128	T HE CULPA BLE CHOICE

Tipper’s culpability will be increased if she then refuses to endanger culpable Dina and thereby leaves the innocent schoolchildren at risk. Put differently, Tipper’s initial act of provoking Dina, if culpable, created either an unjustifiable risk to culpable Dina or an unjustifiable risk to innocent schoolchildren, depending upon whether Tipper now acts to stop Dina. (If she does not, then she converts the alternative risks into a single – and more culpable – risk to the schoolchildren.)

Moreover, if Tipper is culpable for endangering Dina, then even if a nonculpable Tipper could respond disproportionately to Dina, culpable Tipper might be required to use the least force necessary to stop Dina. For even if nonculpable Tipper could choose shooting Dina over the equally effective but more burdensome (to Tipper) means of phoning the school or the police, culpable Tipper may have to sacrifice her interests and undertake the more burdensome but less dangerous (to Dina) means of stopping Dina so long as those means are, Tipper believes, as effective as the more dangerous ones (to Dina). So even if Dina, as a CA, may be stopped with disproportionate force – because innocent people acting to prevent risk impositions need not sacrifice any interests to avoid imposing greater risks on CAs – defenders who are CAs may have to impose the least risk necessary, up to risks that are proportionate to that threatened, even at great sacrifice.

7. The Range of Culpable Actors

We have been discussing how a CA’s act of culpable aggression may render him liable to others’ use of defensive force. But culpability potentially enters the justification calculus in forms in addition to that of the culpable aggressor. The person on whom the actor is now imposing a risk may have committed a past culpable act for which he has not been punished. He may have culpably imposed a risk on the actor or on others.

Culpable aggressors (CAs) can be distinguished from what we shall call culpable persons (CPs). With respect to CPs – who include CAs but also those who are not CAs – there are two principal issues: First, may CPs have their interests discounted in the consequentialist calculus that determines whether the actor’s risk imposition is justifiable or is culpable? Does the fact that those at risk are CPs mean that the actor, holding his reasons for acting constant, may impose a greater risk

DEFEAT ER S OF CULPA BILI T Y

129

of harm than he otherwise may? And does it mean that, holding the degree of risk constant, the actor may act for less weighty reasons than he otherwise may?

Suppose, for example, that the interests of CPs may be discounted in the consequentialist calculus that determines the justifiability of risk impositions. And suppose that in Trolley, instead of five workers trapped on the main track, there is only one worker; but as before, there is one worker trapped on the siding. Leaving aside other factors that might be relevant to a justifiable risk imposition – the relative ages of the trapped workers, consent, the relative likelihood of escape, and so on – switching the trolley would not be choosing the lesser evil. Suppose, however, that the trapped worker on the siding is a CP. For example, suppose his recklessness is what caused the trolley to go out of control. Would it now be justifiable to impose the risk on him rather than allow the risk to the worker on the main track to persist? Similarly, would it be unjustifiable to switch the trolley in the original Trolley scenario if the five trapped workers were CPs and the one trapped worker a saint? (Suppose the five workers knew they were not suppose to work on the main track because of the danger of a runaway trolley but did so anyway, thereby knowingly risking a forced choice between their lives and that of the one worker on the siding. Or suppose the five workers were on work furlough from the penitentiary, where they were serving life terms for a series of brutal murders.) Or, where a bystander is innocently preventing one who is being fired at by an attacker from having a clear shot at the attacker, may the defender shoot the bystander if the bystander is a CP?52

52See McMahan, supra note 40, at 762–763. Suppose, for example, that two attackers, A and B, culpably shoot at V, intending V’s death. A’s gun is now empty, and he finds himself stuck in V’s window. B is still firing at V but is shielded from V’s return fire by A. Because A is a CP, may V deliberately kill him in order to defend himself from B? See also Jeff McMahan, “The Basis of Moral Liability to Defensive Killing,” 15 Phil. Iss. 386, 392–393 (2005) (making the case that CAs who are no longer CAs but are now CPs may be killed in defense against other CAs).

Or suppose A has swallowed V’s pacemaker, and V will die if A is not killed and cut open. Or suppose terrorist T has swallowed the map with the location of the “ticking bomb” that T’s confederates planted. T does not know its location without consulting the map, and thousands will die unless T is killed and cut open. May A and T be defensively killed because they are CPs even if not at present CAs? For affirmative answers, see Uwe Steinhoff, “Torture – The Case for Dirty Harry and against Alan Dershowitz,” 23 J. Applied Phil. 337, 341 (2006); Phillip Montague, “The Morality of Self-Defense: A Reply to Wasserman,” 18 Phil. & Pub. Aff. 81 (1989).

130	T HE CULPA BLE CHOICE

Second, may CPs be “used” in ways that would otherwise violate the deontological constraint against using persons’ bodies, labor, and talent as means to what are otherwise on-balance justified consequences?53 Suppose, for example, the patient in Surgeon whose organs are harvested to save five lives is an unpunished ax-murderer. Does that change the verdict on the justifiability of Surgeon’s act?54

Perhaps the permissibility of appropriating a CP may turn on whether the CP created the very risk that led to the lesser-evils predicament. In Surgeon, would it be justifiable to harvest the one patient’s organs – to use his body as a means of saving others – if the one patient culpably caused the illnesses of the five who now require his organs to survive? Or suppose Fat Man, standing on the bridge over the trolley tracks, who can be pushed onto the tracks to save the five trapped workers, is the one who culpably started the trolley on its deadly course.

It might seem that any discounting of the CP’s interests in the consequentialist calculus must be consistent with the deontological constraint against punishing more than one retributively deserves. That might not be true, however, where imposing a risk on the CP is meant to prevent harm from a risk that the CP has himself unleashed but which has not yet culminated in harm. Intuitions can go either way in such a case. On the one hand, the predicament is the CP’s fault, so that he might be viewed as having forfeited any right not to be “used” to prevent the harm. On the other hand, the CP has already acted, and, although he deserves retributive harm, his retributive desert may be far less than the harm to him necessary to prevent the harm he has risked to others.

53Jeff McMahan appears to be sympathetic to the position that CPs may be targeted for defensive purposes or even be “used” for others’ benefit. See Jeff McMahan, “The Ethics of Killing in War,” 114 Ethics 693, 721–722 (2004); McMahan, supra note 52, at 392–393. See also Richard J. Arneson, “Just Warfare Theory and Noncombatant Immunity,” 39 Cornell Int’l L.J. 663 (2006) (deeming CPs to be legitimate targets even if they are not currently aggressing or otherwise contributing to a threat). But in earlier works he definitely rejected that position. See, e.g., Jeff McMahan, “Self-Defense and the Problem of the Innocent Attacker,” 104 Ethics 252, 260 (1994). For another denial that CPs may be “used,” see Yitzhak Benbaji, “Culpable Bystanders, Innocent Threats and the Ethics of Self-Defense,” 35 Canad. J. Phil. 585, 600–611 (2005). F. M. Kamm, on the other hand, explicitly endorses “using” CPs. See Kamm, “Failures of Just War Theory: Terror, Harm, and Justice,” supra note 25, at 656–659.

54See F. M. Kamm, “Terror and Collateral Damage,” 9 J. Ethics 381, 392 (2005).

DEFEAT ER S OF CULPA BILI T Y

131

If CPs’ interests may be discounted in the consequentialist balance that determines whether imposing risks on them is justifiable, or if CPs may be appropriated despite deontological constraints that protect the interests of non-CPs, we then must confront the epistemic question that arose in our discussion of CAs: How likely must the defender believe that the CP is a CP to warrant the defender’s discounting the CP’s interests? Should the defender discount the CP discount by the likelihood that the apparent CP is not a CP? Or is there a threshold likelihood, beyond which the apparent CP may be treated as if he were a CP, and short of which he must be treated as if he were not one?

Beyond CPs and its subclass CAs, there is another interesting category that we shall call anticipated culpable aggressors (ACAs). What are ACAs? Consider the following scenario of defensive action. Al has been sleeping with his colleague Sam’s wife. In our first version of the scenario, in the hall outside Sam’s office, Sam tells Dana – our third-party actor – that he has found out about Al and intends to kill him as soon as he gets his gun, which is in his office. Sam’s office has a back door that opens into another hallway directly across from Al’s office. Al, who is in his office, has broken his leg and is unable to move quickly. Dana, who carries a gun, believes that unless she shoots Sam as he is entering his office, he will go out the other door and immediately kill Al. So Dana shoots Sam as he is entering his office. In this first version, Sam is a CA.

In the second version, Dana knows from a conversation with Al that Sam’s wife has left Sam a message on his office voicemail confessing the affair with Al. Sam this time tells Dana, “My wife has been having an affair with someone, and whoever he is, I intend to kill him. Right now I’m going into my office to play my voicemail.” Again, Dana knows Sam keeps a gun in his office, and she believes that once Sam plays his voicemail, he will immediately get his gun, leave his office by the back door, and kill Al. So she shoots Sam as he is entering his office.

Is Sam a CA in this version? Well, he intends to kill someone – or so he says. On the other hand, Sam does not yet know at the moment Dana acts who his victim will be. Should that matter, if, as we have assumed, in the first version, Dana is justified in using force against Sam to protect Al?

Now for the third version. In this version, Sam is unaware of his wife’s affair, much less that it is with Al. Sam cheerfully informs Dana

132	T HE CULPA BLE CHOICE

that he is going into his office to play his voicemail. Dana knows what’s on the voicemail, knows that Sam keeps a gun, and knows that Sam is a murderously jealous individual. (He has told Dana many times that if his wife cheated on him, he would kill whoever was involved.) Dana estimates the likelihood that if she fails to stop Sam now, he will kill Al, as exactly the same as it was in the first two scenarios. So she shoots Sam.

Is Sam a CA in this scenario? In the first two scenarios, Sam realized that he was creating a risk that others – Dana – would fear that Sam would attempt to kill someone. And Sam created this risk for a reason – his intention to kill his wife’s lover – that presumably did not justify the risk. So in the first two scenarios, Sam is arguably a CA. Remember that a CA has not yet imposed a risk of harm on his intended victim(s). He has, however, imposed a risk that others will fear a future attack by him, and he has imposed that risk for an insufficient reason. That is why the CA is culpable.

In our third version of the Sam, Al, and Dana scenario, however, Sam may not have adverted to that risk. Or, if one wishes to argue that his past statements to Dana about his murderous jealousy were themselves culpable risk impositions with respect to fear of an attack, assume Dana infers Sam’s murderous jealousy, not from any statement by Sam or any other act of his that he would realize would express that trait, but solely from involuntary behavior by him. In such a case, we could not attribute any culpability to Sam with respect to any act committed before the time Dana shoots him. We can, however, as Dana does, predict a future culpable act by Sam. Sam is not a CA but is only an ACA.55

If CAs are special cases in terms of the consequentialist balance that determines when risk impositions are justified, are ACAs similarly situated? Many sex offenders, for example, are predicted to offend again and thus, with respect to preempting their future sex offenses, are

55Or consider a case where a dictator has ordered the firing of a nuclear missile at another country. A soldier in the dictator’s army is approaching the hardened missile silo to begin his shift. He currently has no intention to fire the missile; but he is disposed to follow orders, and the order to fire awaits him once inside the hardened silo. Special forces of the targeted country lie in wait outside the silo, having been sent there after the dictator’s intention to attack was discovered by spies. Their only way to avert the attack – if we assume the soldier will form the intent to fire the missile once he reads the order inside the silo – is to kill the soldier now, before he enters the silo, but also before he has formed the lethal intent. If we assume the soldier would be a CA once he forms the intent to fire, he is now only an ACA.