McMahan+-+SD - Philosophical Issues 15 Normativity 2005 THE...

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THE BASIS OF MORAL LIABILITY TO DEFENSIVE KILLING Jeff McMahan Rutgers University There may be circumstances in which it is morally justifiable intentionally to kill a person who is morally innocent, threatens no one, rationally wishes not to die, and does not consent to be killed. Although the killing would wrong the victim, it might be justified by the necessity of averting some disaster that would otherwise occur. In other instances of permissible killing, however, the justification appeals to more than consequences. It may appeal to the claim that the person to be killed has acted in such a way that to kill him would neither wrong him nor violate his rights, even if he has not consented to be killed or to be subjected to the risk of being killed. In these cases, I will say that the person is liable to be killed. Although I borrow the notion of liability from legal theory, and although much of what I say will be informed by the literature on liability in both tort law and criminal law, my concern in this article is with moral rather than legal liability. Liability is different from desert. The claim that someone deserves to be killed implies that there is a reason to kill her even if it is possible for no one to be killed; but the claim that someone is liable to be killed has no such implication. Liability is the broader notion: desert implies liability but liability does not imply desert. Thus, if a person deserves to be killed, it follows that he is liable to be killed, but he can be liable to be killed without deserving to be killed. My focus will be on forms of liability that do not involve desert; I will not consider punitive or retributive killing. My focus will instead be primarily on liability to defensive killing, though I will also consider whether there can be liability to killing that preserves life but is not strictly defensive because the person to be killed is not the cause of the threat to be averted. Liability, of course, also extends to forms of harmful treatment other than killing, but for simplicity of exposition I will focus on moral liability to be killed. Much of what I will say, however, can be generalized to other forms of harming. Philosophical Issues, 15, Normativity, 2005
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The question I will address is: ‘‘What is the basis of liability to killing?’’ Or, more precisely: ‘‘What must a person who does not deserve to die have done to make it the case that he would not be wronged by being killed?’’ I will examine two widely held accounts of the basis of liability to defensive killing before sketching the outlines of what I think is the most promising account. The Rights-Based Account The Rights-Based Account holds that what makes a person liable to defensive killing is that he will otherwise violate a right that is sufficiently stringent for killing to be a proportionate means of prevention. 1
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McMahan+-+SD - Philosophical Issues 15 Normativity 2005 THE...

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