Necessity and Liability: On an Honour-Based Justification for Defensive Harming

Philosophy

This paper considers whether victims can justify what appears to be unnecessary defensive harming by reference to an honour-based justification. I argue that such an account faces serious problems: the honour-based justification cannot permit, first, defensive harming, and second, substantial unnecessary harming. Finally, I suggest that, if the purpose of the honour based justification is expressive, an argument must be given to demonstrate why harming threateners, as opposed to opting for a non-harmful alternative, is the most effective means of affirming oneâs honour. Along the way, I also suggest why I think that internalism about the constraints on defensive harming (the view that the satisfaction of the necessity constraint is a necessity condition of a threatenerâs liability) is correct. Most importantly, externalism implies that threateners can be liable to suffer gratuitous harm. I take this to be an unattractive consequence of the view.

Volume 4, Issue 2 An Honour-Based Justification for Defensive Harming 79 Joseph Bowen Necessity and Liability: On an HonourBased Justification for Defensive Harming JOsepH BOweN University of St Andrews and University of Stirling OXFORD UeHIRO pRIZe IN pRACTICAL eTHICs 2015-16 ABsTRACT This paper considers whether victims can justify what appears to be unnecessary defensive harming by reference to an honour-based justification. I argue that such an account faces serious problems: the honour-based justification cannot permit, first, defensive harming, and second, substantial unnecessary harming. Finally, I suggest that, if the purpose of the honour based justification is expressive, an argument must be given to demonstrate why harming threateners, as opposed to opting for a nonharmful alternative, is the most effective means of affirming one's honour. Along the way, I also suggest why I think that internalism about the constraints on defensive harming (the view that the satisfaction of the necessity constraint is a necessity condition of a threatener's liability) is correct. Most importantly, externalism implies that threateners can be liable to suffer gratuitous harm. I take this to be an unattractive consequence of the view. 1. INTRODUCTION Let us begin with a case: Journal of Practical Ethics JOSEPH BOWEN80 Standing One's Ground.1 Threatener will culpably kill Victim unless Victim takes some preventive action. She has two options, both of which she knows will be effective. She can (1) retreat from the confrontation without risk or cost and alert the police, who will then be able to subdue Threatener without harming him, or (2) stand her ground and kill Threatener in self-defence. some believe that Victim is justified in standing her ground and killing Threatener. They believe that, because of the threat he poses, Threatener is liable to suffer defensive harm. To say that a individual is liable to be harmed is to say that harming him would not wrong him nor violate his rights, and so he would not be justified in defending himself.2 However, this verdict is at odds with a condition commonly applied to liability to defensive harm-necessity. standardly, necessity requires that, for a defensive act to be justified it must be the least harmful of the agent's available effective means of averting the threat. such is not the case in Standing One's Ground. This paper considers whether victims can justify what appears to be unnecessary defensive harm by reference to an honour-based justification. The honour-based justification suggests that when a victim is threatened, there are two threats she faces: (1) the direct physical threat; (2) a secondary threat to her honour. It is defending herself against this secondary threat to her honour that renders certain defensive acts necessary (such as Victim's standing her ground). The primary purpose of this paper is to argue that the honour-based justification faces serious problems. (Along the way, I also suggest why I think that internalism concerning necessity-the view that satisfying the necessity constraint is a necessary condition of a threatener's liability-is correct, despite its initial intuitive implausibility.) The paper proceeds as follows. section 2 considers the relationship between necessity and liability. section 3 advances what I take to be the most plausible version of the honour-based justification. section 4 raises two worries with the honour-based justification: 4.1 questions whether the honour-based justification can justify defensive harming; 4.2 questions whether the honour-based justification can permit substantial unnecessary harming. section 5 question what is meant by an honour-based justification in the first place. I argue that, if the purpose of the honour-based justifi1. This case is taken, with slight alterations, from McMahan (2016b, 195). see also Frowe's Lucky Escape (2014, 88). 2. some might add that, for an individual to be liable to some harm, he must have forfeited rights that he previously held against that harm. see, e.g., McMahan (2005, 386); Frowe (2014, 3). Volume 4, Issue 2 An Honour-Based Justification for Defensive Harming 81 cation is expressive, an argument must be given to demonstrate why harming threateners, as opposed to choosing a non-harmful alternative, is the most effective means of affirming one's honour. 2. NeCessITy AND LIABILITy Necessity requires that, for a defensive act to be justified it must be the least harmful of the agent's available effective means of averting the threat.3 There is debate as to the precise role that necessity plays within a theory of self-defence. Internalism holds that necessity is an internal condition of liability to defensive harm: threateners are liable to defensive harm only if that harm is the least harmful means of averting the threat they pose.4 This means that Threatener is not liable to be killed in Standing One's Ground. (For brevity, "Victim/Threatener" refer directly to Standing One's Ground, whereas "victim(s)/threatener(s)" characterise the generic.) If internalism is true, and Victim nonetheless stands her ground, this seems to imply that Threatener is, amongst other things, (1) wronged, (2) owed compensation, and (3) permitted to engage in counter-defence against Victim (by hypothesis, Victim is now posing a threat to which Threatener is not liable). It further permits, or even obligates, (4) third parties to defend or assist Threatener in counter-defence, as well as obligating them to refrain from interfering with Threatener's counter-defensive action. (These implications hold, absent other arguments.5 I set these other arguments aside because our purpose is to discover the work that the honour-based justification can do in justifying what appears to be unnecessary defensive harming.) Given what some take to be the implausibility of these implications, externalism denies that necessity is internal to liability, though it may bear on the all-thingsconsidered permissibility of defensive action.6 On externalism, because satisfying the necessity constraint is not a necessary condition of a threatener's liability, victims do not wrong threateners if they violate the putatively external necessity condition, but 3. I am tempted to think that satisfying the necessity condition does not require satisfying the (evidence-relative) effectiveness condition, but follow McMahan in the main text for ease of exposition (2016b, 192). It appears to me that one can satisfy the necessity condition vis-à-vis some likelihood of effectiveness, even when that likelihood is below that which is deemed high enough to satisfy the effectiveness condition. 4. e.g., McMahan (2009), (2016a), (2016b); Fabre (2012a), (2012b). 5. e.g., McMahan (2016a), (2016b, 199-203). 6. e.g., Firth and Quong (2012); Frowe (2014). Journal of Practical Ethics JOSEPH BOWEN82 merely act impermissibly. Given that this still means that victims act wrongly in these cases, externalism remains somewhat intuitively implausible. Despite its apparent intuitive implausibility, one reason for endorsing internalism about necessity is that liability justifications seem to be instrumental: for a threatener to be liable to defensive harm, that harm must serve some purpose (in Standing One's Ground, preventing harm to Victim). This is what distinguishes liability-based justifications from desert-based justifications, which hold that imposing harm on a culpable individual is valuable as an end in itself. It is for this reason that Jeff McMahan is an internalist: 'Threatener is clearly wronged by being killed in Standing One's Ground because the unnecessary harm is entirely gratuitous and no one can be liable to suffer gratuitous harm' (2016b, 196). Let us consider what the externalist says about liability. I take the most plausible version of externalism to be Helen Frowe's "proportionate means externalism". Frowe thinks that, 'to say that a person is liable to harm means only that a usual reason not to harm her-that she has a right not to be harmed-is absent'; accordingly, she thinks that 'a person who is liable to defensive harm may use non-harmful means to prevent herself from suffering the harm, even though she may not harmfully defend herself' (2014, 91, 106). so on proportionate means externalism, threateners are permitted to non-harmfully prevent themselves from suffering harm; yet, because their victims have not forfeited their rights not to be defensively harmed, threateners may not harmfully prevent themselves from suffering harm. However, it must follow that, were a threatener unable to non-harmfully defend herself in a case of unnecessary defensive harm and yet were the victim to nonetheless proceed with such unnecessary action, the threatener must suffer some gratuitous harm. (Namely, the amount of harm which was not necessary.) even when the threatener can and may non-harmfully prevent himself from suffering unnecessary harm, he remains liable to suffer such gratuitous harm. This is a disturbing consequence of the view. persons have the right to not be gratuitously harmed. There is no instrumental purpose to be served in the forfeiture of that right. we might question how, on proportionate means externalism, liability is distinct from desert. After all, it seems that threateners are liable to suffer gratuitous harm. The proportionate means externalist might reply that, whilst necessity is not internal to liability, an effectiveness condition is internal to liability. For example, Frowe writes that proportionate means externalism 'recognizes that liability to defensive harm means liability to harm that can avert a threat' (2014, 105). This means Volume 4, Issue 2 An Honour-Based Justification for Defensive Harming 83 that an instrumental purpose must still, potentially, be served in cases of unnecessary defensive harm.7 The purpose of this section has been twofold: first, to situate the debate that the necessity condition figures in; second, to demonstrate that, if we understand liability as an instrumental notion, there is good reason to be internalists about the necessity condition-to think otherwise would mean that agents are liable to some gratuitous harm. 3. AN HONOUR-BAseD JUsTIFICATION OF DeFeNsIVe HARMING Despite its theoretical plausibility, the internal necessity condition seems to have some counterintuitive implications: for example, that if a victim engages in unnecessary defensive harm, this wrongs the threatener and the threatener is thereby granted counter-defensive permissions. even the external necessity condition implies that a victim acts wrongly if she engages in unnecessary defensive harming. In Standing One's Ground, one might be willing to accept either of these implications. However, consider the following case: Rape.8 Eric is in the midst of culpably raping Fran. There is nothing she can do to stop him from continuing to rape her. Fran is able to break Eric's wrist, though this will have no effect but to cause him to suffer. The only way Eric can stop Fran breaking his wrist is to quickly break her wrist first. All of these facts are known by both Fran and Eric. Both internalism and externalism imply that Fran acts wrongly if she breaks eric's wrist. This seems implausible. If internalism is correct, it seems to imply further that Fran wrongs eric and that eric is permitted to break Fran's wrist to prevent her from unnecessarily breaking his. As it stands, the necessity condition seems implausible. It is important to clarify four ways in which harm might be justified even if it will not avert the unjustified threat faced by a victim. A harm may be justified on the grounds that: (i) threatener deserves to be harmed; (ii) it has some deterrent effect 7. For an account of externalism which does not have an internal effectiveness condition, see Firth and Quong (2012). 8. similar cases appear in: Firth and Quong (2012, 689); Frowe (2014, 99). Journal of Practical Ethics JOSEPH BOWEN84 by preventing that threatener or others from perpetrating future harm; (iii) it will lessen further psychological harm to the victim; or, (iv) it defends or affirms a victim's honour. Because we are discussing the last of these justifications, we must be careful to bracket out the proceeding considerations. (As point iii above indicates, we must not count any benefits that Fran may receive from breaking eric's wrist under the umbrella of honour. suppose that if Fran does not break eric's wrist, she will suffer from post Traumatic stress Disorder (pTsD) for two years; if she does break his wrist, this will significantly lessen the length of time that she suffers from it. In these circumstances, breaking eric's wrist is not necessary with respect to averting the continuation of the rape, but might be necessary with respect to preventing or lessening psychological harm to Fran. Accordingly, the honour-based account is not required to justify her breaking eric's wrist (provided that breaking it would be proportionate in relation to mitigating Fran's pTsD). we must suppose that Fran's breaking eric's wrist will not prevent any psychological harm to Fran (or, that it will not prevent enough harm to render breaking eric's wrist proportionate).) whilst some defensive options might be unnecessary as means of averting the physical threat, one might argue that one goal of defensive harm is for the victim to affirm her equal moral status (in Daniel statman's and Frowe's terms, her honour), which is challenged or violated by the threatener's action. As statman writes, 'in the eyes of the aggressor, [the victims] are just items to be used, mere objects' (2008, 689). It is therefore reasonable to suppose that the victim is permitted to assert or vindicate her equal moral status (her honour) by violent resistance, even if doing so will not avert the physical threat she cases. (For brevity, hereafter I stick to statman's and Frowe's terminology of "honour". see Frowe (2014, 109) for an indication that talk of "moral status" might be more accurate.) To put it another way, perhaps when a victim is threatened there are two threats she faces: (1) the direct physical threat; (2) the threat to her honour. It is defending herself against this secondary threat to her honour that renders certain defensive acts necessary (such as standing one's ground or Fran's breaking eric's wrist). The honour-based justification is appealing because it allows the internalist and externalist to explain why victims may sometimes employ what would otherwise be unnecessary (or ineffective) harm. Frowe has recently made two refinements to the view: (i) by limiting the proportionality of the honour-based justification; (ii) by denying deferred honour-based harming. we will consider these in turn. Volume 4, Issue 2 An Honour-Based Justification for Defensive Harming 85 (i) Proportionality of Honour-Based Harming. One might think that the amount of harm which is justifiable in defence of one's honour is that which would be proportionate in defence of the primary threat (statman 2008, §V). In Standing One's Ground, because killing Threatener is proportionate to the threat Victim faces (were Victim not able to avert the threat by retreating, it would also be necessary), Threatener is liable to the harm of death in defence of Victim's honour. This justification goes too far. whilst the gravity of the threat to one's honour will usually rise with the seriousness of the physical threat, this does not necessarily imply that the threat to one's honour is as serious as the physical threat. As Frowe writes, '[t]he wrongness of being treated as the sort of thing that may be subjected to a harm is not the same (and is not as bad) as being subjected to that harm' (2014, 112). That said, I do not agree with Frowe that the threat to one's honour is always 'not as bad' as being subjected to the physical harm. Consider the following case. Bigot. Victim is of a persecuted minority race. Threatener is planning to flick Victim in the ear because he thinks that she is less worthy of equal moral consideration. The harm to Victim will be minor (including, let us suppose, the psychological harm). This case shows that the primary physical threat may be less serious than the secondary harm to a victim's honour. Further, it seems there will be cases in which there are threats to one's honour that do not involve harm at all. we return to the connection between the threatened physical harm and the threat to one's honour in 4.1. (ii) Deferred Honour-Based Harming. One might also think that, '[u]nlike the defense of life, in which Victim must act before the threat materializes, acts to restore Victim's honor can take place afterwards' (statman 2008, 673). Let us call this "deferred harming". This implies, for example, that Fran's actions would be permissible in the following case. Deferred Harm.9 On Monday, Eric rapes Fran. Fran inflicts no harm upon Eric during the rape. On Tuesday, Fran sees Eric in a bar having a drink. Fran breaks Eric's wrist. Frowe thinks that the honour-based justification is most plausible when 'con9. Frowe (2014, 108) calls this case 'Late Rape', but the point of the case is that the harming is deferred, not the rape. Journal of Practical Ethics JOSEPH BOWEN86 ceived of as a defence against a threat to honour rather than an attempt to restore honour ex post' (2014, 113). whilst Fran's breaking eric's wrist appears to be permissible in Rape, Frowe is less sure in Deferred Harm. In order to drive a wedge between the ex ante defence of one's honour and the ex post restoration of one's honour, Frowe suggests that we should conceive of the secondary threat to a victim's honour as supervening upon the physical threat that the victim faces. I take the idea to be that the higher-order properties of the threat to a victim's honour are determined by, and dependent upon, the lower-order physical properties. Accordingly, once the physical threat has ceased to exist, 'nothing that the victim can do can avert that threat to her honour' (Frowe 2014, 114). In summary, victims face two threats: a primary physical threat and a secondary threat to their honour. (i) The secondary threat to a victim's honour is determined by the gravity of, and yet is less serious than, the physical threat. (ii) The secondary threat to a victim's honour supervenes upon the primary physical threat. Accordingly, victims can justify some defensive harm vis-à-vis defending their honour only as long as they face the primary physical threat. 4. AGAINsT THe HONOUR-BAseD JUsTIFICATION I think both of the alterations made above, whilst necessary for the honourbased justification, are unsuccessful. I argue against them in reverse order. 4.1 supervenience The problem with Frowe's supervenience argument arises when considering the point at which the threat to a victim's honour emerges. she faces a dilemma. In order to deny that deferred harming is permissible, it must be that Fran can break eric's wrist only to avert the ex ante threat to her honour and not to restore her honour ex post. However, on the one hand, if the threat to the victim's honour emerges only when the threatener brings the physical threat to fruition, then the victim's avoidance of the primary threat will itself dissolve the supervening threat to her honour.10 In Standing One's Ground, Victim's retreating itself nullifies the threat to her honour which would have occurred had Threatener been able to engage in harming Victim. If, on the other hand, the threat to a victim's honour emerges earlier than the 10. I owe a lot of this horn of the dilemma to discussions with Henry phipps. Volume 4, Issue 2 An Honour-Based Justification for Defensive Harming 87 onset of the primary physical threat, her honour is not being threatened but has already been violated, namely when the physical threat emerged. If this is correct, any "defence" of one's honour is actually a deferred restoration of that honour. Consider Rape. There is not merely a threat to Fran's honour unless she breaks eric's wrist. The physical threat is already being realised, which means that, if the claim about supervenience is correct, the violation of Fran's honour has already occurred. By breaking eric's wrist, Fran is affirming her honour. (Due to space constraints, I cannot discuss when a victim's honour is violated. It seems reasonable to suppose that it occurs when threateners begin to act on their intention to do what will wrong their victim. It could be argued that it begins with the formation of the intention itself.) Frowe might suggest that, because the rape is still occurring, there is still a threat to Fran's honour (or, that Fran is preventing the threatened continued violation of her honour). However, this entails that the further into the rape Fran can break eric's wrist, the less harm can be justified by reference to the honour-based justification. This is because, if the threat to a victim's honour supervenes upon the physical threat, the remaining violation of Fran's honour must decrease in severity as the rape gets nearer to ending. This seems absurd. perhaps it could be suggested that the harm of rape cannot be disaggregated as I suggest (i.e., one cannot say, at t2, there is less harm threatened than at t1). we might think that the threat to Fran's honour supervenes upon the total harm of the rape. However, this does not seem quite right either. Other things equal, it appears that a longer rape must be more harmful than a shorter rape. what might not change is the wronging of the victim. But this is exactly the point: the threat to one's honour depends more upon the wrongdoing than the threatened harm; and, in Rape, there is not a threat that Fran will be wronged-she already has been wronged. The threat to one's honour does not seem to depend purely upon the magnitude of the physical harm faced (as also suggested at 3.2.i in the case, Bigot)-harm and honour come apart in a way that the supervenience argument cannot account for. It is this half of the dilemma (that victim is affirming, not averting a threat to her honour) that supports the suggestion that a victim's honour is being defended-we are just equivocating in our understanding of defence. Fran's breaking of eric's wrist may be necessary (and effective) in respect to affirming her honour. At this stage, whilst the honour-based justification might not permit defensive harming, it may still permit what appears to be unnecessary harming ex post. Journal of Practical Ethics JOSEPH BOWEN88 4.2 Justifying standing One's Ground My second concern is whether the honour-based justification can justify the infliction of what appears to be substantial unnecessary harm on threateners. As suggested in 3.2.i, with Frowe I think that the honour-based justification is most plausible when justifying less severe harms. Let me illustrate this with Standing One's Ground. Victim can (1) retreat, or (2) engage in defensive action, killing Threatener. It seems implausible that Victim may kill Threatener merely in defence of her honour. It would seem, though, that Victim may (3) break Threatener's leg in defence of her honour. That Victim would be justified in breaking Threatener's leg has implications on her actions if she nonetheless engages in lethal defensive action. when victims engage in what appears to be unnecessary defensive action which is also disproportionate in relation to the threat to that victim's honour (as (2) Victim's standing her ground appears), we can subtract from the disproportionate defensive harm that which is justified by appeal to the honour-based justification. If internalism concerning necessity is correct, and Victim nonetheless stands her ground by killing Threatener, this means that she wrongs Threatener to the extent of a harm that would be equivalent to the harm of death, minus the harm of a broken leg. This is because we have stipulated that Threatener is liable only to a broken leg as a means of defending Victim's honour, meaning that he is not wronged by a harm of that degree. (For brevity, let us refer to the harm that would be equivalent to the harm of death minus the harm of a broken leg as "harm [death-broken leg]".) Threatener may harm Victim in counter-defence to the extent that is proportionate to harm [death-broken leg]. This is because agents are permitted counter-defence against unjustified threats which, by hypothesis, Victim is now subjecting Threatener to. Harm [death-broken leg] is an awfully large harm. One way of understanding harm [death-broken leg] is on the following preference-based view. Begin by considering how much life one would give up in order to avoid the harm of a broken leg. plausibly, one might give up one month of their life in order to not suffer such a harm. If the badness of death is that future good which one would be denied through dying, harm [death-broken leg] might be thought of as the harm of being killed in one months time from now-this is equivalent to the harm of death, minus the harm of a broken leg.11 Victim wrongs Threatener to an extent that is equivalent to harm [death- 11. Thanks to Jeff McMahan for this illustration. Volume 4, Issue 2 An Honour-Based Justification for Defensive Harming 89 broken leg] and Threatener is permitted counter-defence to the extent that is proportionate to harm [death-broken leg]. even with the honour-based justification in place, internalism concerning necessity has massive intuitive implausibility when justifying what appears to be substantial unnecessary harm. (Again, I would like to stress that these implications hold, absent additional arguments that do not concern the honour-based justification.) Before turning to how proportionality relates to externalism, let me illustrate the problem for internalism further. what can be drawn from what is said above is that there is a difference between that harm which Threatener unjustifiably threatens to inflict upon Victim (the harm of death), and that harm which Victim unjustifiably threatens to inflict upon Threatener (the unnecessary harm, [death-broken leg]). whilst there is a difference between Threatener's and Victim's wrongdoing (Threatener commits a more serious wrong), the harm of a broken leg that differentiates their wrongdoing is not substantial enough to mitigate Victim's wrongdoing if she engages in unnecessary harming. she still commits a grave wrong. To put it another way, let us amend Standing One's Ground. Standing One's Ground Bystander. The case unfolds as above, except that Bystander is watching. Bystander cannot stop Threatener from attacking Victim. Victim chooses option (2), and stands her ground and is about to kill Threatener. Bystander is now faced with the following three options: she can (A) stop Victim from engaging in unnecessary defensive action by killing Victim; (B) let Victim kill Threatener; (C) stop Victim from killing Threatener by imposing harm [death-broken leg] onto Victim, thereby also stopping Threatener from killing Victim. The only difference with respect to unjustified harm between choosing options (A) and (B) is the justifiable harm of a broken leg-all other harm is, by hypothesis, unjustified. with the honour-based justification in place (and the stipulation that all Victim is justified in doing in defence of her honour is breaking Threatener's leg), option (C) is what Bystander ought to do. This is because option (C) is the option whereby everyone receives only the harms to which they are liable. even with the addition of an honour-based justification, the internalist still faces implausible implications. Things do look a little better for externalism, for it does not imply that Victim wrongs Threatener or that Threatener is permitted counter-defence. However, if exJournal of Practical Ethics JOSEPH BOWEN90 ternalism concerning necessity is correct and Victim nonetheless stands her ground, this does imply that Victim acts, all-things-considered, impermissibly to an extent that would be equivalent to unjustifiably threatening to cause someone to suffer harm [death-broken leg]. If necessity is external to liability to defensive harm (about which I raised reservations above), then even with the addition of the honour-based justification, externalism still faces implausible implications. The plausibility of the honour-based justification increases when the defensive action Victim takes is smaller (compare (3) Victim breaking Threatener's leg with (4) Victim paralysing Threatener merely in defence of her honour). Accordingly, even with the honour-based justification, the difference in wrongdoing between Threatener and Victim is smaller than necessary to rule out, on internalism, substantial counter-defence on the part of Threatener and, on externalism, substantial impersonal wrongdoing. 5. wHAT Is HONOUR ANywAy? This final section asks what is meant by honour and how can it be appropriately and effectively "defended". statman writes, '[c]oncrete acts of resistance are needed in order to communicate to the aggressor, to ourselves, and to an actual or potential audience that we are not just passive objects to be trodden upon. By carrying out such acts, we reaffirm, or protect, our honor'; he continues, '[t]he idea that selfdefensive acts aim at blocking the degrading message sent by Aggressor is reminiscent of expressive theories of punishment' (2008, 669, fn 22). I think this reading of honour is the most plausible: there is expressive value realised when victims defend themselves, even when they know that this defence is not going to avert the physical threat they face; and, because this value is realised by certain defensive acts, when proportionate, threateners are liable to them. If we take forward statman's remark that the honour-based justification is reminiscent of expressive theories of punishment, we run into a problem. expressive theories of punishment say that the function of punishment is, amongst other things, to show society's moral condemnation of the criminal's behaviour. Joel Feinberg writes that punishment is a 'conventional device for the expression of [...] resentment and indignation, and of judgements of disproval and reprobation' (1965, 400). yet, as H. L. A. Hart notes, expressive theories of punishment treat 'the infliction of suffering as a uniquely appropriate or 'emphatic' mode of expression'; however, the normal way Volume 4, Issue 2 An Honour-Based Justification for Defensive Harming 91 in which we express moral condemnation is through words: 'if denunciation is really what is required, why a solemn public statement of disapproval would not be the most 'appropriate' or 'emphatic' means of expressing this?' (1963, 63, 66) If the instrumental value to be achieved by the honour-based justification is merely the expression of the "defence" of one's honour, why must threateners be harmed to achieve this goal? Consider the peaceful protest of Gandhi's followers in the face of British soldiers' brutality during the salt March. In response, it might be suggested that harming threateners is the conventional method by which victims protect their honour. However, if this is the case then we ought to reject those conventions. To paraphrase Victor Tadros, if harming threateners is simply conventional, then making wrongdoers suffer in order to protect victim's honour is barbaric: 'we ought to find some other way of effectively communicating about wrongdoing' (2011, 102). statman takes the line of suggesting that acts of violence are the conventional devices by which we protect our honour. Considering the example of a Gandhifigure, he suggests that '[i]t is not the nonviolence itself that would protect a Gandhi from degradation but his prior overcoming of his concern about honor' (2008, 680). This reply misses the point. we ought to not be concerned with harmful affirmations of honour. (At least, as concerns ideal theory. The most this argument might show is that, given the non-ideal circumstances we find ourselves in, honour-based harming is currently permitted. even that, I am unsure of. perhaps statman could recast this argument and suggest that, with some additional account of demandingness, such Gandhi-like responses are supererogatory.) The aim of this section has been modest: all I mean to do is shift the burden of proof onto those who endorse the honour-based justification of defensive harming. If defensive harming is a means of affirming a victim's honour, an argument must be presented as to why harming threateners is the only, or the most effective way to achieve this. To put it another way, if there are less harmful ways of defending (or restoring) one's honour, harming threateners is not going to satisfy necessity in any case. 6. CONCLUsION This paper has considered whether one can pursue an honour-based justification to account for cases in which it seems that victims should be permitted to unnecJournal of Practical Ethics JOSEPH BOWEN92 essarily harm threateners. The primary purpose of this paper has been to argue that such an account fails. In 4.1 I suggested that if the threat to a victim's honour emerges when the physical threat occurs, victim's avoidance of the primary threat will itself prevent the supervening threat to her honour; if the threat to victim's honour emerges earlier, it has already been violated-in which case, any defence of one's honour is actually a deferred restoration of it. Accordingly, the honour-based justification can only permit harming ex post. In 4.2 I suggested that even with an honour-based justification in place, the difference between the victim's and the threatener's wrongdoing is not going to be substantial enough to mitigate victim's wrongdoing if she engages in unnecessary defensive harm. In section 5 I suggested that if the purpose of the honour based justification is expressive, then an argument must be given to demonstrate why harming threateners is the only means by which to achieve this end. The problem of reconciling the necessity condition and accounting for intuitively plausible cases in which it seems that victims should be permitted to unnecessarily harm threateners remains. This task is even more pressing if, as I have suggested at the close of section 2, internalism concerning the necessity condition (the view that meeting the necessity condition is partly constitutive of a threatener's liability) is correct. Acknowledgements: My thanks go to audiences in Monterey, Warsaw, Oslo, and Oxford, and for written comments from Jonathan Parry, Henry Phipps, Michael Prinzing, and Michael Robillard. Most of all, my thanks go to Jeff McMahan and Stephanie Miller for reading countless versions of this paper. ReFeReNCes Fabre Cécile (2012a). 'Internecine war Killings', Utilitas, 24/02, pp. 214-236. --- (2012b). Cosmopolitan War (Oxford: Oxford University press). Feinberg, Joel (1965). 'The expressive Function of punishment', The Monist, 49/3, pp. 397-423. Frowe, Helen (2014). Defensive Killing (Oxford: Oxford University press). Volume 4, Issue 2 An Honour-Based Justification for Defensive Harming 93 Firth, Joanna Mary and Quong, Jonathan (2012). 'Necessity, Moral Liability, and Defensive Harm', Law and Philosophy, 31, pp. 673-701. Hart, H. L. A. (1963). Law, Liberty and Morality, (Oxford: Oxford University press), pp. 60-69. McMahan, Jeff (2005). 'The Basis of Moral Liability to Defensive Killing', Philosophical Issues 15/1, pp. 386-405. --- (2009). Killing in War (Oxford: Oxford University press). --- (2016a). 'Review of Helen Frowe, Defensive Killing', Ethics 126. --- (2016b). 'The Limits of self-Defense', in Christian Coons and Michael weber (eds.), The Ethics of Self-Defense (New york: Oxford University press), pp. 185-211. Tadros, Victor (2008). The Ends of Harm (Oxford: Oxford University press). statman, Daniel (2008). 'On the success Condition for Legitimate self-Defense', Ethics, 118, pp. 659-86.


Zoroastrianism

Philosophy

Zoroastrianism • By • Williams, Alan DOI 10.4324/9780415249126-N090-1 Article Summary Zarathushtra, better known to the Classical and modern world in the Greek form of his name 'Zoroaster', revealed his vision of truth, wisdom and justice in the verse texts known as the Gāthās (c.1200–1000 BC) and is revered by Zoroastrians as their holy prophet. The religion is correctly described as mazdāyasna, 'the worship of Ahura ('Lord') Mazdā, creator of the world and source of all goodness. Since the Avestan word mazdā means 'wise, wisdom', Zoroastrians see their prophet as the original philosophos, 'lover of wisdom'. Zarathushtra's message is primarily ethical and rationalistic. Zoroastrianism teaches a life based on (1) the avoidance of evil, through rigorous discrimination between good and evil, and (2) the service of wisdom through the cherishing of seven ideals. These latter are personified as seven immortal, beneficent spirits: Ahura Mazdāhimself, conceived as the creative 'holy' spirit; Sublime Truth; Virtuous Power; Good Purpose/Mind; Beneficent Piety; Wholeness/Health and, finally, Immortality. Evil originates neither from God nor from his creatures, but from a wholly other source, personified as Angra Mainyu, the 'Hostile Spirit', whose existence is ritually and doctrinally rejected as being pretended and parasitic. Real existence is solely the domain of Ahura Mazdāand his creation; Angra Mainyu and his demons are actually states of negativity, denial or, as the religion puts it, 'the Lie'. Thus the charge that the religion is ontologically dualistic is no more true than it is of other systems which conceive of good and evil as being in fundamental opposition. Equally, the allegation that its theology is ditheistic or polytheistic is a misunderstanding of the Zoroastrian theological and ritual tradition. The influence which this religion has exerted on classical philosophy and the thought and practice of Judaism, Christianity and Islam is being reappraised by scholars in modern times. ia of Philosophy. Taylor Williams, A.(1998). Zoroastrianism. In The Routledge Encycloped and Francis. Retrieved 30 Jan. 2019, from 1. -https://www.rep.routledge.com/articles/thematic/zoroastrianism/v 1-N090-doi:10.4324/


Philosophy

April 2008, Vol. 98, No. 4 SAMJ ORIGINAL ARTICLES 284 Medical futility and end-of-life care D Sidler, H R Arndt, A A van Niekerk The 'medical futility'1 debate must be understood within the context of modernity, which is characterised by an apparently unbridled striving for control, spurred on by ambition and self-importance, with human reason considered the measure of all value. Medicine has become the epitome of this impetus, a technologically driven science. The phenomenon of death is increasingly thought of as an anomaly, an embarrassment – even a scandal.2 Modern people struggle to accept the inevitability of death, and try to muster control over death by medicalising it in order to control it better and to avoid its causes.3 Causes of death are increasingly seen to be preventable. The self-confidence of our technological era could be understood as a defence mechanism against the experience of life's vulnerability, and a mechanism for coping with disability and death. The medical paradigm, with its justification of an all-out war against disease and death in order to achieve utopia for all, has rendered the medical paradigm unsustainable. Medical technology cannot cure or prevent suffering under all circumstances. It may sometimes prolong meaningful life. It is also able to postpone death, sometimes indefinitely, and sustain the organism without improving the underlying condition of disease, creating an illusion of immortality. A modern paradox is that the imperative to eradicate human suffering, which has become a societal priority against the backdrop of a narcissistic impulse to omnipotence,4 has itself become a cause of suffering.5 We suggest a reconsideration of the original goal of medicine. Respect and care for the patient, and preservation of the patient's life where possible and desirable, are of the utmost importance, but the main goal is seen not as the prolongation of life, but rather as the relief of suffering. The concept of medical futility has the potential to be of benefit in that it helps to delineate the limitations and boundaries of technological medicine and allows for the acceptance of death as a natural outcome of life and a potential friend. It enables a shift from the focus on curative and often aggressive, potentially harmful approaches, to an acknowledgement of palliative care, enabling issues of quality of life and care to take precedence over an undue and irrational insistence on the idea of the sanctity of life. Definitions of futility A quantitative definition of the futility of treatment, has been suggested,6 although this has not proved successful. It is based on the probability of a treatment not having the desired effect – if the p-value is ≤0.01 the treatment could be considered futile. The qualitative definition of futility highlights the chasm between the achievements of an expected goal of treatment and its benefit to the patient. In this context a futile treatment is one that merely preserves permanent unconsciousness or that fails to end total dependence on intensive medical care. Physicians should differentiate between a therapeutic effect, i.e. one limited to some part of the patient's body (physiological definition of futility), and a benefit that improves the condition of the patient as a whole. Treatment with a therapeutic effect but without benefit to a patient is burdensome and could be labelled futile. The applied concept of futility is that futile means are not ethically indicated, and with few exceptions, should not be provided. Futile treatment for babies that could apply to all patients has been summarised.7 A treatment is futile when it: '1. ... does not alter a person's persistent vegetative state; 2. does not alter diseases or defects that make survival beyond infancy impossible; 3. leaves permanently unrestored a patient's neurocardio-respiratory capacity, the capacity for a Department of Surgery/Paediatric Surgery, Tygerberg Children's Hospital and Stellenbosch University, Tygerberg, W Cape D Sidler, MD, MPhil (Applied Ethics), FCS (SA) Psychologist, Cape Town H R Arndt, MA (Couns Psych) Centre for Applied Ethics, Department of Philosophy, Stellenbosch University, Stellenbosch, W Cape A A van Niekerk, MA, BTh, DPhil Corresponding author: D Sidler (email@example.com) Acceptance of the concept of medical futility facilitates a paradigm shift from curative to palliative medicine, accommodating a more humane approach and avoiding unnecessary suffering in the course of the dying process. This should not be looked upon as abandoning the patient but rather as providing the patient and family with an opportunity to come to terms with the dying process. It also does not entail withdrawal or passivity on the part of the health care professional. In addition to medical skills, the treating physician is responsible for guiding this process by demonstrating sensitivity and compassion, respecting the values of patients, their families and the medical staff. The need for training to equip medical staff to take responsibility as empathetic participants in end-of-life decision-making is underscored. S Afr Med J 2008; 98: 284-286. Pg 284-286.indd 284 3/26/08 3:19:13 PM ORIGINAL ARTICLES 285 April 2008, Vol. 98, No. 4 SAMJ relationship, or moral agency; or 4. will not help free a patient from permanent dependency on total intensive care support.'7 It has been suggested that treatment should be regarded as futile if it does not achieve its physiological objective.8 Thus cardiopulmonary resuscitation (CPR) would be regarded as futile if it failed to achieve a heartbeat and circulation, but would not be considered futile, even if the patient subsequently died, if it achieved restoration of circulation or if the patient survived without a chance of enjoying a meaningful quality of life. The authors believe that their physiological definition is superior to the qualitative and quantitative definition in that it avoids a value judgement. This reductionist approach contains a suspicious value judgement, namely that 'when we administer therapy, we care only what happens to the organs, and we do not care what happens to the patient'.9 Futility needs to be seen in the context of a belief in the good of life. Such belief will affect the choice of a futility threshold.10 Anti-futility arguments Ambiguity and relativity of futility Futility judgements can sometimes be justified, but the concept of futility is 'fraught with confusion, inconsistency, and controversy'.11 The concept is thought to make sense in some instances, when the treatment has no pathophysiological rationale, e.g. when the patient is not responding, the treatment has already previously been given without success, and further treatment will probably not achieve the goals. These legitimate claims of futility judgements are differentiated from other more general uses of the concept of futility, where the likelihood of success is very small but not zero, i.e. where the goals physicians perceive to be worth while cannot be achieved. In these cases, the patient's quality of life is considered to be unacceptable, or the prospective benefit is deemed not to be worth the resources required. Determining when treatment becomes futile remains problematic and attempts at quantification of treatment outcome are difficult. Perceptions of futility can range from zero probability of success to simply poor probability. Poor probability needs to be defined, but determining the cut-off point and appointing the judge of this final verdict are both difficult challenges. Confusing the different levels of futility judgement triggers endless, insoluble disagreements between opposing parties. Value judgements Futility judgements can slide into 'generalisation of expertise', with physicians illegitimately claiming authority over value judgements that patients should be allowed to make themselves.12 Merely employing the specific terminology of futility could cause a physician to decide that a specific treatment is not 'medically indicated', and in this way the value judgement could be masked. 'Futility determinations will inevitably involve value judgments: a) whether low probability chances are worth taking; and b) whether certain lives are of a quality worth living.'13 Uncertainty in prognostication Information on the natural history of disease is often lacking and contributes to the complexity of the futility debate. Medical prognostication involves probabilities and should not be simply informal recall of one's previous clinical experience. Rather it should reflect a best estimate derived from review of all valid applicable prognostic studies. Existing predictive models do not seem to have improved the accuracy of physicians' clinical estimates of survival. Therefore professional frustration with a patient's clinical response to treatment and difficulty in accepting the patient's outcome and quality of life could be confused with scientific assessment of the probability of improvement, and lead to labelling of such treatment as futile. Futility judgements could therefore become mistaken rationalisations and projections of feelings of professional inadequacy, failure and guilt. Futility as the physician's trump card Anti-futility arguments are often championed by ethicists who fear that physicians may use futility arguments unilaterally, returning to a time when paternalism granted physicians unlimited decision-making power, thereby severely restricting patient autonomy. Arguments for futility which seem to establish that these fears are warranted have been presented.14 It has been suggested that patients diagnosed with permanent loss of consciousness should be refused medical treatment to prevent demoralised caregivers from being forced to provide care which they believe to be wasteful and futile. A further suggestion has been to change the definition of death to include a diagnosis of permanent unconsciousness. Thus, treatment should be withdrawn after a limited mandatory period of medical treatment for unconscious people, regardless of family objections. The American Thoracic Society15 seems to have embraced such a conclusion, declaring that treatment should be considered futile 'if reasoning and experience indicate that the intervention would be highly unlikely to result in a meaningful survival for the patient', and asserts that a 'health care institution has the right to limit a life-sustaining intervention without consent'. Conversation versus paternalism A model of conversation between patient and doctor has been developed, with the patient encouraged to take a more active, informed position in the therapeutic decision-making process.16 However, there could be a danger using the futility concept – some supporters might conclude that they can solve difficult questions without discussing them with the patient or family, relying solely on their professional expertise. The Pg 284-286.indd 285 3/26/08 3:19:14 PM April 2008, Vol. 98, No. 4 SAMJ ORIGINAL ARTICLES 286 physician-patient relationship has frequently been described as a conflicting power dichotomy, which seems unnecessary and undesirable. Others have suggested that the dichotomy be abandoned in favour of a model of deliberation, where patient and physician interact, share and make the decision together, both parties accepting moral responsibility in arriving at a decision.17 According to this deliberative model, no doctor should unilaterally invoke a futility judgement as trump card against a patient's autonomy. Instead, a patient's request for ongoing life-sustaining treatment could serve as a starting point for further exploration and deliberation. A futility judgement can never be a full justification to implement a specific action, since it requires further explanation in terms of values, perspectives and treatment goals. Futility judgements should therefore never end a discussion, but rather serve as a starting point. Pejorative connotations Medical futility could pejoratively be misappropriated when it is referred to as the 'futile care concept'. This is a serious misunderstanding. To care for a patient, particularly a dying patient, can never be futile. Whenever an act of caring takes place, it is not futile. Treatment options or goals can become futile, but up to the very end, the patient remains the focus of care. Discussion Medical technological advances may obscure the need for human compassion for the dying and their loved ones. The death of a patient is often considered a medical failure and quality of end-of life care is often unsatisfactory for both patients and families. Compassionate withdrawal of treatment requires moving from a tactical approach and its associated goal, with the physician focusing on individual interventions, to a strategic approach, with formulation of a different treatment goal. This should be the result of discussions with the patient, parents and staff involved. Medical personnel remain active participants and do not have the luxury of naïvely withdrawing from such responsibility. The Western medical paradigm needs to be replaced by a more pluralistic, contextually sensitive paradigm for delivering health care. It can no longer be presupposed that physicians, nurses and patients share a common view of the good of life, or that medical practice will be conducted and framed by JudaeoChristian principles.18 The dominance of patient autonomy4 has been increasingly challenged and the concept of medical futility is central to such a challenge. There is a growing body of evidence suggesting that 'consistent with the goals of medicine since the time of Hippocrates [that] physicians not only have no obligation to treat – or even present such options to patients and families – when medical interventions cannot produce a sufficient quality of life [such as restoring consciousness and the ability to live without continuous life support], but also that physicians cease behaving professionally if they persist even when no medically valid goal remains'.19 We suggest that a paradigm shift is necessary within the growing awareness of the limits of medical science's propensity to cure, heal and extend life. Changing from cure-at-all-cost to care-where-cure-is-impossible indicates that there is a need for research and education in quality of end-of-life care. Uncritical acceptance of the advanced possibilities that technology affords medicine may lead to support of the fallacy that cure is effected by prolonging life. On the contrary, the dying process may be prolonged, which may not only prolong suffering but also cause it. Furthermore, empathic caring is sacrificed for treatment based on technological imperatives. Leadership is required to support the ongoing progress of clinical medicine as well as the evolution of our consciousness, which should lead to increased compassion. References 1. Sidler D. Medical futility as an action guide in neonatal end-of-life decisions. MPhil Thesis, Stellenbosch University, 2004. 2. Bauman Z. Mortality, Immortality and other Life Strategies. Stanford University Press, 1992: 219. 3. Van Niekerk AA. Modernity, mortality and mystery. Philosophy Today 1999; 43: 18-34. 4. Richter HE. Der Gottes Komplex. Zürich: Buchklub Ex Libris, 1981: 1-349. 5. Jonas H. Technik, Medizin und Ethik. Frankfurt am Main: Inselverlag, 1987: 1-323. 6. Schneiderman LJ, Jecker NS, Jonsen AR. Medical futility: its meaning and ethical implications. Ann Intern Med 1990; 112: 949-954. 7. Drane JF, Coulehan JL. The concept of futility: Patients do not have a right to demand medically useless treatment. Health Prog 1993; 74: 28-32. 8. Waisel DB, Truog RD. The cardiopulmonary-resuscitation-not indicated order. Ann Intern Med 1995; 122: 304-308. 9. Brody H. Medical futility: a useful concept? In: Zucker MB, Zucker HD, eds. Medical Futility and the Evaluation of Life-Sustaining Interventions. Cambridge: Cambridge University Press, 1999: 1-14. 10. Trotter G. Mediating disputes about medical futility. Camb Q Health Ethics 1999; 8: 527-537. 11. Lo B. Resolving Ethical Dilemmas: a Guide for Clinicians. Baltimore: Williams & Wilkins, 1995: 73-81. 12. Veatch RM. Generalizations of expertise. Hastings Center Studies 1973; 1: 29-40. 13. Youngner SJ. Applying futility: Saying NO is not enough. J Am Geriatr Soc 1994; 42: 887. 14. Angell M. After Quinlan: The dilemma of vegetative state. N Engl J Med 1994; 330: 1524-1525. 15. American Thoracic Society. Position paper. Withholding and withdrawing life-sustaining therapy. Ann Intern Med 1991; 115: 478485. 16. Katz J, Capron AM. The Silent World of Doctor and Patient. Baltimore: Johns Hopkins University Press, 2002: 1-264. 17. Lelie A, Verweij M. Futility without a dichotomy; towards an ideal physician-patient relationship. Bioethics 2003; 17(1): 21-31. 18. Tangwa G. The traditional African perception of a person. Hastings Cent Rep 2000; 30: 39-43. 19. Kriel J. Matter, Mind and Medicine: Transforming the Clinical Method. Amsterdam: Rodopi, 2000. Accepted 19 December 2007. Pg 284-286.indd 286 3/26/08 3:19:15 PM


Philosophy

What George Spencer-Brown wants to rationalize out of existence is alternation itself â the prerequisite of his whole operation. By that he simplifies (identifies) more than he says. And he does not say all that is important.

Laws of Form: Why Spencer-Brown is missing the point by Claus Janew In his famous book Laws of Form George Spencer-Brown tries to construct the world from the most simple. He begins with a simple distinction, a circle on a structureless plane for example. He does not say that this is the only way to begin, but makes the reader simply do it and see what is developing. In addition, he gives more handling instructions, which reduce the most possible to the least possible. I focus on his beginnings – the distinction – and the way how this is interpreted by him (indeed): "... every duality implies triplicity: what the thing is, what it isn't, and the boundary between them." By this the world is digitalized. Subsequently, he examines extensions ("... to recross [the boundary] is not to cross [the boundary]") and reductions ("What a thing is and what it is not are identical in form"). In any case, the boundary remains only boundary, i.e. distinction. However, the boundary has been created just by crossing itself: It only exists by changing the sides. If I stand still on one side, all vanishes. But when I change the side, I must change to another. Therefore, both sides are never identical in distinction, because then the crossing, the alternation, that creates them, would vanish. If we reduce everything to distinction ("form") as such, as Spencer-Brown sometimes does, the distinction still must be perceived as such. This means, the alternation condenses. And this it does (without changing everything) only in the middle. So the boundary is unity in extreme, moment of identity of both sides. The alternation then takes place between the center of identity and periphery, which leads to infinitesimality structure. What Spencer-Brown wants to rationalize out of existence, therefore, is alternation itself – the prerequisite of his whole operation! By that he simplifies (identifies) more than he says. And he does not say all that is important. If one follows his instructions, no contradiction results. But who says, that one has to restrict oneself in this manner? As for the extension "to recross is not to cross": It shows that identity always points beyond itself, since strictly speaking it came into being by recrossing – there is no closed operation, the unlimited world is connected. With this even the extension of the Brownian principles is justified. www.free-will.de Creative Commons Attribution 4.0 International License.