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The Mechanics of Claims and Permissible Killing in War
The Mechanics of Claims and

Permissible Killing in War
Alec D. Walen
3
3
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Library of Congress Cataloging-in-Publication Data

Names: Walen, Alec, author.
Title: The Mechanics of Claims and Permissible Killing in War / by Alec D. Walen.
Description: New York, NY : Oxford University Press, 2019. |
Includes bibliographical references and index.
Identifiers: LCCN 2018035701 | ISBN 9780190872045 (hc : alk. paper)
Subjects: LCSH: Self-defense (Law)—Philosophy. | Self-defense (International law)—Philosophy.
Classification: LCC K5087. S4 W35 2019 | DDC 172/.42—dc23
LC record available at https://lccn.loc.gov/2018035701
9 8 7 6 5 4 3 2 1
Printed by Sheridan Books, Inc., United States of America
To my mother, for her inspiring love of art and craft,
and to my father, for his joie de vivre.
CONTENTS
Preface xiii
1 Introduction 1
1 A Brief History of Recent Work on the Right of
Self-Defense 2
2 My Position on the Right to Defend Against Threats 8
3 The Thesis in Practice 13
4 The Structure of the Argument 19
2 Basic Premises and Method 21

1 Reflective Equilibrium and the Relative Balance of Theory
and Case Intuitions 21
2 Knowledge and Justification 23
2.1 The Use of Cases with Unrealistic Assumptions of
Knowledge 23
2.2 Two Audiences and Two Kinds of Justification 23
2.3 The Case for a Qualified Fact-Relative Framework 26
3 Reductive Individualism 29
3.1 A Defense of Reductive Individualism 29
3.2 Warfare-Based Objections to Reductive Individualism
and Replies 34
4 The Distinctive Causal Structure of Eliminative
Killing 37
3 A Theory of Rights 43
1 The Purpose and Basic Structure of Rights 43
1.1 The Basic Function of Rights 44
1.2 The Three Principles That Ground the Space of
Rights 47
1.2.1 The Autonomy Principle 48
1.2.2 The Equality Principle 49
1.2.3 The Welfare Principle 50
1.3 The Further Relevance of the Fundamental
Principles 55
1.3.1 Rights as Grounding only a Subset of Possible
Wrongs 55
1.3.2 The Autonomy Principle and the Topology of
Rights 58
1.3.3 The Autonomy Principle and Owned Luck 60
2 Formalizing the Mechanics of Claims 65
2.1 Balancing Agent-Claims and Basic Patient-Claims 65
2.1.1 Overview of Balancing Claims, Organized in
Terms of Partiality and Impartiality 66
2.1.2 Agents’ Negative Agent-Claims and Positive
Patient-Claims 68
2.1.3 Some Scope for Positive Agent-Claims 71
2.1.4 The Argument Against Agent-Centered
Prerogatives 73
2.2 Including Special Patient-Claims 77
3 Points of Contrast with the Infringement Model 79
4 The Mechanics of Claims and the Restricting Claims
Principle 82
4.1 Introduction to the Restricting Claims Principle 83
4.2 The Property Baseline for the Restricting Claims
Principle 87
4.3 Objections and Replies 90
4.4 Refining the Restricting Claims Principle with
Empowering Claims 93
4.5 Two Final Clarifications Regarding the Restricting
Claims Principle 97
viii | Contents
4 Putting the Mechanics of Claims in
Perspective 100
1 A Fresh Approach to Compensation 100
1.1 The Infringement Model’s Non-Unique Ability to
Account for Compensation 101
1.2 Why the Mechanics of Claims Is Better on
Compensation 103
2 Other Problems for the Infringement Model 108
2.1 Intrinsic Oddness of the Infringement Model 108
2.2 A Substantive Objection Regarding an Inappropriate
Normative Gulf 111
2.3 Occam’s Razor and the Rights–Consequentialism
Hybrid 113
2.4 Other Forms of Explanatory Power in the Mechanics of
Claims 114
3 Threshold Deontology 115
3.1 A Positive Account of Threshold Deontology 115
3.2 Overcoming Problems with Threshold Deontology
Using This Account 119
4 Final Comment on the Infringement Model 123
5 Avoiding a Misplaced Emphasis on Intentions 124

1 Introduction to Lazar’s Argument 125
2 The Limited Significance of Mixed Motives 125
3 Objection: Respect as a Subjective State 130
4 Application of the Preceding Argument to Just War
Theory 134
4.1 Application to Lazar’s Argument 134
4.2 Lessons for Just War Theory About the Relevance of
Intentions 136
6 Innocent Threats Versus Innocent Bystanders 137

1 Introduction 137
2 Innocent Victims and Innocent Bystanders 138
3 Innocent Threats and Innocent Victims 143
3.1 Stating the Problem 143
3.2 The Hybrid Argument: Its Insights and Its Failures 144
Contents | ix
3.2.1 Insights 145
3.2.2 Failures 146
3.3 The Dual Significance of Being a Threat 149
3.4 A Final Review of the Hybrid Argument and the
Infringement Model 150
4 Objections and Replies 151
4.1 The Nature of the Claims of Innocent Threats 151
4.2 A Temporal Objection 152
7 From Innocent Threats to Noncombatants

Innocently Aiding Unjust Combatants 154
1 Overview of the Terms and the Argument 154
2 Non-Culpable Aggressors 155
3 Direct Innocent Threateners 157
4 Indirectly Threatening Harm 159
4.1 An Initial Argument That Indirectness Does Not
Matter 160
4.2 Objection and Reply 161
4.3 A Way That Indirectness May Matter 164
5 Threatening Only in Numbers 165
6 Conclusion 168
8 Negative Agent-Claims and the Agent–Patient

Inference 171
1 From Ducking to Actively Causing Harm 172
1.1 Allowing Harm by Ducking 172
1.2 Causing Harm That Is Like Ducking 177
2 From Agent-Rights to Patient-Rights 178
2.1 The Problem with Moving from Agent-Rights to
Patient-Rights 178
2.2 Responsiveness 179
2.3 Justified Competition 181
2.4 The Bear and the Plank 184
3 Justified Acts and the Agent–Patient Inference 187
3.1 Good Agents and the Agent–Patient Inference 187
3.2 Culpable Agents and the Agent–Patient Inference 188
3.3 Third Parties and the Agent–Patient Inference 189
4 Application to Just War Theory 191
x | Contents
9 Intervening Agency and the Right of
Non-Sacrifice 195
1 Introduction to the Puzzle 195
2 Two Unsuccessful Approaches to the Puzzle 197
2.1 Misplaced Use of Counterfactual Baselines 197
2.2 A Misplaced Appeal to the Importance of Rights
Violations 200
3 Intervening Agency and Causal Roles 203
4 Application of the Claim of Non-Sacrifice 209
10 Conclusions 212
1 Conclusions About Eliminative Killing 212
2 Conclusions About Rights Theory 216
Table of Cases (with page of first use) 219

Glossary of Terms 221
Bibliography 225
Index 233
Contents | xi
PREFACE
T
he overarching aim of this book is to articulate a new theory of
rights—new except for its precursors in my own prior work. This
is a theory that aims to explain why rights are a central and non-
eliminable part of morality. It presents an account of rights that is fun-
damentally different from the dominant view, according to which rights
can be overridden by a range of competing moral considerations, though
always leaving some residue behind. It is also different from the standard
alternative account, according to which rights are mere conclusory labels
identifying what is or is not permissible after the real moral reasoning has
been done. According the view developed here, rights are the conclusions
of a distinctive sort of rights-based reasoning that involves balancing pro
tanto rights, or claims, against each other. The nature of the competing
claims and the way they compete against each other defines a “space of
rights,” a normative space that has its own distinctive normative structure.
The original ambition of this book was not to articulate a new theory of
rights; it was a more modest ambition: to provide a better account of the
right to defend against threats than currently exists. By “threats,” I meant
persons or things that are likely to cause harm unless action is taken; I did
not mean verbal statements intending to coerce. I took it that there’s no
deep problem explaining why it is permissible for an agent to defend her-
self or others against culpable aggressors:1 they have forfeited their right
1
To avoid using “they” all the time, or the awkward “he or she,” or treating the generic person as
either male or female, I have adopted a convention to treat agents as women and those who are af-
fected by an agent’s acts as men—though sometimes those roles swap around and I have to simply
pick a gender.
not to be attacked. There are interesting details to be worked out, such
as when innocent victims must suffer a small amount of harm because
the only way to avoid that is to cause much more harm to a culpable ag-
gressor.2 But I did not want to focus on such details. Rather, I wanted to
focus on three more basic questions: First, what may be done to those who
non-culpably threaten to do what they have no right to do? Second, what
may be done to people who have a right to threaten others? Third, what
difference does it make if the threat they pose is indirect, that is, if it is
mediated by the directly threatening acts of others?
I was drawn to engage these questions because, when I started to
think about just war theory, I realized that the way I framed certain basic
distinctions in the space of rights was inadequate. Bit by bit, my attempts
to expand what I had done before to handle the issues that were arising
when thinking about defending against threats took me to new, interesting
theoretical territory. And at each step along the way, it seemed as if the
ideas were revealing their own inner logic. Thus, focusing on questions
about the right to defend against threats set me on the road to formulating
a more satisfying general theory of rights.
I shifted my focus to a theory of rights more generally because, as
I wrestled with how to make sense of the right to defend against threats,
I came to realize that I had a fundamental disagreement with almost all
the other just war theorists. They were almost all working on trying to
articulate conditions under which a person who poses a threat to another
is liable to be killed. That is, they were almost all working to articulate
when and why being a threat could cause the threatening person to for-
feit his right not to be killed. But in my view, the fundamental justifia-
bility of killing threats does not depend on them forfeiting a right not to
be killed. Forfeiture remains, I believe, relevant. But even if threats have
not forfeited their right not to be killed, the very fact that they pose a threat
without having a right to do so undermines their right not to be killed.
Thus, I found myself working to articulate why one can get most of what
one needs to understand the justifiability of defensive killing without wor-
rying about liability to be harmed.3
2
See Christopher Wellman, 2012, pp. 375–376, for a list of seven distinct problems for any theory of
forfeiture. See also Kimberly Kessler Ferzan, 2016, for a thorough discussion of these in the context
of self-defense.
3
The one person I have read whose work does not focus on forfeiture is Victor Tadros. He still uses
the concept of liability, but he cuts it free from forfeiture. See Tadros, 2016a. In doing so, he rightly
points out that in the law and common parlance liability is not connected with forfeiture. Consider,
for example, liability to pay taxes. Ibid., p. 113.
xiv | Preface
The deeper issue this revealed concerns the basic model of rights one
uses. Almost everyone in the field uses what I call the infringement model.4
According to this model, the rights people have do not settle what may be
done to them. Even if they have in no way alienated their rights, if the cost
of respecting a right is great enough, then it can permissibly be infringed.
Rights violations are impermissible, but mere rights infringements are per-
missible.5 Infringing a right wrongs the right holder, but it is justifiable
overall as long as it brings about a significantly lesser evil or respects a
more stringent right.
I found this model of rights problematic in a number of ways. First, it is
unnecessarily conceptually obscure to talk about permissibly or rightfully
wronging another or, more precisely, to represent this as anything other
than an extraordinary moral phenomenon.6 More importantly, there are
ways in which the infringement model proves misleading or unhelpful on
substantive issues:
1. It oversimplifies when compensation is due.

2. It opens up an inappropriate normative gulf between those who have
forfeited claims and those who have not, making it too easy to justify
doing harm to those who have and too hard to justify doing harm to
those who have not.
3. It makes it unnecessarily difficult to make sense of how concerns
with rights and welfare are to be weighed against each other.
4. It lacks the resources to explain a range of moral phenomena, from
why it is that we should not treat people as a means without their
consent to why claims not to be harmed as a side effect should
be slightly, but only slightly, stronger than claims for aid, all else
equal.7
4
The one person I have found whose work is at least marginally concerned with just war theory who
is equally skeptical of the infringement model is Michael Moore. Tadros is, in a way, also skeptical
of it; but he is skeptical of the importance of rights generally.
5
This way of using the term infringing is arguably a piece of jargon that has arisen only recently in
the field of analytic normative philosophy. The more familiar meaning is synonymous with a rights
violation. The first non-obsolete definition in The Compact Oxford English Dictionary, New Edition
is as follows: “To commit a breach or infraction of (a law, obligation, right, etc.); to violate or break
(an oath, pledge, treaty, etc.); to transgress, contravene.”
6
In Chapter 4, § 3, I argue that there may be occasions when it is, all things considered, morally ap-
propriate to wrong another; but I think such occasions must be extraordinary.
7
I discuss all of these in Chapter 4, § 2.
Preface | xv
Developing these problems with the infringement model and arguing
that they can be avoided with a better model, one that provides us with
a better understanding of the moral landscape, became the deep core of
this book.
The alternative model that I argue for is one that I call the mechanics of
claims. To be clear, the mechanics of claims is not offered as an analysis
of what it means to have rights. It is offered as a model of rights that helps
us understand what is substantively morally true.
According to the mechanics of claims, people have claims that pro-
tect their interests, but whether a particular claim corresponds to a right
depends on how all the competing claims interact. To work out how they
interact, the mechanics of claims distinguishes fundamentally different
types of claims, such as claims of agents versus claims of patients (those
affected by the choices of agents), diffent types of patient-claims reflecting
the different causal roles a patient might play in an agent’s acting to achieve
some end, and different types of agent-claims depending on whether they
are claims to act or to refrain from acting. The mechanics of claims takes
the strength of claims to depend in part on the kind of claim it is. It also
provides a distinct structure for weighing different kinds of claims against
each other and for explaining how the presence of some kinds of claims
impacts the strength of other kinds of claims. Moreover, these distinctions
and structural features are not simply designed to produce morally attrac-
tive results; they are grounded in three fundamental moral principles. The
resulting picture explains in a deeply coherent way why we have the rights
we have. This coherent explanatory account cannot be provided—at least
I cannot see how it could be done—using the infringement model.
I am indebted to many people for helping me to write this book. First,
it is only because I was fortunate enough to be able to present, in various
fora, the various inadequate papers that I have written on these topics and
to get good feedback that I was able to realize at each step along the way
that more work had to be done. My gratitude along this first dimension
starts with Seth Lazar, who invited me to comment on his book. I am next
grateful to Jeff McMahan, Victor Tadros, and Helen Frowe for inviting
me to present my first attempts at providing a positive account of when
eliminative killing is justifiable—the patient-focused part of the book—
at their respective home universities. After that, my gratitude goes out to
David Rodin and the organizers of the Ethics, Law and Armed Conflict
workshop for yet another chance to present and get feedback on the next
generation of that part of the book. It was there, when I got an especially
probing challenge from Adil Haque, that I realized that I had a book to
xvi | Preface
write. With regard to the agent-focused part of this book, I am grateful to
Larry Alexander, Kim Ferzan, Stephen Galoob, and Yuan Yuan for inviting
me to present that material. And finally, I am grateful to Johann Frick
who agreed to co-teach a graduate seminar called Rights and Risks, jointly
offered at Princeton and Rutgers Universities, where I was able to teach a
draft of the book.
I would now like to thank those whose conversation and comments on
papers or drafts of the book were especially helpful. At the top of the
list is Kim Ferzan, whose encouragement and collaboration have been
among the most important and fruitful I’ve ever had. Second is Ketan
Ramakrishnan, who read the whole book in an early draft and gave me
many useful comments. Third, I would like to offer special thanks to three
people who participated in the Rights and Risks seminar and offered es-
pecially helpful comments: my co-teacher, Johann Frick, and two Rutgers
students who audited the course: Benjamin Bronner and James Goodrich.
Fourth, I would like to thank Alexander R. Cohen for his work editing the
book before I turned it in to Oxford University press.
In addition, I would like to thank all of the following people who
have given me helpful comments along the way: Larry Alexander,
Richard Arneson, Yitzhak Benbaji, Joseph Bowen, Lars Christie, Russell
Christopher, Michael Deigan, Tom Dougherty, Helen Frowe, Christopher
Frugé, Stephen Galoob, Adil Haque, Lisa Hecht, Douglas Husak,
Tyler John, Savannah Kinkaid, Gerald Lang, Seth Lazar, Adam Lerner,
S. Matthew Liao, Todd May, Jeff McMahan, Michael Moore, Armando
Jose Perez-Gea, Juan S. Piñeros Glasscock, Ajay Ravichandran, Massimo
Renzo, Samuel C. Rickless, David Rodin, Richard Schoonhoven, Re’em
Segev, Adam Slavny, Uwe Steinhoff, Victor Tadros, Danny Underwood,
Leif Wenar, Peter Westen, and Yuan Yuan. My apologies to anyone whose
name I have inadvertently left out.
Finally, I would like to thank my wife, Rachel Somerville, for occasion-
ally expressing disbelief when I ran an idea or supposed insight past her;
her sharp sense for BS has helped me avert errors on more than one occa-
sion. Additionally, I would like to thank her and my son, Amitav Walen,
for their encouragement as I wrote this book. I don’t think I’ve been too
much of a grump or a derelict partner or parent. But writing a book is still
a big, time-consuming endeavor; and it certainly helps to have family who
appreciate the project and cheer you on.
Preface | xvii
The Mechanics of Claims and Permissible Killing in War
1 Introduction
W
ars of conquest were never consistent with respect
for rights: the conquered were killed, raped, maimed, and
enslaved; their homes, their lives, and often their civilizations
were destroyed. And now, in a world shaped by the horrors of two world
wars, one punctuated by the dropping of atomic bombs, the idea of war as
a path to glory has been largely rejected.1 It is now widely accepted that
justice and respect for individual rights require strict limits on the right
to wage war (jus ad bellum) and the things that may be done in war (jus
in bello). The current law of armed conflict makes it clear: wars may be
fought only in self-or other-defense.2
It is no surprise, then, that much contemporary just war theory would
be modeled on the theory of self-defense. In this book, I offer a new ac-
count of how this modeling should work. But my focus will be more foun-
dational than is normal. My reason is that I think the dominant account
of rights used by people interested in the right of self-defense is doubly
problematic: its internal tensions undermine the plausibility of the views
people try to defend, and it is in some ways morally distorting. Thus, I will
be primarily concerned with developing and then deploying a new account
1
Reference to the two world wars and the need “to save succeeding generations from the scourge of
war” form the opening words of the Preamble to the United Nations Charter. The global surge in na-
tionalist rhetoric, as I write these words, leads me to worry, however, that war is once again coming
to be seen as a path to glory, horrors be damned.
2
The United Nations Charter limits the use of military force to two conditions: (1) actions the
Security Council considers necessary to respond to “any threat to the peace, breach of the peace, or
act of aggression” (Article 39) and (2) exercises of the “right of individual or collective self-defence
if an armed attack occurs against a Member of the United Nations, until the Security Council has
taken measures necessary to maintain international peace and security” (Article 51).
of rights, one that I hope will put the discussion of the right to defend
against threats on more solid footing.
This introductory chapter covers four themes. First, to explain why
I think the current state of just war theory calls for a new account of rights,
I trace a brief history of recent discussions of the right of self-defense.3
Second, I describe my position on when it is permissible to defend against
threats. Third, I explain how this relates to current law and to other phil-
osophical work on the topic. Finally, I sketch an outline of the rest of
the book.
1. A Brief History of Recent Work on the Right

of Self-Defense
I start with Judith Jarvis Thomson’s 1991 article “Self Defense,”4 which
set the table for contemporary moral discussions of the right of self-
defense. Her aim was to understand why it seems permissible for an agent
to engage in self-defense against not only culpable aggressors but also
innocent threats—people who threaten to cause harm to another not by
any voluntary acts they perform but simply by the involuntary motion of
their bodies—even though it seems impermissible for an agent to kill a
bystander to save herself. Her key move was to suggest that if a threat,
even an innocent threat, would kill an innocent victim if he were not
killed first, then he would “violate [her] right that he not kill [her].”5 This
is not true of innocent bystanders. This contrast provided the basis for
Thomson’s claim that threats lack, while bystanders retain, the right not
to be killed.
In response, both Jeff McMahan and Michael Otsuka argued that
Thomson was mistaken to think that an innocent threat can violate a
victim’s rights. As McMahan put it:
A moral constraint can apply only to the action of a responsible agent.

Neither a falling boulder nor a charging tiger can be subject to a moral con-
straint; thus neither can violate a right. Since . . . an Innocent Projectile is
3
I return to give a more positive treatment of the themes in this section in Chapter 6.
4
Thomson was not concerned with addressing just war theory. She “bypass[ed] the question how
the fact of war affects questions about self-defense” on the ground that it was “too hard.” Thomson,
1991, p. 298.
5
Ibid., p. 300.
2 | The Mechanics Of claims And Permissible Killing in war

no more an agent than a falling boulder, it seems that [such a person] cannot
violate rights and hence cannot forfeit them.6
This argument left McMahan and Otsuka taking the position that self-
defense against a fairly broad range of innocent agents is normally im-
permissible. The only condition under which it would be permissible is
that the harm to them would be substantially outweighed by the harm
they would impose on others if not stopped, in which case a lesser-evil
justification could be invoked. The range of innocent agents who retain
their right not to be killed includes not only an innocent projectile but a
person suffering an epileptic seizure whose motions could kill another,
a person who has started to attack another because she drank coffee
laced with a behavior-altering drug, and a person who is about to press
a button on her phone that, for reasons she could not have anticipated,
will cause a bomb to explode that will kill an innocent victim.7 On their
view, a potential innocent victim (I leave the word potential implicit
from this point forward) is no more free to kill any of these innocent
threats in self-defense than she would be to kill an innocent bystander in
self-preservation.
McMahan and Otsuka also proposed a strategy to limit the implication
of their view so that it did not imply that only culpable threats could for-
feit their right not to be killed.8 They focused on the responsible choice to
impose a risk on another, giving rise to a situation in which someone must
die. Here, in essence, is McMahan’s example:
Conscientious Driver: Connie, who always keeps her car well maintained
and always drives carefully and alertly, decides to drive to the cinema.
On the way, a freak event that she could not have anticipated occurs
that causes her car to veer out of control in the direction of Peter, a
pedestrian.9
6
McMahan, 1994, p. 276. Otsuka offered a nearly identical argument, identifying a falling human
with “a chunk of granite.” Otsuka, 1994, p. 80. Otsuka also convincingly argued that the view that
an innocent threat causes an innocent victim’s rights to be violated—a view taken, for example, by
Frances Kamm—likewise makes no sense (p. 80n17).
7
I take the epileptic case and the laced-coffee case from Rodin, 2002, p. 80; the phone-button case
comes from McMahan, 2009a, p. 165. To be clear, in all cases we must assume that the person had
no warning that she might have a seizure, drink drugged coffee, or become a projectile. If she had
a warning and ignored it, then she knowingly or negligently imposed a risk on others and her case
moves into the other category, in which she may have forfeited her right not to be killed.
8
McMahan came to his solution later than Otsuka.
9
This case is almost identical to the one described by McMahan, 2009a, p. 165.
Introduction | 3
McMahan argued that Connie has forfeited her right not to be killed in
defense of Peter. As he wrote, she knows “that her action carries a small
risk of causing great though unintended harm.”10 He continued: “because
she knowingly imposed this risk for the sake of her own interests[,]‌she is
morally liable to defensive action to prevent her from killing an innocent
bystander.”11
Otsuka similarly offered a case in which self-defense was, in his view,
justifiable because the person against whom it is used has non-culpably
chosen to put another’s life at risk.
Hologram: Polly projects a holographic gun onto Howard’s hand as he

extends his hand to greet Diane. Diane, taking the gun to be real, reaches for
her own gun to shoot Howard in self-defense. Howard, seeing the holographic
gun too, realizes that Diane will shoot him in self-defense if he does not shoot
her first with the real gun he is carrying in a holster. If he acts quickly he can
shoot her and save himself—i.e., they will not both get shot and die.12
Diane’s mistake is reasonable, and she acts non-culpably, given what she
reasonably believes. But given the facts, she threatens to kill Howard
without having any right to do so. Otsuka argued that Howard can justi-
fiably kill Diane because Diane “takes a gamble” by choosing to use vio-
lence against him.13 In essence, he says that her choice to use force makes
her liable to be killed if it turns out, as it does in this case, that it is not in
fact a justified choice.
The main problem with these responsible-choice accounts arises from
the fact that McMahan and Otsuka accept that there is a strong presump-
tion against intentional killing such that to justify it, as McMahan put it,
“there must be some important moral difference between the Threat and
[the Victim].”14 The problem is that the responsible choices the threats
make in Conscientious Driver and Hologram do not seem to provide
an “important moral difference” between the threats and their victims.
There’s a Coasian symmetry in the situations that McMahan and Otsuka
both ignore that makes it, in fact, unclear who took the responsible choice
to create it.
10
Ibid., p. 166.
11
Ibid.
12
This case traces back to Otsuka, 1994, p. 91. The formulation I use is modeled closely on one from
Frowe, 2014, p. 81.
13
Otsuka, 1994, p. 91. Otsuka, 2016, defends this position again.
14
McMahan, 2009a, p. 169.

Seth Lazar seems to be the first person to make this point, and, fol-
lowing Lazar, I focus first on McMahan’s case and then turn to Otsuka’s.
Lazar’s central insight is that the “Pedestrian’s voluntary choices also con-
tribute to the forced choice between their lives coming about.”15 Indeed,
it is clear that if Peter took unreasonable risks, say walking into traffic,
then he would have forfeited his right to defend himself against a consci-
entious driver bearing down on him. We can assume that Peter took normal
precautions not to get hit, but then we are also assuming that Connie took
normal precautions not to drive out of control. Why is Connie liable to be
killed for the forced choice and not Peter? It might be tempting to recall
McMahan’s point that Connie “knowingly imposed this risk for the sake of
her own interests.” But we can assume that Peter knowingly assumed the
risk of being near traffic for his own interests. Moreover, it is not merely the
case that he put himself at risk. If he has the means to defend himself, then
he puts drivers at risk too. Given these similarities, there is no “important
moral difference” between Connie and Peter. There is a difference: Connie
is a threat to Peter. But this difference, by itself, does not seem to be the
kind of “important moral difference” that would explain why Connie has
forfeited her right not to be killed.
One might think that Hologram works better for the assumption of risk
argument. After all, Diane chooses not only to put Howard at risk but to
try to kill him. But risk is still the key notion in the argument. As Otsuka
put it, Diane “takes a gamble . . . when she engages in such avoidable
risky activity” as pulling her gun on Howard.16 But, again, she could not
threaten him if he were not there. Moreover, Howard assumes that Diane
is attacking him just as she assumes that he is attacking her, and they both
pull guns on each other on the basis of that assumption. The only differ-
ence between them is that Polly projected the hologram into Howard’s
hand and, thus, that Diane is the one who made a mistake about the ex-
istence of a threat (at least before he pulls his real gun). But this is just a
matter of who had the bad luck to be mistaken. It does not seem to be “an
important moral difference.” As Lazar puts it, if we assume that the right
to life can be forfeited only because of “something distinctive about us as
moral subjects,” then presumably it must be “something beyond mere bad
luck.”17
15
Lazar, 2009, p. 717.
16
Otsuka, 1994, p. 91.
17
Lazar, 2009, p. 701. See also McMahan, 2009a, p. 177: whether someone is liable “cannot be
merely a matter of luck” (original emphasis).
Introduction | 5
Summing up, if we start with the assumption that killing is particularly
hard to justify because people have robust rights not to be killed, then
it looks like self-defense will be justifiable only against culpable threats
or when rights can be overridden because of strong consequentialist
considerations giving rise to a lesser-evil justification.18 Self-defense
against innocent threats and innocent aggressors seems just as much a
rights violation as self-preservation that kills innocent bystanders. But
this has profound implications for just war theory, for, as Lazar points
out, “many unjustified combatants are morally innocent of the threats
that they pose, excused either by duress or because they reasonably be-
lieve their cause to be justified, in conditions of uncertainty and high
risk.”19
Thus, we seem to face the following options:
1. Reject the idea that we can learn anything useful about the justifia-
bility of war by thinking about the rights of individuals in the context
of self-defense.20
2. Accept that individual rights limit the justifiability of war and adopt
a high threshold for rights forfeiture, accepting that individual rights
therefore limit the justifiability of war in a way that implies a strong
presumption of pacifism, one that can be overridden only if the result
of waging war is so much better in consequentialist terms than not
waging war that it justifies infringing individual rights.21
3. Accept that individual rights limit the justifiability of war but adopt a
low threshold for rights forfeiture, accepting that unjust combatants
will therefore generally have forfeited their right not to be killed, and
that the same will often be true of unjust noncombatants who con-
tribute to an unjust war effort.22
4. Embrace the idea that people enjoy strong agent- centered
prerogatives that permit them to kill in self-defense even when the
attacker has done nothing to forfeit her right not to be killed.23
18
Rodin, 2002, p. 97, embraced that position.
19
Lazar, 2009, p. 701.
20
See, e.g., Benbaji, 2008.
21
Lazar, 2009, p. 728, tentatively embraces this position.
22
Frowe, 2014, adopts this position. She thinks that liability for posing an unjust threat depends on
having had “a reasonable opportunity to do otherwise” (p. 73) and that even noncombatants who aid
unjust combatants are generally liable to being killed.
23
See, e.g., Quong, 2012.

But I reject all of these. I reject the first option because I think restrictions
in war should reflect the imperative to respect individual rights.24 I re-
ject the second option because I think the right not to be killed is not as
restricting as the present discussion suggests. I reject the fourth option
because I think agent-centered prerogatives would wrongly imply that an
agent may kill an innocent bystander in self-preservation.25 This would
seem to leave the third option: accepting a low threshold for forfeiture.
But I reject that option too. Appealing to forfeiture still requires us to draw
too sharp a line between those who make responsible but non-culpable
choices and the sorts of innocent threats and aggressors who simply cannot
be taken to have done anything to forfeit any rights.26
The key to getting past these four bad options is understanding why
the right not to be killed is not as restricting as the present discussion
suggests. At a superficial level, my solution is to say that merely being a
threat who lacks the right to threaten undermines the threat’s claim not
to be harmed in defense of the victim. This applies to innocent threats
and to minimally responsible threats like Connie and Diane. Though
there is no reason to think that they have forfeited their right not to be
killed, there is good reason to think that they have weakened claims not
to be killed and that it is therefore at least plausible that they may be
killed.27
To see why this position on the rights of threats is plausible, I think it
helps to go back to the basic ideas about rights that inform the debate. I be-
lieve the debate has been going in the wrong direction ever since Thomson
suggested that the explanation for why it would be permissible to kill inno-
cent threats has to appeal to their violating the rights of their victims. The
mistake lay in thinking of the right to life as something an agent has unless
she waives or forfeits it.28 This thought is not easily put aside as it reflects
the intuitively compelling idea that rights must provide a robust sort of
normative protection. Nonetheless, I think it is misplaced. It is possible for
24
I argue this in Chapter 2, § 3.
25
I argue against agent-centered prerogatives and for a narrower notion of negative agent-claims in
Chapter 3, § 2.4.
26
Frowe tries to get past this problem by adopting a hybrid of duty-based reasoning and a lesser-evil
justification first proposed by Tadros. I argue in Chapter 6 that this proposal fails.
27
I argue this point in Chapters 6 and 7.
28
The notion of waiver can be read broadly to cover voluntary renunciation of a claim for the rest
time or narrowly to cover only renunciation for a particular instance or set of instances. If read nar-
rowly, then we need to introduce the notion of alienation to describe voluntary renunciation of a
claim for the rest of time. I will generally use the broad concept of waiver.
Introduction | 7
rights to provide a robust normative protection and for a threat not to have
a right not to be killed simply because he is a threat.
I will argue for a fundamentally different model of rights, according to
which they are the result of the balance of a set of competing claims. Claims
are pro tanto rights. That is, they have a normative force that pushes to es-
tablish an unqualified right. An unqualified right (I leave the word unquali-
fied implicit from this point forward) emerges from the balance of claims as
a normative conclusion, indicating, if it is a patient-right, that one or more
agents has a corresponding duty or, if it is an agent-right, that the agent has
the freedom to do or refrain from doing something. For example, P’s claim
not to be killed pushes to establish that P has a right not to be killed. If it is
undefeated in the balance, then P has that right; if it is outweighed, then P
does not have that right.
I will argue that the weight of the claims in the balance reflects more than
responsibility for choices made (the stuff of forfeitures and waivers, and of
contractual or promissory acquisition of property or duties); it also reflects
how a claimant relates to others. Moreover, unlike those who emphasize re-
sponsible choice as the key to taming the threat posed by luck, I think we
need to embrace ownership of one’s luck as key to making sense of rights.
Luck is pervasive, and often what distinguishes how people relate to each
other is just a matter of luck.
I will lay out this alternative model of rights, which I call the mechanics of
claims, in Chapter 3. Before doing so, I want to take care of two preliminary
matters. First, I will spend the rest of this chapter describing my position on
the right to defend against threats. My purpose in doing so is in part to make
explicit what I assume and what I argue for and in part to identify and own
what I think the implications of my view are. Second, in Chapter 2, I will
describe and defend my methodology for doing moral philosophy, my under-
standing of moral justifications, my conception of what it means to eliminate
a threat, and my view of the relationship between individual rights and just
war theory.
2. My Position on the Right to Defend Against Threats
My ultimate goal in the following discussion of the right to defend against

threats is to formulate an account of the justifiability of killing threats to
eliminate the danger they pose, that is, eliminative killing. I see no reason
why my position cannot be extended to harms less grave than death; I focus
on killing simply because it is the greatest harm we should be prepared to

try to justify29 and because my discussion is complex enough as is. I also
use a relatively narrow understanding of the concept of a threat. I mean a
person or thing that is likely to cause harm to a victim if action is not taken.
One could say that a person who presents a physical or moral obstacle to
a victim seeking to avoid a threat is a threat in a secondary sense.30 But
I treat such obstacles as having a different kind of moral significance.31
I should clarify how I understand eliminative killing. One could identify
eliminative killing with acting on the intention to eliminate a threat by killing
the person who poses it. But, for reasons of analytic clarity and to avoid
unduly emphasizing the moral significance of intentions, I want to frame
it, instead, through the lens of a potential justification for the act. I define
eliminative killing as (a) killing one or more other persons in a particular
context, one in which (b) the persons being killed pose a threat (whether di-
rectly or indirectly) to others and (c) doing what kills them would eliminate,
or at least help to reduce the magnitude of, the risk posed by that threat. What
interests me is whether and when such acts can be justified by reference to the
fact that killing them eliminates or reduces the threat they pose.
If an act is justified, then it is permissible to perform it. One can then
ask whether an agent must be acting on an intention that corresponds to
a successful justification to perform a permissible action, where an ac-
tion is defined as an act performed for a particular reason.32 Taking acts
as basic in this way enables us to distinguish wrongmaking factors that
would make it impermissible for any agent to perform the act in ques-
tion, no matter what her reasons for doing so, from the intentions and
subjectively embraced reasons for action that might also be wrongmaking
factors. It is particularly important to be able to separate those two kinds
of wrongmaking factors because even if an agent’s reasons for action can
make an otherwise permissible act impermissible, they are neither the only
nor the most important set of factors that can do so.33
29
I assume that torture is out of the question and that those cases in which causing severe suffering
is both worse than killing and not the result of torture are sufficiently rare that they don’t affect the
overall analysis.
30
This is the position taken by Frowe, 2014, especially chapter 2.
31
I argue in Chapter 3 that there are two kinds of obstacles: those who have relatively weak claims
not to be killed because they are obstacles to the agent doing what she proposes to do and those who
have relatively strong claims not to be killed because they have prior claims to a resource the agent
needs to do what she proposes to do.
32
As far as I know, this distinction between acts and actions was introduced by Ross, [1930] 1988,
p. 7. This distinction is also sometimes described as the difference between acts thinly and thickly
described. See Wedgwood, 2011, p. 388.
33
I focus on this point in Chapter 5, where I argue that intentions are generally not the sort of
wrongmaking features of an action that matter for just war theory.
Introduction | 9
I now offer a set of six conditions that together describe my position,
which I label permissible eliminative killing. To describe these conditions,
I consider a schematic in which an agent, A, can eliminatively kill a threat,
T, to protect some victim, V, possibly thereby endangering some bystander,
B. To be clear, any of these characters could represent more than one person.
In addition, A could be identical to V. I discuss them separately on the as-
sumption that other-defense and self-defense are justifiable under the same
conditions.
1. T is a threat to some possible victim, V, and killing T will eliminate T’s

threat to V or at least reduce the magnitude of the harm to V or the risk that
V will be harmed.
This condition sets the context for the discussion of eliminative killing.
There are two things to say about this condition. First, I use the success verbs
eliminate and reduce because it is important to distinguish the person who
thinks her act will eliminate or reduce the threat but who is mistaken and is at
best excused from the person who is correct on that score and who would be
justified in killing T if the other requirements are met. Second, the risk clause
is important because sometimes reducing risk is the best that an agent can
hope for, and eliminative killing is sometimes justified if the risk reduction
is sufficient. This may seem to sit uneasily with the idea of conditioning the
justifiability of eliminative killing on successfully eliminating or reducing
the threat, but I will argue in Chapter 2, section 2, that these ideas can be
reconciled.
2. V’s claim to avoid the harm that T would have caused him is strong
enough to outweigh T’s claim not to be killed and B’s claim not to be
harmed by the eliminative killing of T.
This is the first of the two proportionality clauses. I call it baseline pro-
portionality as it compares the harm caused by eliminative killing to the
baseline of doing nothing. A’s act of eliminative killing is permissible only
if it is baseline proportional.34
34
This condition is, strictly speaking, problematic and unnecessary. It is problematic because in
complicated cases it is often unclear what it means to say that A “does nothing.” (I am grateful to
Benjamin Bronner for making this clear to me.) It is unnecessary because one can get its content
out of condition 4, which deals with comparative proportionality. One can simply set A’s act to
“allowing the threat to take place” (in however many meaningfully different ways A might do that)
to see whether among the acts that pass the test of comparative proportionality is one that involves

I want to highlight three things about this condition. First, proportion-
ality is not just a matter of the relative harms that T, V, and B might suffer;
it reflects the extent to which T, V, and B might have waived or forfeited
their claims not to be killed or harmed and the way in which different
kinds of claims register even when at full strength. I argue, starting in
Chapter 3, that they do not all register the same.
Second, I focus on harms that might be caused to T or B and on harms
that T might cause V if not killed. One might also consider weighing other
benefits that might be enjoyed by V, B, or A herself (e.g., one of these
people will now inherit wealth that would have gone to T). But these sorts
of side benefits cannot help to justify killing T.35 Likewise, one might con-
sider weighing the good things that T would have done had T been left
alive or the good things that V, B, or A herself would have done if A had
chosen not to eliminatively kill T. But these sorts of side benefits carry
very little weight in helping to justify the thought that it would be dispro-
portional to kill T to save V.36
Third, I leave A’s interest out of the balance because the point is to ask
whether it would be proportional for her to kill T on the assumption that
she is willing to do so. Even if it is proportional, she often will have the
right to choose not to kill T if she finds doing so too costly for her. But that
is a separate issue, which comes up under comparative proportionality.
Conversely, if T’s death is too great a harm to inflict on him for the sake
of saving V from some lesser harm, then A’s interest in killing T will not
make it permissible.37
3. There is no alternative way to protect V to the same degree that is

Pareto superior in terms of the claims of V, T, B, or A.
This is the traditional necessity condition, which also sets a necessary

condition for permissible eliminative killing. It is of fairly limited use as
A eliminatively killing T. Nonetheless, I think it is important to describe this condition independently

because it captures what people intuitively mean by “proportionality” when they discuss “necessity
and proportionality” as two tests that must be met for an act of eliminative killing to be justified.
35
See McMahan, 2013–14, p. 4. I say a bit more about benefits and why some might not count
against harms in Chapter 3, § 1.2.3.
36
I think this limit reflects the idea that V cannot be asked to sacrifice for the benefits others would
enjoy. I return to this idea of a right of non-sacrifice in Chapter 9.
37
I argue for this point in Chapter 3, § 2.1.4. Note: I assume that if A is a corporate agent, like the
state, then it has no agent-claims. The duties it owes to its stakeholders should not be taken to give
it agent-claims; rather, they should be framed as special claims on it. I define special claims in
Chapter 3, § 2.2.
Introduction | 11
the conditions in which it forbids an act are unlikely to occur. If, for ex-
ample, some alternative act to the one under consideration would cause
far less harm to T but cost A a little more effort, then we cannot rule out
that act on the ground that it is unnecessary. We would need to look to the
second of the proportionality clauses.
Before moving on to this second proportionality clause, it is worth
linking necessity and imminence. Traditional doctrine in both criminal
law and the law of armed conflict requires that a threat be imminent before
it is permissible to use defensive force against it. But I agree with David
Rodin that the imminence requirement “is simply the application of the
necessity requirement subject to epistemic limitations. The point is that we
[normally] cannot know with the required degree of certainty that a defen-
sive act is necessary until the infliction of harm is imminent.”38 Given that
imminence is at best an imperfect proxy for necessity and that I take rights
to turn on fact-relative justifications, not evidence-relative justifications,39
I will put imminence to the side and focus directly on necessity and the
related proportionality notion.
4. If A can choose between two alternative acts, act 1 and act 2, and,
compared to act 2, act 1 would harm T less but would provide less pro-
tection to V or impose more cost on A or B, then act 2 is permissible
only if the claims of V to more protection or of A and B to have to bear
less cost outweigh T’s claim to suffer less harm.
This condition describes comparative proportionality. It fills in when

the necessity clause fails to apply. Any option that fails this test is ruled
out just as it would be if it failed the necessity test. All of the preceding
comments about condition 2 apply to this condition, with this exception: A
gets to consider her own interest as part of the comparative proportionality
balance and take an option off the table if it is too costly to her, though she
may also waive her right to do so.40
As it is awkward to refer to “baseline proportionality and either neces-
sity or comparative proportionality,” I will use the familiar phrase “nec-
essary and proportional,” with the understanding that necessity refers to
necessity or comparative proportionality.
38
Rodin, 2002, p. 41
39
See Chapter 2, §§ 2.2 & 2.3.
40
I say more about an agent’s right to take options off the table in Chapter 3, § 2.1.4.

5. T lacks the right to threaten or contribute to the threat to V in the
way that he does.
This condition represents what I call the agent–patient inference: if T

has the right to threaten V, then A may not eliminatively kill T to save
V. This is a controversial idea, especially in just war theory, but I argue for
it in Chapter 8.
6. There are no other moral reasons (such as the importance of adhering

to the law) that prohibit A from killing T.
This final condition is a catch-all for other moral reasons, such as

the importance of obeying the law or problems that would arise from
undermining important social norms, that would make it impermissible to
eliminatively kill a threat. I return to consider this condition in Chapter 10.
In listing and describing these six conditions, I have tried to flag the par-
ticularly controversial ideas that I will argue for and where I will argue for
them. But the most basic ideas, such as that baseline proportionality has to
refer to the balance of claims, are ones that fall out of the model of rights
that I will introduce in Chapter 3.
3. The Thesis in Practice
What does permissible eliminative killing mean in practice? It does not

mean that terrorism is permissible. To justify (or attempt to justify) an act
as an act of terrorism is to appeal to the political or military utility of con-
spicuously harming other humans. Usually the definition is restricted to
conspicuously harming noncombatants for political purposes41 as it is nor-
mally thought part of just warfare to seek to harm combatants and thereby
not only eliminatively kill them but also discourage other combatants so
that they surrender.42 But to avoid simply assuming that this is permissible
and to keep a parallel with eliminative killing, which can be directed at
41
There is no standard legal definition of terrorism, and the term is sadly politicized because so many
want to use it to justify their attacks on others as “terrorists,” while at the same time insisting that
the morally dubious acts that they support are the acts of freedom fighters or some such thing. My
definition seeks to cut through these politicized uses.
42
See Lazar, 2015, pp. 70–71: “Victory is achieved not by killing every individual who contributes
to a threat against us, but by communicating to the enemy armed forces and their leadership . . . that
the costs of continuing to fight outweigh the expected advantages of doing so. . . . Killing in war is
always pour encourager les autres.”
Introduction | 13
combatants and noncombatants, I want to include all humans as possible
targets of terrorism. My goal in doing so is to highlight the contrast be-
tween what it takes to justify (or attempt to justify) an act as an act of ter-
rorism and what it takes to justify (or attempt to justify) an act as an act of
eliminative killing.
To justify an act as an act of eliminative killing is to appeal to the fact
that the killing directly eliminates or reduces a threat. The word directly is
important. Eliminative killing, as such, does not reduce a threat by way of
deterring potential future threats. Eliminative killing may have the effect
of influencing others and thereby reducing future threats. But the act can
be justified as an instance of eliminative killing if and only if the direct re-
duction in the threat justifies the killing.43
So much for what permissible eliminative killing does not entail in prac-
tice. What does it entail? One thing it strikingly entails is that a wide range
of civilians might permissibly be targeted for eliminative killing. Here,
I use the word civilian, a legal term meaning a person who is not formally
a member of the military, rather than noncombatant. I do so to make room
for the possibility that certain civilians function as combatants; in general,
I will be focused on the functional distinction between combatants and
noncombatants, but in this context, for reasons that will immediately be
made clear, I need to use the legal term.
Consider, for example, civilians who design or manufacture weapons;
who manufacture parts for weapons; who provide other equipment needed
by combatants, such as reconnaissance drones or hardened vehicles; who
do linguistic analysis of information intercepted from the enemy; or who
raise money to provide resources for combatants. Assuming that one is
fighting a just war, that it will take some time to win the war, and that the
efforts of these civilians are prolonging both the war and the killing of in-
nocents, then it may be permissible to eliminatively kill them. Moreover,
the point is not simply that they may be killed in the effort to prevent
them from performing specific instances of the relevant threatening acts.
Permissible eliminative killing holds that they may be targeted wherever
they are, whatever they are doing, as long as doing so is necessary and
43
I am not here arguing that targeted killing for terroristic (or, more broadly, instrumental) purposes
is necessarily ruled out. For warfare to be permissible, it had better be true that unjust combatants
have generally forfeited their right not to be targeted for terroristic purposes. Inquiring whether this
is true is beyond the scope of my book, which focuses on eliminative killing, not terrorist killing.
I do, however, touch on the theme again in Chapter 2, § 3.2. And in Chapter 7, I criticize Frowe for
proposing a theory of forfeiture with such a low threshold that it seems noncombatants would too
often be liable to terrorist killing.

proportional to reducing the threat posed by an unjust enemy and is not for
some other reason morally prohibited. It is probably true that one would
be more certain that an agent would kill only those civilians who can justi-
fiably be eliminatively killed if she targets the threatening acts themselves
where they normally take place, like the proverbial (in writing on just war
theory) munitions factory. But if such a factory is hard to reach (say it
is buried deep underground) and the most effective option is to kill the
workers at home, that may be permissible too.44
This may seem like a radical thesis. It may seem to conflict with a core
principle in the law of armed conflict: the principle of distinction,45 according
to which combatants must try to distinguish between civilians and combatants
on the other side and must direct their attacks only against combatants. It is
tempting to view this as a fundamental moral requirement as well. That is, it
is tempting to say that as long as combatants adhere to the rules governing
conduct in war, they are morally permitted to attack opposing combatants but
not opposing civilians. Civilians may be killed, on this view, only as a side
effect of targeting legitimate military targets and only to the extent that their
deaths are unavoidable if a just military campaign is to achieve sufficiently
important military objectives.46
In truth, however, permissible eliminative killing is not a “radical” de-
parture from the principle of distinction. It can be understood as a moral
extension of a well-established exception to the principle of distinction,
an exception that permits attacks on civilians insofar as and for so long as
they act as combatants.47 Interpretation of this exception is not well-settled
law, but one of the more influential discussions of it, found in an opinion
of the Israeli Supreme Court, called Public Committee Against Torture in
Israel v. Israel,48 states
44
Some writers who are sympathetic with the claim that noncombatants may be eliminatively killed
have shied away from the full implications of their reasoning. See, e.g., Draper, 2016, p. 200.
45
The principle of distinction is listed as “rule 1” by the International Committee of the Red Cross
in its database on customary international humanitarian law: “The parties to the conflict must
at all times distinguish between civilians and combatants. Attacks may only be directed against
combatants. Attacks must not be directed against civilians” (https://www.icrc.org/customary-ihl/
eng/docs/v1_cha_chapter1_rule1).
46
Rule 14 encodes the proportionality limit: “Launching an attack which may be expected to cause
incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof,
which would be excessive in relation to the concrete and direct military advantage anticipated, is
prohibited” (https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_cha_chapter4_rule14).
47
Rule 6 qualifies the protection of rule 1: “Civilians are protected against attack, unless and for
such time as they take a direct part in hostilities” (https://www.icrc.org/customary-ihl/eng/docs/v1_
cha_chapter1_rule6).
48
HCJ 769/ 02 (2005) (http://www.haguejusticeportal.net/Docs/NLP/Israel/Targetted_Killings_
Supreme_Court_13-12-2006.pdf). For a more restrictive interpretation of the exception that allows
Introduction | 15
[A]‌civilian taking a direct part in hostilities one single time, or sporad-
ically, who later detaches himself from that activity, is a civilian who,
starting from the time he detached himself from that activity, is entitled
to protection from attack. He is not to be attacked for the hostilities which
he committed in the past. On the other hand, a civilian who has joined a
terrorist organization which has become his “home,” and in the framework
of his role in that organization he commits a chain of hostilities, with short
periods of rest between them, loses his immunity from attack “for such
time” as he is committing the chain of acts. Indeed, regarding such a ci-
vilian, the rest between hostilities is nothing other than preparation for the
next hostility.49
Permissible eliminative killing has exactly the same structure with regard
to the temporal element, though placing no emphasis, other than epistemic,
on joining any sort of organization.50
The way permissible eliminative killing differs from the Israeli court’s
opinion is with regard to the significance of taking “a direct part in
hostilities.” The court says, on the one hand, that “a civilian bearing arms
(openly or concealed) who is on his way to the place where he will use
them against the army, at such place, or on his way back from it, is a ci-
vilian taking ‘an active part’ in the hostilities.”51 On the other hand, “a
civilian who sells food or medicine to unlawful combatants is . . . taking
an indirect part in the hostilities.”52 In the gray area in between, the court
suggests using a broad interpretation of “directly” engaging in hostilities,
so “civilians are encouraged to stay away from the hostilities to the extent
possible.”53 In practice, the court takes that to mean
[T]‌he following cases should also be included in the definition of taking a

“direct part” in hostilities: a person who collects intelligence on the army,
the targeting of civilians insofar as and for such time as they take a direct part in hostilities, see
Melzer, 2009.
49
Ibid., ¶ 39.
50
I think court president Aharon Barak, the author of the opinion, would agree that membership in an
organization is significant merely for providing evidence of someone’s ongoing activities.
51
Ibid., ¶ 34. The court cheats a bit when it includes the civilian on the way back with the arms. If
this is his one act of supporting hostilities and he is on his way home, he may be liable to arrest but
not to targeted attack. The court is really relying on the thought that when he is so closely connected
to a hostile act, he must demonstrate, in some way, that he is done with engaging in hostilities to
regain his protected status.
52
Ibid.
53
Ibid.

whether on issues regarding the hostilities . . . or beyond those issues . . . a
person who transports unlawful combatants to or from the place where the
hostilities are taking place; a person who operates weapons which unlawful
combatants use, or supervises their operation, or provides service to them,
be the distance from the battlefield as it may.54
The bottom line for the court is that “[a]‌ll those persons are performing the
function of combatants. The function determines the directness of the part
taken in the hostilities.”55
Without meaning to gainsay the Israeli court’s interpretation of the
law, my defense of permissible eliminative killing implies that, from a
purely moral point of view, its emphasis on the function of combatants
is misplaced. If the aid civilians provide makes it possible for unjust
combatants to attack people whom they have no right to attack, such
that interrupting that aid would reduce the threat posed by those unjust
combatants, then we have passed the threshold question for justifying
eliminative killing; we now have to engage the other moral considerations
that might nonetheless make it impermissible. It might turn out to be im-
permissible, all things considered, but the directness or indirectness of the
threat and its connection or lack of connection to any traditional activities
of combatants are, I argue, morally irrelevant, except in two secondary
ways: (1) the legal prohibition on targeting civilians gives some moral
weight to the pro tanto duty not to target civilians,56 and (2) the indirect-
ness or legality of their harmful activity might tend to make them less
morally culpable, and thus less likely to have forfeited their right not to be
killed, which, in turn, affects the conditions under which targeting them
is permissible.57
In sum, my thesis is not as radical a departure from the principle of
distinction as it seems at first blush. In addition, the permissive aspects
of permissible eliminative killing break no new ground in the literature
54
Ibid., ¶ 35.
55
Ibid. For a broader treatment of this topic, see Melzer, 2009. According to Melzer, some experts
on the law of armed conflict think that activity should count as direct if its impact is large and
unique: “in extreme situations, namely where the expertise of a particular civilian was of very ex-
ceptional and potentially decisive value for the outcome of an armed conflict, such as the case of nu-
clear weapons experts during the Second World War” (p. 57n122). Tadros offers a slightly different
reading of the law. According to him, the law uses some notion of causal proximity to harm to define
what it means to be directly taking part in hostilities. See Tadros, unpublished manuscript, pp. 2–4.
In the end, these different accounts do not matter for my point.
56
I return to this point in Chapter 10, § 1.
57
I return to this point in Chapter 4, § 2.1.
Introduction | 17
on just war theory. Something similar has been defended, for example,
by Jeff McMahan, who writes “[T]‌he account of liability to attack in war
that I have defended cannot rule out the possibility that civilians may be
liable to intentional attack.”58 Helen Frowe adds “that non-combatants
are often liable to [defensive] killings, and that this conclusion follows
naturally for those who think that moral responsibility for an unjust
threat renders a person liable to defensive harm.”59 My account differs
from theirs, in terms of the extent to which I justify the eliminative
killing of noncombatants, only by being slightly more permissive, and
it has that effect only because I reject their reliance on forfeiture (i.e.,
liability).
Importantly, the implications of permissible eliminative killing are
not only permissive; they are also restrictive. The theory holds that
eliminatively killing just combatants is impermissible. This too may seem
to be a radical thesis, given that the law of armed conflict imposes no
such restriction. But, in truth, this is not a radical thesis in the history of
just war theory.60 It is also not a part of the thesis that I will spend much
time on.61 What I will spend more time on, with regard to restrictions,
and what is slightly more radical is the broader claim that it is impermis-
sible to eliminatively kill, or even to interfere with, the threatening acts of
those who have a right to engage in such acts. In doing so, I take a more
hard-line position on the impermissibility of responding to those who
have a right to act than any others of whom I am aware. McMahan comes
close when he argues that bystanders who would be killed as a side effect
of the acts of justified combatants may not kill them in response.62 But
even he thinks that the bystanders may still try to defend themselves by
jamming the weapons of justified combatants. I argue, in Chapter 8, that
even that is not permissible. If the acts of combatants are justified, they
may not be resisted. And if the acts of noncombatants that contribute to
58
McMahan, 2009a, p. 221.
59
Frowe, 2014, p. 187. See also Draper, 2016, pp. 198–202 (discussing how munitions workers
might be liable to defensive [i.e., eliminative] killing).
60
See McMahan, 2009a, p. 35. McMahan acknowledges that other major figures in the just war tra-
dition have also taken this position: Francisco de Vitoria and Francisco Suárez in the sixteenth and
seventeenth centuries and G. E. M. Anscombe in the twentieth (p. 34). Both Reichenberg, 2008, and
Steinhoff, 2012, emphasize that this view has deep roots, going back to Augustine, Thomas Aquinas,
and Hugo Grotius. Steinhoff characterizes the contrary view as a modern aberration, due mostly to
Michael Walzer, 1992. But Reichenberg (p. 193) traces the contrary view to the fifteenth century,
with “roots in ancient Rome.”
61
I do discuss it in Chapter 8, §§ 3.3 and 4.
62
McMahan, 2014b, p. 110.

the threat posed by others are justified, they too may not be targeted for
interference.
4. The Structure of the Argument
The argument in this book has four main parts. This chapter and Chapter 2
are the introductory chapters. Chapters 3 through 5 comprise the second
part of the book, laying out the case for the mechanics of claims63 and
for rejecting two competing theories. One of these competitors is the cur-
rently dominant model of rights, which I call the infringement model.
This is the model according to which there are two ways to fail to respect
rights: to impermissibly violate them or to permissibly infringe them.64
The other competitor theory competes at a different level. It is a compet-
itor theory not of rights but of the underlying normative foundation for just
war theory. It is the view that the intentions of agents are of fundamental
moral significance.
Chapters 6 and 7 form the third part of the book, the part most directly
concerned with justifying eliminative killing. Chapter 6 makes the argu-
ment that eliminatively killing innocent threats is easier to justify than
killing innocent bystanders as a side effect—the latter presenting the issue
of killing as collateral damage. Chapter 7 then builds on this foundation
to argue that the eliminative killing of noncombatants who contribute to
the threats posed by unjust combatants is also permissible under similar
conditions.
Chapters 8 and 9 constitute the last part of the book. They examine the
last substantive condition in permissible eliminative killing, condition 5,
which prohibits eliminatively killing anyone for doing what he has a right
to do. In Chapter 8, I argue that it provides an agent the right not to be
eliminatively killed. In Chapter 9, I argue that indirectness, which reflects
intervening agency, can be relevant to having the right to act. But I also con-
clude that it has limited relevance to just war theory because intervening
agency provides an agent the right to act only when it creates a causal
structure in which she is exercising the right not to sacrifice herself for
others. This sort of transformation is important for cases of self-defense,
but its relevance to just war theory is more or less limited to cases in which
people face the choice of submitting to an invasion or resisting and thereby
63
I introduced this model in Walen and Wasserman, 2012.
64
This model’s most influential expositors are arguably Feinberg, 1980, and Thomson, 1990.
Introduction | 19
bringing it about that an invader harms others. In other words, generally,
intervening agency will not provide a normative basis for blocking the jus-
tification of eliminative killing.
Lastly, because I invent a lot of new jargon in the course of devel-
oping my argument, I include at the back of the book, in addition to the
index and a table of cases, a glossary providing brief definitions of the key
theoretical ideas.

2 Basic Premises and Method
T
his chapter covers four themes in two groups. The first group
concerns my general approach to moral theory. It includes the role
of theory and cases in my work and the role of evidence and facts
in justification. The second group concerns two topics specifically relevant
to just war theory: reductive individualism and the distinctive causal struc-
ture of eliminative killing.
1. Reflective Equilibrium and the Relative Balance

of Theory and Case Intuitions
The reigning method in moral philosophy is the search for reflective equi-
librium. As John Rawls wrote, one searches for a theory that “as a whole
articulates our more firm considered convictions . . . at all levels of gener-
ality, after due examination, once all adjustments and revisions that seem
compelling have been made.”1 In practice, this means that one seeks to
develop a theory that is grounded in high-level principles that are morally
plausible and relevant, keeping in view how they work to explain mid-
level principles as well as judgments in particular situations. Insofar as
one cannot match one’s considered judgments in particular situations with
a theory consistent with one’s high-level principles, one has to adjust one
or both to try to find a better fit.
An interesting feature of contemporary moral philosophy is how much
weight most theorists put on matching intuitions in test cases. My own
1
Rawls, 1993, p. 28.
inclination is to lean the other way, to put more weight on finding plau-
sible, relevant, high-level moral principles that can be used to generate
mid-level principles and judgments in particular situations. This is for two
reasons. First, there are good reasons to distrust intuitions in particular
cases. Intuitions are known to vary depending on influences as diverse
as cultural prejudices, the mood of the person offering a judgment, and
the order in which questions are posed (i.e., framing effects).2 This is not
to say that intuitions in particular cases are morally irrelevant or useless.
Insofar as a certain result is clearly morally implausible, that can serve
as a reason to reject a theory that implies it. In addition, moral intuitions
can “usefully prod moral theorists into developing richer, more nuanced
theories, [which] would then have to be tested to see whether they stand
up to scrutiny in terms of other basic moral commitments.”3 Thus, I do not
shy away from discussing intuitions in particular cases. But I also try not to
put too much weight on matching them in seeking reflective equilibrium.
Second, I think it makes sense to put more weight, relatively speaking,
on good theoretical work. I have more trust in theory that articulates plau-
sible, relevant, and generative moral principles, as long as those principles
do not produce clearly implausible results, than I do in raw intuitions. My
reason is simple: I think we have a better grasp of the kinds of reasons
that could count as fundamental moral principles than we have of what
counts as a morally sound judgment in particular cases. The fundamental
principles have to make sense when asking the question, What is the point
of taking moral reasons seriously? This is a project we can engage with
in a rich way. By contrast, it is at best mysterious why we can rely on
an intuition about whether, for example, A killing T in a particular artifi-
cial and unusual situation is morally permissible. Maybe most (or some)
people have reliable, inchoate insights into such truths; but it is unclear
why we would think so without being able to ground those insights in a
deep, plausible moral theory. Thus, my discussion tilts in favor of focusing
on theoretical plausibility. This methodological tilt will be evident when-
ever I embrace a counterintuitive result because the theoretical reasons
for doing so seem to me to outweigh the appeal of widely shared moral
intuitions.4
2
See Walen, 2014, p. 461.
3
Ibid.
4
For example, I reject the widely shared intuition that people whose rights are infringed are
“wronged” (Chapter 4), and I remain agnostic about the common intuition that an agent may use
lethal force to defend herself against an innocent threat (Chapter 6).

2. Knowledge and Justification
2.1. The Use of Cases with Unrealistic Assumptions

of Knowledge
Having mentioned my reason for being wary of putting too much weight
on cases, I want to take this opportunity to say a few things about and on
behalf of the kinds of cases that I and many other moral philosophers use.
My first point concerns the worry that my cases unrealistically attribute
knowledge to agents. I discuss cases in which people face threats and an
agent has to consider making trade-offs, like whether to turn a trolley from
a track where it would run over and kill five people to a track where it
would kill only one or whether to save another at some cost (e.g., a broken
foot) to herself. Some think that it is problematic to use cases like these,
presupposing that the agents know exactly what their options are and what
the consequences of choosing each option would be. Real agents don’t op-
erate in the world like that. How should a person at a trolley switch know
that the five would all be killed if she does not turn the trolley? Why can’t
they get out of the way? Why can’t the one on the other track get out of
the way? How can an agent know that she will break her foot if she tries to
save another? Might she not come out fine or suffer worse harm?
These sorts of questions are all perfectly fair if we want truly realistic
cases. But they also miss the point. The point of using cases as I and most
other moral philosophers do is that we want to establish what one ought to
do in various circumstances. We stipulate circumstances to test theories.
Of course, a real agent facing the choice of deflecting a threat from five
onto one would normally not know all sorts of relevant facts, nor would she
have time to think much about what seems to be true. Nonetheless, moral
philosophers can still hope to provide guidance by making certain factual
assumptions and working out, in advance, the sorts of considerations that
are truly relevant. This guidance, we may hope, might prove to be useful
to people who confront difficult choices in the messy circumstances of
real life.
2.2. Two Audiences and Two Kinds of Justification

To appreciate how rights work, it will help to distinguish two fundamen-
tally different audiences for moral guidance: an agent herself and those
who have the potential to interfere with her or help her. The distinction
between these audiences arises because a third party might know more
Basic Premises And method | 23

than an agent. Even if an agent does what she ought to do, given what she
knows and can readily come to know, a third party who knows more might
realize that she does not have a right to do what she does. In such a case,
she may be blameless, but that does not mean that he should treat her as
though she really has the right to do what she reasonably but mistakenly
thinks she has the right to do. To capture that distinction between different
points of view on an agent’s act, I think it best to judge the agent using an
evidence-relative account of how to justify her acts. She ought to use the
best evidence available to her, and if she does so, she is blameless. But a
third party, operating from a different epistemic perspective, should appeal
to a fact-relative justification for her acts. This enables him to justify inter-
fering in cases in which he realizes that she has made a mistake about the
morally relevant facts.5
To illustrate how evidence-relative and fact-relative justifications can
come apart, consider the following:
Mine Shafts6: A hundred miners are trapped underground, with floodwaters

rising. Amy is a rescuer on the surface trying to save these people. There are
two mine shafts, and Amy knows that all the miners are in the same one, but
she doesn’t know which. There are three floodgates that she could close by
remote control. The results would be as follows:
The miners are in

Shaft A Shaft B
Gate 1 She saves 100 lives She saves no lives
Amy closes Gate 2 She saves no lives She saves 100 lives
Gate 3 She saves 90 lives She saves 90 lives
In a fact-relative sense, the best thing to do depends on where the miners
are. If the miners are in shaft A, it would be best if Amy closed gate 1; if
they are in shaft B, it would be best if she closed gate 2. But given that to
the best of Amy’s knowledge they are equally likely to be in either shaft,
the expected benefit from her point of view of closing either gate is only
a 50 percent chance of saving 100, or 50 lives saved. The expected ben-
efit of closing gate 3 is much greater: 90 lives saved. Given the evidence
5
For the distinction between evidence-relative and fact-relative justifications, see Parfit, 2011,
pp. 150–58.
6
This is based very closely on the case by Parfit (ibid., p. 159). I believe the first person to present
such a case was Regan, 1982.

Another random document with
no related content on Scribd:
PLANT OR ANIMAL?
D ID you ever stop to ask yourself, “What is the difference

between a plant and an animal?” because this is the place
where that question should be answered.
“Why, an animal is altogether different from a plant,” you answer,
perhaps a little scornfully. “I have no trouble in telling which is which.”
It is very natural that you should feel this way. A cow or a horse,
for example, is not at all like a tree; and when you think of animals,
you think of the ones you know best, and likewise of plants.
But wise men have discovered plants that look and act so much
like animals, and animals that look and act so much like plants, that
at one time they say, “Now, these are animals, surely,” and a little
later exclaim, “No, after all, these are plants;” and they take a long
time to make up their minds as to whether certain objects are plants
or animals.
And already even you children have discovered that the plants you
know best belong to families, and have children, and care for them in
a very motherly fashion; that they drink earth food with their roots,
and eat carbon food with their leaves; and soon you will find that
they do many other things which once upon a time you would have
thought it a great joke to be told a plant could do.
You remember my telling you of one little plant cell that could
swim; and there are some animals, you know, that are rooted to one
spot as we usually think only a plant is rooted.
What, then, is the difference between a plant and an animal?
Leaf Green and Sunbeam between them put life into what had no
life before; and the living plant matter, which they help to make, is
that which animals cannot make themselves, yet which they cannot
live without, for this living matter is absolutely necessary to them as
food.
And the one real difference between a plant and an animal is this,
—a plant can make out of certain dead substances the living matter
that all animals must have for food; an animal cannot do this.
HOW WE ARE HELPED BY LEAF GREEN AND
SUNBEAM
T HE cell in which Leaf Green lives has no little mouths such as

we saw in the picture some time ago.
Its walls are so delicate that the carbonic-acid gas passes through
them quite easily,—as easily as the gas escaping from an unlighted
jet in the schoolroom could pass to your nose even if you wore a veil,
or as easily as water would pass through a piece of muslin.
But between Leaf Green’s cell and the outer air are other cells,—
those which make up the outer covering or skin of the leaf. These
are arranged so as to form the openings or mouths about which we
have read. By means of these mouths the gas makes its way
through the leaf’s thick skin.
The plant needs as food the carbon in this gas, and so keeps fast
hold of it; but the oxygen is not needed for this purpose, and so it is
pushed back into the air.
Now, we learned in the last chapter of one very great service
rendered to animals by plants. We learned that plants took carbon
from the air, and turned this into food for animals.
But there is still another way in which plants serve animals. And
once more it is the work of Leaf Green and Sunbeam that is of such
importance to us; for when they take hold of the carbon, making it
into living food for man and beast, they take from the air the gas that
is poisonous, and send back into the air the gas which gives life and
health.
This poisonous gas which they lay hold of, you remember, is
carbonic-acid gas; and carbonic-acid gas is what we animals send
out of our bodies with every breath, for it is the part of the air which
poisons us. When the schoolroom is so close that our heads ache, it
is because so many children have been breathing out this gas, and
we are forced to take it back into our bodies again.
But when this gas is stolen by the plant, and robbed of its carbon,
it is no longer carbonic-acid gas. Nothing of it is left but the oxygen
which is pushed out through the cell walls; and this oxygen is as
good to breathe as the other gas (carbon and oxygen mixed) is bad.
So the plant finds good what we find poisonous. It takes in and
keeps that which hurts us (the carbon), and sends out that which
helps us (the oxygen).
So you see that our lives depend on the lives of plants in two
ways:—
1. The plants give us the food we need for life.
2. The plants take from the air the gas that poisons us, and give to
the air the gas which we need for life and health.
And in both cases it is Leaf Green and Sunbeam who are making
life possible for us.
Remember the great services of these two fairies when next you
pass a green tree which is bathing itself in sunshine.
HOW A PLANT BREATHES
P ERHAPS you have heard people say that it is not good to sleep
in a room with plants.
They say this, because they have heard that at night the plant
does not give out oxygen, but that it does give out the poisonous
carbonic-acid gas.
Now, you children know that part of this statement is true.
You know that the plant cannot give out oxygen at night, because
at that time there is no Sunbeam about to help Leaf Green tear apart
carbonic-acid gas and send the oxygen back into the air.
But how about the other part of the statement?
Is it true that at night plants give out the poisonous carbonic-acid
gas?
Both day and night, plants give out carbonic-acid gas; for though
plants, save in the sunlight, cannot eat by means of their little green
cells, they can breathe through the tiny mouths (Fig. 137) on the
under side of the leaf by night as well as by day.
And when either a plant or an animal breathes, it takes the life-
giving oxygen from out the air mixture, and keeps it for its own use.
But poisonous carbonic-acid gas is sent back into the air. Now, the
question is, whether a plant does most good or most harm to the air
by taking in and sending out the different gases.
Of course, it does good when it lets the oxygen out through its cell
walls, and stores away the carbon within itself; and it may seem to
do harm when through its leaf mouths it breathes in oxygen and
breathes out carbonic-acid gas.
There is only one key to unlock the matter, and that is this,—to find
out whether the plant does most towards poisoning or towards
purifying the air.
And that has been found out already.
Wise men say that Leaf Green and Sunbeam do much more good
to the air than the little breathing mouths do harm. The two good
fairies take away a great deal of poison, and send back a great deal
of the helpful oxygen; while the tiny mouths neither rob the air of
much oxygen nor give it much poison. Indeed, the harm they do is so
small compared with the great good accomplished by Leaf Green
and Sunbeam, that even at night you need not worry at the thought
that you have plants in your room.
Perhaps you wonder that a plant does these two things that are so
exactly opposite to each other.
But a plant must breathe as well as eat; for when it breathes, it
takes in the precious oxygen which is just as necessary to its life as
to ours.
In summer, by the dusty roadside, you see plants almost white
with dust, looking quite ill and lifeless.
And they are both ill and lifeless; for their little leaf throats are so
choked that they cannot breathe in the oxygen they need, and in
consequence they are being slowly suffocated.
THE DILIGENT TREE
N OW we have learned three things about plants, and especially

about leaves. We have learned—
1. That they perspire.
2. That they eat and drink.
3. That they breathe.
They perspire when the water passes through the leaf mouths into
the air.
They eat when Leaf Green and Sunbeam together manage to take
the carbon out of the carbonic-acid gas which has made its entrance
through the leaf mouth and the cell wall. They drink when the roots
suck in water and earth broth.
They breathe when the leaf mouths take from the air the oxygen,
and give back to it carbonic-acid gas.
The veins and veinlets, of which you see so many running through
a leaf, act in something the same way as the water pipes of a city;
for through these veins the watery food, the earth broth, is carried to
the different cells.
When one knows all that we know even now about a plant, one
looks at a tree covered with leaves with a good deal of admiration.
Just think of what is being done inside that quiet-looking tree!
Think of the millions of cells that go to make it up, each cell having
its own work to do! Think of the immense amount of business being
carried on within the trunk, inside the branches, and especially in
each green leaf! And when you have the chance, notice how hard
each leaf tries to get just as much sun and air as it possibly can.
In the first place, the thin, flat leaf blades are so spread out that
every part is exposed to the light and air.
Then notice how the leaves are placed in reference to one
another.
Almost every single one is fastened to the tree so as to get its fair
share of sunshine.
When you think of the many thousands of leaves borne by one
tree, it astonishes you to see how seldom one leaf gets in another’s
light.
And the shapes of leaves are always suited to their arrangement
on the tree.
If you should take the leaves of a chestnut tree and replace them
by the leaves of a maple, you would find the maple leaves all getting
in each other’s way, or else you would see that they were taking up a
great deal more room than necessary.
But when a leaf is studied on its own tree, one sees that its shape
is the very best that could be imagined for its position.
And in the smaller plants we notice this same thing.
And when you remember that Leaf Green cannot feed the plant
unless Sunbeam comes to her assistance, you realize how
necessary it is that each leaf be within the reach of Sunbeam’s visits.
LEAVES AND ROOTS
Y OU will be surprised to learn that the way in which a plant’s

leaves grow tells us something of the way in which its roots
grow.
Many of you have been overtaken far from home in a rainstorm,
and have sought shelter under a spreading tree. The ground directly
beneath the tree has kept almost dry even after some hours of rain,
but the earth just under the tips of the spreading branches got very
wet: for the great tree acted like a large umbrella; and when the
raindrops fell upon the smooth leaves, which sloped outward and
downward, they rolled from leaf to leaf till they reached the very
lowest, outermost leaves of all. From these they fell to the ground,
just as the drops that gather upon your umbrella run outward and
downward to the umbrella’s edge, and then off upon the ground.
So you can see that the circle of earth which marks the spread of
the branches above must be specially wet, as it received a great part
of the rain which fell upon the whole tree.
And whenever you see a tree which sheds the rain water in such a
circle, you can be pretty sure that, if you should dig into the earth a
ditch which followed this circle, you would soon reach the tips of the
new root branches of the tree.
You know that the root does the drinking for the plant; and only the
newest parts of the root, the fresh root tips, are really good for work
of this sort. You remember that the earth food is carried up the stem
to the leaves in a watery broth; and that if the water supply should
give out, the new plant cells would not get the broth which helps
them to grow, and to put out other cells, and so to build up the plant.
Now, as only the new root branches, near their tips, are able to
drink, if the water should leak through the earth in equal quantities
everywhere, much of it would be wasted; but when this water is
collected in certain spots within reach of the new root branches,
there is good reason to believe that these will be able to satisfy their
thirst.
By the shedding of the rain from the tips of the spreading branches
above, the water is collected in a ring, and so sinks into the earth;
and the root branches below spread out in just the same direction as
the tree branches above, till they find what they need, and drink their
fill.
Fig. 138
So by the way in which a tree sheds the rain, you can tell just
where its root branches reach out underground.
In smaller plants you see much the same thing. Fig. 138 shows a
plant called the Caladium. You can see that the raindrops must roll
outward down these leaves, and fall upon the earth just above the
tips of the root branches.
Fig. 139 shows you the rhubarb plant. This has quite a different
sort of root. Now, if the rhubarb leaves were like those of the
Caladium, unless the rhubarb root-branches changed their direction,
these root-branches would grow very thirsty indeed.
Fig. 139
But as it is, the water pours down these leaves toward the center
of the plant, and reaches the ground almost directly over the straight,
fleshy root, with its downward-growing branches; and we see that
these root-branches are watered by the leaves above just as
carefully as are those of the Caladium.
By knowing one thing about a plant, often you can guess that
another thing is so.
You understand now that when the leaves of a plant shed rain
water after the fashion of the Caladium, the chances are that its root-
branches spread out as far as the drip of the water; and that the root
of the rhubarb points almost straight downward, is told you by the
drip of water from the rhubarb leaves.
LEAF VEINS
S OME time ago you learned that from the stem of a plant you
could guess the number of seed leaves which it brought into the
world, and that in the same way from the seed leaves you could
guess what kind of a stem it would build up.
From the way in which a leaf is veined you can guess both of
these things. You can guess what sort of a stem belongs to the plant,
and with how many seed leaves it began life.
When the little veins run in and out, forming a sort of network, we
say that the leaf is “net-veined.”
Fig. 140
Fig. 141
Fig. 142
These leaves of the quince (Fig. 140), the maple (Fig. 141), and
the basswood (Fig. 142) are all net-veined.
Net-veined leaves are borne by plants which brought into the
world more than one seed leaf; and with the net-veined leaf we can
expect to find that stem which comes with more than one seed leaf,
—a stem where the skin or bark, the woody rings, and the soft
central pith, are clearly separated one from another.
Fig. 143
Fig. 144
But a leaf such as that in Fig. 143 or that in Fig. 144, where the
veins do not branch off in a network, but run in unbroken lines side
by side,—such leaves as these tell you that they are borne by plants
which started life with only one seed leaf, and which have such a
stem as the cornstalk, where you see no woody rings or central pith.
These leaves are called “parallel-veined.”
I fear that you find all this a little difficult to understand and to
remember; but if you read it patiently, when you study the botany for
older children, I think it will come back to you and make your lessons
easier.
LEAF SHAPES
A S I told you before, we should notice always the shape of a leaf.
Fig. 145
It is much easier to describe some new plant we have met on our
walks if we remember the shape of its leaves.
Next summer I hope you will make a collection of leaves, pressing
and keeping them. I think you will be amazed at their great variety in
shape.
Fig. 146
Some you find long and narrow, others almost round. Some are
arrow-shaped, others star-shaped, others needle-shaped (Fig. 145).
Some are three-pointed like the maple leaf (Fig. 146); others deeply-
parted, like the oak leaf (Fig. 147).
Fig. 147
Sometimes a large leaf is cut up into several little leaves. These
little leaves are called “leaflets.”
Fig. 148
The clover leaf (Fig. 148) has three leaflets.
Fig. 149
The locust leaf (Fig. 149) is cut into a great many leaflets.
The edge of one leaf (Fig. 150) is smooth, while that of another is
cut into little teeth (Fig. 151) like the teeth of a saw.
Fig. 150
Fig. 151
I should like to know how many of you children, without looking

even at a picture save such as you carry in that little gallery in your
head, could describe correctly the shapes of some of our common
leaves. I should like to ask you to draw on the blackboard the rough
outlines of any leaves that you remember. If you think you could not
do this, will you not try, when next you see a leaf, to carry off in your
mind such a picture of it as to enable you to outline it on the
blackboard when you go back to the school room?
Really it does not take any more time to see a thing correctly than
to see it incorrectly. It takes a little more sense, that is all.
It takes some sense to give even one minute of honest thought to
the thing you are looking at.
You know some children who never seem to have all their
thoughts in one place at a time, and who in consequence never see
anything really well.
It is better to stop doing a thing altogether than to do it in a foolish
sort of way; and it is foolish to start to do even the smallest thing,
and yet not do it.
The child who looks at even a leaf in a way to make it possible for
him to draw the outline of that leaf five minutes later, is likely to be
the child who goes in for both work and play with all his heart, and
who comes out as far ahead on the playground as he does in the
schoolroom.
Now, after that lecture, which some of you need badly enough
(and which I will tell you, as a great secret, I need not a little myself),
I want to point out a few more of the things that are worth noticing in
a leaf.
But perhaps it is better to save them for another chapter.
HAIRY LEAVES
N OTICE always whether a leaf is smooth or hairy. Do you

remember the mullein that sends up its tall spires over the hill
pasture? The grayish leaves of this mullein are so hairy that they feel
almost like wool. What is the use of all this hair? It is not likely that a
plant would wrap itself in this hairy coat except for some good
reason.
It is believed that this coating of the mullein prevents animals from
eating the leaves, and so destroying the plant. In the mouth, these
hairs slip from the leaf blade, and cause a most unpleasant
sensation.
But usually the hairs on a leaf are helpful because they prevent
too much perspiration or giving-off of water. The more freely the hot
sun beats upon a leaf, the more quickly the water is drawn away
from it. You can see just how this is by hanging a wet towel in front of
the fire. In a very short time the heat from the burning coals draws
the water from the towel. But put a screen between the fire and the
towel, and the water passes off more slowly.
Now, the hairs on that side of the leaf which faces the sun act as a
screen from its fierce heat. We have learned how important it is that
the leaf should not part with its water more quickly than the roots can
make up the loss. We know that when a leaf does this, it wilts just as
a leaf wilts when it is picked and cut off from its water supply, on
account of the collapse of the walls of the many little cells which are
emptied of water.
So you can understand that plants which grow in dry, sunny
places, where there is little drinking water for the roots, and where
the sun beats constantly on the leaves, must take every care that
there is no waste of water.
And if you keep your eyes open, you will discover that many of the
plants which grow in such places screen themselves from the full
heat of the sun by a coat of hairs.

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The mechanics of claims and

permissible killing in war Walen

Published in the United States of America by Oxford University Press

© Oxford University Press 2019

All rights reserved. No part of this publication may be reproduced, stored in

You must not circulate this work in any other form

Library of Congress Cataloging-​in-​Publication Data

2 Basic Premises and Method 21

5 Avoiding a Misplaced Emphasis on Intentions 124

6 Innocent Threats Versus Innocent Bystanders 137

7 From Innocent Threats to Noncombatants

8 Negative Agent-​Claims and the Agent–​Patient

Table of Cases (with page of first use) 219

1. It oversimplifies when compensation is due.

1. A Brief History of Recent Work on the Right

A moral constraint can apply only to the action of a responsible agent.

2 | The Mechanics Of claims And Permissible Killing in war

Hologram: Polly projects a holographic gun onto Howard’s hand as he

4 | The Mechanics Of claims And Permissible Killing in war

6 | The Mechanics Of claims And Permissible Killing in war

2. My Position on the Right to Defend Against Threats

My ultimate goal in the following discussion of the right to defend against

8 | The Mechanics Of claims And Permissible Killing in war

1. T is a threat to some possible victim, V, and killing T will eliminate T’s

10 | The Mechanics Of claims And Permissible Killing in war

3. There is no alternative way to protect V to the same degree that is

This is the traditional necessity condition, which also sets a necessary

A eliminatively killing T. Nonetheless, I think it is important to describe this condition independently

This condition describes comparative proportionality. It fills in when

12 | The Mechanics Of claims And Permissible Killing in war

This condition represents what I call the agent–​patient inference: if T

6. There are no other moral reasons (such as the importance of adhering

This final condition is a catch-​all for other moral reasons, such as

3. The Thesis in Practice

What does permissible eliminative killing mean in practice? It does not

14 | The Mechanics Of claims And Permissible Killing in war

[T]‌he following cases should also be included in the definition of taking a

16 | The Mechanics Of claims And Permissible Killing in war

18 | The Mechanics Of claims And Permissible Killing in war

4. The Structure of the Argument

20 | The Mechanics Of claims And Permissible Killing in war

1. Reflective Equilibrium and the Relative Balance

22 | The Mechanics Of claims And Permissible Killing in war

2.1. The Use of Cases with Unrealistic Assumptions

2.2. Two Audiences and Two Kinds of Justification

Basic Premises And method | 23

Mine Shafts6: A hundred miners are trapped underground, with floodwaters

The miners are in

24 | The Mechanics Of claims And Permissible Killing in war

D ID you ever stop to ask yourself, “What is the difference

T HE cell in which Leaf Green lives has no little mouths such as

N OW we have learned three things about plants, and especially

Y OU will be surprised to learn that the way in which a plant’s

A S I told you before, we should notice always the shape of a leaf.

The clover leaf (Fig. 148) has three leaflets.

I should like to know how many of you children, without looking

N OTICE always whether a leaf is smooth or hairy. Do you

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Library of Congress Cataloging-in-Publication Data

8 Negative Agent-Claims and the Agent–Patient

1. A Brief History of Recent Work on the Right

2. My Position on the Right to Defend Against Threats

This condition represents what I call the agent–patient inference: if T

This final condition is a catch-all for other moral reasons, such as

3. The Thesis in Practice

4. The Structure of the Argument

1. Reflective Equilibrium and the Relative Balance

2.1. The Use of Cases with Unrealistic Assumptions

2.2. Two Audiences and Two Kinds of Justification