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Published online by Cambridge University Press: 29 April 2016
This essay contrasts two approaches to permissible self-defensive killing. The first is the forfeiture approach; the second is the elbow room for self-defense approach. The forfeiture approach comes in many versions — not all of which make prominent use of the word “forfeiture.” However, all versions presume that the permissibility of X killing Y (when X must kill Y in order to prevent herself from being unjustly killed) depends entirely on there being some feature of Y in virtue of which Y has become liable to be killed, that is, in virtue of which Y has forfeited or lost or been stripped of his right not to be killed. Different versions of the forfeiture approach advance different claims about what feature of Y will render Y liable to being killed by X. I criticize versions of this approach offered by Thomson, Otsuka, and McMahan and argue that the shared deep error is the presumption that the permissibility of X’s action turns entirely on some feature of Y. In focusing entirely on Y, the forfeiture approach fails to take seriously X’s right of self-defense. In contrast, the elbow room for self-defense approach starts with an explication of a plausible right of self-defense and maintains that a proper explication of Y’s right not to be killed must make moral elbow room from X’s exercise of this right. Within the elbow room approach, Y’s liability to being killed is based upon X’s right of self-defense rather than the permissibility of X’s killing Y being based upon Y’s forfeiture.
1 I ignore complications that arise from there being degrees of guilt.
2 See “Elbow Room for Rights,” in Oxford Studies in Political Philosophy, Volume 1, ed. David Sobel, Peter Vallentyne, and Steven Wall (New York: Oxford University Press, 2015), 194–221.
3 Judith Thomson, “Self-Defense and Rights,” Lindley Lecture, University of Kansas, (1976), 3.
4 But see, Otsuka, Michael, “Killing the Innocent in Self-Defense,” Philosophy and Public Affairs 23, no. 1 (1994): 74–97.CrossRefGoogle Scholar
5 Thomson, Judith, “Self-Defense,” Philosophy and Public Affairs 20, no. 4 (1991): 298–303.Google Scholar
6 Thomson says that the “shoe” of being on course to being a rights violator “stretches” enough to fit the IA and even the IT (Thomson, “Self-Defense,” 300–303).
7 Ibid., 299–300.
8 Thomson, “Self-Defense and Rights,” 8.
9 Thomson, “Self-Defense,” 293–94.
10 Otsuka, “Killing the Innocent in Self-Defense,” 79–81.
11 Ibid., 92.
12 Ibid., 91.
13 Ibid.
14 As I understand him, Otsuka takes blameless but responsible aggressors to be a distinct set of endangering persons between GAs and IAs. They look a lot like IAs who are not stripped of their rights not to be killed; but members of this distinct set do lose these rights.
15 Otsuka, “Killing the Innocent in Self-Defense,” 91.
16 Ibid., 91.
17 In his Killing in War (Oxford: Clarendon Press, 2009), Jeff McMahan notes that,
When we say that duress is irresistible, we usually do not mean that literally. We concede . . . that it was physically and in some sense psychologically possible for the person who failed to resist to have resisted instead. There is therefore a basis for holding him responsible. (162, emphasis added)
18 McMahan, Killing in War.
19 Ibid., 34.
20 Ibid., 34–35.
21 Ibid., 162.
22 Ibid., 14, emphasis added.
23 Ibid., 165.
24 Ibid., 168. Why not say that Resident also has no way of knowing that the approaching individual is actually the benign twin?
25 McMahan, Killing in War, 169.
26 According to McMahan, even a somewhat culpable individual who is on course to kill you may be immune to lethal defensive action. For, if that individual is only somewhat culpable, your killing of him may be disproportionate (Killing in War, 161). Thus, it may turn out that you must even let partially culpable attackers kill you.
27 I take Manchurian Candidate to be at least as non-responsible as McMahan’s Cell Phone Operator.
28 McMahan, Killing in War, 169.
29 Ibid.
30 Ibid.
31 Ibid.
32 “The presumption could be overcome if the Threat had made himself liable to be killed” (McMahan, Killling in War, 169).
33 Sobel, David, “Backing Away from Libertarian Self-Ownership,” Ethics 123, no. 1 (2012).CrossRefGoogle Scholar
34 Philosophy does not reveal precisely which impingements are minor; this is largely determined by custom and convention, and the expectations that individuals reasonably form in the context of custom and convention.
35 Jonathan Quong connects rights of self-defense and the permissibility of agents’ partiality to their own ends in his “Killing in Self-Defense,” Ethics 119 (April 2009).
36 In her book Creation and Abortion (New York: Oxford University Press, 1992), Frances Kamm may be making a similar point when she says: “One person’s inappropriate location vis-à-vis another raises moral questions no matter how it comes about. . . . One simply has a right not to have someone on the body or property to which one is entitled, even if the wind put them there” (47).
37 An IA or IT may also seek to shield himself with a bystander.
38 But, if you are about to escape from the landing zone, he may not shoot you so that your body will cushion his fall.
39 Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), 35.Google Scholar
