PUBLIC AFFAIRS QUARTERLY

Volume I 1, Number 1, January 1997

COLLATERAL VIOLENCE AND THE

DOCTRINE OF DOUBLE EFFECT

Camillo C. Bica

     The use of violence/deadly force may, in some situations, be a moral response to aggression. I have argued elsewhere, however, that if, in eliminating a threat, it is necessary to target and kill an innocent bystander, one must, under pain of moral condemnation and sanctions, opt for an alternative defensive response even if the alternative is riskier or less effective.(1) In this essay, I will argue that this stipulation applies as well to instances of what I will term "collateral violence:" i.e., injuring/killing an innocent bystander as a secondary, unintended, though foreseen effect of an act of self-preservation. In so doing, I will argue that the Doctrine of Double Effect (DDE), which alleges to justify collateral violence, is mistaken.(2)

I. LIABILITY AND NON-LIABILITY

    Among the rights we recognize ourselves as having are the rights to life and to respond defensively if unjustly threatened. In what follows, I will accept the Hohfeldian view that a right is a claim against others and the correlative of a duty that they respect that right. A privilege is the absence - - or lack - - of a duty.(3)      I will use the terms "non-liable" and "non-liability" to indicate a protected status, an immunity if you will, that a right bearer enjoys pursuant to her right to life. One remains non-liable for our purposes unless one injures, kills, or poses a real, immediate, and serious threat to the life/well-being of a non-liable human being. The terms "liable" and "liability" will indicate that, by prosecuting such violence, an individual has lost/forfeited both his claim against others that he not be killed and his protected status, i.e., his immunity. Consequently, the non-liable victim and, perhaps, concerned third parties, may, by most accounts, injure/kill the liable aggressor, all things being equal, in justifiable self/other-defense.

II. SELF-DEFENSE AND COLLATERAL VIOLENCE

    The following illustration, Self-defense, is intended to portray a justified use of violence/deadly force to assert a claim.

            Peter, intending to rob John of his possessions, poses a real, immediate, and serious

            threat to his life. Having ruled out all other defensive responses as ineffective of unacceptably                      risky, and, as no innocent bystanders would be placed in harm's way, John responds to Peter's                  threat using violence/deadly force.

    It is Peter's loss of claim - his forfeiture of immunity - because of the threat he poses to John's life/well-being that entails Peter's liability and justifies John's killing Peter, all things being equal, in self-defense. While the life of the non-liable victim in Self-defense clearly represents a more worthy interest than that of the liable individual posing the threat, this may not always be the case. Consider the following, Collateral Violence, and the impact of the DDE upon the claim of an innocent bystander.

            Peter, again intending to rob John, poses a real immediate, and serious threat to his                                  life/well-being. And again, having ruled out all other defensive responses as ineffective or                             unacceptably risky, John elects to respond to the threat using violence/deadly force. John                          foresees, however, that, in doing so, he will, in all probability, kill an innocent bystander, Bill.

    Complicating Collateral Violence is (1) that John's defensive response to Peter will have two effects, that is, the primary, intended effect of eliminating Peter's threat and the secondary, unintended effect of killing Bill and (2) that John foresees both these effects occurring. I noted, in Self-defense, that it was Peter's threatening the life of a non-liable human being that warranted his loss of claim and subsequent liability. By parity of reasoning, then, if, in Collateral Violence, John knowingly kills Bill - - who is also non-liable - - shouldn't he suffer similar sanctions?

    It is here that the DDE steps in and proclaims that it is sometimes permissible to bring about, as an unintentional, though foreseen, secondary effect of an act, that which it would be impermissible to bring about intentionally as an end or a means.(4) In Collateral Violence, then, as John intends only the elimination of Peter's threat and as Bill's death is neither his end nor his means, it is permissible for John to knowingly kill Bill in this situation. As the DDE has rendered Bill's death morally irrelevant, John's response to Peter is justifiable and, as such, warrants no sanctions.

III. THE IMPACT OF THE DDE UPON THE AGENT'S RIGHTS, CLAIMS, AND PRIVILEGES

    Since, as a consequence of the DDE, it is permissible - John has the privilege - to knowingly kill Bill, then, clearly, John does not have a duty to Bill not to kill him. As duties are the correlatives of rights, Bill, therefore, does not have a claim against John not to be killed. Furthermore, John's killing Bill, as it infringes no claim of Bill's, does not warrant John's loss of claim - - forfeiture of immunity - - and, therefore, his liability.

    As John remains non-liable, he maintains his claim that he not be killed. Consequently, Bill has a duty not to kill John, despite the fact that John will, in all probability, kill him. What becomes, then, of Bill's right to life and to defend himself should no defensive response other than violence/deadly force effectively eliminate John's threat? The DDE, besides establishing the permissibility of John's response, entails the impermissibility of Bill's defense and, it seems, an implicit moral obligation to sacrifice himself for John. Consequently, Bill, through no fault of his own, suffers a loss of claim - - a forfeiture of rights.

IV. VICTIM'S RIGHTS AND THE REFUTATION OF THE DDE

Supererogation

     The DDE's justification of collateral violence in the above illustration, by making Bill's sacrifice an obligation, violates our moral intuition about what is morally required of an agent. By most accounts, to risk/suffer injury/death for another, whether as the primary or secondary effect of an act, though perhaps admirable, is supererogatory and not morally required. Unless Bill, then, elects to sacrifice himself for John or, through some act of his own, surrenders or losses his claim, Bill and, perhaps, concerned third parties, may kill John, all things being equal, in justifiable self/other-defense. Since it is permissible, Bill has the privilege, to kill John, then John has lost his right/claim against Bill not to be killed. John, then, has become liable.

Liability and the DDE

    As Bill will be dead whether he is killed intentionally or as an unintentional effect of John's response to Peter, fault and/or agency is not a necessary condition for infringing Bill's claim. Morally grounding John's loss of claim and subsequent liability, then, is the fact that in his response to Peter's threat, John violates Bill's rights.

    John's liability will have a profound effect upon the DDE and its alleged justification of collateral violence. Since John will become liable - - suffer sanctions - - should he kill Bill, then it is impermissible for him to do so, whether as the intended or unintended, though foreseen, effect of his response to Peter. As John's use of violence/deadly force against Peter entails killing Bill, and, as it is morally impermissible to kill Bill, then it is also morally impermissible for John to respond with violence/ deadly force to Peter.(5) Consequently, it is incorrect that the DDE justifies John's response to Peter in Collateral Violence.

V. COLLATERAL VIOLENCE AND ACCIDENTAL VIOLENCE

    It may be objected, however, that this line of reasoning will, ultimately, rule out any use of violence/deadly force as a moral response to aggression as there is always the possibility, however remote, that non-liable human beings will be killed as a secondary effect of the response. This objection fails, however, as it ignores an important moral difference between acts of collateral violence and acts of accidental violence.(6) While I will not discuss the matter in detail here, I will, however, briefly review the moral differences and similarities between accidental and collateral violence relevant to establishing that, by condemning collateral violence, one need not, necessarily, embrace an absolute pacifism.

    First, concerning the secondary effects: in collateral violence, the unintended effect is foreseen and as probable an occurrence as is the intended effect, i.e., the act could reasonably be expected to kill a non-liable human being. In accidental violence, the unintended effect is unforeseen and reasonably unexpected.(7) Second, concerning liability: as the agents of both forms of violence infringe the claim of a non-liable human being, both may be liable to be injured/killed, all things being equal, in self/other defense (especially in cases where the threat is serious and immediate). Third, concerning culpability: since the secondary effect of an act of accidental violence is unforeseen and reasonably unexpected, the agent may not be morally blamed for his transgression - he is excused, after the fact, for infringing the victim's claim. As the secondary effect of an act of collateral violence is foreseen and as probable an occurrence as is the primary effect, the agent may not be exempt from moral criticism and condemnation. Anthony Appiah expresses it well.

                       Nobody supposes the claim that we have moved towards allowing a greater role for                                     intention in our moral assessments entails that we now suppose that a person is immune                           from criticism for the unintended consequence of an act ... It is no defense to moral (or                               legal) responsibility for the death of another person that we did not intend it, if our acts                                could (have) reasonably been predicted to put other people's lives at risk.(8)

    Fourth, concerning permissibility: I argued in the above that, in situations of collateral violence, the act that precipitated the unintended effect is morally impermissible given the specifics of the situation. I noted also that to morally condemn the use of violence/deadly force in situations of collateral violence does not require an absolute pacifism. In cases of accidental violence, however, the act that precipitated the unintended effect may be morally permissible given the specifics of the situation - the agent was himself threatened and, most importantly, the threat to the non-liable human beings was unforeseen and reasonably unexpected.

VI. CONCLUSION

    In this essay, I have argued against the use of deadly force in cases of collateral violence. Specifically, I have concluded that (1) it is impermissible to knowingly kill a non-liable bystander (whether intentionally or unintentionally), and (2) the DDE neither provides the means to bypass this prohibition nor absolves the agent of collateral violence of moral responsibility for his act.

    To morally condemn a particular defensive response available to an individual such as John in Collateral Violence is, by the way, neither to override nor to ignore his right to life. The individual is not, therefore, morally required to passively submit to death. He may defend himself - assert his claim - against the aggressor. In recognition of the non-liable bystander's right to life, however, he must opt for a defensive response other than violence/deadly force, even if the alternative may be riskier or less effective.

    As with the practical application of any theoretical principle, grey areas will continue to exist. This is especially the case as we approach the less than rigid borders separating collateral from accidental violence.(9) I will, however, defer to another occasion, a discussion of such relevant grey area issues as determining and weighing the probability of non-liable risk, issues of "greater good," and whether numbers do count.

    Admittedly, the goal of this essay is quite modest - - to eliminate the moral confusion surrounding paradigm cases of collateral violence. Though modest, this task is critical, however, given the amount of non-liable bloodshed and carnage - especially during war - that has found moral approbation under the DDE umbrella.

NOTES

I am indebted to Robert Holmes for his helpful comments on an earlier draft of this essay.

1. Bica, Camillo C., Just War Theory and a Practical Pacifism, Ph.D.diss., City University of New York, 1995, pp. 15-36.

2. Though my argument will, with proper modification, be relevant to other applications of the DDE (such as in medicine), in this essay I will be concerned only with situations of collateral violence, strictly defined.

3. Hohfeld, Wesley N., Fundamental Legal Conceptions, ed. W.W. Cook (New Haven: Yale University Press, 1919). For an insightful discussion of Hohfeldian thought, see Thomson, Judith J., The Realm of Rights, (Cambridge: Harvard University Press, 1990).

4. For a detailed discussion of the DDE see, among others: Walzer, Michael, Just and Unjust Wars, (New York: Basic Books Inc., 1977), pp. 152-159; Keenan, I., "Taking Aim at the Principle of Double Effect" in The Journal of Philosophy and Medicine 16, no. 5 (October 1991), pp. 201-212; Holmes, Robert, On War and Morality, (Princeton, N.J.: Princeton University Press, 1989), pp. 193-200.

5. Judith Thomson makes this point a positive principle. She writes:

If the only means X has of doing beta is doing alpha, then it would be permissible for X to do beta if and only if it is permissible for X to do alpha.

Thomson, Judith J., The Realm of Rights, p. 108.

6. See Bica, Camillo C., Just War Theory and a Practical Pacifism, pp. 241-245.

7. It may be true, however, that there is a sense in which the occurrences of accidental effects may also be foreseen. An automaker, for example, may foresee that non-liable human beings will probably be killed driving a car that she manufactures. Or, more generally, one may foresee that even in the most deliberate of plans something may go awry - - non-liable human beings may be killed. There is, I think, a significant moral difference between foreseeing the occurrence of an unintended effect in this sense and foreseeing the occurrence of an unintended effect to be as probable an occurrence as is the intended effect. See Bica, Camillo C., Just War Theory and a Practical Pacifism, pp. 241-244.

8. Appiah, Anthony, "Racism and Moral Pollution," in Collective Responsibility, ed. L. May and S. Hoffman, (Maryland: Rowman and Littlefield, 1991), p. 221.

9. I do not deny the possibility, in cases of secondary violence that are less than paradigmatic, i.e., which straddle the border between collateral and accidental violence, that (1) the agent may be excused for his claim violation and, (2) the act that precipitated the accidental threat may be a morally reasonable response.