a third party defending the victim has two equally efficient defensive

13 See McMahan (2011a, pp. 55-56)

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options which differ only in the way they distribute the harm. If the first inflicts 95 units of harm on the threatener and 5 units on the victim, whereas inflicts 85 units on the threatener and 15 on the victim, which should the third party choose? In either case one of the parties to the conflict will suffer 5 units more than their fair share.14 To say that a person is liable to defensive harm in excess of his fair share only on the condition that this is the defensive option that deviates the least from the ideal distribution is to deny that he is liable to it, since this condition treats threatener and the victim morally on par. These puzzle shows, I think, the trouble with combining both a luck egalitarian notion with the idea “fair shares” of harm. 15

In sum - the virtue of appealing to the idea of fair shares of harm corresponding to the moral responsibility of the parties’ is that it enables us to reach the intuitively plausible conclusions concerning harm sharing. Yet it comes at a cost, since now we need to say whether harm in excess of the threatener’s fair share should be weighted compared to the harm that exceeds victim’s fair share. If we say that should be weighed equally, it is not clear that that threatener is liable to any harm in excess of his fair share. If we say excess harm should be weighed differently, we cannot do so by reference to the threatener’s moral responsibility, since this is what we appealed to to justify the why his fair share is larger than the innocent victim’s share in the first place.

The upshot of this is not that we ought to reject the requirement that victims ought to take on some harm to themselves, if doing so allows them to save their minimally culpable threateners. Rather, we ought to reject that idea that this can be done by appealing to a combination of

14 There are further questions about whether deviations from the ideal distribution should be measured absolutely or relatively. In the case discussed, the option that imposed 15 units of harm would represent a 50% deviation from his fair share (10 units), whereas the option that imposed 95 units of harm on the threatener would merely be a 5.5.% deviation from his fair share (90 units). 15 Saba Bazargan discusses the same issue, but he only considers cases where harm is indivisible (impending car crash) and the victim must choose between accepting the entire harm or save himself by imposing it all on the threatener. Bazargan does not discuss the scenario where harm is divisible and a victim can chose between two defensive options, both of which deviate with the same magnitude from the ideal distribution of harm (Bazargan, 2014).

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culpability sensitive notions of distributive justice and luck egalitarianism either in isolation or in combination.

2.1.2 Understanding unavoidable harm

To make progress in our evaluation of McMahan’s claim that “a liability justification for harming allocates unavoidable harms in the way that best approximates the ideally just distribution,” (2011a, p. 155) we need a better grasp of what counts as “unavoidable harm”.16 This is important for our purposes, because it will help us understand relationship between the distributive rationale and the necessity and proportionality constraint on defensive harming. As noted, these constraints seem sensitive to the threateners culpability. If somehow these constraints could be linked to or derived from distributive considerations, this would open up an avenue for non-desert based role of culpability to defensive harm.

Unfortunately, it is not easy to unpack what “unavoidable harm” means. In some cases, where there is one fixed amount of harm (say total bodily paralysis) that either has to go to the victim, the threatener, or to be shared (such that both parties get partly paralyzed), there may be a sense in which there is a fixed harm in the abstract sense which is up for distribution.17 Yet, in many cases, there does not seem to be clarity about what counts as fixed or unavoidable harm. To see this, consider the following case:

The threatener is minimally culpable for causing a lethal risk of harm to the victim. A third party can defend the victim in either of two ways: she can either avert the threat by imposing 20 units of harm on the threatener, or avert the threat by imposing by a defensive option that foreseeably imposes 10 units of harm on the victim.

What counts as the unavoidable harm in this context? If we think unavoidable harm corresponds to the minimally harmful outcome, then only 10 units of harm is strictly speaking unavoidable in this context. If

16 See also (McMahan, 2011b) “Liability,[…]arises only when harm is unavoidable and must be distributed” 552. And “liability is determined by considerations of justice in the distribution of unavoidable harm (how we fight)17 McMahan sometimes makes this assumption explicit ((2011a, p. 155)

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that is so, then there cannot be liability justification for imposing 20 units of harm on the threatener. 20 units of harm imposed the threatener is not the allocation of unavoidable harms that best approximates the ideally just distribution for the simple reason that isn’t an allocation of unavoidable harm at all, on the understanding we are now considering. Clearly then, this cannot be the understanding of unavoidable harm McMahan has in mind, since it would be unable to deliver the intuitive verdict in the case above the third party ought to impose 20 units of harm on threatener rather than chosing a defensive option that averts the threat while also imposing 10 units on the victim. This strict interpretation of unavoidable harm also makes it impossible to defend the view that a victim may sometimes impose more defensive harm on a culpable aggressor than what the aggressor would has made unavoidable by threatening victim. If all that is up for distribution is harm equivalent of that which is made unavoidable by threatener, then it seems a victim could not, as a last resort, kill a person who attempts to rape him (on the plausible assumption that death is worse that rape). 18

2.1.3 Comparative versus distributive justice

From the preceding discussion, it seems McMahan ought to drop the assumption that liability is about the distribution of unavoidable harm, since the term cannot be given a clear meaning when there is more than one defensive option and since it denies victims the option of imposing harm, if necessary, above the amount the wrongdoer threatens to impose. Let’s consider a closely related claim, which McMahan occasionally resorts to, that “liability is essentially a matter of justice in the distribution of harm when some harm is unavoidable”(McMahan, 2016, p.

18 John Gardner and Francois Tanguay-Renuald has argued that we should understand the term ‘avoidable harm’ as morally unavoidable harm (Gardner & Tanguay-Renaud, 2011, pp. 13-15). I doubt that this is can rehabilitate the role the concept plays in the Responsibility Account. What we deem as morally unavoidable harm should presumably be a substantial output of a moral argument, not something that is assumed. If we claim that imposing 20 units of harm on the threatener amounts to morally unavoidable harm, there seems to be no further question about whether these morally unavoidably units of harm ought to be distributed, or whether it exceeds the amount of harm which the threatener is liable to.

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192).19 On this formulation what is up for distribution is harm, when some harm been made unavoidable by the threatener. In this formulation, ideal distribution could be expressed merely as a ratio, without reference to any fixed amount of unavoidable harm. 20 While avoiding the problems with the notion of “unavoidable harm” this claim invites several other objections. Conceived in this manner distributive justice will not inform us about whether a share, which is fair in comparison with the victim’s share, is proportionate or necessary to the harm averted. We can easily imagine a situation which where a third party has two different defensive option which both will avert a given threat, the first of which imposes 9 units of harm to the threatener and 1 unit to victim, the other 90 units on the threatener and 10 to the victim. On the assumption that under an ideal distribution, the threatener’s fair share would be 90 units and the victim’s would be 10, both defensive options would satisfy the requirements of distributive justice. Yet only the latter defensive option satisfies the demands of proportionality and necessity. Not only will proportionality and necessity be external to and independent from consideration of distributive justice, they will also take priority over it. To see this, we can make a slight amendment to the case above by introducing a third defensive option, where the third party can avert the threat by imposing 1 unit of harm on the victim and 2 on the threatener. In this scenario, the third party ought to choose this option, even though it plainly is not distributively just.

To see how McMahan mixes ideas of fair shares and distributive justice with considerations of comparative justice, we may review the above quoted paragraph again:

Even though I bear no responsibility for our predicament, I ought, if possible, to accept a certain amount of harm to avoid killing [the non-culpable threatener]. If, for example, I could prevent him from killing me by merely wounding him, though this would require me to suffer a significant harm, such as the loss of a finger, it might be that he would be liable only to be wounded, not to be killed, and I would have to

19 For an identical formulation, see also McMahan (2014, p. 25). McMahan does not make a point of the fact that his formulation changes the distribuendum from “unavoidable harm” to “harm”. 20 See McMahan for (2011a, p. 155) a formulation of the ideal distribution in percent.

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accept, though I would not be liable to, the loss of a finger. For that would be my fair share. (McMahan, 2011a, pp. 55-56)

To say that I am required to take the loss of a finger because it is my “fair share” is misleading. It is misleading because the only sense in which it is a share of anything, is as a share of the total amount of harm inflicted and the harm suffered, considered together, where the other share is wound suffered by the threatener. But contrary to what McMahan writes, it is not because my lost finger and his non-lethal wound represent or approximate an ideal distribution of harm that it is obligatory for me to take on the loss of a finger. Rather, this distribution is demanded by the necessity requirement, which requires that I chose the least harmful means of defending myself, even when so doing requires taking on a small cost to myself. It is not the relationship between the magnitude of my harm and that which the threatener actually suffers which makes it obligatory for me to suffer the broken finger. It is the relationship to the harm (death) that he would have had to suffer, had I not been willing to take on the cost, which makes it obligatory for me to accept a broken finger. Distributive justice and fair share play little or no justificatory work.

In short, the answer to the question “to whom shall harm be distributed?” is not given by ideals of distributive justice, but by comparative justice. Questions of comparative justice are answered by considerations of proportionality and necessity, where the proportionally calculations compare the consequences of a given defensive option with the anticipated harm, and the necessity assessment compares the expected consequences of one defensive option with those of alternative means of achieving the same defensive aim. Once we realize that questions of distributive justice must be considered separately from, and be subordinated to, the questions of proportionality and necessity, this severely deflates the role of distributive justice in the determination of liability to defensive harm. 21 As I will argue in the final section, having 21 I do not mean to rule out considerations of distributive justice entirely. In the marginal cases where two or more defensive options impose the same amount of morally weighted harm (more on this notion in section 3), we ought to choose the alternative which distributes that harm in fair manner. There is also reason to think that a

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established that necessity and proportionality constraints is independent to distributive justice makes it hard to explain the role of culpability to defensive harm without while upholding the strict distinction between the justification for defensive and punitive harming.

3 Proportionality, necessity and morally weighed harms

If the proportionality and necessity constraints on defensive harming cannot be derived from principles of distributive justice, then how can these constraints be derived? A closer look at proportionality and necessity assessment reveals that not all harms are weighed equally. Harms to the threatener count for less, morally speaking, than harms to the victim. Furthermore, harms to fully culpable aggressors count for less than harms to non-culpable or non-culpable threateners. Although many authors seem to shirk from stating the idea explicitly, I submit that the idea that a threatener’s degree of culpability is relevant to proportionality necessarily entails that we discount the badness of harm befalling such threateners vis-à-vis their non-culpable or minimally culpable counterparts, and by a steeper rate their victims. There is no other way – that I can see anyway – of making sense of the idea that it can be morally proportionate to inflict more harm than the harm which is averted. McMahan expresses the basic idea that harms to people who are liable are morally discounted in the proportionality calculations in this manner: “Moreover, in further contrast with deserved harms, harms to which people are liable are bad not only for those who suffer them but also from an impersonal point of view. Although their weight is discounted in proportionality calculations, they are never of merely neutral or positive

threatener may be liable to pay compensations to the victim after the threat has been averted, if the necessity constraint demanded that victim chose a defensive option which unfair distribution of harm between himself and threatener (i.e where victim must chose a defensive options which entails taking on some cost to himself, whereas threatener is allowed to escape unharmed, because the alternative would have been to gravely wound or kill threatener)

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impersonal value, unless of course they are harms that the victim also deserves to suffer”(McMahan, 2009a, p. 9). 22

While the statement is intended to distinguish between harms to which people are liable and deserved harms, it also reveals a deeper and crucial affinity between liability and desert. The similarity is the commitment to impersonal assessment of harms. Both liability and desert appeal to the impersonal value of harm in their justification for harm imposition. The difference is not in kind, but merely in degree. Deserved harms are, on McMahan’s view, impersonally good whereas harms to which one is liable are merely less impersonally bad than harms to which one is not liable. As such, neither liability nor desert are claims about what is good or bad for the individual, but rather are claims about what is good or bad from an impersonal, moral, point of view.

The same view can be expressed by the notion of moral weighting of harms. Several authors resort to the notion of weighted harms to explain why it may be permissible to shift a given harm from a victim to a threatener, or to impose more harm on the threatener than what threatener would otherwise impose on victim. (Frowe, 2014, pp. 146, 193; Lazar, 2012, p. 7; McMahan, 2016, p. 186). This notion of morally weighted harm is employed to argue for moralized understanding of necessity constraint. On a non-moralized notion of the necessity constraint, the constraint is simply a requirement that a victim ought to choose the least harmful means of defending herself. However, understood this way, the requirement seems implausibly to require that victim ought to choose a defensive option which involves a accepting harm to herself or a bystander whenever this reduces the cost to the threatener by slightly more. By attributing less moral weight to the harms suffered by the threatener, we are able to explain why a victim need not minimize harm whenever so doing reduces the overall amount harm suffered by the parties to the conflict consider together. 22 See also Rodin (2011, p. 99), Bazargan (2014, p. 127) and McMahan (2012b, p. 675) for similar formulations of the discounting view. I should note that McMahan at one point expresses skepticism about this way of putting it (2011a, p. 151), but given that he still uses the idea of moral weighting of harms (see below), indicates that he still appeals to the same underlying idea.

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It is important to note that we cannot merely explain the reduced moral weight by pointing to the liability of the threatener or, alternatively, whether the harm is imposes intentionally or merely foreseeably. What we are asking is: i) why two threateners may be liable to different amounts of harm for threats of the same magnitude, ii) why the necessity constraint permits different defensive option, and iii) why the requirement of retreat is unequally demanding, when all that is different between the two threateners is their level of culpability. The idea that the moral value of harm changes depending on the culpable responsibility of the agent who suffers it, is so close to desert that some, like Shelly Kagan, chose to call this idea a moderate view of desert (Kagan, 2012, p. 26). The moderate view of desert denies that suffering is-every impersonally good, but merely insists that it is morally worse if an innocent person suffers rather than culpable person, all else equal.23

Given that culpability-sensitive weighting of harms is so closely related to the retributivist idea of desert also means that it inherits some of the challenges reviewed in the first section following from the idea of a combined justification. If non-relevant desert can be appealed to a combined justification, then perhaps the badness of the harm imposed on the threatener can be also discounted by appeal to non-relevant culpability? Once we allow that harm to a person can be morally discounted during a lethal wrongful threat, we need an argument for why the moral weight should be restored immediately after the threatener has gone on to kill his victim. 24 It won’t do to merely insist that the moral weight is only reduced when harm is imposed for defensive purposes, since we can easily imagine harming the recent murderer as a means of preventing another murder. Neither will it do to insist that the culpability has to be connected to the victim for whom the defensive harm is imposed, since then we could presumably harm the aggressor at a later point for the victim’s benefit (if she survives the first attack). I should

23 The same view is expressed by other authors, under the label “fault forfeits first”. See for instance Joel Feinberg (1970, p. 218)and Richard Arneson (2006, p. 672).24 This is an objection that to my knowledge was first raised by Judith Jarvis Thomson. (1991, pp. 285-286)

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note that I don’t mean to raise these objections as a reductio, only to illustrate the plethora of questions that need to be addressed anew once we realize that a facile distinction between the role culpability in defensive and punitive harming amounts to a mere stipulation which cannot be maintained.

4 Conclusion

In a seminal articles on self-defence Judith Jarvis Thomson defended the counterintuitive claim that whether an aggressor who threatens with lethal or grave bodily harm is morally innocent (because hypnotized) or fully culpable, is irrelevant to the victims’ defensive rights (1991, pp. 285-286). What is interesting about her view in our context is that she reaches her conclusion by relying on the separateness claim. Because Thomson believes punishment and self-defence is distinguished by the role desert plays in the latter, and because private citizens are not morally permitted to dole out punishment as they see fit, a theory of self-defence cannot avail itself with the notion of moral fault (or culpability), according to Thomson (p.285). Thomson thus denies that one can both maintain the separateness claim and invoke the notion of culpability in one’s theory of self-defence. Recognizing that she cannot have it both ways, Thomson (largely) gave up on the role of fault in defensive harming. This article shares the same starting point as Thomson – namely that one cannot easily combine both the separateness claim and the claim that culpability is relevant to defensive harming. Unlike Thomson, however, I have suggested that we should go the other way – rather than give up our belief in up the role of culpability in defensive harming, we should question our belief in the separateness claim.

This article has focused on the position that denies Thomson and my starting point on this issue, criticising those who defend the separateness claim while also insisting on the non-retributive relevance of culpability to defensive harm. I have argued this position leads to a range of problems.

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Firstly the possibility of a combined justification which partly appeals punitive and partly on defensive justifications, leads to two main problems: i) our verdicts about liability to defensive harm becomes in effect, mere pro tanto conclusions, until we’ve also considered whether the parties involved could be deserving of punitive harm, and: ii) it allows culpability for the same act to “double count” – by both discounting the impersonal badness of the defensive harm imposed on the aggressor and by making the punitive harm imposed on the same aggressor impersonally good.

Secondly, by focusing on McMahan’s influential Responsibility Account, I’ve argued that the appeal to distributive justice cannot inform us about considerations about proportionality and necessity, nor how these constraints are informed by culpability. While the notion of “fair shares” and “ideal distribution of harm” may have some relevance, it misplaces focus towards the distribution between victim and threatener of the actual harm associated with a given defensive option. This focus is misplaced, I argued, since what we ought to care about it better described in comparative or counterfactual terms: Actual defensive harm inflicted compared to threatened harm averted (i.e. the proportionality constraint), or to the defensive harm that would have been inflicted if victim had employed other defensive strategies (i.e. the necessity constraint).

Thirdly, I have argued that advocates of the separateness claim frequently invoke the idea that harms to an aggressor are carry less moral weight than harm to a non-culpable threataners or to a victim. This notion, I have argued, is not categorically different from a retributivist notion of desert, since it allows the impersonal badness of harm befalling a person to depend on that persons’ culpable responsibility for wrongdoing.

What then, follows, if we are to give up the separateness claim? One might expect that giving up the separateness claim would put some pressure on aligning one’s view on fundamental moral notions across the

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spheres (if indeed they are spheres and not merely distinct socially practices carved up for pragmatic reasons). Space prohibits me from exploring this issue at length, so I will mention only two such issues here: Moral luck and one’s view on desert. As pointed out in the introduction, the separateness claim is sometimes used ward off analogies between criminal law and defensive harm concerning the role of moral luck. If the separateness claim is undermined or given up, we ought to reconsider whether causal responsibility should be a necessary requirement for liability to defensive harm when it is not for liability to punitive harm. Moreover, giving up the separateness claim also puts pressure on the view that non-culpable responsibility is sufficient for liability to defensive harm, when it is not sufficient for liability to punitive harming. Giving up the view that punitive and defensive harming belong to fundamentally different spheres of justice, may also affect our view on punishment. We may especially worry about the consistency of holding, in effect, a moderate view about desert it comes to defensive harming and a retributivist view about desert when it comes to punitive harming. It seems odd that the culpable responsibility is capable of doing two metaphysical operations at the same time: both changing the impersonal value of the defensive harm bad to less bad, and changing the value of punitive harm from impersonally bad to impersonally good. Without the separateness claim, there seems to be pressure to align one view about culpability and desert in both spheres.

To sum up, at least I hope that this article has made one thing clear. Whatever one may think of the idea that the justification for punitive and defensive harm is fundamentally different (and that the difference is explained by the role of desert in the former), we cannot plausibly cabin our investigation into the justification of defensive harm simply by stipulating that the justification of punitive harm belongs to a different theoretical endeavour altogether. If punitive and defensive justifications in fact to belong to different moral spheres, we should consider how they may interact and combine; if they don’t, we should consider how to unite our punitive and defensive theories accordingly.

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Alexander, L. (2016). Recipe for a Theory of Self-Defense: The Ingredients, and Some Cooking Suggestions The Ethics of Self-Defense. New York: Oxford University Press.

Arneson, R. J. (2006). Just Warefare Theory and Noncombatant Immunity. Cornell Int’l LJ, 39, 663.

Bazargan, S. (2014). Killing Minimally Responsible Threats. Ethics, 125(1), 114-136.

Feinberg, J. (1970). Doing & deserving; essays in the theory of responsibility. Ferzan, K. K. (2005). Justifying Self-Defense. Law and Philosophy, 24(6), 711-

749. Ferzan, K. K. (2012). Culpable aggression: The basis for moral liability to

defensive killing. Ohio State Journal of Criminal Law, Forthcoming. Ferzan, K. K. (2017). Defense and Desert: When Reasons Don’t Share. San

Diego Law Review, Forthcoming. Frowe, H. (2014). Defensive Killing: An Essay on War and Self-Defence: Oxford

University Press.Gardner, J., & Tanguay-Renaud, F. (2011). Desert and Avoidability in Self-

Defense. Ethics, 122(1), 111-134. Gordon‐Solmon, K. (2017). What Makes a Person Liable to Defensive Harm?

Philosophy and Phenomenological Research. Kagan, S. (2012). The geometry of desert: Oxford University Press.Lazar, S. (2012). Necessity in Self-Defense and War. Philosophy and Public

Affairs, 40(1), 3-44. McMahan, J. (2005). The basis of moral liability to defensive killing.

Philosophical Issues, 15(1), 386–405. McMahan, J. (2009a). Killing in war. Oxford: Clarendon Press.McMahan, J. (2009b). Self-defense against morally innocent threats. In P. H.

Robinson, S. P. Garvey, S. Garvey, & K. K. Ferzan (Eds.), Criminal law conversations. New York: Oxford UP.

McMahan, J. (2011a). Duty, Obedience, Desert, and Proportionality in War: A Response. Ethics, 122(1), 135-167. doi:10.1086/662631

McMahan, J. (2011b). Who is Morally Liable to be Killed in War. Analysis, 71(3), 544-559. doi:10.1093/analys/anr072

McMahan, J. (2012a). Individual Liability in War: A Response to Fabre, Leveringhaus and Tadros. Utilitas, 24(02), 278-299. doi:doi:10.1017/S0953820812000131

McMahan, J. (2012b). Just War In R. E. Goodin, P. Pettit, & T. W. Pogge (Eds.), A companion to contemporary political philosophy (Vol. 105, pp. 669 - 677): John Wiley & Sons.

McMahan, J. (2014). Proportionate Defense. J. Transnat’l L. & Policy 23 1-36. McMahan, J. (2016). The Limits of Self-Defense. Christian Coons and Michael

weber (eds.), The Ethics of Self-Defense, 185-211. McMahan, J. (2017). Liability, Proportionality, and the Number of Aggressors

The Ethics of War. New York: Oxford University Press.Montague, P. (1995). Punishment as societal-defense: Rowman & Littlefield.

24

Otsuka, M. (2016). The Moral Responsibility Account of Liability to Defensive Killing. In C. Coons & M. Weber (Eds.), The Ethics of Self-defens: Oxford University Press.

Rodin, D. (2011). Justifying Harm. Ethics, 122(1), 74-110. doi:10.1086/662295Thomson, J. J. (1991). Self-defense. Philosophy and Public Affairs, 20(4), 283-

310.

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