I’ve got a guest post in defense of kidney sales at the Colorado Center for Values and Social Policy:


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Almost everyone has by now accepted the two-state solution for the Israeli-Palestinian dispute. The new Palestinian state would be created in the territory west of the Jordan River (the parties have not agreed on the boundaries). I here avoid the many difficult issues raised by the two-state solution (see here for a particularly thorough treatment.) I just address a foundational issue.

When does a group have the right to create a state?  The answer commonly heard in the context of Palestine is “why, the Palestinians can create a state as soon as they recover the land that belonged to them and that has been unlawfully occupied by Israel.”  This answer treats territorial sovereignty as akin to property. Just as persons have property rights over land, so collective entities (called “peoples” in international law parlance) have title of some sort over land. If another collective entity (in this case Israel) unlawfully occupies that land, then the original owner has the right to eject the trespasser.

Now suppose that’s true, that collective entities have land rights, and that the land on which the Palestinians will establish their state is theirs. This does not mean that they are entitled to create any state whatsoever. The legitimacy of a state is subject to requirements beyond lawful title over land.   The literature on this is not uniform, but the most-cited requirements are respect for human rights and the rule of law. A group is not entitled to create a state that will enforce racial segregation, persecute dissenters, oppress women, and the like. More: there is a growing sense that democratic governance is a requirement of legitimacy as well. Perhaps these requirements are not very demanding, but I should note that none of the Middle Eastern allies of the Palestinians meet them.  Supporters of a Palestinian state that only care about the territorial claim would have to treat the North Korean state as legitimate, since there is no question that the North Koreans have title to that territory. This shows that you cannot be a supporter of human rights and simultaneously take the position that state legitimacy is defined only by the soundness of the territorial title. A sound principle, then, is that a collective entity has the right to create only a certain kind of state, a legitimate state, one that will respect the rights of its subjects.

Now I’m not saying that the Palestinians will create a tyrannical state. I don’t know, and I certainly hope not, although there are reasons to doubt that the Palestinian state will be any better than the objectionable regimes in the region. All I’m saying here is that Palestinians, like everyone else, are not entitled to create a tyrannical state..


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Many people believe abortion is baby murder. (Here, I use the term “murder” to signify the morally wrongful killing of an being that possess significant rights.) I don’t agree that abortion (or, at least early abortion) is baby murder. But, suppose for the sake of argument the anti-abortion crowd were correct. Suppose that having an abortion is murder, on par with killing an innocent adult. If so, then abortion doctors are mass serial killers. If so, then wouldn’t abortion doctors obviously be permissible targets for defensive killing?

Consider the doctrine of defensive killing, a doctrine enshrined into common law. By default, killing is presumed wrong. However, a person can become liable to be killed by performing certain wrongful or unjust actions. A person is liable to be killed when he is doing something deeply wrong, unjust, or harmful to others, and when killing him would serve a defensive purpose, such as self-defense, the defense of others, or to prevent him from causing greater injustice. Killing is also restricted by a doctrine of necessity: at minimum, when a non-lethal alternative is equally effective at stopping someone from committing injustice, it is not permissible to kill him. Most people accept this broad outline, though they dispute the details of the theory.

The common law doctrine of defense of others is almost identical to the doctrine of self-defense. According to one popular law textbook:

…one is justified in using reasonable force in defense of another person, even a stranger, when he reasonably believes that the other is in immediate danger of unlawful bodily harm from his adversary and that the use of such force is necessary to avoid this danger.[i]

“Immediate” here does not literally mean immediate. For instance, if someone has locked you up wrongfully, and plans to murder you six days from now, I can kill him now, if necessary to set you free. I needn’t wait until literally the second before he slits your throat.

Obviously, law ≠ morality. But the common law tends to be a reliable guide to people’s moral intuitions. The doctrines of self-defense and defense of others are doctrines that developed through the common law process that embody centuries of experience regarding how best to discourage violence and resolve violent disputes.” As John Hasnas says, they “…represent what fifty generations of juries and judges believed to be a fair and proper response to [wrongful] attack.”

Now, suppose Wellesley College had a “Women’s Rights Center”. At the Women’s Rights Center, women may drop off their children, which Wellesley promptly euthanizes, no questions asked, so that that women could then be free to enjoy the life that is most authentically theirs, or be free from trauma, or plan their families better, or whatnot. Most of us would look at the Women’s Rights Center with horror, and would demand that the government shut it down. Now suppose the government flat out refused to do so. Thanks to some weird, ideologically motivated mumbo jumbo in an old Supreme Court case, the government believes that the fourteenth amendment forbids it from closing the Women’s Right Center. And, so, the Women’s Right Center continues its cruel work, murdering hundreds of innocent children each year.

Now, suppose Batman bombs the Women’s Right Center, and thus prevents them from murdering a few children. That action seems heroic, not wrongful. But suppose the head child-killer in the Women’s Right Center gets away, creates a new child-killing lair, and starts murdering more children. In that case, Batman might decide to kill the child-killer, in order to stop him from killing more children. Suppose Batman announces, “I will, if necessary (if there are no equally effective non-lethal means), kill any would-be child murders to stop them from killing children.” Again, this seems heroic, not wrongful.

There are a number of objections to this line of reasoning, including:

  1. It’s wrong to engage in vigilante justice.
  2. Batman must allow people to murder children because he has a duty to obey the law, and the law permits child murder.
  3. Batman must not kill the child-killers, but must instead only use peaceful means.
  4. Batman must not kill the child-killers, because it probably won’t work and won’t save any lives.
  5. Batman must not kill the child-killers, because they mean well and don’t think they’re doing anything wrong.
  6. Batman must not kill the child-killers, because the claim that “killing six-year-olds is wrongful murder” is controversial among reasonable people.
  7. Batman must not kill the child-killers, because the government or others might retaliate and do even worse things.

I think these objections are either implausible (e.g., 2 is absurd), or are at best mere elaborations of the necessity proviso of defense killing. (E.g., #4.)

When people target abortion doctors, or bomb abortion clinics, pro-choice people exclaim, “See how extreme the pro-life crowd is! They’re insane!” But, no, if abortion = baby murder on par with murdering adults (or five-year-olds), and if there are no effective non-lethal means to stop these murders, then there seem to be very strong presumptive grounds for killing abortion doctors and bombing abortion clinics, according to the commonsense moral doctrine of killing in defense of others. The main normative dispute should really be about the moral status of the fetuses. Otherwise, the dispute would just be over whether killing is necessary (are there equally effective non-lethal means?), or whether the proper targets are being killed (e.g., abortion clinic bombers must avoid killing innocent people when they rightly kill abortion doctors).




[i] LaFave Criminal Law, 550. Here “unlawful” means unjust, not illegal.

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