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Lesser Evil and Responsibility: Comments on Jeff McMahan's Analysis of the Morality of War

Published online by Cambridge University Press:  04 July 2014

Re'em Segev
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Extract

The main aim of Jeff McMahan's manuscript The Morality and Law of War is to answer the question: why and accordingly when, is it justified or permissible, to kill people in war? However, McMahan argues that the same principles apply to individual actions and to war. His main claim is that “a state of war… does not call forth a different set of principles, but merely complicates the application of moral principles that are of universal application.” In other words, “…in war, people have the same rights, immunities, and liabilities that they have in other contexts.” McMahan rejects “all doctrines of collective responsibility” and “liability” according to which “individuals can share in responsibility… or liability simply by virtue of membership in a collective.” His claim is that every individual is liable for what he has done and not for the actions of others—even if both are part of the same collective. Accordingly, McMahan challenges the common view that it is much easier to justify killing in war compared to killing in other contexts. Therefore, the scope of his project exceeds the context of war and extends to interpersonal conflicts between individuals that do not qualify as war. Indeed, McMahan has argued in the past for a similar account of self-defense in the individual context.

Type
Research Article
Information
Israel Law Review , Volume 40 , Issue 3 , Winter 2007 , pp. 712 - 729
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2007

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Footnotes

*

Lecturer, Faculty of Law, The Hebrew University of Jerusalem.

References

1 McMahan, Jeff, The Morality and Law of War: The Hourani Lectures (Sinnott-Armstrong, Walter ed., forthcoming 2007)Google Scholar. This article is based on the manuscript form of the book that was distributed to the participants in the workshop of the Law and Philosophy Forum at the Hebrew University of Jerusalem at January 19, 2007. All page numbers refer to the pages of the manuscript, on file with the Israel Law Review.

2 Id. at 2.

3 Id. at 7.

4 Jeff McMahan, Précis: The Morality and Law of War, 40 Isr. L. Rev. 670, 676 (2007)Google Scholar.

5 McMahan, supra note 1, at 41.

6 Id. at 37.

7 Id. at 38.

8 Id. at 1-2.

9 McMahan, Jeff, Self-Defense and the Problem of the Innocent Attacker, 104 Ethics 252 (1994)CrossRefGoogle Scholar.

10 McMahan, supra note 1, at 8.

11 Id.

12 Id. at 11-12.

13 Id. at 3.

14 Id. at 3, 18.

15 Id. at ch. 5. It is interesting to note that in a similar distinction is typically drawn in criminal law between two kinds of defenses: “lesser evil” or “necessity” defenses that deal with harm to innocent bystanders and “self-defense” and “defense of others” that apply to harm done to aggressors—typically people that are morally responsible for a wrong. The conditions regarding defensive force typically allow more leeway.

16 For similar elaboration of this basic principle, see Montague, Phillip, Self-Defense and Choosing between Lives, 40 Phil. Stud. 207 (1981)CrossRefGoogle Scholar; Montague, Phillip, Punishment and Societal Defense, 2 Crim. Just. Ethics 30, 32 (1983)Google Scholar(“when unavoidable harm is being distributed among a group of individuals, and when some members of the group are to blame for the predicament of all, then justice requires… that the harm be distributed among those who are blameworthy”); Montague, Phillip, Punishment as Societal-Defense (1995)Google Scholar; Draper, George, Fairness and Self-Defense, 19 Soc. Theory & Prac. 73, 77 (1993)Google Scholar.

17 I have presented the general outline of this thesis, several (second-order) considerations that could be part of it, including the two considerations mentioned above, and some of its implications, in several articles. See Segev, Re'em, Well-Being and Fairness, 131 Phil. Stud. 369 (2006)CrossRefGoogle Scholar; Segev, Re'em, Well-Being and Fairness in the Distribution of Scarce Health Resources, 30 J. Med. & Phil. 231 (2005)CrossRefGoogle ScholarPubMed; Segev, Re'em, Fairness, Responsibility and Self-Defense, 45 Santa Clara L. Rev. 383 (2005)Google Scholar.

18 McMahan, supra note 1, at 45-46. For a similar account, see McMahan, supra note 9, at 259-260.

19 See Segev, Fairness, Responsibility and Self-Defense, supra note 17, at 408-409.

20 McMahan, supra note 1, at 73.

21 Id. George Fletcher describes another case of this kind. See Fletcher, George P., Proportionality and the Psychotic Aggressor: A Vignette of Comparative Criminal Theory, 8 Isr. L. Rev. 367 (1973)CrossRefGoogle Scholar; Fletcher, George P., Rethinking Criminal Law 870–875 (1978)Google Scholar.

22 McMahan, supra note 1, at 72-73.

23 Id. at 44.

24 One alternative to such a distinction is a claim that the important variable is the effect of each action on individual well-being, regardless of its classification as harm or benefit.

25 McMahan supra note 1, at 44.

26 McMahan, supra note 4, at 677. McMahan also mentions a different formula: the harm prevented must be greater than the harm inflicted if the harm inflicted is not an intended effect and substantially greater if it is an intended effect. See McMahan, supra note 1, at 44. I ignore this variation since it is based on another factor—intention to harm—that is considered separately.

27 Strafgesetzbuch [StGB] [Penal Code] Jan. 2,1975, Bundesgesetzblatt [BGB1.I] 1, § 34, translated in The Penal Code of the Federal Republic of Germany 1975, section 34 (in 28 The American Series of Foreign Penal Codes (1987):

Whoever commits an act in order to avert an imminent and otherwise unavoidable danger to the life, limb, liberty, honor, property or other legal interest of himself or of another does not act unlawfully if, taking into consideration all the conflicting interests, in particular the legal ones, and the degree of danger involved, the interest protected by him significantly outweighs the interest which he harms. This rule applies only if the act is an appropriate means to avert the danger.

28 I explain this view in Segev, Well-Being and Fairness, supra note 17, at 382-386.

29 See McMahan, supra note 9, at 252-253.

30 McMahan, supra note 1, at 44.

31 Another qualification should be noted regarding McMahan's claim that the lesser evil justification “cannot possibly justify more than a proportion of the killing that is done in war, for the simple reason that if the killings by one side are justified by virtue of being the lesser evil, impartially considered, it follows as a matter of logic that killings by the other side cannot be,” McMahan supra note 4, at 677. This is inaccurate if we assume, as I think we should, that justification should be sensitive to the information the agent has (and should have), since, especially in war, as McMahan emphasizes, “conditions of war make is that they immeasurably exacerbate the epistemic limitations under which we ordinarily act,” McMahan, supra note 4, at 675.

32 McMahan, supra note 1, at 63-64.

33 McMahan, supra note 4, at 681.

34 Id.

35 Id.

36 McMahan, supra note 1, at 65.

37 This might be true, for instance, in the case of a person who lives just next to a hospital and (almost) never leaves her house.

38 McMahan, supra note 1, at 74-75.

39 Id. at 73.

40 Id. at 70.

41 Id. at 72.

42 Id. at 59.

43 Id. at 76. McMahan makes this claim also in the context of individual self-defense and adds there that a defender is justified in killing a culpable aggressor even if there is a “relatively low” probability that the threat the aggressor poses would materialize. See McMahan, supra note 9, at 261.

44 A possible explanation for the claim that the number of aggressors is irrelevant is that the number of people involved in interpersonal conflicts is not significant in itself in general (at least in terms of consequences). This is a possible, perhaps even a plausible, although uncommon, view. Nevertheless, it seems that McMahan implicitly rejects this assumption, both in general and in this context.

45 McMahan, supra note 1, at 97-98.

46 See Scanlon, T. M., What We Owe to Each Other (1998)Google Scholar.

47 It should be noted that even if the mental state of intention—as reflected in the doctrine of double effect—is not morally significant in itself this does not entail that other mental states are irrelevant for justification. Indeed, I believe that other mental states might be relevant. See Segev, Re'em, Justification, Rationality and Mistake: Mistake of Law is No Excuse? It Might be a Justification! 25 L. & Phil. 31, 41–53 (2006)Google Scholar.

48 McMahan, supra note 1, at 52. McMahan refers here to what he calls “wide proportionality,” namely, proportionality between, on the one hand, the aim of the war and any other good effects of the war, and, on the other hand, the harms to innocent people—including just combatants—that the war is expected to cause.

49 Id. at 46.

50 Id. at 46-47.

51 Id. at 66.

52 Id. at 79.

53 Id. at 77.

54 See Scheffler, Samuel, The Rejection of Consequentialism: A Philosophical Investigation of the Considerations Underlying Rival Moral Conceptions (1982)Google Scholar.