At an informal philosophy workshop on self-defense I attended, the participants noted that their theorizing is relevant to everything from war to torts to preventive detention, but, they reflected with surprise, their work is less important to the criminal law of self-defense. The reason for this is somewhat simple—because the law adopts bright line rules and relies on the defender’s reasonable beliefs, many of the nuances articulated by philosophers are lost.
Adam Hosein’s book chapter is likewise not primarily a contribution to criminal law’s conception of self-defense, but it is a contribution to criminal law’s understanding of necessity. In the guise of questions about the applicability of self-defense to just war theory, Hosein’s piece ultimately has bearing on the criminal law puzzle of lesser versus least evil.
You may have never thought about this puzzle, but it is certainly there. Should the law require that a defendant commit the least evil alternative, or is simply a lesser evil sufficient? On the one hand, if you can do more good than harm, then it seems irrelevant that you could have done less harm than you did—you still did the “right” thing after all. On the other hand, there seems to be something amiss in thinking that one has a free pass to do more harm when a lesser alternative is available.
Examples of this begin with the mundane. Your friend is sick and you decide to drive him to the hospital at breakneck speed. Given how sick he is, you are justified in imposing that risk. However, you can also call 911, which will decrease the risk to pedestrians. If you opt to drive, are you reckless for taking an unjustifiable risk? Examples also range to imaginary trolley problems. Assume that you can turn the trolley away from the five to either a track with one person, whom you don’t know, or a track with two people, both of whom you despise. If you are going to save five and will only save the five if you can turn the trolley to the two, are you justified? Killing the two is the lesser evil, but it is not the least evil.
Hosein’s paper intersects the debate because it asks this question—should the victims of lesser evils justification be entitled to fight back against you, the trolley turner? And are they particularly justified in doing so when you, the trolley turner, could have internalized the risk rather than imposing it on others? He begins in the context of war where a tactical bomber will kill civilians while achieving a justified good consequence. May the civilians fire at the bomber? Intuitions go in both directions. Some might think that of course the civilians need not sit there and allow their destruction. On the other hand, how is it that one is entitled to thwart a justified action?
Hosein’s philosophical target is Jeff McMahan’s claim that because the bomber is justified, the bomber has not forfeited rights. In self-defense theory parlance, the bomber is not “liable” to defensive force. Thus, Hosein is interrogating the claim that “justification defeats liability.” Hosein maintains that it does not.
In a series of sophisticated moves I won’t reiterate here, Hosein argues for two principles. The first is “the principle of just beneficence.” (P. 94). The idea is that if one is going to intervene and distribute a harm, one must do so in the way that “best conforms to the requirements of justice.” (P. 95) And, importantly for Hosein is the underlying premise that “people should bear the costs of their own beneficence rather than displacing these costs on others.” (P. 95).
His second argument is that the civilians may defend against the bomber because the bomber is liable. Specifically, “people become liable to harm when they are going to either violate or infringe a right.” (90). Importantly, Hosein is not arguing that the civilians may prevent the bomber from bombing. The reason is that so doing would interfere with the justified action. But that bar from action has nothing to do with the bomber’s immunity from harm. To the extent that the civilians are able to prevent harm to themselves by shifting the harm to the bomber, without thwarting the bomber’s mission, then Hosein says this is permissible. (Imagine the civilians could use a shield that would deflect the debris from the bomb so that it causes the plane to crash after the bomb has dropped). Hence, any concern we have that the civilians not harm the bomber is not a function of the bomber’s rights but solely a function of protecting the achievement of the good end.
Some of you may ask why I see Hosein as contributing to the lesser versus least evil debate. So ask this question now: May the two people on the one side-track of the trolley shoot you, the trolley turner, so that your body lands on the levers and turns the trolley toward the one? Hosein’s answer is clearly yes. After all, under “the principle of just beneficence,” you ought to distribute the harm justly, and arguably, here the most just distribution would be the least evil. And, because you are infringing the rights of the two, they may defend themselves. Notably, it does seem that you, the trolley turner, are somehow liable to the harm; after all, it seems that your body can be used as a means to accomplish the least evil.
Ultimately, I find myself unsure that Hosein’s principles best account for our intuitions. I am sure he is quite right to parse the inability of a victim to prevent the lesser evil from the potential immunity from harm held by the aggressor/trolley turner. However, at this point, I wonder whether he has shown us something deeper about the nature of liability in self-defense or whether he has shown us something deeper about the nature of justifications. That is, my suspicion is that perhaps the action is, in some sense, not justified after all. This would preserve “justification defeats liability,” but cause us to revisit how we conceptualize whether a lesser evil may be permissible to cause when a least evil is achievable.