Upcoming Ethics Review Forum: Quong’s “The Morality of Defensive Force”, Reviewed by Bowen

We’re pleased to announce our next Ethics Review Forum on Jonathan Quong’s The Morality of Defensive Force (OUP 2020), reviewed by Joseph Bowen. The forum will start on Tuesday, April 13th at noon. Save your comments until then—we’ll be posting a new thread once it gets started.

Click here to read more about the book, and click here to read Bowen’s review. Of course, you’re welcome to participate in the forum even if you haven’t read either.

Book Blurb:

When is it morally permissible to engage in self-defense or the defense of others? Jonathan Quong defends a variety of novel ideas in this book about the morality of defensive force, providing an original philosophical account of the central moral principles that should regulate its use. We cannot understand the morality of defensive force, he reasons, until we ask and answer deeper questions about how the use of defensive force fits with a more general account of justice and moral rights. In developing this stance, Quong presents new views on liability, proportionality, and necessity. He argues that self-defense can sometimes be justified on the basis of an agent-relative prerogative to give greater weight to one’s own life and interests, contrary to the dominant view in the literature. Additionally Quong develops a novel conception of individual rights against harm. Unlike some, who believe that our rights against harm are fact-relative, he argues that our rights against being harmed by others must, in certain respects, be sensitive to the evidence that others can reasonably be expected to possess. The book concludes with Quong’s extended defense of the means principle, a principle that prohibits harmfully using other persons’ bodies or other rightful property unless those persons are duty bound to permit this use or have otherwise waived their claims against such use.

Excerpt from Bowen’s Review

The Morality of Defensive Force […] will no doubt become a cornerstone of work on the justifications and limits of defensive harm. It strikes a great balance between being accessible to those who want to pick it up for a particular topic […] while [also] being a rewarding, well-integrated read.

[…] Chapter 2 focuses on liability to defensive harm. To say that an individual is liable to be harmed is to say that he has forfeited some of his rights against being harmed, and so harming him would not violate his rights nor would it wrong him. Quong introduces a new account of liability, the moral status account[… ][:] “A is liable to defensive harm for Φ-ing when: (a) the evidence-relative permissibility of Φ-ing depends on the assumption that at least one person, B, lacks a moral right, but (b) B in fact possesses the relevant moral right, and thus (c) B faces a threat, or apparent threat, to her rights” (38). […] Chapter 3 defends that we have agent-relative prerogatives to harm non-liable parties.

Whether a victim may defend herself depends on whether her self-defensive act is proportionate and necessary. Chapter 4 introduces a new account of proportionality, on which the stringency of victims’ threatened rights determines the amount of defensive harm that it is proportionate to inflict (112). […] Chapter 5 introduces a revisionary account of necessity, on which defensive harm is unnecessary if it is inconsistent with victims’ duty to rescue others at reasonable cost to themselves (132).

Chapter 6 argues that rights against harm are determined by asking what we can reasonably demand of others, including the evidence that we can reasonably demand they possess (156-60). But the view is not evidence-relative all the way down—whether someone does not have a right against being harmed because they are liable or have consented to being harmed depends on what they have in fact done, and not on duty-bearers’ evidence of what they have done (161-3). Finally, chapter 7 defends a version of the means principle, on which it is impermissible to harm people in ways that make use of things to which they have prior claims[…], unless they are under a duty to suffer that harm or consent to being used in that way.

Let me offer an extended example of one of the ways the book makes for a well-integrated read, which forms the basis for [my] critical comments. In chapter 2, Quong rejects the dominant account of liability, the moral responsibility account, because it deems minimally responsible threateners liable to defensive harm (26-29). In the […] Conscientious Driver example, a careful and conscientious driver finds herself unavoidably swerving off the road towards Pedestrian, whom she will kill […] [T]he moral responsibility account says that Driver is liable to be harmed by Pedestrian, and so has no right against Pedestrian [killing her in] self-defence. Quong thinks this is the wrong verdict. His moral status account says that Pedestrian is not liable: the evidence-relative permissibility of Driver’s setting out on her drive does not depend on the assumption that anyone else does not have a right against being harmed.

One argument for why Driver is liable is that many find it plausible that Pedestrian may kill Driver in self-defence. And how else to explain this unless Driver is liable? Quong has an answer: […] Pedestrian has an agent-relative prerogative to prioritise herself […] (58). Now, an initial problem with agent-relative prerogatives is that most think that we may not grab a bystander and use them as a protective shield against a lethal projectile (81-85). But if we have agent-relative prerogatives to prioritise ourselves, why may we not prioritise ourselves in [this way?] […]

Recall now though, that if there are no agent-relative prerogatives, we have no explanation for why Pedestrian may defend herself in Conscientious Driver, at least if we endorse Quong’s moral status account of liability. And if we think that Pedestrian may defend herself, we ought to reject Quong’s moral status account […]. But Quong does have an answer for why, even if we have agent-relative prerogatives to prioritise ourselves, we may not [use a bystander] as a protective shield: [namely], the means principle, [which] says that we may not prioritise ourselves when doing so would use others’ bodies or something else to which they have a prior claim, unless they are under a duty to suffer that harm or have consented to that harm.

In the remainder of this review, I examine some of the views featured in the preceding argument. Quong’s moral status account says that Driver is not liable to be harmed in Conscientious Driver because the evidence-relative permissibility of Driver’s setting out does not depend on the assumption that anyone else does not have their usual rights against being harmed. Compare this with Resident (23-24): suppose that the identical twin brother of a notorious serial killer breaks down in a remote area. Unaware that his brother has recently escaped from prison, and is now on a killing spree, the innocent twin (“Innocent”) knocks on the door of the nearest house to ask for help […]. The resident (“Resident”) justifiably believes that Innocent is the killer and has been warned that [they] will kill at their first opportunity. Because of this, Resident lunges at Innocent with a knife […]. Quong thinks that Resident is liable to defensive harm. Rendering these verdicts consistent—that Resident, but not Driver, is liable—has proven difficult in the literature. […] [After all, both Resident and Driver act in ways that would not be permissible, were they in possession of the facts.]

Quong’s moral status account finds a difference between these cases. Resident’s action is evidence-relative permissible only because Resident’s evidence supports that Innocent is liable to be harmed. Driver’s action is not (evidence-relative) justified in this way. Rather, […] the expected benefits weighed against the expected costs of the practice of prudent driving make it that any action-token of the practice is permissible. And this is what matters when it comes to liability: “whether you treat others as if they lack rights against the harms that you might impose” (5). [Quong] continues, “[w]hen you act in this way, you treat others as if they are not entitled to equal concern and respect all persons are normally owed, and so it’s appropriate that you bear special liability for your actions”.

[…] […] I am not sure, if there is a morally significant difference between these cases, Quong has found it. It is crucial on his account whether the evidence-relative permissibility of someone’s act depends on others lacking rights that people ordinarily possess—if so, one can be liable; if not, one cannot be liable. But why should that matter? Evidence about whether our actions will harm others and evidence about whether others have made themselves liable to be harmed is not so different. They place equal demands on one. They make our actions evidence-relative permissible in the same way.

To be fair[…], Quong tries a great deal to motivate the idea that the difference between the cases matters (34-39; 94-95; 163-6). For example, he says of paradigmatic culpable threateners that they “cannot treat others as having diminished moral status while insisting others respect [their] moral status even at the cost of suffering serious harm”—this would be to fly in the face of equality and reciprocity (34). […] I am sceptical how much we can learn from this. Equality and reciprocity are morally loaded terms of art, and using them in our analysis often presupposes what we are trying to prove. […] What is more, while Resident does treat Innocent as having diminished moral status, she is evidence-relative justified in treating her so; and to the extent that I think it is morally significant that paradigmatic culpable threateners treat others as having diminished moral status, it is only because they are neither belief- nor evidence-relative justified in doing so.

In addition, the focus the moral status account places on whether one treats others as if they lack rights ordinarily possessed by others leads to some peculiar verdicts about liability. Quong thinks that we can have lesser-evil justifications to harm non-liable parties […]. When threateners have a lesser-evil justification to harm victims, while victims retain their rights against being harmed, their rights are permissibly overridden for the sake of averting the much greater evil. On this picture, […] rights and (directed) duties are pro tanto considerations—they carry genuine weight but can be outweighed. An implication of this is that when threateners act with a lesser-evil justification, they do not treat their victims as if lacking rights that people normally possess. […] It follows that threateners are not liable to defensive harm when acting with a lesser-evil justification given the moral status account. This leads to a strange result. If a threatener is evidence-relative justified in harming their victim with a lesser-evil justification, but in fact has no lesser-evil justification, then she is not liable to defensive harm. Whereas, if she is evidence-relative justified in harming her victim because the evidence supports that the victim is liable, but in fact the victim is not liable, the threatener is liable to defensive harm.

There is some discussion of this problem as it relates to Resident, but I think its significance is not fully appreciated (94-95). Suppose that some soldiers are successfully fooled by a totalitarian regime into believing their regime is justified, and under repeated threats by their evil neighbours. Their neighbours are in fact a just regime. The soldiers are told there is a terrorist camp over the border. In fact, the ‘terrorist camp’ is a village of innocent civilians. […] In a first iteration of our case, discussed in the book, suppose the soldiers are told the camp is made up of only enemy combatants, who are liable to be killed. Quong’s view implies that the duped soldiers are liable to be killed in defence of the villagers, since the evidence-relative permissibility of their conduct depends on assuming that the enemy combatants have made themselves liable to be harmed (33-35). So far, so good. But now suppose, in a second iteration, the soldiers are told the camp has been vacated by the terrorists, and some civilians have (unknowingly) moved in. However, the terrorists could return, and enough good can be done by destroying the infrastructure of the camp that the soldiers have a lesser-evil justification to destroy it, while foreseeably harming some innocent civilians […]. Quong’s view implies the soldiers are not liable in this case since the evidence- relative permissibility of their conduct does not assume that their victims lack rights that people ordinarily possess. This is deeply counterintuitive. […]