by Whitley R. P. Kaufman. Lanham, MD: Rowman and Littlefield. 2009. 172pp. Cloth. $60.00/£37.95/€44.95. ISBN: 9780739128992. eBook format. $60.00/£37.95/€44.95. ISBN: 9780739142189.Reviewed by Mary Welek Atwell, Department of Criminal Justice, Radford University. matwell [at] radford.edu.
pp.370-371
If people are asked when, if ever, killing another person is justified, many would answer that taking a life is justified in a just war (the definition of such a conflict is a topic for other essays) or in self-defense. It is the latter situation that Whitley Kaufman considers in 150 closely argued pages. Kaufman teaches in a philosophy department, and JUSTIFIED KILLING concerns itself mostly with developing a philosophical argument to justify self-defense and to address challenging opposing arguments. Kaufman ultimately argues that the best justification for killing in self-defense is the principle or the doctrine of the double effect (DDE). Long a staple of Catholic moral philosophy, the DDE allows for the mitigation of consequences that are foreseen but not intended. Thus in a true case of self-defense, the person who is threatened intends to save his own life. Although killing the aggressor may be a foreseeable consequence of that act, it is not the primary intention. To Kaufman, that analysis provides the only argument that distinguishes self-defense from any other homicide and offers a convincing ethical justification for its use. Kaufman finds support for the DDE as a rationale for self-defense in a number of sources, including moral intuition and existing law.
Kaufman concludes his analysis with the DDE, but there are many steps along the way. He lays out the conditions for a basic claim of self-defense: there must be an unlawful aggressor (as opposed to a law enforcing aggressor); force is permitted only as it is necessary for protection; force must be proportionate to the threat; and the attack or its threat must be imminent. All of the conditions must meet the test of reasonableness. Kaufman also rejects claims that there is no distinction between intended and foreseen consequences through the analogy that differentiates the bomber pilot who causes civilian casualties as collateral damage from the terrorist bomber who intends to kill civilians. He further notes that the criminal law distinguishes purposefully causing harm from knowingly causing harm. Kaufman attempts to dispose of a final argument against the DDE – that the self-defending person does intend to kill when he shoots a gun at an aggressor. Indeed, Kaufman cites a few cases where judges instructed juries that a defendant was trying to “stop” rather than “kill” an assailant. This may be one of the book’s most difficult arguments. If I understand correctly, ultimately Kaufman finds that killing in self-defense is morally problematic and ambiguous, that the line between intention and foresight in blurred. He concludes that, even if the DDE provides [*371] a moral justification or permission for the defensive use of lethal force, it in no way encourages or celebrates its use.
Scholars who study violence against women have raised many questions regarding the legal definitions of self-defense which seem to be based on an image of two equally matched combatants. How does one define a proportional response when the aggressor outweighs the victim by 100 pounds? Is the test of reasonableness really based on what a reasonable man (rather than a reasonable woman) would do? Kaufman does not address these issues, although it would be interesting to know how they might be reconciled with his advocacy of the DDE.
JUSTIFIED KILLING seems primarily intended for those interested in the philosophy of law. However, the book is quite accessible, even for someone who has not studied philosophy for several decades.
© Copyright 2010 by the author, Mary Welek Atwell.
