| Phi 213 Spring 2016 |
|
(Site navigation is not working.) |
For Mon. 3/28: intro. and §I (pp. 711-728)
For Wed. 3/30: §§II-III.B (pp. 728-739)
For Fri. 4/1: §§III.C-IV (pp. 739-749)
Ferzan’s paper is a sample of the sort of issues that arise in the justification of the criminal law. She is considering the grounds for homicide to be justifiable as self-defense. After an introduction, she devotes one section each to two common approaches to this issue, and we will discuss the first of these on Mon. Her own view (presented in §III) develops out of her discussion of the second approach; we will look at that discussion, and the beginning of her presentation of her own view on Wed. Finally, on Fri., we will finish up the presentation of her view (in addition to looking at the brief concluding section).
Her presentations of the issue and the arguments on each side are clear enough that I will add only some background information.
• Consequentialist vs. deontological. Ferzan will speak of two sorts of ethical evaluation that you have encountered in the course and use the labels for them that I mentioned in passing when we discussed Rawls. Utilitarians judge actions (or, in the form of utilitarianism that Rawls considers, rules) in terms of their consequences for happiness. In general, a moral theory that judges actions in terms of any sort of evaluation of consequences is classified as consequentialist. So what Dworkin speaks of as justifications in terms of goals and policies could also be described as consequentialist. Dworkin contrasts such justifications with ones in terms of rights and principles, and the evaluation of actions in terms of such things would be classified as deontological. (You’ve seen Austin use the term “deontology” as a general label for ethics, as distinct from positive morality, but it has since come to have a narrower use.) So, for example, what Rawls calls a utilitarian justification of punishment would be consequentialist and what he calls a retributive justification would be deontological.
• Justifications vs. excuses. Self-defense is an example of a “justification” in a specific legal sense of that term. A justification is a defense against a criminal charge that presents the action as in some sense warranted. It is commonly distinguished from an excuse, which absolves the actor from blame without treating the action as warranted. Insanity and some cases of duress would count as excuses while “necessity” (i.e., the choice of the lesser evil) and self-defense would count as justifications. Although Ferzan’s main concern is with self-defense as a justification, you will find her speaking also of excuses.
• The trolley example. When Ferzan speaks (on p. 725) of the “infamous runaway trolley,” she has in mind the following example (given here in the version of Judith Jarvis Thomson, The Realm of Rights, Harvard Univ. Press, 1992, p. 176):
trolley: An out-of-control trolley is hurtling down a track. Straight ahead of it on the track are five men who will be killed if the trolley reaches them. Bloggs is a passerby, who happens at the moment to be standing by the track next to the switch; he can throw the switch, thereby turning the trolley onto a spur of track on the right. There is one man on that spur of track on the right; that man will be killed if Bloggs turns the trolley.
Farzen seems to have something like Thomson’s version in mind except that, in her version, the one person on the right spur is named “Jane.”