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Consequentialism and the Case of Symmetrical Attackers

Published online by Cambridge University Press:  26 June 2019

Stephen Kershnar
Stephen Kershnar*
Affiliation:
State University of New York at Fredonia
*
Corresponding author. Email: Stephen.kershnar@fredonia.edu
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Abstract

There are puzzle cases that forfeiture theory has trouble handling, such as the issue of what happens to the rights of two qualitatively identical people who simultaneously launch unprovoked attacks against the other. Each person either has or lacks the right to defend against the other. If one attacker has the right, then the other does not and vice versa. Yet the two are qualitatively identical so it is impossible for one to have the right if the other does not. The Problem of Symmetrical Attackers is a problem for non-consequentialism because the most plausible non-consequentialist theories assume that people have rights and can lose them by forfeiting them (consider, for example, self-defence, punishment, and compensation) or waiving them (consider, for example, consent). This article considers whether consequentialism can get around this problem.

Type
Article
Information
Utilitas , Volume 31 , Issue 4 , December 2019 , pp. 395 - 413
Copyright
Copyright © Cambridge University Press 2019 

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References

1 For a discussion of these issues, see Kershnar, Stephen, ‘Forfeiture Theory and Symmetrical Attackers’, Criminal Justice Ethics 36 (2017), pp. 224–45CrossRefGoogle Scholar.

2 I owe this objection to an anonymous reviewer.

3 On some accounts, self-defence involves issues of both liability and justification. For an agent-relative permission theory that has a complex relation to forfeiture, see Quong, Jonathan, ‘Killing in Self-Defense’, Ethics 119 (2009), pp. 507–37CrossRefGoogle Scholar.

4 Older versions of this paradox can be seen in Otsuka, Michael, ‘Killing the Innocent in Self-Defense’, Philosophy and Public Affairs 23 (1994), pp. 74–94CrossRefGoogle Scholar, and Kershnar, Stephen, ‘An Axiomatic Theory of Just War: Forfeiture Theory’, Who Should Die? The Ethics in Killing in War, ed. Jenkins, R. and Strawser, B. J. (New York, 2016), pp. 118–41Google Scholar. For a developed exploration of this argument, see Timothy Campbell, ‘The Problem of Symmetrical Threats’, What's Wrong? (18 August 2015), <https://whatswrongcvsp.com/2015/08/18/the-problem-of-symmetrical-threats/>. For a three-person version of the argument, see Russell, Christopher, ‘Self-Defense and Defense of Others’, Philosophy and Public Affairs 27 (1998), pp. 123–41Google Scholar. For a version that views the problem of two people who may justifiably attack one another, see Mapel, David, ‘Moral Liability to Defensive Killing and Symmetrical Self-Defense’, The Journal of Political Philosophy 18 (2010), pp. 198–217CrossRefGoogle Scholar.

5 For discussion of a consent theory of punishment, see Nino, C. S., ‘Does Consent Override Proportionality?’, Philosophy and Public Affairs 15 (1986), pp. 183–7Google Scholar; Nino, C. S., The Ethics of Human Rights (Oxford, 1991)Google Scholar; Nino, C. S., ‘A Consensual Theory of Punishment’, Punishment, ed. Simmons, A. J. (Princeton, 1994), pp. 94–111Google Scholar.

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11 See Fletcher, George, ‘Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory’, Israel Law Review 8 (1973), pp. 367–90CrossRefGoogle Scholar. For the notion that a person may use violence to defend against an innocent aggressor, see Uniacke, Suzanne, Permissible Killing: The Self-Defence Justification of Homicide (New York, 2011)Google Scholar, and Nozick, Robert, Anarchy, State, and Utopia (New York, 1974)Google Scholar.

12 The argument works for Jeff McMahan's moral responsibility theory and a culpability theory of forfeiture. The culpability theory asserts that a person forfeits if and only if he is blameworthy for attacking based on his belief or negligence with regard to the other person's not being an unjust threat.

13 I owe this objection to an anonymous reviewer.

14 For such a theory in a legal context, see Uniacke, Suzanne, ‘Criminalising Unknowing Defence’, Journal of Applied Philosophy 34 (2017), pp. 651–64CrossRefGoogle Scholar.

15 For an example of such a theory in a legal context, see Uniacke, ‘Criminalising Unknowing Defence’.

16 The idea for this case comes from Otsuka, Michael, ‘Killing the Innocent in Self-Defense’, Philosophy and Public Affairs 23 (1994), pp. 74–94CrossRefGoogle Scholar.

17 See Inwagen, Peter van, ‘The Eighth Philosophical Perspectives Lecture: Free Will Remains a Mystery’, Noûs 34 (2000), pp. 1–19CrossRefGoogle Scholar.

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20 The idea for this objection comes from Smart, ‘Extreme and Restricted Utilitarianism’.

21 See Eggleston, Ben, ‘Conflicts of Rules in Hooker's Rule-Consequentialism’, Canadian Journal of Philosophy 37 (1997), pp. 329–50CrossRefGoogle Scholar.

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23 This is not true on every theory. On some rule-consequentialist theories, consequentialism justifies an institution (for example, punishment), but not the particular acts within that institution (for example, who and how much to punish an offender). See Rawls, John, ‘Two Concepts of Rules’, The Philosophical Review 64 (1955), pp. 3–32CrossRefGoogle Scholar.

24 For a discussion of this problem, see Regan, Donald, Utilitarianism and Co-operation (Oxford, 1980)CrossRefGoogle Scholar.

25 For a discussion of this issue in the context of a decision-theoretic approach, see Jackson, ‘Decision-theoretic Consequentialism and the Nearest and Dearest Objection’.

26 See Conee, Earl, ‘Book Review: Utilitarianism and Co-Operation’, The Journal of Philosophy 80 (1983), pp. 415–24Google Scholar.

27 The below argument comes from Bradley, Ben, Well-being and Death (New York, 2009)CrossRefGoogle Scholar.

28 I owe this objection to an anonymous reviewer.

29 I am very grateful to Timothy Campbell, Jim Delaney, Randy Dipert, Neil Feit, David Hershenov and Bob Kelly for discussing the issue with me.