That’s the title of a paper I’ll be presenting at the Morality of Aggression conference in Tucson in early December. I haven’t done any work on this in recent months, so if you’ve read my earlier posts on this, there’s nothing new. Still, it’s a teeny bit relevant to current events and we’re light on content this month at BHL.

Here are the opening two sections of the current draft:

Special Immunity or Moral Parity?

Andrew Altman and Christopher Wellman say, “Surely, it would have been permissible for somebody to assassinate Stalin in the 1930s.”[i] If so, is it also permissible to kill a president, Member of Parliament, bureaucrat, or police officer from a democratic regime, if killing is necessary to stop them from harming the innocent? If it is permissible to assassinate Hitler to stop him from invading Poland, is it also permissible to assassinate a US president in order to stop him from invading the Philippines or from ordering the genocidal slaughter or forced relocation of Native Americans? If it would be permissible to kill a Gestapo agent to stop him from murdering innocent people, is it also permissible to kill a democratic police officer who uses excessive violence?

Philosophers and laypeople often assume not. They assume that in liberal democracies, only non-violent resistance to state injustice is permissible.[ii] They assume we must defer to democratic government agents, even when these agents act in deeply unjust, harmful, and destructive ways.

This assumption is puzzling. The prevailing view is that, when it comes to government agents, the practice of killing in self-defense or defense of others is governed by different moral principles from those that govern defensive killing in other contexts. This presupposes that it makes a difference to the permissibility of killing an aggressor in self-defense or defense of others that the aggressor is wearing a uniform, or holds an office, or was appointed by someone who was in turn elected by my neighbors. According to the prevailing view, my neighbors can eliminate my right of self-defense or defense of others by granting someone an office.[iii]

To illustrate this asymmetry, consider the following three cases:

A. Shooter in the Park

A masked man emerges from a black van holding a rifle. He starts shooting at children in a public park. Ann, a bystander, has a gun. She kills him before he kills any innocent children.

B. Health Nut

Health guru John sincerely believes caffeine is unhealthy, that it causes laziness, and that it induces people to use hard drugs. John announces that he and his followers will capture coffee drinkers, confiscate their belongings, and imprison them in John’s filthy basement for years. Ann, who is too poor to move away from town, loves coffee. She secretly drinks it in the morning in her kitchen. One day, a henchman breaks into her house and attempts to capture her. She struggles to defend herself, and, in the process, kills him

C. Terrorist

Cobra Commander, leader of the terrorist organization COBRA, has a device that allows him to launch the United States’ nuclear arsenal against Russia. Ann, a private civilian, somehow stumbles upon COBRA’s secret control room. Just before Cobra Commander enters the launch code, Ann shoots him.

 

I expect most people believe it’s permissible for Ann to kill the wrongdoers in A-C. Probably only radical pacifists would deny that killing is wrong in A-C:[iv]

But now consider three new cases (D-F) that seem analogous to the first three (A-C). In these new cases, the most obvious major difference is that the wrongdoer is a democratic government agent:

D. Minivan Shooter

Ann witnesses a police officer stop a minivan with a female driver and three children in the back. Ann sees that the woman is unarmed. The police officer emerges from his car and immediately starts shooting at the van’s windows. Ann has a gun. She shoots the police officer before he kills any of the children.[v]

E. War on Drugs

Town leaders decide to make marijuana illegal, even though there is overwhelming evidence that marijuana is in every respect less harmful than alcohol, a drug that is legal for any adult to consume.[vi] Ann has a pot stash in her house. One night, a bunch of police officers raid Ann’s house in a no-knock raid. She recognizes that they are police officers. She also knows that if they capture her, she will be imprisoned for a decade. Her government issues overly punitive sentences for drug possession and is unresponsive to citizens’ demands to overturn the law. Ann struggles to escape, and, in the process, kills the cops.[vii]

E. Hawk

Ann, a janitor, happens to be cleaning the Situation Room when the president and his staff enter and lock the door. She hears the president inform the Joint Chiefs and his cabinet that he intends to unload the United States’ nuclear arsenal on Russia. The head of NORAD, who is on the screen, has already entered his launch code. Just as the president is about to enter in his own launch code, Ann tries to restrain him. The president breaks free and is about to enter the code. Ann takes a gun from a secret service agent and shoots the president.

 

Many people judge these cases differently from A-C. They think killing in self-defense or in the defense others is wrongful in (at least some of) D-F, though it was permissible in A-C.

Thus, most people seem to subscribe to what I will call the Special Immunity Thesis:

 

Democratic government agents enjoy a special immunity against being killed in self-defense or defense of others. The set of conditions under which it is permissible to kill a democratic government agent, acting ex officio, is much more tightly constrained than the set of conditions under which it is permissible to kill a civilian.

 

The Special Immunity Thesis holds that to killing the agents of democratic governments, at least when they are acting ex officio, faces a special justificatory burden.

In contrast, one might reject the Special Immunity Thesis in favor of the Moral Parity Thesis:

The conditions under which a civilian may, in self-defense or defense of others, kill a fellow civilian are also conditions under which a civilian may kill a democratic government agent, even an agent acting ex officio.

 

The Moral Parity Thesis holds that killing the agents of democratic governments is at least on par morally with killing private civilians. Strictly speaking, I leave it open that it might be easier to justify killing government agents than civilians. The Moral Parity Thesis implies that if killing is permissible in any of the cases A-C, it is permissible in the analogous case from D-F.

This paper defends the Moral Parity Thesis and attacks the Special Immunity Thesis. My thesis is that the conditions under which you may kill a civilian, in self-defense or in defense of others, are also conditions under which you may kill the agent of a democratic government, even when that agent acts ex officio.

Note that I focus solely on the ethics of defensive killing against immediate threats from democratic government agents. I am not here discussing whether anyone might ever deserve to die, or whether killing anyone might ever be justified as an end in itself. I am also not here discussing using violence to overturn laws or produce social change. Many philosophers and activists believe that non-violent civil disobedience is both morally superior to and more effective than violent resistance in changing unjust laws.[viii] They might be correct, but that is not my concern here.[ix]

A Commonsense Moral Theory of Defensive Killing

My thesis in this paper is conditional: Whatever conditions render it permissible to kill a fellow civilian in self-defense or defense of others also render it permissible to kill a democratic government agent, even an agent acting ex officio. Officially, I need take no real stance on what those conditions are. However, in this section, I’ll offer a brief account of defensive killing, though the precise details go beyond the scope of this paper.

Here a sketch of a theory of defensive killing, taken from Jeff McMahan’s Killing in War.[i] 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.

One way to discover what commonsense moral thinking says about the ethics of killing is to examine English common law. As John Hasnas says, “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.” They “…represent what fifty generations of juries and judges believed to be a fair and proper response to [wrongful] attack.”[ii] The common law is a reliable guide to people’s moral intuitions about permissible killing.

The common law assumes people have a right to protect themselves and others against “unlawful” threats such as assault, battery, rape, and murder.[iii] According to the common law doctrine of self-defense, one person (the “killer”) may justifiably kill another (the “adversary”) when:

1. The killer is not the aggressor, and
2. He believes he is imminent danger of severe bodily harm from his adversary, and
3. He reasonably believes that killing is necessary to avoid this danger.[iv]

Note that the common law regards meeting these conditions as justifications, not merely excuses, for homicide.[v]

Some comments on condition 2: In common law, killing in self-defense is justified only if the threat of harm is severe enough. I can kill you to stop you from raping or dismembering me, but not to stop you from throwing mud at me. There’s no sharp line between what threats count as severe or not severe enough to warrant killing. Also the “imminent danger” proviso does not literally mean that a victim must wait until the last possible second to defend herself.

Some comments on condition 3: The common law requires the killer to have a reasonable belief that deadly force is necessary to protect herself. The test here is whether a reasonable person might hold the belief, not whether it is impossible for a reasonable person to doubt the belief. Finally “necessary” here means there are no good alternatives, not that there are no alternatives. So, for instance, in Shooter at the Park, Ann could attempt to wrestle the shooter or reason with him. But the probability of success is sufficiently low that she is allowed to kill him instead.

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.[vi]

These conditions should be understood the same way as the conditions for self-defense.

 

From there, the paper goes on to examine and attack a range of reasons to believe that democratic government agents have special moral immunity.

Hopefully, in response to this post, blogger Eli Horowitz will take his usual tactic of reading me as uncharitably as possible and then writing a rant against his caricature.