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constraint to this extent: if the alternative and more proportional defensive measure does not entail any increased risk of irreparable (and perhaps severe) harm, then V or TP must choose that measure rather than the more severe one. On the other hand, if the less severe measure entails an increased risk of irreparable (and perhaps severe) harm, then the more severe measure may be chosen. An increased risk of such harm is in principle no different from the risk imposed by Deborah, the involuntary Russian roulette player, a risk against which V and TP may surely defend with lethal force.

4. The Risk That a Possible Culpable Aggressor Is Not One

We have been discussing CAs as if Tipper can know with certainty that Dina is one. But because our ultimate concern is Tipper’s culpability, if any, for imposing various risks on Dina, it is crucial to keep in mind that defenders like Tipper can never know for certain that someone who appears to be a CA is a CA. Dina may have something innocent that only appears to be dynamite. Or Dina may have been informed that a dynamite blast was needed immediately to avert some dire consequence. Or Dina might be sufficiently mentally ill to be nonculpable. (If, on the other hand, Dina is playing a practical joke with fake dynamite, she may be a CA for creating apprehension, if we assume her desire to play a practical joke does not justify the apprehension she expects to cause.)

If one takes the position that defensive risk impositions on CAs are justifiable – as opposed to excused – even if the same risk impositions on the nonculpable would not be, then that must be because the CAs are CAs. But any person on whom a risk is imposed defensively might or might not be a CA.

Notice that so long as Tipper believes that Dina is or is not a CA, then whether she is right or wrong, it is easy to assess her culpability. If Tipper correctly assesses Dina to be a CA, then she is not culpable for using defensive force. And if Tipper incorrectly assesses Dina to be a CA, then, although she is not justified, she is still not culpable for using defensive force – with the consequence that Dina or a third-party defender of Dina, if aware of Tipper’s false belief that Dina is a CA, may not treat Tipper as a CA but must treat her as a nonculpable risk imposer (on Dina). (And if Tipper does not believe Dina to be a CA, then Tipper

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may be objectively justified but culpable or objectively unjustified and culpable, but culpable either way.)

The problem arises when Tipper’s evaluation is not one of flat-out belief but, as it should be, one of probability. For example, imagine that Dina is always an evil malefactor, but Dina’s twin Donna is unfortunately quite mentally ill. Tipper again sees Dina – or Donna – about to use the dynamite, but Tipper, who knows both Dina and Donna, cannot ascertain whether the actor is Dina or Donna.

Consider the implications if the person whom Tipper sees is Donna. Because killing Donna is a lesser evil than allowing the schoolchildren to die, it would be permissible for Tipper to kill Donna in order to defend the children. (And if, in light of our earlier discussion of lesser versus least evils, Tipper is not required to select the least evil, then she may permissibly kill Donna rather than use lesser force.)

However, what if Dina/Donna threatens only one person? Here, Tipper may not intervene if it is Donna because the balance of evils is not positive. On the other hand, if it is Dina, then Tipper may intervene, and in fact, we want her to do so.

If the culpability of the target of a risk imposition makes a difference to the justifiability of that risk imposition, then how confident must the risk imposer be that the target is relevantly culpable? One position would be bivalent – once a threshold level of probability is reached, Tipper may treat Dina/Donna as a CA. But then we have to determine where to set the threshold. One possible position to take is that the risk imposer – Tipper – must be as certain that the target – Dina – is culpable as a jury should be to impose punishment on the basis of Dina’s culpability. If a jury would have to believe in Dina’s culpability beyond a reasonable doubt, then so must Tipper.

Another possible position is that Tipper’s degree of confidence that Dina is culpable just discounts the effect of Dina’s culpability in the consequentialist calculus that determines the justifiability of Tipper’s act. If the balance of consequences, discounted by their probabilities, justifies Tipper’s act if Dina is a CA – because the consequences of the risk imposition on Dina are discounted by her culpability – then the question for Tipper is whether the balance still tips in favor of imposing the risk if Tipper believes there is, say, a 60 percent probability of Dina’s being a CA (or a 30 percent probability, and so on).

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Of course, if we drop the proportionality constraint on imposing risks on CAs, the effect of that is to treat Dina’s being a CA as a total elimination of her side of the consequentialist balance. Essentially, her being a CA would produce a 100 percent discount of the bad consequences of Tipper’s defensive action. But what if Tipper is not 100 percent certain that Dina is a CA? Do the bad consequences for Dina now count, albeit at less than face value? Is it possible that if Tipper is only, say, 95 percent sure that Deborah, with her thousand-chambered gun, is a CA, that even a 95 percent discount of the serious risks Tipper is defensively imposing on Deborah will still result in those risks outweighing the risks Deborah (if she is a CA) is about to impose on Vance?

On the other hand, we can start from the default position that Tipper should assume that she sees Donna, not Dina.50 Then, in these cases, Tipper should treat the problem as one of lesser-evils balancing, similar to when it is clear that the actor is an innocent aggressor. However, because Tipper believes that Donna might be Dina – say, she believes it to be equally likely that it is one or the other – she may discount Dina/ Donna’s relative weight in the consequentialist balance commensurate with the probability that Tipper assigns to the likelihood that Dina/ Donna is culpable. That is, if Tipper sees Dina/Donna attacking one person, Tipper may intervene because she should treat Dina/Donna as counting for .5 of a person, and thus the consequentialist balance comes out in favor of the victim, not Dina/Donna.

Interestingly, this problem draws a sharp distinction between selfdefense and defense of others. From the potential victim’s perspective, it may not matter whether the attacker is a CA or an innocent aggressor, because either way she will not be culpable if she is personally justified (excused) in acting to defend herself. That is, even if the victim believes there is some chance that she is attacking an innocent person, she will still be excused whenever a person of reasonable firmness would defend herself thusly rather than use lesser force or retreat. On the other hand, Tipper, because as a nonthreatened third party she has

50Cf. Jeff McMahan, The Ethics of Killing in War: The Oxford Uehiro Lectures (forthcoming) (arguing that most unjust combatants can be supposed to be innocent [excused] actors, and that the rules as to when a just combatant may kill an unjust combatant should assume as much).

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no personal justification or excuse, needs a rule that tells her how to act under conditions of uncertainty. This is because even after she assesses the probabilities (no matter how complex they are), the law still must make a determination as to what level of confidence Tipper must have to intervene. We do not believe there is any easy answer to this question.

5. Culpable Aggressors versus Culpable Aggressors

Consider another complication. Suppose Tipper confronts a situation in which Deborah appears to be playing involuntary Russian roulette on Vance and is thus (apparently) a CA. But suppose that Vance also appears to Tipper to be playing involuntary Russian roulette on Deborah. As Tipper perceives matters, both Deborah and Vance are CAs. May Tipper intervene and defensively impose a risk on one of the two, and if so, on whom? Is the situation analogous to Trolley with one worker on each track? Suppose Deborah’s gun has more chambers than Vance’s or vice versa? Suppose Deborah appears less likely than Vance to go through with the game and pull the trigger (or vice versa)?

There are two options here. One is to say that both actors are acting wrongly; and because protecting one would be aiding the other, Tipper should not intervene at all because she may not aid unjustified conduct. The other approach is to say that this conflict has created a lesser-evils choice. The question would then be how to determine who should live and who should die.

6. The Provoked Culpable Aggressor

Suppose that Tipper, wanting to eliminate the menace of Dina, tells Dina that setting off dynamite near a school would be especially thrilling and dares Dina to do it. Tipper plans to wait until Dina is about to light the fuse, at which point Tipper plans to shoot Dina. If Tipper may otherwise shoot Dina in such a circumstance, may she do so if she has instigated Dina’s culpable aggression in this way? (Readers will, of course, be reminded of Charles Bronson’s provocative vigilante walks through Central Park in Death Wish.) Dina is no less a CA for having been egged on by Tipper. And Tipper’s motive is a public-spirited one. (She may believe that Dina will commit many more such dangerous

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culpable acts if not caught in the act.) So how should we regard Tipper’s risk imposition on Dina?51

One thing seems clear. Once Dina decides to set off the dynamite and thereby becomes a CA, Tipper is not culpable for then imposing a defensive risk on Dina. If Tipper does not do so, Dina, a CA, will impose a risk on the children. So Tipper is justified in defensively imposing a risk on Dina despite being implicated in Dina’s plan.

If Tipper is culpable, it is for egging Dina on, not for acting defensively once Dina acts to set of f the dynamite. No one whose act is otherwise justifiable should lose her justification merely by virtue of having culpably created the circumstances that give rise to the justification. The question is whether Tipper should be deemed culpable for acting in a way that would provoke or entice Dina to become a CA and expose herself to Tipper’s defensive risk imposition. Tipper did, by so acting, increase that risk to Dina. On the other hand, Tipper’s reasons were laudable. And presumably Dina is always free to reject temptations to act culpably.

If Tipper is culpable for egging on or provoking Dina into becoming a CA, her culpability will mandate that she act to prevent Dina from setting off the blast. Normally, Tipper will be permitted but not required to impose a defensive risk on Dina. But if Tipper is culpable for provoking Dina and thereby endangering her (from defensive risk impositions),

51Ironically, as Leo Katz has pointed out to one of us in private correspondence, one is not required to turn over one’s wallet to a mugger who demands “your money or your life,” even if one expects a deadly attack to follow and intends to respond with lethal force. In other words, one may assume the mugger will act rightfully and not launch the threatened attack. That permissible assumption then entitles one to use deadly force, ultimately in defense of one’s wallet. If one generalizes this permission to stand one’s ground (keep one’s wallet), the retreat requirement dissolves. See e-mail from Leo Katz, Frank Carano Professor of Law, University of Pennsylvania Law School, to Larry Alexander, Warren Distinguished Professor of Law, University of San Diego School of Law (January 3, 1999) (on fi le with author).

If Tipper may egg Dina on and then impose a risk on her once Dina becomes a CA, may Tipper provoke Dina through some culpable act – say, by punching her – if Tipper does so in order, say, to kill Dina in response to an anticipated culpable retaliatory response by her? If Charles Bronson justifiably provoked his assailants by walking through Central Park, would his deadly response have been nonculpable had he provoked them to a culpable, murderous response through some minor but culpable act, say, by grabbing their property or slapping them? Or would his culpability be limited to the minor level of the provoking act?