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A Few Short Steps to the Gallows

Beware gentle reader! To pass beyond this point is begin a quick march to a place you would rather not go. Be prepared to make tough choices. Watch your step but try to keep up with the group.

We begin with a version of Robert Nozick's "Falling Man" case. 

INNOCENT FALLING MAN
Sam is standing at the bottom of a well when a large man accidentally falls in at the top and hurtles down towards Sam.  Sam can't get out of his way. When he lands the falling man's bulk will certainly kill Sam instantly but, with Sam cushioning his fall, the falling man will certainly survive. Sam happens to have in his possession a ray gun which is capable of vaporizing the falling man, saving Sam's life.

Is it morally permissible for Sam to vaporize the fat man? Nozick thought so. Yes, the falling man is innocent. He does not want to kill Sam. But Sam is innocent too and he has a right to self-defense. That was Nozick's point.

Not everyone agrees. Some philosophers think you don't have the right to defend yourself against innocent threats. So let us roll back and start at what I hope is bedrock common ground.

VILLAINOUS FALLING MAN
Sam is standing at the bottom of a well as before. But this time the large man jumped in deliberately.  He wants to kill Sam; believes that his falling bulk will do the job and is confident that — with Sam's body cushioning his fall— he will walk away unharmed. Sam knows all this and he still has that ray gun.

Is it morally permissible for Sam to vaporize this falling man?  Surely!  This is attempted murder. Sam would be acting in self-defense.

If you don't believe you have the right to self-defense—ever— you should certainly stop reading now and, well... best of luck to you in your future endeavors.

Are they gone? Good. Let us proceed.

INNOCENT FALLING MAN II
Same as the first case: Innocent man hurtling towards Sam. But now Sam doesn't have a ray gun. He has an ordinary gun. The falling man would be hard to miss so Sam can be confident of wounding him; perhaps fatally. But this won't stop the falling body or prevent Sam's death.

Knowing all this (somehow, suppose) may Sam use his gun?

Notice that if Sam does shoot in this case we cannot properly describe what he is doing as "self-defense". Shooting doesn't defend him from anything. It would be more accurate to call it retaliation — preemptive retaliation — for the harm the falling man is about to inflict on him; is this permissible?

I myself don't think so. The falling man is innocent. Hurting him is not going to save Sam's life. For him to deliberately harm this innocent person seems to me gratuitous, spiteful and morally wrong.

If you disagree with me about this— if you think it is permissible for Sam to retaliate however innocent the falling man may be— then you can stay with us but I won't be talking to you in what follows. Try not to get too far out front of the group (and stay well back from me.)

Next step:

VILLAINOUS FALLING MAN II
The same as VILLAINOUS FALLING MAN except that Sam now has only the ordinary gun. If Sam shoots he will certainly injure, and perhaps kill, the falling man. The falling body will still kill Sam, but the villain won't walk away unscathed.

Given that this falling man is trying to murder him, would Sam be doing something morally wrong if he were to shoot in this case?

What do you think? Okay, settle down. I can hear some of you complaining (there are always some) about these fanciful philosophical "what ifs". How can you be expected to have robust moral intuitions in response to these unrealistic fables?

Alright. Gloves off. Remember you asked for this.

RAPIST
Sally, a small frail woman, wakes in the middle of the night. There is someone in her room. Instantly she realizes who it must be.

In recent months her community has been terrorized by a serial rapist-murderer. His modus operandi has been publicized by newspapers and television. He tortures, rapes and kills his victims. And it is well known that the more his victims resist, the crueler his attack. Sally has seen an interview with the only victim to have managed, barely, to survive her injuries. She credited her survival only to her extreme passivity and obedience to the rapist's commands. 

Sally cannot escape. She is alone. She can seem him now: a huge, muscular brute. She could claw and kick at him, and perhaps inflict a little pain, but she cannot hope to stop him.

Realistic enough for you?

Now there is a difference between this case and last FALLING MAN story. The difference is that Sally has a positive, prudential reason not to hurt the person who is going to harm her: she will improve her chances of survival (slightly) by not fighting back. So, prudence dictates that Sally should lie back and accept her fate. But prudence is not morality. Our question here, as before, is: is it morally permissible for Sally to try to harm the rapist even though she knows that doing so will not deter him?

Before you answer, make sure you understand the question. You are not being asked here for general crime stopping tips or proscribing for every possible case of rape. The question is whether or not it would be morally wrong for Sally, this particular woman, to hurt this rapist, this particular monster, before he kills her. And be careful not to read into the story elements that aren't there. Maybe you think, or want Sally to think, that she can scar her attacker in ways that will make it easier for the police to apprehend him after her death. 
 Maybe you think, or want Sally to think, that by fighting the rapist she may deter him from future crimes. Sorry, no. This is my story and none of those things are true in my story.

So, what do you think?

My own view is that it is morally permissible for Sally to try to hurt the rapist. I think she may fight him tooth and nail. She may bite, kick, and scratch. She may try to claw his eyes out. I do not think it would be wrong for her to do so even if she knows to a certainty that it will not save her.

And let me be clear: I am not just saying that it would be understandable if she fought back. I am not saying that, given her extreme circumstances, violence on her part is forgivable. I think there is nothing to forgive; if Sally manages to harm the rapist, she will not have done anything wrong.

If you do not agree— If you think it would be every bit as wrong for Sally to try to hurt the rapist as it would be for her to attack some random, innocent stranger on the street— then you need read no further. Thank you for playing.

Self Defense

If we have any rights, we surely have the right to self-defense. And yet self-defense has proven very puzzling to Rights theorists. To see why, take a simple case:

VILLAINOUS AGGRESSOR
There are two agents, AGGRESSOR and VICTIM: AGGRESSOR resents VICTIM for his sauve good looks and skill on the dance floor and has made it clear that he intends to kill him. One day AGGRESSOR shows up at the dance hall, gun in hand. He takes a shot at VICTIM but misses narrowly. He prepares to fire again, taking more careful aim, but VICTIM too has a gun and his only hope of surviving is to return fire and kill or disable AGGRESSOR.

Is it morally permissible for Victim to shoot aggressor? Of course! But now here's the puzzle. Rights Theorists have wanted to say:

1. It is permissible for VICTIM to shoot AGGRESSOR because VICTIM has the right to self-defense.
2. VICTIM has the right to self-defense because he, like everyone, has the right not to be killed or harmed. (That is why, if you are attempting to kill or harm him, you are doing something wrong.)
3. In defending himself, VICTIM will kill or harm the AGGRESSOR.
4. If the AGGRESSOR, had a right not to be killed or harmed, then it would be impermissible to kill or harm him.

The puzzle is: what happened to AGGRESSOR’s right not to be harmed?

It seems we must say that, by launching his attack, the attacker somehow loses his right not to be harmed. But where does it go?

Note that wherever it goes it doesn't go very far: Suppose that AGGRESSOR takes his second shot and his defective gun explodes rendering it useless and leaving him wounded and helpless on the ground. AGGRESSOR is no longer a threat and now most people (well, anyway, most philosophers) think it would be wrong for VICTIM to draw his gun and execute the now helpless AGGRESSOR. Apparently, AGGRESSORs right against being harmed returns as soon as he is no longer a threat to VICTIM’s life.

And yet there must be more to AGGRESSOR’s losing his right against harm than his just being a threat. After all as soon as any victim decides to defend himself against any aggressor he becomes a threat to that aggressor but we don't want to say that deprives a defender of any rights.

So maybe we should say that the AGGRESSOR's right not to be harmed doesn't go away at all? Couldn't we say that while AGGRESSOR retains his right not to be killed, VICTIM’s right to self-defense is more stringent or weighty than a simple right not to be killed and so it overrides or trumps the AGGRESSOR's right?

But that doesn't seem right either. Even acting in self-defense you have to respect some people’s right not to be harmed. Thus it would not be permissible for VICTIM to defend himself by grabbing some innocent bystander and use him as a shield against AGGRESSOR's bullet. The bystander’s right not to be harmed is not trumped or overridden by VICTIM’s right to defend himself.

So it must be something specific to the AGGRESSOR that removes, diminishes or discounts his right against being harmed; something that distinguishes AGGRESSOR from the bystander. But what can that be?

Isn't the answer obvious? AGGRESSOR, unlike the bystander, is a bad guy. He is trying to do something morally impermissible and for that reason he forfeits his claims against others harming him.

Alas, this collides with the problem of "innocent threats". Two examples from the literature:

FALLING MAN
Out for a walk one day, this man was swept up by a tornado. Now he is plummeting towards earth. When he strikes he will fall directly on VICTIM.  With VICTIM's body cushioning his fall the FALLING MAN may survive but VICTIM will certainly be killed. VICTIM cannot get out of the way, but is carrying a ray gun which he can use to vaporize the falling man and save himself. *

HUMAN SHIELD
An enemy has sent an automated tank on its way to kill VICTIM. VICTIM has an anti-tank gun and can destroy the tank. To discourage this, the aggressor has strapped an innocent passerby to the front of the tank to act as a human shield. Victim can save himself only by killing this person. *

In both these cases most people would say that it is morally permissible for VICTIM to defend himself even though, regrettably, this would result in the death of an innocent person. And by "most people", I do not mean just "most philosophers" or "most undergraduates when given questionnaires". I mean that it is the nearly unanimous opinion of all mankind, in virtually every human society of which we are aware, in every legal system ever devised, that this is so. No court-- not now, not ever-- would hold VICTIM guilty of wrongful killing if he defended himself in these situations. No work of literature or drama has or would treat a victim’s refusal to defend himself in such circumstances as anything less than heroic; that is, as a sacrifice beyond the call of moral duty.

All of which seems to leave the right theorists with a choice of bullets to bite.

Judith Jarvis Thomson and Frances Kamm conclude that, given that it is permissible to kill innocent threats, we just have to say that that FALLING MAN and HUMAN SHIELD, because they are threatening VICTIM’s life, have forfeited their rights not to be harmed no less that the villainous AGGRESSOR, albeit through no fault of their own.

This seems odd and, again, opposed to common sense. No jury-- not now, not ever-- would convict these innocent threats of any crime were the Victim to be killed. The Shield and the Falling Man do not choose to cause death Yes, VICTIM’s death would be a bad thing, but it wouldn't be their fault any more than it would be a bystander’s fault. How can their actions, if they can even be called that, represent a forfeiture of their rights?

But then what is the alternative?

Means and Ends

Consider this  principle proposed by Judith Jarvis Thomson in The Realm of Rights.  

The Sole-Means Principle for Permissibility: If the only means X has of doing Beta is doing Alpha , then it would be permissible for X to do beta if and only if it would permissible for X to do alpha.  

If the Sole Means Principle (SMP)  is correct there are  far reaching consequences and Thomson does not hesitate to use it to draw large scale conclusions about rights and morality.

Here is one of her examples.   You are standing on your  property and observe that Smith is about to walk on your newly sown lawn.   Would it be permissible for you to tell  him to stop?  Indeed,  to yell loudly at him , "Stop!", if that's what it  would take to get him to stop?   You might think so.  It is your lawn after all.  You have property rights and isn't it always permissible to enforce your rights?   Shouldn't we agree that:  

(r )  If A has a claim that B not φ  then it is permissible for A to prevent B from φ -ing.  

"No", says Thomson.  Suppose that we change the story.  Suppose there is someone else, Jones, in the picture.   Jones is standing, not on your property, but nearby at the edge of a cliff.  As before,  Smith is about to trample your grass  and the only way you can prevent him from doing so is to yell, "Stop!".  The thing is, Jones is so skittish that if you yell,  Jones will jump.  And if Jones  jumps he will tumble down the cliff to his death.  And suppose (somehow) you know all this.   

In that case it is clearly impermissible for you to yell "Stop!".  You would be killing poor innocent Jones.  But given that yelling is the only means available to you to prevent Smith from walking on your lawn  it follows from SMP that it is, in this case, impermissible for you to enforce your claim.   Thus, Thomson concludes,  (r) is false.  

Now I think (r) is true.  It is a core claim of Retributive Ethics.   But I agree that in this case it would be impermissible for you to yell "Stop" because that would kill Jones.  So I agree that, in this situation, you have no  morally permissible means available to you for preventing Smith from walking on the grass.   But I  think, nevertheless that it is permissible for you to prevent Smith from walking on the grass.  You have a morally permissible end, but no permissible means to achieve it. I reject SMP.  

So let me give you seven (7)  arguments that SMP is wrong.  

Obligations and the Obligatory

What is the connection between our moral rights and duties and what we ought to do?  What principles bridge these different forms  of moral talk?  

In my last post on Retributive rights I mostly avoided the language of "ought" because I was there concerned to conjure retributivist rights out of the abstract logic of Hohfeldian rights.   But there is no reason to be coy here.  On the Retributivist view the hinge that connects talk of right and ought is just this.

(R)

A has a claim against B that B φ. B has a duty to A to φ .

=

It is morally permissible for A to force B to φ .

(R) is something new.  So far as I know, all prior attempts to connect moral rights with moral oughts have involved variations on.  

(M)

Someone has claim that A  not φ. A has a duty to someone not to φ .

iff

It is impermissible for A to φ.

The variations involve dropping one half  of the bi-conditional and/or adding qualifications of various sorts on either side.   

(R) and (M)  are logically independent and a Retributivist can, and I do, reject (M) without qualification. 

A notorious problem with (M)  is that it seems to lead directly to paradox.  I promise A that I will φ and I promise B that I will not φ .  The promise seems to give A and B claims against me.  A has a claim that I  φ, B, that I refrain from φ-ing.  But if (M) is correct it would follow that

(O)    it is impermissible for me to φ.

and

(O')    it is impermissible for me  not to φ.

How can that be so? If I really ought to do φ and I ought not to do φ then how do I decide, ... well,what I ought to do? 

Or is it that somehow one promise cancels the other out? And, if so, what mechanism determines which promise prevails?  

I think we should reject the idea that (O) and (O') can be simultaneously true.   These sentences are not formally  contradictory  but the point of a moral theory is to tell us what we ought to do and (O) and (O')  do offer contradictory, and hence worthless, advice.   I take the fact  (M) yields this result as proof that there is something wrong with it. The Retributivist diagnosis is that the paradox  arises from misunderstanding the relation between claims and oughts  in general and the claims created by promising in particular.  

The general point is that, for the Retributivist,  having a duty to to someone to do something does not entail that it is morally impermissible for you not to do it.   Rather it entails that it is morally permissible for that person to force  you to do it;  whether your doing it is permissible or not.  

The particular point about the claims of promising is this:   On the retributivist account,  when I  promise you to φ I  do two things:   

(i)  I give you permission to force me to φ if need be.

(ii)  I  invite you to believe-- at least in part because I have done (i)-- that I will do φ and thus acquire liabilities to compensate you if I don't φ and you suffer in consequence.  

Note again that  neither (i) or (ii) entail that I ought to φ.    

Now, If I promise A to φ and B not to φ, I have given A permission to force me to φ and B permission to forcibly prevent me from not φ-ing and, insofar as they are relying on my promise I am obliged to compensate whoever I disappoint for the costs they incurred .  It is an unenviable position.   I have a dilemma,  but it is not the paradox of (O) and (O').  There is nothing I both ought and ought not do.

Other things being equal, we have an obligation not to harm others. But sometimes things are not equal. Sometimes we will hurt someone no matter what we do.  When we make contrary promises we put ourselves in such a  situation and morality must guide us in deciding what we ought to do. What we have promised does not settle the matter.   

I think that one of the merits of the Retributivist account is that it will give us a plausible reconstruction of how we actually reason when we find ourselves in these dilemmas.    But I will postpone that discussion till a future post.   

Instead, let's round this off by asking if there is some way that (R) could be forced into the same kind of paradoxical corner that traps (M).    

How about this:  what if A promises B to φ and B promises C not to force A to φ.  According to (R), A's promise to B makes it the case that: 

It is morally permissible for B to force A to φ.  

And yet B's promise to C makes it the case that:  

B has a duty, to C, not to force A to φ.   

Isn't this a paradox?  No. Because B's promise does not make it morally impermissible for B to force A to φ.  Instead, according to (R), it makes it permissible for  C to forcibly prevent B from forcing A to φ.  No paradox here: nothing that is both impermissible and not.  

So am I saying that if A promises B to φ then it is always permissible for A to force B φ?  Yes!   

Am I saying that then we are permitted to anything we like to force someone to keep their promises?  No!  

To see how I can say both those things, stay tuned…

The Retributive Theory of Rights

There are many sorts of rights to many different kinds of things and most rights are complex combinations of other rights.  The standard taxonomy of basic rights comes to us from Wesley Hohfeld.  Hohfeld argued that all rights are, or are combinations of, what he called claims, duties, privileges, powers and immunities.  We’ll call them Hohfeld rights (RightsH).

Hohfeld RightsH
A has a claimH that B φ	=	B has a dutyH to A to φ
A has a privilegeH, with respect to B, to φ	=	A has no dutyH  to B not to φ
A has the  privilegeH of  φ-ing	=	A has no dutyH  to anyone not to φ.
A has a powerH	=	A has the ability to alter her own or another's RightsH.
B has an immunity	=	A lacks the ability to alter B's RightsH

Retributive rights (RightsR) are Hohfeld rights to do or not to do a particular kind of thing; viz. to forcibly interfere with other people to prevent them from acting, or to make them act, in certain ways.  Self Defense is a paradigm example of a Retributive right.  Someone acting in self-defense is free, with respect to his attacker, of the normal duty not to harm another.  He has  what Hohfeld would call the privilege of fighting back. 

We can define all the forms of rightR in terms of the Hohfeld’s privilegeH:

Retributive RightsR
A has a claimR,  against B, that B φ B has a dutyR to A to φ	=	A has a privilegeH, with respect to B,  to force B to φ
A has a claimR,  against B, that B not φ B has a dutyR to A not to φ	=	A has a privilegeH, with respect to B,  to force B not to φ.
A has a privilegeR, with respect to B, to φ	=	B has no claimR, against A, that A not φ A has no dutyR  to B not to φ B does not have a privilegeH with respect to A to force A not to φ.
A has the  privilegeR of  φ-ing	=	A has no dutyR  to anyone not to φ No one has a claimR against A’s φ-ing No one has the privilegeH to forcibly prevent A’s φ-ing
A has a powerR	=	A has the ability to alter her own or another's rightsR
B has an immunityR	=	A lacks the ability to alter B's rightsR.

Here we understand  "forcing  B to φ " as  matter of applying the minimum violence or harm  required to cause B to φ.  If you use more force than is minimally required you are doing more than just forcing B to φ; more than you have a right to.  In the case where B will φ without any coercion by A then the minimal force is, of course, no force at all.  

The right of self-defense now appears as the claimR that others not harm you, since.

A has a claimR that B not attack A B has a dutyR not to attack A

=

A has the privilegeH, with respect to B, to forcibly prevent B from attacking  A.

In my last post  on Retributivism I tried to demonstrate that the rights conferred by promising are Retributive.  When A promises B to φ, I argued,  what  is going on is that A is exercising his powerR to waive his normal claimsR  not to be interfered with to confer on B a claimR that A φ.

Hohfeld himself spoke of another Retributive right which will be of special interest to us.  He speaks of a right to “non-interference” in performing an action.  Such a right might arise, say, if B promises not to interfere with A’s φ-ing.  

B’s promise gives A a claimH against B that B not interfere in with A’s φ-ing.   Given that:

A has a claimH against B that B not interfere with A’s φ-ing

=

~(B  has a privilegeH, with respect to A,  to force A not to   φ.)

and

~(B  has a privilegeH, with respect to A,  to force A not to φ.)

=

~ B has a claimR that A not φ

and, in turn,

~B has a claimR that A not  φ

=

A has the privilegeR, with respect to B, to  φ

hence

B has a dutyH to A not to interfere with A’s φ-ing

=

A has a privilegeR, with respect to B,  to φ.

So, Hohfeld’s right to non-interference in one’s performance of φ  comes down to a privlegeR to φ.

Retributive Ethics

No one, at least no one willing to acknowledge moral rights at all, is likely to deny the existence of Retributive rights. But Retributive Ethics is not just the doctrine that there are rightsR.  It is the thesis that all rights are Retributive:  that they all are, or are combinations of, claimsR, dutiesR and privilegesR.

This is a substantive claim. One, in effect, denied by Hohfeld and more recently by Judith Jarvis Thomson.  They believe that there are rightsH  that are not rightsR.  Let's look at their arguments.

Retributive Ethics

Begin with the principle:

1. It is impermissible to harm others (other things being equal).

I intend 'harm'  in a very broad sense.  Certainly you harm someone if you physically injure them , but also if, without injuring them, you prevent them from doing something they would have preferred to do, or coerce them to choices they would rather not make.  You may also think you do someone a harm if you wound their pride or disappoint them; if so , I won't quarrel with you here: count injured feelings in as well.  Some readers may-- for sophisticated philosophical reasons--  feel uncomfortable with the word  'harm'.  If you  find (1) more obviously true if you replace 'harm' with 'make unhappy' or  'diminish the utility of' or   'interfere with'  or  'act contrary to the long term rationally revealed interests of' ... feel free make the substitution. ¹  You are reading me right if you construe (1) as  an obvious truism.

 

Assuming we agree about (1), we turn to the question of what these other things are that that must be equal?  In what circumstances is it permissible to harm another?

Self-defense is an obvious example.  Other things being equal, if someone is physically attacking you, you are entitled to do them harm.  How much harm is an interesting question.  It is not a matter of strict proportionality.  If the attacker just wants to cut off your arm to add to his collection you are not constrained to do no worse than amputate his.  But if all he aims to do is push ahead of you in a ticket queue, disemboweling him might be excessive.  Roughly speaking,  it seems that if you are the victim of an attack,  you are permitted to do your attacker only as much harm as is required to thwart the attack  and, perhaps, a bit more  to discourage its being renewed.

Details aside, "The Right of Self Defense" obviously means nothing if it does not include permission to do appropriate violence to your attacker. 

My next question is this: does it mean anything more?  Is there something more you must have -- something  beyond the moral permission to forcefully defend yourself -- before you enjoy the right of self-defense in full?

I think it is clear that there is not.  And I take this to show that having the right of self-defense is constituted by-- is nothing but-- the moral permissibility, ceteris paribus,  of doing (appropriate) harm to those who attack you.

The view I am going to call "Retributive Ethics" is the doctrine that all rights are like this.  It holds that all moral rights are merely provisos in the general prohibition against harming others and that what is morally impermissible is always and only the infliction of harms without right.

Retributivism is a reductive claim.  If you like your philosophical theses to be framed as analyses²,  you may take it as proposing a certain form of  analysis of "morally impermissible", viz. :