10. alexander larry, justification and excuse

8/11/2019 10. Alexander Larry, Justification and Excuse

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Self-Defense, Justification and ExcuseAuthor(s): Larry AlexanderSource: Philosophy & Public Affairs, Vol. 22, No. 1 (Winter, 1993), pp. 53-66Published by: Wiley

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LARRY

ALEXANDER

Self-Defense,

Justification,

and

Excuse

In

Self-Defense, Judith Thomson

presents us with six

scenarios in

which someone must kill another

to save his own life.'

In three of the

scenarios,

she

argues,

the

killing

is

justifiable,

not

merely excusable.

That is, the

killingvindicates

the

killer'srights

and

does not

violate the

victim's rights; it is not merely an understandable houghregrettablehu-

man reaction. In the other three

scenarios,

the

killing

is

wrong,

a

viola-

tionof the

victim's rights.Whether t

is

nonetheless excusable is an

issue

Thomson does not

address.

At the outset of

her

article,Thomson notes that

there is an

alternative

account

of

self-defense,

one

that

deems

at

least

some

of her

justifiable

killings

in

self-defense

not

justifiable,

but

merely

excusable

(p.

285).

1

do

not know whom

she

had

in mind as

belonging

to

this

camp,

but

I

myself

do.2

Moreover,

I have

not been

persuadedby

Thomson's argu-

ments that justifiable, as opposedto excusable, self-defense extends to

as many cases as she contends.

On the other

hand,

I shall

argue that

some of

the

cases in which

Thomson

rejects

justified

self-defense are

cases in

which

we should

accept

it.

My

bottom

ine is

that,

unlike Thom-

son, I

do

not

believe we have a

coarse-grainedright

not

to

be

killed,

a

right

that

gives

rise

to a

justification

to use

deadly

force to save

our life

whenever

we

are

not

aggressing against

or

threatening

the lives of

oth-

ers. I

believe,

rather,

that

we have

only

a

fine-grainedright

not

to

be

I wish to

acknowledge

the invaluable

comments

and

criticisms of Leo

Katz, Judith

Thomson, and Steven Walt.

i.

Judith Jarvis

Thomson,

Self-Defense,

Philosophy

& Public

Affairs 20,

no.

4 (Fall

I991):

283-310. Otherwise unidentified

page

references are

to

this

article.

2.

See

my

Justification

and Innocent

Aggressors,

Wayne

Law

Review

33 (I987):

1177-89.







54

Philosophy

&

Public

Affairs

killed;

and

this

fine-grainedright may

or

may

not

be

threatened in two

of the scenarios in

which

Thomson permits killing in self-defense, and

may

or

may

not be violated in two of

the scenarios in which

Thomson

forbids killing in self-defense. Whether this right is threatened or vio-

lated

depends

on

the existence

of

further facts.

I.

THOMSON's

ARGUMENT

Thomson builds

her case

using

a

familiarmethodology hat tests princi-

ples against

intuitions and vice

versa.

She

gives

us her

intuitive judg-

ment as

to

the

permissibility

of

self-defense

killing

in each of

her six

scenarios. She constructs

more

general principles

from

these

intuitive

judgments.

She

tests

the

principles by asking

how

they handle some

problem

cases as

compared

to

alternative

principles.

Her six

scenarios

are as follows:

Villainous

Aggressor:

A

driver of a truck

is

villainously aggressing

against you by trying

to

run

you

over. You

can

stop

him

only by

blow-

ing up

the

truck,

which

will kill

him.

(pp. 283-84)

InnocentAggressor:

The

same

as Villainous

Aggressor,except

that

the

driver s

morally

blameless

(perhaps

he has been

duped

or

doped). (p.

284)

Innocent Threat:

A

fat

man

accidentally

alls

from a

cliff above

you. If

you shift the positionof your awning, he will be deflected away from

you

and be killed. If

you

do

not

do

this,

he will fall on

you

and

kill

you,

though

he will not be killed.

(p. 287)

Substitution-of-a-Bystander(Trolley):

A

villain

has started a

trolley

down a track toward

you.

You cannot

get

off the track in time or

stop

the

trolley;

and if

you

do

nothing, you

will

be

killed. You

can, however,

pull

a

switch and

deflect the

trolley

onto a

siding,

where it will kill a

bystander.(pp.

289-go)

Use-of-a-Bystander:The same as Trolley,except that the only way you

can save

yourself

is

to shoot a

bystander,

who will

fall

on the

tracks

and

stop

the

trolley

before

it

reaches

you,

but

will be

killed in

the

pro-

cess.

(p. 290)







55

Self-Defense, ustification,

and Excuse

Riding-Roughshod-over-a-Bystander:

villain is afteryou and trying

to kill you.

The only escape path is over

a bridge that

will hold only

one person.

The bystanderwho is already

on the

bridge

will be toppled

off to his

death if

you

run

onto

the bridge. (p. 290)

Thomsonbelieves

that

you

are justified-not merely

excused-in sav-

ing yourlife at another'sexpense in the first threecases, which she calls

Yes cases

(p.

289). Conversely,

she believes

that

you are

not justified in

saving your

life in the

last three

cases,

which she calls No cases (p. 289).

In the Yescases, the person

you

are

justified

in

killing will kill you if you

do

not kill

him, though

he

may

be

faultless

in

doing

so.

In

the

No

cases,

the

person

you

must kill

to

save

yourself

is

a

bystander,

a person who is

in

no

way

causally

involved

in the

situation

that consists in your being

at

risk (in

the sense

that

if you die,

it will

not be true that

the bystander

killed you).

Thus, in these scenariosThomson's ntuitions track the distinction be-

tween those

who

will kill

you

and those

who

are bystanders

with

respect

to

your

death.

Thomson

suggests

that the

following principle

explains

the

specific

judgments:

Otherthings being equal, every person

Y

has

a

right against

X

that X

not kill Y. (p. 299)

That

principle explains

the No

cases,

since

in all

three, bystanders'

rights

will be violatedby you

if

you

kill

them to save yourself.

The principlealsoexplainsthe Yes cases. For n these cases, your right

not to

be killed will

be violated if

you

do

nothing.

And

if someone

will

violate

yourright

not to

be

kiUled,

e lacks

a

right

not to

be

killed

(insofar

as

the

killing

is

in

self-defense).

Therefore, your

self-defense

killing

of

him

will not violate

his

rights

and

is

permissible

to

preventyours

from

being

violated

(p. 300).

Thomson recognizes

that

many

will

balk

at

her

argument

that

despite

their lack

of

fault,

the driver n Innocent

Aggressor

and the fat man in

Innocent

Threat

lack a

right

not

to be

killed

(pp. 302-3).

She

contends,

however,that thosewho wouldsay thattheyretain a rightnot to be killed

must be

prepared

to

argue

that

they

have

a

right

to kill

you

to

prevent

you

from

killing

them

(to prevent

them from

killing you)

(pp. 304-5).

I

agree

with Thomson

on this

point.







56

Philosophy

&

Public

Affairs

Thomson also argues that if you may kill in self-defense, others may

assist you

in

killing

even

though they

are

not

threatened

and

therefore

lack any excuse you might have arising from the instinct for self-pres-

ervation (p. 306). Again

I

agree

with her. But

this

raises a

difficulty for

her analysis.

For

why

should a third

party, X,

intervene

on

your side in

Innocent Aggressor

or

Innocent Threat? Both you and the aggressor/

threat are innocent in a moral sense. Whyif X chooses to intervene must

X

prefer you? (p. 306)

Thomson recognizes thatX'sright

to

kill

for

you is derivative romyour

right

to kill for

yourself (pp. 306-7).

If

you

have a

right,

X

has

a

right.

Conversely,

f

X

does

not have a

right,

then neither do

you.3

And if

you

do not

have a

right

to kill

the driver n Innocent

Aggressor

and the

fat

man

in

Innocent

Threat,

then

you

do not have a right not to

be

killed

in

any unqualifiedsense. Thomson's

answer

to

why X,

if he is to

intervene,

must intervene

on

yourside

is that

you

have

a

right

to

kill the driverand

the fat man, but they do not have a right to prevent you from killing

them. Since you

have

a

right,

X has a

right

to

kill

on

your

behalf.

Since

the driverand the fat man

do not

have

a

right,

X has

no right

to kill

on

their behalf.

Turning finally

to the

No cases,

Thomson

asks

us

to

consider third-

party

ntervention

n

Trolley.

It

follows

from her

analysis

that if

you may

not

switch

the

trolley

onto the

siding

and

kill

the

bystander-and you

may not, because

the

bystanderhas

a

right

not

to be

killed

and has

not

lost that

right by violating your right

not

to

be

killed-then

neither

may

a thirdparty,X, switch the trolley oryou. But if you maynot switch the

trolley and

kill a

bystander,

neither

may five

of

you trapped

on the

same

track switch

the

trolley,

even

if

only

one

bystander

will

be

killed.

For the

bystander again

has not violated

your right

not

to

be

killed

and thus

re-

tains his own right

not

to

be killed. But

if

five of

you may

not

defend

yourself by switching

the

trolley

and

killing

the

bystander,

hen it would

seem

to

follow that neither

may X,

the

third

party,

save five

lives

by

switching

the

trolley.

And this

result

Thomson

rejects (pp.

309-I

0).

Thomson might try

to

handle

numbers

cases like this last one

by ap-

3.

I

ignore the possibility of agent-relative

justificatory

norms,

as does

Thomson.

I

con-

sider such norms

highly problematic theoretically.

See

my Justification

and Innocent Ag-

gressors,

p.

i

I89;

and

my

Scheffler on the Independence of Agent-Centered

Prerogatives

from Agent-Centered

Restrictions,

Journalof Philosophy

4 (i987):

277-83.







57

Self-Defense, ustification,

and Excuse

peal

to

some special principle

that

permits killing

to effect a net savings

of lives. But such

a

principle

would

produce its

own

problems.

For ex-

ample, there is

the case

of

Surgeon, in

which a

surgeon

can save the

lives of

five

dying patientsby transplanting

he

organs

of

one

healthy

and

unsuspecting one. Thomson would not allow the surgeon

to save lives

by this means.4 Therefore,

she

would

need,

in

addition

to

the right not

to be killed, not only a separateprinciple to handle numberscases, but a

complex principle

that

distinguishes Surgeon

from Trolley in numbers

cases.

But Thomson

does not

provide

some more basic

theory

from

which

all

these

principles

can

be derived.

In her

recent bookTheRealm

of Rights,

Thomson

deals with

numbers

cases by looking

at such factors as

ex

ante

risks

(and

whether

everyone

concerned

would have consented at

some

earlier time

to

the

switching

of the trolley

to effect a

net

savings

of

lives)

and

assumption

of

risk (and

other factors

bearing

on the

voluntariness

of

being

in

peril).5She

be-

lieves Trolleyand Surgeon can be distinguished in numbers cases on

these bases.

For

example,

she argues that,

unlike the

six workmen,

who

she

hypothesizes

are

assigned

by

lot

to work on

the

trolley

tracks-five

on the

main track and

one on the

siding-and

whose

assignment by

lot

is central

to the

permissibility

of

switching

the

trolley,

with

respect

to

Surgeon,

there s no time

at

which

none of the

healthy

adults

among

us

know whether

or not

they

are

healthy (and

thus

at risk of

needing

a

transplantedorgan).6

Moreover,

there

s

no

time after which health or

need of body parts

will come

on

people entirely by

chance

(because

of

how our lifestyles affect ourhealth).7Thus, Thomsonconcludes, there

4. Judith

Jarvis Thomson,

The Realm of Rights (Cambridge,

Mass.: Harvard University

Press,

1990), pp. I39-4I.

5. Ibid.,

pp.

176-202.

6. Ibid., p. I85.

Thomson objects

to

my

reliance on

the

past relationship of the parties

in some of my hypotheticals

(personal correspondence, 29

June I992). See,

for example,

note i8

below. But in her book,

she herself relies on

past

relationships in dealing with

the

numbers cases. Moreover,

to make plausible

her claim that where

there is

no past relation-

ship, one may always justifiably

kill

an

innocent aggressor

and

an

innocent threat, she

would

seem to

be

committed

to

saying

that in numbers

cases

in which there are no past

relationships,

one may not

switch

the

trolley. (The case

of five picnickers, unaware that

they

are

picnicking

on

the overgrown

main

trolley track,

versus one picnicker, similarly

unaware

that she is

on

the siding, might be such

a

case.)

But most will find this result

intuitively

wrong.

7. Thomson,

The

Realm of Rights, p.

i85.







59

Self-Defense,

ustification,

and Excuse

a Threat. lo n this type

of

case,

a

bystanderhas been, say, strappedonto

the front of an

aggressor's

truck. To

stop the aggressor, you must blow

up the bystander.In her

book, Thomson concludes, again based on her

intuitions, that you

will be

justified, and not merely excused, if you blow

up the bystander n such a case. In other

words, she finds shields to be

more like

aggressors

than

bystanders.

I think she

is mistaken.

Considerthe case in which you can stop an aggressor'struckonly by

blowing a hole

in the road.

Unfortunately,

he debris from the

blast will

kill a bystander.

This is a

pure Trolleycase,

and Thomson would

say

that

you

will

not

be

justified

in

blasting.

Next, consider the case in which an

aggressor,knowing

that

you will

not be justified in blasting if blasting

will

kill a bystander,maneuvers the

truck close to the bystanderso

that

any

blast

will

kill the

bystander.This

case looks morally

ndistinguishable

rom the

previouscase,

in

which

the

truck just happened

to be near the

bystander.Therefore,

his case is also

a Trolley case, and you will not be justifiedin killingthe bystander.

But

the case of

maneuvering

the truck

near

a

bystander

s

also

morally

indistinguishable

from

strapping

a shield to the truck to

prevent you

from blowing it up.

A

shield strapped

o the truck

is

still not an

aggressor

or

threat;

if

you

do not blow

up

the truck and

are

run

over,

it will not

be

true that the shield killed

you (assuming

the cause of death

is contact

with

the metal

of

the

truck and not

the

body

of the

shield).

Given Thomson's

principles, shields,

like

bystanders,

have

a

right

not

to be killed

because it will

not

be true that if

you

do not kill

them, they

will kill you. Thomson's intuitions about the justifiability of killing

shields collide

with her

principles.

She

could,

of

course, say

that

reach-

ing

reflective

equilibrium

between

particular

moral

judgments

and

the

moral

principles

that

support

those

judgments

can be a

matter of revis-

ing

the

judgments-here,

her

judgment

about

shields-rather

than

re-

vising

the

principles.

But

the

principle

she

is

employing

to

distinguish

between

bystanders

and

aggressors/threats

has been derived

solely

from

her intuitions

about

particular

ases. Unless those intuitions are

less

cor-

rigible

than her intuition about

shields,

it

is

difficult to

see how she

would be warranted n abandoningthe lattermerelyto salvageher prin-

ciple,

a

principle

that in

any

event

gets

her into

difficulty

n

dealing

with

numbers cases.

I

would

say

that this case shows the

untenability

of

any

io. Thomson, The Realm of Rights, pp.

370-7I.







6o

Philosophy

&PublicAffairs

moral distinction

in terms

of the right

not to be killed between bystand-

ers

and threats;

for in this case,

the concepts of bystander

and

threat

merge.

II.

A

BETTER

ANALYSIS

Thomson'sanalysis leaves us in a quandary.We cannot explain why X

may switch

the trolley

and

kill

the

bystander

when he saves

five lives,

while

none of the

five

may

individually

switch

the

trolley.

That none of

the

five may individually

switch

the trolley seems

to follow

straightfor-

wardlyfrom

Thomson's

analysis

of the

right

not to be killed and

its bear-

ing

on self-defense.

None of the five is individually

n a

situation

that is

different

from the

one-against-one

situation

in

Trolley.

The

presence

of

four

others

at most

makes each

of the five into

a

third-party

efender

of

the

others;

but as

Thomsonargues,

third

parties

may

not aid

you

in

Trol-

ley.

I

believe

Thomson

is

correct in her

judgment

that X

may

switch the

trolley

and

kill the

bystander

to save five.

And as I

have

said, I

believe

Thomson

is

correct in

assuming

that third

parties'rights

to kill in your

defense

derive

from

yours.

Therefore,

he weakness

in her

argument

lies

somewhere

other

than in these

positions.

I

would

argue

that the

rights

that

underlie justifiable,

as

opposed

to

excusable,

self-defense

are, not

the right

not to be

killed,

but

(i)

the

right

not to be killedculpably,

and

(2)

the

right

not to be killed

where first-order

moral

theory

treats a death

as worse than the outcomes and means that avert it. And when those

rights

are

threatened

s a far

more difficult ssue

than Thomson's discus-

sion

of her six

scenarios

reveals.

Speaking

broadly

and

somewhat

loosely,

I

would

say

that we are

being

threatened

with

being

killed

culpably

when the

killer

is

acting

with

awareness

(or

culpableignorance)

that his

act is forbidden

by

our first-

order

moral

theory

about

consequences

and means.

With

respect

to

i

I.

Thomson

(in

the personal

correspondence

cited

in note 6)

objects

to my asserting

a

right not

to be killed

culpably,

where culpability

in tum rests

upon awareness

that

the

killing is wrongful. She argues instead that rights are reducible to what we ought to do,

and

that what

we ought to do does

not

tum at all on

our beliefs.

I

disagree.

What A ought

to do

with

respect

to

B-thus,

B's

rights

against A-might

very

well

be

a

function

of what

B

deserves.

B's beliefs

in

acting

may

reflect

B's

character,

which

may be

the basis of

his desert.

Thomson

herself handles cases

of killing by reference

to the

parties'

beliefs. For

example,

she

distinguishes,

as she

ought to,

between five workmen







Self-Defense,

ustification,

and Excuse

how

our first-order

moral

theory

treats

consequences

and

means,

all I

need

to

say

here

is that the

most

plausible

moral

theoryunderlying com-

mon intuitions

about

self-defense is

one that would

be sensitive to,

among other

things,

(I)

numbersof deaths,

(2) relative moral fault,

(3)

fair

allocationof

risks

and

incentives,

and

(4)

nonappropriation f others.

This

fourth factordeals

with

using

others as

involuntaryresources, mak-

ing ourselvesbetteroff than we would be without them through making

them worse

off than

they

would be

without us (without

their

consent).,2

Finally, I

do

believe there is

a moral

theory that makes these various

considerations relevant

to

killing

in

self-defense,

not

just unconnected

principles

of

limited scope.'3

III.

REVISITINGTHOMSON'SSCENARIOS AND

ADDING

A

COUPLE)

With this obviously far-too-brief ketch of an

alternative ramework, et

us return to Thomson's six scenarios and make a second intuitive trip

through

them.

Villainous Aggressor:

This

case

is

surely not problematic.

For all

we

are

told,

the

aggressor

is

threatening

to

kill

you

culpably.

That

is,

the

aggressor

is

aware that he will

be

violating

first-order

moral

require-

ments

in

killing you.

You

have a

right

not to be

killed

culpably.

You

will

be justified

in

using deadly

force

in self-defense.

Use-of-a-Bystander:

This is

also

a

nonproblematic

No case.You

are

ap-

propriating

he

bystander,using

him as an

involuntary

resource,

and

in

doing so making yourselfbetter off than you would be without him and

making him

worse

off

than

he

would be

without

you.

Innocent

Aggressor:

The

aggressor

is

not

threatening

to

kill

you

cul-

pably.

Nor is he

appropriating ou

to make

himself better

off than

he

assigned to the trolley

track and five thrill-seekers

who sit on the track (Thomson,

The

Realm of Rights, p. i8o).

Surely she would also distinguish

between these cases: one

in

which

the

trolley

tracks are

hidden

by grass,

and

six

innocent picnickers,

unaware of the

tracks beneath them,

divide up

five

on

the main track and one on the siding; and

one in

which

the

one

person is

an innocent

picnicker

and the five are thrill-seekers

who know

they are sitting on overgrown

tracks. Thomson can hardly

disregard the knowledge or ig-

norance of the parties in some cases and then rely on such factors in others.

12. See,

for

example, my

Liberalism as Neutral

Dialogue:

Man

and Manna

in

the

Lib-

eral State, U.C.L.A.

Law Review 28 (I98I):

8I9;

and

Holly

Smith,

Fetal-Matemal Con-

flicts,

in In

Harm's

Way,

ed.

Allen

Buchanan and Jules

Coleman

(New

York: Cambridge

University Press, forthcoming).

I3.

See

my

Liberalism

as Neutral

Dialogue,

pp.

8i9-38.







63

Self-Defense,

ustification,

and Excuse

with

Innocent Aggressor

and Innocent Threat,

the risks of death

are re-

ciprocal.

The bystander s

not literally killing

you, but it is his presence

on the

siding or bridge

that, coupled

with the right

not to be killed, in-

creases

the

risk

that you

will die from runawaytrolleys

or aggressors.

Indeed,

to

press

this

point,

it is Thomson'stime-framing

of her

scenar-

ios

that obscures

the

reciprocity

of risks in the four problemcases.

Sup-

pose, in Trolley, that the bystanderknows that you work on the main

trolley

track, frequentlyin

a position

that preventsyou

from moving in

time to avoid

the trolley,

but

secure

in the knowledge

that there

is a

switch

within

reach

to send the

trolley

safely

onto a

siding.

The

by-

stander

nonetheless

decides

to

picnic

on the

siding.

In

doing so,

the

by-

stander

is

imposing

a risk

on

you,

at least

if

you

are

now

prevented

from

switching

the

trolley

onto the

siding.

If

you may

not avertthe riskto

you

by

diverting

the

trolley

toward

the

bystander,

he

bystander's

act of

pic-

nicking

on the siding

is in

a

very

real sense

an act of

aggression

toward

you insofaras it unreasonably ncreases yourrisk of death. If we do not

think

of such

an act as

aggression,

t is

perhaps

because we

do not

think

the

bystander

has a

right

that

you

not

switch

the

trolley.

Thomson

would divide

Innocent

Aggressor,

Innocent

Threat,Trolley,

and

Riding-Roughshod-over-a-Bystander

nto

two

Yes

and two No

cases,

whereas

I would deem

all four cases we-don't-have-enough-facts

ases,

where numbers, fault,

and

myriad

other considerations

drawn from our

underlying

moral

theory

may

influence

the outcomes.

As

one last piece

of evidence

for

treating

these

four

cases as

Maybe

cases rather than as clear-cut Yes and No cases, consider these varia-

tions

on VillainousAggressor

and Innocent

Aggressor:

VillainousRisk-Imposer:

You

are

being

held

prisoner

by

a

sadist,

who

is

going

to make

you play

Russian

roulette

one time before

freeing you.

The risk

of death will

be

i

in 6.

You have a brief chance

to

stab him

with

your

concealed, poison-tipped

knife

while he is

loading

the one

chamber

of the

gun's

six.

Innocent

Risk-Imposer:

You are

driving

downhill

on

a

narrow moun-

tain roadwhen you see in yourrearviewmirror hat a truckhas appar-

ently

lost

its brakes

and is

hurtling

downhill

toward

you.

(You

have no

reason

to think

the

truck driver s

anything

but

fault-free.)

You

esti-

mate

your

chances

of

averting

death as

5

in

6

if

you pull

to the side.

(The

road is

very narrow,

and the

truck,

out of

control,

has

a

i

-in-6







64

Philosophy

&

PublicAffairs

chance

of

clipping your car.)

You

can, however,

release oil from your

car, which will

cause the truck to swerve off the

road, killing the

driver.

Surely

we

may

kill the sadist in

self-defense,

even though there is a

good chance

we will not die if we

play Russian roulette. Exactly how

high the risk of death must be to permit use of deadly defensive force

need

not be

resolved.

Suffice

it to

say

that

it need not be

100

percent, for

it never is IOO ercent

in cases of

justifiableself-defense.

Thomson would appear,by her analysis,

to

be forced

to

say that if we

may

kill this

sadist in

self-defense,

we

may

kill

the

innocent

truck

driver.i6

If

the risks

are the

same,

then the

responses

may

be

the same.

I

would

argue, however,

that this is

quite

counterintuitive.

Surely

our

right

to kill the sadist kicks

in at a lower thresholdof risk than our

right,

if

any,

to

kill the innocent

truck driver.Our

presence

on the

road, plus

any right we might have to release the oil, can be viewed as ourmaking

the truck driver's

otherwise

permissible ob

riskier.The same is

not

true

of

the

sadist,

who is

not

engaged

in

an

otherwise

permissible

endeavor.

IV. CONCLUSION:SELF-DEFENSE AS

AN

EXCUSE

Self-defense

killing

is

justifiable

in Villainous

Aggressor

and

Villainous

Risk-Imposer.17

It

is

unjustifiable

in

Use-of-a-Bystander.i8

Its

status is

uncertain in the remaining cases. If in particularnstances of those cases

we conclude

that self-defense

killing

is

unjustified,

we

might

nonethe-

i6.

Thomson

may

not

argue

that her

analysis applies

only

to

certainty-of-death cases

and not to risk-of-death cases. Such

a

reply would deprive

her analysis of any application

to the real world. And,

in

any event, why should

her

approach

not apply to risk cases?

I7.

Is self-defense killing always justifiable

in

Villainous

Aggressor? Suppose the villain-

ous aggressor

is

a

cancer

researcher

on the

verge

of

discovering

a

cure. Is

there

a

moral

catastrophe exception

to

your right

not

to be used to benefit others? See

Robert Nozick,

Anarchy, State,

and

Utopia (New York: Basic Books, I974),

p. 3on.

i8.

Is

self-defense killing always unjustifiable

in

Use-of-a-Bystander? Suppose

the

by-

stander intentionally made the trolley go out of control and is now gleefully watching it run

you

down.

Or

suppose

in

Surgeon

that the

healthy patient intentionally

caused

the five

dying patients' organs

to

fail. Or

suppose

the five

dying

patients

were

hit

by

a

trolley

that

could

have been diverted onto a siding where the healthy patient

was

standing.

These

cases, suggested by

Leo Katz, indicate

that matters are much more

complex

than Thomson

acknowledges in all

six

of

her

scenarios.







65

Self-Defense,

ustification,

and Excuse

less deem

it excusable. Thomson thinks the cases sort

out

neatly

in

terms of justification,

but

her problemwith the

numbers shows that they

do not. The numbers

matter,

but

they

do

so

for

reasons

that make

other

factors matter as

well. And with all those things mattering, self-defense

as a justification

becomes very complicated ndeed.Is

ig.

One objection to my much more complex account

of self-defense and the right

not

to be killed, raised by Steven Walt, is an epistemic one. On my account, more factors enter

into the judgment

about whether self-defense

killing

is

justifiable

than

on Thomson's.

Moreover, some of those factors

are evaluative, not merely factual (e.g., culpability). On

my

account, therefore, one

is going to be more uncertain about one's right to use deadly force

than one will be on Thomson's

account, and

that

greater

uncertainty is

a

mark against my

account. I have four points

in

response:

i.

While

my account

is on one level much more complex

than

Thomson's and thus

might

leave people

more uncertain about

their

rights, people can

be

uncertain on Thomson's

account. How do you know

that

someone

is about to kill you? They may be only kidding.

Or

their

truck may

be

about

to

run

out of

gas.

And how do

you

know that the

bystander

will be killed

if

you switch

the

trolley? Perhaps

he

will

see it in time

to get out of

the

way.

The difference between Thomson's account and mine in the knowability of the relevant

rights

is one of

degree

only.

2.

Evaluative factors such

as

culpability

are

probably

relevant on Thomson's account as

well as on

mine.

Consider Trolley,

but this time assume that the

bystander villainously

set

the

trolley

in motion toward you

and is now

standing

on

the

siding waiting to observe your

demise.

Surely

his

culpability

permits you

to switch

the

trolley

and

save

yourself by killing

him.

If

one

were to

reply

that it

is

his

potential

causal implication

in

your death, not his

culpability,

that

justifies your switching

the

trolley,

I would

deny

it on two

grounds.

First,

the appropriate

time

frame is

one

that

begins

when

you

observe the

trolley coming toward

you,

and

within that time

frame,

it

will

not be the

case

that

failing

to

switch

the

trolley

will

mean that

the

bystander causes your

death.

The

trolley

causes your

death.

Second, if the

bystander nonculpably

released the

trolley

in

your

direction-he

did so

accidentally

and

is

unaware that he did so-his causal implication in your death is the same as if he had

villainously

released the

trolley,

but

it is doubtful

that

Thomson would

want

to

distinguish

him

from

the

bystander

in her

Trolley

scenario.

3. My account can

build in

epistemic

considerations.

For

example, interactive

risks

may

be more

fairly

allocated

by broad, bright-line

rules

than

by

fair

allocation

case by case.

(Perhaps

even Thomson's account can

be

vindicated

this

way-as

second-order

rights

rules

rather than as first-order

ones.)

4. People

who act without

knowing

where the

rights

lie

can

be

excused if their

acts

turn

out to

be

unjustified.

This should alleviate some of the

worry

about

making rights

more

epistemically

inaccessible.

I

must, however,

admit that

an

account

such

as mine that builds

epistemic considera-

tions into the determination of the rights themselves may produce complexity due to a

degree

of self-reference.

For

instance, suppose

X

mistakenly

believes

Y

is

attacking

him

and prepares

to

use

deadly

force.

X

will be

excused

if he kills Y but not

justified.

Z

sees

this

occurring

and realizes that X's

mistake

renders

X

nonculpable. Therefore,

for

Z,

the

situation

is

that of one innocent

party against

another. If other

considerations

tip

the bal-

ance

in favor

of

X,

Z

might

be

justified

in

shooting

Y if Y tries

to

use

deadly

force in







66

Philosophy

&Public

Affairs

response to

X's

use;

and

Z

might

be

unjustified

in

killing

X

to

stop

him from

killing Y, even

if Y

poses

no threat

whatsoever

to

X.

Moreover, there is

a

general response

to criticisms of the kind that

I

have leveled at

Thomson, criticisms

that

rest ultimately on

the functional equivalence of cases on either

side of the

lines

Thomson

draws. That

response,

which Thomson

does not

make but which

Leo Katz has

suggested,

is that any moral theory

that is not

completely consequentialist

will contain formalisms,

lines that

distinguish

things

that are

functionally equivalent.

Those formalisms are not merely instrumental or epistemological,

but

are ontological,

rooted in moral reality. For example, there may be a moral distinction between those who

attempt wrongdoing but

fail and those who

attempt wrongdoing

and

succeed,

or between

those who

are

tempted

and succumb and those

who would

succumb

but are

never

tempted.

I am

skeptical

that this

response

can

succeed,

or that if it

can,

it

salvages

Thom-

son's account

of

self-defense;

but it is

surely

an

intriguing

as well as a

perplexing possibil-

ity.

10. alexander larry, justification and excuse

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