In Helen Frowe’s book, Defensive Killing, she argues that some cases of seemingly futile self-defense are actually instances of justifiable defense of the victim’s honor. This paper explores Frowe’s claim, first by isolating the central cases and then by examining her rejection of punitive reasons. From there, the paper examines Frowe’s understanding of “defense of honor,” ultimately suggesting that Frowe’s conception is best construed as action that has expressive, but not defensive, value. From there, I turn to two more general puzzles. First, what if the defender mistakenly believes that she can successfully defend and acts for that reason, but the reason that actually supports her action is not one she is acting in light of? And, second, how ought we to understand the interests of an aggressor who has forfeited his rights?
There is an intuitive sense that even when, as the Star-Trek villains “The Borg” would say, “Resistance is futile,” defensive force remains permissible. A woman, unable to prevent a rape, does not seem to wrong her attacker by breaking his wrist. The Warsaw ghetto uprising seems honorable, even though the “defenders” knew their resistance was in vain. And, as Danny Statman notes, we cheer for John Wayne cowboy movies where, even when they are surrounded, we think the heroes do right by taking their last stand.1
Should we conclude that defensive force need not be necessary? This would be too quick. Whereas these futile defenses seem permissible, other acts of unnecessary defense do not. May I shoot a culpable aggressor when I can safely escape? It seems that I would act impermissibly in so doing.
These cases are distinct, despite the fact that in both instances, defensive force is in some sense unnecessary. In the first, the defensive force appears ineffective (and thereby unnecessary because it is not sufficient to stop the attack), whereas, in the second, the defensive force would be sufficient but remains unnecessary to prevent harm to the victim.
In her book, Helen Frowe claims that some acts of ineffective defense are not ineffective after all.2 Rather, some force may be proportionate to defending the victim’s honor. She is further willing to extend this defense of honor to cases of the second type, allowing some harm to attackers even when victims can safely retreat.
In this paper, I begin by setting forth the central case of futile defense and eliminating distracting cases that misunderstand the nature and justification of self-defense. I then consider one justification for harming in futile defense cases that Frowe rejects: punitive reasons. I argue that punitive reasons can justify harming the attacker in futile defense cases and show that Frowe’s deferred harming objection to punitive reasons fails. From there, I consider Frowe’s claim that some force is justified because the victim is defending her honor. I find this claim to be undertheorized and thus address different conceptions and claims about honor that may be at work.
In unpacking Frowe’s claims, I offer several refinements. First, the notion of honor that Frowe is after is best construed as an action that has expressive value, as opposed to value that comes from averting a threat to honor. Although Frowe sometimes suggests the latter defensive formulation, such a formulation fails to explain why harming the aggressor is necessary or sufficient to defend honor. In contrast, an expressive view comes with its own success condition and does not entail that the action succeed at averting anything. Moreover, an expressive view can explain something else that a defending view cannot, namely why the defender need not impose the minimum amount of harm necessary. The expressive view reveals that there will be cases where more harm imposed by the defender has greater expressive worth than less harm. Ultimately, then, the conception of “defending honor” that best describes what Frowe is after is “expressing honor,” not defending it. Finally, Frowe conflates this sort of honor defense with instances in which we attribute value to a defender standing her ground. Here, this value, in being able to stay where one lawfully has a right to be, is an instance where the action defends a value, rather than expresses it. I suggest that we should pry apart these analytically distinct reasons and avoid treating them as one kind of honor defense.
The last part of the paper turns to two more general puzzles implicated by these unnecessary defense cases. The first is the problem of mismatch. What if the defender mistakenly believes that she can successfully defend and acts for that reason, but the reason that actually supports her action is not one she is acting in light of? That is, may the defender avail herself of punitive reasons if what she aims to do is defend herself? The second puzzle is how to understand the interests of an aggressor who has forfeited his rights. Frowe seems to believe that these interests may be asserted by the aggressor in a lesser-evils calculation. In contrast, I maintain that aggressors who have forfeited rights cannot assert the interests that were protected by those rights.
I Futile Defense Cases: The Central Case and Question
Within the category of futile defense cases, it is important to put one class of cases to the side at the outset. As Frowe rightly observes (111) and as was previously noted by David Rodin,3 one need not do any fancy footwork to explain why Alice, who is threatened to be raped by five men, may kill three, even though she will still be raped. Rights are relational. Alice gets to prevent Bob from raping her, even if Carl still will. Hence, some of the cases suggested by Statman do not require a resort to defending honor to resolve them.4
One immediate question is whether Fran believes that her action will stop the attack. I will return to this issue later. For now, let us proceed on Frowe’s assumption that Fran knows that breaking Eric’s wrist cannot prevent the rape. That is, we begin with the assumption that Fran does not think there is even the slightest chance that she can be successful, and thus, her action is not done with the intention of defending herself against the sexual assault.
Rape: Eric is in the midst of culpably raping Fran. Eric is much bigger and stronger than Fran, and consequently there is nothing she can do to stop him from continuing to rape her. While being raped, Fran threatens to break Eric’s wrist, though this will do nothing to stop the rape from occurring. The only way Eric can stop Fran from breaking his wrist is to quickly break her wrist first (99).
II Punitive Reasons
The question at hand is whether Fran is permitted to break Eric’s wrist, particularly given the concern that if she is not so permitted, Eric might have the right to fight back and stop her. I think it is extremely plausible that punitive reasons do exist that support Fran’s actions and that Frowe has not successfully ruled such reasons out of consideration.
Frowe considers but dismisses what she calls “punitive reasons,” including desert (106) and deterrence (107). “But although punishment is the most obvious candidate for justification for harming Eric, it fails to provide a satisfactory justification for inflicting harm in the cases under discussion” (107).
She finds two objections to punitive reasons accounts to be surmountable. She believes the concern that private individuals can’t usually punish is not inherently problematic; after all, the aggressor is liable to the harm, and any punishment received by an aggressor at the hands of the defender can be deducted from the state’s ultimate imposition of sentence6 (107). Second, one may worry that private citizens will get the wrong guy, but during the rape itself, Fran isn’t likely to make a mistake about her attacker. According to Frowe, this too is a surmountable objection (107).
Frowe’s central objection is that punitive reasons don’t seem to rule out “deferred harming.” Why can’t Fran break Eric’s wrist the next day? “Liability to punishment is triggered by engaging in wrongdoing, but persists once the wrongdoing has ceased” (107). How can the reason that applies to letting the state be the one to punish attackers “somehow get stronger once the attack has ended[?] But it’s hard to see why this would be the case—unlike defensive action, there’s typically no urgency about punitive measures” (108). Given that we would not let her punish him later (we would insist that the state do it), why let her punish him now? It seems like indulging vigilante justice.
Frowe then just concludes: “If we do not think that Murderer and Eric are liable to suffer deferred harm at the hands of their victims, we will need to reject punishment as the source of a liability to non-defensive harm” (109). Either Frowe is rejecting that punitive reasons exist or she is rejecting that they are available to Fran. I find neither claim plausible.
To deny that punitive reasons exist is to reject that punitive reasons are generated during the rape. This can’t be true. Consider first desert. Eric, by virtue of his culpable wrongdoing, deserves to be punished. If so, then this reason exists at the time of the rape. What about deterrence? The case is both stronger and weaker. Deterrence is empirically contingent and thus the reason may not obtain at all.7 The reason will exist when it deters and won’t when it doesn’t. In that sense the case is weaker. But when the reason does exist, there is no doubt that it exists during the rape itself. Hence, even if you think that “punishment” requires the state, deterring aggression clearly does not.
The fact that these reasons do exist does create the puzzle of deferred harming. So, how might we account for the fact that Fran can’t punish Eric later? To my mind, the best account would be one that draws on the state’s role (and possible monopoly) on punishment. What Fran does wrong—if she acts wrongfully at all—is to take over the state’s role, but her action does not violate Eric’s rights. Moreover, there is certainly room for a theory of the state that holds that an individual, while being attacked by a wrongdoer and unprotected by the state—is simply not governed by the social contract to leave punishment to the state. After all, at that moment, there is not a functioning state that is holding up its end of the bargain by protecting her.8 Indeed, I have argued that the reason why we applaud vigilantes in popular culture where the hero is provoked (my favorite is Russell Crowe’s killing of Joaquin Phoenix in Gladiator) is because these are cases where not only does the bad guy have a lot of desert long overdue but also the state has wholly failed to give the bad guy what he deserves (in Gladiator, the bad guy is the state).9 We may thus think that in the absence of a state that protects her right now, Fran may be permitted to punish Eric.10
We may think that after Rape, Fran has rule of law reasons to defer to the state. If she went and broke his wrist the next week, then, it isn’t that the desert reason operates less strongly—it doesn’t. But the fear that there will be downstream effects that others might retaliate in mistaken situations, combined with a general belief that the state is just, operate to require Fran to stay her hand. That said, if she breaks his wrist, I still think he fully deserves it.11
Now, perhaps Frowe’s quick conclusion was meant to say not that these reasons do not exist but that they are never available to Fran. Fran is not entitled to punish. Given that Frowe explicitly rejects the argument that “we don’t typically allow private individuals to dish out punishment” (107), just two pages prior, such a move is not supported by the text. More importantly, the question of whether Fran wrongs Eric by giving him what he deserves is simply a different question from whether Fran violates the social contract by not ceding authority to the state.
The more difficult question, and one to which I will return in a bit, is what intention Fran must have while harming Eric. That is, a better argument Frowe could make against access to punitive reasons is that an action cannot be considered punitive unless the harm is inflicted with the intention to punish. There is thus a possibility of a mismatch between Fran’s reasons for imposing harm and the reasons that might support it. I will return to this mismatch question in what follows.
III Defending Honor
A Frowe’s Account
Frowe argues that defending honor is a better explanation for our intuitions that futile defensive actions are permissible. They are not futile after all! Fran is successfully defending her honor. In articulating how this might be so, she endorses Statman’s claim that “in the eyes of the aggressor, we are just items to be used, mere objects” (109).12 And, she approvingly cites Barbara Herman’s formulation that one may defend against an aggressor because he “would use me (take my life) for his purposes” (110).13
Frowe concludes that threats to honor are not as bad as the primary threats. Even when the primary threat is rape or killing, she argues, contra Statman, that the corresponding threat to honor only justifies imposition of “moderate harm like a broken wrist or arm” (112–13).14 More force would not be proportionate, Frowe asserts, because the defensive harm is conveying one’s assertion that one will not be passive and complicit and that one is a person worthy of better treatment (113). Moreover, defending honor comes with its own success, as it is in the trying that one reasserts one’s dignity (114).
The gravity of the threat to honour is likely to increase as the seriousness of the primary threat increases because a threat to honour is about the wrongness of thinking that one may do this sort of thing to one’s victim. The worse that one is treating one’s victim in terms of the primary threat, the more one denies her status as a person deserving of a certain sort of consideration. Thinking that you are the sort of thing that I can slap because I feel like slapping you is not as significant a threat to your honour as thinking that you are the sort of thing I can rape or kill or seriously assault because I feel like raping, killing, or seriously assaulting you (112).
Frowe is cognizant of the fact that she must offer a limit to defending honor, lest the “deferred harming” objection hoist her on her own petard. She suggests that to the extent that the threat to honor supervenes on the primary harm, then the threat to honor is over when the primary threat is over (113). The defender might seek restoration of honor but she cannot prevent the harm done (114).
Because Frowe takes necessity to be an external restriction on the use of permissible self-defense, she claims that Murderer is liable to defensive force so he cannot kill Victim in counter-defense, but Victim still acts impermissibly in shooting him (117). Hence, according to Frowe, even if culpable aggressors have forfeited their rights, it is still not all-things-considered permissible to kill them unnecessarily (117).15
Lucky Escape: Murderer is shooting at Victim to try to kill him because he dislikes Victim. He chases Victim to the edge of a cliff. Unbeknownst to Murderer, Victim has both a gun and a parachute. He can thus save his own life by either (a) jumping to safety, using no force against Murderer, or (b) shooting and killing Murderer.
Despite the fact that Murderer is not liable to be killed, Frowe maintains that “some harm inflicted on Murderer can be necessary as a means of Victim’s defending his honour” (117). “Since Murderer poses a lethal threat, it will be proportionate for Victim to inflict quite significant harm to defend his honour, and thus a substantial component of the lethal harm Victim inflicts will satisfy the necessity constraint” (117). Because Murderer is liable to some successful harm by Victim’s defending his honor, Murderer is entitled to use force only to the extent that Victim’s force is disproportionate to the honor defense.
B Assessing Honor
I am sympathetic to the idea that we may use a mild amount of force to defend our honor and dignity. That said, I find Frowe’s account to be problematic and undertheorized in several respects. Admittedly, Frowe’s book seeks to accomplish quite a bit in a short number of pages, but before one signs onto the “Hooray for Fran and her honor!” account of our intuitions, let me set forth some cautionary questions and see if we can tease out different notions of honor and defending honor that may be at play.
1 What Does it Mean to Threaten Honor?
In Rape, there are two distinct factors that inform our view that Fran is defending her honor and Frowe focuses on both of them. One factor is that rape entails using another person as a means. The second is that Eric is culpable.
This argument seems to presuppose that the aggressor is harming the victim as a means to some end if only the end of feeling like deriving pleasure from harming the victim. However, Frowe also seems to think that attacks on honor are actions that reveal culpable disregard for others, that is, showing insufficient concern for others’ interests. In that case, honor is attacked whenever the victim is intentionally harmed.
Thinking that you are the sort of thing that I can slap because I feel like slapping you is not as significant a threat to your honour as thinking that you are the sort of thing I can rape or kill or seriously assault because I feel like raping, killing, or seriously assaulting you (112).
From here, it seems that we might be inclined to find that lesser culpability also counts, including recklessness. What if I speed home to catch the most recent episode of my favorite soap opera, thus imposing a risk on you as a pedestrian? If you can’t stop me from unintentionally, but recklessly, rendering you quadriplegic, can you break my wrist and say, “You can run me over, but you can’t take my honor!”? Are attacks on honor just culpability by another name?16
Larry Alexander and I have argued that culpability is the manifesting of insufficient concern for another’s interests.17 It seems that the idea that Frowe is after here is not opportunistic use but rather the manifestation of an attitude that the victim does not count. It is that disrespect to which the victim is responding.
2 What is the Relationship between an Attack on Honor and the Primary Harm?
To this point, we might think that the sort of disrespect embodied in an attack need not entail using a person and includes culpable attacks on others. One might then wonder whether culpable attacks, even if they don’t cause harm themselves, still constitute attacks on honor such that one may harm culpable attempters. Statman suggests that when honor stands alone, it will justify some use of force, just not the use of deadly force that he took to be proportionate when honor was parasitic on a primary harm. An implication of Frowe’s claim that one can defend honor in Lucky Escape is that honor is itself sufficient for some defensive force. Indeed, at one point, she claims the difference between inchoate and choate crimes is the difference between just insulting your honor and insulting your honor and harming you. But that would mean that if I intend to kill Helen, point a gun at her, and she knows the gun is unloaded (but I do not), she is permitted to harm me to prevent me from pulling the trigger so that she might defend her honor. Do I really succeed in dishonoring her if I fail in my attempt? I reveal that I am culpable and do not respect her but is she truly permitted to break my wrist just to stop me from pulling the trigger of an unloaded gun which will reveal that I disrespect her? As a matter of reporting one’s intuitions, I will admit that I find it far less plausible that one is entitled to use force to defend one’s honor when one knows that no harm is at issue.18
On the other hand, tying honor to the primary harm seems to create the opposite problem which is whether the attack on honor can be thwarted if the primary harm is not. Consider the claim by John Gardner and Stephen Shute that the wrong of rape just is the opportunistic use.19 Admittedly, there is something decidedly odd about disregarding the harms inherent in rape as mere epiphenomena.20 Still, if the most abhorrent thing about rape is the use of a person as a means and that cannot be stopped, in what sense is honor truly being defended?
3 Honor and Expressive Value
In this sense, “fighting back” has intrinsic expressive value. It therefore comes with its own success condition, as merely by fighting back one is (re)asserting one’s worth.
When we think about what it is that such harms try to convey—a refusal to be passive, a refusal to be complicit, a means of asserting oneself as a person worthy of better treatment—it seems that even in the face of a serious threat to one’s honor, such as that present during rape inflicting a moderate harm upon one’s attacker (a broken limb, for example) would suffice to manifest such an attitude which is what constitutes the defense of one’s honour (113).
This idea is deeply entrenched. We have a number of norms that take it to be valuable to fight in the face of futility. In the face of the opposing team’s inevitable victory, every parent teaches her child to play the game out. You don’t quit, give up, throw in the towel, but instead, you play your best even in the face of certain defeat. And, we think that this strength of will and determination are valuable character traits. This may be the same ethos that supports thoughts such that one should not “go gentle into that good night.” We see value in the act when you “rage, rage against the dying of the light.”
Part of the rationale for why such “resistance” is valuable may trade on the thought that one ought not to give up or resign oneself to failure. This may in fact color our intuition that Fran may fight back. We might think that she can’t know that defensive force will not work. She should still try to stop Eric. It might work! Still, as a parent who has sat through too many children’s sporting events, sometimes one team knows they are going to lose and we still see the value in fighting until the end.
In thinking about the value in this “resistance,” we can also gain some insight by looking at its converse—not fighting back. Both Herman and Frowe use the term—complicit—to denote one’s role in the injury to oneself if one does not fight back. In some ways, this is a staggering accusation. Someone hurts me and if I don’t fight back, I am part of the problem! I’m hurting myself! This claim is conceptually and normatively unattractive. Conceptually, we tend to think of complicity as requiring purpose (not even knowledge will do) and it is certainly not my aim to be hurt. Normatively, it seems to add insult to injury to say that someone who is being attacked is also required to fight against that attack, lest she be dishonoring herself. There are good reasons why the law of rape has moved away from the requirement of resistance to the utmost by the victim to an understanding that women—some of whom suffer frozen fright—are just as violated when they don’t fight back.
Although I think that we should not place a duty on the victim to resist, I think we can still grant significance to the attitude expressed when one does resist. One’s behavior just is a reassertion of oneself and one’s value. One is not required to do this, but we might still understand that one is saying this by one’s actions. There is an expressive meaning that is communicated by this act in reasserting one’s value in the face of attack. Although some theorists have thought of this as an interest that we have in how we die,21 the conception that seems to be at work in Frowe’s book is a more impersonal expressive value.22
This way of thinking about honor raises four questions. First, how does the aggressor become “liable” to this expression of honor? Second, does this conception apply in Lucky Escape? Third, how does it relate to necessity? Fourth, how does it survive the deferred harming objection?
4 Liability and Expressing Honor
In some ways it seems obvious that one who fights back expresses or defends one’s honor against one’s attacker. I don’t doubt that this is true. At this point, I wish only to express the concern that we may need to avail ourselves of additional explanatory resources to articulate why it is that Fran gets to harm Eric as a way of saying, “I respect myself and you ought to respect me.” Although I will turn to the necessity question momentarily, for now, the question on the table is simply why it is that the attacker must absorb a harm, a harm which is expressing something. That is, we are asking whether Eric has forfeited a right against this sort of harming where the justification for the harming is grounded neither in desert nor defense.
It may be that we get to say that when one violates another’s rights and does so culpably, thereby manifesting disrespect, one cannot complain when the rejection of that message is accomplished by force in reply. The alternative would be to say that actors do not forfeit rights against expressions of honor. Rather, like deterrence, expressive reasons can only serve to justify harms that the agent does not have a right against. Just as we may offer a deterrence justification for punishing culpable actors, but not innocent ones, because the former have forfeited rights that the latter have not, perhaps we may further expressive values when the actor already has forfeited rights on other grounds. Ultimately, I find both views defensible. I will not attempt to argue for one here. I will simply suggest that self-defense theorists need to pay closer attention to the relationship between liability and reasons, a problem to which I will return at the end of the article.
5 Lucky Escape and the Embedded Alternative Conception of Honor
Lucky Escape raises a question that has often been debated in criminal law theory and self-defense, and this is the duty to retreat. Retreat has long been understood to be part of the necessity calculation. Indeed, Larry Alexander has noted that criminal codes that do not require retreat but do require that defenders use force only when necessary are internally inconsistent.23 The right to stand one’s ground, and not surrender a position that she lawfully holds, exists and may be protected. But it must be protected proportionately. If the defender knows that she can kill the aggressor to prevent herself from being killed or that she can step on the aggressor’s instep to prevent herself from being killed but the latter increases the probability that she will break a heel, then the defender may not kill because one cannot kill someone to protect a shoe.24 Similarly, we might grant that there is an autonomy interest at work in Lucky Escape—and thus in some sense an “honor” interest—that allows the use of some force. Asking someone to jump off a cliff—even with a parachute—is a lot to ask! And even if Victim could simply hide behind a bush, you are asking him to yield a spot he lawfully occupies because another has threatened him.25
The intersection of retreat and honor is contentious. I want to be clear that the way that honor is initially employed by Statman, and the way that it intersects Rape, is different from the way that honor is implicated in retreat cases. In retreat cases, the question is whether Victim must run away26 or whether he may stay and fight. This second sense of honor shifts our discussion from the fierceness of Fran, our resilient rape victim, to the thought of testosterone-filled, chest-beating contorted conceptions of masculinity. That said, it seems the distinction that many jurisdictions in the United States adopt is the correct one. One may use nondeadly force without retreating but may not use deadly force. The idea behind not requiring retreat in nondeadly situations is that retreating allows aggressors to violate our rights by forcing us by their wrongdoing to surrender where we may otherwise rightfully be and that retreating encourages further aggression. We need not be indignant about our dignity to see these as appropriate concerns.
This notion of defending honor—as defending one’s right to remain where one lawfully stands—exists independently of the notion that the Murderer is dishonoring the Victim by attacking him. Here, Victim is clearly defending his rightful space, and this is an interest that is properly taken into account in what Victim may defend in Lucky Escape.27 In contrast, I suspect that the expressive value in “not giving up” in the face of defeat has no purchase in Lucky Escape. To be sure, we have intuitions that the Victim is standing his ground in Lucky Escape, but it seems that the value of expression in the face of certain loss simply does not obtain when the Victim will lose nothing (or what little he will lose is better explained by a different conception). There seems to be less poetic expression in shooting Murderer needlessly. One might think that it is, well, dishonorable. It does not seem that even a wrist breaking is in order. Hence, we might think that either (1) Murderer simply is not liable to any harm beyond what Victim needs to stand his ground and/or (2) harming in this situation fails to express one’s honor. Importantly, Frowe is incorrect to conflate this notion of defending honor—as standing one’s ground—with the analytically distinct expressive notion that she is otherwise after.
6 Honor and Necessity
Another problem for any notion of honor is whether it actually solves the necessity problem or simply relocates it. Has Frowe, to use one of her favorite locutions, simply moved the bump in the carpet? I think it depends on whether we have our finger on the correct framing of what the defender is doing. To the extent that this is about defending honor as one would defend against a physical threat, it does not seem that the case has been made that harm is necessary. That is, if injuring Eric is sufficient to defend dignity, we might still wonder if it is necessary. Fran could say, “You are raping me. I am not just a means to your end.” She could sing a few bars of Whitney Houston’s The Greatest Love of All, “No matter what they take from me, they can’t take away my dignity.” If she really wanted Eric to suffer, she might voice activate her iPhone to play Mel Gibson in Braveheart shouting that “They can take our lives. But they can’t take our freedom.” Why would physical harm be necessary to reassert herself as an end in herself? Hence, even if Eric is liable to moderate harm as a matter of proportionality, the necessity problem simply reasserts itself at the level of honor.
On the other hand, if fighting back is valuable because of the meaning of a tenacious fight, then perhaps only some actions will do.28 Because blowing a raspberry just lacks the same expressive function as breaking a wrist, we resolve the necessity quandary because the action reasserts honor as an end in itself, such that more assertion just is more meaning just is more honor. The necessity objection may then dissolve.
7 Deferred Harming Reprised
Finally, let us consider deferred harming.29 Even assuming we are talking about otherwise futile defense cases, and even assuming that violence does assist in allowing the victim to assert her honor, we must ask whether this conception rules out deferred harming. After all, we have shifted from a notion of averting a threat to a notion of expressing one’s honor. But why does that communication have to be contemporaneous with the attack? In the television show, The Newsroom, a woman’s ex-boyfriend posts revenge porn on the internet. After he does this and she is humiliated, she goes to his office, knees him in the groin, and punches him in the face. Why would this action assert her honor if it is done while he is pushing send, but not thereafter? Once the value is in the expression—and not in the prevention of dishonoring—the requirement that the expression be contemporaneous seems ad hoc.
For the very reasons I suggested with respect to punitive reasons, I think that we should simply embrace the thought that these reasons do remain in force even after the attack is over. The fact that victims are required to stay their hands is simply a result of a political morality that requires victims to yield to the state. In the absence of the state, do we really think that Fran fails to express her honor if she breaks Eric’s wrist the next week? I doubt it.
In this brief survey, I have suggested that a conception of defending honor that requires that the harm to honor is, in fact, averted runs into many problems, including the problem that motivates the honor account at the outset. First, we must parse whether attacks on honor are because the aggressor is culpable or because the aggressor intends to use the defender as a means. Frowe suggests both at times, and I have argued the former is more plausible. Second, it is unclear how Frowe envisions that the attack on honor relates to the primary harm. Frowe seems to suggest that attacks on honor are akin to inchoate crimes, thus allowing a defender to injure someone whom she knows cannot hurt her. This seems odd, as does the converse, that when the victim harms an aggressor, who is successfully sexually assaulting the victim, that the victim is somehow succeeding in averting a threat, even a threat to honor. The final concern is that such an account merely relocates the problem. The honor account is supposed to be an answer to why one may harm another even if that harm fails the necessity limitation because the use of force will not stop the attack and thus the harming seems futile and unnecessary. But as a matter of defense, we might ask whether even Fran’s breaking Eric’s wrist is necessary. Might lesser means still succeed in “defending honor?”
In contrast to a defensive view of honor, I have suggested that one might think of Fran’s actions as having expressive value. This is the good generated simply by standing up for oneself. Because causing greater harm to the aggressor may have greater expressive value, it explains why Fran need not do the bare minimum that accomplishes the assertion of her moral worth. Notably, this view also comes with a couple complexities that are worthy of further inquiry. First, what is the relationship between this reason and liability? Is it that Eric is liable to Fran’s expressive force? Second, we must again face the deferred harming objection. Part of what motivated Frowe’s defensive conception was the goal of avoiding justifying deferred harming. In contrast, I would suggest that we ought to bite the bullet. Sometimes, even after the fact, harming will have expressive value. If such harming is impermissible, it is because rule of law values outweigh it.
Finally, I have suggested that Lucky Escape entails an altogether analytically distinct notion of honor. This form of honor defense is the kind that looks truly defensive. One is defending one’s right to stand one’s ground. One may be entitled, as American jurisdictions hold, to use nondeadly force to protect this right. But it is a far cry from what is at stake with Fran and Eric.
I do not expect that my brief survey of these questions has yielded definitive answers. I do hope, however, to have advanced the inquiry such that when a theorist argues that defending honor is a solution to the futile defense problem, the theorist will take pains to explain exactly and precisely how honor is defended. I want to turn, however, to another puzzle that lurks beneath the surface of the honor defense, and this is the relationship between liability, intention, and reasons.
IV Reasons, Reasons, Everywhere…but What is Fran Thinking????
At this point, we should recognize that myriad reasons may justify Fran’s conduct. Harming Eric may be justified as a matter of desert, as a matter of deterrence, and as a matter of expressing her moral worth. And, perhaps all three of these reasons extend temporally beyond the rape itself. Similarly, in Lucky Escape some harm is due and owing to Murderer as a matter of desert, deterrence, defense of honor in standing one’s ground, and perhaps defense of honor in other senses. I want to suggest the way that we should put these pieces together, a way that would be congenial to Frowe’s positions and would offer a new challenge to punitive reasons.
Let’s consider Eric. Is Eric liable to defensive force? Frowe and I would both answer affirmatively though I would say that Eric is only liable to force that Fran believes is defensively required (this will matter for Lucky Escape later). Let’s assume Fran intends to defend herself. But her breaking his wrist is futile. How should we understand this case?
I think the appropriate analysis of the situation is that Eric is liable but that the harm can’t be all-things-considered permissible unless it is supported by reasons. Although I cannot argue for the position here, I take reasons to be fact-relative. Mistakes are not reasons, even when reasonably held. Because I am not inclined to go evidence-relative about necessity, I would say there is no defensive reason here. An omniscient actor would say there is no defensive reason for Fran to act.
But enter Frowe’s expression of honor. To the extent that the harming has intrinsic value, and Eric is not wronged recall, that harming is supported by reasons.
What about punitive reasons? Well, Frowe is going to have to concede that defenders deter aggression by fighting back. Whether one does this will depend on the actual facts. (Eric is already liable to harm on Frowe’s account. The question is whether there are reasons to give him the harm to which he is liable.)
When we reach retributive reasons, I think we have a problem. Are these reasons available to Fran? Ordinarily, we don’t think that one is punishing if one does not act with a punitive intention. Assume that Albert and Bob dislike Carl and decide they would like to beat him up. Unbeknowst to them, Carl is a rapist who has not been caught and punished. When Albert and Bob beat up Carl, unaware of the desert-based reason that obtains, are they punishing him?30
Notably, Fran has a good intention unlike Albert and Bob, but it is still odd to think that this counts as punishment. Unlike the deferred harming objection, then, this one might have teeth.
Let me explain. Eric has forfeited rights against being injured defensively. I suspect that Fran believes she is acting defensively. Eric cannot complain about these injuries because he forfeited rights against them. However, just because an action will not wrong someone does not mean that it is necessarily permissible. If, all things considered, there are not actual reasons that support Fran’s actions, then she should not harm him.
Think of it this way. Assume that Eric was pointing an unloaded gun at Fran, but Fran thought it was loaded. Fran might not wrong Eric by shooting him, but objectively, she kills someone she did not need to kill. The same question would then arise. If she doesn’t need to kill him defensively, are there still reasons that support (perhaps only partially) Fran’s harming Eric?
In either case, Fran could try to point to deterrence, desert, or maybe expressive value. But then, what if she isn’t thinking of those reasons? Surely, deterrence still goes through because injuring Eric counts as deterrence if it deters, irrespective of what Fran thinks. But does desert work the same way? Returning to the wrist breaking, can Fran’s conduct be supported by the fact that Eric deserves (more than) a broken wrist if Fran isn’t thinking, “You deserve this scumbag!” and is instead thinking, “Get the XXXX off of me!”? We might be tempted to think yes, but this is a bit of moral slippage, in taking one justifying reason that usually requires that that justification be the intended (or known) goal and substituting it for the actual motivating reason which would have been justifying had the facts been as the actor believed them.
Of course, this question extends beyond punishment. We might likewise ask whether expressing honor likewise requires an intention. Culpability doesn’t—the aggressor manifests disrespect without needing to intend to manifest disrespect. But we do need to be clearer about exactly what expresses honor, because some conceptions might make this reason unavailable to Fran unless she acts with the express intention.
To summarize the worry, then, Rape looks like a case where Fran intends to act defensively, but she’s mistaken. Theorists are quick to offer alternative accounts of the deep-seated intuition that Fran may act despite the fact that defensive force is futile. They offer other reasons, reasons that do obtain, to justify the harm. My concern is that not all of these reasons are reasons that have force merely by existing. Rather, sometimes these reasons need to be intended or known before they are available. This may mean that the quest to justify Fran’s conduct is somewhat more complicated than it first appears.31
My final question is whether we should be on board with Frowe’s approach to Lucky Escape. Frowe takes a somewhat peculiar path in Lucky Escape that ought to be more carefully parsed. One result that Frowe thinks we ought to reach is that Murderer cannot kill Victim in Lucky Escape. However, Frowe does think that Murderer can fight back against disproportionate force. I believe that this conclusion is incorrect in terms of Frowe’s own argument. Moreover, I worry that Frowe’s cabining of her inquiry (ignoring other resources that might explain some of these situations) blocks from view a better explanation of the moral landscape.
Frowe argues that Murderer is liable in Lucky Escape, arguing for what she calls “externalism” about necessity. Though I agree with Frowe that the necessity limitation is not best seen as an internal limit on liability, I wonder whether the internalism/externalism debate is the most perspicuous way to see this. Ultimately, the question is whether liability requires not just forfeiture but a reason (understood objectively) for engaging in the conduct. The relationship between liability and reasons is underexamined. One could thereby contrast Tadros’ duty approach, where one has an obligation to engage in the action, with McMahan’s approach, where one must have an instrumental defensive reason, with my approach that liability ought to include only forfeiture.32 On my view, once there is forfeiture, then, the question is how the fact that the defender’s conduct will not constitute a rights violation links to the determination of all-things-considered permissibility. Necessity then serves as a limit to the extent that we think that the interests of culpable aggressors remain, even if their rights not to be harmed do not. Frowe’s “proportionate means externalism” is thus better expressed as a claim about rights forfeiture (liability) and a recognition that harming, and the extent of harming, must be supported by reasons (“proportionate means”).
With Lucky Escape, killing Murderer is not supported by reasons. Although I share Frowe’s “externalism,” I part company with Frowe in thinking that internalists lack the resources to explain why Murderer cannot fight back. As I’ve argued previously, individuals who start fights may lose defensive rights despite the fact that the responder still wrongs the provocateur by injuring him.33 We can maintain that Murderer started it and so cannot defend while simultaneously judging Victim’s actions to be impermissible. The vast majority of American jurisdictions take this approach. Given that this is the widespread position across states and therefore arguably represents the considered judgment of a large populace, it strikes me that philosophers would be wise to devote at least a paragraph to considering whether there is any wisdom inherent in these laws.
Irrespective of whether Frowe finds the provocateur explanation to be plausible, there remains the problem that Frowe’s analysis fails on its own terms. She maintains that Murderer is liable to be killed, but such a killing is not all-things-considered permissible. But to Frowe that is not the end of the matter because Murderer is liable to some force as a matter of the Victim defending his honor. So, some harming is permissible, and Murderer cannot defend against that. But what if Victim goes overboard and uses more force than is justified to defend his honor? Frowe then maintains that Murderer can defend himself. “He may therefore use force to defend himself only against the excess harm that exceeds what victim may inflict in defending his honour” (118). Murderer therefore has a “limited right of counter-defence” (118).
I find this result curious. The root of the trouble, I think, is that using internalism and externalism obscures the relationship between liability and reasons.
Consider an example of the relationship between rights and reasons. My neighbor wants to access the street behind my house by walking on my grass. Begrudgingly, I consent. Now, if my neighbor has another way to access the street that does not trample my grass, then that is the way that he ought to go. But am I entitled to push him off my grass to enforce this lesser-evil? Or having waived my right am I prevented from any further enforcement of the very same interest at stake? The question is what to make of an interest that is not protected by a right when harming that interest is still all-things-considered impermissible.34
The Murderer’s interest is not protected by a right. He gave it up by attacking. On Frowe’s view, Murderer is liable to deadly force. The reason why deadly force may not be used is because although the Murderer is liable, it is not all-things-considered permissible and this is because reasons only support using force that is necessary. But the question is whether interests that are not protected by rights—because those rights have been forfeited or waived—may be asserted as interests by the very agents who forfeited or waived their interests. I would think that a comprehensive view of what it means to forfeit or waive a right includes the inability to assert the interest that was protected by that right.35 My allowance of my neighbor’s walking across my grass prevents me from stopping him or complaining about the harm to my interests even if all-things-considered he ought not to walk across my grass. It is then an interesting question (and one I cannot pursue) whether third parties may intervene to prevent harm to such interests.
Because I adopt intention internalism, that is I require the defender to believe her action is necessary to defend against the harm irrespective of whether it is, I would deny that Murderer is liable to deadly force because I find it hard to believe that Victim himself believes that his action is defensive. Instead, the question for me would then be whether Murderer provoked the use of deadly force such that he forfeits his defensive rights. On my view, Murderer is wronged by Victim’s use of unnecessary force but cannot defend against it. On Frowe’s view, Murderer is not wronged by Victim’s use of unnecessary force but may nevertheless defend against it on lesser evils principles. Even if she chooses to reject a provocateur principle, Frowe’s view that Murderer is liable should require that Murderer stay his hand, even if the force is ultimately impermissible.
. . .
May Fran break Eric’s wrist? If one may act when the other person has forfeited a right and when there are reasons to impose the harm to which the person is liable, then the critical question here is whether there are reasons to impose any harm. Preventing the attack cannot serve as a reason. But Fran’s use of force is something other than futile defense. It serves, not as a result-oriented form of defense, but as an expression of her honor. She manifests her resilience and self-worth by fighting back against her aggressor. This reason, though not sufficient to support serious harm, is a reason to harm Eric. Hence, although Frowe has framed the question of one of defense and success, the value is simply the impersonal value of expressing her self-worth in the face of the attack; it is not that Fran succeeds in stopping some sort of harm to her honor.
Fran’s reasons do not stop there. Fran certainly may avail herself of deterrence reasons to stop the attack. And, perhaps she may also avail herself of desert reason. The latter poses complicated issues that I have suggested need further attention by self-defense theorists—namely, what happens when a reason is only available if one acts in light of it? Is Fran punishing Eric if she thinks she is defending herself?
Ultimately, the common linkage of forfeiture and necessary self-defense has obscured the more complicated questions that come from thinking through how forfeiture relates to reasons. The urge to justify something as “self-defense” must be resisted. Rather, the central question is whether the aggressor has forfeited a right against the harm and whether another has reason to impose harm. In Fran’s case, her reason, though not a defensive one, does justify her harming Eric. Break away.
I thank the participants at the Workshop on Helen Frowe’s Defensive Killing and Seth Lazar’s Sparing Civilians as well as the participants at the Harvard Law and Philosophy Colloquium for the probing criticisms and insightful suggestions. Frances Kamm and Alec Walen provided invaluable feedback on this manuscript.
Daniel Statman, ‘On the Success Condition for Legitimate Self-Defense,’ Ethics 118 (2009), pp. 659–686.
Helen Frowe, Defensive Killing: An Essay on War and Self-Defence (Oxford: Oxford University Press, 2014).
David Rodin, ‘Justifying Harm,’ Ethics 122 (2011), pp. 74–110, p.92; see also F.M. Kamm, ‘Self-Defense, Resistance and Suicide: The Taliban Women,’ in Helen Frowe and Gerald Lang (eds.), How We Fight: Ethics in War (Oxford: Oxford University Press, 2014), pp. 75–86.
Clint is floating on a water mattress in the sea. He can’t swim. To his horror, he realizes that the air is coming out of the mattress. The mattress will be flat within five minutes and he’ll drown. He then identifies his old rival John approaching him on a boat and pointing a gun towards him. Clint’s pistol, which he takes with him wherever he goes, is still dry. He can shoot at John and prevent him from firing but would sink into the deep water seconds afterwards. If killing John is justified, it can’t be on the basis of Clint’s right to save his life; he is doomed in any case.
I will confess that I am unmoved from my argument that Clint is defending his life. But I think this helps us locate the root of the disagreement and the underlying question. Assuming that John does shoot Clint and is then prosecuted for murder, would John, assuming he knew all the relevant facts, be entitled to the “he was about to die anyway” defense? My inclination is no, see Larry Alexander and Kimberly Kessler Ferzan, Reflections on Crime and Culpability: Problems and Puzzles (New York: Cambridge University Press 2018), ch. 2. However, there is certainly room for debate about whether it is less wrong to kill someone who is about to die. And if that victim does have less of an interest protected by a right, then we would need some other value, such as honor, to account for why Clint may kill John. However, we could also ask whether Joan, who sees what is about to happen, may shoot John. An answer in the affirmative leads to a conclusion that it is proportionate to kill someone to prevent that person from violating another’s right to life, even if the potential victim only has minutes to live. I won’t attempt to resolve this question, but I will admit that this is not an easy question to answer.
Joanna Mary Firth and Jonathan Quong, ‘Necessity, Moral Liability, and Defensive Harm,’ Law and Philosophy 31 (2012), pp. 673–701.
It is an open question in criminal law theory whether such a deduction should occur; see Douglas N. Husak, ‘Already Punished Enough?,’ Philosophical Topics 18 (1990), pp. 79–99; see also Kimberly Kessler Ferzan, ‘Desert and Defense: When Reasons Don’t Share,’ San Diego Law Review 55 (2018), pp. 265–289.
See also Statman, ‘On the Success Condition for Legitimate Self-Defense,’ pp. 659–686.
I won’t pretend that this argument is not a tough row to hoe. But it doesn’t strike me as wildly implausible.
Kimberly Kessler Ferzan, ‘Provocateurs,’ Criminal Law and Philosophy 7 (2013), pp. 597–622.
Alternatively, we might think that at the very least, Fran is excused in violating the social contract because it would be too hard a choice to ask her to decline to punish during the course of the crime. As Frowe noted in conversation, an excuse account would yield that punitive reasons do not justify harming Eric, and it is an account of justification that Frowe is seeking. Still, such an account would yield that Fran does not wrong Eric, and thus, Eric does not have the right to counter-defense, which, I take it, is the most significant worry about finding Fran’s action unjustifiable.
The same desert reason would be available to third parties, though in most instances they will have stronger rule of law reasons to defer to the state (for instance, more likely to make mistakes or punish disproportionately).
Citing Statman, ‘On the Success Condition for Legitimate Self-Defense,’ p. 669.
Barbara Herman, ‘Murder and Mayhem,’ in The Practice of Moral Judgment (Cambridge, Mass.: Harvard University Press, 1993), p. 129.
As noted by Frowe, it seems likely that Statman’s intuitions were tainted by the multiple aggressor cases. It seems plain that one may kill one potential rapist even if another person will rape one. But Statman saw these cases as futile defense cases and thus reached the conclusion that one may kill to protect one’s honor.
Accord Kimberly Kessler Ferzan, ‘Forfeiture and Self-Defense,’ in Christian Coons and Michael Weber (eds.), The Ethics of Self-Defense (Oxford: Oxford University Press 2016), pp. 233–253.
Frances Kamm argues that “mere resistance” is permissible in response to unjust attacks, even when the aggressor is not culpable. Kamm, ‘Self-Defense, Resistance and Suicide: The Taliban Women,’ n. 4 (deluded child with gun is liable to defensive action because attack is unjust and individuals may engage in “mere resistance” against unjust acts). Kamm takes there to be value in responding to wrongdoing. Still, where the aggressor is not culpably manifesting disrespect, it is harder to get a handle on why nonculpable aggressors (such as a child who believes a gun is a toy) may be harmed just for “standing up to unjust acts,” in instances where the harm serves neither defensive nor punishment goals. Because responding to Kamm’s view, which Frowe does not discuss, would take us too far afield, I will focus only on the view of honor that Frowe appears to be endorsing.
Larry Alexander and Kimberly Kessler Ferzan, Crime and Culpability: A Theory of Criminal Law (Cambridge: Cambridge University Press, 2009), pp. 23–68.
Although I cannot do justice to the alternative conception by Yitzhak Benjabi, which Frowe does not address, he, too, notes this problem and in response, offers an account of honor defense that requires a primary harm. Yitzhak Benbaji, ‘Culpable Bystanders, Innocent Threats and the Ethics of Self-Defense,’ Canadian Journal of Philosophy 35 (2005), pp. 585–622.
John Gardner and Stephen Shute, ‘The Wrongness of Rape,’ in Jeremy Horder, (ed.), Oxford Essays in Jurisprudence, Fourth Series (Oxford: Oxford University Press, 2000), pp. 193–217.
See Victor Tadros, ‘The Distinctiveness of Domestic Abuse: A Freedom Based Account,’ Louisiana Law Review 65 (2005), pp. 989–1014.
See Benbaji, ‘Culpable Bystanders, Innocent Threats and the Ethics of Self-Defense.’
For the claim that this is an impersonal value, see Douglas Husak, ‘The Vindication of Good over Evil: “Futile” Self-Defense,’ San Diego Law Review 55 (2018), pp. 291–313. This also appears to be Kamm’s view. Kamm, ‘Self-Defense, Resistance and Suicide: The Taliban Women.’
Larry Alexander, ‘A Unified Excuse of Preemptive Self-Protection,’ Notre Dame Law Review 74 (1999), pp. 1475–1505.
See Seth Lazar, ‘Necessity in Self-Defense and War,’ Philosophy & Public Affairs 40 (2012), pp. 3–44.
Quong has argued that to use someone’s space is to use him as a means. Jonathan Quong, ‘Killing in Self-Defense,’ Ethics 119 (2009), pp. 507–537. I criticize this position in Kimberly Kessler Ferzan, ‘Self-Defense, Permissions, and the Means Principle: A Reply to Quong,’ Ohio Journal of Criminal Law 8 (2011), pp. 503–513.
I highly recommend that you think of the minstrels in Monty Python’s The Holy Grail singing “Sir Robin ran away, away…”.
Cf. Heidi M. Hurd, ‘Stand Your Ground,’ in Christian Coons and Michael Weber, (eds.), The Ethics of Self-Defense (Oxford: Oxford University Press, 2016) (arguing that one need never retreat).
I thank Gideon Rosen for helpful discussion.
I thank Victor Tadros for suggesting that this problem has not been solved by Frowe.
Cf. Christopher Heath Wellman, ‘The Rights Forfeiture Theory of Punishment,’ Ethics 122 (2012), pp. 371–393; Alexander and Ferzan, Reflections on Crime and Culpability, ch. 10.
One final complication is that many self-defense theorists (myself included) believe that actors are only liable to those who act defensively, intending or knowing they are so doing. But then the requirements for liability seem to hold that the actor is only liable to defensive force, not force that is justified by other reasons. For a fuller explanation, see Kimberly Kessler Ferzan, ‘Defensive Force without Defensive Reason,’ (manuscript on file with author).
Compare Victor Tadros, ‘Duty and Liability,’ Utilitas 24 (2012), pp. 259–277 (defining liability broadly to include duties that are not grounded in moral responsibility) with Jeff McMahan, ‘Individual Liability in War: A Response to Fabre, Leveringhaus and Tadros,’ Utilitas 24 (2012), pp. 278–299 (arguing that liability should be limited to forfeiture so as not to conflate different moral notions). See also Jeff McMahan, ‘The Limits of Self-Defense,’ in Christian Coons and Michael Weber, (eds.), The Ethics of Self-Defense (Oxford: Oxford University Press, 2016) (arguing liability is instrumental).
I thank Adil Haque for a general discussion of this question.
Hence, the idea that consent is in some sense the waiver of one’s right of complaint.