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February 12, 2014


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Hi Andrew

the problem that you raise is quite similar to the escalation problem that just war theorists have discussed.

Suppose that it's disproportionate to kill a person to stop him stealing my wallet.

Now consider:

1) X says to Y - hand over your wallet or I'll kill you.
2) Y refuses knowing that X will then attempt to kill him, and knowing that he will be able to prevent him doing this only by killing X.
3) X attempts to kill Y
4) Y kills X to prevent X killing him.

If it's disproportionate for Y to kill X to stop X taking Y's wallet, I think that the conjunction of Y's acts in 2) and 4) are wrong. Many just war theorists, though, disagree.

Now suppose that in 4), Y had an option to run away rather than killing X, but if he did so he would drop his wallet, which X would then pick up and keep. He will suffer no other harm. I think that if it is wrong for Y to kill X to stop X taking his wallet, Y is also required to run away.

So I think that when confounding factors are excluded, there is no moral difference between Type 1 cases and Type 2 cases that you mention.

Now, we might also evaluate whether Y is permitted to defend himself given his refusal in 2). Suppose that Y refuses, knowing that X will threaten him. X threatens him. Is Y permitted to defend himself despite the fact that the conjunction of his acts is wrong?

Similarly, consider this more extreme variation on your undergraduate case. Suppose that Y knows that if she goes to the party X will attempt a serious assault on her, serious enough that killing X would normally be a proportionate response. Y knows that she will be able to do this, and when threatened that is what she will do. One question is whether it is wrong for Y to go to the party and defend herself against X, killing him. Another question is whether if she goes to the party she is permitted to defend herself against X.

I am not sure whether it is coherent to say this, but I am tempted to say that it is wrong for Y to go to the party and kill X, but that if she goes to the party and X attempts this serious assault, she is permitted to kill X. This is so, I think, even though if she kills X the conjunction of her acts of going to the party and killing are wrong, whereas if she does not kill X she will not have acted wrongly. I certainly think that if Y goes to the party, a third person, Z, ought not to prevent Y from killing X, say by taking away her gun, if otherwise Y will be seriously assaulted.

Hi Andrew

great post and I very much agree with your intuitions! I also think that it is brilliant question what the moral difference between Type 1 and Type 2 cases. Can I just run one attempt to draw the distinction which is different from going and staying?

Could it be that there are two different moral principles for two different type of situations? One principle governs where you may go or stay when you are not under attack. This would be a liberal one, which entitles you to go anywhere really unless you violate other people's property rights etc. (Victor's last cases might show that in some situations even this principle is overriden by other considerations).

Another principle might apply only when you are already under attack. This principle requires you to flee if this is an alternative to avoid an attack. So, when you are under attack some of your entitlements to go or stay are being limited. There is thus a way in which the attack transforms the normative landscape you are in: different principle applies to you as you are in different situation now.

Of course this proposal still leaves it open why such different principles apply in the different circumstances: when you are under attack and when you aren't (but might be in the future). Why does being under attack make such a difference to what you may do? Perhaps there are general justifications for this: it could be that having distinct rules like this have good consequences or they create less serious burdens for individuals in long term or something like this.

Hi Andrew,

This is an interesting question. My initial reaction is that the criminal law enforces a general principle restricting the use of violence, and operates on a pretty robust understanding of individual's ability to refrain from using violence.

So, everyone is supposed to refrain from violence. The effect of this principle varies depending on the circumstances. If you're considering where to go and spend your time, then the principle is silent. Even if you can reasonably be sure that your presence will cause someone else to become enraged and assault you, the general principle against violence applies to them as well. So they're obligated not to assault you, even though you are not obligated not to show up wherever they are.

Once attacked, however, the general principle against use of violence means that you only use it as a last resort. So the principle is still in play even for the victim's of assault, who should modulate their response appropriately.

Thus, the difference between Type-1 and Type-2 is that you are not obligated by the principle against violence to ensure that others comport with that same principle. I'm not sure that's a fully satisfactory answer; but it's my initial thought.

It's a fine topic. Many thanks.

I agree with previous comments that call attention to the whole landscape of duties, rights, and obligations involved in Type-1 and Type-2 cases, and the fact that this normative landscape involves both self-defenders and attackers. I also agree that circumstances are important. (Whether one is already under attack or not; whether one is at home or not; etc.) May I just add an additional worry about these cases? It isn't exactly necessity that law and presumably morality are worried about. That's too strict a standard. It is rather the presence and reasonability of the self-defender's belief that his or her life is in danger and that there is no effective defensive alternative to the use of violence. And sometimes even that is also too strict a standard. Honest rather than reasonable belief sometimes suffices for people who have a legal duty to stand their ground – e.g., police officers. And then proportionality considerations apply.

Hi Andrew,

A quick suggestion:

One difference between the two types of cases that I think might be driving the different intuitions is this: In the Type II case, the agent's action of going to the place of aggression leaves it in the hands of the aggressor whether he will be harmed or not: even if the agent goes there, the aggressor has a perfectly legitimate way of avoiding the harm, namely by not attacking the agent, and the aggressor would be responsible for not choosing this way. In Type I cases by contrast, the aggressor would not be able to avoid the unnecessary harm inflicted on the aggressor by the agent. The aggressor is of course responsible for the aggression, but as the aggression has begun, it is now in the hands of the agent.

One way to bring out the role of responsibility is to think of a Type II* case, which is like the Type II case, except the aggressor would not be responsible for his aggression should the agent show up. Perhaps, through no fault of his own been given a drug. It is the drug that causes the aggressive disposition, and it does so in a way that removes the aggressors responsibility for his reaction. If the agent knows this, the agent doesn't seem to me to have the right to go to that place, knowing that he will have to harm the aggressor to avoid being harmed himself.

Oops. I was a bit too quick in writing down that suggestion. The sentence

"The aggressor is of course responsible for the aggression, but as the aggression has begun, it is now in the hands of the agent."

should have said

"The aggressor is of course responsible for the aggression, but if the agent resorts to violent defence, the aggressor cannot then avoid being harmed by it."

Great post. I am worried about the fitting attitude analysis of the dangerous as that which merits fear, because some things seem to merit fear which are not at all dangerous. For example, viewing the shower scene in 'Psycho', a magician doing a sawing the person in half type of trick, or going on a roller coaster ride. Whether things merit fear, to put it bluntly, seems to have more to do with how dangerous they seem to a fully informed and otherwise generally normal observer than with how dangerous they actually are. It would be no surprise, of course, to learn that 'seemingly dangerous' is a response dependent property. So you need to prove that your response-dependent analysis is of the underlying property of actual dangerousness, if you want to show there's a surprising and significant kind of response dependence here.

Whoops I don't know how that ended up here, sorry!

Hi everyone -- Sorry for the very late response; my mom was in town, etc., etc., etc….

Victor -- Yes, this "wallet" case is very helpful -- especially in, as you say, removing "confounding factors". For in your case, the envisaged loss to Y in failing to give up his wallet in response to the threat is the same as the envisaged loss to Y in running away -- namely, his wallet. That wasn't true in my original cases.

Now, you also raise this matter of how to evaluate combinations of actions as opposed to individual actions. I appreciate this, as it helps to highlight some unclarity in the original post. I am uncomfortable ascribing deontic status to combinations of actions (well, really, to combinations of actions each of which is a distinct object of will; all actions are in some sense composed of other, "smaller" actions). Given the chance to express my thoughts more clearly, I would put my question as follows: "Should we count acts of self-defence in Type 2 cases as impermissible-because-unnecessary", where by "count[ing] them as I-B-U" I mean "treating them, for the purposes of the criminal law, as we would treat paradigmatic cases of unnecessary defensive force -- i.e. Type 1 cases". It's an interesting question how reasons/deontic statuses would have to be distributed over, say, *refusing to give up your wallet* and *using self-defensive force* in order for such treatment to be appropriate. If I had an answer to this question, I'd have something more satisfactory to say regarding Matt's suggestion (see above).

Jussi -- I'd have to hear a bit more about why different principles apply in the different cases. I mean, one explanation -- which is really more of an explaining-away -- is that we have trouble accepting that someone who hasn't yet been attacked could be as justified in believing she'll be harmed by an attack as at least some people who have been attacked. (See my reply to Larry as well.) Another explanation -- and again, I think this is more of an explaining-away -- is that we think of those who stand their ground against an already-initiated attack as motivated by a desire to, well, stand their ground -- to be tough guys or what-have-you; by contrast, we think of those who want to go to locations at which they'll be attacked as motivated by other, better desires. But as I tried to point out at the end of my post, it's not at all clear that a desire to stand one's ground is the only reason for standing one's ground. Maybe you just want to catch your wife singing "Thunder Road" with The Boss. And furthermore, I'm not so persuaded that a motivation to stand one's ground is somehow worse than these other motivations.

Other than that, I'm not so sure how the "moral landscape" can be changed by an attack in the way you suggest. If anything, we might think that your conduct in Type 2 cases is WORSE than your conduct in Type 1 cases. When you go to the scene in Type 2 cases, you're unnecessarily setting in motion a causal chain that will culminate in violence against someone who has not yet attacked anyone, whose moral record is clean, as it were. But when you attack in Type 1 cases, we can at least say that the person you're unnecessarily harming has crossed the moral Rubicon, or whatever.

Matt -- Let me see if I've got your idea right: Is it that what's prohibited is unnecessary violence, which is violence at a time when one is capable of avoiding harm non-violently at the same time? So on this view, there's no unnecessary violence in Type 2 cases, since unnecessarily going to the site of an attack is not violence, and violence in response to the attack is not unnecessary? This is an interesting idea. Now, one thing worth noting is that certain cases that both the law and ordinary morality will count as impermissible-because-unnecessary are not going to involve "unnecessary violence" by this standard. For suppose Biff attacks Doc at t1. Doc is able to escape from t1 through t5 but doesn't, but nor does he fight back in that interval. And then, by the time t6 rolls around, is only way to escape harm from Biff is through self-defensive force. There's no time at which Doc chose violence when he had an option of non-violent escape.

Larry -- Yes, you're absolutely right that "mistaken" self-defence is treated as a justification in A-A criminal law. I generally tried to steer clear of this because I think it adds some complication that I'd preferred to avoid. Also, for reasons of theoretical neatness, I prefer to think of true defence as a justification and mistaken defence as an excuse. For one thing, counting mistaken defence as a justification seems inconsistent with the principle that at most one side in a conflict of force may be justified. When it comes to morality, though, yes, I think there 'oughts' relative to all the facts, to the evidence, to one's actual beliefs, etc. etc.

Gunnar -- This is an interesting suggestion as well. I'm unclear about one thing, though: You're right that *going to the place of aggression* in Type 2 cases gives the aggressor a choice re: being harmed in a way that *harming the aggressor* in Type 1 cases does not. But then again, *going to the place of aggression and harming the aggressor* or simply *harming the aggressor* in Type 2 cases do not seem to give the aggressor a choice re: being harmed. So I guess I'd have to hear a bit more about your suggestion: is it that THE AGENT gives the aggressor a choice in one case but not the other, or that the ACTION UPON WHICH CRIMINAL LIABILITY IS BASED gives the aggressor a choice in one case but not the other, or something else?

I agree with your intuition about the innocent aggressor case, although I'm less confident that it supports your view about the difference between my two case-types. I mean, one thing that's true of the aggressor in your case that's not true of the aggressor in either of mine is that she's non-culpable. That's what seems to be driving my intuition that the agent in your case should avoid "setting the aggressor off", as it were, and then harming her in self-defence.

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