A purposefully, knowingly, or recklessly engages in conduct that he is aware may lead D to believe that that (1) is true, and A lacks a justification or excuse for so doing.
The Defensive Action Must Be Responsive to the Perceived Attack
This brings us to a final contour of liability. Jeff McMahan worries that if an attempt that cannot kill you is sufficient for liability, then there is no principled limitation on what sorts of culpable attempts render the defender liable. Why not a culpable attempt ten years prior? He illustrates the problem with the following hypothetical case:
Aware that a villain plans to kill you, you begin to carry a gun. On one occasion you have the opportunity to empty the bullets from his gun and you do so. Immediately thereafter, he confronts you in an alley and tries to fire. As he continues to pull the trigger in frustration, you see that a second villain is preparing to shoot you from behind a narrow basement window (it is a tough neighborhood). Unable to flee in time and also unable to fire with accuracy through the tiny window, you can save yourself only by shooting the first villain, causing him to slump in front of the window, thereby blocking the second villain’s line of fire.75
In this case, the first villain is trying to kill you, and you now need him to die to save yourself. May you kill him? If the answer is yes, then notice how we have severed liability from need. Once one has become liable to defensive force, one becomes liable to any sort of defensive force as needed. And, then, McMahan’s argument goes, because there is no real threat, there is no principled limitation to when you cease to be liable to any sort of needed defensive response.
I am unwilling to follow McMahan down this primrose path. My answers to the question of whether you may kill the first villain are no and maybe. No, as a matter of self-defense. Maybe, as a matter of agent-relative permissions. To just gesture at the latter analysis, I believe that the means principle constrains the sorts of actions that we may consequentially justify. Thus, even if killing a culpable person is a lesser evil than dying oneself, one could not use a culpable person. On the other hand, I take it that we may be excused (or there may be an agent relative permission) that entitles us to act as a person of reasonable firmness would.76 It may be too much for morality to ask of me not to use the first villain, and particularly, not to do so given that he is trying to kill me.
Let us return to liability. Is the first villain liable to be killed by me? Here, I think the answer is no. Recall that liability is not complete forfeiture. Once someone is liable to defensive force, you don’t get to carve up his organs and the like. This is liability to defensive force. That is: “Have you done something that allows me to repel your attack?” It is not: “Have you acted in such a way that you are a bad person so I can use you willy nilly?”
The conceptual and normative structures of self-defense are interrelated. Self-defense is about defense. It is not about aggression or things we are permitted to do to others. Self-defense repels aggression. Liability conditions are those behaviors by an aggressor that give rise to the defender’s permission to repel the attack, even when repelling the attack requires harming the aggressor. In the same way that my permission to drive my car is not permission for you to sell its parts, an aggressor’s attack is not a wholesale moral forfeiture but a limited permission to harm another only for the purpose of repelling that attack.77
Critics of forfeiture views have consistently pointed to forfeiture’s seemingly limited explanatory force.78 How can an aggressor forfeit a right to life but regain it as soon as she desists in her attack?79 How can this right be forfeited in limited ways so as only to permit repelling the attack but not harvesting the aggressor’s organs? However, there is nothing particularly odd about seeing our powers to change our rights as being fairly nuanced. A defendant who kills a star witness to prevent her from testifying against him may forfeit his right to confrontation but he does not forfeit his right to a fair trial.80With self-defense, by attacking or knowingly appearing to attack the defender, the aggressor gives the defender a right to repel the attack.
Still, one might find it odd to think that there is an “uptake” element to self-defense. Why should the aggressor’s liability turn on whether the defender is responding to that liability? Should not the responsiveness be a question of permissibility? Consider: