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Leroy Meyer
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(Leroy resumed from previous comment) For, at a more complex level—even before we consider self-defense in war—it is only the socio-political structure that can instantiate the several variables in the complex quid pro quo. This is not a contingent matter. The mystery to me is how one can make coherent philosophical sense of any notion of desert without conceptual dependence upon some quasi-institutional socio-political order—I grant that in some societies it may be much less “formal” than we expect in modern cosmopolitan society. I do not mean to suggest that there must be a “moral” institution to determine what is morally deserved. However, social-political institutions assume limited moral responsibility (e.g. to administer justice) nevertheless. Now consider the more germane case of desert in war. Recalling Jeff’s concern in Killing in War to distinguish between just combatants and unjust combatants (e.g. on the basis of fault under jus ad bellum to which the soldiers fighting for an unjust cause are party). There are many layers of moral engagement to consider. At one extreme, Adolf Hitler one might regard as having deserved to suffer harm for instigating a terrible war and for perpetrating heinous atrocities against humanity. Apparently he committed suicide. Does it not matter morally that he deprived the world of the opportunity to have rational, principled judgment determine his guilt and to have meted out his punishment, on behalf of humanity? If it does not matter that Hitler committed suicide, then it would not matter if an enraged Allied guard were to have assassinated Hitler, had he been taken prisoner. In regard to desert, the manner in which Osama Bin Laden died appears morally less disturbing than the manner in which Hitler died; and the hanging of Saddam Hussein, in consequence of a trial by law, would seem even less disturbing morally. Even a legal positivist can agree. These figures are morally blameworthy on grounds of jus ad bellum and of jus post bellum. The “mysterious” aspect of all this is that, as a deep and abiding feature of what I call the cultural dimension of war (to extend a notion of Michael Howard’s), we insist upon the importance of a formal, military armistice, followed by a grand settlement in accordance with international law. This is part and parcel of jus post bellum (of which the founding of the United Nations is an example). The Nuremberg Trials were a function of jus post bellum. If it doesn’t matter morally who metes out deserved harm at the individual level, why should it matter (as it seems to do) at the grand level. Whew! Thanks for the fire under my seat. Kind regards, Leroy
Victor, I was tempted to jump on Bernard’s Kantian trolley before it derailed. There is, however, further insight in his comments. Bernard is surely right in observing that self-defense is characteristically instrumental: it aims at thwarting the threat. The question as to what the attacker deserves Bernard thinks “cannot be solved without reference to practices in a certain community or to positive legal settings.” This calls to mind your response to BJ and me. You write, “I find the view that the value of deserved suffering depends in a non-contingent way on whether it is delivered by institutions even more mysterious than other versions of the Barbaric Thesis. Surely it is more plausible that institutions matter because they are more likely to calculate desert accurately and to deliver it for the right reasons.” Where you see mystery I find social order. (I think Bernard might concur.) Do you intend that vigilantism is morally equivalent to due process? There is no such thing as desert simpliciter. I think we can agree that desert entails something owed to someone for something done to or received by someone. I should think desert of any kind must be grounded in some notions of human social relations, from which a prior consideration of quid pro quo is derived that governs what is deserved, by whom, and for what reason, no matter whether the desert is positive or negative, whether moral, criminal, or commercial, etc. I grant that in the case where I owe my neighbor some compensation for damage done to his property when the tree I felled landed on his car—a sort of chainsaw massacre—he deserves to be paid by me directly. But the thief that stole the birdbath from my yard does not deserve punishment by me. No doubt, had I caught him, I might have finagled compensatory service from him—perhaps he (she? I may be looking for the wrong “man”) would have agreed to clean out my gutters rather than to go before the magistrate. Thus far, it is a contingent matter that I may not punish, since we can imagine having organized a small society—perhaps a tribal entity of limited size, in which the victim metes out the deserved punishment directly. As you correctly point out, the prudential advantage of, say, legal institutions, for administering punishment (and, for that matter, deciding issues of tort) is to improve the accuracy of measuring desert. I don’t think we can extrapolate much beyond these simple cases, without invoking an abstract authority as conceptually necessary. (continued in next comment)
Victor, I had wanted to return to your comments about the implausibility of NCJ1 and NCJ2. “As McMahan suggests, taken literally, these principles seem implausible even if one accepts the barbaric thesis. They would at least need to be revised to accommodate cases where a person consents to be harmed.” (You give a compelling example.) It appears to me that the implausibility of the two principles runs deeper still, so that I am unclear how to salvage much from them. “Fourth, and perhaps most disturbing”, McMahan says, “by making desert a necessary condition... [NCJ1] reduces the scope of possible justifications for intentional harming to an implausibly narrow range.” (Endnote 22, considers GTR’s response: “an action... may be not permitted under one permissive norm yet still permitted under another.”) Examples compound the “disturbing” implication. For, NCJ1 appears to rule out: (a) beneficent self-sacrifice and self-inflicted harm in general, even to protect all others (this comes under your point regarding consent); e.g. a soldier shields comrades from grenade blast with her own body; a teacher stands in the doorway to protect his students from an attacker's bullets; (b) measures harmful to the innocent that are intended to mitigate further harm to the innocent (this may or may not involve consent); examples abound: rescuers amputate a victim’s limb to save him from a burning vehicle, etc. (c) limited harm, in self-defense against well intended attacker, ignorant of threat to defender; neutral tribal villagers, living in territory controlled by unjust combatants, inflict dysentery on just combatants and unjust combatants alike to prevent destruction of crops by both sides. A wealth (or a flea market) of examples come to mind in which it would appear permissible—in some cases justifiable—to inflict “suffering or deprivation” on those who cannot plausibly be said to deserve the “suffering or deprivation”. Thanks for your insights. It is challenging material. Leroy
Victor, thanks for clarifying BT for me earlier. That helped a lot. In regard to your question to BJ: “Why is it permissible to defend oneself where one is confident that the relevant authorities will not come to the rescue, even though there is a risk that one will act partially, disproportionately etc, but it is wrong to inflict deserved suffering oneself where one is confident that the relevant authorities will not act?” Let me float two points of difference that seem relevant: (1) self-defense is a matter of imminent danger and it is future- directed, whereas deserved suffering is not characteristically of imminent need and it addresses past concerns; (2) the self-defender may be the only one positioned to determine the danger and to take action against irrevocable harm, whereas they are not well positioned either to determine desert to suffer or to mete out a proportionate degree of deserved suffering. Perhaps these differences are incidental, but they appear to me characteristic and morally relevant. Of course, I may be missing something in this picture of difference. Leroy
Bradley writes (and I concur—somewhat) to offer a motivation for “the conjunction of views that Victor describes": "...desert-suffering in the wrong manner and by the wrong means would fail to obtain the impersonal value sought... ...desert-suffering should come as the proper delivering of desert for desert sake and not as part of a co-mingled effort to defend a nonliable person (or any other good goal).” Bradley correctly (I think) identifies at least some of the features of an ancient tradition of criminal justice, common across many cultures, that would seem to parse self-defense from punishment by virtue of the rule of law: the deserved suffering should be meted out by “a given group or society, through ... judicial process”; “And, finally...” Bradley adds, the deserved suffering should be administered by disinterested persons “so as to ensure that the deliverance of desert-suffering was properly proportionate and, well, deserved.” Otherwise, we risk having Bacon's notion of “wild justice” on the part of the self-defender. This strikes me as the principal reason why desert should not be among the grounds for self-defense. The fact that one deserves to suffer harm does not imply that simply anyone is permitted to inflict the suffering. Couple that with Jeff’s point that desert carries its own sufficient weight (apart from self- defense), and it seems desert should be kept out of the account for self-defense.
Greetings Victor! Your penetrating analysis has reinforced a number of things for me. Would you please clarify the “barbaric thesis” as you attribute it to McMahan, and as you suggest GRT accept? Thanks kindly.
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Jan 4, 2012