Citizen Killings: Liberalism, State Policy and Moral Risk 9781472575432, 9781472575425, 9781474280518, 9781472575449

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Citizen Killings

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ALSO AVAILABLE FROM BLOOMSBURY

Just Warriors, Inc., Deane-Peter Baker The Ethics of Nonviolence, Robert L. Holmes Violence, Pamela Stewart and Andrew Strathern FORTHCOMING FROM BLOOMSBURY Pacifism, Robert L. Holmes

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Citizen Killings Liberalism, State Policy and Moral Risk Deane-Peter Baker

Bloomsbury Academic An imprint of Bloomsbury Publishing Plc LON DON • OX F O R D • N E W YO R K • N E W D E L H I • SY DN EY

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www.bloomsbury.com BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2016 © Deane-Peter Baker, 2016 Deane-Peter Baker has asserted his right under the Copyright, Designs and Patents Act, 1988, to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. No responsibility for loss caused to any individual or organization acting on or refraining from action as a result of the material in this publication can be accepted by Bloomsbury or the author. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN : HB : PB : ePDF : ePub:

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This one’s for you, Dad

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CONTENTS

Acknowledgments ix

Introduction: Two fundamentals and the nature of risk 1 1 Self-defense and gun bans

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2 Contracted combatants and foreign fighters

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3 Assisted suicide, euthanasia and brain death

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4 Abortion and infanticide

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5 Citizen killings, civil disobedience and armed rebellion 83 6 Citizen killings and humanitarian intervention Concluding thoughts

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Appendix: What about killing animals?

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Notes 131 Index 151

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ACKNOWLEDGMENTS

Though I take full responsibility for the final content, this book has benefited along the way from the helpful comments of a number of people. In particular, my colleagues in the International Ethics Research Group at UNSW Canberra—Peter Balint, Tony Burke, Ned Dobos, Toni Erskine and Stephen Coleman—helped considerably. For all its shortcomings, this book would have been a lot worse without their help. My Head of School, David Lovell, made allowances in my workload to enable me to complete this manuscript, for which I am most grateful. Some of the material in this book has appeared in print elsewhere, and I am grateful to the publishers concerned for permission to reprint and to the anonymous referees and editors who helped me to improve the earlier versions of the arguments in that material. Chapter 1 was first published as “Gun Bans, Risk and Self-Defense,” International Journal of Applied Philosophy (2014), 28(2), 235–249. Chapter  2 is an expanded and adapted version of “Is it Ethical for States to Prevent their Citizens from Working as TCN Military and Security Contractors?” in The Routledge Research Companion to Outsourcing Foreign Policy, eds. Joakim Berndtsson and Christopher Kinsey (Farnham: Ashgate, 2016). Chapter  4 is an expanded version of “Abortion and Civil Disobedience,” American Catholic Philosophical Quarterly (2015), 89(1), 139–151.

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Introduction Two fundamentals and the nature of risk

The 2014 movie of the novel The Giver by Lois Lowry depicts a seemingly utopian world of order, safety, respect and equality. This is made possible by chemical suppression of emotions and by the community’s lack of memory of the past, which suppresses notions of difference. Memory is not lost entirely, however, as the community has one individual, the Receiver of Memory, who retains the memories of the past and whose role is to advise the ruling council of Elders. Death is not present in the community because the elderly, as well as babies who show signs of physical weakness, are “released to Elsewhere.” “Elsewhere” is understood in the community to be the otherwise unknown land which lies beyond the cliffs that mark the physical boundaries within which the community lives. The movie centers on Jonas, an 18-year-old who has been chosen to be the next Receiver of Memory. Predictably, Jonas discovers that all is not as it seems in the community. Among his discoveries is the fact that those who are “released to Elsewhere” are in fact euthanized. Much of the plot revolves around Jonas’s desperate attempt to save a baby (Gabe), with whom he has formed a bond, from being “released to Elsewhere.” The Giver is not a great movie, but it provides a reminder—if we needed one—of the unfortunate truth that death is an unavoidable reality and the question of state-sanctioned killing is ethically 1

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troublesome. Much work has been done on addressing the ethics of killings carried out by state employees working in their capacity as state agents, whether they be military, police or even executioners. To date, however, insufficient attention has been given to developing a comprehensive account of the ethics of state-sanctioned (that is, legally permitted) killings carried out by citizens who are not agents of the state—which I will here call “citizen killings.”1 This will be a surprising statement to many readers, given the thousands upon thousands of gallons of ink that have been spilled in addressing topics such as abortion and euthanasia. What has largely been overlooked, however (even where these topics have explicitly been discussed as issues of public policy), is that there are certain constraints on public policy which exist because public policy is the domain of states. Put another way, as understood by liberal political theory in general, states are entities which are limited in their courses of action by key principles that underpin their legitimacy. This book outlines an approach to public policy decision-making on citizen killings which is consistent with state fidelity to those principles. The approach I argue for is grounded in the state’s social contract-based obligation to respect citizens’ core right to life, as well as the foundational principle of liberal neutrality. In many cases, as I hope to show, a proper understanding of the application of those principles is sufficient to make clear what appropriate state policy ought to be. In other cases, however, the application of these principles seems to result in an impasse. In those cases I argue that policymakers ought to employ what I call “the risk of harm principle.”2 Before beginning to explore this approach, however, it is necessary to make some preliminary remarks about philosophical interventions regarding ethics and public policy. I have long had a nagging sense of unease and frustration about much philosophical writing on topics that fall broadly under the umbrella of ethics and public policy, but it wasn’t until I read the introduction of Jonathan Wolff’s book Ethics and Public Policy: A Philosophical Inquiry (2011) that I recognized the source of my disquiet. In it Wolff describes an uncomfortable situation he faced while serving as a member of the U.K.’s Nuffield Council on Bioethics Working Party. Required to give a report to the committee which entailed outlining the main views expressed in the philosophical literature on the issue of the ethics of research involving animals, Wolff ran into an unexpected problem:

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Now, I was perfectly happy to report disagreement, just as the scientists reported disagreement about such things as the feasibility of replacing some current experiments with computer modeling, or the degree to which fish feel pain. However I was far less comfortable reporting the views giving rise to these disagreements. For on the whole, philosophers seemed to defend views that were so far from current practice as to seem, to the non-philosopher, quite outrageous. The idea that society could adopt any of the views put forward seemed almost laughable. To put it mildly, from the point of view of public policy the views were unreasonable and unacceptable.3 This confronting situation forced Wolff to reconsider the widely held view—to which he had also until then subscribed—that the appropriate response to ethical challenges in public policymaking is to approach them in the general way philosophers typically approach all of the intellectual challenges they seek to solve. Wolff realized instead that: this common view . . . overlooks one crucial point. Moral and political philosophy are, after all, branches of philosophy. And, it seems, in contrast to some other disciplines, the way in which philosophy had developed makes it fit rather badly with public policy needs. In science and in social science a researcher makes his or her name by presenting a view that others find attractive or useful and build on. By and large the situation in philosophy is the reverse. A philosopher becomes famous by arguing for a view that is highly surprising, even to the point of being irritating, but is also resistant to easy refutation. The more paradoxical, or further from common sense, the better. Philosophy thrives on disagreement, and there is no pressure to come to an agreement. Indeed agreement is unhelpful as it cuts discussion short. At a conference or seminar no one takes minutes of the meeting in order to provide a common statement representing the views of the group. A seminar group can have as many different views as it has members—indeed, to recycle an old joke—it will often have more views than members. In public policy, however, a report must be written, or a recommendation made, or a law or policy drafted, just as in science and social science a practical outcome is sought. A need to agree on a practical outcome

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creates pressure towards convergence. Philosophy, under no such pressure, thrives on what Freud in another context called the “narcissism of minor difference.”4 This, it seems to me, defines the problem perfectly, and I for one am very grateful to Professor Wolff for the insight even if, as a philosopher myself, it does induce something of a cringe! The key question, of course, is how to respond to this insight. If the typical philosophical approach is not suitable, then what is? How should the policymaker approach ethically charged decisions like those addressed in this book if theory-driven ethical argument “typically . . . will not take the debate very far” because “public policy is not a sphere of pure reason,” and on topics such as this “there is trenchant advocacy of a number of different views, some, but not all, based on moral considerations”?5 Wolff’s answer is that we should reject the theory-driven “topdown” approach that is commonly applied by philosophers. As he explains: [S]ome writers on topics in applied ethics or the ethics of public policy begin by setting out the ethical framework or principles which they will use to settle the questions that they discuss. Doing this makes their work appear highly rigorous and principled, as if this is the way professional ethicists should behave. My view . . . is that this is a noble idea, but it is ultimately unsuccessful.6 Instead of this, says Wolff, we should employ a “bottom-up” or “problem-driven” approach “in which the first task is to try to understand enough about the policy area to be able to comprehend why it generates moral difficulties, and then to connect those difficulties or dilemmas with patterns of philosophical reasoning and reflection.”7 I find myself in the uncomfortable position of agreeing wholeheartedly with Wolff about the nature of the problem with most philosophical approaches to public policy, and yet—as the next two sections of this introduction testify—I am offering an argument for an approach to policymaking that is, in an important sense, theory driven. Have I thus fallen into the trap of producing a work which is “principled” and “noble,” but “ultimately unsuccessful”? I certainly hope not! The central message of this book is that much of

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the debate over ethics in public policy misses the key point—these questions are not first and foremost about what is or is not ethical for individuals to do, they are instead about what states may or may not do. The principles that are foundational to the approach that I advocate here, and which make my approach in a sense theory driven, are foundational to the very nature of the liberal state. In that respect they stand above the “many sources of our values, [which come] from numerous philosophical, cultural and religious traditions.”8 It is this diversity which makes Wolff rightly skeptical about theory-driven approaches to public policy that come from any one of those many sources. But if I am right that the principles that drive my approach here stand above that diversity, then this skepticism does not apply. Indeed, as I discuss below, and illustrate through the examples employed in this book, one of the two main principles that drive my approach—the principle of liberal neutrality—is precisely the recognition that states ought not to adopt or favor any one of the many perspectives on ethics, metaphysics or the good which make up the wonderful plurality and freedom that distinguishes life in a genuinely liberal state. I turn now to an explanation of the two fundamental principles that drive the approach I advocate in this book.

First fundamental: the social contract and the right to life The idea of the social contract is among the most influential theories of political philosophy and is the most widely accepted explanation for the moral legitimacy of the state. While there are important differences between accounts of the social contract, the essential structure is largely the same. Roughly speaking, the picture is as follows. The starting point is a hypothetical situation in which there is no political authority. In this “state of nature” (Aquinas, Hobbes, Locke, Rousseau, Hume), “original position” (Rawls), or “initial bargaining position” (Gautier) all participants are free and equal, but it is evident that an entirely unregulated society is not conducive to maintaining that freedom and equality. And so a hypothetical deal is struck in which all participants agree to submit to the authority of a state—with consequent limitations on liberty—in

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exchange for the state’s guarantee that each person will be given the maximal liberty possible that is consistent with a rights-respecting and regulated society. The different accounts of the social contract differ in several ways: in their underlying perspectives on human nature and their corresponding impression of the state of nature (Hobbes is particularly pessimistic; Locke less so); in the degree of allegiance that is due to the state as a consequence of the social contract (Hobbes thought it absolute; Locke was determined that there is a right to rebel); in the nature of the consent which underpins it (whether that consent be implicit or hypothetical), as well as in several other important respects. For the reasons discussed above, I do not intend to tie the model of public policy decision-making that I am arguing for here to any particular account of the social contract, and will keep my references to social contract theory as general as possible. That said, however, it must be acknowledged up front that I take it as given that Locke is essentially correct in two respects. First, as will become clear when I discuss the topic of gun bans, I believe that Locke is correct that we never fully escape the state of nature. Second, as will become clear when I discuss the issue of civil disobedience, I concur with Locke that there is, under appropriate circumstances, a right of rebellion. Neither of these is, I think, a particularly contentious position, so I will not attempt to defend them. These are however important assumptions in the argument that follows, and the reader who is not inclined to accept them will not, as a consequence, be persuaded by some of what I propose, though other aspects may still be compelling. There is however an issue lurking in this vicinity on which my position stands and falls. It is my contention that the nature of the social contract means that the state may never intentionally and knowingly violate a citizen’s right to life (here, as throughout, I am using “citizen” as shorthand for all those who fall under the state’s authority). This is not the same thing as saying a state may never legitimately kill a citizen. A police officer may, for example, shoot dead an attacker bent on lethal harm if that is the only way to stop her from fulfilling her lethal intent. In such a case, however, we typically say that the attacker has, through her actions, forfeited her right to life at that moment, and so the right is not violated when the police officer uses lethal force. (A similar, though far more controversial, claim is sometimes made in defense of the application

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of the death penalty, though I do not wish to enter into that debate here.) Likewise, a citizen who voluntarily enlists in the military thereby either explicitly or implicitly consents to the state ordering him to his death if the circumstances warrant it. My claim then is that, except where citizens have in some way forfeited their right not to be killed, the state may not kill its citizens, for to do so violates the most fundamental of human rights, the right to life. To see why this is the case, it is important to go back to the consensual nature of the social contract (it does not matter whether we prefer to see that consent as implicit or hypothetical or something else). The idea is that we all agree (consent) to the state’s rule over us in exchange for escaping the state of nature in which we face, in its darkest description, “the war of all against all,” a situation of “continual fear, and danger of violent death: and the life of man, solitary, poor, nasty, brutish and short” (Hobbes). Even if circumstances without the authority of the state are not really as grim as all that (Locke), few doubt that one of the primary reasons for accepting the authority of the state is because it offers some degree of protection for our property and, particularly, our lives. It is thus obvious that no rational person would consent to the authority of a state if that authority extended to taking that person’s (unforfeited) life. Any concept of the social contract allowing for the state to kill those (non-liable) citizens who consented to submit to its authority would be self-undermining—the very rationale for entering the social contract is compromised by such an idea. This seems to me a fairly obvious point, yet as we will see, it is one that has been overlooked in discussions on the ethics of public policy. It is important to note here that this restriction on state action is absolute in a way that does not apply to other core rights, which may under some circumstances be curtailed by the state in order to secure the benefits promised by the social contract. The key difference is that the right to life is unique among the rights we hold because once violated it is non-recoverable. When rights such as my right to freedom of speech, or my right to property, or even my right to control over my body are violated, as serious as those violations are they nonetheless do not usually entail a permanent loss of the opportunity to exercise those rights. If I am dead, however, my right to life cannot be regained. In his discussion of the nature of rights, David Rodin distinguishes between two conceptions of the way rights work.9 One is the idea of rights as “trumps”—that is, when

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rights are at play, they outweigh all other considerations. The other is the idea of rights as a “breakwater.” In this conception rights generally are what are most important, but under some circumstances the tide of consequences can overwhelm them and take precedence. Rodin contends for the “breakwater” understanding of rights, and in general I agree—the thought that rights will always trump all other considerations seems to me implausible. However what I am arguing here is that, at least in the context of public policy directed at the interests of a state’s citizens, the right to life is an exception to this “breakwater” rule. In this context, because it is nonrecoverable, the right to life must always trump both the weight of consequences and other competing rights claims.

Second fundamental: liberal neutrality In addressing the issue of citizen killings in this book I am assuming liberalism. I am here talking of liberalism as that term is used to refer to a foundational conception of the appropriate nature of political arrangements. In this regard “liberal” is most commonly married with the related (but subservient) notion of “democracy,” as in “liberal democracy.” Thus liberalism, in the sense that I am using the term, is to be contrasted with political arrangements such as communism, totalitarianism, theocracy and monarchy. For some readers, particularly some who hail from the United States of America, the term “liberal” will immediately conjure up a different conception, namely an association with the political left in domestic politics. Thus “liberal” will immediately bring to mind someone who is, among other things, pro-choice, anti-death penalty and in favor of stringent gun control. Such a person is what I will here call “socially liberal,” that is, someone whose judgments on social issues generally fall to the left of the political spectrum. Such a person will almost certainly also be a supporter of liberalism, but it must be emphasized that those whose judgments are what we might describe as “socially conservative” (that is, pro-life, anti-gun control and so on) are—in the United States and other liberal democracies at least—almost certainly also supporters of liberalism as a foundational political ideal. So, to be clear, when I use the terms “liberal” and “liberalism” in this book I am referring to that foundational political ideal championed by the likes of Locke and

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Mill. When I want to refer to political positions on the left of the spectrum of debate within a liberal democratic society I will specify that by using the phrase “socially liberal.” So then, back to liberalism. The central idea here, described as thinly as possible, is what Gerald Gaus calls The Fundamental Liberal Principle, the view that “freedom is normatively basic, and so the onus of justification is on those who would limit freedom, especially through coercive means.”10 This has clear implications for states. It is the nature of political authority to limit the freedom of those who fall within its ambit, and as such there is a requirement that states must have justification in enacting laws and policies that do so. The self-constraining nature of the commitment to liberty provides just such a justification—if individual free acts are at odds with liberty as a general ideal, then the state may justifiably and coercively prevent those acts. Thus, for example, the state may rightfully limit my ability to freely choose to kill my fellow citizens, for my so doing will in most cases unduly restrict (end) the freedom of those who I kill and this is clearly at odds with a fundamental commitment to liberty. (That will not be true in all cases, however, and the question of under which circumstances states can legitimately allow their citizens to kill is the central issue in focus in this book. But more on that later.) Political liberalism is, for all its intuitive appeal, a broad notion with fuzzy and disputed boundaries. Still, there are some central features which are distinctive of the range of positions which fall within liberalism’s blurry bounds. Among these, and most critical for the purposes of the argument of this book, is state neutrality. Within the limits appropriately defined by The Fundamental Liberal Principle, the state must seek to allow as much space for individual freedom as possible, and seek to avoid enacting laws and following policies which favor or disfavor any of the conceptions of the good life that comport with the bounds of liberalism. As Andrew Mason rightly states: The idea that respect for persons requires the state to be neutral (in some sense) between different conceptions of the good life is an important component of contemporary liberal theory. It is attractive at least partly because it resonates with the thought that the state should be impartial in relation to its citizens. Liberals themselves have varied accounts of what it is for the state to be

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neutral between conceptions of how to live, but they concur in thinking that neutrality has substantive political consequences.11 Though it is widely (though not universally)12 accepted that state neutrality regarding ways of life is an essential feature of liberalism, what is meant by the term is not always particularly clear. As Gerald Gaus has lamented, “Compared to other debates in political philosophy, the light-to-heat ratio of discussions of neutrality has been somewhat dismal . . . most political philosophers seem to know whether they are for or against it, [but] there is considerable confusion about what ‘it’ is.”13 Thankfully, in a recent paper addressing the issue of “difference-sensitive” neutrality, Peter Balint has clarified matters by singling out three distinct notions which are all too often bundled together by scholars who argue for, or contest, the notion of liberal state neutrality. According to Balint, liberal neutrality is generally conceived of in terms of neutrality of justification, neutrality of intent, and neutrality of outcome: Under neutrality of justification, no law or policy should be justified by the rightness of any particular way of life. This is a form of procedural neutrality, where the laws and policies that citizens should live by should be equally justifiable to all . . . The second type of neutrality is of a different order. Here what matters is not so much how a law or principle has been justified, as much as its intention. Under neutrality of intent, a neutral institution or policy should not intend to favor (or hinder) any particular way of life . . . The third type of neutrality is effectively the flipside of neutrality of intent. Neutrality of outcome is concerned not only that institutions or policies do not intend to favor any particular way of life, but they do not actually favor—even unintentionally— any way of life.14 The idea of liberal neutrality is not without its detractors. Most notable among these are multiculturalist thinkers like Charles Taylor and Will Kymlicka who argue that liberal states are not neutral in practice, and, indeed, liberal neutrality is not even theoretically possible.15 Balint, however, points out that these views misconceive the nature of the neutrality norm. First, says Balint, what is missed by these critics is that neutrality is an ideal. As such,

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it is perfectly coherent to accept that it will never be fully realized, but at the same time maintain that it should be an action-guiding principle. Second, what is also overlooked is that neutrality is not an absolute notion but rather a range concept, one which will always be constrained by other foundational liberal norms as well as social realities.16 Balint shows that there are essentially two possible strategies states can choose from in seeking to ensure, as far as possible, neutrality in their policies. One is by actively seeking to support ways of life which have been previously unrecognized or marginalized. The other, which Balint advocates, is to proceed by withdrawing support for favored ways of life when such favoring becomes evident.17 Take, for example (this is my use of this example, not Balint’s), the issue of marriage. In many liberal states this issue has come increasingly to the fore. A strong argument has been made that the essentially Judeo-Christian definition of marriage which has been institutionalized in these states has, as a result of societal shifts, increasingly come to marginalize and disadvantage those whose conception of the good life entails a definition of marriage which differs significantly from the Judeo-Christian view. One strategy states can take to restore neutrality in this regard is (as several states have now done) to extend the legal definition of marriage in order to accommodate the now-recognized-asdisadvantaged group or groups (such as the gay and lesbian community). While such a step restores neutrality of intent and outcome with respect to the gay and lesbian community, it is not entirely unproblematic, as it could be argued that it constitutes taking a position which could, perhaps, be seen as violating neutrality of justification. It is also a limited step, as it does not address other notions of the good life which might still be negatively affected by the (now extended) legal definition of marriage, such as, for example, those who consider polygamy or polyandry to be an essential feature of the good life. The alternative strategy available to a state seeking to ensure neutrality is to withdraw from the issue—that is, remove marriage from the legal lexicon altogether. Marriage would then become a matter of personal choice, to be defined and lived out as the individuals concerned see fit, without state interference. Practical and social challenges aside, this approach seems to offer the greater potential to maximize state neutrality regarding this issue.

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I am in broad agreement with Balint that state withdrawal is often a better means to pursue neutrality than state engagement, though I will not attempt to argue the issue here. The focus of this book is on how states should formulate policy on issues where “stepping back” from the issue is not an option—whereas Jonathan Wolff puts it, there is no room for “ ‘agreeing to disagree’: some policy or other is needed.”18 Furthermore, for some of the issues I will consider, the only policy options available seem, at least on the face of things, to require abandoning state neutrality regarding competing conceptions of the good, meaningful or valuable life and their corresponding metaphysical underpinnings. What unites the issues being considered here is that they all involve the question of killing human persons,19 and are therefore among the most significant policy issues that a state must address. And because they involve the killing of human persons, or the possibility of killing human persons, these are issues which the state must address—the option of withdrawal is not possible given the state’s well-established duties in terms of the social contract. There are complexities here. In the case of abortion the question of whether or not a human person is being killed is a central part of the quandary, as I will discuss in Chapter  4. And when employees of private military companies contracted to foreign entities kill foreigners in distant lands (the subject of Chapter 2) this does not fit comfortably within the space regulated by the social contract. Still, even in these cases the option of withdrawal is not a meaningful one—for whatever states choose to do about these issues amounts to taking a position of some kind. The mechanism by which I propose to address cases where the state’s duty to avoid violating the right to life of its citizens runs into the issue of liberal neutrality is what I call “the risk of harm principle.” I explain this principle and its application in Chapters 3 and 4. However, it is worth making some preliminary remarks on the nature of risk here, as this will be an important consideration in the chapters that follow.

Risk Formulating state policy is an essentially risky business. Every act of policymaking, even the most mundane, carries with it the inherent risk of unduly violating or undermining the very liberty and rights the social contract is intended to protect. Where this actually occurs,

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a wrong has clearly been perpetrated. But even where no harm actually occurs, risk—what we might (following John Oberdiek) call pure risk—can be of moral import. As Oberdiek points out in discussing pure risk in general, “the class of such risks is massive: people in modern and modernizing societies live with and indeed impose upon each other a countless diversity of risks that usually remain inchoate and underappreciated, thus causing no resultant harm, fear, or disruption.”20 A good example of where pure risk has moral import is in the case of drunk driving: When a drunk driver gets behind the wheel of his car and begins driving, at least with others around, that conduct is even then intuitively wrong—not merely culpable—even if no one who is put at risk is aware that the driver is drunk . . . what is wrong with (and so necessarily morally significant about) drunk driving cannot be that it actually harms anyone. For the wrong of driving drunk is perpetrated just as the drunk driver begins driving, when nothing has yet happened to anyone in any conventional sense. . . . Drunk driving, according to this view, need not have any adverse effect on anyone to be wrong and a fortiori morally significant.21 Interestingly, Oberdiek locates the moral import of pure risk as lying in its connection with the same value that animates liberalism— liberty, or in Oberdiek’s terminology, autonomy. The “right against risking” exists because acts which risk another’s life (in the paradigm case), place constraints on that other’s autonomy, even if she is not aware of it. That autonomous activity presupposes acceptable options entails that the foreclosure of acceptable options diminishes autonomy. Certain risks represent just such foreclosures, and accordingly, risks can diminish autonomy. In fact, even if one exercises the very options, which as it happens are safe, that one would have exercised absent the risk, one’s autonomy is diminished in virtue of the risk, for that risk narrows one’s safe options. In this way, choosing a safe or otherwise acceptable option does not shield the autonomy of one’s choice. Making one’s way through a minefield without incident (aware of the danger or not) would certainly make one’s choice of paths fortunate, but if there were no other safe and thus choiceworthy paths, it would not make one’s choice autonomous.22

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Of course not all risks are morally significant. When I drive to work during my normal weekday commute, I, in so doing, impose some degree of risk on other road users. But so long as I obey the rules of the road, am observant, and take reasonable care of my vehicle, I do not thereby commit a wrong. What this illustrates is that there is a threshold which must be exceeded for risk to become morally problematic. Oberdiek identifies three criteria which together define that threshold. First, the risk concerned must in fact have some bearing on the life of the person under consideration: “In order to diminish autonomy, a risk has to foreclose what is in some sense a potential option, or a choice that one was in some way inclined to make.”23 Thus it is not enough for a risk to impact on any of the courses of action I could possibly take; it must impact on a potential course of action which I might actually consider taking. For example it’s possible that I could get up from my computer right now, empty my bank account, and fly to Tibet. But any acts or omissions by others which make that course of action risky (such as someone negligently failing to adequately service the air-traffic radar at Lhasa Gonggar Airport) don’t genuinely constitute a risk to me, as there is nothing in the current trajectory of my life that would make me genuinely consider taking such a course of action. Second, some risks which do actually bear on courses of action which I might actually take still fall below the level of being morally problematic. This is because in these cases either the type of harm being risked is too minor to be morally significant, or the probability of harm is too small to be morally significant (in some cases both of these considerations might apply). Oberdiek’s example of the second type of situation, where the type of harm being risked is too minor to be considered to be morally significant, is an amusing one: Imagine a case not where a gunman shoots at someone, but where an individual with simple chronic halitosis exhales his very sour breath in another’s direction. While no one would reasonably want to experience anyone else’s bad breath, calling the risk of that experience a diminution of autonomy caricatures why it is that autonomy is a value. We would not valorize autonomy as we do if what it stood against was minor, passing disgust and discomfort.24 The example I used earlier of the risk I impose on other road users by driving to work in a manner which complies with the rules of the

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road and which reflects reasonable caution on my part is an illustration of the other situation—while my actions do impose some risk of potentially serious harm on others, the manner in which those actions are carried out means that the likelihood of that harm actually occurring, while not zero, is sufficiently low that I do not (at least by currently accepted reasoning) act immorally in doing so because the probability of actual harm occurring as a result cannot meaningfully be construed as diminishing others’ autonomy. The limiting consideration in the latter example—“at least by currently accepted reasoning”—is an important one, and highlights a general consideration which will be significant in some of the cases I will address below. As our understanding of the world changes, risks that were historically considered to fall below the threshold of moral concern can come to be morally significant. In the not too distant past, for example, lighting up a cigarette in the vicinity of others would reasonably have been considered to fall below the threshold of moral relevance—a tad rude and inconsiderate perhaps (rather like Oberdiek’s halitosis example), but not sufficiently significant in terms of the magnitude of harm to be considered autonomy diminishing. Now that there is a general consensus on the health risks that are imposed on consumers of second-hand smoke, however, our evaluation is very different. It might well be that, in the future, driving my car to work will come to be generally understood to be morally risky in a similar way—perhaps because of a new understanding of the health risks imposed on others by operating a petrol-burning internal combustion engine, or perhaps because of a better and widely agreed-upon understanding of the degree of risk imposed by the impact that my drive has on the environment, or something of the sort. The general principle here is that there is a reasonableness test which must be applied to assessments of moral risk, one aspect of which is the general level of agreement about the relevant facts in the society in question (more on this later). The third reason Oberdiek gives for why not all risks should be considered autonomy-diminishing is that, as he puts it, “certain risks are actually presupposed by and necessary to the value of the activities that they attend.” To help explain this point Oberdiek offers the example of the activity of mountain climbing: To somehow eliminate the risk in mountain climbing would not just make the option of mountain climbing more accessible, it

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would alter its character. . . . The number of these valueconstituting risks should not be overstated, but their bare existence is enough to defeat the claim that all risks winnow down options and so diminish the autonomy of those who are exposed to them.25 While all the examples which have been used so far in this section are cases of individuals imposing risk on other individuals, it is clear that states and their agents can, and do, act in ways which run the risk of diminishing the autonomy of those for whom they are responsible. In some cases the risk of imposing, and the actual imposition of, significant constraints on citizens’ autonomy are legitimate, such as where the terms of the social contract grant the state the authority to do so. Here it is worth quoting Oberdiek at some length: Violating the right against risking involves acting on the mistaken presumption that someone else’s authority is one’s own to wield. It consists in exerting power over another’s options that one lacks the authority to wield. Even if one cedes some authority to others in interacting with them, and thus permits the foreclosure of some of one’s choice-worthy options, one retains authority over the remaining option set. Risk impositions that violate the right against risking disregard this fact. Putting people at risk can diminish their autonomy, and if it does, it follows that risking others diminishes the ability of those who are put at risk to direct their own lives. Sometimes this can be justified, sometimes not. When it cannot, when risking is wrongful, it is wrongful in virtue of wielding power over another that it is not one’s morally to wield. Wrongful risking therefore consists in a kind of exploitation of the individual whose right against risking is violated.26 As will become clear in what follows, the process of weighing risk is, I believe, an important part of the answer to the vexed question of how liberal states can make policy on matters related to citizen killings for which the option of state withdrawal is not an option, but where the nature of the issue seems to require abandoning the foundational liberal principle of state neutrality. I argue that states should weigh the policy options available without directly or indirectly making a judgment on the legitimacy of the metaphysical

INTRODUCTION

17

claims underpinning the arguments in favor or against each policy option, instead evaluating the potential moral risk inherent in each policy option based on the artificial assumption (tests of reasonableness permitting) that all of the competing metaphysical claims are equally likely to be true. The correct policy option is the one which is, on that basis, on balance the least morally risky option available. This will become clear later in the book, particularly in the chapter which focuses on state policy on abortion. However, in order to unveil my approach in a relatively systematic way I begin in the next chapter with a discussion of public policy on gun bans, a case which helps to clarify the first fundamental—the state’s responsibility in terms of the social contract to uphold the right to life of those under its care.

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1 Self-defense and gun bans

The perennial debate in (primarily) the United States over “gun control” is misnamed. Though this debate ostensibly pits “gun control advocates” against “gun control opponents,” there are in fact no serious arguments in favor of the idea that there should be no control over the private ownership and use of firearms. I doubt even the most ardent advocate for gun ownership would contend that (say) firearms and ammunition should be sold to the legally insane, or to minors without parental consent, or that there should be no laws at all regulating when, where and under what conditions private citizens may fire their guns. Strictly speaking, then, the debate is over what kind of controls there should be on private gun ownership and employment, and the extent of those controls. While there are no serious arguments in favor of a complete lack of state control over gun ownership and employment, there are some serious arguments that come close to the other extreme, contending for an almost complete ban on the private ownership of firearms. The respected moral philosopher Jeff McMahan, for example, has argued for a near total ban, conceding only that there is “perhaps scope for debate about private possession of single chamber shotguns for hunting.”1 Based on similar arguments to McMahan’s, Nicholas Dixon has argued for a total ban on the private ownership of handguns,2 the class of firearm most commonly used to commit homicide and suicide3 in the United States, and also the class of firearm most closely associated with self-defense. In this chapter I argue that McMahan and Dixon, and others like Hugh LaFollette who make similar arguments, base their positions on an important mistake. Most centrally, they confuse the risk or likelihood of being confronted by an attacker intent on serious or lethal harm with the right to defend oneself when faced by such an 19

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attacker. When this distinction is properly understood, I contend, it becomes clear that arguments for the banning of all privately owned guns, or particular classes of guns, cannot stand so long as the firearms in question can be reasonably considered to be an effective means for individuals to defend themselves against attackers intent on serious or lethal harm. In what follows I begin by analyzing the nature of the claimed right to own firearms for purposes of self-defense as well as the common, and erroneous, conflating of “risk” with “right” in discussions of this topic. I then consider the question of whether or not private ownership of firearms is entailed by the right to selfdefense. Finally I consider whether there are specific issues tied to the state’s responsibilities and monopoly on the use of force that override the pro tanto right to own firearms for the purpose of selfdefense.

Gun ownership and risk It is not only those opposed to private gun ownership, or the private ownership of particular types of guns, who take the argument to revolve around the issue of risk or safety. As McMahan rightly points out, “the central pillar” of the case that is put forward by the pro-gun lobby4 is “that we are all safer when more individuals have guns because armed citizens deter crime and can defend themselves and others against it when deterrence fails.”5 As a consequence, much of the debate rages over whether or not private gun ownership places ordinary people at greater or lower risk of becoming victims of violent crimes. Some, like Dixon, employ analyses of the available statistical evidence to argue their position.6 For others, like McMahan, it is a straightforward question of logic: The logic is inexorable: as more private individuals acquire guns, the power of the police declines, personal security becomes more a matter of self-help, and the unarmed have an increasing incentive to get guns, until everyone is armed. When most citizens then have the ability to kill anyone in their vicinity in an instant, everyone is less secure than they would be if no one had guns other than the members of a democratically accountable police force.7

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Both approaches employ the idea of what Dixon calls “[a] realistic appraisal of the rival risks”8—that is, they weigh the risk that the competing policy options will, on average, impose on ordinary lawabiding people. Even considered on their face, these approaches face significant questions. The statistical evidence available has yet to generate a clear-cut conclusion,9 and the actual behavior of human beings in societies rarely corresponds neatly with logic, no matter how inexorable. But I do not intend to enter into these debates here. Instead, my claim is that the issue of whether or not firearms (or some sub-category thereof) should be banned is independent of the question of whether or not private gun ownership makes ordinary law-abiding people safer.10 Specifically, my claim is that this issue stands or falls on the question of whether or not firearms are a reasonable and effective means for exercising the right to self-defense. At first this may appear to be essentially the same question. Certainly McMahan seems to think so. Though he concedes that a gun ban would “deprive people of one effective means of selfdefense,” he nonetheless contends that a gun ban would be rights respecting because it would “on balance substantially [reduce our] vulnerability to attack” and because the fundamental right in question here is “the right to security against attack.” He thus contends that such a ban would be “[a] policy that unavoidably deprives a person of one means of self-defense but is therefore respectful of the more fundamental right from which the right to self-defense is derived.”11 Dixon similarly argues that “few, if any, moral rights are absolute, since we can easily imagine circumstances in which any given right will be overridden by more pressing considerations. Such is the case with the right to self-defense.”12 Here the idea is that the right to own firearms for the purpose of self-defense can be overridden by other considerations because it is not a fundamental right, only a derivative one. While neither McMahan nor Dixon explore in depth the status of the pro tanto right to own firearms for the purpose of self-defense, another philosopher who holds a similar position,13 Hugh LaFollette, does. LaFollette writes: [H]aving a gun in my bed stand, in my closet, or on my person might be a means for me to achieve my ends, but they are not constitutive elements of my flourishing. Hence, owning guns is

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not a fundamental interest. . . . Not every means to a fundamental interest is a fundamental right. That would arguably make most actions protected by fundamental rights.14 That much seems true enough. The alternative, then, is to see the right to firearm ownership as, at best, a derivative right. LaFollette acknowledges that such a derivative right does, prima facie, exist,15 and both McMahan and Dixon seem implicitly to hold the same view. This still gives significant weight to the right, says LaFollette, because derivative rights, like fundamental ones, cannot be restricted without good evidence. . . . Each of us has a fundamental right of noninterference: we should be allowed to live our lives as we wish so long as we do not thereby harm others. This is a right each of us needs no matter what our particular interests. That general right derivatively protects personally important activities.16 LaFollette illustrates the point with what he takes to be an analogous case, that of the right to consume alcohol. He contends, uncontroversially, that though there exists a prima facie right to consume alcohol it is nonetheless subject to the application of good evidence that legitimizes the state in restricting that right under some circumstances, such as in the case of consuming alcohol and operating a motor vehicle. In the same way, for all the significance that LaFollette grants to the right to own firearms for self-defense in accordance with its derivative status, in his view the right is probably, barring some other policy considerations, outweighed by the causal connection he argues exists between private firearm ownership and crimes committed with firearms (particularly homicides). As we have already seen, for McMahan and Dixon there is absolutely no doubt that the risks outweigh the right. The first problem with LaFollette’s argument is that he has misidentified the fundamental right that is relevant here. While it is true that we have a general right of noninterference, the right to self-defense—at least as it is connected to the right to firearm ownership—is derived from something even more fundamental, the right to life. This becomes evident when we consider the circumstances under which wielding a firearm in self-defense would

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be justified by the requirement of proportionality. The use of a firearm involves inflicting potentially lethal harm. Therefore firearms may only legitimately be employed in self-defense, or their use threatened for defensive purposes, in circumstances that can be reasonably considered to be life-threatening or that represent the threat of real, serious, and lasting or permanent harm.17 It is hard to imagine other forms of interference (such as interfering with my right to freedom of speech, or freedom of movement, or freedom of religion) that would legitimate employing, or threatening the employment of, a firearm. LaFollette’s connecting of the prima facie derivative right to own firearms in self-defense to the fundamental right of noninterference therefore illegitimately weakens the weight of the derivative right. Of course it is true that derivative rights connected to our right not to be interfered with can be restricted on the basis of “good evidence.” But that is not necessarily true of a derivative right connected to the right to life. As I argued in the previous chapter, the right to life is unique among the rights we hold in that once violated it is non-recoverable. When rights such as my right to freedom of speech, or my right to property, or even my right to control over my body are violated, as serious as those violations are they nonetheless do not usually entail a permanent loss of the opportunity to exercise those rights. If I am dead, however, my right to life cannot be regained. As such, the means by which I am prima facie entitled to protect my right to life carry significantly more weight than the means by which I am entitled to protect my general right to non-interference. Indeed, the intimate connection between the right to life and the right to defend it, given the non-recoverable nature of the right to life, arguably entails that we should treat the derivative right to self-defense against threats of lethal harm as carrying as much weight, or at least very close to the same weight, as the right to life itself. Seen this way it becomes clear that LaFollette’s example of drink-driving restrictions on the right to consume alcohol is really not adequately analogous to restrictions on gun ownership—my right to consume alcohol does not come anywhere near to being as significant as my right to defend my life. Thus far I have gone along with McMahan, Dixon and LaFollette in treating the right to own firearms for self-defense as itself a derivative right. So understood it might be considered as a kind of “second order” derivative right; that is, the fundamental right is the

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right to life, the right to self-defense is derived from the right to life, and the right to own firearms for self-defense is, in turn, derived from the right to self-defense. It is clear that this idea of the right to own firearms for self-defense as a second-order derivative right is responsible for the reduced weight that the right to own firearms for the purpose of self-defense is given in the arguments considered above, ultimately allowing that right to be overridden. On this picture, each step away from the fundamental right is taken as somewhat weakening the strength of the obligation imposed by that right, such that in the end the right to own firearms for the purpose of self-defense is weighed in terms of risk simpliciter18 and found wanting. But this is misleading. First, as I have argued above, the unique nature of the right to life means that the right to self-defense loses very little, if any, normative weight in being a derivative right. Furthermore, while I cannot pursue this issue here, it is also worth considering that the right to self-defense is not merely a derivative right but also has significant weight of its own—the right to defend oneself is, in and of itself, an important feature of human dignity. Second, it is a mistake to consider the right to own firearms for purposes of self-defense as being “another step away.” The right to self-defense entails the right to the means to self-defense.19 Thus, if you deny me access to whatever means are necessary to defend my life in some or other circumstance, it is my right to self-defense that you are directly undermining, not some second-order right to the means in question, whatever it may be. Strictly speaking, then, it is somewhat misleading to speak of a right to gun ownership, though that is obviously a more convenient convention than speaking of “the right to self-defense that entails private ownership of firearms.” Of course it may well be denied that ownership of a firearm is in fact entailed by the right to self-defense, and it is to that claim I shall turn shortly. First, however, it is important to see that this is not, as McMahan and Dixon seem to suggest, the same thing as the question of whether or not a policy of allowing or disallowing private ownership of handguns or firearms in general is more or less likely to make us, on average, safer. The question of what policy or policies are best suited to decreasing the likelihood of me being confronted by an armed criminal bent on harm is not at all the same as the question of what means are necessary for me to exercise my right to self-defense when confronted by said criminal. Dixon is aware of this, and tries to side-step the issue by stating that “[w]e should view

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the gun control debate as a conflict between the rights of gun owners and the victims of gun crimes (these two sets of people sometimes overlap), not as a conflict between owners’ rights and utility.”20 But this won’t do. For one thing it is little more than rhetorical sleight of hand—Dixon uses the distinction to simply continue to apply his utilitarian methodology under a different guise. McMahan’s idea that the right from which self-defense gets its derivative strength is “the right to security against attack” is similarly problematic. If what McMahan meant here was that I have a right not to be attacked (and therefore a right to defend myself when attacked) we would be in agreement. But that is not what is meant. What is smuggled in, in the term “security,” is the idea of something that is variable. We can be more or less secure, and McMahan is contending for a policy he believes will make us, on average, more secure. While being more secure is clearly desirable, it has little to do with rights. My right to life is not variable; it is unremitting. Likewise, then, my right to defend my life is unremitting. It cannot be overridden simply to make me and others somewhat safer, on average, from harm. Another point against Dixon’s contention that “we should view the gun control debate as a conflict between the rights of gun owners and the victims of gun crimes” must also be considered. Even if it were true that private ownership of firearms increases the likelihood that we will become victims of armed criminals, it is the criminals themselves who violate our rights, not the policy allowing private ownership of firearms. Such a policy no more directly entails the culpability of the state than do policies allowing the private ownership of hammers, axes, kitchen knives or flammable liquids, all of which can be, and are, used to commit violent crimes.21 (I discuss the issue of state culpability further below.) On the other hand, if firearms are, in fact, a necessary means for legitimate selfdefense, then a policy restricting access to firearms for that purpose is a direct and culpable violation to the right to self-defense. There is thus an asymmetry here that does not allow for the direct pitting of defenders’ rights to self-defense against victims’ rights to autonomy.

Gun ownership and self-defense The question remains, is private ownership of firearms in fact entailed by the right to self-defense? Dixon contends that

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the right to self-defense is constrained by necessity and proportionality requirements. If handguns, while sufficient, are not necessary to protect us from predators, using them would be gratuitous and not entailed by the general right to self-defense. In the vast majority of cases, we can indeed protect ourselves from being victimized by criminals without using any type of firearm.22 There is an important confusion here that becomes evident if we consider more closely the issues of necessity and proportionality as they pertain to this issue. If I can, without undue risk of serious harm to myself, disarm an attacker who intends to kill me, then employing lethal means such as a firearm might be proportional but not necessary. On the other hand, if I am protecting myself against an attacker who, despite her best intentions, clearly does not present any danger of lethal or serious harm, then it would be disproportionate for me to shoot her. So Dixon is correct to say that these requirements are constraints on the right to self-defense. However, the necessity and proportionality constraints on the right to self-defense are defined by the specific circumstances of each particular occasion in which that right is exercised. As such, what is or is not proportionate or necessary in “the vast majority of cases” tells us nothing at all about what will be proportionate or necessary for any particular case of self-defense. Of course McMahan is correct to say that “we would all be safer if no one had guns—or, rather, no one other than trained and legally constrained police officers.”23 But even if a ban on guns could actually achieve a utopian world in which the “bad guys” do not have firearms (unlikely in the extreme) this would still not show that ownership of a firearm for purposes of self-defense fails the test of necessity. It is entirely feasible that I might be attacked by an assailant who is intent on deadly harm and armed with a kitchen knife, hammer, axe or club in circumstances where employing a firearm would be both necessary and proportionate (presumably the possibility of this kind of attack is also why McMahan thinks the police would still need guns in the utopian world he hopes for). So, in the absence of a world without assailants intent on lethal harm, the question of whether or not possession of a firearm is entailed by the right to self-defense exercised in accordance with the requirements of necessity and proportionality has nothing at all to do with what

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those requirements dictate about the use of lethal force in the majority of cases. Perhaps there is a problem here. Is not the argument here subject, as Dixon suggests, to a reductio ad absurdum, namely “that the same argument for handguns as a means of self-defense would also entail a right for private ownership of Uzis, hand grenades, or even nuclear weapons”?24 Dixon implies that this reductio can only be avoided if we follow Huemer25 in dismissing any argument for ownership of such weapons on the grounds that “the odds are hugely stacked against the benefits of such weapons outweighing their enormous risks,” which plays directly into Dixon’s claim that what must be weighed here is “the overall net effect” of (hand)gun ownership on homicide rates—that is, it all boils down to risk simpliciter.26 But this apparent reductio absurdum in fact has no such consequence and we are in no way compelled to evaluate the issue in this manner. What is missed here is that we are not considering the right to self-defense (and what is entailed by that right) in a state of nature, but in the context of a functioning state. In a state of nature the right to self-defense might well entail a right for private ownership of Uzis, hand grenades, and yes, even nuclear weapons. If there is no state to protect me, and my life is at threat by marauding bands of heavily armed bandits, then automatic weapons and explosive ordnance might well be required for necessary, proportionate and effective self-defense. Likewise, imagine an unlikely but conceptually coherent hypothetical future situation in which the government of the United States has collapsed, leaving no legitimate authority in power over the territory formerly occupied by the United States of America. Imagine further that a hostile nuclear-armed country is poised to take advantage of the situation in order to exact revenge for perceived past harms, by launching nuclear strikes onto the territory of what was the United States. Under such (admittedly bizarre) circumstances it would not be obviously inappropriate for an individual to secure ownership of a nuclear weapon for the purposes of deterring the hostile state in defense of that person’s life and the lives of other former Americans living in the territory formerly occupied by the United States (keeping in mind that defense of others is a recognized aspect of self-defense).27 The reason we don’t normally think of the right to self-defense as entailing a right to Uzis, hand grenades and the like is not, as Huemer and Dixon think, because they weigh too heavily on the

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risk side of the risk–benefit equation. It is instead because the right to self-defense as we are talking about it here is exercised in the context of a functioning state which is responsible for shouldering most of the burden of defending us from those who would harm us. Where there is a functioning and effective state, the likelihood of my requiring automatic weapons and explosive ordnance in order to defend myself is vanishingly small, and therefore the state does me no moral harm by denying me access to such weapons. If, however, I were to live in one of the parts of (say) present-day Somalia where the government and its international supporters has yet to exert effective control, and where I face the real threat of harm from heavily armed bandit groups and radical Islamists like Al Shabaab, then I would most certainly be entitled to retain ownership of my AK -47 and perhaps even a grenade or two. Even in a state with a high-functioning security apparatus, the ordinary person’s legitimate need to exercise self-defense is not zero—were that not the case self-defense would not be a meaningful legal defense. We could usefully picture each citizen ceding the right to use force to the state everywhere except within a thin time-space “bubble” around the citizen, where the precise size of that bubble is defined by the speed and effectiveness of the state’s response to threats of violent harm. (This is what I meant in the introduction when I said that I agree with Locke that we never fully escape the state of nature.) As the old saying goes, “when seconds count, the police are only minutes away”: it is in those minutes that the citizen must, and may, exercise her right to self-defense personally. And it is in those vital minutes that the citizen must have the necessary means to effectively exercise that right. I have acknowledged that it is highly unlikely that those necessary means would include automatic weapons and explosive ordinance. But what about handguns, or shotguns, or rifles? Is it really reasonable to claim that such weapons are necessary to effectively exercise self-defense within the “bubble”? Again, the question here is not whether or not we will, on average, be safer if the state allows private ownership of firearms. The question is about the likely effectiveness of firearms being employed in circumstances of legitimate self-defense, not about the statistical likelihood of the average citizen, or some sub-group thereof,28 being in such a situation in the first place. So understood, the answer is pretty obvious. It is difficult to imagine that a properly

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trained29 citizen would be less able to effectively defend themselves if they have a firearm than if they do not. Of course that does not go for all firearms under all circumstances. A scoped bolt-action precision rifle capable of minute of angle accuracy out to 1,000 yards is a very effective weapon for some military and law enforcement applications, but it is very difficult indeed to imagine circumstances in which a citizen of a country with an effective law enforcement regime would require this kind of capability for selfdefense (scoped bolt-action rifles are fairly ill suited to the close confines in which most attacks that would justify legitimate selfdefense occur). The self-defense “bubble” just doesn’t extend that far, or does so only under the very rarest of circumstances.30 But that is not the case for handguns or, under some circumstances (such as engaging an armed home invader), shotguns or carbines. Where lethal force is warranted there is little question that the employment of appropriate firearms is both proportional and effective. Dixon contends, “My right to self-defense is violated by a handgun ban only if it makes me more vulnerable to being victimized, but a handgun ban actually makes me safer and thus furthers my interests instead of sacrificing them.”31 Who, exactly, is the “me” in this quote? Again Dixon is conflating the average with the situation of the individual. Given the impossibility of preventing any and all weapons capable of causing lethal harm falling into the hands of criminals,32 the person who owns a firearm and is proficient in the operation of that firearm is, as a consequence, almost certainly safer when facing an attacker who has lethal intent. The person who chooses not to avail him or herself of this particular means of self-defense may perhaps (though I do not necessarily concede this) be less safe on average if there is no (hand)gun ban, but that is a free choice he or she exercises (just as some people freely choose not to install good-quality locks on their doors).

Gun ownership and the state Thus far I have considered gun bans from the perspective of the ordinary person. But are there calculations at the state level that change the moral calculus? McMahan thinks so. He argues that the number of guns in private hands is inversely proportional to the state’s monopoly on the use of force: “[T]he more people there are

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who have guns, the less effective the police become. The power of the citizens and that of the police approach parity. The police cease to have even a near-monopoly on the use of force.”33 That is certainly a disconcerting prospect. The monopoly on the use of force is perhaps the defining feature of the modern state—it is certainly the most important consequence of the social contract. If McMahan is right then there might well be a social-contract-based argument to the effect that, to ensure that we avoid a situation in which “[d]omestic defense becomes more a matter of private selfhelp and vigilantism and less a matter of democratically-controlled public law enforcement,”34 we should be willing to give up our right to defend ourselves both within the “bubble” as well as without. But is McMahan right? I don’t believe he is. For one thing, if the state’s monopoly on force were merely a consequence of the police having an advantage in firepower over the populace then we would have to say that, in the United States at least, the state lost that monopoly a long time ago. While there are no exact figures on the number of firearms in private hands in the United States, official estimates put the figure at somewhere around 310 million35— the law enforcement community in the United States is without doubt “outgunned” on any direct comparison of firepower. But the weight of the state’s monopoly on force is as much, or more, a product of societal norms as it is of relative firepower. More importantly, McMahan also misses the point that an ordinary lawabiding citizen who owns and perhaps employs a firearm in circumstances of legitimate self-defense does not by virtue of doing so resort to “vigilantism.” As I argued in the previous chapter, the social contract, which legitimizes the state’s monopoly on force, is based squarely on the cornerstone of the individual’s right to life. It is clearly false to claim that an individual defending his or her life with an appropriate degree of force in circumstances where no state agent is available to step in somehow undermines the state’s socialcontract-based monopoly on force. To prevent an individual from exercising effective self-defense under such circumstances would effectively undermine the very justification for the state’s monopoly on force. What should be weighed is the moral risk that the state will violate the terms of the social contract. That is to say, in choosing among the policy options available, policymakers should first and foremost consider which of the available options will be least likely

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to result in a failure to live up to the state’s responsibilities. It is uncontroversial that under the social contract the individual cedes to the state her right to employ force in self-defense and defense of property under all circumstances in which the state is able to do so effectively. This certainly makes the individual safer, a welcome outcome that offers the primary motivation for (hypothetically or implicitly) entering into the social contract. However, making the individual safer does not justify the state in violating the individual’s rights when the right concerned is non-recoverable, as in the case of the right to life. If, as I have argued here, a ban on firearms (or a restriction on ownership of firearms that negates their use for purposes of self-defense) amounts to a violation of the individual’s right to self-defense, then the moral risk calculation that policymakers ought to undertake weighs heavily against such a policy. Huemer makes a similar argument, likening the situation to that of “a judge who has to decide whether to execute an innocent person when this is the only way to avoid public riots that will cause many deaths and injuries.” 36 This situation, argues Huemer, shows that “it is wrong to violate one person’s rights (in particular, his right to life) even if doing so would prevent several rights violations of comparable seriousness,”37 and a ban on guns or handguns would do precisely that. Dixon, however, rejects this argument. First he argues that the case of the fictional judge is importantly different in that “we do not know in advance who the unlucky ‘losers’ from handgun prohibition will be.”38 He contends that the situation is more akin to that of laws requiring the wearing of seat belts: “[W]earing a seat belt is in our best interests, because of the very high probability that it will reduce our chance of injury in accidents, even though we may end up being one of the very small number of unfortunates who end up dying as a result of being pinned in place by a jammed belt in a burning car.”39 Dixon’s argument here is most puzzling. How, exactly, does not knowing the identity of an innocent victim change the valence of responsibility? Let us change the fictional scenario under discussion to a similar one in which a police officer is contacted by a terrorist and told that if she does not shoot and kill the first person she sees on the street, a bomb will explode killing tens or hundreds of other innocent citizens. Does the fact that the identity of the innocent victim is unknown to the police officer at the time she makes her

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weighty decision significantly alter the moral circumstances? It is hard to see how. Dixon’s analogy of seatbelt wearing is likewise problematic. First, it is misleading because, even by modest estimates, the analogy presents a decidedly false sense of the proportion of people who are killed by handguns to those who are saved by them (the number of people killed as a result of malfunctioning seatbelts being extremely small). Second, weighing the risks of not wearing a seatbelt against the risk of wearing one is a direct and straightforward risk assessment applicable at the individual level—so long as there are consistent safety standards that all seatbelt manufacturers must adhere to, the risks either way are the same for each and every person who travels in a motor vehicle. Even if we grant that a ban on (hand)guns will lower the risk of facing an armed attacker intent on lethal harm (which I do not necessarily concede), this benefit will not be distributed evenly across the populace. Those living in lowincome areas will continue to face a higher risk than those who are able to invest in more extensive security measures. Most importantly, the use of this analogy again follows Dixon’s approach of conflating risk and rights. What is in “everyone’s interests” collectively tells us nothing about what is appropriate given the individual’s rights under the specific circumstances of a life-threatening attack. When weighing up seatbelt laws there is no question of violating a right of anything like equivalent status to the right to life. In short, the analogy, and Dixon’s argument, is almost entirely unhelpful in addressing the issue at hand. Dixon gets closest to the crux of the matter when he writes: Proponents of the purported right to own handguns for selfdefense might appeal, as a last resort, to the acts versus omissions doctrine. They could point, that is, to the asymmetry between the governmental act of banning handguns, thus preventing people from using them in self-defense, versus the omission involved in failing to ban them, thus allowing more people to be killed and otherwise victimized with handguns.40 Dixon goes on to offer his response to this imagined line of defense, framed in terms of a debate over negative and positive rights. I will not, however, address Dixon’s response directly, as while he gets

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closer to the central issue here, he does not properly articulate it. For it is simply not the case that there is any kind of omission on the part of the government that “fails” to ban (hand)guns. While securing the safety of those under its care is, as Dixon correctly points out, a general responsibility for the state, as I have argued in the previous chapter, this responsibility is constrained by the greater responsibility of not violating its citizens’ right to life. There are all sorts of ways that the state could make us safer that are simply inappropriate—for example, the state could enforce a daily exercise routine, or dictate a strict and healthy diet, or ban the private ownership of motor vehicles, or monitor all of our conversations. It is no omission that the state does not do so. Likewise it is misleading to speak of an “omission” on the part of the state in “failing” to ban (hand)guns, when to do so would go beyond the scope of the state’s legitimate power.

Conclusion In this chapter I have argued that, properly understood, the fundamental constraint that the right to self-defense places on states makes calls for bans on the private ownership of firearms (or limitations thereon that undermine the individual’s ability to appropriately employ firearms in legitimate self-defense) morally inappropriate. As I tried to make clear from the outset this is in no way an argument against “gun control.” Indeed, as I have said, there are no serious arguments in favor of the abolition of all forms of state control over the private ownership and employment of firearms. Reasonable and effective controls should be welcomed by gun enthusiasts, hoplophobes and everyone in between—no sensible person desires to live in an unnecessarily unsafe world. (By analogy, no reasonable person desires a world in which there are no state controls over the ownership and operation of motor vehicles.) However, by advocating gun bans McMahan, Dixon and others are arguing for policy that, if enacted, would fundamentally violate a principle and principled limitation on state action and undermine the social contract. This chapter has illustrated the application of the first of the fundamentals I outlined in the introduction, and has also served as

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a cautionary tale about the misapplication of the notion of risk. In the next chapter I address an issue in which, for the first time, the question of liberal neutrality comes into play, when I discuss the question of appropriate state policy regarding contracted combatants and foreign fighters.

2 Contracted combatants and foreign fighters

As I write this, security officials in Australia are, like their compatriots in many liberal democracies around the globe, wrestling with the question of how best to prevent Australian citizens from traveling abroad to join the so-called “Islamic State” in that radical Islamist organization’s violent quest to establish a caliphate in the territory now occupied by Iraq and Syria. Where efforts to block outwardbound Australian jihadists fail, the effort turns to preventing them from returning, through such measures as canceling their passports. While there is some debate over what means are appropriate to prevent or limit the participation of Australian citizens as jihadists in the churning catastrophe in Iraq and Syria, there is no public debate (at least none that I am aware of) over whether the Australian government has the right to impose such controls on its citizens. And why should there be? After all, it’s just so obvious that traveling to distant lands with the goal of participating in a brutal armed conflict is not something that a responsible state should allow its citizens to do. But is it really all that obvious? At the same time that it is striving to stem the flow of Australians seeking to fight for IS , the Australian government is doing, and has done, relatively little to control the Australian citizens traveling abroad to zones of conflict to take up arms as third country national (TCN ) employees of private military and security companies (PMSC s).1 As legal scholars Tim McCormack and Rain Liivoja point out, “no known data exist on the precise number of Australian civilians currently working for international corporations in direct military roles around the world, but the popular view is that there are more than the Australian Defence Force (ADF ) 35

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would care to admit.” Despite this, “Australia currently lacks a specific regulatory framework for any criminal activities of PMSC ’s.”2 One country which has taken significant steps—in law, if not in practice—to restrict the involvement of citizens in the activities of PMSC s in zones of conflict is South Africa. The key legal instruments in this regard were, first, the Regulation of Foreign Military Assistance Act 15 of 1998, or RFMA , which was later superseded by the awkwardly titled and poorly constructed Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act 27 of 2006, known most commonly as the “Mercenary Act.”3 The first of these laws was passed largely as a response to the activities of the South African PMSC Executive Outcomes, which was employed to provide training and combat services by first the Angolan and then the Sierra Leone governments in the 1990s.4 The Mercenary Act was designed to address shortcomings in the RFMA , an effort that was driven by concerns over the significant numbers of South African citizens, mostly former soldiers of the apartheid-era South African Defence Force (SADF ), who were then working as armed contractors in Iraq. While this might perhaps have been to some extent a product of the South African government having concerns over these contractors posing a security threat on their return, a clear driver behind the legislation was the fact that South Africa (a leading member of the Non-Aligned Movement) has, since achieving democracy in 1994, regularly been at odds with the United States over the latter country’s military incursions around the globe. South Africa was particularly critical of the U.S. led invasion of Iraq in 2002, and so to have armed South Africans swelling the ranks of the coalition “occupiers” there was a source of considerable embarrassment. Under South African law wannabe “foreign fighters,” prospective non-domestic private security contractors, and even conflict zone medical service providers, all fall into the same category and are subject to the same legal instruments. In each case they face a general prohibition against following their desired pathways— exceptions can be applied for, but are in practice virtually never granted. Should this be the case? Is it true, as the South African legislation seems to imply, that the decision to pursue employment as an armed security contractor is on a moral (and therefore legal) par with the decision to serve as a foreign fighter in a morally corrupt cause? Elsewhere,5 I have gone to some lengths to defend the

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idea that it is a mistake to treat armed security contractors (I like the term “contracted combatants”) as somehow inherently morally objectionable. Whether or not there is a moral problem with a contracted combatant depends on what that individual contracted combatant does. As I have previously expressed the case, the contracted combatant is “just” (merely) a warrior. Whether or not she or he is a “Just Warrior” depends on essentially the same factors that determine whether or not a uniformed sailor, soldier, marine or airman is or is not to be considered “Just.” But this doesn’t answer the question at hand here. Properly put, the issue here is one of the ethics of public policy. In particular, what must be interrogated is whether a liberal democratic state has the moral right to restrict its citizens from participating in conflicts to which the home state is not a party and, if so, on what grounds. It is to that task I now turn.

Contracted combatants, foreign fighters and the moral limits of state power I have placed heavy emphasis on the central role of the notion of state neutrality in political liberalism for a reason: it is to make it clear that the liberal state may not, without exceeding the moral limits of its power, limit a citizen from carrying out an activity on the basis that it is a life-choice which the state, or the majority of the state’s citizens, or the most powerful lobby within the state, does not morally approve of. Thus, for example, it may be (and perhaps is) the case that the majority of Australians consider that a person who chooses to offer military services on a contractual basis (a “mercenary”) is a morally corrupt individual. It may well be the case that the majority of Australians consider mercenaries to be intrinsically bad people. But so what? The same people might well just as likely consider a lifestyle that is sexually hyperpromiscuous, or one that is narrowly religious, or one that profits from the gambling industry to be morally problematic. But interfering with these life choices would not, on that basis alone, be within the moral limits of state power. It is only where a lifestyle choice unduly limits the liberty of others—particularly, though not exclusively, by harming them—that the state has a right to restrict that lifestyle choice.

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So, then, is there some sort of harm that arises from allowing citizens to work as TCN contracted combatants (I will return to the issue of foreign fighters shortly) which would legitimate the exercise of state power to prevent citizens from pursuing this life path? Some might argue that the relevant harm here is the damage to the state’s monopoly on the use of force which comes from allowing citizens to employ armed force as contracted combatants in foreign lands. I have already engaged with this issue to some extent in my book Just Warriors Inc (2011), where I argue that, far from undermining the state’s monopoly on force, private military contractors under contract to, or sub-contracted to, the state in effect become agents of the state, thereby enforcing and reinforcing the state’s monopoly on force. Concerns over the control of “private” forces, while appropriate, are entirely contingent issues, dependent on the particular circumstances at hand. The principle, however, is clear— the state has a responsibility to ensure the accountability of its armed servants, whether uniformed or contracted. Even if the state itself is not directly the beneficiary of the contracting arrangement— if, say, an Australian mining company contracts private security guards in a conflict zone in which the Australian government is engaged—so long as the use of force is within the legal bounds established by the state, the monopoly on force is not threatened. But of course the focus of this chapter is on contracted combatants working as TCN s. Does this change matter? In such cases the state of which the TCN is a citizen is neither (whether directly or indirectly) a beneficiary of the contractual arrangement, nor does the contract fall within the context of the home state’s broad area of control. So, does the fact that a state’s citizen is bearing arms and employing force in a foreign conflict in which the state is not engaged undermine the state’s monopoly on force? It’s hard to see why it would. It must be remembered that the terms of the social contract which grant the state that monopoly are based solely and squarely on the state’s role in providing a secure environment in which its citizens can pursue their conceptions of the good life as freely as possible. There’s nothing fundamental about a private citizen freely choosing to work as a TCN security contractor that should interfere with the state fulfilling its side of the bargain. To see the TCN contractor’s use of force as undermining his or her state’s monopoly on force is to misunderstand the nature of that monopoly. It is not absolute—it does not grant the state the right to

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control the use of force under any and all circumstances. It does not, for example (as I argued in the previous chapter), grant the state the moral right to prevent its citizens from employing discriminate and proportionate force in self-defense in circumstances where the state is not itself able to do so. Nor, I contend, does there seem any good reason to think the state’s monopoly on force extends to circumstances not covered by the terms of the social contract. Of course it may well be the case that while the TCN contracted combatant does not directly threaten the state’s monopoly on force, his or her engagement in some foreign conflict might well endanger other citizens, or the state itself. If that were, in fact, the case, then the state would, in terms of the social contract, be fully within its rights to curtail the activities of its citizens in this regard. One largely unstated reason behind the South African government’s legal crackdown on its citizens working as armed contractors in foreign conflict zones, but one which seems to have nonetheless been a genuine motivation, was the fear that such contracts would equip disaffected former apartheid-era soldiers with the means to attempt a coup against the democratically elected government of South Africa. This concern, however, was misguided for several reasons. First, the former apartheid-era soldiers in question were already combat experienced, and the additional experience gained in Iraq would have made relatively little difference to their ability to attempt a coup. Second, TCN s are supplied with weapons once they get “in theatre,” and surrender them again when they depart (usually on commercial airlines, with all the corresponding security screening), so there was no particular likelihood that involvement in these conflicts would have somehow enabled the stockpiling of weapons. And, third, carrying out a successful coup, particularly against the government of a large country like South Africa with its relatively sophisticated security apparatus, requires a degree of planning and coordination that is likely to be hindered, rather than helped, by coup-plotters deploying to distant lands to protect convoys and the like. That said, while there are good reasons in the South African case to doubt the danger of a coup connected to citizens serving as TCN security contractors, if there were a real danger of this kind then that would legitimate the employment of state coercive power to restrict such activities. More broadly, if there is a meaningful threat

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to a state’s citizens which emerges as a result of other citizens traveling abroad to get involved in one way or another in foreign armed conflicts, then the state has a moral right—indeed a duty—to step in and stop that from happening. A good recent illustrative example is the case of Dutch citizens who traveled to Syria and Iraq to get involved in the conflict between Kurdish fighters and the forces of the so-called Islamic State (IS ). Some of the Dutch citizens in question have become radicalized and have gone to the region to join IS . On the other side, members of a Dutch biker club, the “No Surrender Motorcycle Club,” have joined with Kurdish fighters to stand against IS . In response, these two groups face significantly different responses from the Dutch government. Because IS is listed as a terrorist group, even preparing to join IS is a crime in Dutch law. The Dutch bikers, on the other hand, face no legal sanction whatsoever. As Wim de Bruin, spokesperson for the Dutch public prosecutor, explains: “Joining a foreign armed force was previously punishable. Now it’s no longer forbidden. . . . You just can’t join a fight against the Netherlands.”6 Clearly the distinction being made here is based on the potential for actual harm to Dutch citizens—the Dutch government has adjudged (seemingly correctly) that there is a danger that Dutch citizens who join IS could be a real danger to other members of the Dutch populace, while those who enlist to fight on the other side pose no such danger. This is an approach to the situation that is exactly in line with state neutrality—it entails no intrinsic judgment of the value of the path of life chosen by the citizens who enlist on either side—and is coherent with the limits of the social contract (in that it does not go beyond the state’s moral right to protect its citizens). By contrast, recently introduced Australian legislation7 places a blanket ban on Australian citizens traveling abroad to participate in conflicts as “foreign fighters,” which by contrast seem to unduly limit the freedom of its citizens and is in conflict with what (as we have seen) Gerald Gaus calls The Fundamental Liberal Principle, the view that “freedom is normatively basic, and so the onus of justification is on those who would limit freedom, especially through coercive means.”8 But perhaps there are other kinds of potential harm which need to be considered here. What about the potential harm to a state’s foreign relations? Indeed, as is evident in the case of the South

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African TCN contractors engaged in Iraq, such contractual arrangements might well be a source of some embarrassment for the home state in diplomatic circles. As I have argued, however, the liberal state has no right to exercise its coercive power against its citizens simply because it finds their actions to be embarrassing or morally problematic. It may be morally and diplomatically embarrassing for Australia if, say, extreme right-wing activists (citizens) protest outside a prestigious global summit on refugee affairs, but this in itself does not grant the state moral grounds on which to override said activists’ right to freely express their views on the topic. Likewise, unless it can be shown that real and significant harm could befall the state’s citizens as a result of other citizens working as TCN security contractors or foreign fighters, then the embarrassment which this might cause to the state is insufficient to warrant the exercise of state power to restrict those citizens’ choice of occupation. None of this is to say that the state cannot place common sense restrictions on citizens seeking to work as TCN security contractors or to enlist as foreign fighters. For example, it seems to me that the state would be within its rights to require the citizen concerned to take out sufficient insurance to cover the cost of any emergency medical evacuation which might become necessary as a result of his or her deployment to the dangerous afar. Alternatively, it might be appropriate for the state to clearly and publicly waive any responsibility for such eventualities—the contractor or foreign fighter, at his own choosing, is on his own. And nor is any of this intended to suggest that states should not hold their citizens accountable for illegal killings and other serious crimes which might be committed in the course of such a contracted deployment. If there is any justification in general for states to prosecute their citizens for crimes which are committed abroad (which I take it there is), then there seems no reason why the contracted combatant or foreign fighter should be exempt. And there is nothing about what I have argued here which suggests that liberal states’ representatives may not express, loudly and publicly, any moral objection the majority of the populace may have to citizens traveling abroad to work as TCN contractors or volunteer as foreign fighters—liberal states are, after all, also democracies. But none of this justifies any kind of enforced blanket prohibition of citizens traveling abroad for this purpose.

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Let us consider one further possible reason which might be given in justification of a state banning its citizens from working as TCN security contractors or volunteering as foreign fighters. We might imagine the argument going something like this: 1 States have a moral responsibility to adhere to the terms of the jus ad bellum criteria of Just War Theory. 2 Some conflicts that citizens may seek to participate in as TCN security contractors or foreign fighters will fail to meet the criteria of the jus ad bellum. 3 States therefore have a moral responsibility to prevent citizens from participating in conflicts on the side of parties to those conflicts which are reasonably considered to be engaged in unjust wars. At first glance, this seems a fairly compelling argument. On closer inspection, however, it fails because it misrepresents the nature of responsibility for jus ad bellum compliance. On the standard view, states are responsible for adhering to the jus ad bellum, while individual combatants (following the principle of the moral equality of combatants) are held responsible only for adherence to the jus in bello principles of discrimination and proportionality. Under this traditional view, the question of jus ad bellum simply does not arise for states and their citizens who work as TCN contractors. The state itself is not engaged in the conflict or conflicts in question, and so has no responsibilities in terms of the jus ad bellum. The TCN contractors, qua individual combatants, likewise have no responsibilities in terms of the jus ad bellum, being responsible only for adhering to the jus in bello. In recent years philosophers like Jeff McMahan9 have challenged this view, arguing that individual combatants are, in fact, responsible for ensuring that the wars they fight in meet the criteria of the jus ad bellum. Viewed from this perspective, does the situation look any different for the state concerned about its citizens working as TCN contractors or volunteering as foreign fighters? It seems not. For while under this way of thinking the contractors or foreign fighters themselves have a responsibility to ensure that they only participate in wars which live up to the requirements of the jus ad bellum, there is no associated responsibility for the contractor or

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foreign fighter’s home state, which, by definition, is not a participant in the conflicts in question.

Conclusion This chapter has been an attempt to address, from the perspective of the ethics of state policy, the question of whether or not states have a moral right to prevent their citizens from traveling abroad in order to work as TCN security contractors or foreign fighters. I have argued that both the principle of state neutrality, and the limits of the terms of the social contract, weigh heavily against blanket prohibitions in this regard. Accordingly it seems clear that legislative instruments like South Africa’s Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act  27 of 2006 and Australia’s Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 are at odds with what ethical public policy should look like for a liberal state. Nonetheless, liberal states may, on a case by case basis, legitimately restrict such activities where there is a meaningful possibility of citizens undertaking such work resulting in serious harm to other state citizens. So far I have addressed two cases illustrating how the two fundamentals outlined at the beginning of this book ought to guide policymakers who are creating law and policy on citizen killings. In the previous chapter I showed that the social contract, and particularly the key limiting role that the right to life plays on the scope of the social contract, requires states not to prevent citizens from owning firearms for the purpose of self-defense. In this chapter I have shown that the liberal state’s responsibility to remain neutral about ways of life means that citizens may not be prevented from traveling abroad as foreign fighters or TCN private military contractors, except in cases where there is a clear and reasonable likelihood of their doing so resulting in harm to those under the state’s care. In both of these cases the discussion involved the notion of risk of harm. In the previous chapter we saw that risk of harm was employed inappropriately by gun-ban advocates in a way which undermines the right to life. In this chapter we have seen that, properly used, risk of harm provides the key principle in guiding state policy on the question of foreign fighters and TCN s.

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So far, so good. But what about cases in which there seems to be a clash or tension between the state’s responsibility to uphold citizens’ right to life, on the one hand, and the state’s responsibility to remain neutral about ways of life, on the other? In the next chapter I consider one set of such cases, those of assisted suicide and euthanasia (as well as the associate question of brain death), and in the chapter that follows I consider the even more challenging cases of abortion and infanticide.

3 Assisted suicide, euthanasia and brain death

The question this chapter addresses is that of what policy a liberal state which seeks to fulfill its obligation to pursue the ideal of liberal neutrality ought to adopt on whether appropriately qualified medical personnel (and perhaps others under certain circumstances) ought to be permitted by law to assist individuals in committing suicide or to carry out euthanasia. This is without doubt one of the more contentious public policy questions under debate today. This chapter will also analyze a related issue, one that seems on the face of it to be less problematic but which turns out to present the policymaker with a significant challenge—the question of what policy to adopt on what criterion to employ to determine whether or not a human life has ended.

Assisted suicide and euthanasia It is important from the beginning to clarify the terminology being used in this chapter, as the terms “assisted suicide” and “euthanasia” are used in different ways by different contributors to the debate on this issue, and matters are further complicated by the use of further terms such as “assisted dying” and “medicalized killing.” Furthermore, as we shall see, clarifying the terminology goes a long way to clarifying what appropriate public policy on these issues should be. The term “euthanasia” comes from the Greek and is literally translated simply as “good death.” However, it has become almost universally associated with deaths which are intentional and which 45

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involve the intervention of a second party. Jeff McMahan defines euthanasia as follows: An act of euthanasia, as I will understand the term, is an act of killing or of letting someone die that satisfies two conditions: first, that death benefits, or is good for, the individual who dies and, second, that the agent must be motivated to do what is good for that individual and must intend to benefit the individual in bringing about his death. Even if an act that brings about a person’s death is intended thereby to benefit the person, it does not count as euthanasia if it is not in fact good for that person. If it would have been better for the person to continue to live, the act may be an instance of intended euthanasia or attempted euthanasia, but it is not actually euthanasia. Similarly, if an act of killing or letting die is not intended to benefit the individual who is killed or allowed to die, it does not become an act of euthanasia if, fortuitously, it turns out to have been better for the individual to die rather than to continue to live.1 McMahan builds on this by distinguishing between voluntary, nonvoluntary and involuntary euthanasia.2 The key factor that distinguishes between these categories is the question of the intention or consent of the subject of the act of euthanasia. So “voluntary” euthanasia is, in McMahan’s terminology, euthanasia in which the subject actively intends his or her death, while “nonvoluntary” euthanasia takes place where it is not possible to ascertain the subject’s intentions (in cases where, say, she is in a coma). Finally “involuntary” euthanasia is euthanasia carried out against the known wishes of the subject. As I will argue below, I agree with McMahan that consent is a key issue that policymakers must weigh in forming policy on this issue. To that end I shall make the distinction clearer by using slightly different terminology. In particular, what McMahan refers to as “voluntary” euthanasia—“when a person freely and autonomously requests or consents to be killed or allowed to die for his own good”3—I shall instead call “assisted suicide.” This distinction helps address an issue McMahan acknowledges, that (following the definitions he uses) “ ‘[s]uicide’ and ‘euthanasia’ are concepts with blurred edges. It is often unclear whether a certain act counts as suicide or whether an act is an instance of euthanasia.”4

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Using the term “assisted suicide” to cover what McMahan refers to as “voluntary euthanasia,” avoids this problem, as there is then no conceptual problem to be solved. This makes intuitive sense, too, for if we set aside any pejorative connotations associated with the term “suicide,” it seems difficult to see why “voluntary euthanasia” should not be seen as simply “assisted suicide.” While McMahan does not say so explicitly, it seems his reason for not adopting the term “assisted suicide” is because in one sense it seems too broad for his purposes in that it does not capture the requirement in his definition of euthanasia that the death in question “benefits, or is good for, the individual who dies and . . . the agent [causing the death in question] must be motivated to do what is good for that individual and must intend to benefit the individual in bringing about his death.”5 Very often when we hear of the suicide of someone we know, or some public figure, we will say something along the lines of “What a tragic waste! He had so much to live for,” implying that we believe the death in question did not in fact “benefit,” or was not “good for,” the person concerned. And we might add something like “What was she thinking?” or “She must have been out of her mind with grief at the time,” implying that we believe that the person concerned was either not motivated to do what was good for her, or was not able to make sound judgments about what was good for her. Such assessments are entirely appropriate for us as individuals, viewing the death through the lens of a conception of what is good and right and meaningful and valuable. But what McMahan has overlooked is that, if we are to use the term “euthanasia” in the context of public policy (which is, of course, the context in which it matters most), it is inappropriate to include considerations of what “benefits” or is “good for” the individual concerned. That is because for the state to decide what “benefits” or is “good for” the individual in such cases is at odds with the state’s responsibility to maintain a position of liberal neutrality. “But,” you might respond, “states make judgments all the time about what benefits or is good for their citizens, and we do not think that inappropriate—indeed, it’s hard to imagine how a state would function were it not to make such judgments.” This is unquestionably true, but to think this rejoinder undermines my claim that there is no room for such judgments in forming policy on the questions of euthanasia and assisted suicide misses an important

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point. In most cases where states form policy on the basis of assessments of what benefits or is good for those under their care, they do so under the reasonable assumption that there are certain factors which must be in place for individuals to live out their conceptions of the good, most notably a base level of financial wellbeing, good health, and life itself. Notice also that in most cases (and certainly in the most defensible cases) the policies in question are designed to make what is adjudged to be beneficial to, or good for, citizens available to them, but it is not forced upon them. Thus an individual may—so long as she is in adequate mental health and able to make meaningfully free choices—choose not to avail herself of, for example, state-provided health care or unemployment benefits. Now let’s return to the case at hand. In deciding state policy over whether it is appropriate to end the life of someone who cannot meaningfully express his or her choice in the matter, or who has expressed his or her choice in the matter, the normally reasonable assumptions that continued life or the minimization of suffering are necessary underpinnings for pursuing a conception of the good do not apply. Whether or not continuing to live is good is precisely the question in this case, it cannot be treated as an assumed enabler. For the state to make a judgment of what policy to pursue in this regard, based on an assessment of what benefits or is good for its citizens, amounts to the state favoring some conceptions of the good over others, which is at odds with the principle of liberal neutrality. One of the most common arguments for euthanasia (so common that it has been smuggled into McMahan’s very definition of the term) is that a person who is experiencing significant suffering, and for whom that suffering cannot foreseeably be alleviated, benefits (all other things being equal) from having her life—and with it her suffering—ended. It is this conception of “benefit” that underpins much of the debate over what public policy over euthanasia should entail. This assumes a conception of the good in which avoiding suffering can under some circumstances be decisive. But what about conceptions of the good which emphasize stoic (or Stoic) endurance even where there is no hope of relief, or conceptions of the good in which obedient submission to the trials sent by God is what matters most? These and similar conceptions of the good are excluded when what “benefits” or is “good for” individuals is defined predominantly in terms of a lack of suffering, and the principle of liberal neutrality is violated.

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If we remove the idea of benefit from McMahan’s definition, because including it is at odds with the principle of liberal neutrality, “euthanasia” becomes simply “an act of killing or of letting someone die.” Because I am narrowing the concept of euthanasia to exclude assisted suicide, we can further narrow the definition as follows: euthanasia is an act of killing or of letting someone die which is either nonvoluntary (that is, it takes place where it is not possible to ascertain the subject’s intentions) or involuntary (carried out against the known wishes of the subject). We should add, also, that euthanasia applies only to cases where the subject is not otherwise liable to being killed—the category of euthanasia thus excludes such killings as legally sanctioned executions and defensive killings. Assisted suicide, on the other hand, is an act of killing or of letting someone die (or assisting the subject in carrying out said act) under circumstances in which the subject’s death is voluntary. So defined it becomes obvious what appropriate state policy ought to be regarding euthanasia and assisted suicide. Of course the state may not allow citizens to kill or deliberately allow the death of fellow citizens without their consent or against their wishes, in cases where the subject is not otherwise liable to being killed. Policy that would allow such killings is a direct and clear violation of the state’s duty to uphold citizens’ right to life. Without including the inappropriate “benefit” clause in the definition as a limiter, legalized euthanasia becomes nothing more or less than a state-issued license to murder. On the other hand the principle of liberal neutrality requires that states adopt policy allowing suicide. This is because, as discussed above, the choice of whether or not to continue living is intrinsic to individual conceptions of the good. Some might argue that this argument cannot stand because John Locke, perhaps the most central figure in the development of the philosophy of political liberalism, argued strongly against a right to suicide. However Locke’s arguments against suicide are not framed in the terms of political liberalism but rather in the terms of Christian theology.6 While such considerations obviously can and do provide compelling reasons for individuals to reject suicide (myself included), their application in the justification of state policy is a violation of liberal neutrality. Likewise with arguments against suicide based on “sanctity of life”7 and “respect for the worth of persons”8 considerations—as compelling as they may be for individuals, they

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cannot form the basis of state policy. If state policy may not disallow suicide on the grounds that to do so would violate liberal neutrality, then there is no good reason, all other things being equal, why the same should not apply to assisted suicide. Of course there are important epistemic challenges here, and states have a parallel responsibility to put in place checks and balances to ensure that the person seeking to end his or her life has made his or her decision in a fully informed manner and with sufficient mental capacity to ensure the decision is genuinely a free one. Because of the weight of the right to life, the epistemic bar should be set high in this regard (though not so high as to effectively nullify the right to suicide) in order to minimize the moral risk of unduly violating a citizen’s right to life. Likewise, and for the same reason, the epistemic bar should be very high in borderline cases such as where a person is unable to give clear and direct consent to ending his or her life (because, say, he or she is in a coma), but where there is a strong argument that such a decision is consistent with that person’s known views and conception of the good. In such cases the moral risk associated with ending a life must clearly weigh more heavily than the moral risk of unduly restricting or undermining an individual’s right to pursue the good as she understands it (I will explore this notion of “moral risk” in more detail in the next chapter). A distinction that is often taken as important in these debates is that between “active” and “passive” assisted suicide or euthanasia. “Active” assisted suicide would involve a second party taking active measures (such as injecting a lethal cocktail of drugs) to ensure the death of the subject, while “passive” assisted suicide would involve withholding or withdrawing the means necessary for the subject to continue to live. Likewise “active” euthanasia would involve a second party taking active measures to ensure the death of the subject, while “passive” euthanasia would involve withholding or withdrawing the means necessary for the subject to continue to live. Clearly, given the preceding discussion, both “active” and “passive” euthanasia are equally inappropriate—we do not draw a strong distinction between “active” and “passive” murder. But what about the case of assisted suicide? This distinction might, perhaps, be an important one for the individual tasked to carry out the killing in question.9 But from the perspective of public policy it is hard to see why there should be any distinction here at all. What matters is that

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the individual seeking his or her death be allowed the opportunity, all other things being equal, to pursue his or her conception of the good.

Public policy and brain death What of the classic question, “Can we turn off the life support?” Clearly, in the light of what has been discussed so far, where the person concerned has (epistemic considerations permitting) consented to the ending of his or her life, doing so would be entirely appropriate. On the other hand, where consent is not in place, and the person concerned is still clearly alive, turning off the life support cannot be permitted. But what of cases in which the question of whether the person concerned is, in fact, alive comes into play? Of course if a person is in fact dead, there is no requirement on the state or anyone else to keep the body functioning, but the challenge lies in determining at what point the person concerned has ceased living. While in the past a person was considered to be dead when her body, particularly her heart and lungs, had stopped functioning (what is sometimes referred to as “the traditional standard of cardiopulmonary death,)”10 modern medical technology allows for the key organs that keep the body’s respiratory and circulatory system functioning to be kept operational using external machinery. As a consequence the idea of “brain death” has come to the fore, with this concept providing the legal basis for a declaration of death in many jurisdictions. But should public policy allow medical professionals to withdraw life support after the subject has been declared brain dead? In a recent (2014) paper in The New England Journal of Medicine entitled “Accepting Brain Death,” three U.S. based bioethicists— David Magnus, Benjamin Wilfond and Arthur Caplan—argued for the appropriateness of brain death being taken as the “bright line” for public policy on the withdrawal of life support where a diagnosis of the patient’s death is the decisive issue (that is, in cases other than assisted suicide or euthanasia). As they point out, the idea of “brain death has become well entrenched as a legal and medical definition of death. It is clearly defined by the neurologic community . . . standards for diagnosis are in place, and it is established in law. It has become the primary basis of organ-procurement policy for transplantation.”11 Despite this, the authors recognize that acceptance

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of the idea that brain death is the end of life is not universal, and has faced criticism from some quarters: The primary objections focus on inadequacies in the philosophical rationale for the concept that the unifying functioning of the body has been lost with loss of brain functioning, combined with a concern that biologically, there is still a sense that the body is alive, often long after brain death occurs. Wound healing can continue to occur, most organs continue to function for some period, hormonal and body-temperature regulation may be maintained. It has been reported that a child’s growth can continue. And as the Muñoz case12 demonstrates, a pregnancy can be maintained even after the pregnant woman has met the neurologic criteria for death.13 Magnus and his colleagues recognize that the lack of universal acceptance of the brain death criteria for death raises “severe difficulties for public policy.” While they acknowledge that “[i]n a society tolerant of individual values and views, family views are appropriately given great weight in deciding exactly when to discontinue mechanical support,” they nonetheless contend that “the decision reached by the medical and particularly the neurology community to articulate and promulgate the concept of brain death as the right place to draw the line between life and death is extremely reasonable,” and should not be replaced by “a more fluid and variable standard.”14 Beyond appeals to the general acceptance of the brain death standard, the authors give a number of reasons in support for their position, as follows: 1 The alternative medical standard, “irreversible cessation of circulation,” has not achieved sufficient consensus in its diagnosis to serve as a useable test. 2 “If brain death were not defined as death, it would be more difficult to justify routine decisions to discontinue mechanical support in this context.” 3 The brain death standard offers “clear medical criteria that can be reliably and reproducibly utilized to determine that death has occurred” thereby ensuring that, so long as professional standards are upheld, “there are no false positives.”

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4 “Brain-dead patients are clearly past the point of any possibility of recovery.” 5 “Medical and legal acceptance that the irreversible loss of brain functioning is death enables families to grieve the loss of their loved ones knowing that they were absolutely beyond recovery, as distinct from patients in a coma or a vegetative state. It errs on the side of certainty when organ procurement is requested.” 6 The brain death standard offers a clear and unambiguous way to determine “who is recognized as a person with constitutional rights, who deserves legal entitlements and benefits, and when last wills and testaments become effective.” 7 “Rejecting brain death by shifting toward a more fluid and variable standard might undermine support for cadaveric organ donation. The ‘dead-donor rule,’ a fundamental concept of transplant ethics, requires that patients not be killed by the removal of vital organs necessary for life.”15 It’s noteworthy that, with the possible exception of point 4 (which employs an implicit standard of what counts as a worthwhile life), all of these considerations are consequentialist in nature. And the potential consequences of not sticking to the brain death standard which they point to are without doubt very significant, ranging from the value of clarity in medical decision-making to the potential of lives lost because of the potential impact on the practice of cadaveric organ donation. Still, for all their weight, the policymaker should be cautious about being swept along by such considerations. To see why this is so, imagine the idea arose in society that a certain level of cognitive function is the baseline threshold for human life, and people who we now think of as being alive but who are suffering from certain mutations of the Fragile X Mental Retardation 1 (FMR 1) gene are in fact not alive at all, but are instead best considered to be high-functioning dead people—zombies, in effect. Imagine further that this came to be accepted by the medical profession, and the FMR 1 test came to be accepted as an end-of-life standard. In such circumstances, would the considerations raised by Magnus and his colleagues (including point 4) not be just as applicable? It is of course a fanciful notion, but I hope that rather

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than resorting to the “that’s just silly” response the reader will see the point I am trying to make, namely that consequentialist considerations, even very weighty ones, do not trump the state’s very weighty responsibility to ensure that it does not violate the right to life of those under its care.16 Of course this still does not resolve the key question: whether or not applying the brain death test (or the FMR 1 test, for that matter) does, in fact, violate the subject’s right to life. Here we once again run into the principle of liberal neutrality, which Magnus and his colleagues acknowledge—albeit somewhat reluctantly—with their mention of “a society tolerant of individual values and views.” The reason this raises “severe difficulties for public policy” is that it cannot be pretended that simply providing the consensus medical criteria for death answers the question. For what this criterion does is offer a scientific criterion for a metaphysical answer to a metaphysical question—when does human life end? The brain death test is based on the assumption that human life, or at least what matters about human life, is fundamentally about cognitive function. Here the idea is that, as Descartes argued, cogito ergo sum (“I think therefore I am”), and so when I think no more I am no more. If that is so, then of course brain death is a sensible test for death (at least until such time as we are able to continue thinking without brains). But this is only one view about what constitutes life in a meaningful sense, and there are others. Consider, for example the many variants of religion-based conceptions of life, involving such concepts as immaterial souls. Some of those conceptions of life might, coincidentally, take brain death as the end of life (Descartes himself, famously, thought that the pineal gland, a small gland in the middle of the brain, was the seat of the soul, so presumably he would have agreed with the brain death criterion even though his idea of a noncorporeal soul was somewhat in tension with the cogito).17 But other conceptions of life will not see the point of death as coinciding with brain death and will instead be more likely to see death as occurring at the moment of the cessation of cardiopulmonary function. So the policymaker who is committed to seeing through her duty to uphold both liberal neutrality and the responsibility to not violate citizens’ right to life is left with a pressing dilemma. On the one hand, if the brain death criterion is rejected in favor of the cardiopulmonary test, then the very significant consequences that Magnus and his colleagues point to will likely follow, most serious

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among them being the possibility of other lives being lost unnecessarily because of an erosion of support for cadaveric organ donation. On the other hand, if the traditional standard of cardiopulmonary death is in fact correct, as some conceptions of life insist, state policy which applies the brain death criterion will in effect be a systematic violation of citizens’ right to life. To make matters worse, the principle of liberal neutrality means that the policymaker may not come to a decision about which is the correct metaphysical position on the end of life, for to do so would be in effect to favor one conception of life over another (or one set of conceptions of life over all the others). So what’s a poor policymaker to do? The first thing the policymaker must do is establish whether or not all of the competing positions being weighed up meet the test of reasonableness. The principle is that the state is only under a responsibility to weigh up competing moral conceptions of the kind being addressed here when those conceptions can properly be considered, at the time that the policy is being assessed, to be reasonable. Here I have in mind something broadly akin to the “reasonable person” test in common law. Whereas in law the question is whether or not a particular act falls short of the test of what a reasonable person might have done in the same circumstances, the test of reasonableness I am proposing here is whether or not the claim or position under consideration is one that could reasonably be believed in the society in which the policy question is being considered. What exactly defines reasonable belief of this kind is not easy to say, and I can only take comfort from the fact that it is a problem shared by the reasonable person test too. Still, there are at least two conditions that seem necessary (if perhaps not sufficient) for the test to be met. First, to meet this particular reasonableness test, the claim or position or view in question must be one which is held by a significant proportion of the population that the state governs (let us call this the “sufficient support requirement”). Defining exactly what that proportion is will unavoidably involve a degree of arbitrariness, and so should probably be set by democratic agreement (thus while majoritarianism does not override the considerations of liberalism, democratic agreement appropriately guides the application of liberal principles). But whatever exact proportion is settled upon, it is necessary to avoid state policy being driven by extreme minority views. Consider, for example, the

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strongly held view espoused by the ancient Greek philosopher Pythagoras and his followers that it is morally prohibited to eat, or even touch, beans (indeed, legend has it that Pythagoras met his end because, when fleeing a group of his enemies, he refused to run into a field of beans in order to escape). Perhaps there are people today who accept and follow this Pythagorean imperative, but if there are such people there are likely very few of them indeed, and so it would clearly be unreasonable to have state policy shaped by such a minority position. The second requirement for reasonableness, it seems to me, is that the position or view or claim in question must be the focus of a significant body of serious and respected argument put forward in its favor by people recognized in society as intellectually credible (call this the “intellectual credibility requirement”). This is, of course, not to say that the position or view or claim in question must be generally accepted in intellectual circles, but rather that there is sufficient argument of sufficient quality in favor of the position or view that opponents acknowledge there is a meaningful claim to be answered. Consider, once more, the example of the Pythagorean imperative against eating or touching beans. There is, to my knowledge, no serious argument which has been put forward in support of this position—scholars are not even sure what led to Pythagoras adopting this position (among the more amusing theories I have heard is that Pythagoras felt that beans—presumably due to their shape—were akin to testicles; or that the flatulence associated with eating beans was taken by Pythagoras to be an indication that beans have souls, which escape from the body of bean-eaters in the form of farts). Setting aside the frivolous example of Pythagoras and his beans, let us now return to the case at hand. Do the competing positions over the question of the end of a human life meet the reasonableness requirement? To start with the second requirement first, it seems to me that both positions meet the intellectual credibility requirement. While there is significantly more support expressed in journal articles, scholarly books and the like in favor of the brain death criterion, there is—at least it seems to me—also sufficient support for the traditional cardiopulmonary test among those recognized as intellectually credible to say that this position also meets the intellectual credibility requirement. The question of whether the other requirement, the sufficient support requirement, is met will depend on

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the society in which the question is being asked. In a largely secular society such as Australia, for example, it seems to me that only the brain death criterion is sufficiently well supported among the populace to meet this test. So in Australia (if I am right), it seems this is the criterion which ought to be applied.18 On the other hand, in states which have populations which are almost entirely composed of people who hold to conceptions of life that reject the notion of brain death, such as countries where belief in religions such as Catholicism or Islam is pervasive, then policymakers committed to the principle of liberal neutrality ought to impose the cardiopulmonary criterion. While the reasonableness test resolves the issue in many cases, this does not settle the issue in countries where the population is made up of a significant number of people on either side of the debate and in which both sides meet the reasonableness test. In such a situation the liberal-minded policymaker still seems to face a dilemma. State withdrawal not being a possibility on this issue, it seems as though she must compromise liberal neutrality by choosing one conception of life over another, or one set of conceptions of life over the rest. In this case, however, there is a compromise policy option available to the policymaker which avoids this problem. The answer here, it seems to me, is to adopt a position which accommodates both conceptions of life. Such a policy would set the legal bar for the end of life decision at the cessation of either brain function or unassisted19 cardiopulmonary function, whichever of the two lasts longest. This approach effectively negates any risk that the enactment of state policy might unduly violate the right to life of any of those under its care, and maintains liberal neutrality by not favoring one conception of life over the other. This approach may perhaps make current practices of cadaveric organ donation more difficult, however the preceding discussion of assisted suicide means this consequence could be mitigated by having prospective organ donors state clearly in advance their desire to have their cardiopulmonary function stopped should their brain function cease, or (though this seems unlikely) vice versa.

Conclusion This chapter has examined the challenging policy issues of assisted suicide and euthanasia, and the related question of the legal criterion

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for when a human life is determined to have ended. Applying the principle of liberal neutrality to the former set of issues gives a clear and unambiguous answer—public policy should allow assisted suicide, but not euthanasia (where that is understood as causing the nonvoluntary or involuntary death of the subject). Applying the principle of liberal neutrality to the question of whether brain death or cessation of cardiopulmonary function ought to serve as the legal marker for the end of a human life produced a more complex answer. In some states, depending on the level of support for the competing positions in the society concerned (or, rather, the lack of support for one of these options), policymakers could appropriately select one or the other criterion. More commonly, though, the most appropriate policy position will be a compromise in which the end of life will be taken to occur at the cessation of either brain function or cardiopulmonary function, whichever of the two lasts longest. As challenging as these issues are, either a commitment to liberal neutrality makes the appropriate policy directly clear (as in the case of assisted suicide and euthanasia), or the application of the reasonableness test provides clear direction, or else a compromise solution is available to ensure that liberal neutrality is maintained (as in the case of policy over the end-of-life criterion). The most challenging policy issues, however, are those where the reasonableness test does not close the issue, and the circumstances are such that no compromise solution is available. In such cases neutrality of outcome simply cannot be maintained. However there is a way in which liberal neutrality can still be respected, a way which ensures neutrality of justification and neutrality of intent. And that is by making the unavoidable choice between the competing options based on what I call the “risk of harm principle.” The idea here is that the decision is made by taking an agnostic stance toward the competing positions, and selecting the best available option based on which of the policy options available poses the least moral risk of causing harm if the position or positions excluded by the imposition of that policy option turned out to be, in fact, true. This idea of applying a balancing of moral risk as a means of deciding in such cases is undoubtedly a controversial one, and one which requires significant explanation. That is the main purpose of the next chapter, which explores this idea through the lens of the debate over public policy on abortion and infanticide.

4 Abortion and infanticide

“There are many reasons why abortion remains one of the most intractably controversial of all moral issues. But the main reason is that the moral and metaphysical status of human embryos and fetuses is shrouded in darkness.”1 So says Jeff McMahan in his influential book The Ethics of Killing: Problems at the Margins of Life, and he is certainly correct in this regard. While there are arguments in favor of abortion which are not based on the idea that human fetuses have reduced moral status in comparison to adult human beings, (such as those based on Judith Jarvis Thompson’s “famous violinist” thought experiment which I will consider later in this chapter) the arguments which have impacted on the public policy shift to legalizing abortions over the last half century and more are all to some degree based on the conclusion that fetuses do not warrant the status of human persons, and so it is on those arguments that I will focus first. McMahan points out that there are essentially three broad understandings of the nature of human personhood which underpin different responses to the question of the legitimacy of abortion. First there is the view, tied to religious understandings of the world, that we are at essence incorporeal souls and it is this which gives us our moral value. Second, there is what we might call the “biological view,” a reductive view which sees us as essentially organisms. Finally, there is the “psychological continuity view,” which accounts for human personhood—that which makes us objects of significant moral concern—in terms of our beliefs, hopes, memories, desires and so on. The latter position is also reductionist, and as McMahan explains reductionist positions hold that the continued existence of someone such as you or me consists in the holding of various physical or psychological 59

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continuities over time. According to these views, there is a certain relation (other than identity itself) or set of relations that must hold between a person at an earlier time and a person at a later time in order for it to be the case that these persons are one and the same person at different times. Once we know what this relation or set of relations is, we will be able to determine both when individuals like ourselves begin to exist and what is essentially involved in our ceasing to exist. To determine when we came into existence, we begin with ourselves now and track the relevant relation or relations back through the past to the time at which there first existed an entity related to us in the relevant way. It was then that we began to exist. And what is, in all normal cases, involved in our ceasing to exist is that there will no longer be anyone in the future who will be related to us in the relevant way.2 Each of these three general approaches encompasses a plethora of sub-variants. For example McMahan points out that Christian positions on human personhood, while in most cases united by a belief that we are at essence souls, nonetheless break down into at least three sub-categories, as follows: “(1) that we are souls that are distinct from our organisms, (2) that we are entities that consist of two parts—a soul and an organism—with the soul being the essential part, and (3) that we are each an essential union or fusion of soul and organism.”3 McMahan himself advocates what he calls “The Embodied Mind Account of Identity,” which combines elements of the biological view and the psychological continuity view, and defines the criterion of personal identity as “physical and minimal functional continuity of the brain.”4 Speaking very roughly, those who take human personhood as having its locus in the soul tend to view abortion in general as morally objectionable, while most who hold one of the reductionist views generally allow for abortion up to some defined point in the fetus’s development, but believe abortions which take place late in the pregnancy to be more morally problematic. Others, like McMahan himself, take a more radical position: [T]he position I have developed on the morality of abortion is in essence quite simple. Early abortions . . . do not kill one of us but merely prevent one of us from existing. Other things being equal,

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these abortions are morally indistinguishable from contraception. Late abortions, by contrast, involve the killing of someone who, in most cases, would otherwise have had a long life that would have been well worth living. But because the developed fetus is almost totally isolated psychologically from the person it might later become, its time-relative interest in continuing to live is very weak, despite the magnitude of the good that lies in prospect for it. Moreover, because the developed fetus’s rudimentary cognitive capacities are significantly lower even than those of various animals, it is outside the scope of the morality of respect; hence the killing of a developed fetus is properly governed by the Time-Relative Interest Account of the morality of killing. These two claims—that the central moral objection to killing a developed fetus is that this would frustrate its time-relative interest in continuing to live and that this time-relative interest is comparatively weak—together imply that the killing of a developed fetus is substantially less seriously objectionable than the killing of a person, and perhaps not seriously objectionable at all, if other things—such as the effects on the biological parents—are equal.5 Most controversially, McMahan’s position extends (as does that of Peter Singer)6 to a justification, in some cases,7 of infanticide: It should be obvious that the two claims that support the argument for the permissibility of abortion apply equally to a newborn infant. If it is the actual possession of certain psychological capacities (and not just the potential for having those capacities) that is the basis for inclusion within the morality of respect, newborn infants must be excluded from the realm of respect just as surely as developed fetuses are. And because the prudential unity relations would hold only weakly between a newborn infant and itself later as a child or adult, its time-relative interest in continuing to live is also comparatively weak. Therefore the same considerations that may permit the killing of a fetus in order to protect a pregnant woman’s interests should also permit the killing of a newborn infant if there are comparably weighty reasons for doing so.8 This brief summary of the debate over the permissibility of abortion and infanticide does no justice to the vastness of the literature on

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this topic or the enormous complexity of the arguments for and against the many different positions in the debate. It will, however, suffice for the purpose of the argument being developed in this chapter. For the relevant question for policymakers is not, as is often assumed, about which of the positions in the debate over abortion is the correct one. Instead, the burning question is about what the appropriate response to this issue by policymakers constrained by the principle of liberal neutrality should be.

Abortion, infanticide, liberal neutrality and moral risk As discussed in the previous section, the central question at the heart of the dispute over whether abortion or infanticide ought to be legal or not lies in metaphysical questions over the nature of human personhood. These are deep waters indeed, and the nature of the debate has direct bearing on the issue of liberal neutrality. As we have seen, this is an issue for liberalism because of what Gerald Gaus calls The Fundamental Liberal Principle, the view that “freedom is normatively basic, and so the onus of justification is on those who would limit freedom, especially through coercive means.”9 States ought to pursue policies which maximize liberty as much as possible. The issue of abortion and infanticide, however, is one in which the option is simply not open to the state to “step back” and allow its citizens to freely choose for themselves, for doing so would amount, in effect, to an unprincipled favoring of one understanding of human flourishing over the other(s). So this issue presents a dilemma—how should the state which is committed to fulfilling its responsibility to pursue liberal neutrality decide on appropriate policy in this case? As I suggested in the previous chapter, I believe the answer lies in what I call the “risk of harm principle”: states should weigh the policy options available without directly or indirectly making a judgment on the legitimacy of the metaphysical claims underpinning the arguments in favor or against each policy option, but should instead evaluate the potential moral risk inherent in each policy option based on the artificial assumption (tests of reasonableness permitting) that all of the competing metaphysical claims are equally likely to be true, and choose the

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policy option that is, on that basis, on balance the least morally risky option available. While this approach will not be able to preserve neutrality of outcome—simply because no policy can achieve that in this case—it succeeds in ensuring neutrality of justification and neutrality of intent. Thus while liberal neutrality is not (and cannot be) fully achieved in this case, the approach I propose is consistent with liberal neutrality as an action-guiding principle and an ideal. At this point it is important to note a limitation on the discussion in this chapter. Abortions can be divided into two categories, sometimes referred to as therapeutic abortions and elective abortions. Therapeutic abortions are carried out for medical reasons, most notably where for some reason the pregnancy represents a serious threat to the life or health of the mother. Elective abortions, on the other hand, are those that are carried out for non-medical reasons, such as a woman’s decision that she does not wish to have a child, or not have one at this time, or not have one with this particular sexual partner, and so on. Many who are strongly opposed to elective abortions accept that in some cases therapeutic abortions might be morally appropriate, and I take it therefore that the primary locus of the debate over this issue lies in state policy on elective abortions. Given the broader purpose of this book, I will for simplicity restrict my discussion to state policy on elective abortions. My approach here is largely inspired by a paper by Dan Moller in which he applies the issue of moral risk to individual decisions over whether or not to seek an abortion. He introduces the idea of moral risk in general as follows: Suppose that you are considering performing some act A that you are worried might be wrong. Perhaps someone has presented you with an argument which purports to show that A is morally objectionable. Suppose, further, that after due deliberation you ultimately conclude that the argument fails, as do all the other anti-A arguments you know of. Is this the end of the matter? Should your deliberations be at an end after responsible consideration of the available arguments? The surprising answer is “No”, according to a line of thought with roots in Catholic tradition and more recently echoed in certain decision-theoretical approaches to morality. On this view,

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the mere risk of making a deep moral mistake rules out certain acts. If this were true, first-level deliberation about one’s actions would not be enough; we would need to proceed to second-level deliberation about the risk of being mistaken at the first-level, and doing so might rule out or at least count against A.10 To make his point, Moller gives us the example of a husband who, on the basis of complicated market calculations, decides to invest everything his family has in a certain company’s stock. In response his wife points to opposing market assessments that suggest a likely decline in that company’s stock. The husband rejects this rejoinder, however, claiming that his highly sophisticated economic analysis shows those opposing views to be mistaken, and states his firm belief that the possibility of his assessment being incorrect is virtually nil. “What,” Moller asks, “is [the] husband missing? The obvious answer is that he is failing to consider how easy it is to go wrong when engaging in complicated financial reasoning. That may not be a reason for him to change his views, but it seems like a very good reason for him to acknowledge a significant possibility of error.”11 The analogy with abortion is clear. The various positions in the abortion debate are based on complex moral reasoning. But, like complex financial reasoning, “when doing complex moral reasoning, all of us are liable to make mistakes from time to time. . . . [T]his may not itself give us a reason to change our views, but it does seem to be a reason to concede that there is a non-negligible possibility of error in assessing arguments [about abortion].”12 Moller continues as follows: The question, now, is this: how confident should we be about our judgments as to the correct theory of personal identity or the role that grouping intuitions play in thought-experiments about kidnapped violinists? And my suggestion is that we shouldn’t be all that confident, given how difficult and obscure these questions are. Evidence for this comes in the form of realizing how often we’ve changed our minds about such matters, and how often we think highly intelligent people like us get these things wrong (for instance, those benighted philosophers who disagree with us). The great minds of the ages have struggled to make sense of these issues, seeking in vain to generate arguments clear and

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persuasive enough to put an end to our collective perplexity. So to say the least, it looks like there is some non-negligible chance of being wrong. . . . [T]he subject matter involved is the sort of thing it is all too easy for people like us to be mistaken about; abstruse moral reasoning involving far-out cases and complex principles is something we find very difficult and are disposed to get wrong reasonably often. In this regard the claim about the possibility of moral error is no different than other kinds of errors. . . . Abortion involves taking a moral risk because there is a non-negligible possibility of wrongdoing even if we have decided that the arguments against abortion fail. And there is certainly a lot at stake: if we are mistaken and have an abortion, we are doing something deeply wrong.13 Of course, as Moller points out, the mere existence of moral risk is not enough to tell us that some course of action is one we ought to avoid.14 “What we should consider, presumably, is the net moral risk involved in doing A—the risk involved in acting minus the risk involved in omitting.”15 Having weighed the risks Moller concludes that “the net moral risk involved in abortion is overwhelmingly on the side of having an abortion, at least in most circumstances.”16 While Moller applies his analysis at the individual level, the question being addressed is located at the policy level—is a state’s policy of allowing legal elective abortion appropriate? Moller does touch on state policy briefly, primarily to caution against applying his conclusion regarding individual abortion directly to the policy level: It might be tempting to extend this reasoning to the policy context, but we should be quite cautious. In the personal case, the agent sometimes has reason to accept higher personal costs in order to avoid moral risks. But in the case of the legislator things look different: the legislator won’t (typically) bear the costs imposed by criminalizing abortion—women citizens will. The structure of the legislator’s decision is whether to impose large costs on many women in order to rule out a possible wrong. Suppose that abortion is permissible after all. In that case, imposing those costs would be deeply wrong. So in the case of the legislator, it is less clear that we can generate the kind of asymmetry in risk that we have seen is critical to getting moral

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risk to apply. Legalizing abortion is risky, since it might amount to legalizing a serious wrong; criminalizing abortion is risky since it might amount to gratuitously imposing enormous costs on women. Obviously much more could be said about this, but in any case we should not assume the extension to the political and legal realms to be a straightforward matter.17 While Moller is right that the legislator will not, on the whole, bear the costs imposed by criminalizing elective abortion, it seems to me he overstates the impact of that fact on the argument. The key issue here is that, if the wrong decision is made, very significant costs will be incurred, either by women who fall pregnant with unwanted pregnancies, or by the unborn. In terms of the second-level deliberation of moral risk assessment, the decision must go to the side which offers the least potential risk of harm if the decision turns out to be incorrect. And this seems clearly to point to a policy which recognizes that allowing elective abortion is the riskier choice. For one thing, this assessment respects the widespread intuition that, except perhaps in the most extreme cases, causing hardship to a person is less morally serious than causing a person’s death. From a policy perspective there are, furthermore, opportunities to ameliorate the hardship to women which a ban on elective abortion might cause, through such policy mechanisms as subsidized or free health care for pregnant women and mothers of young children, subsidized and efficient adoption mechanisms, education grants, job protection for mothers, and so on. There are, on the other hand, no ways for states to ameliorate the harm caused by an abortion if indeed abortion results in the death of a non-liable human person. A further second-level consideration that states should weigh here relates to the nature of moral progress. Moral progress, generally speaking, can be described as a process of expanding the scope of those who “count” morally—we need only think of the fight against the slave trade, the struggle for equal rights for women, the civil rights movement, the struggle against apartheid, and so on. Abortion, on the other hand, restricts the scope of those who “count” morally by withdrawing from the fetus the status of human person. Indeed, as we have seen, if the position of some of the liberal thinkers on this issue were made policy, states would also withdraw the legal status of human person from young infants. As Jeff

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McMahan, for example, states: “Considerations of consistency . . . pressure us to accept the permissibility of opportunistic infanticide as well.”18 It seems, then, that a policy that allows legal elective abortions must be considered more morally risky because its trajectory runs counter to the general trend of moral progress by narrowing the scope of those to whom we grant moral status. Overall then it seems that, contra Moller’s caution, the risk is clearly asymmetrical. Given the epistemic uncertainty over the status of the fetus, it seems that states which legalize elective abortions take an unjustifiable risk, even if it turns out that proabortion arguments are correct. States which follow a policy which legalizes abortion are negligent, and if elective abortions do indeed kill non-liable human persons then they are therefore guilty of millions of negligent homicides, a very serious state of affairs indeed. But perhaps this is too quick. As suggested in the previous chapter, there is a further consideration which must be weighed by states committed to liberal neutrality, and that is the reasonableness test. The principle is that the state is only under a responsibility to weigh up competing moral conceptions of the kind being addressed here when both conceptions can properly be considered, at the time that the policy is being assessed, to be reasonable. At this point some readers might contend that the reasonableness test is not met by the majority of those opposed to elective abortions because their position is based on religious beliefs, and religious beliefs are irrational and therefore unreasonable. Why should the irrational views of “wooly-minded faith heads” (as Richard Dawkins is fond of calling those who hold religious views) carry any weight here? There is of course a perennial debate over the rationality of religious belief,19 but all of this is to once again miss the point. Liberal neutrality no more allows policymakers to adjudge the rationality and reasonableness of religious belief in general than it allows them to adjudge the validity or otherwise of the particular metaphysical claims about human personhood in particular that are at the heart of the abortion and infanticide debate. To count as reasonable in this context, the claim or position or view in question must, first, be one which is held by a significant proportion of the population that the state governs (the “sufficient support requirement”). What counts as a “significant proportion” is, as I have said, a difficult question to answer. Still, it is clear

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enough that in some countries, such as the United States, both sides of the debate over elective abortion are sufficiently represented. In other countries where religious belief has waned significantly in recent decades, such as Australia, there is more of a question mark over whether this reasonableness requirement is met. What is certainly clear, however, is that there are currently no liberal democracies in the world in which those who support legalizing infanticide are anywhere close to representing a significant proportion of the population. The second part of the reasonableness test, the “intellectual credibility requirement,” is that the position or view or claim in question must be the focus of a significant body of serious and respected argument put forward in its favor by people recognized in society as intellectually credible. This requirement need not detain us—that there is a significant body of serious and respected argument put forward by intellectually credible champions of both sides of the debate on abortion is undoubtedly true. The same cannot, however, yet be said for arguments in favor of infanticide— though, as we have seen, a number of weighty intellectuals (such as McMahan and Singer) have supported this position, it doesn’t seem to me that there is as yet a sufficiently developed and buttressed body of work on this topic to meet this part of the reasonableness requirement. It seems then, that the reasonableness test—at least in as far as it seems possible to pin down a criterion of reasonableness in this regard—is met by proponents of both sides of the debate, at least in countries where there is a significant proportion of the population that holds anti-abortion views (usually, though not exclusively, based on religious grounds). We seem, therefore, bound to our earlier tentative conclusion that, with the possible exception of states where religious belief has waned to the point of insignificance, states take an unjustified and unjustifiable risk by adopting policy that allows legal elective abortions. There are perhaps two further potential objections to this conclusion. First, it might be argued that the balancing of risk in the direct manner I have proposed thus far does not take into consideration an important asymmetry between the risk of harm which abortion imposes on the unborn, on the one hand, and the harm which a policy of disallowing elective abortion imposes on women, on the other hand. Thus far I have taken it to be the case

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that the very weighty harm of death directly outweighs the hardships which will be imposed on women by making abortion illegal. But, it could be asked, does not the relative certainty of the harms which fall on women, on one side of the scale, make them more significant than I have thus far acknowledged in comparison to the possibility of causing unjustified deaths on the other side of the scale? Related to this is the defense of abortion which is grounded in Judith Jarvis Thompson’s well known “famous violinist” thought experiment. Thompson asks the reader to imagine you’ve woken up one morning to find that during the night a famous but unconscious violinist has been surgically attached to your back, and connected to your kidneys as a kind of “living dialysis machine” to keep the violinist alive for a time until he is able to function on his own again.20 Thompson’s claim is that in such situation you are under no moral obligation to remain connected to the violinist, and that the thought experiment is sufficiently like the case of a pregnant woman considering (elective) abortion that it shows that this course of action is justifiable. What makes Thompson’s approach different is that it makes no attempt to argue that the embryo or fetus can be aborted because it does not attain to the necessary status of personhood—in her analogy the violinist is not only a person, but a famous one at that! Instead Thompson’s claim is that it is the woman’s rights—rights to self-ownership and to privacy—which are decisive in making abortion permissible, regardless of whether or not abortion results in the death of another human being. Thompson’s thought experiment and argument has been subject to numerous objections (for example those based on identifying what are taken to be important disanalogies between her thought experiment and abortion, such as the issue of causal responsibility), and as many if not more defenses. For our purposes, however, the question is whether this argument has any impact at the level of state policy. For it may well be that, other things permitting, an action X is ethically permitted for an individual, but the state is nonetheless entirely justified in preventing individuals from X-ing. States may even, under sufficiently weighty circumstances, restrict or curtail individuals’ rights—except the right to life, that is, for as we have seen it is unique in being non-recoverable. Still, all of us would agree that such restrictions and curtailments are only justified in circumstances which are reasonably considered to be very serious, and to a degree matching the level of gravity of the circumstances.

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So the question here is whether considerations of the pregnant individual’s rights to self-ownership, privacy and the like— considered in conjunction with the lack of certainty about abortion causing the death of a non-liable human person—tip the scale of risk of harm to the degree that my earlier conclusion that states ought not to allow elective abortions is invalid. It is my view that the scale still tips against the state adopting a policy of allowing elective abortion. To show why, in the following section I outline how a state policy of “non-abortion” can be considered to be similar to a state policy of humanitarian conscription.

Non-abortion and humanitarian conscription: general similarities and differences One of the key considerations those in favor of abortion point to in defense of their position relates to the particular nature of pregnancy. McMahan argues it is this which primarily differentiates between the justifiability of abortion, on the one hand, and that of infanticide, on the other: The reasons that may favor killing a fetus are usually considerably stronger than those that may, on occasion, favor infanticide. For the fetus is lodged inside the pregnant woman’s body and is dependent upon the continued use of her body for its survival; therefore the burden it imposes is particularly onerous and invasive. Moreover, there is usually no way of relieving the woman of the burden that does not involve killing the fetus (or, perhaps, letting it die). But because infants exist independently, the sacrifices that they may require from others in order to survive and flourish are of a fundamentally different and usually less burdensome kind. And there are typically ways in which those to whom the burden initially falls can evade it without having to kill the infant—for example, by giving it up for adoption. The burden of caring for an infant can be much more widely distributed than the burden of supporting a fetus. Hence the possible justifications for infanticide are more limited and

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tend to be substantially weaker than the possible justifications for abortion. This may be the principal reason why infanticide is, in general, more objectionable than abortion.21 Whatever we might think about McMahan’s arguments regarding infanticide, we must surely grant that there is something uniquely demanding about the nature of pregnancy, and that where a pregnancy is unwanted those demands are experienced as onerous and invasive. But should recognizing this fact change our assessment about which policy a state committed to the ideal of liberal neutrality should choose? I believe that it should not. To illustrate why, in the remainder of this chapter I will offer a comparison of the harms which are imposed on a woman with an unwanted pregnancy as a result of a policy which does not allow elective abortion, with the harms which are imposed on a citizen who is conscripted into military service for the purpose of conducting armed humanitarian intervention to prevent mass atrocities. For ease of reading, in what follows I will use “non-abortion” as shorthand for a state policy of not allowing elective abortion; “humanitarian conscription” as shorthand for limited term conscription into military service for the purpose of conducting armed humanitarian intervention to prevent mass atrocities; and “conscription” as shorthand for the practice of military conscription in general. To begin, let us consider the general similarities between the cases of non-abortion and humanitarian conscription. The most obvious similarity between policies of non-abortion and conscription is the absence of consent from those on whom the policy is imposed, and the associated curtailments and interruptions of freedoms that citizens normally claim as rightfully theirs. Conscripts find their freedom of movement, freedom of speech, freedom of choice, selfownership and right to privacy significantly curtailed for the period of their conscripted service. Likewise, women with unwanted pregnancies are, in being denied access to elective abortion, forced to accept curtailment of their freedom of movement, freedom of choice, self-ownership and right to privacy for the period of their pregnancy.22 Another similarity is the presence of physical, mental and emotional hardship in both cases. Conscripts must, among other hardships, endure rigorous physical training, Spartan living conditions, extended absences from loved ones (which can result in

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such hardships as failed relationships with existing or prospective life partners), often aggressive and uncaring superiors, mental strain when operating in hostile conflict zones, the emotional weight of actual or prospective killing, possible exposure to graphic and real scenes of death and destruction, and possible exposure to the stress and danger of combat. Women with unwanted pregnancies must, among other hardships, endure significant physical strain on their bodies, exhaustion, the emotional strain of incubating one or more children that they do not wish to form maternal relationships with, possible disruption of relationships with existing or prospective life partners, possible social stigma, possible financial hardship, and the pain and mental strain of childbirth. In both cases there is, furthermore, the economic cost of a significant interruption to career development. There is also the shared possibility that the policies of non-abortion and conscription could result in the death of the individual who is the subject of the policy. In the case of the conscript, the risk of death depends largely on whether or not he or she will be deployed to a zone of armed conflict, and if so on what level of violence characterizes that zone of conflict. In the case of non-abortion, the risk of death depends largely on the level of medical care available. In developing countries where the quality and availability of modern medical care is low, the risk is high: for example, according to 2010 figures published in the CIA World Factbook,23 in Chad the rate of maternal deaths is 1,100 per 100,000 live births. In developed countries, on the other hand, the incidence of maternal death is much lower: for example, in Australia the rate of maternal deaths is 7 per 100,000 live births. A dissimilarity between policies of non-abortion and conscription is the applicability of the notion of conscientious objection. Conscientious objection, usually understood as an objection (on the grounds of pacifism, for example) to the policy of conscription because it may involve the individual in killing does not apply, so understood,24 to non-abortion which is clearly a policy designed to avoid killing. This difference, however, does not have any impact for or against the moral case for a policy of non-abortion, so I will not pursue it here. Historically, conscription has almost exclusively targeted men,25 while of course the burden of a policy of non-abortion falls primarily on women. This gender specificity seems, therefore, to be a similarity between the two cases. It might nonetheless be argued that there is

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a significant difference between the two cases in that there is no intrinsic reason why conscription could not be applied equally to women, while childbirth remains an exclusively female capability. This may seem to raise a morally relevant difference between the cases, as a policy of non-abortion may seem to distribute the burdens imposed by the policy unfairly, on the basis of sex. However this difference is not as significant as it at first appears. The idea of “universal conscription” is misleading—conscription, even in an equitable and enlightened liberal democracy, almost always applies primarily or exclusively to those in their late teens and early twenties who have the physical and mental capabilities to endure military service. Where those available to be conscripted are more than is needed, the usual response is some sort of lottery-based draft system, aimed at ensuring that the burdens incurred are randomly and therefore in some respects fairly distributed. This is not dissimilar to how the burdens are distributed by a policy of nonabortion. The burdens fall on a subset of those who have the physical capabilities necessary for childbirth (who happen— currently—to all be women, though the burden does not fall on them because they are women, and not all women have the necessary physical capabilities), the subset being determined in part by the “lottery” of failed contraception. There are of course also those who have unwanted pregnancies due to negligence on their own part (I will briefly discuss the issue of responsibility for unwanted pregnancies below), but this clearly does not count against the fairness of the distribution of the burdens imposed. Thus far the burdens imposed by policies of non-abortion and conscription on non-consenting citizens seem broadly similar. Of course there is one glaring difference that has not yet been addressed, namely the burdens and responsibilities that are usually incurred by women with unwanted pregnancies after the birth—the burdens and responsibilities of motherhood. While some conscript armies require conscripts to be available as reservists for some years after their period of full-time conscription, and to make themselves available for annual periods of refresher training, unless those reservists are actually called up for extended periods to be employed in combat this burden is clearly less significant than that which falls onto the shoulders of mothers.26 While it might be argued that women (and men) incur the responsibilities of parenthood for unwanted children by virtue of taking the risk of conceiving through

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voluntarily engaging in sexual intercourse, this is not an avenue I will pursue here.27 What is certainly true is that, as McMahan puts it, “there are typically ways in which those to whom the burden initially falls can evade it without having to kill the infant—for example, by giving it up for adoption. The burden of caring for an infant can be much more widely distributed than the burden of supporting a fetus.”28 There is much that could be said here about distributed burdens, but it would be a distraction from the main point of this argument to go too far in this direction. Instead, I will stipulate that my claim (that a state policy of non-abortion is as justified as a state policy of humanitarian conscription aimed at preventing the loss of hundreds of thousands or millions of noncitizen lives) is limited to cases where states that pursue policies of non-abortion also are able to take most or all of the burdens of parenthood from those affected by the policy, through such means as state-run or state-sponsored adoption agencies, state-run or statesponsored orphanages, and the like. More generally I will limit my claim of the justifiability of the burdens imposed on women by a policy of non-abortion to those cases where the state does everything that might reasonably be expected to ameliorate those burdens through such mechanisms as free or subsidized health care, job protection, career acceleration mechanisms, and the like. When medical advances make safe fetal transplants into surrogates or artificial uteruses feasible, these measures should also be considered.29 While imposing the burdens of a non-abortion policy may perhaps be justifiable under a broader set of circumstances than this, I shall not try to establish that here. Within these (significant) constraints, I contend it is legitimate to consider the burdens imposed by a policy of non-abortion to be broadly equivalent to the burdens imposed by conscription. I now turn to consider the conditions under which conscription for the purposes of conducting humanitarian intervention could be morally acceptable.

Humanitarian conscription While estimates vary, the Rwanda genocide of 1994 is widely believed to have resulted in the mass murder of between 800,000 and a million Rwandans over a period of ten months. Though there

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is debate in the literature on humanitarian intervention as to what level of atrocity is necessary before a humanitarian intervention is justified,30 very few scholars would contest the claim that a humanitarian intervention would be justified in the face of a looming Rwanda-scale event. What is contested is whether or not there are conditions under which it might be morally acceptable for a state to conscript its citizens into the armed forces in order to meet the military challenges of such an intervention. Most scholars accept that a force composed of “mission specific” volunteers31 would certainly be appropriate under these circumstances; an intervention conducted by members of an all-volunteer force (that is, those who have volunteered for military service in general) who are ordered to participate might possibly be appropriate;32 and perhaps even a force composed of private military contractors (“contracted combatants”) might be acceptable.33 But what about circumstances where a conscripted force is the only available option? Here most scholars draw the line.34 Daniel Bauer, for example, contends that the central problem that consideration of the ultimate sacrifice raises in the context of arguments about humanitarian intervention is this: while humanitarian reasons are sound moral ends that can justify an individual’s ultimate sacrifice, those same moral ends prevent us from treating would-be interveners as means to pursue humanitarian objectives. . . . [A]ny serious commitment to human autonomy must respect the freedom of individuals to decide when and whether to give up their lives. This view grounds a general objection to conscription.35 In a similar vein Cécile Fabre argues that because individuals do not possess duties to subject themselves to high levels of risk, “states are not under a duty to wage wars of humanitarian intervention unless they can raise an army of volunteers for that particular task. In fact, and more strongly, governments are not entitled, vis-à-vis their own citizens, to take an army of conscripts to such a war.”36 Fabre goes further still and argues that even in cases where humanitarian intervention would involve little to no risk, conscription still cannot be justified because to be able to undertake humanitarian intervention conscripted citizens would need to be trained to do so, and this represents an unwarranted restriction on their liberty. She

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concludes, therefore, that “individuals are not under a moral duty to acquire specific skills for the sake of the needy, and conscription into wars of humanitarian intervention is therefore impermissible.”37 For the purposes of this argument it is not necessary to contest the view that humanitarian conscription is impermissible where there is a considerable risk of conscripts having to make the “ultimate sacrifice.” Fabre’s position is, however, relevant, as I am arguing that a state’s policy of non-abortion (limited by the constraints outlined above) is analogous to conscription for a lowrisk but high-impact (in the sense of saving numerous lives) humanitarian intervention, and that both policies are morally justified. If what Fabre says is correct then my argument fails. However, as James Pattison and I have argued in a different context, Fabre’s cosmopolitanism obscures an important point. As we wrote then: That individuals do not possess duties to sacrifice themselves in humanitarian missions does not mean that states and, more generally, third parties, cannot permissibly subject their soldiers to risk or that they are not under a duty to do so. . . . [S]uppose that State A has a conscript army, but could intervene very effectively in State B, thereby preventing genocide in State B. That it has a conscript army seems to be too weak a reason to deny that it has the duty to intervene. In short, the import of the individual autonomy of those [carrying out the intervention] might be outweighed by other moral considerations.38 Contra Fabre, then, it seems correct to say, as Pattison does elsewhere, that “forcing individuals to save the lives of others can be permissible when the probability of risk to them is low, the harm they might face is low, or when doing so will prevent a much greater harm. As such, conscription may be permissible in certain cases.”39 I take it, therefore, that I am justified in my claim that a state would be acting properly if it were to conscript some of its citizens into the military for a period of approximately nine months in order to participate in a low-risk humanitarian intervention aimed at preventing the loss of hundreds of thousands or millions of noncitizen lives. I have argued above that the burdens imposed by a policy of non-abortion are, with some important caveats, broadly similar to

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the burdens imposed by a policy of humanitarian conscription. Having established that a policy of humanitarian conscription for a low-risk humanitarian intervention aimed at preventing the loss of hundreds of thousands or millions of non-citizen lives would be justified, it remains to be shown that a policy of non-abortion is, under appropriate circumstances, morally equivalent to this specific set of circumstances.

Non-abortion as humanitarian conscription According to a report in the International Herald Tribune (the global edition of the New York Times), about 1.2 million feticides occur each year in the United States, about 6.5 million in India, and a massive 13 million in China.40 Reporting on 2008 statistics, the Guttmacher Institute reports 43.8 million feticides globally,41 though this has almost certainly increased in the interim. The scale of feticide in most states that allow elective abortion exceeds even the more stringent thresholds which are usually taken to justify humanitarian intervention. Of course the point of taking a secondorder moral risk perspective on this issue is not to assume that feticide does cause the death of a non-liable human person, but rather that there is a non-negligible risk that there does. While this may seem an important difference between abortion and the mass atrocities that justify humanitarian intervention, what is easy to overlook is that humanitarian intervention is about preventing mass atrocities—that is, it is intended to stop what is perceived to be a significant risk of mass atrocities (or further mass atrocities). The NATO intervention in Libya in 2011 is a good example—while Qaddafi had threatened mass slaughter, the intervention took place before widespread mass atrocities could be conducted.42 The policies of non-abortion and humanitarian conscription seem, therefore, to be equivalent in this regard. What of the risk to the conscript/pregnant woman? I have stipulated that, in the type of humanitarian intervention I am comparing to a policy of non-abortion, the risk of death or serious injury to the conscript is low. (This could be because of a technological advantage held by the intervening force—for example,

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an intervening force equipped with modern weaponry would face little danger from a genocidal force armed only or primarily with machetes or bows and arrows.)43 In developed states where maternal deaths are statistically unlikely (0.007 percent in Australia, for example), the level of risk to pregnant woman which would be imposed by a policy of non-abortion would be similar to that imposed on conscripts in the case of low-risk humanitarian intervention that I have been discussing. Before continuing it is important to distinguish the argument I am making here from one put forward in various forms by many proponents of gun bans, which I rejected in Chapter 1. Essentially gun ban proponents argue that any putative rights which individuals might have to own firearms for the purposes of self-defense are overridden by considerations of the risk that firearm ownership (supposedly) poses to citizens in general. Might it not be argued, one might imagine proponents of this view saying, that gun bans could also be viewed as analogous to conscription for the purposes of carrying out a low-risk humanitarian intervention? After all, so we can imagine the argument continuing, banning the ownership of guns or certain classes of guns for the purpose of self-defense might entail a restriction on the rights of those who would otherwise wish to own guns for this purpose, but this is justified by the prospect of reducing the risk of death by violent crime of many others, just as the rights infringements that humanitarian conscription entails is justified by the prospect of saving the lives of many others. What this argument misses is the key difference between a policy like humanitarian conscription which places those conscripted at a small but elevated risk of lethal harm and a policy like an enforced gun ban which (as I argued in Chapter  1) violates the right to exercise self-defense of those affected by the policy. Humanitarian conscription does not violate this right—indeed, conscripts are provided with enhanced capabilities to exercise their rights to selfdefense, through the provision of weapons, training and fire support. Returning to the topic at hand, then, if we expand the definition of “humanitarian conscription” from the artificially narrow way I have been using it here and take it instead to mean, more naturally, conscription for the purposes of saving the lives of non-citizens, it would seem accurate to see a policy of non-abortion as not merely equivalent to humanitarian conscription but as actually being a form of humanitarian conscription. Accurate, that is, if it is correct

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to view those who a moral risk-driven policy of non-abortion is designed to protect as having a modest claim on states which is limited in weight to that of the claim that human beings in general have on states that they are not citizens of. If, on the other hand (as might well be argued) states have particular and therefore stronger duties in this regard, the case for a policy of non-abortion is stronger still, and heavier burdens may justifiably be imposed on citizens in order to achieve the goals of that policy.

Conclusion In this chapter I have attempted to use the case of state policy on elective abortion to illustrate in some detail the application of second-order moral risk assessment, what I call the “risk of harm principle,” to the process of deciding appropriate public policy in a liberal state. My conclusion, that within certain constraints secondorder calculations of moral risk indicate that a liberal state ought not to adopt policies allowing elective abortion, clearly goes against the general direction broadly liberal states have tended to adopt in practice. For many that will be seen as a significant cost which must be weighed against the idea of employing second-order calculations of moral risk to decide upon appropriate state policy on such contested topics. On the other hand, rejecting this approach comes at the cost of effectively and arbitrarily (given the existence of a reasonable alternative) abandoning liberal neutrality on topics such as these; a very significant cost indeed. Through the vehicle of the topic of this chapter, and those of the preceding three chapters, I have attempted to explain and justify the decision-making framework that I believe is appropriate for policymakers to apply when formulating policy on cases of what I have here called “citizen killings,” that is, cases where the question at hand relates to whether or not citizens (or more generally those who fall under the authority of the state) who are not agents of the state may legitimately kill. In Chapter 1, when I addressed the issue of gun bans, I argued that a key consideration is the state’s duty to ensure it does not undermine the right to life (and, in that particular case, the closely related right to self-defense) of those under its care. In Chapter  2, which focused on the question of contracted combatants and foreign fighters, I attempted to show how a serious

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commitment to political liberalism, and particularly the principle of liberal neutrality (the second main pillar of the approach I am advocating in this book), ought to guide state policy on citizen killings that take place beyond the state’s boundaries and jurisdiction. In Chapter  3, I tried to show how both these key constraints on state policymaking combine to prohibit the practice of euthanasia (where that is considered separately from assisted suicide) but how the principle of liberal neutrality is the decisive consideration when forming policy on assisted suicide (and suicide in general), albeit with appropriate respect for the right to life, particularly where conditions of epistemic uncertainty exist. In that chapter I also engaged with the issue of using “brain death” as the legal criterion for the end of a human life, which places the policymaker in the difficult position of seeming to have to choose between either implementing policy which risks violates citizens’ right to life, or implementing policy which violates the principle of liberal neutrality. To address this I introduced what I call the reasonableness test, which in some cases defuses this dilemma. In cases where the dilemma remains after the reasonableness test has been applied, I argued that the policymaker can retain liberal neutrality by adopting a compromise position which does not directly favor either the brain death or more traditional cessation of cardiopulmonary function test for the end of human life. This chapter has, through the medium of a discussion of the issue of policy over abortion and euthanasia, outlined an approach that enables the policymaker to maintain neutrality of justification and neutrality of intent, even though neutrality of outcome is unavoidably compromised. This approach is what I call the “risk of harm principle,” in which the decision is made by taking an agnostic stance to the competing positions, and selecting the best available option based on which of the policy options available poses the least moral risk of causing harm if the position excluded by the imposition of that policy option were in fact true. In the chapters so far I have therefore fully articulated the framework that policymakers in liberal states ought to apply. Decisions should, first and foremost, respect both citizens’ right to life and their right to choose their way of life (the principle of liberal neutrality). Where there appears to be a clash between these principles, as is sometimes the case, the policymaker ought first to apply the reasonableness test, which in some cases will defuse the

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apparent clash. Where the dilemma remains, sometimes a compromise solution can be reached which honors liberal neutrality. Where some compromise of liberal neutrality is inescapable, the final step is for the policymaker to apply the risk of harm principle, which maintains respect for the neutrality of justification and neutrality of intent aspects of liberal neutrality. The remainder of this book takes a somewhat different, but still related, direction by examining what actions are permissible for citizens and outside parties where a state fails to comply with the framework I have argued for, and implements a policy that risks massive violations of the right to life by allowing elective abortions.

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5 Citizen killings, civil disobedience and armed rebellion Are there circumstances in which citizens might be justified in carrying out acts of civil disobedience or armed rebellion in response to a state policy that legally allows citizens to kill under circumstances where this is at odds with the state’s responsibility to protect or at least not undermine the right to life of those under its care, where that right is understood appropriately, through due consideration of the principle of liberal neutrality? To put this (controversially) in terms of a particular case, the one addressed in the previous chapter: are there circumstances in which citizens might legitimately carry out acts of civil disobedience, or even armed rebellion, in response to a state’s policy of allowing elective abortion?1 Certainly if, as many believe, it is true that abortion does not kill a non-liable human person, then the answer would seem to be a clear-cut “no.” However, the discussion of the idea of moral risk and its relevance to elective abortion in the previous chapter should give us reason to pause and not take this as simply a given. In this chapter I will argue that considerations of moral risk do, in fact, under some circumstances legitimate acts of civil disobedience against states which follow a policy of allowing elective abortion, and, within narrow constraints, acts of armed rebellion may possibly also be justified as a response to such a policy. If I am right that developed states which have the capacity to take most or all of the future burdens of motherhood from women with unwanted pregnancies do a moral harm by pursuing a policy of allowing legal elective abortion (as argued in the previous 83

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chapter), or if there are other compelling arguments against a state policy of allowing elective abortion, what actions are legitimately open to citizens of those states who recognize that harm and seek to overturn the policy? It is uncontroversial that citizens may, and ought to, work within the constitutionally established structures of a democratic state to seek to amend policies that they deem to be immoral. But what about when (as is the case in most contemporary liberal democracies) these efforts have been pursued doggedly but have proven to be largely fruitless? In what follows I will consider, first, whether citizens may pursue campaigns of civil disobedience under these circumstances, and, second, whether armed rebellion against the state could ever be justified in response to a state policy of elective abortion.

Elective abortion and civil disobedience One of the few scholars to address the question of the justifiability of acts of civil disobedience as a response to a state’s policy of allowing elective abortion (acts such as illegally blocking access to anti-abortion clinics) is Nicholas Dixon. Following Dixon I shall use “CD ” as shorthand for civil disobedience, and like Dixon I will stipulate that what is being discussed here are acts of non-violent CD —that is, acts of CD that do not harm or endanger members of the public or the state security forces. (I will address the issue of armed rebellion later in this chapter.) In his paper “The Morality of Anti-Abortion Disobedience”2 Dixon argues: The fact that this CD violates what the Supreme Court has ruled to be a constitutional right of women creates a strong presumption against blocking abortion clinics, which, in the absence of highly probable arguments that abortion is unconstitutional or immoral, anti-abortion protestors are unable to rebut. They can have little complaint when the government punishes them as heavily as is necessary to protect women’s constitutional rights.3 As is obvious from this quote, Dixon’s focus is specifically on abortion-related CD in the United States in the aftermath of the Supreme Court judgment in Roe v. Wade. Despite this specificity the general principle he derives in support of his position is intended to

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be sufficiently broad to be able to address this issue in general. I will argue, however, that Dixon’s approach does not stand up to scrutiny. Dixon begins with John Rawls’ definition of CD, which I will also adopt for the purpose of this argument. According to Rawls an act of CD is: [a] public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government.4 Dixon correctly identifies anti-abortion CD as a particular type of CD, which, following Ronald Dworkin, he calls “justice-based” CD. Practitioners of justice-based CD, such as those who committed acts of CD in support of the Civil Rights Movement in the United States, do so in order “to oppose and reverse a program they believe unjust, a program of oppression by the majority of a minority.”5 Dixon also argues that “[a]ny act of CD stands in need of justification. Those who live in a democracy have a prima facie duty to obey any law or judicial ruling that results from following correct procedures.”6 This, says Dixon, is because of two general considerations as well as a specific one. Dixon contends that routine disobedience to law would generally undermine the functioning of the legal system, perhaps to the point of dysfunction (the “rule of law argument”), and, furthermore, acts of CD conflict with our social contract-imposed duty of obedience and thereby undermine the social contract (the “social contract argument”). More narrowly, the specific social cost of each act of CD weighs against such acts: “not just the expenditure of funds on police and court personnel, but also the inconvenience to and especially any violations of rights of other people caused by CD.”7 Dixon considers two defenses of justice-based CD, one offered by Martin Luther King in his famous “Letter from a Birmingham Jail,” and one offered by legal philosopher Ronald Dworkin. King quotes Augustine’s famous dictum “An unjust law is no law at all,” which leads Dixon to conclude that King’s test for the justifiability of CD is as follows: “[a] sincere belief that a law is unjust is sufficient to justify an act of CD.”8 Dixon rejects this test on the grounds that King’s Augustine-inspired stance seems to advocate a natural law position which “may open the door to rampant lawbreaking of the very kind feared by those who advance the ‘law and order’ argument,

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since he does not seem to recognize even the prima facie force of unjust laws.”9 Instead, Dixon embraces Dworkin’s defense of justice-based CD, which is focused on questions of constitutionality. Dworkin’s position is that CD is justified if the protesters have a sincere and reasonable belief that the contested law is unconstitutional—if they are correct, the law is invalid, and their flouting of it does not in fact constitute a legal violation. “They believe that their actions are in accordance with the highest law in the United States: the Constitution.”10 This may not seem a particularly important difference in practice for anti-abortion protestors—as Dixon correctly points out, in the United States most anti-abortion protestors base their position on their claim that laws allowing abortion are in fact in violation of the Constitution, specifically “the equal protection clause of the 14th Amendment.”11 The practical difference between these two approaches becomes clear when Dixon identifies the limitations this constitution-focused approach places on what sorts of CD activists might justifiably engage in. Dixon accepts that this Dworkinian approach allows for what he calls “noninvasive CD,” that is CD “that does not restrict the freedom and rights of other people, and thus involves minimal specific social costs, other than expenditures on police and court responses.”12 However, such actions as blocking the entrances of abortion clinics in order to physically prevent women from entering them for the purpose of carrying out an abortion would be allowed by King’s approach but not by Dworkin’s. In such cases: While their CD is designed to protect the rights of fetuses, it interferes with the right to reproductive freedom guaranteed by Roe v. Wade, based on an extension of the 4th amendment right to privacy. As long as such protests are peaceful and based on sincere beliefs, King’s view will permit them. However . . . the nature of the laws that the CD is designed to protest is sufficient, on the Dworkinian view defended here, to tilt the balance against . . . invasive protests. According to Dworkin’s criteria, CD is best justified by the belief that a statute violates a constitutional amendment designed to protect individual rights against governmental incursions. Consequently, when CD, in the name of protecting individual rights, involves violating laws that are themselves designed to protect individual rights, it is problematic.13

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This Dworkinian position is problematic in several ways. First, it requires anti-abortion activists to recognize and respect a woman’s legal right to have an abortion while simultaneously allowing that they may justifiably violate the law in protest against state policy that allows that same woman to participate in the killing of her unborn fetus, which is clearly self-contradictory. Second, the focus on constitutionality is problematic when applied to states generally (not simply in the United States), as it is not at all clear that all state constitutions are worthy of the veneration that Dworkin’s test assumes. Even in the case of the United States, Dixon is forced to admit that Dworkin’s framework “is of little help” when considering the acts of CD that were committed by anti-slavery activists in the nineteenth century, for according to Dworkin’s test for acts of CD those committed by anti-slavery activists cannot be considered to have been legitimate, which is clearly counterintuitive. In response Dixon is forced to add a kind of “back-up clause” to Dworkin’s test: “[W]hen moral arguments show that a law is very probably immoral, because it violates fundamental individual rights, and when the Constitution offers no support for this position, the moral argument may by itself be sufficient to justify CD.”14 This is needlessly complicated, and smacks of being an ad hoc response to a fatal flaw in Dworkin’s test. It is also unnecessary given that the reasons Dixon gives for rejecting King’s test for the justifiability of CD are not particularly compelling. It is an empirical question whether, as Dixon believes, acts or campaigns of CD undermine the functioning of the legal system in general. The campaign of CD carried out by members of the Civil Rights Movement which ultimately led to the overturning of unjust race-based laws in the United States arguably led overall, in the long run at least, to a greater respect for the rule of law. While Dixon may argue that this is because the Civil Rights Movement generally acted within the bounds of his test for justifiable CD, it seems empirically doubtful that campaigns of CD of “the right type” do not lead to a breakdown of respect for the rule of law, while CD campaigns in general do. It might perhaps be argued by way of example that in South Africa the campaign of illegal strikes and “rolling mass action” carried out in the townships in response to the unjust policies of the Apartheid government in the 1980s have some causal connection to the high rate of violent crime in South Africa today. However, even if there is a connection between

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the widespread lack of respect for the rule of law in South Africa today and the struggle against Apartheid, it seems far more likely that the causal link is with the township-based campaigns of violence sponsored by the liberation movements and their armed wings as part of their strategy of making the townships “ungovernable.”15 While space doesn’t allow me to pursue this empirical track here, it seems clear that it is at least questionable whether campaigns of CD can be considered, in general, to undermine the rule of law. Even more problematic is Dixon’s implied claim that specific campaigns of CD could lead to a general and widespread practice of citizens disobeying any and all laws and policies with which we disagree.16 Such “slippery slope” arguments are notoriously problematic, and once again there seem to be no empirical cases that support this claim that specific campaigns of CD can lead to general social anarchy. A final point here is worth mentioning too: those who participate in non-violent acts of CD, including those who go beyond the narrow confines of Dixon’s Dworkin-inspired view of what constitutes justifiable CD, do so principally with the goal of raising awareness of their cause in the hope of pressuring the authorities to change the laws that the protestors find so abhorrent. Though this involves violations of specific laws, it is nonetheless an affirmation of the rule of law in general, and this is usually further affirmed by the willingness of the protestors to accept the legal consequences (arrest, trial, and punishment) for their actions. Dixon’s criticism of King’s position implies his belief that King’s approach leads to violations of the social contract. In this he seems, with typical American reverence for the U.S. Constitution, to see the Constitution as virtually the incarnation of the social contract. But this is not so. Constitutions, like all laws, are fallible documents open to critique and contestation as to their proximity to the terms of the social contract. What exactly the terms of the social contract are is of course a complex and contested matter, and I will not try to resolve that here. But the social contract is certainly not constrained to what is established in law, as the widespread acceptance of the “Responsibility to Protect” (R2P) principle, which declares that states have a foundational duty to protect their citizens from harm regardless of their particular constitutional arrangements, illustrates. My point here is simply this: it is entirely appropriate to contest laws—through acts of CD if necessary—on the grounds that those

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laws, however constitutional, are in violation of the social contract. That said, this must be balanced by the importance of recognizing, where appropriate,17 the general validity of the rule of law. I propose, therefore, the following principle as an extension of King’s, which, I believe, adequately addresses both the “rule of law argument” and the “social contract argument”: Acts of Civil Disobedience are justified where they are based on a genuine and reasonable belief that the laws or policies or practices they are aimed to overturn are both immoral and serious breaches of the social contract, and where the consequences of the acts concerned are not disproportionate to the wrongs that they are intended to rectify. The first clause of this principle seems clearly to justify non-violent acts of anti-abortion CD that go beyond the narrow confines of Dixon’s principle. If it is true that, as anti-abortionist activists sincerely believe, abortion results in the unjustified killing of a human person, this is clearly both immoral and a breach of the social contract, regardless of the constitutional status of laws allowing abortion. The general reasonableness of the belief is established by the fact that the philosophical debate over the status of the fetus and the justifiability of feticide is, as Dixon concedes, “intractable,”18 and intelligent people of good will take strongly opposing views on the topic. What of the second, “proportionality” clause of this principle? As argued above, what Dixon calls the general social cost of anti-abortion CD seems not to be especially problematic in this regard, but what of the “specific social cost” involved in such acts as blocking access to an abortion clinic? Interestingly, Dixon invokes the idea of moral risk in addressing the “specific social cost” of “invasive” CD as a way to justify a heavy burden of proof in this regard: The reason why such a heavy burden of proof is encumbent on [those] who commit invasive CD in defiance of Supreme Court rulings is that their CD is very morally risky. Should their constitutional arguments be mistaken, they have exacted very high social costs, including the violation of fundamental individual rights.19

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Though I disagree with Dixon’s conclusions, I agree with his statement, “The mere fact that I sincerely believe that a law is immoral or unconstitutional does not automatically negate the rights and interests of those people with whose freedom my CD interferes.”20 I also agree that the concept of moral risk provides a useful way to weigh the legitimacy of acts of CD related to morally controversial subjects that are not yet generally settled (in the way that, for example, the once controversial debate over slavery is now generally settled), and this corresponds with the second, “proportionality” clause of my test for the legitimacy of CD. Where I disagree strongly with Dixon is on the outcome of the moral risk calculation in the case of anti-abortion CD. Dixon’s heavy burden of proof, which requires that “those who commit CD based on purely moral justifications have to show with an especially high degree of probability that the contested law is immoral”21 is premised upon his two-part, constitution-centric, test for the justifiability of CD, which I have rejected above. It is also not a particular useful measure. Dixon concedes that what constitutes an argument showing a law to be “very probably immoral” is by its nature “inherently controversial.”22 Nonetheless he offers no clear way in which we are to make such an assessment. Instead he offers an example for our consideration: “The fact that apologists for slavery disagreed with abolitionists does not show that the abolitionists did not have arguments showing that slavery was immoral. It shows, instead, that the apologists were morally blind.”23 This “argument by example” is problematic for two reasons. First, while to contemporary sensibilities it is crystal clear that the practice of slavery is immoral, it seems strongly anachronistic to believe that, at the time of the abolition movement, most or all good-willed contemporaries would have been willing to grant that slavery laws were “very probably immoral.” Second, there’s an implied chauvinism in this “argument by example,” in that, despite the contested nature of the debate over the morality of abortion, Dixon seems very confident that future generations will not look back on our day and judge supporters of abortion as being “morally blind.” Dixon is willing to concede that “[M]oral judgments are inherently risky, fallible things to make, and so we can never rule out the possibility that the moral reflection of future generations may reveal my judgment to be mistaken.” Nonetheless he seems satisfied to rest his position on

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his “assessment of the currently available moral and constitutional arguments.”24 Despite his apparent affirmation of the importance of weighing moral risk, Dixon’s position seems to me to be morally risky in the extreme. To reiterate Moller’s point, “Abortion involves taking a moral risk because there is a non-negligible possibility of wrongdoing even if we have decided that the arguments against abortion fail. And there is certainly a lot at stake: if we are mistaken and have an abortion, we are doing something deeply wrong.”25 This is true at the individual level, and even more so at the level of state policy—if there is a non-negligible possibility that abortion does unjustly kill human persons, then states that allow legal abortion risk active participation in the worst genocide in the history of humanity, one exponentially worse than any other genocide the world has ever seen. Against this, the risk that acts of CD might possibly temporarily26 interrupt the rights of a relatively small number of women to have an abortion (should it eventually become widely and uncontroversially accepted that such a right exists), while certainly not negligible, cannot be considered to be an overriding consideration that would show such acts of CD in this case to be illegitimate. Notice that the moral risk-based approach that I am advocating here remains neutral as to the merits of the arguments for and against the moral appropriateness of abortion. Having noted and acknowledged the currently “intractable” nature of the debate over the morality of abortion, this approach brackets the debate entirely and instead weighs the moral risks involved. Contrast this with Dixon’s claim that: a liberal can consistently admire the CD practiced by the Civil Rights movement as well as hypothetical acts of CD committed by the anti-slavery movement, while condemning the actions of . . . anti-abortion protestors who try to prevent women from entering abortion clinics. Making these moral judgments requires that we abandon complete neutrality with regard to the merits of the constitutional and moral claims on which the CD is based; but the only alternative for the liberal who approves of Civil Rights CD would be to adopt the “absolutist” position, and heroically and implausibly insist that the benefits to society of every possible act of CD based on sincerely-held constitutional

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or moral beliefs will inevitably outweigh its general and specific costs.27 I have already shown that it is doubtful that, following Dixon’s approach, liberals can consistently “admire the CD practiced by the Civil Rights movement as well as hypothetical acts of CD committed by the anti-slavery movement, while condemning the actions of . . . anti-abortion protestors who try to prevent women from entering abortion clinics.”28 Furthermore, Dixon is mistaken to believe that the only alternative to abandoning liberal neutrality is to be tied to a “heroic” but “implausible” blanket positive judgment about “every possible act of CD based on sincerely-held constitutional or moral beliefs.” I have shown that there is a third alternative that is preferable to both of the options Dixon presents us with. By following my social-contract-centric test for the justifiability of acts of CD, with its requirements of reasonableness and moral riskbased proportionality, both trivial and disproportionately damaging acts of CD are excluded from positive judgment while liberal neutrality is at the same time maintained. Doubtless the fact that my test for the justifiability of acts of CD allows for “invasive” antiabortion CD will make it unpopular among the many social liberals who are convinced of the moral appropriateness of abortion, but no one ever said that a consistent commitment to political liberalism would be a comfortable experience.

Abortion and rebellion As Jeff McMahan rightly observes, “the bombing of abortion clinics and the killing of those who perform abortions” has been condemned virtually universally, both by those who support abortion and by those who oppose it. Nonetheless, as he also correctly observes: If . . . there were a legally sanctioned practice that involved the killing of many thousands of healthy newborns, people who oppose abortion, and a great many of those who support it, would almost certainly approve of the use of violence against those responsible for the practice if that were necessary to bring it to an end.29

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McMahan argues that, because “the intrinsic differences between a developed fetus and a newborn infant are comparatively slight” and birth “involves only a change in the fetus’s location,”30 this support for the use of violence in response to a legally sanctioned practice of infanticide would simply be mistaken, and evidence that “[o]ur sentiments are not a reliable guide in determining a being’s moral status.”31 But what if, as I have argued, McMahan is wrong and both legally sanctioned infanticide as well as legally sanctioned abortion constitute a grave and unjustifiable harm? Might not the logic then work in the other direction, whereby the intuitive support that most people would give to violent opposition to a state policy of allowing the killing of infants ought to extend to support for violent opposition to legally sanctioned abortion? The classical answer would seem to have generally been a negative one. Just War thinkers like Augustine and Aquinas saw the benefits of order that a state brings as being God-endowed, and consequently viewed rebellion as an evil worse than tyranny. Renaissance thinker Francisco Vittoria expressed general agreement with this sentiment, arguing that “tranquility and peace are counted among the good things which men strive for; without security, all the other good things together cannot make for happiness.”32 As Valerie Morkevicius explains: For many classical just war thinkers . . . rebels (even against tyrants) were inherently illegitimate actors. Althusius thus forbade private persons the right to use force against tyrants, except in personal self-defense—it being preferable to “flee to another place” than to resist. Calvin warned against interpreting the principle that rulers bore responsibility toward their subjects as releasing the people from obedience to unjust and cruel kings. At the dawn of the modern era, Grotius, too, denied a “common right of resistance” to the people, lest the state’s ability to maintain “public peace and order” be undermined.33 While the opposition to rebellion by the seminal thinkers of the Just War tradition was not absolute (Aquinas proposed a proportionality test to ascertain whether rebellion might be legitimate, Vitoria thought the principle of necessity to be the appropriate test, while

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Luther put forward the principle of right intention)34, they preferred to advocate patience in the face of oppression: Prudentially, they worried that rebellion might generate even more disorder than would tyranny. First, a rebellion might cause disproportionate domestic suffering. Aquinas thus suggested that if “the tyranny is not excessive,” it might be better to endure it: a failed rebellion might provoke a savage campaign of suppression, while a successful one might itself establish nothing more than a new form of tyranny. Second, rebels might abuse the qualitative distinction between bad kings and tyrants. Aquinas warned that “the lordship of a just king is usually no less a burden to the wicked than that of a tyrant.” Likewise, Luther counseled that recognizing a right to tyrannicide could lead to a tendency “arbitrarily to call men tyrants who are not tyrants.” Thus, instead of rebelling with arms, Luther suggested that peaceful petitions and protests were in order. Luther believed that a tyrant remained a rational human being, despite his failings, and thus that there was always hope that he would see the error of his ways. Lastly, a tyrant could be a vehicle of God’s punishment, in which case resistance would only compound God’s wrath. Calvin argued that, in the face of such chastisement, rather than rebelling, the people should humbly submit and pray for God’s forgiveness.35 Among modern thinkers Kant takes a similar view (“To the oppressed citizen Kant delivers his moral instructions bluntly and without qualification: ‘there is nothing to be done about it but obey,’ ”)36 but in this regard he is at odds with the modern and contemporary consensus on this issue. Where the classical Just War thinkers were almost unanimous in holding that rescue from tyranny by outside parties was more acceptable than rebellion, for most modern and contemporary thinkers the reverse is true. As Ned Dobos explains, “The prevailing view . . . is that armed intervention is not always justified even where rebellion with similar aims, employing similar means, is acknowledged to be a legitimate option for the victims of tyranny.” 37 In stark contrast to the classical Just War thinkers: Locke . . . maintains that one cannot validly consent to a regime that violates the rights to life, liberty and property. To this,

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contemporary theorists have added that in order for consent to be free and voluntary it must be registered within a liberal domestic setting. In A Theory of Justice Rawls declares that “unjust social arrangements are themselves a kind of extortion, even violence, and consent to them does not bind.” Michael Walzer raises doubts as to whether consent can possibly be fully informed in the context of an illiberal state, likening consent given under unfree conditions to the loyalty pledged by slaves that have grown to “love their servitude.” Since the history of his loyalty “is a history of coercion,” writes Walzer, the slave is free to resist “even if [his] loyalty itself is freely given.”38 What is clearly evident from the names that have been identified with the two prevailing positions discussed here is that the contrast is between a traditional, largely theism-linked view of the state’s authority (the classical view), and one defined in terms of the political norm of liberalism (the modern and contemporary view). For liberals the individual precedes the state, and the consent of the governed is foundational to the legitimacy of the state. This is sometimes expressed in terms of democratic consent theory, of which there are primarily two variants, as Dobos points out: According to the weak version, to vote for a candidate in an election is to consent to his appointment to a position of political authority, and therefore to commit oneself to obedience should that candidate’s bid for power be successful. The strong version states that by participating in a democratic election, fully aware that the purpose of the procedure is to invest authority in the candidate that wins the most votes, one consents to the procedure as a way of determining who will wield political power, and therefore agrees to be bound by its outcome whichever way it goes. If this is right, then a democratically elected government is owed obedience by every citizen that partakes in the election by which it is empowered. On either variant, however, democracy is a precondition of political obligation.39 While the weak version of democratic consent theory is appealing in the directness of its conception of consent, it is difficult to imagine a functioning political arrangement based on it. For the purposes of this argument it is the stronger version of democratic consent

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theory that must be in focus because it provides the stronger challenge to the idea that armed rebellion might be justified against the policies of a democratic state. At first glance the challenge appears insurmountable—if “a democratically elected government is owed obedience by every citizen that partakes in the election by which it is empowered,” then how could it ever be appropriate to resist the rulings of that government at all, never mind using armed force? What is obscured by the passage quoted above40 is that the obligation imposed by the terms of the strict version of democratic consent theory is a pro tanto obligation. It is an obligation that is binding only in the absence of what we might call (to borrow a term from epistemology) defeaters; that is, considerations of greater weight than the apparent obligation which negate its applicability. For while consent is a central value in political liberalism, it does not outweigh all others. As mentioned above, Locke points to violations of the rights to life, liberty and property by a regime as defeaters of the obligation to obey that regime. Given the centrality of these rights in liberal political theory, it seems clear that this applies even when the regime concerned is a democratically elected one.41 Even Dixon, as we saw above, concedes that full obedience to the state is not morally required in cases where there is a sufficient basis to claim that some of the laws enacted by that state are deeply unjust violations of central rights. Of course it must be added that not any and every state violation of individual rights constitutes a defeater for the obligation to obey the state. It is not the case, for example, that some relatively minor violation of freedom of speech on the part of a state negates all obligations to obey that state. The classical thinkers discussed above were right to point to the importance of order, and the horrors of anarchy. Likewise the obligations of obedience imposed by the terms of democratic consent theory are not to be weighed overly lightly. Thus it can only be sufficiently serious violations of rights that defeat the obligation of obedience to the state, and the resulting disobedience must in some sense be proportionate to the violation or violations that it is a response to. Thus there is both a threshold for rebellion against the state, and a scale that constrains the extent of that rebellion. Understood in this way, it becomes clear that the test for legitimate non-violent CD outlined above is best understood

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as a specific case of a general test for rebellion in general, where rebellion may include armed rebellion in the most extreme cases. Thus we may rearticulate the general principle here as follows: Acts of rebellion against the state are justified where they are based on a genuine and reasonable belief that the laws or policies or practices they are aimed to overturn are both immoral and serious breaches of the social contract, and where the consequences of the acts concerned are not disproportionate to the wrongs that they are intended to rectify. The threshold, then, for acts of rebellion of any sort is that the laws or policies or practices these acts of rebellion seek to undermine or overturn must be “serious” breaches of the social contract, where seriousness is measured in terms of the foundational nature or aspect of the social contract that is being violated, as well as the extent of the violation or violations in question. This threshold requirement reflects the weight which considerations of order and the obligation to obey ought to carry. The measure is also scalar, in that the acts of rebellion must not be out of proportion to the harm they are intended to address. There is of course vagueness here, as is inevitable with calculations of proportionality, but this vagueness does not negate the application of the principle. Armed rebellion then, as a form of rebellion, must meet this general test for legitimate rebellion. But this is not the end of the matter. As a species of armed conflict, armed rebellion must in addition meet the requirements for a just war as articulated in Just War Theory. To start with, the decision to commence acts of armed rebellion must meet the requirements of the jus ad bellum if the conflict is to be legitimate on the side of the rebels. The requirements of the jus ad bellum, in their most widely accepted form, are: 1 2 3 4 5 6

just cause proper authority and public declaration right intention likelihood of success proportionality last resort.

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While there is debate over each of these requirements of the jus ad bellum, most of that debate is intended to refine rather than rebut, and I will not enter that debate in this chapter but will instead take it that each principle generally applies. A few points do need to be clarified here, however. First, it will be evident that there is overlap between the jus ad bellum requirements for just armed rebellion and the requirements of legitimate rebellion against the state in general. The principles of just cause and proportionality, in particular, are captured in both sets of requirements. What is helpful about the overlap is that the test for legitimate acts of rebellion in general brings into view more specific detail about what fulfilling these principles entail in the specific case of armed rebellion. Second, some comment regarding the “proper authority” requirement of the jus ad bellum is necessary. Traditionally this requirement has been understood in legal or quasi-legal terms: a war may only legitimately be declared by the legal or de facto sovereign of a state. So understood, this requirement entails that only states may legitimately conduct wars, and non-state groups who wage war are automatically excluded from the company of the just. Many contemporary scholars object to this consequence, and there is now widespread agreement that either proper authority must be understood in moral rather than legal terms (that is, the party entering the war has some moral authority to do so, where the authority is derived from such factors as meaningfully representing the group from whose woes the just cause is legitimately derived), or else the proper authority requirement for the jus ad bellum simply doesn’t apply to non-state actors.42 This is not the place to argue which of these two approaches is better, I will instead simply stipulate that the “meaningful representation” interpretation of proper authority applies here, as it provides the more demanding test for legitimate cases of armed rebellion. Like all forms of armed conflict, those conducting an armed rebellion must not only meet the requirements of the jus ad bellum, but must also abide by the requirements of the jus in bello, which stipulates that those engaged in armed conflict must ensure their use of force in particular engagements is necessary, discriminates between combatants and non-combatants, and is proportional to the objective being pursued.43 There is good reason too to think that the requirements of the jus post bellum, as outlined by Brian

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Orend44 in particular, must also be met. Space does not allow a rearticulation of Orend’s account of the jus post bellum, but it is difficult to disagree with his summary conclusion that “there needs to be an ethical ‘exit strategy’ from war.”45 To return to the case at hand, are there any circumstances in which a state’s policy of allowing elective abortion might legitimate armed rebellion against that state? Here I wish to tread extremely carefully. It is the proportionality question that is the hardest to answer. Even if every other requirement for legitimate armed rebellion is met for some particular campaign against a state’s policy of allowing elective abortion, how, exactly, are prospective rebels to properly weigh the possibility that the state might be engaged in the unwitting slaughter of millions of non-liable human persons who fall under the state’s care? There are deeply challenging questions here, which will have to await a more extensive work to be addressed. The best I can do in this chapter is to show that, if consistent, our intuitions give reason to think that, under some (very restricted) circumstances, it may be the case that rebellion might be justified. Consider the following hypothetical situation which, I believe, illustrates the point. Country X has an old nuclear power plant that has become problematic. While the radioactive material is well contained, harmful chemicals used in the construction of the plant are leaching into the region’s water supply, causing varying degrees of suffering for the large proportion of Country X’s population that lives in that region, including some cases of very significant suffering and some deaths. There are ways of somewhat ameliorating the suffering caused by this unhappy situation, but only removing the source of the problem will resolve it completely. Unfortunately, for various highly technical and improbable reasons, the nuclear material cannot be safely removed from the power plant, which in turn means that conventional ways of cleaning up the offending chemicals cannot be employed. After years of searching, a potential solution comes to light. A group of respected physicists, employing cutting edge equations and models, publishes a paper arguing that the unique combination of naturally occurring minerals found in only one place on the entire planet—which just so happens to be the site occupied by the troublesome nuclear power plant—means

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that a nuclear bomb dropped on the site would lead to a unique chemical reaction that would release enough energy to vaporize the source of the offending toxic chemicals as well as the plant’s radioactive material, but would result in virtually no radioactive fallout or other deleterious effect. The publication of the paper leads to a firestorm of debate across the scientific world, and generates a cascade of follow on papers arguing for and against its conclusion. Because of the uniqueness of the circumstances under discussion no actual testing is possible, and the debate can only proceed in the sphere of theoretical physics. Two clear sides emerge in the debate, with the “Pioneers” group ardently supporting the paper’s conclusion, and the “Firm Foundations” group arguing that dropping a nuclear bomb on the power plant will cause a mega explosion that will kill millions of Country X’s citizens (though, by a quirk of geography, not those living in the region affected by the chemicals leaching from the plant—the region is protected by an intervening mountain range—and thankfully the effects will also not reach any neighboring countries). Desperate to respond to the plight of its suffering citizens, and convinced by the theoretical arguments of the Pioneers, the government of Country X declares its intention to drop its only nuclear bomb onto the power plant. Many governments around the world, as well as civil society organizations based in Country X, come out in support of the decision, praising the government of Country X for its commitment to the well-being of its citizens affected by the leaching chemicals. However many other governments, and other civil society movements in Country X, protest vociferously against the decision, claiming that it constitutes an act of gross recklessness that will lead to mass slaughter. Together these governments and civil society groups try every available avenue to get the government of Country X to change its decision, including offering help with programs to ameliorate the effects of the chemical pollutants. All of this is, however, to no avail, and the countdown to the dropping of the bomb begins. With no other options available, a ragtag band of rebels, all citizens of Country X, launches a daring commando raid on the facility where Country X’s sole nuclear bomb is being loaded onto its delivery system. Around a thousand members of Country X’s armed forces are killed during the raid, but the nuclear bomb is

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successfully captured and smuggled out to a neighboring country where it is dismantled and rendered inert. Did the rebels in this fictional scenario have just cause for their actions? I believe most readers will agree with my intuition that they did. The sheer scale of the risk being taken by Country X is such that it has, even though for laudable reasons, failed to live up to its “responsibility to protect.” I hope most readers will also see that this fictional scenario is, in the relevant respects, structurally similar to a case of rebellion against a state which adopts a policy of allowing elective abortion. In both cases the state in question has chosen a policy which poses the moral risk of causing (or in one case continuing to cause) the unwarranted deaths of millions of human persons under its care, and in both cases there seems to be, ceteris paribus, just cause for rebellion even if, in fact, the policy of the state concerned does not or will not lead to the deaths of nonliable human persons. It seems, then, there is some reason to think that under a very restricted set of circumstances it may in fact be the case that armed rebellion could be a legitimate response to a state’s policy of allowing elective abortion. I hasten to add that in practice such circumstances are likely to be exceptionally rare given the constraints imposed both by the principle limiting acts of justified rebellion and those imposed by just war considerations. Certainly campaigns of kidnapping and murder committed against targets such as doctors who carry out abortions (such as have occurred in recent history in the United States) are not justified in the terms I have outlined here, if for no other reason (and there are many other reasons) than that such campaigns are campaigns of vigilantism rather than campaigns of armed rebellion against the state.46

Conclusion I have argued that considerations of moral risk mean that under restricted circumstances a state’s policy of allowing elective abortion could justify acts of civil disobedience, and that under even more restricted circumstances it might perhaps be the case that armed rebellion against a state might be legitimate on the same basis. Adopting either of these courses of action would of course be very

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serious indeed, and it may well be that the more serious option, armed rebellion, might not be justified in any real-world circumstances. Still, I think the fact that there is a significant argument to be made in favor of this position helps to illustrate the seriousness of state policy which allows legal elective abortions. In the next chapter I complete this intellectual vector by considering the question of whether there might ever be circumstances in which a state’s policy of allowing citizens to kill (again using the example of elective abortion) might make external intervention by other states justifiable.

6 Citizen killings and humanitarian intervention

Herod, the king, in his raging, Charged he hath this day His men of might, in his own sight, All young children to slay. 3RD STANZA, THE COVENTRY CAROL , SIXTEENTH CENTURY CHRISTMAS CAROL

The phrase “the massacre of the innocents” refers to the biblical account of Herod the Great’s campaign of infanticide waged against all male infants under two years of age in Bethlehem and its surrounds, a massacre designed to ensure the death of the newly born king of the Jews (presumably considered to be a threat to Herod’s rule) that he had learned about from the traveling Magi.1 The phrase is an apt one, for it would be difficult to deny that very young children are incapable of acts that would make them morally liable to be killed, and are therefore in the relevant sense “innocent.” The killing of children is widely considered, particularly in the modern West, to be even more morally heinous than the killing of non-liable adults.2 There can be little doubt that, were such an event to take place today, it would result in an international outcry and, were the scale of massacre sufficient,3 it would generate calls for military intervention to stop the infanticide. Military interventions to stop or prevent actual or expected massacres or other mass atrocities are referred to in contemporary times as “humanitarian interventions.” Such interventions have gained increasing acceptance in the international arena, particularly 103

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under the rubric of the so-called “Responsibility to Protect” or “R2P” norm articulated in 2001 by the International Commission on Intervention and State Sovereignty (ICISS ).4 Despite pushing against the long-established Westphalian principle of absolute state sovereignty, the idea that under some circumstances humanitarian interventions are morally and legally sound courses of action is now well established. In this chapter I consider whether a state which allows or encourages elective abortion as a matter of law and policy, on a large scale and with relatively little restriction,5 might justifiably be the target of a humanitarian intervention aimed at stopping the widespread practice of feticide in that state. While the issue of the moral status of the fetus is clearly central to this question, I do not attempt to resolve the debate on this question, but instead approach the issue from the perspective of moral risk.

Framing the issue As mentioned previously, according to a report in the International Herald Tribune (the global edition of the New York Times), about 1.2 million feticides occur each year in the United States, about 6.5 million in India, and a massive 13 million in China.6 Reporting on 2008 statistics, the Guttmacher Institute reports 44 million feticides globally,7 though this has almost certainly increased in the interim. By way of comparison, these figures are numerically roughly equivalent to the populations of Trinidad and Tobago (1.2 million), Jordan (6.5 million), Senegal (12.9 million) and Ukraine (44.8 million).8 The legality of elective abortion is, despite the efforts of antiabortion activists, largely settled in most of the developed states of the world,9 most famously in the United States through the Supreme Court judgment in Roe v. Wade (1973). Nonetheless there are a number of states which have resisted this trend, largely in developing world states and particularly those strongly dominated by Roman Catholicism. These states either restrict legal abortions to such cases as pregnancy by rape or circumstances of significant threat to the life of the mother, or, in a few cases (Chile, El Salvador, Nicaragua and the Dominican Republic) abortion is banned outright.10

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Philosophically, as we have seen, the debate over the morality of abortion continues apace, largely tied to the question of at which point human personhood begins. Positions range from the conservative view that human personhood begins at conception (this is often based on the religious idea of the imago dei), through middle-of-the-road positions that consider human personhood to begin at an identifiable stage in the fetus’ development (this accounts for the common state practice of allowing elective abortion in the earlier stages of pregnancy, but increasing the restrictions thereon in the latter stages), to radical views that human personhood is best understood as beginning at birth or at some point after birth. Arguably it is these radical views, advocated by well-known philosophers like Peter Singer and Jeff McMahan, which have gained the most traction in the philosophical debate recently—certainly it is these arguments which are the most widely known.11 As already mentioned, I will not in this chapter enter into this debate directly in discussing the question of whether or not a state policy of elective abortion could under some circumstances constitute grounds for humanitarian intervention. Instead, I will approach this issue in terms of moral risk.

The principles of humanitarian intervention Despite having its knockers, Just War Theory remains the central framework by which to evaluate the morality of war. The question of the justifiability of a state going to war is addressed by the criteria of the jus ad bellum. As mentioned previously, these widely accepted criteria are as follows: 1 Just Cause: a state may only go to war for appropriate reasons. 2 Right Intention: a state may only go to war where the state’s intention in doing so corresponds with the just cause. 3 Proper Authority:12 a war may only be entered into where the individual or body making the decision to enter into the war has the authority to do so.

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4 Last Resort: a state may only go to war when other feasible ways to address the crisis, such as diplomacy, have been exhausted. 5 Probability of Success: a state may only go to war where there is a reasonable probability that in doing so the just cause will be achieved. 6 Proportionality: a state may only go to war where the negative effects of doing so can reasonably be considered to be proportionate to achieving the just cause. Justifiable wars of humanitarian intervention differ from other wars which meet these criteria primarily in terms of just cause (and, to some extent, proportionality).13 For humanitarian intervention this issue is now most commonly expressed in terms of the responsibility to protect (R2P). Simply put, the idea here is that states have a fundamental responsibility to protect their citizens and others under their care, and in cases of egregious failure to do so this responsibility shifts to the international community. States or groups of states who intervene militarily under such circumstances are considered to have just cause to do so. Because of the weight of the Westphalian norm of non-intervention, the bar for justifiable humanitarian intervention is generally set very high, and Michael Walzer’s principle that humanitarian interventions are only justified in response to circumstances that “shock the moral conscience of mankind”14 has been influential. However, as James Pattison rightly points out, “Walzer’s account of just cause seems unconvincing since, first, it arbitrarily sets the bar extremely high for intervention, and, second, it is unclear precisely what constitutes acts that ‘shock the moral conscience of mankind.’ ” Pattison argues convincingly that a better measure of the justifiability of humanitarian intervention is the one proposed by the International Commission on Intervention and State Sovereignty. This test requires that there be circumstances of actual or apprehended (a) “large-scale loss of life,” with or without genocidal intent, which is the product of deliberate action or neglect, or (b) “large-scale ethnic cleansing,” whether carried out by killing, forced expulsion, or acts of terror or rape.15

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The war of 2080 With the preliminaries in place, I now turn to a thought experiment that will be an aid in assessing the question at hand. Consider the following unlikely but possible scenario:16 The year is 2080. Over the last half-century, the countries of Latin America have made considerable economic progress and consequent strides in military power. Mexico and Brazil, in particular, have emerged as two of the top global powers both economically and militarily. At the same time there has been a widespread and powerful resurgence of conservative Roman Catholicism in the region. One consequence of this has been a shared and strong antipathy to the practice of elective abortion. With elective abortion banned domestically the governments of Latin America, with strong domestic support, form a coalition to work towards the ending of this practice in other countries in the region, particularly the United States. A wide range of means of influencing policy on this issue in the United States are attempted, from funding U.S. anti-abortion lobbying groups to diplomatic exchanges and, eventually, stringent economic sanctions. None of these are, however, successful—indeed they seem to be having the opposite effect. Desperate at the thought of over a million government-sanctioned feticides taking place each year on the other side of the U.S.–Mexico border, a consensus emerges that military action is the only feasible option remaining. Though not as powerful, relatively, as it had been earlier in the century, the United States remains the world’s most powerful military nation. This means that the likelihood of success depends on surprise, which rules out the use of the threat of force as an interim alternative to actual war (a pre-warned U.S. will be undefeatable, and the threat of force will be meaningless). If surprise is employed, however, the Coalition can take advantage of a hitherto unrecognized vulnerability in the U.S. defense establishment. To avoid the demographic crisis that has reduced Europe and other developed countries to a shadow of their former selves, the United States has for many years pursued an open-doors immigration policy, with most immigration coming from Mexico. A very significant proportion of the U.S. military is now composed of Hispanic Americans, many of whom have

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strong ties to Mexico and are sympathetic to the anti-abortion cause. In the early morning of August 9, 2080, as the massed air forces of the Latin American Coalition take off in waves from bases in striking range of U.S. targets, some of these Hispanic Americans, who have become agents of the Coalition, disable the U.S. military’s early-warning system, allowing the incoming manned and unmanned aircraft to strike without warning. The airstrikes target U.S. airbases and key nodes of the CONUS airdefense system, effectively leaving the United States defenseless against attacks from the air. Because of the high levels of automation in the U.S. military, as well as the use of precision munitions, cyber weapons and non-lethal anti-materiel weapons by the Coalition, human casualties are limited to around a thousand military personnel, despite the massive blow to the U.S. defense capabilities. As the U.S. military scrambles to mobilize in order to resist the expected second wave of airstrikes in the limited ways that are still available, commanders find their capabilities significantly degraded by the actions of Coalition agents as well as sympathetic Hispanic Americans who simply go AWOL. In states adjacent to the Mexico border whole units of National Guard troops defect to join the Coalition. As it is, however, a second strike never materializes. Instead, the Brazilian president, representing the Coalition, contacts the U.S. president and explains that the Coalition has no desire to launch any additional strikes, and has no desire to dominate the United States militarily. She explains that the sole purpose of the attacks is to convince the U.S. to cease sanctioning “the killing of unborn babies.” Deeply aware that the military vulnerability that has just been revealed cannot easily be rectified, or perhaps not be rectified at all given the demographic realities of the day, the U.S. president, after hasty discussions with lawmakers, agrees to the Coalition’s demands. A formal agreement is signed between the belligerents and the war is over, as is the era of governmentsanctioned elective abortion in the United States of America. Such a scenario is, of course, highly unlikely to occur in practice. But it is at least conceivable, sufficiently so to act as a vehicle by which to consider the question of whether or not a state’s policy of elective abortion could ever be the basis for a just humanitarian intervention. In the interests of brevity I have constructed the

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scenario in such a way as to make it uncontroversial that the Coalition’s decision to attack meets the jus ad bellum requirements of right intention, probability of success, and last resort.17 This allows us to focus on what seem to me to be the more interesting aspects of this question, namely whether or not the Coalition met the jus ad bellum requirements of just cause, proper authority and proportionality.

Just cause Does the Coalition have just cause to attack the United States in the war of 2080? This is, of course, the most central issue in this case. One’s intuitive answer will depend on what one believes about the morality of elective abortion, and in most cases on one’s belief about the status of the human fetus. If, like the members of the Coalition, you believe that the fetus is owed the full moral status of human personhood, then it will seem pretty obvious that the Coalition has just cause to intervene militarily to stop the killing of millions of the most vulnerable of human beings. From this perspective the requirement that the situation involve “actual or apprehended large-scale loss of life, with or without genocidal intent, which is the product of deliberate action or neglect” is clearly met. If, on the other hand, you’re firmly convinced that legal abortions take place prior to the fetus achieving this moral status, the question will seem absurd, virtually equivalent to asking whether or not the state-sanctioned practice of surgically removing human appendixes could provide just cause for military intervention by another state. So which position should hold sway? The challenge is an epistemic one that shows very little sign of being resolved one way or another to the satisfaction of all or even most rational and fairminded people. So how are we to decide? One response might be to say (in accordance with what is effectively current practice) that the uncertainty means that this is an issue we ought to leave up to different states to decide for themselves, in line with the general views of their citizenry. But that won’t do. The stakes are simply too high. If it is in fact true that millions of human persons are being unjustly killed each year, it cannot possibly be acceptable to allow it to continue simply because the general view of the citizens of the

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states in which that is happening is that there’s nothing wrong with it and it is legal in those states.18 The epistemic uncertainty which is central to this issue is in a way echoed in the NATO -led humanitarian intervention in Libya in 2011. In terms of just cause, this intervention was controversial because it was carried out in anticipation of possible, but not yet actual, mass atrocities. As James Pattison points out, no less a luminary than Michael Walzer was skeptical of the claim that the circumstances in Libya warranted humanitarian intervention. Pattison argues, however, that this is because Walzer was applying the “shocks the moral conscience of mankind” test to the situation, which, as we have seen above, is problematic. Pattison instead applies the ICISS test that is being applied as the benchmark in this chapter, and argues as follows: Does the intervention in Libya meet this test? This seems likely. . . . Qaddafi indicated that his regime intended to commit a massacre in his now famous “no mercy” speech, where he called on his supporters to “go out and cleanse the city of Benghazi.” Moreover, by the time the intervention was launched, the regime had already demonstrated its willingness to use force against its own people, given that an estimated 1,000 to 10,000 had already been killed.19 The details of the Libya case need not concern us. What is noteworthy is that the intervention was considered justified by decision-makers and thoughtful and well-informed Just War theorists like Pattison despite the epistemic uncertainty as to whether or not there would in fact be a massacre of sufficient scale to warrant an intervention.20 In the hypothetical case we are considering there is also epistemic uncertainty but of a different kind—the question is not whether non-liable human persons are going to be killed on a massive scale, but whether or not non-liable human persons are already being killed on a (far more) massive scale. One way to look at the decision in the Libya case is in terms of moral risk. Pattison’s position can be restated as the belief that NATO, had it not intervened in Libya, would have incurred a very significant moral risk of allowing the mass killing of non-liable human persons. While there were reasonable arguments both for

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and against the likelihood of this happening,21 the moral risk of not intervening outweighed the moral risk of intervention. As I have discussed previously in this book, a very similar weighing of moral risk suggests strongly that allowing a policy of legal abortion to continue also incurs a very significant moral risk of allowing the mass killing of non-liable human persons. Do these considerations help answer the question of whether or not the Coalition, in the fictional scenario I described above, has just cause to attack the United States in the war of 2080? I believe it does. First, as discussed above, the R2P norm, as described by the ICISS , applies to both deliberate and negligent acts on the part of a state. Second, as also discussed above in the case of Libya, humanitarian intervention may be justified in cases where there is no certainty that mass atrocities are or will take place, but where the risk of that occurring is significant. Consider a variant of the fictional case discussed in the previous chapter, which helps to clarify this issue: Country X has an old nuclear power plant that has become problematic. While the radioactive material is well contained, harmful chemicals used in the construction of the plant are leaching into the region’s water supply, causing varying degrees of suffering for the large proportion of the nation’s population that lives in that region, including cases of very significant suffering and some deaths. There are ways of somewhat ameliorating the suffering caused by this unhappy situation, but only removing the source of the problem will resolve it completely. Unfortunately, for various highly technical and improbable reasons, the nuclear material cannot be removed from the power plant, which in turn means that conventional ways of cleaning up the offending chemicals cannot be used. After years of searching, a potential solution comes to light. A group of physicists, employing cuttingedge equations and models, publishes a paper arguing that the unique combination of naturally occurring minerals found in only one place on the entire planet—which just so happens to be the site occupied by the troublesome nuclear powerplant— means that a nuclear bomb dropped on the site would lead to a unique chemical reaction that would release enough energy to vaporize the source of the offending chemical and the plant’s radioactive material, but would result in very little

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fallout or other deleterious effect. The publication of the paper leads to a firestorm of debate across the scientific world, and generates a cascade of follow on papers arguing for and against its conclusion. Because of the uniqueness of the circumstances under discussion no actual testing is possible, and the debate can only proceed in the sphere of theoretical physics. Two clear sides emerge in the debate, with the “Pioneers” group ardently supporting the paper’s conclusion, and the “Firm Foundations” group arguing that dropping a nuclear bomb on the power plant will cause a mega explosion that will kill millions of Country X’s citizens (though not those living in the region affected by the chemicals leaching from the plant—the region is protected by an intervening mountain range—and thankfully the effects will also not reach any neighboring countries). Desperate to respond to the plight of its suffering citizens, and convinced by the theoretical arguments of the Pioneers, the government of Country X declares its intention to drop its only nuclear bomb onto the power plant. Many governments around the world come out in support of the decision, praising Country X for its commitment to the wellbeing of its citizens affected by the leaching chemicals. Many other governments, however, protest against the decision as constituting gross recklessness that will lead to mass slaughter, and together these states try every available avenue to get the government of Country X to change its decision, including offering help with programs to ameliorate the effects of the chemical pollutants. All of this is, however, to no avail, and the countdown to the dropping of the bomb begins. With no other options available, Country Y, supported by a significant coalition, launches a daring commando raid on the facility in Country X where the nuclear bomb is being loaded onto its delivery system. Around a thousand members of Country X’s armed forces are killed during the raid, but the nuclear bomb is successfully captured and taken back to Country Y where it is dismantled and rendered inert. Did Country Y have just cause for its actions? As in the previous case of internal armed rebellion, I believe that most readers will agree with my intuition that it did. The sheer scale of the risk being taken by Country X is such that it has, even though for laudable reasons, failed to live up to its “responsibility to protect.” As before

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I hope most readers will also see that this fictional scenario is, in the relevant respects,22 structurally similar to the fictional case of the Coalition’s strike on the United States in 2080. In both cases the state in question has chosen a policy that risks causing (or in one case, continuing to cause) the unwarranted deaths of millions of those under its care, and in both cases there seems to be, ceteris paribus, just cause to intervene even if, in fact, the policy of the state concerned does not or will not lead to the deaths of non-liable human persons.

Proper authority Even if it is conceded that the Coalition has just cause for their attack, it might still be argued that the Coalition lacks proper authority for their actions, and that this therefore makes the war unjust on their side. As James Pattison points out in his excellent book on humanitarian intervention: Building on the Just War principle of “right authority,” it is often claimed that humanitarian intervention must be authorized by the appropriate body, by which most mean the U.N. Security Council. . . . This reflects a common view amongst many states: an intervener’s having proper legal authorization is a necessary condition of its moral justifiability. . . . On this view, then, we should look to an intervener’s legal status when considering who should intervene: illegal intervention is unjustifiable.23 Pattison, however, argues convincingly that the legal status of the intervener in fact carries very little weight.24 Pattison addresses the four central lines of argument given by those who support the idea of the moral significance of an intervener’s legal status. The first is based on the idea that the authority of a legal intervener is the product of the processes by which international law is formed, in particular by state consent to international law and the authorization of the U.N. Security Council. State consent, contends Pattison, is of little moral significance because, first, states’ positions on issues in international relations are often not representative of the views of the majority of their citizens, even where the states concerned are democracies. Furthermore, the process of state consent gives a

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formal equality to individual states. But given the vastly differing populations of global states (from those numbering in the thousands to those, like China and India, in the billion range), this cannot be considered to grant moral legitimacy. A third critical reason Pattison gives for rejecting this “state consent” view is the fact that international law is often not created through state consent freely given, but is often the product of cajoling, bribery and blackmail by powerful nations of the kind that would be considered entirely inappropriate were it carried out by individuals attempting to secure the “consent” of other individuals. For similar reasons Pattison warns us not to overstate the moral weight of Security Council authorization. This powerful body is highly unrepresentative (composed as it is of five powerful permanent members—China, France, the Russian Federation, the United Kingdom and the United States—plus ten non-permanent members with limited powers), a situation exacerbated by the veto powers of the permanent five. Pattison also rejects the view that an illegal humanitarian intervention is morally problematic because it could be a cover for an imperialist or neo-colonialist military intervention. In such a case we would not be dealing with an illegal humanitarian intervention at all, but rather an illegal non-humanitarian intervention. Related to this concern is the third main line of argument that Pattison considers, namely the “bad precedent” view. Here the idea is that illegal humanitarian interventions will reduce the force of the norm of non-intervention, thereby increasing the likelihood that states will undertake abusive forms of intervention such as imperialism. Pattison, however, contends that this is an empirically questionable claim, and quotes with approval Mark Stein’s claim that “the idea that humanitarian interventions will lead to nonhumanitarian wars has been somewhat overtaken by events.”25 The last line of argument that Pattison considers (and rejects) as a possible basis for the idea that the humanitarian intervener’s legal status is of considerable moral significance is one based in the view that the international order is undermined when humanitarian intervention takes place outside of the recognized international legal framework. This is because, the argument continues, such illicit humanitarian activity undermines the existing structures that order the international system and keep chaos at bay. But this too seems overly alarmist, given that the international community does

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seem to condone humanitarian interventions of questionable legal status (such as NATO ’s intervention in Kosovo in 1999), and the structures of international order seem to have suffered no obvious ill effect as a consequence. On the contrary, Pattison argues that expanding the general acceptability of the humanitarian justification for intervention could well have positive effects for international order, by tying intervening states to the humanitarian justifications they offer from the onset, and limiting the potential justifications for any escalation of hostilities. If Pattison is correct that the legal authority of the U.N. Security Council does not amount to proper authority for humanitarian intervention, then proper authority reverts to its traditional locus, legally constituted governments and their heads of state. That said, there seems clearly to be greater legitimacy when a coalition of some kind is involved.26 There seems little reason, then, to question whether the Coalition has proper authority to launch its attack in the fictional scenario under consideration. Indeed, it is worth noting that most Latin American nations are signatories27 to the American Convention on Human Rights (also known as the Pact of San José), Article 4.1 of which states, “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.” (The United States signed the Convention in 1977, but did not ratify it.) This is a legally binding instrument of international law, and the explicit rejection of legal elective abortion contained therein is clearly coherent with the actions of the Coalition in 2080.

Proportionality As I mentioned in passing at the beginning of this chapter, the question of proportionality is, like Just Cause (though to a lesser extent), an aspect of the jus ad bellum where the calculation is somewhat different to the case of a straightforward defensive war.28 The central difference is in weighing the likelihood of collateral damage (that is, the foreseeable but unintended killing of noncombatants). Given that the central purpose and justification of a humanitarian intervention is to protect the citizens of the country, most commentators agree that causing collateral damage in a

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humanitarian intervention is more morally problematic than in a defensive war and must therefore be more strictly limited.29 At first glance this doesn’t seem to be a problem at all when considering the Coalition’s attack on the United States, as the only casualties are uniformed military personnel. But this is perhaps too quick. It is true that the received view is that military personnel are, qua military personnel, liable to attack by military forces on the opposing side during periods of war. But this view has come under pressure in recent times, particularly from thinkers like Jeff McMahan.30 The received view, as articulated in the modern era by Michael Walzer, is that military personnel on either side during a war may be killed without thereby doing a moral wrong, regardless of the justice of their country’s involvement in the war, because they are all in some broad respect “engaged in harm” and therefore “dangerous men [and women].”31 This is sometimes referred to as the idea of the “moral equality of combatants.” Opponents of this view argue that there is no good reason why an unjust combatant who kills a just combatant should be considered to have done something morally acceptable. The just combatant has done nothing to make him- or herself morally liable to attack. In this regard the just combatant should, the argument goes, be seen as akin to the police officer using force to apprehend or even (where necessary) kill a violent lawbreaker. The fact that the police officer is using force, even potentially lethal force where justified, and is therefore in Walzer’s sense “engaged in harm,” does not give the criminal the moral right to kill the police officer. This is because the police officer, being on the side of the right and the good, is not morally liable to attack. This still doesn’t seem problematic for the Coalition, for if it has just cause, as I have argued, then the U.S. military personnel who are killed in the war of 2080 are by definition on the unjust side, and seemingly therefore liable to attack. However, the situation is more complicated than that. As Michael Gross has pointed out32 the predominance of unconventional wars33 in recent decades has forced military ethicists to consider that liability to attack may not fit the traditional binary of combatant versus non-combatant, but may instead admit of degrees. For example, the farmer who actively and enthusiastically allows Hezbollah to store rockets in his barn is less liable to attack than an armed member of a Hezbollah raiding unit, but more liable than his neighbor who only supports Hezbollah

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with occasional financial donations. Even within the bounds of conventional wars there has been some implicit acknowledgement of degrees of liability among uniformed combatants, for example in Walzer’s argument that in the Gulf War of 1991 elite volunteer Iraqi Revolutionary Guards units were more liable to attack than units composed of Iraqi conscripts.34 In an important paper addressing this issue, Bradley Strawser has proposed an alternative to the traditional approach of determining liability to be attacked in war: [R]ather than the binary combatant or non-combatant system of categorization traditionally used, a conflict-by-conflict rubric could be constructed that tracks differing levels of liability for a given set of unjust enemies. The distinctions could range from 1st, 2nd and 3rd-degree combatants and the like (or more, as needed) and similar degrees for non-combatants. The basis for an adversary’s degreed status would be tied to what I call “reasonable perceived liability” (RPL ) rather than other metrics traditionally used (such as posing a threat). RPL is the best approximate determination of an enemy’s degree of liability that could be reached by a just force taking all reasonable efforts to make that determination. Once broad levels of RPL were determined for a population, correlating categories of degreed combatant and non-combatant statuses could then be applied accordingly. Specialized rules of engagement (ROE s) could then be created which best allow a military to achieve victory yet come as close as possible to matching the correct level of response to the RPL for each category. By deriving enemy status from RPL some traditionally labelled as combatants may be considered some lesser-degreed type of combatant with different ROE s [applying]; and vice-versa for non-combatants.35 As the Coalition is driven in its actions by a deep desire to stop the killing of non-liable human persons, it seems appropriate that a stringent approach to proportionality that rests on a demanding definition of liability like that outlined by Strawser should be applied. What should we consider to be the “reasonable perceived liability” of the U.S. military personnel that the Coalition (presumably forseeably) kill in conducting their strike against the U.S. air defense system? That’s a difficult question to answer. If it

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were straightforwardly evident to all rational thinkers of good will that the U.S. government’s policy of allowing legal elective abortion resulted in the deaths of millions of human persons, then the RPL of these personnel would be easy enough to assess—they have voluntarily chosen to serve a state they should know is following a deeply immoral policy, and therefore are fully liable to be attacked to the full extent that unjust combatants can usually be attacked. But of course this is not the situation here—instead, what justifies the Coalition’s attack is that the U.S. government’s policy of allowing legal elective abortion, though pursued in good faith, is negligent in that it poses a significant risk of killing millions of nonliable human persons.36 This being so, the RPL of the military personnel being targeted must be considered to be significantly lower, but not, perhaps, zero.37 Perhaps the wisest course of action is to treat these personnel as if their RPL were zero—if the jus ad bellum requirement of proportionality is met under those conditions, then they are also certainly met if the RPL is higher. Let us stipulate that the Coalition attack was timed to cause the minimum possible casualties, the target set included only equipment and infrastructure (that is, no persons were deliberately targeted), and non-lethal means were used to achieve targeting goals wherever possible. Certainly it would have been entirely rational for the Coalition to proceed in this manner, given their desire to return to a stable peace with the United States as quickly as possible after the brief conflict was over. In that case the casualties would effectively be collateral damage, equivalent to the tragic but sometimes necessary deaths caused to non-liable civilians in conducting militarily necessary operations in just wars. Assuming that the casualties were reasonably foreseen, is collateral damage of around a thousand non-liable or low-liability human persons acceptable in the proportionality calculation of jus ad bellum, taking into consideration the more restrictive proportionality calculus that applies in cases of humanitarian intervention? I believe it is, given that the collateral deaths are caused in an attempt to avert the risk of the death of millions. Just as Country Y seems to have acted within the bounds of proportionality in the second fictional scenario discussed above, it seems likewise correct to say the same of the Coalition. It is extremely difficult to assess what the threshold would be at which the proportionality requirement of jus in bello would disqualify a

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humanitarian intervention to end elective abortion which met all the other requirements of the jus in bello, and I will not try to resolve the issue here. What I have established is that under some circumstances, such as those described in the fictional scenario describing the Coalition’s attack on the U.S., the proportionality criterion could be satisfied.

Conclusion In this chapter I have argued for a surprising conclusion, that under certain circumstances a state’s policy of allowing legal elective abortion could justify acts of war against that state, even if it turns out that abortion does not in fact kill a non-liable human person. Of course the likelihood of an appropriate set of circumstances arising that would justify such a war in reality is vanishingly small. Nonetheless, this conclusion, if correct, should cause states which allow legal elective abortion to take pause. In particular, the issue of moral risk in this respect should be taken seriously. As Moller poignantly writes, “Moral risk seems to be the forward-looking complement to the backward-looking regret we often feel about the value judgments we have made.”38

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Concluding thoughts

The central message of this book is that much of the debate over the topics which I have here clustered under the umbrella of “citizen killings” misses a critical point, which is that public policy in a liberal democracy is not first and foremost about what is or is not ethical for individuals, it is about what states may or may not do. Answering the question of what policy is appropriate requires bracketing considerations that depend on some or other conception of what constitutes the good (meaningful, worthwhile, valuable) life, or what constitutes life at all, as to do otherwise fails to live up to the central liberal ideal of liberal neutrality. Given liberalism, it is no more appropriate for one state to implement policy which in effect declares the secular humanist world view to be correct than for another to implement policy which in effect declares some or other religious world view to be correct. The actions of the state are also constrained by the state’s social contract based responsibility to uphold the right to life of those under its care—otherwise the social contract itself is undermined. To accommodate these vital considerations I have proposed a decision-making framework for policymakers who are serious in their commitment to political liberalism. To recap, in the first chapter I showed, using the example of self-defense and gun bans, how the state’s commitment to the right to life ought to shape policymaking. In Chapters  2 and 3 I focused on cases which illustrate when and how the principle of liberal neutrality ought to be decisive. In Chapter 3 I also began to address situations where there appears to be a tension between these two cornerstones, beginning with the example of the debate over employing “brain death” as the legal criterion for the end of a human life. I proposed that in some cases of this kind the apparent tension can be resolved 121

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by the application of what I call the “reasonableness test.” The test has two parts. To be considered reasonable (and therefore to have weight in a policymaker’s decision-making calculations), a position must, first, be supported by a significant proportion of the population of the state in question (the “sufficient support requirement”). This gives due weight to the democracy part of “liberal democracy,” and avoids the problem of decision-making paralysis caused by fringe positions, while at the same time not sinking into a simple majoritarianism. Second, to meet the reasonableness test, the position in question must be the focus of a significant body of serious and respected argument put forward in its favor by people recognized in society as intellectually credible (“the intellectual credibility requirement”). The reasonableness test dissolves the tension between the state’s duty to uphold the right to life and its duty to uphold liberal neutrality in some cases. Where the tension remains, as I showed, it may sometimes be negotiated through policy that accommodates a compromise between the competing positions in question. In other cases, however, it becomes necessary to apply the final piece of the decision-making framework that I am advocating, namely the “risk of harm principle.” I explored this principle in Chapter  4 through a discussion of the issues of abortion and infanticide. In essence the idea here is that policymakers must, while taking an agnostic stance on the truth or otherwise of the positions which have passed the reasonableness test, consider which of the policy options available pose the least moral risk of violating the right to life of those under the care of the state. It will not have escaped the attention of thoughtful readers that applying the decision-making framework I have advocated in this book generally results in policy that accords most closely with a libertarian outlook. For many this will be a reason to resist this approach. It seems to me, however, that the seriousness and nonrecoverable nature of the right to life, which is central in all questions of citizen killings, is weighty enough for us to say that in these issues, even if in no other, it is appropriate to tie the hands of the state. The central purpose of the arguments I put forward in Chapters 5 and 6 was not so much to encourage civil disobedience, and certainly not to foment revolution or advocate for external interventions, but rather to illustrate (perhaps in a strange way, but in the best way I could think of) just how weighty these policy choices are. Doubtless there are aspects of my argument in this

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book that can and will be contested. My hope is only that the book will stimulate further discussion and thought over what policymaking that is driven by a recognition of the limitations that political liberalism place on the state ought to look like. If that happens I will be pleased to consider this book a success.

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Appendix What about killing animals? The focus of this book is on policymaking on issues where individuals who are not agents of the state kill human beings. That said, several people who have heard parts of the argument set out in the book while it was in development have suggested that the topic of public policy on the killing of non-human animals is one that is relevant to the decision-making framework that I have developed here. In some cases it has been suggested as a kind of reductio-ad-absurdum—“if we apply this framework then doesn’t it follow that we’d have to accept state-imposed vegetarianism?” I think that, rather than being a reductio, this is a serious question worth considering, hence the addition of this appendix to the book. However, I do not claim that this appendix is in any respect a full response to this issue. Rather it is intended as a short exploration of an important topic which demands further thought. It will not have escaped the reader that there is a growing movement, particularly (but not exclusively) in developed countries, advocating against the killing of non-human animals for food (in what follows, as a matter of convenience, I shall use the term “animals” as shorthand for “non-human animals”). In the latter case the argument is sometimes put in terms of an argument in favor of vegetarianism or an argument against eating meat. But this is somewhat misleading—the key issue here is not primarily about whether it is morally appropriate to eat the flesh of animals, but rather about whether or not it is morally appropriate to kill animals where reasonable alternatives such as vegetarianism exist. The most famous contemporary advocate for what is sometimes called “animal liberation” is the Australian philosopher Peter Singer, whose 1975 book Animal Liberation: A New Ethics for Our Treatment of Animals, and subsequent writings related to this topic, have helped established him as one of the most well-known—and controversial—philosophers of recent times. The central claim 125

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offered in support of this position is that the sharp moral distinction which has traditionally been drawn between humans and animals is not justified, and that animals are appropriate objects of greater moral concern than has hitherto been recognized. Some advocates, such as Tom Regan, express the nature of this moral status in terms of rights, while others, like Singer himself, offer a utilitarian basis for the claim, derived from the contention that animals share with us some important cognitive traits, particularly the ability to suffer. These recent secular accounts of the moral status of animals are matched in some ancient religious traditions, such as Jainism or some branches of Hinduism, which view all violence against animals (and in the case of Jainism, plants as well) as spiritually damaging, resulting in such effects as negative karmic influence for the person who carries out the violence. The market intelligence analysis firm Mintel recently reported that the percentage of global food products marked as vegetarian increased from 6 percent in 2009 to 12 percent in 2013.1 While this is probably a reasonable indication of the growing influence of the animal liberation movement, some caution is necessary here, as there are at least two other motivations for changing diets which have likely played a role in this rising demand for vegetarian food. One of those motivations is the motivation for good health—some people switch to eating vegetarian food because they believe they will be healthier as a result, which may or may not also be associated with a moral concern over the killing of animals. Other adopters of a vegetarian diet may well have been influenced by the argument that a wide-scale shift to vegetarian eating habits is essential to avoid the catastrophic effects of climate change.2 These additional considerations obviously complicate the question of the appropriateness of raising and killing animals for food, and so for the purposes of the illustrative argument I give here I will set them aside. Thus, what I argue below should not be taken as a definitive answer to the question of state policy on the killing of animals, but rather as a preliminary exploration of one part of that question. So, then, what should state policy be regarding the killing of animals for food, if we bracket questions of health and climate change? Our intuitive answers to the question will depend on what we think about the moral status that should be accorded to animals. If we agree broadly with the animal liberation movement that animals are by their nature entitled to a level of moral concern

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which is much closer to that which is appropriate to humans than has previously been acknowledged in law, our immediate response will be that the killing of animals for food should be made illegal, as for a state to do otherwise is to allow a terrible injustice to continue. On the other hand, if like the majority we believe that the moral status of animals, while not zero, falls well short of that of human beings, we would be likely to respond along the lines that the killing of animals for food should be allowed to continue, within the bounds of legal constraints designed to minimize unnecessary suffering for the animals and protect the health of those who eat the flesh of the animals concerned. To do otherwise, in this view, would be to unjustifiably restrict our freedom to make our own choices about what we should and should not eat. Given this disagreement, what is the policymaker (assuming him or her to be both unmoved by popular opinion and the desire for job security, and strongly committed to the liberal value of state neutrality) to do? The challenge here is that choosing one way or the other seems to require affirming one conception of the moral status of animals over the competing view. But making such an affirmation seems to require the state to abandon its position of neutrality over the metaphysical underpinnings of different conceptions of the good life. In Balint’s terminology, what seems to be necessary is the abandonment of neutrality of intent, for the state, in selecting one view of the moral status of animals over the competing position, chooses thereby to favor one moral understanding (or, better, group thereof), along with its metaphysical underpinnings, over the others. The option of, as it were, simply “stepping back” from the issue and thereby avoiding the dilemma is not available, as stepping back (that is, withdrawing state regulation of the issue) in effect amounts to choosing a side, by allowing the killing of animals to continue, which amounts to an unprincipled abandonment of neutrality of outcome. Clearly no solution is available which will not involve implementing a policy which runs counter to (at least) one of the world views involved in this debate. Neutrality of outcome cannot, in such cases, be protected. However, an approach is available to the policymaker which allows for a principled decision which respects neutrality of intent and does not simply involve a de facto resort to the status quo. As I have outlined above, I believe the principled policymaker can approach this challenging policy

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decision by evaluating the potential moral risk inherent in each policy option on the artificial assumption (tests of reasonableness permitting) that all of the competing metaphysical claims could be true, and choose the policy option that is, on that basis, least morally risky. I will return to the question of the reasonableness of the two broad positions on the morality of killing animals for food shortly. As will become clear, I take this to be the determining consideration in this case, but, for the purposes of presenting another illustration of the approach I am using in this book, I will set that temporarily aside and begin by outlining the balance of moral risk where it is assumed, as a matter of artifice, that both competing metaphysical claims are equally likely to be true. What is the risk, then, which must be considered if we take the animal liberationists’ view of the moral status of animals at face value? The risk is clearly very considerable indeed. If the animal liberationists are right, current state policy is allowing very significant harm—killing—to befall billions of beings who ought to be given considerable moral weight.3 On the other side of the equation is the risk that, if the standard view is right, a state policy of banning the killing of animals for food would restrict the freedom of choice over what to eat for, in most countries, millions of human beings. If we weigh both of those risk considerations directly against one another it seems clear which way state policy should go. The risk of very serious harm to billions of beings must surely outweigh something as relatively trivial as freedom of choice over what to eat for millions of human beings, even taking into account a reasonably significant difference in the moral weight of humans over animals. Does this mean, therefore, that states which are committed to liberal neutrality ought to opt for a policy that bans the killing of animals for food? Not quite. There is another consideration that— if my proposed way forward on such issues is correct—must be weighed. This is what I have called the “reasonableness test.” How does the reasonableness test apply in this case? Let us begin with the intellectual credibility requirement. There is a considerable body of serious and respected argument both for and against the view that animals are due significantly more moral concern than they are currently accorded, and arguments are put forward by a small army of intellectually credible proponents on both sides. Both the animal liberationist and the status quo positions therefore meet

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the second requirement of the reasonableness test. However, it is in the first requirement—the sufficient support requirement—that the position of the animal liberationists is (currently) undone. Whatever we might agree on as the threshold for considering a view or position to be held by a “significant proportion” of the population, it seems to me that in most countries the number of animal liberationists—currently at least—does not reach that threshold. A possible exception is the case of India, where a very significant proportion of the population are vegetarian4—though there is some question as to what proportion of those vegetarians have adopted this practice out of a moral concern for animals rather than it being simply an inherited cultural practice.5 Currently, therefore, it seems that, with the possible exception of India, states committed to liberal neutrality currently ought not, in formulating polity, to weigh the moral risk of the harm that animal liberationists see as inherent in the practice of killing animals for food. That may well change, however, if societal shifts see the proportion of the population which accepts the arguments of animal liberationists like Tom Regan and Peter Singer increase to the point of significance (whatever we decide the threshold for that to be).

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Introduction 1 In this book I use the term “citizens” broadly, not strictly to refer only to those who are fully-fledged citizens of the state but also to include all other residents of a state who fall under the state’s authority but who are not, at time of acting, agents of the state. I take it that category also includes state employees who, at the relevant moment, are acting in their private capacity. 2 I am grateful to Peter Balint, who first suggested this term. 3 Jonathan Wolff, 2011. Ethics and Public Policy: A Philosophical Enquiry. London: Routledge, 2. 4 Wolff 2011, 3. 5 Wolff 2011, 4. 6 Wolff 2011, 5–6. 7 Wolf 2011, 10. 8 Wolf 2011, 6. 9 David Rodin, 2002. War and Self-Defense. Oxford: Oxford University Press, 25. 10 Gerald Gaus and Shane D. Courtland 2011, “Liberalism,” in Edward N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (Spring 2011 Edition). Retrieved on January 7, 2016 from http://plato.stanford.edu/ archives/spr2011/entries/liberalism. 11 Andrew Mason 1990, “Autonomy, Liberalism and State Neutrality,” The Philosophical Quarterly, 40(160), 433 [433–452]. 12 Like most central issues in political theory, there are competing views on this. Perfectionists in particular turn a jaundiced eye toward liberal neutrality. I cannot enter that debate here, and will take it that my reader concurs with me that state neutrality is both desirable and demanded by liberalism. Those who take a different view of neutrality will find my arguments in this book unconvincing. 131

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13 Gerald Gaus 2003, “Liberal Neutrality: A Compelling and Radical Principle” in Steven Walls and George Klosko (eds), Perfectionism and Neutrality: Essays in Liberal Theory (Oxford: Rowman and Littlefield), 138 [137–166]. 14 Peter Balint 2015, “Identity Claims: Why Liberal Neutrality is the Solution, not the Problem,” Political Studies, 63, 498–499. 15 Thus Kymlicka writes that “the ideal of ‘benign neglect’ is a myth. Government decisions on languages, internal boundaries, public holidays, and state symbols unavoidably involve recognizing, accommodating, and supporting the needs and identities of particular ethnic and national groups. Nor is there any reason to regret this fact. The only question is how to ensure these unavoidable forms of support for particular ethnic and national groups are provided fairly—that is, how to ensure that they do not privilege some groups and disadvantage others” (Kymlicka 1995, 115, quoted in Balint 2015, 496). Likewise Taylor proclaims that “the supposedly neutral set of difference-blind principles of the politics of equal dignity is in fact a reflection of one hegemonic culture. As it turns out, then, only the minority or suppressed cultures are being forced to take alien form. Consequently, the supposedly fair and difference-blind society is not only inhuman (because suppressing identities) but also, in a subtle and unconscious way, itself highly discriminatory (Taylor 1994, 43, quoted in Balint 2015, 496). 16 Balint 2015, 499. 17 Balint 2015, 503–507. 18 Wolff 2011, 5. 19 I use the term “human persons” deliberately because: (a) I wish to exclude from discussion here other species which might be argued to qualify as persons (though I do briefly discuss the issue of animal liberation in the Appendix), and (b) because some of the policy debates that will be addressed here center on the question of whether or not something that is uncontroversially human (e.g. a fetus or someone who has been declared to be brain-dead) is nonetheless a person and entitled to the rights associated with personhood. 20 John Oberdiek 2012, “The Moral Significance of Risking,” Legal Theory, 18(3) (Special Issue), 340 [339–356]. 21 Oberdiek 2012, 342. 22 John Oberdiek, 2009, “Towards a Right against Risking,” Law and Philosophy, 28(4), 376. 23 Oberdiek 2009, 377. 24 Oberdiek 2009, 378.

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25 Oberdiek 2009, 378. 26 Oberdiek 2009, 391–392.

Chapter 1 1 Jeff McMahan, “Why Gun ‘Control’ is not Enough,” New York Times Opinionator Blog, http://opinionator.blogs.nytimes. com/2012/12/19/why-gun-control-is-not-enough/?_r=0 December 19, 2012 (accessed January 18, 2016). Presumably McMahan means single-barreled single-shot shotguns, and does not mean to include single-barreled multi-shot shotguns (e.g. semi-automatic or pumpaction shotguns). 2 Nicholas Dixon, 2009, “Handguns, Violent Crime, and Self-Defense,” International Journal of Applied Philosophy 13(2), 239–260. 3 Henceforth in this chapter I will address only the question of gunrelated crime, and not the issue of suicide. It strikes me as oddly inconsistent that the anti-gun lobby, populated largely by thinkers with liberal views on such topics as voluntary euthanasia, seem to take it as a given that there is no general right to suicide. Of course it is possible that the objection is not to suicide per se, but specifically to using guns in committing suicide (perhaps because such suicides are excessively distressing to those who discover the deceased), but if that is so it is not made explicit. 4 In the interests of brevity I will use the term “pro-gun lobby” to stand for those who argue in favor of the private ownership of firearms, and the term “anti-gun lobby” to stand for those who argue for the banning of private firearm ownership, or the banning of handguns, or for those who contend for any restrictions on the ownership of private firearms such that the potential to use guns in self-defense is severely curtailed or eliminated. 5 McMahan 2012. 6 Nicholas Dixon, 1993a, “Why We Should Ban Handguns in the United States,” St Louis University Public Law Review, 12(2) 243–283; Nichoas Dixon, 1993b, “Perilous Protection: A Reply to Kopel,” St Louis University Public Law Review, 12(2) 361–391; Dixon 1999; Nicholas Dixon, 2011, “Handguns, Philosophers, and the Right to Self-Defense,” International Journal of Applied Philosophy, 25(2) 151–170. 7 McMahan 2012. 8 Dixon 2011, 156.

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9 For a good discussion of the existing data see C’Zar Bernstein, Timothy Hsaio, and Matt Palumbo 2015, “The Moral Right to Keep and Bear Firearms,” Public Affairs Quarterly, 29(4), 345–364. 10 Barring, that is, extraordinary circumstances of supreme emergency. 11 McMahan 2012. 12 Dixon 2011, 156. 13 Hugh LaFollette, 2000, “Gun Control,” Ethics, 110(2), 263–281. LaFollette reaches essentially the same conclusion as McMahan and Dixon, but hesitates, “on policy grounds,” to recommend an outright ban on firearms, proposing instead a system of strict liability on gun owners. 14 LaFollette 2000, 266. 15 LaFollette 2000, 266. 16 LaFollette 2000, 266. 17 For simplicity’s sake I will focus in this chapter only on the right to use lethal force in defense of one’s life, rather than against other serious threats of lasting or permanent bodily harm, though I do not thereby intend to imply that these other justifications for the employment of lethal force do not hold true. 18 While Dixon pays lip-service to the idea that, because of the rights issues involved, the negative risks (in terms of lives lost) of allowing a right to private ownership of handguns (or guns in general) must significantly outweigh the benefits gained (in terms of lives saved) from prohibition of such ownership, he offers no specific ratio or other measure, and in fact seems to argue as if a non-weighted calculation of the risks on either side is sufficient to establish his case. 19 Here I mean the right to self-defense as a negative right. Thus I do not mean to argue that anyone has a duty to provide me with the means of self-defense, only that they may not deprive me of some means that would otherwise be available to me. Of course the social contract changes this picture somewhat, as I will discuss below. It should also be noted that I do not mean that firearm ownership is logically entailed by the right to self-defense, but rather, given the real-world circumstances in which we live, it might reasonably be considered that having a firearm could under some circumstances be necessary to exercise the right to self-defense. 20 Dixon 2011, 155–156. 21 This is not to say that the state might not be culpable for not putting in place some reasonable controls over the sale of such items, but that

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is a different matter, akin to gun control, which I will address below. It will also not do to say that these items are different to guns because they have legitimate purposes—if guns are, as I will argue, necessary and proportionate means by which to defend one’s life, then they too have legitimate purposes. 22 Dixon 2011, 155. 23 McMahan 2012. 24 Dixon 2011, 156. 25 Michael Huemer, 2003, “Is there a Right to Own a Gun?” Social Theory and Practice, 29(2), 297–324. 26 Dixon 2011, 156. 27 My point here is not to enter into the debate about the legitimacy of nuclear deterrence, only to show that such a possibility is not obviously absurd. 28 Dixon writes that the “armchair” claim that handguns act as an equalizer for women or other people who are threatened by physically larger assailants is not supported by empirical evidence. In fact, the most striking finding in Killias et al.’s 2001 study of international rates of firearm ownership and violent crime was the strong correlation between gun ownership and firearm homicides of females:. 61 (p