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)

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)

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)

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)

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 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)

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)

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)

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)

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)

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)

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)

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)

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 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)

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)

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)

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)

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)

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)

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 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)

Should the government censor dangerous anti-vaccination propoganda? Should it restrict the praise of terrorist groups, or speech intended to promote discriminatory attitudes? In other words, should the government curb the advocacy of dangerous ideas and actions (i.e. 'harmful advocacy'), or should the government take a more permissive approach? Strong free speech supporters argue that citizens should be free to engage in and to hear harmful advocacy, arguing that restrictions are deeply objectionable at best, and, at worst, wholly impermissible. To support (...) their position, strong free speech supporters have offered a wide range of arguments and ideas. One of the most interesting arguments revolves around the idea that restrictions on harmful advocacy are deeply insulting to citizens. The worry, broadly understood, is that this kind of censorship is demeaning, treats citizens as though they are stupid, or as though they are children. As such, even when censorship is effective in preventing harms to citizens, it nonetheless comes at the significant political cost of failing to properly respect the citizenry at large. By contrast, so the thought goes, an alternative political scheme that prohibits censorship, or permits it only in exceptional cases, does a better job of respecting citizens as independent, rational, morally responsible agents. This alternative political system may, sometimes, be less effective at preventing speech harms. But it is a political system where citizens can stand tall and hold their heads high. In this paper, I consider and reject three versions of the worry that censorship is insulting. §1 explores the idea that censorship is insulting qua involving a negative appraisal of the citizens being interfered with. The key idea here is that censorship involves a lack of what Stephen Darwall terms ‘appraisal respect’, insofar as the government is suggesting that citizens cannot be trusted to manage their own beliefs and intentions. Drawing on the work of Thomas Nagel, §2 explores the idea that censorship diminishes the political status of citizens. Finally, §3 explores the suggestion that censorship is incompatible with a full appreciation of the thinking nature of citizens, and thus involves a lack of what Darwall would term ‘recognition respect’. The paper argues that censorship is not necessarily premised upon an insulting view of the citizenry. On the contrary, it argues that the best kind of censorship stems from a rich appreciation of the diverse range of capabilities, needs, vulnerabilities, and responsibilities of citizens, as well as the need for co-operation between citizens if societal flourishing is going to be achieved on a large scale. Granted, such a vision places an emphasis on the imperfections and liabilities of citizens – at least when compared to the rather solitary, highly intellectual creature one sometimes finds in the philosophical literature. Still, such a vision of citizens as imperfect falls well short of being genuinely insulting. To err is human. And there’s nothing insulting about being treated like a human. (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)

Professor Fletcher challenges the traditional account of the development of tort doctrine as a shift from an unmoral standard of strict liability for directly causing harm to a moral standard based on fault. He then sets out two paradigms of liability to serve as constructs for understanding competing ideological viewpoints about the proper role of tort sanctions. He asserts that the paradigm of reciprocity, which looks only to the degree of risk imposed by the parties to a (...) lawsuit on each other, and to the existence of possible excusing conditions, provides greater protection of individual interests than the paradigm of reasonableness, which assigns liability instrumentally on the basis of a utilitarian calculus. Finally, Professor Fletcher examines stylistic differences between the two paradigms which may explain the modern preference for the paradigm of reasonableness. (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)

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)

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)

According to common-sense morality, agents can become morally connected to the wrongdoing of others, such that they incur special obligations to prevent or rectify the wrongs committed by the primary wrongdoer. We argue that, under certain conditions, voluntary and unjustified observation of another agent’s degrading wrongdoing, or of the ‘product’ of their wrongdoing, can render an agent morally liable to bear costs for the sake of the victim of the primary wrong. We develop our account with particular reference to widespread (...) modern phenomena such as so-called ‘revenge porn’, ‘up-skirting’, and the online observation of sexual assault and murder. On our account, observation is not a sui generis basis of liability. Instead, observation grounds liability in virtue of manifesting three, more general, grounds of liability. First, observation can compound a primary wrong, making that wrong more harmful for the victim. Second, observation can constitute degrading treatment of the victim. Third, in certain cases observation can enable primary wrongdoing. We conclude by discussing the conditions under which observing degrading wrongs might be morally justified. (shrink)

Complicity marks out a way that one person can be liable to sanctions for the wrongful conduct of another. After describing the concept and role of complicity in the law, I argue that much of the motivation for presenting complicity as a separate basis of criminal liability is misplaced; paradigmatic cases of complicity can be assimilated into standard causation-based accounts of criminal liability. But unlike others who make this sort of claim I argue that there is still room (...) for genuine complicity in the law and in morality. In defending this claim, I sketch an approach to complicity which grounds our liability for what others do not in our causal relation to their actions but in our “agency-relations” with others. In such cases, one agent can be liable for the wrongs of second agent to the extent that first authorizes the second to act at her behest. This approach fills the gap where standard causation-based accounts of complicity fail – especially in where several agents cooperatively contribute to an overdetermined harm. (shrink)

Differential privacy (DP) aims to confer data processing systems with inherent privacy guarantees, offering strong protections for personal data. But DP’s approach to privacy carries with it certain assumptions about how mathematical abstractions will be translated into real-world systems, which—if left unexamined and unrealized in practice—could function to shield data collectors from liability and criticism, rather than substantively protect data subjects from privacy harms. This article investigates these assumptions and discusses their implications for using DP to govern data-driven systems. (...) In Parts 1 and 2, we introduce DP as, on one hand, a mathematical framework and, on the other hand, a kind of real-world sociotechnical system, using a hypothetical case study to illustrate how the two can diverge. In Parts 3 and 4, we discuss the way DP frames privacy loss, data processing interventions, and data subject participation, arguing it could exacerbate existing problems in privacy regulation. In part 5, we conclude with a discussion of DP’s potential interactions with the endogeneity of privacy law, and we propose principles for best governing DP systems. In making such assumptions and their consequences explicit, we hope to help DP succeed at realizing its promise for better substantive privacy protections. (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)

Anna Stilz claims that citizens of democratic states bear “task responsibility” to repair unjust harms done by their states. I will argue that the only situation in which Stilz’s argument for such “task responsibility” is not redundant, given her own premises, is a situation where the state leaves it up to the citizens whether to indemnify others for the harms done by the state. I will also show that Stilz’s “authorization view” rests on an unwarranted and implausible assumption (which I (...) call “the authorization principle”) about authorization and political obligation, and that this problem cannot be remedied by limiting the account to democratic states. I will then briefly turn to Pasternak’s account of citizen responsibility for state action and argue that it suffers from two deficiencies: first, she equates group membership with collective action, and second, she does not provide any explanation as to why citizens should incur liability for the acts of their state under the four conditions she highlights. I conclude that neither Stilz nor Pasternak succeed in showing that at least citizens of democratic states are liable (barring very special circumstances) for the acts of their states. (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)

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)

Are groups ever capable of bearing responsibility, over and above their individual members? This chapter discusses and defends the view that certain organized collectives – namely, those that qualify as group moral agents – can be held responsible for their actions, and that group responsibility is not reducible to individual responsibility. The view has important implications. It supports the recognition of corporate civil and even criminal liability in our legal systems, and it suggests that, by recognizing group agents as (...) loci of responsibility, we may be able to avoid “responsibility gaps” in some cases of collectively caused harms for which there is a shortfall of individual responsibility. The chapter further asks whether the view that certain groups are responsible agents commits us to the view that those groups should also be given rights of their own and gives a qualified negative answer. (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)

The question of why group-differentiated rights might be a requirement of justice has been a central focus of identity politics in recent decades. I attempt to bring some clarity to this discussion by proposing a typology to track the various ways in which individuals can be harmed or benefited as a consequence of their membership in social groups. It is the well-being of individuals that group-differentiated rights should be understood as protecting, and so clarity on the relationship between group membership (...) and well-being is vital. One of the problems with the way in which such justifications have often been formulated in the past has been that they inadvertently position the group as a handicap to be overcome, rather than a value to be protected. I seek to overcome this limitation by clearly specifying the circumstances under which group membership is a liability, and the circumstances under which it has value. While this distinction is important, in both cases there is a relevant interest at stake, and thus the groundwork can be laid for a defence of group-differentiated rights. (shrink)

Abstract: In this article, we explore what are ethical forms of holding service users responsible in mental health care contexts. Hanna Pickard has provided an account of how service users should be held responsible for morally wrong or seriously harmful conduct within contexts of mental health care, called the clinical stance. From a clinical stance one holds a person responsible for harm, but refrains from emotionally blaming the person and only considers the person responsible for this conduct in a (...) detached sense. Her account is based on what are considered best practices in the treatment of people with borderline personality disorder and addiction. We ask if this account generalizes across different diagnostic criteria and different clinical contexts. To begin to answer this question, we compare the clinical stance to an account of what are considered best practices in the treatment of service users at a specialized clinic for people with autism spectrum disorder in the Netherlands. We refer to this alternative account as the nurturing stance and highlight relevant similarities and differences between the clinical stance and the nurturing stance. We conclude with suggestions for further research and theorizing. (shrink)

Whether causing flash crashes in financial markets, purchasing illegal drugs, or running over pedestrians, AI is increasingly engaging in activity that would be criminal for a natural person, or even an artificial person like a corporation. We argue that criminal law falls short in cases where an AI causes certain types of harm and there are no practically or legally identifiable upstream criminal actors. This Article explores potential solutions to this problem, focusing on holding AI directly criminally liable where (...) it is acting autonomously and irreducibly. Conventional wisdom holds that punishing AI is incongruous with basic criminal law principles such as the capacity for culpability and the requirement of a guilty mind. -/- Drawing on analogies to corporate and strict criminal liability, as well as familiar imputation principles, we show how a coherent theoretical case can be constructed for AI punishment. AI punishment could result in general deterrence and expressive benefits, and it need not run afoul of negative limitations such as punishing in excess of culpability. Ultimately, however, punishing AI is not justified, because it might entail significant costs and it would certainly require radical legal changes. Modest changes to existing criminal laws that target persons, together with potentially expanded civil liability, are a better solution to AI crime. (shrink)

Many suggest that we should look backward and measure the differences among various parties' past emissions of greenhouse gases to allocate moral responsibility to remedy climate change. Such backward-looking approaches face two key objections: that previous emitters were unaware of the consequences of their actions, and that the emitters who should be held responsible have disappeared. I assess several arguments that try to counter these objections: the argument from strict liability, arguments that the beneficiary of harmful or unjust emissions (...) should pay, and arguments from distributive justice. I argue that none of these successfully justify a backward-looking approach to the temporally remote portion of the climate burden. (shrink)

If death is a harm then it is a harm that cannot be experienced. The proponent of death's harm must therefore provide an answer to Epicurus, when he says that ‘death, is nothing to us, since when we are, death is not present, and when death is present, then we are not’. In this paper I respond to the two main ways philosophers have attempted to answer Epicurus, regarding the subject of death's harm: either directly or (...) via analogy. The direct way argues that there is a truth-maker (or difference-maker) for death's harm, namely in virtue of the intrinsic value the subject's life would have had if they had not died. The analogy argues that there are cases analogous to death, where the subject is harmed although they experience no pain as a result. I argue that both accounts beg the question against the Epicurean: the first by presupposing that one can be harmed while experiencing no displeasure as a result and the second by conflating a de re with a de dicto reading of death's harm. Thus, I argue, until better arguments are provided, one is best to agree with Epicurus and those who follow him that death is not a harm. (shrink)

Particular applications of Privacy by Design (PbD) have proven to be valuable tools to protect privacy in many technological applications. However, PbD is not as promising when applied to technologies used for surveillance. After specifying how surveillance and privacy are understood in this paper, I will highlight the shortcomings of PbD when applied to surveillance, using a web-scanning system for counter-terrorism purposes as an example. I then suggest reworking PbD into a different approach: the Minimum Harm by Design (MHbD) (...) model. MHbD differs from PbD principally in that it acknowledges that the potential harms of surveillance bear not only upon privacy but also values that define the very constitution of a society and its political character. MHbD aims to identify and systematise the different categories of such harms and links them to current theories on surveillance on the one hand and on possible design measures on the other. (shrink)

From a nonideal justice perspective, this article investigates liability and compensation intheir wider theoretical context to better understand the governance of climate loss anddamage under the United Nations Framework Convention on Climate Change(UNFCCC). The usual rationale for considering compensation takes a backward-looking understanding of responsibility. It links those causing harm directly to its remedy. Thisarticle shows that, under current political circumstances, it is more reasonable to understandresponsibility as a forward-looking concept and thus to differentiate responsibilitieson grounds of capacity (...) and solidarity. The article argues that loss and damage entitlementsinUNFCCCgovernance should be understood as entitlements to a threshold of capabilitiesfor resilience. While compensation merely means redressing the situation ex ante a threat,entitlements to capabilities for resilience can entail more demanding responsibilities ofsupport. This means that Article 8 of the Paris Agreement has much more demandingimplications than it might at first appear. (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)

According to the dominant position in the just war tradition from Augustine to Anscombe and beyond, there is no "moral equality of combatants." That is, on the traditional view the combatants participating in a justified war may kill their enemy combatants participating in an unjustified war - but not vice versa (barring certain qualifications). I shall argue here, however, that in the large number of wars (and in practically all modern wars) where the combatants on the justified side violate the (...) rights of innocent people ("collateral damage"), these combatants are in fact liable to attack by the combatants on the unjustified side. I will support this view with a rights-based account of liability to attack and then defend it against a number of objections raised in particular by Jeff McMahan. The result is that the thesis of the moral equality of combatants holds good for a large range of armed conflicts while the opposing thesis is of very limited practical relevance. (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)

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)