*NB: Thread Extended until Monday, 20 March, 17:00 PDT*
Welcome to our latest P&PA discussion forum, on David Clark’s “Refusing Protection”. You can find the paper open access here.
We kick off the discussion with a critical précis by Kim Ferzan:
For years, I’ve been at conferences where someone will occasionally mention the ability a victim has to refuse another’s defense. It is the kind of question that gets a passing glance, but David Clark’s fabulous new piece, Refusing Protection, reveals precisely how much we’ve missed in these cursory discussions. Refusal is a layered and deep philosophical puzzle that can teach us quite a bit about consent, self-defense, lesser-evils, and normative powers generally. Clark does a masterful job of explicating all the moving pieces—his piece is both admirably clear and thoroughly rigorous—and I hope this brief précis can do his work justice.
Here’s the kind of case at issue:
Siblings: Adam, Teresa, and Dan are adult siblings. Jealous about being left out of their mother’s will, Adam attempts to break Teresa’s leg. The attack can only be stopped … if either Teresa or Dan break Adam’s leg first. Dan prepares to harm his brother, but Teresa—who is a committed pacifist and who would rather be harmed than see Dan harm their brother in her name—demands that he stand down. (1)
Working off the intuition that Dan’s intervention is now impermissible, Clark’s objective is to understand precisely why this is so. The real-world payoff is the permissibility of humanitarian intervention when there is disagreement within a particular populace as to whether they want to be rescued; specifically, the threshold at which refusal renders intervention impermissible.
Clark’s central claim is that “the power to forbid protection is an upshot of a more basic normative power—the power to mitigate specific normative effects of our rights.” (2) He argues, “we have the power to selectively restore some of the rights that one’s attacker forfeits by threatening our rights. One way in which this power is exercised is by the refusal of protection.” (2) His foil is Jonathan Parry, who has introduced a different explanation.
To understand how Clark contrasts his position with Parry’s, let’s begin with liability to defensive force as well as a framework for consent. One common understanding of liability in self-defense (and the view that Clark adopts) is that the aggressor has engaged in an action such that she has forfeited her rights against defensive force. If Culpable Aggressor is attacking Innocent Victim, Innocent Victim does not wrong Culpable Aggressor by defending herself b/c Culpable Aggressor has forfeited her rights against proportionate force by attacking. But, liability alone is not sufficient to make defensive force permissible. There must also be a reason to impose that force. So, if Innocent Victim can simply pinch Culpable Aggressor, then even if Culpable Aggressor is threatening deadly force, there is no reason for Innocent Victim to do any more than pinch Culpable Aggressor to defend herself.
Now here’s my take on consent, one that I hope is generally uncontroversial. First, consenting is not requesting. Requesting not only drops a claim right but gives a person a positive reason to engage in the act. Second, some consenting is just dropping a claim right. You ask if you can borrow my lawnmower. I am not excited about that, but I nevertheless agree. That’s consent. Third, sometimes one consents to an action that is harmful. A and B agree to a boxing match. Not only does A’s consent mean that B does not wrong her but also A’s consent excludes the harmful impact on A as a reason when B considers her own reasons for acting.
Clark begins by dismissing that refusal is as simple as consenting. The problem is that Teresa may still wish to maintain her right to defend herself or (even if as a pacifist she doesn’t want to), she may still want it to be the case that Adam is wronging her and that compensation is owed.
Clark maintains that refusal is either going to effect the “reasons dimension” or the “liability dimension.” (2) For liability, protection is impermissible because the attacker is no longer liable to the third party’s force. For reasons, the refusal changes the reasons the third party has for intervention, either removing reasons that did exist or contributing to reasons not to defend. Parry pursues the reasons path; Clark opts for liability.
Parry’s view (EXCLUSION) is “[a] person X has the normative power to make it so that the fact that Y’s Φing would benefit (or harm) X is not a reason for Y (not) to Φ.” (5) EXCLUSION allows Teresa to defend even though she refuses Dan’s protection because the exclusion of reasons is person-relative.
Clark presents three objections (to which I am going to pepper in some concerns along the way). First, he thinks this view has implausible implications, as he imagines a boulder rolling at A, B, and C. A and B will die, but C will only have his toes broken. B tells you not to take his interests into account. This now means that you should roll the boulder at B, something Clark finds “very implausible.” (7)
Though the set up does make this result counterintuitive, it ignores the way in which we consent. Consider a case in which a boulder is rolling along a trolley track at B (who will die) who is in front of C (who will have broken toes). You can press a button that switches the track so the boulder will hit C instead. If B says, “I consent to be hit,” this seems to me to present the same compelling kind of case where we are just flummoxed that B wants to sacrifice so much to prevent so little harm to C. But if we reject B’s consent, we are going to need a reason to doubt the validity of the consent on that occasion.
Clark has more objections up his sleeve. He claims EXCLUSION is under motivated, rejecting Parry’s assimilation of the need for a power to exclude with “paternalism’s distinctive wrongfulness.” (8). Clark finds this unavailing because one can be wrongfully paternalistic without someone exercising a normative power, such as when A hides his brother’s cigarettes to get him to stop smoking. This, notes Clark, has nothing to do with reasons exclusion.
I am not so sure. Let’s assume that Teresa is being attacked but she is sleeping. Dan knows that she is a committed pacifist—maybe she’s a philosopher who has devoted her life to trying to convince others of her views. Although this may be difficult to imagine because we might wonder whether Dan can truly know that Teresa would refuse protection, it seems that if he were certain, he would be as bound by her theory of the good as if she had voiced her refusal on that occasion. (Perhaps just as there is “hypothetical consent” there is “hypothetical refusal.”)
Additionally, Clark’s argument, that ignoring the exercise of a normative power is why paternalism is objectionable, seems to undermine the standard assumption of how we wrong the boxer in the case of actual consent. Does Clark deny that in some cases it is specifically because the person exercises their will that paternalism is wrong? Maybe there is not just one way in which paternalism is wrong. Perhaps it is wrong when we ignore someone’s will, when we undermine our knowledge of their theory of the good, and when we manipulate them and fail to take them seriously when they are selecting their good (as in the case of nudging that Clark mentions (9)).
Finally, Clark also rejects that if Dan could stop Adam with only a light punch that Dan should not intervene if Teresa refuses. But Clark simply rejects this as counterintuitive. (10)
As I have noted, my worry is how Clark’s objections generalize to consent itself. Now, perhaps Clark can point to the fact that consent impacts the “liability”/rights dimension, not just the reasons dimension. But I think this ignores how important the reasons dimension is in determining the permissibility of third-party behavior. Returning to our boxing match, if A will be seriously injured by fighting but B will lose almost nothing if the match does not proceed, shouldn’t a third party still respect A’s decision? Indeed, even though it is true that B would not wrong A by punching her, it seems that A’s interests, even if not protected by a right, would generate reasons for third parties to intervene unless A also has the power to exclude the harm to her as reasons for others to act. On Clark’s view, all that Teresa does is to reveal “certain of her preferences” which give Dan “some reason to refrain from protecting her,” but “it is rare that such reasons are weighty enough to tip the scale.” (11) Yet, in some cases, we are going to need far more than this to get consent off the ground.
Still, one might think that even if the reasons approach is plausible; there might be something (more) to the liability approach. Indeed, it is notable that although I rely on the reasons aspect of consent in raising my objections to Clark, consent does have a rights dimension.
Here’s how Clark argues for a liability approach. He claims that when someone attacks one person, he renders himself liable not just to his victim but to everyone. He notes that waiver/consent changes all sorts of rights and duties, but he wishes to slice and dice more finely. He argues that “it often matters to us that we have this more fine-grained form of control,” (13) noting it allows Teresa to both deny defense on her behalf as well as to receive compensation. So, too, someone who wants to practice her mixed-martial art skills may wish to defend herself and not have anyone intervene.
His view is CONTRACTION: “[W]e have the power to restrict the domain of persons with respect to whom our attacker is liable.” (14) Clark immediately addresses the most central implication of CONTRACTION—that it seems that Adam, but not Teresa, is wronged if Dan ignores Teresa’s refusal. Clark denies this, noting that we are wronged when others fail to respect the exercise of our normative powers so he believes he can claim that Teresa is wronged.
The more interesting question, though, is whether Dan wrongs Adam if he intervenes. Clark notes the three markers of a rights infringement: 1) Adam would have standing to complain, 2) Adam could use counter defense, and 3) Dan would owe Adam compensation. One might expect Clark to bite the bullet on these implications. Instead, he both grants that these are the typical implications of a right’s infringement and simultaneously denies that they apply in this case, while still maintaining that Adam would be wronged by Dan’s defense.
First, Clark denies that Adam would have standing to complain if Dan broke his leg because Adam would be complaining about the very same act that he engages in himself. Second, Clark rejects that Adam may fight back. Although Adam is not liable to the defensive force, if Dan chooses to engage in it anyway, then, Clark argues, as between Adam and Dan, Adam is more responsible and thus cannot defend. After all, Adam is the one who created the forced choice for Dan such that he must choose not to intervene at the cost of seeing his sister receive a broken leg, and Adam is the more culpable and responsible of the two. Third, for these same reasons, Dan does not owe Adam compensation if he goes ahead and breaks Adam’s leg to stop him. Notably, the second and third implications will depend upon how responsible the attacker is for the threat; minimally responsible attackers may be entitled to counter defense and compensation.
CONTRACTION now appears to be a pretty anemic normative power! We are left with Teresa having standing to complain that her normative power was not respected, but to the extent that any benefit of the exercise of this normative power was supposed to inure to Adam’s benefit, it is hard to see how. Though we may objectively appreciate that Dan violates Adam’s rights if Dan breaks Adam’s leg, Adam can’t defend, can’t be compensated, and can’t even say a peep about it! So, if culpably attacking renders one liable, on Clark’s view, Teresa has the power to erase the effect of the attack but not to render the culpable attack itself irrelevant to Adam’s standing vis-à-vis Dan. She can’t restore Adam’s status so that he is the equivalent of an innocent bystander. He’s still the culpable cause, and when push comes to shove, culpable causes are going to lose in the lesser-evils balance, even when Adam goes against his sister’s expressed wishes.
Let me close with how Clark articulates the different implications of EXCLUSION and CONTRACTION for humanitarian intervention. Clark imagines a case where Attacker is going to throw a grenade into an elevator that will result in the loss of a hand to the elevator’s occupants. He then stipulates that it is proportionate to kill the Attacker if it will save three hands, but not two. Accordingly, under CONTRACTION, if there are three people in the elevator and one refuses, then it would be disproportionate to kill Attacker to protect two hands. Clark does not articulate Parry’s view here, but it does not generate a different conclusion. In a nutshell, Attacker is liable to defensive killing to protect three hands, but a defender cannot access all three hands as a reason to harm the liable Attacker because the refuser has excluded her good from consideration.
According to Clark, the distinction between the views, and the payoff of CONTRACTION over EXCLUSION, occurs within the realm of lesser-evils balancing. In instances in which a defender can thwart a serious harm by an attacker by imposing a minor harm on the attacker, EXCLUSION yields that the act is impermissible (because the victim’s well-being is not a reason defender can avail herself of) whereas CONTRACTION yields that the rights infringement of the attacker is permissible because the victim’s well-being is still a reason.
There are further implications when there are bystanders. Clark imagines 100 people are under attack, but to rescue them, the defender will have to throw a grenade that kills 1 bystander. What if 99 refuse protection? Under EXCLUSION, the 99 lives are excluded, and so defender may not kill one bystander to essentially rescue one person. In contrast, Clark sees it as a benefit of his view that it yields that defender may throw the grenade because the other 99 lives are not excluded as reasons.
Ultimately, my concern here is the same as above. Why can’t the 99 then consent to the harm, which would therefore exclude their well-being? Does Clark find that equally implausible? And if so, are Clark’s objections more to the way in which consent operates generally? And if not, why can’t we have a lesser normative power to exclude ourselves from others’ reasons? At the end of the day, I worry that Clark bestows individuals with a normative power that is not particularly powerful at all as it grants individuals neither the power to truly restore the status of their attackers nor the power to limit the impact that their well-being has on their defenders.
That said, I can’t say I have my finger on the answer to this puzzle, and I know I have I learned a tremendous amount for the piece. I am so delighted that Clark has pushed us to investigate the normative machinery involved in these cases. I look forward to learning more from him and others on this thread!