Dissertation

My dissertation research focuses on problems relating to mistaken self-defense: cases where the agent inflicts harm on someone she takes to be an aggressor, but in fact posed no genuine threat. These cases present moral and legal puzzles. Intuitively there are some cases of reasonably mistaken self-defense in which the agent does nothing wrong, as well as some cases where the defensive agent wrongs the other and owes compensation. None of the prominent accounts in moral philosophy are well-positioned to explain the intuitive pattern of responsibility for the costs of mistaken self-defense.

 After considering several alternatives, I argue that an essential part of what morally justifies agents in these cases is a moral signaling convention. Since this convention is used to negotiate the boundaries of agents’ rights against harm, it must satisfy some minimal moral constraints: ensure that agents can easily avoid signaling, and not place any group of agents in a position of signaling aggression by default. Having established this as a model for morally significant signaling conventions, I argue that the legal ‘reasonability’ standard as currently applied fails to satisfy the minimal moral constraints, because it implicitly appeals to racial markers as signals of threateningness. We are therefore obligated to reform our practices by altering the signaling convention so that it satisfies the minimal constraints.

 My main advisors are Jonathan Quong, Robin Jeshion, and Mark Schroeder.

Chapter summaries are below; for full drafts, feel free to email me (renee.bolinger@gmail.com).


 

1. The Problem of the Mistaken Defender

There is widespread agreement that agents are justified in imposing defensive harm in at least some cases where they are reasonably mistaken about whether the threat is genuine (perhaps because the apparent aggressor is bluffing). Still, not every evidentially justified mistaken defense is permissible: in some cases (like McMahan's Mistaken Resident) the mistaken defender wrongs the apparent aggressor. I argue that none of the dominant accounts are able without supplementation to secure and explain the intuitive verdicts about the full range of cases of mistaken defense.  At minimum we should look for an extension that identifies the moral feature that renders permissible mistakes permissible, links the permission in the right sort of way to the apparent aggressor's actions, and keeps the account from over-generating. 

 

2. The Moral Grounds of Mistaken Self-Defense

Mistaken self-defense presents a puzzle: in at least some cases agents are intuitively justified in imposing defensive harm on an apparent aggressor, despite (in fact) facing no genuine threat. I argue that these cases motivate a more expansive view of the moral grounds of permissible self-defense, allowing that in addition to liability-based permissions, defenders sometimes enjoy vulnerability-based permissions. In particular, when individuals S behave in ways that conventionally signal that they pose a threat to an agent P, S cannot reasonably demand that P refrain from defensive action, so P is permitted to defend herself. I develop an account of what it is to conventionally signal threateningness, and explore some limitations on what signaling behaviors can do the relevant moral work.

 

3. The Case for Conventional Defensive Permissions

The core commitment underwriting the normative signaling view I've proposed is that whether it is morally permissible to impose defensive harm can depend on the convention active in the context. I offer three independent but converging lines of argument in support of this principle: a general rule-consequentialist justification, an argument from reasonable rejectability, and a demonstration of the theoretical power of the principle as applied to govern permissible self-defense. Those give us a variety of reasons to think that the principle is pre-theoretically plausible, and demonstrate that one can endorse normative signals without committing to reductive conventionalism about moral facts. For the convention to be a genuine source of moral permissions, the signals selected must meet minimal moral constraints: to respect the equal rights of all members of the community, they must keep from placing any group in a position of default signaling. To respect their equal freedom, it must not be unduly burdensome for any group to refrain from signaling.

 

4. Reasonable Mistakes and Regulative Norms: Racial Bias in Defensive Harm

A regulative norm for permissible defense distinguishes the conditions under which we will hold defenders to be innocent of any wrongdoing from those in which we hold them responsible for assault or manslaughter. The norm must strike a fair balance between defenders' security, on the one hand, and other agents’ legitimate claim to live without fear of suffering mistaken defensive harm, on the other. Since agents must make defensive decisions under high pressure and on only partial information, they will sometimes make mistakes. We have reason to want a norm that considers a mistake permissible when it was highly likely on the evidence that defense was proportionate and necessary to avert a threat. However, adopting an evidentialist norm under non-ideal conditions is treacherous business. I briefly survey empirical data suggesting that the type and extent of bias prevalent in the US renders a straightforward evidentialist norm unjust, and thus since the legal practice in the US relies on such a norm, we must explore avenues for reform. Preferably this will take the form of adopting a modified evidential norm, and I explore some promising options. If this proves impossible, however, then we have to accept a strict regulative norm (which does not consider any mistakes permissible), as the sole just alternative.

 

5. Demographic Statistics in Defensive Decisions

Allowing something that fails the two constraints to function as a signal undermines the justice of the convention and renders it morally inert. So, even if some evidence e makes it highly probable for S that A is an aggressor, if e fails the two constraints it cannot render S's mistaken defense permissible. If e cannot function as a permissible signal, it cannot undermine A's complaint against suffering mistaken harm, and so while S may have been epistemically justified in acting, she impermissibly wrongs A in mistakenly defending. Evidence that consists in observing A perform a marked signaling behavior is privileged: if S lacks undermining evidence, a signal permits S to defend because it undermines A's complaint against a mistake. Evidence that is not privileged can make a mistake rational, but does not render the mistake permissible. This grounds a powerful explanation of the apparently mismatched justificatory force of different types of evidence, (e.g. why A's observed behavior is stronger evidence than third-party testimony, which is stronger than facts about statistical odds given A's apparent group memberships), and gives a principled distinction between mistakes that are morally permissible given A's behavior, and mistakes that are only excused given S's evidence.