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Self-Defense, Justification and ExcuseAuthor(s): Larry AlexanderSource: Philosophy & Public Affairs, Vol. 22, No. 1 (Winter, 1993), pp. 53-66Published by: Wiley
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8/11/2019 10. Alexander Larry, Justification and Excuse
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LARRY
ALEXANDER
Self-Defense,
Justification,
and
Excuse
In
Self-Defense, Judith Thomson
presents us with six
scenarios in
which someone must kill another
to save his own life.'
In three of the
scenarios,
she
argues,
the
killing
is
justifiable,
not
merely excusable.
That is, the
killingvindicates
the
killer'srights
and
does not
violate the
victim's rights; it is not merely an understandable houghregrettablehu-
man reaction. In the other three
scenarios,
the
killing
is
wrong,
a
viola-
tionof the
victim's rights.Whether t
is
nonetheless excusable is an
issue
Thomson does not
address.
At the outset of
her
article,Thomson notes that
there is an
alternative
account
of
self-defense,
one
that
deems
at
least
some
of her
justifiable
killings
in
self-defense
not
justifiable,
but
merely
excusable
(p.
285).
1
do
not know whom
she
had
in mind as
belonging
to
this
camp,
but
I
myself
do.2
Moreover,
I have
not been
persuadedby
Thomson's argu-
ments that justifiable, as opposedto excusable, self-defense extends to
as many cases as she contends.
On the other
hand,
I shall
argue that
some of
the
cases in which
Thomson
rejects
justified
self-defense are
cases in
which
we should
accept
it.
My
bottom
ine is
that,
unlike Thom-
son, I
do
not
believe we have a
coarse-grainedright
not
to
be
killed,
a
right
that
gives
rise
to a
justification
to use
deadly
force to save
our life
whenever
we
are
not
aggressing against
or
threatening
the lives of
oth-
ers. I
believe,
rather,
that
we have
only
a
fine-grainedright
not
to
be
I wish to
acknowledge
the invaluable
comments
and
criticisms of Leo
Katz, Judith
Thomson, and Steven Walt.
i.
Judith Jarvis
Thomson,
Self-Defense,
Philosophy
& Public
Affairs 20,
no.
4 (Fall
I991):
283-310. Otherwise unidentified
page
references are
to
this
article.
2.
See
my
Justification
and Innocent
Aggressors,
Wayne
Law
Review
33 (I987):
1177-89.
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54
Philosophy
&
Public
Affairs
killed;
and
this
fine-grainedright may
or
may
not
be
threatened in two
of the scenarios in
which
Thomson permits killing in self-defense, and
may
or
may
not be violated in two of
the scenarios in which
Thomson
forbids killing in self-defense. Whether this right is threatened or vio-
lated
depends
on
the existence
of
further facts.
I.
THOMSON's
ARGUMENT
Thomson builds
her case
using
a
familiarmethodology hat tests princi-
ples against
intuitions and vice
versa.
She
gives
us her
intuitive judg-
ment as
to
the
permissibility
of
self-defense
killing
in each of
her six
scenarios. She constructs
more
general principles
from
these
intuitive
judgments.
She
tests
the
principles by asking
how
they handle some
problem
cases as
compared
to
alternative
principles.
Her six
scenarios
are as follows:
Villainous
Aggressor:
A
driver of a truck
is
villainously aggressing
against you by trying
to
run
you
over. You
can
stop
him
only by
blow-
ing up
the
truck,
which
will kill
him.
(pp. 283-84)
InnocentAggressor:
The
same
as Villainous
Aggressor,except
that
the
driver s
morally
blameless
(perhaps
he has been
duped
or
doped). (p.
284)
Innocent Threat:
A
fat
man
accidentally
alls
from a
cliff above
you. If
you shift the positionof your awning, he will be deflected away from
you
and be killed. If
you
do
not
do
this,
he will fall on
you
and
kill
you,
though
he will not be killed.
(p. 287)
Substitution-of-a-Bystander(Trolley):
A
villain
has started a
trolley
down a track toward
you.
You cannot
get
off the track in time or
stop
the
trolley;
and if
you
do
nothing, you
will
be
killed. You
can, however,
pull
a
switch and
deflect the
trolley
onto a
siding,
where it will kill a
bystander.(pp.
289-go)
Use-of-a-Bystander:The same as Trolley,except that the only way you
can save
yourself
is
to shoot a
bystander,
who will
fall
on the
tracks
and
stop
the
trolley
before
it
reaches
you,
but
will be
killed in
the
pro-
cess.
(p. 290)
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55
Self-Defense, ustification,
and Excuse
Riding-Roughshod-over-a-Bystander:
villain is afteryou and trying
to kill you.
The only escape path is over
a bridge that
will hold only
one person.
The bystanderwho is already
on the
bridge
will be toppled
off to his
death if
you
run
onto
the bridge. (p. 290)
Thomsonbelieves
that
you
are justified-not merely
excused-in sav-
ing yourlife at another'sexpense in the first threecases, which she calls
Yes cases
(p.
289). Conversely,
she believes
that
you are
not justified in
saving your
life in the
last three
cases,
which she calls No cases (p. 289).
In the Yescases, the person
you
are
justified
in
killing will kill you if you
do
not kill
him, though
he
may
be
faultless
in
doing
so.
In
the
No
cases,
the
person
you
must kill
to
save
yourself
is
a
bystander,
a person who is
in
no
way
causally
involved
in the
situation
that consists in your being
at
risk (in
the sense
that
if you die,
it will
not be true that
the bystander
killed you).
Thus, in these scenariosThomson's ntuitions track the distinction be-
tween those
who
will kill
you
and those
who
are bystanders
with
respect
to
your
death.
Thomson
suggests
that the
following principle
explains
the
specific
judgments:
Otherthings being equal, every person
Y
has
a
right against
X
that X
not kill Y. (p. 299)
That
principle explains
the No
cases,
since
in all
three, bystanders'
rights
will be violatedby you
if
you
kill
them to save yourself.
The principlealsoexplainsthe Yes cases. For n these cases, your right
not to
be killed will
be violated if
you
do
nothing.
And
if someone
will
violate
yourright
not to
be
kiUled,
e lacks
a
right
not to
be
killed
(insofar
as
the
killing
is
in
self-defense).
Therefore, your
self-defense
killing
of
him
will not violate
his
rights
and
is
permissible
to
preventyours
from
being
violated
(p. 300).
Thomson recognizes
that
many
will
balk
at
her
argument
that
despite
their lack
of
fault,
the driver n Innocent
Aggressor
and the fat man in
Innocent
Threat
lack a
right
not
to be
killed
(pp. 302-3).
She
contends,
however,that thosewho wouldsay thattheyretain a rightnot to be killed
must be
prepared
to
argue
that
they
have
a
right
to kill
you
to
prevent
you
from
killing
them
(to prevent
them from
killing you)
(pp. 304-5).
I
agree
with Thomson
on this
point.
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56
Philosophy
&
Public
Affairs
Thomson also argues that if you may kill in self-defense, others may
assist you
in
killing
even
though they
are
not
threatened
and
therefore
lack any excuse you might have arising from the instinct for self-pres-
ervation (p. 306). Again
I
agree
with her. But
this
raises a
difficulty for
her analysis.
For
why
should a third
party, X,
intervene
on
your side in
Innocent Aggressor
or
Innocent Threat? Both you and the aggressor/
threat are innocent in a moral sense. Whyif X chooses to intervene must
X
prefer you? (p. 306)
Thomson recognizes thatX'sright
to
kill
for
you is derivative romyour
right
to kill for
yourself (pp. 306-7).
If
you
have a
right,
X
has
a
right.
Conversely,
f
X
does
not have a
right,
then neither do
you.3
And if
you
do not
have a
right
to kill
the driver n Innocent
Aggressor
and the
fat
man
in
Innocent
Threat,
then
you
do not have a right not to
be
killed
in
any unqualifiedsense. Thomson's
answer
to
why X,
if he is to
intervene,
must intervene
on
yourside
is that
you
have
a
right
to
kill the driverand
the fat man, but they do not have a right to prevent you from killing
them. Since you
have
a
right,
X has a
right
to
kill
on
your
behalf.
Since
the driverand the fat man
do not
have
a
right,
X has
no right
to kill
on
their behalf.
Turning finally
to the
No cases,
Thomson
asks
us
to
consider third-
party
ntervention
n
Trolley.
It
follows
from her
analysis
that if
you may
not
switch
the
trolley
onto the
siding
and
kill
the
bystander-and you
may not, because
the
bystanderhas
a
right
not
to be
killed
and has
not
lost that
right by violating your right
not
to
be
killed-then
neither
may
a thirdparty,X, switch the trolley oryou. But if you maynot switch the
trolley and
kill a
bystander,
neither
may five
of
you trapped
on the
same
track switch
the
trolley,
even
if
only
one
bystander
will
be
killed.
For the
bystander again
has not violated
your right
not
to
be
killed
and thus
re-
tains his own right
not
to
be killed. But
if
five of
you may
not
defend
yourself by switching
the
trolley
and
killing
the
bystander,
hen it would
seem
to
follow that neither
may X,
the
third
party,
save five
lives
by
switching
the
trolley.
And this
result
Thomson
rejects (pp.
309-I
0).
Thomson might try
to
handle
numbers
cases like this last one
by ap-
3.
I
ignore the possibility of agent-relative
justificatory
norms,
as does
Thomson.
I
con-
sider such norms
highly problematic theoretically.
See
my Justification
and Innocent Ag-
gressors,
p.
i
I89;
and
my
Scheffler on the Independence of Agent-Centered
Prerogatives
from Agent-Centered
Restrictions,
Journalof Philosophy
4 (i987):
277-83.
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57
Self-Defense, ustification,
and Excuse
peal
to
some special principle
that
permits killing
to effect a net savings
of lives. But such
a
principle
would
produce its
own
problems.
For ex-
ample, there is
the case
of
Surgeon, in
which a
surgeon
can save the
lives of
five
dying patientsby transplanting
he
organs
of
one
healthy
and
unsuspecting one. Thomson would not allow the surgeon
to save lives
by this means.4 Therefore,
she
would
need,
in
addition
to
the right not
to be killed, not only a separateprinciple to handle numberscases, but a
complex principle
that
distinguishes Surgeon
from Trolley in numbers
cases.
But Thomson
does not
provide
some more basic
theory
from
which
all
these
principles
can
be derived.
In her
recent bookTheRealm
of Rights,
Thomson
deals with
numbers
cases by looking
at such factors as
ex
ante
risks
(and
whether
everyone
concerned
would have consented at
some
earlier time
to
the
switching
of the trolley
to effect a
net
savings
of
lives)
and
assumption
of
risk (and
other factors
bearing
on the
voluntariness
of
being
in
peril).5She
be-
lieves Trolleyand Surgeon can be distinguished in numbers cases on
these bases.
For
example,
she argues that,
unlike the
six workmen,
who
she
hypothesizes
are
assigned
by
lot
to work on
the
trolley
tracks-five
on the
main track and
one on the
siding-and
whose
assignment by
lot
is central
to the
permissibility
of
switching
the
trolley,
with
respect
to
Surgeon,
there s no time
at
which
none of the
healthy
adults
among
us
know whether
or not
they
are
healthy (and
thus
at risk of
needing
a
transplantedorgan).6
Moreover,
there
s
no
time after which health or
need of body parts
will come
on
people entirely by
chance
(because
of
how our lifestyles affect ourhealth).7Thus, Thomsonconcludes, there
4. Judith
Jarvis Thomson,
The Realm of Rights (Cambridge,
Mass.: Harvard University
Press,
1990), pp. I39-4I.
5. Ibid.,
pp.
176-202.
6. Ibid., p. I85.
Thomson objects
to
my
reliance on
the
past relationship of the parties
in some of my hypotheticals
(personal correspondence, 29
June I992). See,
for example,
note i8
below. But in her book,
she herself relies on
past
relationships in dealing with
the
numbers cases. Moreover,
to make plausible
her claim that where
there is
no past relation-
ship, one may always justifiably
kill
an
innocent aggressor
and
an
innocent threat, she
would
seem to
be
committed
to
saying
that in numbers
cases
in which there are no past
relationships,
one may not
switch
the
trolley. (The case
of five picnickers, unaware that
they
are
picnicking
on
the overgrown
main
trolley track,
versus one picnicker, similarly
unaware
that she is
on
the siding, might be such
a
case.)
But most will find this result
intuitively
wrong.
7. Thomson,
The
Realm of Rights, p.
i85.
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59
Self-Defense,
ustification,
and Excuse
a Threat. lo n this type
of
case,
a
bystanderhas been, say, strappedonto
the front of an
aggressor's
truck. To
stop the aggressor, you must blow
up the bystander.In her
book, Thomson concludes, again based on her
intuitions, that you
will be
justified, and not merely excused, if you blow
up the bystander n such a case. In other
words, she finds shields to be
more like
aggressors
than
bystanders.
I think she
is mistaken.
Considerthe case in which you can stop an aggressor'struckonly by
blowing a hole
in the road.
Unfortunately,
he debris from the
blast will
kill a bystander.
This is a
pure Trolleycase,
and Thomson would
say
that
you
will
not
be
justified
in
blasting.
Next, consider the case in which an
aggressor,knowing
that
you will
not be justified in blasting if blasting
will
kill a bystander,maneuvers the
truck close to the bystanderso
that
any
blast
will
kill the
bystander.This
case looks morally
ndistinguishable
rom the
previouscase,
in
which
the
truck just happened
to be near the
bystander.Therefore,
his case is also
a Trolley case, and you will not be justifiedin killingthe bystander.
But
the case of
maneuvering
the truck
near
a
bystander
s
also
morally
indistinguishable
from
strapping
a shield to the truck to
prevent you
from blowing it up.
A
shield strapped
o the truck
is
still not an
aggressor
or
threat;
if
you
do not blow
up
the truck and
are
run
over,
it will not
be
true that the shield killed
you (assuming
the cause of death
is contact
with
the metal
of
the
truck and not
the
body
of the
shield).
Given Thomson's
principles, shields,
like
bystanders,
have
a
right
not
to be killed
because it will
not
be true that if
you
do not kill
them, they
will kill you. Thomson's intuitions about the justifiability of killing
shields collide
with her
principles.
She
could,
of
course, say
that
reach-
ing
reflective
equilibrium
between
particular
moral
judgments
and
the
moral
principles
that
support
those
judgments
can be a
matter of revis-
ing
the
judgments-here,
her
judgment
about
shields-rather
than
re-
vising
the
principles.
But
the
principle
she
is
employing
to
distinguish
between
bystanders
and
aggressors/threats
has been derived
solely
from
her intuitions
about
particular
ases. Unless those intuitions are
less
cor-
rigible
than her intuition about
shields,
it
is
difficult to
see how she
would be warranted n abandoningthe lattermerelyto salvageher prin-
ciple,
a
principle
that in
any
event
gets
her into
difficulty
n
dealing
with
numbers cases.
I
would
say
that this case shows the
untenability
of
any
io. Thomson, The Realm of Rights, pp.
370-7I.
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6o
Philosophy
&PublicAffairs
moral distinction
in terms
of the right
not to be killed between bystand-
ers
and threats;
for in this case,
the concepts of bystander
and
threat
merge.
II.
A
BETTER
ANALYSIS
Thomson'sanalysis leaves us in a quandary.We cannot explain why X
may switch
the trolley
and
kill
the
bystander
when he saves
five lives,
while
none of the
five
may
individually
switch
the
trolley.
That none of
the
five may individually
switch
the trolley seems
to follow
straightfor-
wardlyfrom
Thomson's
analysis
of the
right
not to be killed and
its bear-
ing
on self-defense.
None of the five is individually
n a
situation
that is
different
from the
one-against-one
situation
in
Trolley.
The
presence
of
four
others
at most
makes each
of the five into
a
third-party
efender
of
the
others;
but as
Thomsonargues,
third
parties
may
not aid
you
in
Trol-
ley.
I
believe
Thomson
is
correct in her
judgment
that X
may
switch the
trolley
and
kill the
bystander
to save five.
And as I
have
said, I
believe
Thomson
is
correct in
assuming
that third
parties'rights
to kill in your
defense
derive
from
yours.
Therefore,
he weakness
in her
argument
lies
somewhere
other
than in these
positions.
I
would
argue
that the
rights
that
underlie justifiable,
as
opposed
to
excusable,
self-defense
are, not
the right
not to be
killed,
but
(i)
the
right
not to be killedculpably,
and
(2)
the
right
not to be killed
where first-order
moral
theory
treats a death
as worse than the outcomes and means that avert it. And when those
rights
are
threatened
s a far
more difficult ssue
than Thomson's discus-
sion
of her six
scenarios
reveals.
Speaking
broadly
and
somewhat
loosely,
I
would
say
that we are
being
threatened
with
being
killed
culpably
when the
killer
is
acting
with
awareness
(or
culpableignorance)
that his
act is forbidden
by
our first-
order
moral
theory
about
consequences
and means.
With
respect
to
i
I.
Thomson
(in
the personal
correspondence
cited
in note 6)
objects
to my asserting
a
right not
to be killed
culpably,
where culpability
in tum rests
upon awareness
that
the
killing is wrongful. She argues instead that rights are reducible to what we ought to do,
and
that what
we ought to do does
not
tum at all on
our beliefs.
I
disagree.
What A ought
to do
with
respect
to
B-thus,
B's
rights
against A-might
very
well
be
a
function
of what
B
deserves.
B's beliefs
in
acting
may
reflect
B's
character,
which
may be
the basis of
his desert.
Thomson
herself handles cases
of killing by reference
to the
parties'
beliefs. For
example,
she
distinguishes,
as she
ought to,
between five workmen
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Self-Defense,
ustification,
and Excuse
how
our first-order
moral
theory
treats
consequences
and
means,
all I
need
to
say
here
is that the
most
plausible
moral
theoryunderlying com-
mon intuitions
about
self-defense is
one that would
be sensitive to,
among other
things,
(I)
numbersof deaths,
(2) relative moral fault,
(3)
fair
allocationof
risks
and
incentives,
and
(4)
nonappropriation f others.
This
fourth factordeals
with
using
others as
involuntaryresources, mak-
ing ourselvesbetteroff than we would be without them through making
them worse
off than
they
would be
without us (without
their
consent).,2
Finally, I
do
believe there is
a moral
theory that makes these various
considerations relevant
to
killing
in
self-defense,
not
just unconnected
principles
of
limited scope.'3
III.
REVISITINGTHOMSON'SSCENARIOS AND
ADDING
A
COUPLE)
With this obviously far-too-brief ketch of an
alternative ramework, et
us return to Thomson's six scenarios and make a second intuitive trip
through
them.
Villainous Aggressor:
This
case
is
surely not problematic.
For all
we
are
told,
the
aggressor
is
threatening
to
kill
you
culpably.
That
is,
the
aggressor
is
aware that he will
be
violating
first-order
moral
require-
ments
in
killing you.
You
have a
right
not to be
killed
culpably.
You
will
be justified
in
using deadly
force
in self-defense.
Use-of-a-Bystander:
This is
also
a
nonproblematic
No case.You
are
ap-
propriating
he
bystander,using
him as an
involuntary
resource,
and
in
doing so making yourselfbetter off than you would be without him and
making him
worse
off
than
he
would be
without
you.
Innocent
Aggressor:
The
aggressor
is
not
threatening
to
kill
you
cul-
pably.
Nor is he
appropriating ou
to make
himself better
off than
he
assigned to the trolley
track and five thrill-seekers
who sit on the track (Thomson,
The
Realm of Rights, p. i8o).
Surely she would also distinguish
between these cases: one
in
which
the
trolley
tracks are
hidden
by grass,
and
six
innocent picnickers,
unaware of the
tracks beneath them,
divide up
five
on
the main track and one on the siding; and
one in
which
the
one
person is
an innocent
picnicker
and the five are thrill-seekers
who know
they are sitting on overgrown
tracks. Thomson can hardly
disregard the knowledge or ig-
norance of the parties in some cases and then rely on such factors in others.
12. See,
for
example, my
Liberalism as Neutral
Dialogue:
Man
and Manna
in
the
Lib-
eral State, U.C.L.A.
Law Review 28 (I98I):
8I9;
and
Holly
Smith,
Fetal-Matemal Con-
flicts,
in In
Harm's
Way,
ed.
Allen
Buchanan and Jules
Coleman
(New
York: Cambridge
University Press, forthcoming).
I3.
See
my
Liberalism
as Neutral
Dialogue,
pp.
8i9-38.
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63
Self-Defense,
ustification,
and Excuse
with
Innocent Aggressor
and Innocent Threat,
the risks of death
are re-
ciprocal.
The bystander s
not literally killing
you, but it is his presence
on the
siding or bridge
that, coupled
with the right
not to be killed, in-
creases
the
risk
that you
will die from runawaytrolleys
or aggressors.
Indeed,
to
press
this
point,
it is Thomson'stime-framing
of her
scenar-
ios
that obscures
the
reciprocity
of risks in the four problemcases.
Sup-
pose, in Trolley, that the bystanderknows that you work on the main
trolley
track, frequentlyin
a position
that preventsyou
from moving in
time to avoid
the trolley,
but
secure
in the knowledge
that there
is a
switch
within
reach
to send the
trolley
safely
onto a
siding.
The
by-
stander
nonetheless
decides
to
picnic
on the
siding.
In
doing so,
the
by-
stander
is
imposing
a risk
on
you,
at least
if
you
are
now
prevented
from
switching
the
trolley
onto the
siding.
If
you may
not avertthe riskto
you
by
diverting
the
trolley
toward
the
bystander,
he
bystander's
act of
pic-
nicking
on the siding
is in
a
very
real sense
an act of
aggression
toward
you insofaras it unreasonably ncreases yourrisk of death. If we do not
think
of such
an act as
aggression,
t is
perhaps
because we
do not
think
the
bystander
has a
right
that
you
not
switch
the
trolley.
Thomson
would divide
Innocent
Aggressor,
Innocent
Threat,Trolley,
and
Riding-Roughshod-over-a-Bystander
nto
two
Yes
and two No
cases,
whereas
I would deem
all four cases we-don't-have-enough-facts
ases,
where numbers, fault,
and
myriad
other considerations
drawn from our
underlying
moral
theory
may
influence
the outcomes.
As
one last piece
of evidence
for
treating
these
four
cases as
Maybe
cases rather than as clear-cut Yes and No cases, consider these varia-
tions
on VillainousAggressor
and Innocent
Aggressor:
VillainousRisk-Imposer:
You
are
being
held
prisoner
by
a
sadist,
who
is
going
to make
you play
Russian
roulette
one time before
freeing you.
The risk
of death will
be
i
in 6.
You have a brief chance
to
stab him
with
your
concealed, poison-tipped
knife
while he is
loading
the one
chamber
of the
gun's
six.
Innocent
Risk-Imposer:
You are
driving
downhill
on
a
narrow moun-
tain roadwhen you see in yourrearviewmirror hat a truckhas appar-
ently
lost
its brakes
and is
hurtling
downhill
toward
you.
(You
have no
reason
to think
the
truck driver s
anything
but
fault-free.)
You
esti-
mate
your
chances
of
averting
death as
5
in
6
if
you pull
to the side.
(The
road is
very narrow,
and the
truck,
out of
control,
has
a
i
-in-6
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64
Philosophy
&
PublicAffairs
chance
of
clipping your car.)
You
can, however,
release oil from your
car, which will
cause the truck to swerve off the
road, killing the
driver.
Surely
we
may
kill the sadist in
self-defense,
even though there is a
good chance
we will not die if we
play Russian roulette. Exactly how
high the risk of death must be to permit use of deadly defensive force
need
not be
resolved.
Suffice
it to
say
that
it need not be
100
percent, for
it never is IOO ercent
in cases of
justifiableself-defense.
Thomson would appear,by her analysis,
to
be forced
to
say that if we
may
kill this
sadist in
self-defense,
we
may
kill
the
innocent
truck
driver.i6
If
the risks
are the
same,
then the
responses
may
be
the same.
I
would
argue, however,
that this is
quite
counterintuitive.
Surely
our
right
to kill the sadist kicks
in at a lower thresholdof risk than our
right,
if
any,
to
kill the innocent
truck driver.Our
presence
on the
road, plus
any right we might have to release the oil, can be viewed as ourmaking
the truck driver's
otherwise
permissible ob
riskier.The same is
not
true
of
the
sadist,
who is
not
engaged
in
an
otherwise
permissible
endeavor.
IV. CONCLUSION:SELF-DEFENSE AS
AN
EXCUSE
Self-defense
killing
is
justifiable
in Villainous
Aggressor
and
Villainous
Risk-Imposer.17
It
is
unjustifiable
in
Use-of-a-Bystander.i8
Its
status is
uncertain in the remaining cases. If in particularnstances of those cases
we conclude
that self-defense
killing
is
unjustified,
we
might
nonethe-
i6.
Thomson
may
not
argue
that her
analysis applies
only
to
certainty-of-death cases
and not to risk-of-death cases. Such
a
reply would deprive
her analysis of any application
to the real world. And,
in
any event, why should
her
approach
not apply to risk cases?
I7.
Is self-defense killing always justifiable
in
Villainous
Aggressor? Suppose the villain-
ous aggressor
is
a
cancer
researcher
on the
verge
of
discovering
a
cure. Is
there
a
moral
catastrophe exception
to
your right
not
to be used to benefit others? See
Robert Nozick,
Anarchy, State,
and
Utopia (New York: Basic Books, I974),
p. 3on.
i8.
Is
self-defense killing always unjustifiable
in
Use-of-a-Bystander? Suppose
the
by-
stander intentionally made the trolley go out of control and is now gleefully watching it run
you
down.
Or
suppose
in
Surgeon
that the
healthy patient intentionally
caused
the five
dying patients' organs
to
fail. Or
suppose
the five
dying
patients
were
hit
by
a
trolley
that
could
have been diverted onto a siding where the healthy patient
was
standing.
These
cases, suggested by
Leo Katz, indicate
that matters are much more
complex
than Thomson
acknowledges in all
six
of
her
scenarios.
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65
Self-Defense,
ustification,
and Excuse
less deem
it excusable. Thomson thinks the cases sort
out
neatly
in
terms of justification,
but
her problemwith the
numbers shows that they
do not. The numbers
matter,
but
they
do
so
for
reasons
that make
other
factors matter as
well. And with all those things mattering, self-defense
as a justification
becomes very complicated ndeed.Is
ig.
One objection to my much more complex account
of self-defense and the right
not
to be killed, raised by Steven Walt, is an epistemic one. On my account, more factors enter
into the judgment
about whether self-defense
killing
is
justifiable
than
on Thomson's.
Moreover, some of those factors
are evaluative, not merely factual (e.g., culpability). On
my
account, therefore, one
is going to be more uncertain about one's right to use deadly force
than one will be on Thomson's
account, and
that
greater
uncertainty is
a
mark against my
account. I have four points
in
response:
i.
While
my account
is on one level much more complex
than
Thomson's and thus
might
leave people
more uncertain about
their
rights, people can
be
uncertain on Thomson's
account. How do you know
that
someone
is about to kill you? They may be only kidding.
Or
their
truck may
be
about
to
run
out of
gas.
And how do
you
know that the
bystander
will be killed
if
you switch
the
trolley? Perhaps
he
will
see it in time
to get out of
the
way.
The difference between Thomson's account and mine in the knowability of the relevant
rights
is one of
degree
only.
2.
Evaluative factors such
as
culpability
are
probably
relevant on Thomson's account as
well as on
mine.
Consider Trolley,
but this time assume that the
bystander villainously
set
the
trolley
in motion toward you
and is now
standing
on
the
siding waiting to observe your
demise.
Surely
his
culpability
permits you
to switch
the
trolley
and
save
yourself by killing
him.
If
one
were to
reply
that it
is
his
potential
causal implication
in
your death, not his
culpability,
that
justifies your switching
the
trolley,
I would
deny
it on two
grounds.
First,
the appropriate
time
frame is
one
that
begins
when
you
observe the
trolley coming toward
you,
and
within that time
frame,
it
will
not be the
case
that
failing
to
switch
the
trolley
will
mean that
the
bystander causes your
death.
The
trolley
causes your
death.
Second, if the
bystander nonculpably
released the
trolley
in
your
direction-he
did so
accidentally
and
is
unaware that he did so-his causal implication in your death is the same as if he had
villainously
released the
trolley,
but
it is doubtful
that
Thomson would
want
to
distinguish
him
from
the
bystander
in her
Trolley
scenario.
3. My account can
build in
epistemic
considerations.
For
example, interactive
risks
may
be more
fairly
allocated
by broad, bright-line
rules
than
by
fair
allocation
case by case.
(Perhaps
even Thomson's account can
be
vindicated
this
way-as
second-order
rights
rules
rather than as first-order
ones.)
4. People
who act without
knowing
where the
rights
lie
can
be
excused if their
acts
turn
out to
be
unjustified.
This should alleviate some of the
worry
about
making rights
more
epistemically
inaccessible.
I
must, however,
admit that
an
account
such
as mine that builds
epistemic considera-
tions into the determination of the rights themselves may produce complexity due to a
degree
of self-reference.
For
instance, suppose
X
mistakenly
believes
Y
is
attacking
him
and prepares
to
use
deadly
force.
X
will be
excused
if he kills Y but not
justified.
Z
sees
this
occurring
and realizes that X's
mistake
renders
X
nonculpable. Therefore,
for
Z,
the
situation
is
that of one innocent
party against
another. If other
considerations
tip
the bal-
ance
in favor
of
X,
Z
might
be
justified
in
shooting
Y if Y tries
to
use
deadly
force in
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66
Philosophy
&Public
Affairs
response to
X's
use;
and
Z
might
be
unjustified
in
killing
X
to
stop
him from
killing Y, even
if Y
poses
no threat
whatsoever
to
X.
Moreover, there is
a
general response
to criticisms of the kind that
I
have leveled at
Thomson, criticisms
that
rest ultimately on
the functional equivalence of cases on either
side of the
lines
Thomson
draws. That
response,
which Thomson
does not
make but which
Leo Katz has
suggested,
is that any moral theory
that is not
completely consequentialist
will contain formalisms,
lines that
distinguish
things
that are
functionally equivalent.
Those formalisms are not merely instrumental or epistemological,
but
are ontological,
rooted in moral reality. For example, there may be a moral distinction between those who
attempt wrongdoing but
fail and those who
attempt wrongdoing
and
succeed,
or between
those who
are
tempted
and succumb and those
who would
succumb
but are
never
tempted.
I am
skeptical
that this
response
can
succeed,
or that if it
can,
it
salvages
Thom-
son's account
of
self-defense;
but it is
surely
an
intriguing
as well as a
perplexing possibil-
ity.