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The Ends of HarmThe Moral Foundations of Criminal Law$
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Victor Tadros

Print publication date: 2011

Print ISBN-13: 9780199554423

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780199554423.001.0001

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Choice, Responsibility, and Permissible Harm

Choice, Responsibility, and Permissible Harm

(p.169) 8 Choice, Responsibility, and Permissible Harm
The Ends of Harm

Victor Tadros

Oxford University Press

Following T M Scanlon, this chapter argues that in self-defence we permit the harm of the attacker by the defender partly on the grounds that a principle that permits this provides people with a better opportunity to avoid being harmed than a principle prohibiting it. We can avoid being harmed simply by refraining from attacking other people and that is something that is already required of us by morality. The significance of choice is especially important in showing why it is permissible to harm culpable attackers. Another principle that is sometimes claimed to be important in an account of self-defence is the principle that a person can be harmed only to avert a threat that they are responsible for committing. Jeff McMahan has explored this putative principle in great depth. If we endorse a principle of that kind, we will also have very good reason to reject theories of punishment that are based on self-defence. For the instrumentalist account of punishment that I favour clearly involves harming offenders to avert threats that they are not responsible for creating. It is the threats of other potential offenders that are averted. The threat that the offender himself created has already been realized or, in the case of inchoate crime, averted.In chapter 8 I will show that even those who think that the relationship between responsibility and liability is very significant will endorse some exceptions to McMahan's principle. When a person creates a threat, they have a responsibility to avert the threat. But fulfilling that responsibility will sometimes involve them in shouldering responsibilities to avert threats created by others. We can harm culpable attackers to ensure that they fulfil these responsibilities. For this reason, the responsibility principle as McMahan outlines it is too stringent a constraint on the permissibility of harming culpable attackers.

Keywords:   Scanlon, McMahan, self-defence, responsibility, choice, outcome luck

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