An influential view in the ethics of self-defence is that causal responsibility for an unjust threat is a necessary requirement for liability to defensive harm. In this article, I argue against this view by providing intuitive counterexamples and by revealing weaknesses in the arguments offered in its favour. In response, adherents of the causal view have advanced the idea that although causally inefficacious agents are not liable to defensive harm, the fact that they may deserve (...) harm can justify harming them in the course of defending oneself. I argue that this strategy is ad hoc and leads to more problems than it solves. Once we allow normative facts outside our account of liability to affect a person's moral protection against harm, the lieability verdicts cannot tell us whether there is a relevant moral asymmetry between the victim and the target of defence. In conclusion, the causal view is wrong and causal responsibility for an unjust threat is not a necessary requirement for liability to defensive harm. (shrink)

Joanna Mary Firth and Jonathan Quong argue that both an instrumental account of liability to defensive harm, according to which an aggressor can only be liable to defensive harms that are necessary to avert the threat he poses, and a purely noninstrumental account which completely jettisons the necessity condition, lead to very counterintuitive implications. To remedy this situation, they offer a “pluralist” account and base it on a distinction between “agency rights” and a “humanitarian right.” I (...) argue, first, that this distinction is spurious; second, that the conclusions they draw from this distinction do not cohere with its premises; third, that even if one granted the distinction, Firth’s and Quong’s implicit premise that you can forfeit your agency rights but not your “humanitarian right” is unwarranted; fourth, that their attempt to mitigate the counterintuitive implications of their own account in the Rape case relies on mistaken ad-hoc assumptions; fifth, that even if they were successful in somewhat mitigating said counterintuitive implications, they would still not be able to entirely avoid them; and sixth, that even in the unlikely case that none of these previous five critical points are correct, Firth and Quong still fail to establish that aggressors can be liable to unnecessary defensive harm since they fail to establish that unnecessary harm can ever be defensive in the first place. (shrink)

This paper considers whether victims can justify what appears to be unnecessary defensive harming by reference to an honour-based justification. I argue that such an account faces serious problems: the honour-based justification cannot permit, first, defensive harming, and second, substantial unnecessary harming. Finally, I suggest that, if the purpose of the honour based justification is expressive, an argument must be given to demonstrate why harming threateners, as opposed to opting for a non-harmful alternative, is the most effective means (...) of affirming one’s honour. Along the way, I also suggest why I think that internalism about the constraints on defensive harming (the view that the satisfaction of the necessity constraint is a necessity condition of a threatener’s liability) is correct. Most importantly, externalism implies that threateners can be liable to suffer gratuitous harm. I take this to be an unattractive consequence of the view. (shrink)

There is widely thought to be a proportionality constraint on harming others in self-defense, such that an act of defensive force can be impermissible because the harm it would inflict on an attacker is too great relative to the harm to the victim it would prevent. But little attention has been given to whether a corresponding constraint exists in the ethics of compensation, and, if so, what the nature of that constraint is. This article explores the issue (...) of proportionality as it applies to the liability to compensate. The view that some perpetrators are not liable to pay full compensation because doing so would be disproportionately burdensome is clarified and defended, and it is asked what view we should adopt instead. A key step in that inquiry is an argument that someone is liable to bear the cost of compensating for an injury if and only if she would have been liable to bear that same cost in defense against that same injury ex ante. (shrink)

While theories of animal rights maintain that nonhuman animals possess prima facie rights, such as the right to life, the dominant philosophies of animal rights permit the killing of nonhuman animals for reasons of self-defense. I argue that the animal rights discourse on defensive killing is problematic because it seems to entail that any nonhuman animal who poses a threat to human beings can be justifiably harmed without question. To avoid this human-privileged conclusion, I argue that the animal rights (...) position needs to both (1) deploy a new criterion of liability to defensive harm, and (2) seriously consider whether human beings themselves are liable to defensive harm in human-animal conflicts. By shifting the focus to whether humans are liable to defensive harm, we will find that in many situations of human-animal conflict, human beings are actually the ones liable to be harmed because they are often culpable or, to some degree, morally responsible for posing an unjust threat to nonhuman animals. (shrink)

A minimally responsible threatener is someone who bears some responsibility for imposing an objectively wrongful threat, but whose responsibility does not rise to the level of culpability. Minimally responsible threateners include those who knowingly commit a wrongful harm under duress, those who are epistemically justified but mistaken in their belief that a morally risky activity will not cause a wrongful harm, and those who commit a harm while suffering from a cognitive impairment which makes it prohibitively difficult (...) to recognize and act on what is morally required of them. The chapter argues that minimally responsible threateners can indeed be morally liable for the harms they impose. Put differently, culpability is not a necessary basis for liability. (shrink)

In recent years, philosopher Jeff McMahan has solidified an influential view that moral desert is irrelevant to the ethics of self-defense. This work aims to criticize this view by demonstrating that there are cases in which moral desert has a niche position in determining whether it may be permissible to kill a person in self- (or other-)defense. This is done by criticizing McMahan’s Responsibility Account of liability as being overly punitive against minimally responsible threateners (MRTs), and by demonstrating, through (...) reference to Saba Bazargan’s Hybrid Account of liability to defensive harm, that further justification than mere liability is necessary in the justification of killing these kinds of threateners. It is also argued that other kinds of justifications like lesser-evil justifications are not necessarily strong enough to justify killing MRTs, even on top of established liability. This paper puts forward the view that, where a strong enough moral difference between threatener and innocent victim cannot be established, a justification on the basis of the implications of prior moral acts might, on some occasions, give us reasons to kill or not kill MRTs in self-defense. (shrink)

Many think that it would be wrong to defend an individual from attack if he competently and explicitly refuses defensive intervention. In this paper, I consider the extent to which the preferences of victims affect the permissibility of defending groups or aggregates. These cases are interesting and difficult because there is no straightforward sense in which a group can univocally consent to or refuse defensive intervention in the same way that an individual can. Among those who have considered (...) this question, the dominant view is that that consent imposes only an extremely weak constraint on defending groups. I argue that this is mistaken and defend a much more robust requirement. Indeed, on the account that I develop there are cases in which the refusal of a single member of a victim is enough to make it impermissible to defend a much larger group. At the heart of my account is the idea that consent functions as an internal component of the broader requirement that defensive harms be proportionate: if a victim validly refuses defensive intervention, the fact that defence will benefit him cannot be used to justify harming innocents as the lesser-evil. An important implication of this view is that what constitutes sufficient consent from the members of a victim group will vary on a case-by-case basis. (shrink)

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. (shrink)

I address a foundational problem with accounts of the morality of war that are derived from the Just War Tradition. Such accounts problematically focus on ‘the moment of crisis’: i.e. when a state is considering a resort to war. This is problematic because sometimes the state considering the resort to war is partly responsible for wrongly creating the conditions in which the resort to war becomes necessary. By ignoring this possibility, JWT effectively ignores, in its moral evaluation of wars, certain (...) types of past wrongdoing. I argue that we can address this problem by incorporating an account of compensatory liability into an account of the morality of war. Doing so yields the view that, if we have culpably failed to compensate victims for past wrongs, we might be morally required to weigh the well-being of those victims more heavily in our calculation of proportionality when determining the permissibility of a defensive act that harms the victim as a side-effect. This, in turn, makes satisfying t. (shrink)

What are the justifications for and constraints on the use of force in self-defense? In his book The Morality of Defensive Force, Jonathan Quong presents the moral status account to address this and other fundamental questions. According to the moral status account, moral liability to defensive harm is triggered by treating others with less respect than they are due. At the same time, Quong rejects the relevance of culpability to the morality of defensive harming. In (...) this article I argue that this rejection of culpability is unfounded and that Quong fails to establish his account as superior to the culpability account of liability to defensive harm. (shrink)

I argue that rights-forfeiture by itself is no path to permissibility at all (even barring special circumstances), neither in the case of self-defense nor in the case of punishment. The limiting conditions of self-defense, for instance – necessity, proportionality (or no gross disproportionality), and the subjective element – are different in the context of forfeiture than in the context of justification (and might even be absent in the former context). In particular, I argue that a culpable aggressor, unlike an innocent (...) aggressor, forfeits rights against proportionate defense, including unnecessary defense (as well as rights against the infliction of proportionate non-defensive harm). Yet, I demonstrate that this stance need not lead to the abandonment of the necessity condition of justified self-defense in the case of a culpable aggressor. Since justification and liability are not the same, there is no reason to assume that the necessity condition of justified self-defense must be explained under an appeal to the aggressor’s rights. Parallel arguments apply to the other limiting conditions of permissible self-defense as well as to the limiting conditions of permissible punishment. Accordingly, I also sketch alternative explanations of the proportionality requirement and the subjective element. All these alternative explanations appeal to a principle of precaution: instead of explaining the unjustifiability of unnecessarily harming a culpable attacker or wrongdoer by an appeal to the rights of the attacker or wrongdoer himself, one can also, and better, explain it by a requirement to take reasonable precautions against violating the rights of innocent people. (shrink)

In this paper, I discuss the claim, endorsed by a number of authors, that contributing to a collective harm is the ground for special responsibilities to the victims of that harm. Contributors should, between them, cover the costs of the harms they have inflicted, at least if those harms would otherwise be rights-violating. I raise some doubts about the generality of this principle before moving on to sketch a framework for thinking about liability for the costs of (...) harms in general. This framework uses a contractualist framework to build an account of how to think about liability for costs on the basis of the presumably attractive thought that individual agents should have as much control over their liabilities as is compatible with others having like control. I then use that framework to suggest that liability on the basis of contribution should be restricted to cases where the contributors could have avoided their contribution relatively costlessly, where meeting the liability is not crippling for them, and where such a liability would not have chilling effects, either on them or on third parties. This account of the grounds for contributory liability also has the advantage of avoiding a number of awkward questions about what counts as a contribution by shifting the issue away from often unanswerable questions about the precise causal genesis of some harm or other. Instead, control over conduct which plausibly has some relation to the harm because crucial. On the basis of this account, I then investigate whether a number of uses of the contributory principle. I argue that contributory liability is not appropriate for cases of collective harms committed by coordinated groups in the way that, for example, Iris Marion Young and Thomas Pogge have suggested and that further investigation of how members of such groups may be liable will be needed. (shrink)

In a recent paper, Jonathan Quong tries to offer further support for “the proposition that there are sometimes agent-relative prerogatives to harm nonliable persons.” In this brief paper, I will demonstrate that Quong’s argument implicitly relies on the premise that the violinist in Thomson’s famous example has a right not to be unplugged. Yet, first, Quong provides no argument in support of this premise; and second, the premise is clearly wrong. Moreover, throughout his paper Quong just question-beggingly and without (...) argument assumes that one cannot lose rights in other ways than by one’s own responsible action. I conclude that Quong has failed to provide further support for his thesis. (shrink)

In this article, I firstly discuss the person-affecting view of harm, distinguishing between the liability and the structural models of responsibility, and also explaining why it is unsatisfactory, from a moral point of view, to interpret a given harm as a loss with respect to a diachronic baseline. Then, I take sweatshops as an example and I entertain two further issues that are related to the assessment of harm and that are necessary for operationalising a comprehensive (...) model of responsibility, that takes into account both liability and structural injustice. The first one is how to interpret harm when it is coexistent with a diachronic benefit and/or the parties involved in the social structures leading to harm seek to unload their responsibility by hiding behind a cooperative deadlock. The second one is how far along the chain of actions leading to harm can structural responsibility be extended. (shrink)

This article asks whether a country that suffers from serious environmental problems caused by another country could have a just cause for a defensive war? Danish philosopher Kasper Lippert-Rasmussen has argued that under certain conditions extreme poverty may give a just cause for a country to defensive war, if that poverty is caused by other countries. This raises the question whether the victims of environmental damages could also have a similar right to self-defense. Although the article concerns justice (...) of war, we will concentrate only on the issue of what can be just causes of war, instead of evaluating the entire justification of war. This is to say that we will limit our discussion to the question concerning just cause and leave aside more general questions concerning justness and moral permissibility of war. Our aim is to list the questions that must be made and settled if defensive war in the case of serious environmental problems is said to have (or not to have) a just cause. We will argue that there are three questions that are most important in this context. They are the question concerning liability, the question of collective responsibility, and the question whether environmental harms may create a “sufficient reason” for raising a war. (shrink)

McMahan argues that justification defeats liability to defensive attack (which would undermine the thesis of the "moral equality of combatants"). In response, I argue, first, that McMahan’s attempt to burden the contrary claim with counter-intuitive implications fails; second, that McMahan’s own position implies that the innocent civilians do not have a right of self-defense against justified attackers, which neither coheres with his description of the case (the justified bombers infringe the rights of the civilians) nor with his views (...) about rights forfeiture, is unsupported by independent argument, and, in any case, extremely implausible and counter-intuitive; and third, that his interpretation of the insulin case confuses the normative relations between an agent’s justification and non-liability on the one hand and permissible or impermissible interference with the agent’s act on the other. Similar confusions, fourth, affect his discussion of liability to compensation. (shrink)

Let us call the deliberate modification of an individual’s genome to improve it or its progeny intentional genetic enhancement. Governments are almost certain to require that any proposed intentional genetic enhancement of a human (IGEH) be tested first on (what researchers call) animal “models.” Intentional genetic enhancement of animals (IGEA), then, is an ambiguous concept because it could mean one of two very different things: an enhancement made for the sake of the animal’s own welfare, or an enhancement made for (...) the sake of satisfying a human desire. In either case, experimental procedures are likely to entail substantial risks to the experimental animals. What rules should govern IGEA? I criticize the abolitionist conclusions of animal rightists—that no IGEA should be permitted—and I criticize the permissive conclusions of speciesists—that all IGEA should be permitted. Both views are unsatisfying. I suggest instead that current animal welfare law provides a defensible platform on which to begin building ethically justifiable policy in this area. (shrink)

Since the Supreme Court upheld the partial birth abortion ban in 2007, more U.S. abortion providers have begun performing intraamniotic digoxin injections prior to uterine dilation and evacuations. These injections can cause medical harm to abortion patients. Our objective is to perform an in-depth bioethical analysis of this procedure, which is performed mainly for the provider’s legal benefit despite potential medical consequences for the patient.

After a fatal police shooting in the United States, it is typical for city and police officials to view the family of the deceased through the lens of the law. If the family files a lawsuit, the city and police department consider it their legal right to defend themselves and to treat the plaintiffs as adversaries. However, reparations and the concept of “reparative justice” allow authorities to frame police killings in moral rather than legal terms. When a police officer kills (...) a person who was not liable to this outcome, officials should offer monetary reparations, an apology, and other redress measures to the victim’s family. To make this argument, the article presents a philosophical account of non-liability hailing from self-defense theory, centering the distinction between reasonableness and liability. Reparations provide a non-adversarial alternative to civil litigation after a non-liable person has been killed by a police officer. In cases where the officer nevertheless acted reasonably, “institutional agent-regret” rather than moral responsibility grounds the argument for reparations. Throughout the article, it is argued that there are distinct racial wrongs both when police kill a non-liable black person and when family members of a black victim are treated poorly by officials in the civil litigation process. (shrink)

David McCarthy has recently suggested that our compensation and liability practices may be interpreted as reflecting a fundamental norm to hold people liable for imposing risk of harm on others. Independently, closely related ideas have been criticised by Stephen R. Perry and Arthur Ripstein as incompatible with central features of negligence law. We aim to show that these objections are unsuccessful against McCarthy’s Risk–liability theory, and that such an approach is a promising means both for understanding the (...) moral basis of liability for negligence and for reasoning about possible reforms of the institution of negligence law. (shrink)

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 selfdefence 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 self-defence. (shrink)

How should we think about public rioting for political ends? Might it ever be more than morally excusable behavior? In this essay, I show how political rioting can sometimes be positively morally justified as an intermediate defensive harm in between civilly disobedient protest and political revolution. I do so by reading political rioters as, at the same time, uncivil and ultimately conciliatory with their state. Unlike civilly disobedient protestors, political rioters express a lack of faith in the value (...) or applicability of civility in interacting with the state under the political status quo. But unlike political revolutionaries who aim at separation from the state, political rioters paradigmatically seek fuller inclusion within it. By rejecting even the appearance of compliance with the political status quo’s systems of justice, political rioters can create a unique venue for systemically marginalized citizens to express warranted disrespect for the state that maintains them in ongoing subjection, as well as their inviolable respect for themselves as persons with dignity beyond the boundaries of civility. (shrink)

This paper elucidates the rights violations caused by mass formal schooling systems and explores what students may do about them. Students have rights not to be harmed and rights to liberty (not to be oppressed), as well as attendant rights to (proportionately) defend their rights if necessary. For some time now, education has been dominated by mass formal schooling systems that harm and oppress many students. Such harm and oppression violate those students’ rights not to be harmed or (...) oppressed, which may justify student nonviolent defensive (or rights-protecting) action. (shrink)

Even among those who find lethal defense against non-responsible threats, innocent aggressors, or justified aggressors justified even in one to one cases, there is a debate as to what the best explanation of this permissibility is. The contenders in this debate are the liability account, which holds that the non-responsible or justified human targets of the defensive measures are liable to attack, and the justified infringement account, which claims that the targets retain their right not to be attacked (...) but may be attacked anyway, even in one to one situations. Given that we normally think that rights are trumps, this latter claim is counter-intuitive and rather surprising, and therefore in need of justification and explanation. So far only Jonathan Quong has actually tried to provide an explanation; however, I will argue that his explanation fails and that Quong’s own account of liability is misguided. I then address Helen Frowe’s critique of the liability account. She makes the important concession that the tactical bomber has to compensate his victims, but she tries to block the conclusion that he must therefore be liable. I will demonstrate that her attempt to explain away liability fails once that concession is made. (shrink)

In this article, responding to assertions that the principle of double effect has no place in legal analysis, I explore the overlap between double effect and negligence analysis. In both, questions of culpability arise in situations where a person acts with no intent to cause harm but where reasonable foreseeability of unintended harm exists. Under both analyses, the determination of whether such conduct is permissible involves a reasonability test that balances that foreseeable harm against the good intended (...) by the actor's conduct. In both, absent a finding that the foreseeable harm is unreasonable in light of that intended good, no liability will be imposed upon the actor. Even conceding, however, such general similarity between double effect and negligence analysis - disagreement over the proper interpretation of the reasonability criterion at play in negligence poses an additional challenge for the attempt to correlate negligence with double effect. Economic efficiency interpretations of negligence, for example, purportedly based on the Learned Hand Formula and the RESTATEMENT (SECOND) OF THE LAW OF TORTS, propose that culpability depends upon a utilitarian balancing of good effects of conduct (utility) versus its harmful foreseeable consequences (magnitude of risk of injury). Based on such an interpretation of negligence, however, contrasts between actors' states of mind, and normative differences between kinds of goods and harms, ultimately fade into the background and become irrelevant as essential conditions for properly assessing liability. This article elaborates and defends the view that double effect analysis lies at the heart of negligence theory. Part I elucidates in more detail the principle of double effect and describes its prima facie operation in negligence analysis. Part II considers and rejects the economic efficiency interpretation that has been offered as a theory of negligence, overcoming the challenge that such an interpretation presents for the effort to locate double effect analysis in the law. Part III illustrates and confirms the overlap between double effect and negligence by consideration of a series of case applications. The Article proposes that the weighing of conflicting values in double effect analysis and negligence is not achieved - as proposed by law and economics theory with respect to negligence - by imposing a consequentialist-utilitarian reduction of all value to a single concept of good and eliminating the relevance of traditional state of mind distinctions between intention and foreseeability. Instead, each mode of analysis recognizes that distinct culpability determinations flow naturally and plausibly from an appreciation of the traditional legal distinctions made between various types of goods and harms, and upon whether such goods and harms come about as result of an actor's intention or mere foreseeability. Keywords: Double effect, negligence, intention, foreseeability, choice, law and economics, utilitarianism, consequentialism, weighing of values. (shrink)

Minimal responsibility threateners are epistemically justified but mistaken in thinking that imposing a nonnegligible risk on others is permissible. On standard accounts, an MRT forfeits her right not to be defensively killed. I propose an alternative account: an MRT is liable only to the degree of harm equivalent to what she risks causing multiplied by her degree of responsibility. Harm imposed on the MRT above that amount is justified as a lesser evil, relative to allowing the MRT to (...) kill her victim. This hybrid account, which generalizes to those are who are more than minimally responsible, has considerable advantages. (shrink)

Rights forfeiture or liability are not a path to the permissibility of self-defense (not even barring extraordinary circumstances), and the necessity condition is not intrinsic to justified self-defense. Rather, necessity in the context of justification must be distinguished from necessity in the context of rights forfeiture. While innocent aggressors only forfeit their right against necessary self-defense, culpable aggressors also forfeit, on grounds of a principle of reciprocity, certain rights against unnecessary self-defense. Yet, while culpable aggressors would therefore not be (...) wronged by certain unnecessary defensive means, the use of such means against them would still not be justified. The underlying rationale of this necessity requirement lies not in the rights of the aggressor, but in an agent-relative requirement to take fair precautions against violating the rights of the innocent. This concern is also expressed in the necessity criterion defended and formulated in this paper, which is very harsh on aggressors. To wit, the necessity condition for justified self-defense must not be interpreted as requiring the employment of literally the least harmful means or of means that the defender reasonably believes to be, literally, the least harmful ones. What he must believe about the properties and possible effects of the means he employs is something that is much less demanding. Finally, the necessity condition of justified self-defense is also harsh (on the aggressor) in not implying a “success condition” worth its name. (shrink)

The paper focuses on the conditions under which an agent can be justifiably held responsible or liable for the harmful consequences of his or her actions. Kant has famously argued that as long as the agent fulfills his or her moral duty, he or she cannot be blamed for any potential harm that might result from his or her action, no matter how foreseeable these may (have) be(en). I call this the Duty-Absolves-Thesis or DA. I begin by stating the (...) thesis in a more precise form and then go on to assess, one by one, several possible justifications for it: that (i) it wasn’t the view Kant himself actually held or was committed to; (ii) there is nothing strange about the DA, either theoretically or intuitively; (iii) the DA is more plausible as an account of legal (either criminal or tort) liability; (iv) the DA becomes perfectly plausible when conceived as a thesis about what insulates the agent from either remedial moral responsibility or the demands of compensatory justice; (v) the rationale for the DA is to protect our moral assessment of agents and their actions from the threat of moral luck. I show, with the help of the infamous Inquiring Murderer example, all these (and some other) justificatory attempts unsuccessful. I conclude that besides being counter-intuitive, the DA-thesis also lacks firm theoretical grounding and should therefore be rejected as (part of) an account of outcome moral responsibility. (shrink)

In a recent paper, McMahan argues that his ‘Responsibility Account’, according to which ‘the criterion of liability to attack in war is moral responsibility for an objectively unjustified threat of harm’, can meet the challenge of explaining why most combatants on the unjustified side of a war are liable to attack while most civilians (even on the unjustified side) are not. It should be added, however, that in the light of his rejection of the ‘moral equality of combatants’, (...) McMahan would also have to explain why combatants on the justified side of a war are not liable to attack. I will argue here that McMahan does not succeed in meeting these challenges. (shrink)

In his recent JME article Daniel Restrepo argues that both legal and ethical rules should protect the so-called Naked Soldiers, combatants engaged in activity unrelated to military operations and unaware of the imminent danger threatening them. I criticize this position from several angles. I deny the existence of any link between vulnerability and innocence, and claim ignorance of deadly threats does not give rise to a morally distinguished type of vulnerability. I argue that actions not contributing to the war effort (...) are nevertheless an inherent part of fighting a war, and that combatants do not signal intention to abandon their commitment to the war effort by undertaking these. I show that by granting hors de combat status to Naked Soldiers, we would unjustly disadvantage their opponents and engender significant and manifold practical difficulties that the proponents of the view fail to solve or even anticipate. Finally, I demonstrate that Restrepo’s general project of “making killing in war difficult to legitimately justify” regardless of why, how and by whom the killing is done is incompatible with just war theory’s basic assumptions. That project is in fact pacifist in nature and as such redundant in light of pacifism’s broader and stronger implications. (shrink)

Some progress has been made in recent decades to articulate corporate social responsibility (CSR) and, more recently, to associate CSR with international enforcement of human rights. This progress continues to be hampered, however, by the ability of a multinational corporation (MNC) that violates human rights not only to shift liability from itself to a nation-state but even to win compensation from that nation-state for loss of profits due to restrictions on its business activities. In the process, the nation-state’s sovereignty (...) is diminishing; and, in effect, though still attributed to nation-states, it is being transferred to the MNC. The main aim of this article is (1) to draw on normative considerations to claim that this MNC proto-sovereignty should be modified and (2) to contend that this can eventually be accomplished by adding to corporate adoption of CSR guidelines a regimen of global human rights enforcement. I base this contention on expectations about the internationalization of corporate criminal law and the globalization of civil society in general and of NGOs in particular. I consider various jurisdictions but I focus on US jurisprudence. (shrink)

The paper considers the proper method for theorizing about criminal jurisdiction. It challenges a received understanding of how to substantiate the right to punish, and articulates an alternative account of how that theoretical task is properly conducted. The received view says that a special relationship is the ground of a tribunal’s authority to prosecute and, hence, that a normative theory of that authority is faced with identifying a distinctive relation. The alternative account locates prosecutorial standing on an institution’s capacity to (...) address the basic reasons generating criminal liability. This reframes the normative issues at stake, and has the result that various, perhaps quite heterogeneous, considerations can substantiate penal authority. It also eliminates the existence of a special relation as a necessary condition for legitimate criminal accountability. The argument proceeds by offering an analysis and account of universal jurisdiction. Not only does the alternative elegantly perform where the received view struggles, it can accommodate much of what motivates the pursuit of relational ties in existing efforts to vindicate jurisdictional conclusions. (shrink)

At first glance, hate speech and microaggressions seem to have little overlap beyond being communicated verbally or in written form. Hate speech seems clearly macro-aggressive: an intentional, obviously harmful act lacking the ambiguity (and plausible deniability) of microaggressions. If we look back at historical discussions of hate speech, however, many of these assumed differences turn out to be points of similarity. The harmfulness of hate speech only became widely acknowledged after a concerted effort by critical race theorists, feminists, and other (...) activists. Before the 1990s, slurs were widely considered socially acceptable behavior: mere jokes that weren’t intended to be harmful. Authors like Richard Delgado, Mari Matsuda, and Charles Lawrence pushed back against this dismissal. In this chapter, I show that their arguments for the serious harmfulness of hate speech prefigure and provide support for current debates about the serious harmfulness of microaggressions. Exploring resonances with the 1980s hate speech debate will allow us to explain why microaggressions fall below the cutoff for legal liability but remain apt targets for moral blame. (shrink)

Many approaches to addressing labour injustices—shortfalls from minimally decent wages and working conditions— focus on how governments should orient themselves toward other states in which such phenomena take place, or to the firms that are involved with such practices. But of course the question of how to regard such labour practices must also be faced by individuals, and individual consumers of the goods that are produced through these practices in particular. Consumers have become increasingly aware of their connections to complex (...) global production processes that often involve such injustice. For example, activist campaigns have exposed wrongful harm in factories producing clothes, shoes and mobile phones and farms producing coffee, tea and cocoa. These campaigns have promoted the message to ordinary people that by becoming connected to unjust labour practices through their purchasing behaviour, they acquire special additional moral responsibilities to contribute to reforming such practices, or to address the hardships suffered by the victims of the wrongdoing that result from them. The moral significance of the responsibilities of individual consumers has not, however, received much analytical scrutiny. Why should we believe that there are such responsibilities? And if there are such responsibilities, what are their grounds? How stringent are the responsibilities triggered by such connections? Finally, what are the implications of such responsibilities—the courses of action that they prescribe or proscribe? The activists who assert special ethical responsibilities for consumers have promoted many particular courses of action, but have seldom articulated the grounds of these responsibilities or explained why they should be taken to be stringent. And moral and political theorists have not devoted much focussed attention to this issue. For the consumer who is concerned to act in a morally permissible way, this presents a troubling practical challenge regarding the goods they may (or may not) purchase, and the moral relevance of their consumption choices more generally. While we cannot address all of these pressing questions in this chapter, we try to make some headway with them by discussing two general approaches to the question of how individuals should conceive of their responsibilities with respect to such practices, taking as our starting point the recent work of the late Iris Marion Young—the most sustained treatment of this topic by a prominent political theorist. In a series of influential articles and a posthumously published book, Young articulated an approach to conceiving of individual responsibilities to address labour injustices—the social connection model—at home and abroad. She also argued that an alternative model—the liability model—which she claimed had dominated discourse on this topic, suffered from very serious flaws. In a critical vein, we will argue that Young’s arguments against the liability model are not convincing, and that the alternative she proposes is itself vulnerable to some damaging objections. We also find, however, that the liability model would need to be extended in various ways to provide an adequate account of individual responsibility to address shortfalls from minimally decent wages and working conditions, and we begin the task of sketching an extended framework. (shrink)

An orthodox view in marketing ethics is that it is morally impermissible to market goods to specially vulnerable populations in ways that take advantage of their vulnerabilities. In his signature article “Marketing and the Vulnerable,” Brenkert (Bus Ethics Q Ruffin Ser 1:7–20, 1998) provided the first substantive defense of this position, one which has become a well-established view in marketing ethics. In what follows, we throw new light on marketing to the vulnerable by critically evaluating key components of Brenkert’s general (...) arguments. Specifically, we contend that Brenkert has failed to offer us any persuasive reasons to think that it is immoral to market to the vulnerable in ways that take advantage of their vulnerability. Although Brenkert does highlight the fact that the specially vulnerable are at greater risk of being harmed by already immoral marketing practices (e.g., deception, manipulation), he fails to establish that the specially vulnerable are a unique moral category of market clients or that there are special moral standards that apply to them. Moreover, even if Brenkert’s position were theoretically defensible, the practical implications of his position are far less tenable than he suggests. If our criticisms are sound, then Brenkert and others who endorse his position are seriously mistaken regarding how one can permissibly market products to vulnerable populations, and, in addition, they have improperly categorized certain morally permissible marketing practices as being immoral. (shrink)

It could be argued that tort law is failing, and arguably an example of this failure is the recent public liability and insurance (‘PL&I’) crisis. A number of solutions have been proposed, but ultimately the chosen solution should address whatever we take to be the cause of this failure. On one account, the PL&I crisis is a result of an unwarranted expansion of the scope of tort law. Proponents of this position sometimes argue that the duty of care owed (...) by defendants to plaintiffs has expanded beyond reasonable levels, such that parties who were not really responsible for another’s misfortune are successfully sued, while those who really were to blame get away without taking any responsibility. However people should take responsibility for their actions, and the only likely consequence of allowing them to shirk it is that they and others will be less likely to exercise due care in the future, since the deterrents of liability and of no compensation for accidentally self-imposed losses will not be there. Others also argue that this expansion is not warranted because it is inappropriately fueled by ‘deep pocket’ considerations rather than by considerations of fault. They argue that the presence of liability insurance sways the judiciary to award damages against defendants since they know that insurers, and not the defendant personally, will pay for it in the end anyway. But although it may seem that no real person has to bear these burdens when they are imposed onto insurers, in reality all of society bears them collectively when insurers are forced to hike their premiums to cover these increasing damages payments. In any case, it seems unfair to force insurers to cover these costs simply because they can afford to do so. If such an expansion is indeed the cause of the PL&I crisis, then a contraction of the scope of tort liability, and a pious return to the fault principle, might remedy the situation. However it could also be argued that inadequate deterrence is the cause of this crisis. On this account the problem would lie not with the tort system’s continued unwarranted expansion, but in the fact that defendants really have been too careless. If prospective injurers were appropriately deterred from engaging in unnecessarily risky activities, then fewer accidents would ever occur in the first place, and this would reduce the need for litigation at its very source. If we take this to be the cause of tort law’s failure then our solution should aim to improve deterrence. Glen Robinson has argued that improved deterrence could be achieved if plaintiffs were allowed to sue defendants for wrongful exposure to ongoing risks of future harm, even in the absence of currently materialized losses. He argues that at least in toxic injury type cases the tortious creation of risk [should be seen as] an appropriate basis of liability, with damages being assessed according to the value of the risk, as an alternative to forcing risk victims to abide the outcome of the event and seek damages only if and when harm materializes. In a sense, Robinson wishes to treat newly-acquired wrongful risks as de-facto wrongful losses, and these are what would be compensated in liability for risk creation (‘LFRC’) cases. Robinson argues that if the extent of damages were fixed to the extent of risk exposure, all detected unreasonable risk creators would be forced to bear the costs of their activities, rather than only those who could be found responsible for another’s injuries ‘on the balance of probabilities’. The incidence of accidents should decrease as a result of improved deterrence, reduce the ‘suing fest’, and so resolve the PL&I crisis. So whilst the first solution involves contracting the scope of tort liability, Robinson’s solution involves an expansion of its scope. However Robinson acknowledges that LFRC seems prima facie incompatible with current tort principles which in the least require the presence of plaintiff losses, defendant fault, and causation to be established before making defendants liable for plaintiffs’ compensation. Since losses would be absent in LFRC cases by definition, the first evidentiary requirement would always be frustrated, and in its absence proof of defendant fault and causation would also seem scant. If such an expansion of tort liability were not supported by current tort principles then it would be no better than proposals to switch accident law across to no-fault, since both solutions would require comprehensive legal reform. However Robinson argues that the above three evidentiary requirements could be met in LFRC cases to the same extent that they are met in other currently accepted cases, and hence that his solution would therefore be preferable to no-fault solutions as it would only require incremental but not comprehensive legal reform. Although I believe that actual losses should be present before allowing plaintiffs to seek compensation, I will not present a positive argument for this conclusion. My aim in this paper is not to debate the relative merits of Robinson’s solution as compared to no-fault solutions, nor to determine which account of the cause of the PL&I crisis is closer to the truth, but rather to find out whether Robinson’s solution would indeed require less radical legal reform than, for example, proposed no-fault solutions. I will argue that Robinson fails to show that current tort principles would support his proposed solution, and hence that his solution is at best on an even footing with no-fault solutions since both would require comprehensive legal reform. (shrink)

This paper focuses on Quong’s account of the scope of the means principle (the range of actions over which the special constraint on using a person applies). One the key ideas underpinning Quong’s approach is that the means principle is downstream from an independent and morally prior account of our rights over the world and against one another. I raise three challenges to this ‘rights first’ approach. First, I consider Quong’s treatment of harmful omissions and argue that Quong’s view generates (...) counter-intuitive results. Second, I argue that cases of harmful omissions raise problems for Quong’s claim that intentions are irrelevant to permissibility. Third, I consider Quong’s extension of the means principle to include uses of persons’ rightfully-owned property. I suggest that, contra Quong, the morality of defensive harm is not based on a prior account of distributive justice. Instead the two normative domains mutually inform one another. (shrink)

One prominent argument in international law and religious thought for abolishing capital punishment is that it violates individuals’ right to life. Notably, this _right-to-life argument_ emerged from normative and legal frameworks that recognize deadly force against aggressors as justified when necessary to stop their unjust threat of grave harm. Can capital punishment be necessary in this sense—and thus justified defensive killing? If so, the right-to-life argument would have to admit certain exceptions where executions are justified. Drawing on work (...) by Hugo Bedau, I identify a thought experiment where executions are justified defensive killing but explain why they cannot be in our world. A state’s obligations to its prisoners include the _obligation to use nonlethal incapacitation_ (ONI), which applies as long as prisoners pose no imminent threat. ONI precludes executions for reasons of future dangerousness. By subjecting the right-to-life argument to closer scrutiny, this article ultimately places it on firmer ground. (shrink)

The moral importance of liability to harm has so far been ignored in the lively debate about what self-driving vehicles should be programmed to do when an accident is inevitable. But liability matters a great deal to just distribution of risk of harm. While morality sometimes requires simply minimizing relevant harms, this is not so when one party is liable to harm in virtue of voluntarily engaging in activity that foreseeably creates a risky situation, while (...) having reasonable alternatives. On plausible assumptions, merely choosing to use a self-driving vehicle typically gives rise to a degree of liability, so that such vehicles should be programmed to shift the risk from bystanders to users, other things being equal. Insofar vehicles cannot be programmed to take all the factors affecting liability into account, there is a pro tanto moral reason not to introduce them, or restrict their use. (shrink)

Many proponents of the Harm Principle seem to implicitly assume that the principle is compatible with permitting the free exchange of goods and services, even if such exchanges generate so-called market harms. I argue that, as a result, proponents of the Harm Principle face a dilemma: either the Harm Principle’s domain cannot include a large number of non-market harm cases or market harms must be treated on par with non-market harms. I then go on to discuss (...) three alternative arguments defending the status of market harms as exceptions to the Harm Principle and discuss why these arguments also fail. (shrink)

Analyses of factual causation face perennial problems, including preemption, overdetermination, and omissions. Arguably, the thorniest, are cases of omissive overdetermination, involving two independent omissions, each sufficient for the harm, and neither, independently, making a difference. A famous example is Saunders, where pedestrian was hit by a driver of a rental car who never pressed on the (unbeknownst to the driver) defective (and, negligently, never inspected) brakes. Causal intuitions in such cases are messy, reflected in disagreement about which omission mattered. (...) What these analyses mistakenly take for granted, is that at issue is the 'efficacy' of each omission. I argue, on the contrary, the puzzle of omissive overdetermination favors taking the act/omission distinction seriously. Factual causation, properly understood precludes omissions (i.e. omissions are not causal). Of course, the law also attaches liability to omissions, but this works differently from liability for real causes (e.g. omissions have a duty requirement, they also respond differentially to difference-making considerations). The manner in which liability attaches for omissions differs from that of straightforward causal liability, and is entirely dependent on the underlying causal structure. Attention to that structure (e.g. that the driver's hitting the pedestrian with his car is what actually caused the injury) sheds light on which omissions matter (e.g. driver's failure to press on the brakes) and why (because that failure removes a defense the driver would have to liability for the accident he caused). Other cases, where the parties' connection is entirely omissive (e.g. two physicians fail to detect independently lethal conditions), come out differently (tracking moralized elements). The analysis offered makes better sense of both why omissive determination cases are puzzling and how to resolve them. (shrink)

In this article I analyse those that I consider the most powerful counterarguments that have been advanced against the non-identity objection to the idea of intergenerational harm, according to which an action cannot cause harm to a given agent if her biological identity does actually depend—in a partial but still determinant way—on the performance of this action. In doing this, I firstly go through the deontological criticisms to the person-affecting view of harm, before moving on to sufficientarian (...) and communitarian accounts of intergenerational harm. My argument is that neither of these theories manage to defuse the non-identity objection. Yet, I conclude by observing that a possible way out of the non-identity paradox might consist in developing an ethical account of intergenerational negative justice that focuses on the functional value of the natural and social structures in which humans develop their lives, rather than on their instrumental or intrinsic value. (shrink)

Because spaying/neutering animals involves the harming of some animals in order to prevent harm to others, some ethicists, like David Boonin, argue that the philosophy of animal rights is committed to the view that spaying/neutering animals violates the respect principle and that Trap Neuter Release programs are thus impermissible. In response, I demonstrate that the philosophy of animal rights holds that, under certain conditions, it is justified, and sometimes even obligatory, to cause harm to some animals in order (...) to prevent greater harm to others. As I will argue, causing lesser harm to some animals in order to prevent greater harm to others, as TNR programs do, is compatible with the recognition of the inherent value of the ones who are harmed. Indeed, we can, and do, spay/neuter cats while acknowledging that they have value in their own right. (shrink)

Concerns about threats to human autonomy feature prominently in the field of AI ethics. One aspect of this concern relates to the use of AI systems for problematically manipulative influence. In response to this, the European Union’s draft AI Act (AIA) includes a prohibition on AI systems deploying subliminal techniques that alter people’s behavior in ways that are reasonably likely to cause harm (Article 5(1)(a)). Critics have argued that the term ‘subliminal techniques’ is too narrow to capture the target (...) cases of AI-based manipulation. We propose a definition of ‘subliminal techniques’ that (a) is grounded on a plausible interpretation of the legal text; (b) addresses all or most of the underlying ethical concerns motivating the prohibition; (c) is defensible from a scientific and philosophical perspective; and (d) does not over-reach in ways that impose excessive administrative and regulatory burdens. The definition is meant to provide guidance for design teams seeking to pursue responsible and ethically aligned AI innovation. (shrink)

This article argues that businesses are morally responsible for compensating the people harmed by their activities even if they were not negligent, i.e., the businesses took reasonable precautions. Critics of this position maintain that responsibility requires choice, and by taking precautions, businesses choose not to harm others. This article accepts their argument’s first premise but rejects the second premise. It contends that businesses often seek risky or innovative activities to increase profits, and the essence of innovative activities is that (...) precautions cannot sufficiently reduce their foreseeable harmful consequences. The correct understanding of businesses’ decision-making enables us to appreciate that businesses choose to undertake risky activities while knowing that they can harm others despite preventive measures. It follows that preventive measures should not serve as an excuse against liability for harm. (shrink)

Just war theory is currently dominated by two positions. According to the orthodox view, provided that jus in bello principles are respected, combatants have an equal right to fight, regardless of the justice of the cause pursued by their state. According to “revisionists” whenever combatants lack reasons to believe that the war they are ordered to fight is just, their duty is to disobey. I argue that when members of a legitimate state acting in good faith are ordered to fight, (...) they acquire a pro-tanto obligation to obey which does not depend for its validity on the justice of the cause being pursued. However, when the war is unjust, this obligation may be overridden, under certain conditions, by the obligation not to contribute to the unjustified killing of innocents. This is because the pro-tanto force of the duty to obey the law is best understood in terms of “presumptive”, rather than “exclusionary” reasons for action. This approach captures the insights of both the orthodox and the revisionist view, while avoiding the problems that afflict each of them. (shrink)

This paper argues that there is a significant moral difference between force applied against (imminent) attackers on the one hand and force applied against “threatening” people who are not (imminent) attackers on the other. Given that there is such a difference, one should not blur the lines by using the term “self-defense” (understood as including other-defense) for both uses of force. Rather, only the former is appropriately called self-defense, while for the latter, following German legal terminology, the term “justifying (...) class='Hi'>defensive emergency” will be used here. The two justifications are not governed by the same criteria and thus lead to different results. The paper will proceed by providing first, in section (1), a brief sketch of the contours of the self-defense justification, putting particular emphasis on the necessity criterion. On the account presented here, the necessity criterion of the self-defense justification is particularly harsh on the aggressor (and thus not to be interpreted as literally requiring the employment of “the mildest means”) and its applicability is only triggered by an (imminent) attack, not by other kinds of threats. Section (2) will then further explain the differences between self-defense and justifying defensive emergency. A particularly important difference is that people who are subjected to justified self-defense cannot permissibly defend themselves, while people who are subjected to (extremely harmful or even lethal) justified defensive emergency measures can. Thus, in this latter case we have a “moral equality” (of sorts) of the involved parties: they can permissibly use force against each other. Section (3) will list and defend some conditions that a successful argument against the imminence requirement of the self-defense justification has to satisfy. In the light of these conditions, sections (4) to (7) will discuss a number of objections that have been adduced against the imminence requirement as well as proposals that have been made in support of alternative accounts. It will be argued that all these objections and proposals fail. Section (8) will provide a number of thought experiments in support of the claim that the harsh necessity criterion of the self-defense justification is only triggered by imminence while force against non-imminent threats can be justified with the help of the justifying emergency exemption, as well as for the claim that the justifying emergency exemption puts the person using preventive force against non-imminent threats on a shorter leash and makes him liable to counter-measures. Section (9) will explain the rationale for tying the applicability of the harsh necessity criterion of the self-defense justification to imminent attacks. Section (10) will discuss some special cases and show why they do not undermine the normative validity of this tie. (shrink)

This book explores the nature of moral responsibilities of affluent individuals in the developed world, addressing global poverty and arguments that philosophers have offered for having these responsibilities. The first type of argument grounds responsibilities in the ability to avert serious suffering by taking on some cost. The second argument seeks to ground responsibilities in the fact that the affluent are contributing to such poverty. The authors criticise many of the claims advanced by those who seek to ground stringent responsibilities (...) to the poor by invoking these two types of arguments. It does not follow from this that the affluent are meeting responsibilities to the poor. The book argues that while people are not ordinarily required to make large sacrifices in assisting others in severe need, they are required to incur moderate costs to do so. If the affluent fail consistently to meet standards, this fact can substantially increase the costs they are required to bear in order to address it. (shrink)