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Duty and Liability

Published online by Cambridge University Press:  22 May 2012

VICTOR TADROS
VICTOR TADROS*
Affiliation:
University of Warwickv.tadros@warwick.ac.uk
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Abstract

In his recent book, Killing in War, Jeff McMahan sets out a number of conditions for a person to be liable to attack, provided the attack is used to avert an objectively unjust threat: (1) The threat, if realized, will wrongfully harm another; (2) the person is responsible for creating the threat; (3) killing the person is necessary to avert the threat, and (4) killing the person is a proportionate response to the threat. The present article focuses on McMahan's second condition, which links liability with responsibility. McMahan's use of the responsibility criterion, the article contends, is too restrictive as an account of liability in general and an account of liability to be killed in particular. In order to defend this claim, the article disambiguates the concept of liability and explores its role in the philosophical analysis of the permission to cause harm to others.

Type
Debate
Information
Utilitas , Volume 24 , Issue 2 , June 2012 , pp. 259 - 277
Copyright
Copyright © Cambridge University Press 2012

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References

1 McMahan, J., Killing in War (Oxford, 2009)CrossRefGoogle Scholar. Hereafter KIW.

2 KIW 10.

3 For this criticism of the idea of forfeit, see Thomson, J. J., ‘Self-Defense and Rights’, in her Rights, Restitution, and Risk: Essays in Moral Theory (Cambridge, Mass., 1986)Google Scholar.

4 Some think that such duties are enforceable only in virtue of state membership and not in the state of nature. This may have been Kant's view. See Ripstein, A., Force and Freedom: Kant's Legal and Political Philosophy (Cambridge, Mass., 2009)CrossRefGoogle Scholar.

5 Given that I have violated my duty to rescue the child, it may even be permissible for you to harm me to a greater degree than the loss of a finger if that is necessary. This could be justified on the grounds that I had an adequate opportunity to avoid being harmed – by doing my duty and rescuing the child. I will not consider this complication here.

6 In this section I draw on discussion in my The Ends of Harm: The Moral Foundations of Criminal Law (Oxford, 2011), chs. 6 and 11.

7 Perhaps even this judgement is not absolute: perhaps it is not wrong to do so if it will save her life.

8 See, further, Tadros, The Ends of Harm, ch. 8. In that book I discuss another case, Double Hit Man. I retain the label Double Hit Man 2 here for the sake of continuity.

9 More plausible is the view that partiality can help to ground excuses. For discussion, see Lazar, S., ‘The Responsibility Dilemma for Killing in War: A Review Essay’, Philosophy and Public Affairs 38 (2010), pp. 180–213, at 180 and 197–8CrossRefGoogle Scholar.

10 I first developed this case in response to a paper by Cheyney Ryan, to whom I owe thanks for discussion of it.

11 KIW 209–10.

12 See, for example, Quong, J., ‘Killing in Self-Defence’ Ethics 119 (2009), pp. 507–37, at 507CrossRefGoogle Scholar.

13 See, further, The Ends of Harm, chs. 9 and 11.

14 He develops this idea in KIW, ch. 5.

15 KIW 219–20.

16 For a similar analysis of the permissibility of harming non-responsible threats, see Tadros, V., The Ends of Harm (Oxford, 2011), ch. 11Google Scholar.

17 McMahan considers bin Laden's argument in KIW 232–4. The distinction between manipulative and eliminative agency that I refer to below is, I believe, crucial to help McMahan avoid implausible implications for the liability of civilians – a challenge developed in Lazar, ‘The Responsibility Dilemma for Killing in War: A Review Essay’. He briefly considers the distinction at pp. 170–3 and 226–7.

18 Perhaps if the responsibility is causally significant and the citizen is culpable, as in the example of executives of the United Fruit Company, who pressurized the US government into engaging in an unjust war in Guatemala (outlined in KIW 214), it may be permissible to kill the civilian as a means. See KIW 221–2.