At the end of Chapter 1, we now have a rough outline of four plausible standard paradigms for using lethal force. These are: self-defence paradigm; defence of others paradigm; policing paradigm and military paradigm. We also have some idea of what an unjust use of lethal force looks like and the seriousness with which it should be judged. A set of “non-standard” cases illustrate the moral difficulties for police or military operating in contexts where the conditions for the conventional paradigms are not clear. Importantly, these incidents are “non-standard” because they do not clearly fit either the law enforcement or warfighting contexts for the justified state-sanctioned use of lethal force. This creates a moral problem. States are duty-bound to defend the political community and protect jurisdictional inhabitants from threats, which obliges
the police and military to use lethal force in situations of conflict. In order to meet this obligation, the police and military are sanctioned by the state to use lethal force. This means the police and military have access to exceptional moral justifications in doing harm, which are not granted to the average person. But the police and military do not appear to be granted access to their state-sanctioned exceptional justifications in non- standard cases. So on what moral basis can (or should) state actors – especially the police and military – use lethal force in non-standard cases?
CHAPTER TWO: MORALLY JUSTIFIED KILLING IN
SELF-DEFENCE
2.1 Introduction
In Chapter 2, I examine the argument for morally justifying the use of killing in self-defence. I conclude that the moral purpose that permits killing in self-defence is to ward-off an immediate unjust deadly threat. Then I argue that the best explanation for morally justifying killing in self-defence is a rights-based unjust threat account for morally justified killing in self-defence. This says that a person has a moral obligation to not pose a deadly threat to the defender. The failure to keep this moral obligation is the source of the moral asymmetry necessary to justify the defender killing the unjust threat in self-defence. I also argue, however, that the unjust threat account should be modified to include calculations of risk and cost. That is, if the threat is non-culpable or only partially culpable, then the defender should share the cost and risk with the threat in order for both parties to survive.
In the first section, I describe the rights-based moral justification for killing in self-defence. Rights-based moral justifications for killing in self-defence begin with the presumption that human beings have a right not to be killed, which they are morally permitted to defend. Rights-based theorists agree that the defender holds a right to not be killed and this is the moral basis for justifying killing in self-defence (if it is
necessary to ward-off the deadly threat). I also explain how the threat’s right not to be killed can be temporarily suspended in some cases but not permanently lost. Next I briefly examine alternatives to rights-based approaches to morally justifying killing in self-defence. A pacifist approach holds that the use of violence in self-defence is never
life rather than defend himself. At most, the intentional sacrifice of one’s life to an unjust attack is a supererogatory act, not a moral obligation. And a third-party is not morally permitted to sacrifice the defender’s life. Second, a self-preservationist approach argues that an individual is always morally justified in killing if his life is at stake. But there should be limits on the actions one can take to preserve lives;
otherwise, morality in life threatening situations is reduced to a matter of brute force. In particular, we should prohibit deliberately harming innocent bystanders. Third, a
personal partiality approach argues that the defender has a special interest in his own life which permits him to prefer his own life in those cases where one is forced into a choice between two lives. But this view is very close to self-preservation. And the defender should not have permission to kill in self-defence simply because it is his life that is at stake. Finally, consequentialist approaches attempt to justify killing in self- defence by arguing that the consequences of killing an aggressor are preferable to the consequences of allowing the defender to be killed. But these approaches do not give enough weight to important issues of human rights and justice.
In the third section, I examine three main types of rights-based approaches for morally justifying killing in self-defence. Judith Jarvis Thomson’s unjust threat
approach suggests that killing in self-defence is morally justified when one person is an immediate deadly threat to another person without a sufficiently just reason. In
contrast, Seumas Miller’s culpable threat approach requires that a person be morally culpable for posing an immediate deadly threat. That is, the attacker intends to cause serious harm to the defender. Finally, Jeff McMahan’s responsible threat approach does not require that an immediate deadly threat intends harm to the defender. But he insists that the threat is sufficiently liable for endangering the defender. I then go on to argue that the main difference between these three rights-based approaches lies in the
additional necessary conditions required by the culpable threat account and the responsible threat account respectively.
The next section then looks in more detail at the necessary conditions for morally justifying killing in self-defence. The first condition says that the defender’s life must be in immediate peril from a deadly threat (immediacy condition). The second
condition says that the defender’s primary intention is to preserve his own life, which can be achieved by killing the threat (defence condition). The third condition says that the only reasonable option for preventing the defender from being killed is to kill the threat (necessity condition). The fourth condition says that the threat lacks a just reason for endangering the defender’s life (unjust condition). I argue that the unjust threat account, with its four basic conditions, is sufficient for justifying killing in self-defence in cases of forced choice between lives. But then the culpable threat account requires, as a fifth condition, that the threat is culpable for her attack on the defender (culpability condition). Likewise, the responsible threat account says that the threat must be
sufficiently liable for her threat to the defender’s life (liability condition).
In the final section, however, I argue that the unjust threat account should be modified to incorporate calculations of risk and cost to both the threat and defender based on the degree of liability to defensive harm. I argue that the use of strict forced choice between lives scenarios are misleading for grounding morally justified killing in self-defence because they are less likely to occur than a case where the defender has some leeway to accept risk and cost. That is, discussions about killing in self-defence based on forced choice between lives hypotheticals alone are misleading because they generally describe atypical scenarios. Next I demonstrate that the threat’s culpability plays a role if there is any leeway for the defender to take on cost and risk. In contrast, Thomson’s unjust threat account makes a mistake in attributing no role to the
cost and risk of harm equally from a non-culpable threat in order for both parties to survive. But increasing the culpability of the threat lessens the defender’s obligation to accept the cost and risk in order for both parties to survive.