Culpability and Duress: A Case Study1

Gideon RosenDepartment of Philosophy

Princeton UniversityPrinceton NJ, 08544 USA

I

Suppose … a tyrant tells you to do something shameful, when he has control over your parents and children, andif you do it they will live, but if not, they will die.These cases raise dispute over whether they are voluntary or involuntary. (Nichomachean Ethics 1110a5, Irwin, trans.)

Aristotle calls such actions ‘mixed’. They are not choiceworthy ‘in themselves’, and yet they may be choiceworthy ‘in the circumstances.’ as a price for goods that can only be achieved by means of them. “No one willingly throws cargo overboard, but anyone with any sense throws it overboard … to save himself and others (NE 1110a 10-11). The question is whether such actions should be reckoned voluntary, and Aristotle’s answer is that they should. We do them willingly, if reluctantly, so we are properly praised when the act is right and blamed when it iswrong. In a later terminology, Aristotle’s view is that we are normally responsible for what we do under duress.2 1 Versions of this material have been presented as an Immanuel Kant lecture at Stanford, as a Sosin Lecture at NewYork University, as a public lecture at the Sraffa Center for Ethics at Harvard, and in seminars at Columbia Law School, Cornell and Princeton. Thanks to Anand Krishnamurthyfor research assistance.

2 For present purposes, an act is done under duress when it is done to avoid an otherwise unavoidable threat of death orserious bodily injury to the agent or someone close to her.

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Special circumstances may justify an act that would otherwise have been wrong, and when they do the act is not blameworthy. But when the act is not justified, the mere fact that it was done under intense pressure does not amountto an excuse for acting badly.

Aristotle allows an exception, however, for actions done in circumstances that ‘overstrain human nature, and which no one would endure’ (NE 1110a25). In such cases ‘there is no praise’ — because the act is not justified — ‘but there is pardon’. Aristotle does not give examples, but it’s not hard to guess what he has in mind. Suppose a captured soldier reveals military secrets under torture. Wecan imagine cases in which the act is justified — the secrets are trivial, the torture hideous. But suppose the secrets are important enough that the soldier is morally bound not to reveal them. Still, this may happen: torture may flood the soldier’s mind with pain and fear, and this intense feeling may neutralize his capacity to reason properly. It may interfere with his broadly cognitive capacity to appreciate the reasons for keeping silent, or with his practical capacity to take these reasons into account. The sort of temporary incapacity can be culpable ifit manifests a vice (e.g., cowardice), or if the agent has culpably placed himself in circumstances that might induce it. But when a normal person blamelessly finds himself facedwith the prospect of imminent death or mutilation — circumstances that might easily trigger practical incapacityin a normal, morally decent human being — then the incapacity that results is blameless and so is any action done in light of it.

This general principle — that blameless practical incapacity excuses wrongdoing — underlies many familiar excuses: infancy, insanity, extreme emotional disturbance, somnambulism, hypnotism, involuntary intoxication, etc. These conditions are all normally blameless, and people who

The threat need not be wrongful; indeed, it need not emanatefrom a person.

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suffer from them often lack the normal adult capacity for reflective self-control, at least to a significant degree (Wallace 1994, 159ff.). Of course it would be good to knowwhy this sort of blameless incapacity renders an agent blameless for the resulting act. But for now it is enough tonote that for whatever reason, one way in which duress may furnish an excuse is by inducing blameless practical incapacity of just this sort.

There is, however, another class of cases that fit Aristotle’s description: cases in which human beings do awful things in conditions that might be said to ‘overstrainhuman nature’. In the cases I have in mind, the agent retains the capacity for practical deliberation. His mind isnot flooded with pain or fear. He knows exactly what he is doing and makes a clear-headed choice to act in awful ways. And yet, when we bear in mind the circumstances in which thechoice is made, there is a powerful tendency to judge that the agent is not blameworthy, and hence that his action mustbe either justified or excused. I will argue that in at least some of these cases, the act is not morally justified,and hence that if the agent is not blameworthy, he must havesome sort of excuse. The challenge will then be to say whatthis excuse could be.

II

We could proceed entirely in terms of imaginary cases, but for reasons that will emerge it will be useful to focus on a real case. The man I am about to describe is still alive. You could meet him tomorrow in the street, and if you did there would be a real question about what to make ofhim. More specifically, there would be a real question about how to feel about him, and about how to interact with him given what he did. As I shall understand the term, whenwe ask whether X is culpable or blameworthy for doing A, we are asking whether certain emotional responses to X’s doing A — resentment and indignation: the so called reactive emotions — would be warranted or appropriate given the act

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(Strawson 1962).3 The man that I am about to describe raises these questions in an especially poignant way, and the fact that he is real may help us to bring them into focus.

The basic facts are clear. At the height of the Bosnian War in 1995, Dražen Erdemović was a 19 year-old soldier in the Bosnian Serb Army led by Ratko Mladić.4 Immediately after the fall of Srebrenica, Erdemović’s unit was dispatched to a field outside the city where they participated in the massacre of roughly 1200 civilian prisoners. Erdemović was a member of one of several firing squads. He later estimated that he personally killed as many as 70 people over the course of several hours, all of whom were bound and gagged and shot in the back.

If there were nothing more to the story, there would beno doubt that Erdemović is morally culpable for a grotesque wrong. The rest of the story runs roughly as follows.

When war broke out Erdemović was an unemployed electrician with a wife and newborn son. He was a professedpacifist with no enthusiasm for the conflict, but in order to feed his family he enlisted with Croatian forces — Erdemović was a Croat born in Bosnia— but was soon expelled for releasing prisoners slated for abuse. After wandering around the country for some months looking for work, he enlisted in the Bosnian Serb Army, a force composedalmost entirely of ethnic Serbs. When he signed on he specifically requested assignment to a non-combat unit and was ultimately attached to an intelligence division. 3 I do not claim that this ‘reactive conception’ of blameworthiness is the only legitimate such conception. Talk of ‘blame’ and ‘blameworthiness’ is ambiguous, and thisis one legitimate way to understand it. 4 The most complete scholarly discussion is (Brooks, 2003); see also (Turns 1998). Pertinent documents are available at http://www.icty.org/case/erdemovic

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Despite this, on July 15, 1995 his unit was dispatched to Pilica Farm outside Srebrenica where they were told that busloads of prisoners would soon arrive.

As soon as he realized what was happening, Erdemović refused to participate. As he later testified:

They told us that a busload of civilians would come from Srebrenica. I said immediately that I did not want to take part in that, and I said, ‘Are you normal?Do you know what you are doing?’ But nobody listened tome, and they told me, ‘If you do not wish to … you can just go stand in line with the rest of them and give others your rifle so that they can shoot you.’ (ICTY transcript, 1996, p. 185)

Erdemović deserted at the first opportunity after the massacre and attempted to surrender. Unable to locate international authorities, he told his story to a freelance journalist, thus alerting the world to the atrocity, as a result of which he was imprisoned by the Serbs and convictedunder Yugoslav law. The International Criminal Tribunal forthe Former Yugoslavia then requested Erdemović’s transfer toThe Hague, where he was eventually charged with crimes against humanity, the most serious charge available to the tribunal. He cooperated at every stage, pleading guilty and testifying against others. However his guilty plea was accompanied by evidence of duress. As he then put it:

Your honor, I had to do this. If I had refused I wouldhave been killed together with the victims. When I refused they told me, ‘if you are sorry for them … lineup with them and we will kill you too’. I was not sorry for myself, but for my family and son who then had nine months, and I could not refuse because they would have killed me. (ICTY Appeal Judgment, 1997, para. 4.)

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Erdemović was sentenced to 10 years in prison for crimes against humanity.5

III

Let us stipulate, as seems true, that Erdemović acted as he did only because he would have been shot had he

5 Our topic is the moral significance of duress, but thecase also raised an important legal question. After thesentence was handed down, Erdemović’s lawyers appealed theconviction on the ground that the guilty plea had beenequivocal. It is a settled principle of criminal law that acourt may not accept a guilty plea when it is accompanied bytestimony that would, if believed, furnish the defendantwith a complete defense. Even though Erdemović hadconsistently claimed responsibility for his actions, thecourt was obliged to address the legal question whetherduress constitutes a defense to homicide under internationallaw.

Settled international law at the time was (somewhatsurprisingly) silent on the issue. Moreover the nationallegal systems to which the court might have turned forguidance are sharply and famously divided on this point.With some exceptions, civil law jurisdictions (followingKant, 1996/1797, p.28) recognize mortal duress as a defenseto any charge, whereas common law jurisdictions, citing R. v.Dudley and Stephens (1884) 14 QBD 273 DC, generally rejectduress as a defense to homicide.

The court might have approached the question by askingwhether someone who kills under duress is morallyblameworthy for his act, and then applying the plausibleprinciple that people should not be punished for blamelessconduct. Instead the court relied on a policy argument. Toacknowledge duress as a defense to homicide would be tofurnish murderous regimes with a tool for immunizing their

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refused. We want to know whether this fact furnishes him with a complete moral defense.6 Since defenses are of two sorts  — justifications and excuses — this is really two questions. A justification shows the act to have been morally permissible the circumstances, perhaps despite appearances, whereas an excuse renders the agent blameless even if his actwas impermissible. Let’s begin with the question of justification. Was it morally permissible for Erdemović to kill 70 innocent people in order to save his own life in these circumstances?

One way to approach the issue would be to invoke a general moral theory. Simple-minded consequentialism entailsthat Erdemović’s actions were permissible – indeed, required — since more innocent people would have been killedhad he refused to shoot. A simple-minded deontological theory with an absolute prohibition against killing the innocent yields the opposite verdict. But these views are much too simple, so we should set them to one side.

I know of no plausible general theory that yields a principled verdict in this case. But even if we cannot resolve the issue by appeal to basic principles, we may be able to resolve it by appeal to principles at an

troops against prosecution by establishing a credible threatof execution on the battlefield for soldiers who refuse tofollow orders. While expressing great sympathy forErdemović, the court was ultimately persuaded by thisargument. In the end the charges were modified (from crimesagainst humanity to war crimes) and his sentence reducedfrom ten years to five. He was granted early release in1999.

6 It can be hard to distinguish a complete defense, whichreduces blameworthiness to zero, from a significantmitigating factor that reduces blameworthiness almost tozero. Here I focus on the possibility of a completedefense, though the question of mitigation also meritsdiscussion.

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intermediate level. The crucial feature of Erdemović’s act is not that this was ‘optimific’ in the sense that matters to the consequentialist, but rather that it was Pareto optimalin a very strong sense. Erdemović’s victims were already lost. If he had refused to participate in the massacre they would have died just as they did: in the same way, at the same time, with the same consequences. 7 The only difference would have been the identity of their executioner. This means that no matter how cold it may soundto say so, Erdemović’s act made no one worse off than he would otherwise have been in any respect that people have reason to care about. But of course it made at least one person better off — Erdemović himself, and perhaps his family. And this means that there is a sense in which Erdemović was in a position to justify his actions to his victims by citing reasons that they, given their interests, might have recognized as sufficient. We can try to imagine a conversation between Erdemović and his victims in which they try to give him reasons for handing over his rifle and standing with them, even though this would not save a singlelife. It seems to me that there is very little that they might have said. They would have been asking them to sacrifice his own life in a context in which this would havedone no one any good. Bearing this in mind, we may come to think of Erdemović’s act as morally permissible.

The principle that underlies this argument is as follows:

Pareto: X’s doing A is permissible if those affectedare no worse off in any morally relevant respect for X’s having done A than they would have been had X chosen any other option open to him, and at least one person is better off.

7 This is Brooks’ judgment (Brooks 2003). I reconsider this assumption in the next section.

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This principle applies only in very special cases. Suppose X has an indivisible good that he can assign either to Y or to no one. A simple Pareto principle, focused only on ordinary welfare, might imply that it is permissible for X to assign the good to Y. But if this would be unfair to Z, or if it would create an objectionable inequality, then our principle does not apply, since any act open to X would disadvantage someone in a morally relevant respect relative to other options. The principle applies only in rare cases where those affected are not disadvantaged in any way, where the relevant baseline is not the status quo ante, but rather the various conditions that might have obtained had X acted differently.

So understood, the principle is at least initially somewhat plausible. Moreover, as the argument suggests, it has a natural contractualist rationale. (Could people seeking shared principles to guide their conduct reasonably reject the principle as formulated?) And yet it has indisputably repugnant consequences. The principle implies,for example, that Erdemović would have been justified in participating in the massacre even if the only consequence of disobedience would have been a demotion in rank or a slapon the wrist.

It is worth asking whether this consequence is as absurd as it first appears; but if we wish to resist it we can revise the principle. Say that an act is strongly optimal iff it is optimal in the sense just defined, and in addition, the harms it prevents (or the benefits it secures)are of comparable moral significance to the harms it causes.8 A principle that permits any strongly optimal act would license killing to save a life in cases of the sort we have been considering, but not in order to prevent a minor injury. It is worth asking whether this weaker principle can be justified by arguments that do not also support the stronger version, but for my purposes, it will be enough to rely on the weaker principle. 8 The language echoes Singer 1972.

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I accept the modified Pareto principle and so maintain that if the facts are as we have supposed, Erdemović’s actions were not wrong, from which it follows that he is morally blameless for having done them.9

IV

These reflections invite us to consider a modified version of the case. Suppose Erdemović could have saved some lives by standing with his victims and allowing himselfto be shot. Perhaps some of the prisoners would have escaped in the confusion if he had balked. Perhaps his fellow soldiers would have been moved to rebel by his brave stand. In that case his act is no longer optimal and our Pareto principles do not apply.

This version brings into relief the features of the case that I want to focus on. In the real version of the case asanalyzed above, it is incidental that Erdemović himself was threatened. Insofar as the analysis turns on the Pareto principle, the case is not relevantly different from BernardWilliams’ case of Jim and the Indians (Williams 1973), in which an unthreatened agent can save some people by killing one person who will certainly die (in the same way, etc.) nomatter what the agent does. The cases that interest me, bycontrast are cases in which a threat to the agent’s life (or9 That he was capable of shooting innocent people in the backmight be thought to reveal a morally blameworthy aspect of his character — a deplorable cold-bloodedness. I will dispute this later on, but even if it is right, we should distinguish between the claim that Erdemović is blameworthy for his act and the claim that he is blameworthy for his character. My claim is that if the acts were justified, then he is not blameworthy for those acts. The idea that we are blameworthy for an act only if that act is wrong is not entirely uncontroversial, but I assume it here. Cf. Graham (forthcoming).

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the life of someone he cares about) seems to furnish him with a distinctive sort of defense. The modified version ofthe case brings this aspect to the fore.

A principle that would permit Erdemović to kill in this case would be a principle of legitimate self-preference. Such principles licenses a person to give more weight to hisown right and interests than to those of strangers. Self-preference is clearly permissible in many cases. If I can avoid an on-coming boulder only by jumping out of the way, Imay jump, even if I foresee that some people further down the hill will then be killed. But of course the simplest principles of self-preference are refuted by transplant cases: I can’t kill you for your kidneys, even if I will diewithout them. Our question is whether the correct principlesof self-preference permit killing in the modified case. Andsince I cannot articulate those principles, I cannot answer the question by appeal to them.

Let me sketch an indirect approach instead. Begin with a familiar fact: Killing in genuine self-defense is often justified, whereas killing in mistaken self-defense is at best excused. (By ‘mistaken self-defense’ I mean a circumstance in which the agent blamelessly but mistakenly believes that the conditions for ordinary self-defense obtain.) This is a general routine for pairing each justificatory defense with an excuse. Whenever some specialcircumstance justifies an act that would normally be wrong, a blameless but mistaken belief that such circumstances obtain renders the resulting act non-culpable.

Now as we reflect on such pairings and on the contrast between justification and excuse more generally, we note a suggestive fact. When an act is justified, it is normally permissible for uninvolved third parties to assist the agentin certain ways. If I’m struggling to repel my attacker in genuine self-defense and my gun jams, you can assist me, forexample, by handing me another gun. By contrast, if I am about to kill a harmless stranger in mistaken self-defense,

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you do not have a sufficient moral reason to help me (thoughof course you might be excused if you were similarly mistaken).

This suggests a principle:

Assistance Principle: If it is permissible for X to do A, then other things equal, it is permissible for third parties to assist X in doing A.

The ceteris paribus clause covers a range of obvious exceptions.If my doing A will have good consequences but your assistance will have disastrous consequences, then it may bewrong for you to help even if it would be fine for me to acton my own. The same goes for cases in which the third partyhas some independent obligation not to help, or in which thethird party has options that the agent lacks, as when I can only repel the attacker by killing him, but you can easily stop him with a tranquilizer dart. So let’s set such cases aside and restrict the principle to cases in which the only morally relevant consequence of assistance would be the ordinary consequences of the primary act.

This principle yields the right answer in the real version of the Erdemović case. If the Pareto argument for the permissibility of the act is sound, then the same argument shows that it would have been permissible for a third party to help him if he had needed help, provided the third party had no better option, and that seems right.

The principle also holds in less dramatic cases in which an agent acts to benefit himself at the expense of others. Suppose I’m about to pay my daughter’s tuition at afancy private college, but that if I don’t pay now it will be too late, in which case I will send the money to Oxfam where it will do more good. If we suppose that I am justified in acting to benefit my daughter in such a case, the assistance principle entails that it would be permissible for others to provide routine assistance, and

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again, that’s clearly right. A cab driver who knows the facts may permissibly drive me to the bank; a banker can help me transfer the money, and so on. This shows that the assistance principle applies in some cases in which an act is justified only as a matter of permissible self-preference.

Now apply the principle to the modified version of the Erdemović case. Here we don’t know whether the act is justified; that’s what we’re trying to find out. And yet, even if the status of Erdemović’s act is initially unclear, it seems quite clear that it would be wrong for an uninvolved third party to assist him. Suppose Erdemović’s gun jams and that he will be shot — and some prisoners released — unless Jones hands him another gun. If Jones hands him the gun, Jones will be helping him kill innocent people who would not otherwise be killed. This obviously requires justification. But what justification could Jones possibly give? (We are imagining that Jones has no special relationship with Erdemović.) If this question has no answer, then the assistance principle implies that it would be wrong for Erdemović to shoot in the modified version of the case.

These considerations are hardly conclusive. The assistance principle is plausible on its face and after somereflection, but so are many principles that turn out to be mistaken in the end. Given this uncertainty, we should not place much confidence in the argument for the impermissibility of Erdemović’s act in the modified version of the case. Still this claim is plausible in its own right. If there is ever a case in which a person might be morally required to die rather than kill the innocent, this is it, or this is close to it. I will therefore take this verdict as a working hypothesis in what follows.

V

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The fact of duress does not justify killing the innocent in the modified case. Might it nonetheless provideErdemović with an excuse? We should set aside the possibility that the mortal threat somehow addled his judgment, since there is nothing in the record to suggest this. If Erdemović has an excuse in this case, it has nothing to do with the sort of blameless incapacity mentioned above. So what could his excuse possibly be? To address the question, we need to say a bit more about blame and blameworthiness.

An agent is blameworthy for an act, in our partly stipulative sense, when certain emotional responses— the so-called reactive emotions — are warranted by the act. A complete account of blameworthiness within this framework will thus involve two ingredients: An account of the reactive emotions — resentment, indignation and the like — and an account of the conditions under which these emotions are ‘warranted’.

These two aspects of the theory are connected. Like all emotions, the reactive emotions involve thoughts: belief-like representations of their objects. Fear is constituted, in part, by the thought that one may be in danger: if you do not at some level think this, then whatever you are feeling, it is not fear. These constituentthoughts need not amount to conscious, articulate, confidentbeliefs. But they are belief-like inasmuch as they are intentional states that represent the world as being a certain way, and which are correct if and only if the world is as they represent it.10 Emotions may not be exhausted bythese belief-like thoughts: they may also involve non-cognitive attitudes, behavioral dispositions and perhaps raw10 Roberts (2003) says that emotions involve construals of one’s circumstances. These are analogous to perceptual appearances or seemings, which normally cause perceptual beliefs, but which may survive even when the belief is neutralized by extrinsic evidence, as in known optical illusions.

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affect. But when an emotion is constituted in part by the thought that p, it follows immediately that the emotion is warranted or appropriate only if p is true.

The reactive emotions that constitute blame involve a number of interrelated thoughts. When you blame the idiot in the Mercedes for stealing your parking spot, your resentment essentially involves the thought that her act waswrong — that she had no right to do what she did — and so your anger is appropriate only if this was indeed the case. When you discover that there was some sort of emergency thatin fact justified the act, your resentment should evaporate,since this fact falsifies one of the thoughts implicit in it. But now suppose you discover, not that the idiot was somehow justified in stealing your spot, but that through nofault her own she was not aware that you had been waiting patiently for it. This discovery does not show her act to have been justified.  You were still entitled to the spot bythe timeless rules that govern this sort of thing. And yet it does render the act blameless. Why? Because in additionto the thought that the act was wrong, blame involves the further thought that the act was a manifestation of ‘ill will’, as it is sometimes called, or ‘an insufficiency of good will’, as it is better called.

This is the crucial point for what follows. We owe other people a certain level of concern: their rights and interests should matter to us to some degree. How much concern or regard we owe another person depends on many things, including our relation to him. You should care a great deal about the well being of friends and family; you should to some degree about the rights and interests of strangers. These things should matter to you in a way that bears on how you act: the ‘concern’ at issue here is at least in part a matter of motivation. Someone who acts maliciously normally manifests an insufficient degree of this sort of concern; but the same goes for someone who actsrecklessly — thereby showing a willingness to impose unjustified risks on others — and even in many cases for

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someone who acts negligently. In all of these cases, the act manifests what I will call a ‘morally objectionable pattern of concern’. The crucial point — Strawson’s point — is that resentment and the other reactive emotions are responses to a perceived insufficiency of good will manifestin the act. Your blame evaporates (if you are rational) whenyou recognize that the idiot in the Mercedes was blamelesslyunaware that the spot was yours because this recognition negates one of the thoughts implicit in resentment, viz., the thought that the act in question manifests insufficient concern or regard for those affected.

A complete analysis of the reactive emotions would noteat least one more crucial feature. The reactive emotions are forms of anger, and like all forms of anger, they are essentially hostile sentiments. Resentment and indignation are incompatible with unalloyed pity and concern for their object. To blame in this sense is to want agent to suffer, or at least not to thrive so abundantly. This aspect of theemotion may be highly indeterminate in content. There may be nothing in particular that you want to do to the idiot inthe Mercedes as you are fuming at her for stealing your spot. And yet blame essentially involves some measure of hostility — if not positive animus, then at least a sort of frostiness, some withdrawal of at least some of the good will that we normally extend to other people.

Now this hostile element in resentment is not itself a belief-like thought. It is more a matter of desire. But it is closely connected with a third belief-like thought. Unlike the primitive anger available to animals, resentment and the other reactive emotions are modes of ‘righteous anger’. They present themselves are warranted or justified by the act that triggers them. I take this to show that these emotions involve a thought about their hostile element: a thought to the effect that this quantum of hostility is warranted at least in part by the fact that the act in question was a wrongful act that manifests an insufficiency of good will. The account thus assigns a moderately complex

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content to these moral emotions. To blame X for A is to think of A as a wrongful act that manifests an insufficiently good will on X’s part, which therefore warrants a certain hostile response. I stress again: thesethoughts need not be conscious or articulate, but they must be there. Blame in this sense is warranted only if all of these thoughts are true. This gives a partial account of the conditions of blameworthiness grounded in an analysis ofthe reactive emotions. A complete defense of the account would proceed by showing how well it explains the excuses and exemptions we already recognize, and more generally, by displaying its capacity to make sense of our practice with, and our reflective thought about, moral blameworthiness, including the perennial appeal of incompatibilist skepticismabout responsibility. But I leave that for another occasion. We have what we need by way of general theory forour purposes.

VIOur challenge was to say how the sort of duress that

features in the Erdemović case could possibly constitute an excuse for his wrongdoing. In the framework I have just sketched, the challenge reduces to finding some feature of the case that negates one of the thoughts implicit in moral blame. The key, I believe, lies in the relatively uncontroversial ‘ill will’ condition: the idea that an act is blameworthy only if it manifests insufficient concern or regard for those affected. As Strawson noted, this explainsthe force of the so-called cognitive excuses: accident, mistake, inadvertence, etc. These excuses apply when an impermissible act that might naturally be taken to express malice or indifference is in fact done from blameless ignorance of the features of the act that make it wrong, as when I put arsenic in your tea, blamelessly believing it to be sugar. When we point out that in such cases the agent had no idea that his act would be wrong or harmful, we show that moral blame would be inappropriate by showing that one

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of the thoughts implicit in resentment would be false in thecase at hand.11

Action under duress need not involve ignorance of this sort. But I would like to suggest that duress can function as an excuse by a similar mechanism. When one person conspicuously harms another or infringes a right, we maybe tempted to construe her act as a manifestation of insufficient concern. But when a teller hands over the bank’s money to a gunman, her act is obviously consistent with a decent regard for the bank’s interest in its property. We might say the same about the mountain climber who dodges an oncoming boulder in the knowledge that this will imperil climbers further down the hill. A willingness to save one’s own life in such circumstances shows that the agent cares more about saving his own life than about letting others die, and this may not be the saintliest pattern of concern. But it does not amount to objectionable malice or indifference, or so we think.

Similarly, in the real version of the Erdemović case, Erdemović’s decision to participate in the massacre reveals a willingness to kill the innocent to save himself, and thatsounds horrible. But in the real version of the case, this is compatible with intense concern for the rights and interests his victims, since as Erdemović knew, and as we have stressed, there was nothing he could have done to protect those rights and interests in the circumstances.

But of course these are all examples of morally permissible acts, and it is no great surprise to learn that someone who acts permissibly while giving appropriate weightto the considerations for and against his act should not count as manifesting ‘ill will’ or ‘insufficient concern’. The challenge was to say how Erdemović could possibly be excused on these grounds even in the modified version of the case, where we have stipulated that the killing is not permissible. 11 See Rosen (2009) for a discussion of this phenomenon.

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Here’s my proposal. When Erdemović kills in the modified case, he places more weight on his own life than onthe lives of the strangers he could have saved. This choice reveals a pattern of concern that is in one way selfish. And yet for all that, it may not be an objectionable pattern of concern: the sort of pattern of concern that gives insufficientweight to the rights and interests of other people. If thisis right, then the act may be blameless for the same reason that actions done from blameless ignorance are blameless. Even though the act is wrong, it is not culpable because thepattern of concern that it manifests is not morally objectionable.

This line of thought may seem quite hopeless.

Consider the following objection. We have stipulated that the killing is impermissible inthis case. But surely a morally decent person — a person who cares enough about other people and whose actions always manifest sufficient moral concern — willalways care enough about the rights and interests of others to refrain from killing them when (as he knows) this would be wrong . Someone who is blamelessly ignorant or incompetent may be excused for such conduct. But when someone who knows what he’s doing and who possesses the normal adult capacity for self-control does what he knows to be the wrong thing to save himself, this simply shows that his concern for others was insufficient, and hence that he is blameworthy to some degree.

This argument relies on a principle that can sound truistic,but which I reject. Let me introduce some terminology so that we can state it.

All this talk of ‘ill will’ or an ‘insufficiently good will’ invokes a norm governing concern for the rights and

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interests of human beings and other important values12. Saythat someone who cares enough about these things — i.e., someone who complies with the norm in question — thereby exhibits basic decency. Say that someone exhibits full moral decency when he always cares enough about these things to be motivated to comply with the demands of morality (when he knows them), no matter what the personal costs may be. In amorally decent agent, a decisive moral reason to do A, recognized as such, always functions as a decisive motive for doing A. Full moral decency contrasts in turn with saintliness in its varying degrees: the condition of an agent who is always moved to do what morality requires, but who isoften moved to do much more, sacrificing his own interests even when this is supererogatory.

This gives us four conceptually distinct relations to the demands of morality: saintliness, full moral decency, basic decency, and the objectionable orientation that we have called ‘an insufficiently good will’. The argument sketched above presupposes that basic decency entails full moral decency: that anyone who cares enough about the valuesthat ground moral requirements will always be moved to do what he ought to do (ignorance aside). This is the principle that can sound truistic.

My hypothesis about duress involves rejecting this apparent truism. Basic human decency and full moral decency can come apart. Erdemović might care enough about the rights and interests of others without being motivated to sacrifice his life to save them — even when morality requires him to save them.

VIIIn order to know whether this makes sense, we need to

say more about the norms that our definition of basic

12 The norm will also require non-derivative concern for non-human loci of value: animals, the environment, etc.

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decency invokes. What is it to care enough about the rightsand interests of others? Enough for what?

The simplest approach would be to understand the requirements of basic decency in deontic moral terms. On this view, to say that a person cares enough is just to say that his pattern of concern is morally permissible. If we take this approach, the thesis that we are discussing comes down to this: Morality may require that one do A — e.g., sacrifice one’s life — without requiring that one care enough about the underlying values to be motivated to do A. This is tantamount to the claim that the patter of concern that we have called ‘full moral decency’ is supererogatory. When morality is extraordinarily demanding, we are not morally required to care more about complying with its demands and the values that ground them than we do about ourown lives, though there may be perfectly good (permissive) reasons for doing so, and one may be especially admirable ifone does.

Some philosophers will reject this suggestion on the ground that deontic moral categories (permissibility, requirement, etc.) apply only to actions that can be chosen,and not to attitudes and emotions with respect to which we are largely passive. I find this unpersuasive. It makes perfectly good sense to ask whether gratitude, for example, is morally required (‘owed’) in a given case. The fact thatwe are passive with respect to our sentiments may entail that when we have done what we can by active means to complywith our obligations in the realm of feeling, we are then blameless for our failures; but that is consistent with our having genuine moral obligations in this realm. Others will suspect that this position violates a version of the means/end principle. Normally, if morality requires me to do A, then it requires me to take any necessary means to doing A. And so one might think: if morality requires Erdemović to sacrifice his life in the modified version of the case, it requires him to be care enough about the lives of others to be moved to do this, since such concern is a

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necessary means to acting as he should. But again I find this unpersuasive. Moral concern is not a necessary means to acting as one should: one can act well out of a cool intellectual recognition of an obligation, or out of habit, or from no motive in particular. So the means/end principle, taken strictly, does not apply in the present case.

If we waive these objections, the view would be this. Just as there are deontic norms governing action, there are deontic norms governing what we care about, what matters to us, and what moves us. In the vast majority of cases, thesenorms align, in the sense that when one is morally required to do A, one is morally required to care enough about the facts that ground this requirement to be moved to do A. Butthere are exceptions. The values that ground moral requirements are often impersonal, and even when they are not impersonal, they are derive from the claims and interests of other people and other non-egoistic loci of value. One is required to care a great deal about these things; but when morality is extraordinarily demanding — when it requires that one allow oneself to be shot in the back — then there may be a limit to the demands it places onsuch concern. Someone who is unwilling to do as he should in such a case cares more about his own life than about the lives of others and about the demands of morality. But morality may permit that pattern of concern. And if it does, then someone who acts selfishly in such circumstances may have an excuse. At an abstract level, it is the same excuse manifest by those who act badly in blameless ignorance, viz., that the act, though impermissible, fails to manifest an insufficient degree of concern for those affected.

At this point all I claim for this hypothesis is that it represents a genuine conceptual possibility. I see no reason why the moral norms governing action and the moral norms governing concern should not come apart in this way; and if they do, that would go some way to explaining how

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Erdemović might be morally blameless for his act, even in the modified version of the case where he acts impermissibly. At the same time I concede that this would be an unsatisfactory stopping place. One would like to knowwhy morality requires the act if it does not also require a pattern of concern that would motivate the act. I would therefore like to consider an alternative account of what itmeans for an act to manifest an insufficiency of good will. This proposal is equally conjectural, but perhaps somewhat more satisfying over all.

VII

The proposal begins with T. M. Scanlon’s account of blame and blameworthiness (Scanlon 2008). Scanlon’s accountis superficially different from the account I have presupposed. It assigns no special place to the reactive emotions. The key thought is rather that one blames X for Awhen one ‘downgrades’ one’s relationship with X in light of the ‘meaning’ of X’s act, where the meaning of an act is determined both by its overt character and by the attitudes that guide the agent’s choice to do it. You blame a friend for telling a vicious joke at your expense by taking the slight as an occasion for reconceiving the friendship — for coming to think of the joker as less of a friend, or perhapsas no friend at all. These modifications in one’s relationship with the agent are not merely cognitive. Rather the relationship itself is modified. Since the relationship is constituted by a cluster of dispositions to thought, feeling and action, blame as Scanlon conceives it involves an alteration in these dispositions. When you blame X for A in the context of an on-going relationship like a friendship, you become less interested in spending time with X, less willing to trust him, less inclined to help him, and so on. Changes of this sort may be accompanied by resentment, but this is incidental. As Scanlon notes, one may “just feel sad” (Scanlon 2008, p. 136).

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This theory faces a question about what it can mean to blame a stranger — say, the Vice President of the United States — since in that case there is no friendship or other intimate relationship available for modification. If the only relevant relation in which I stand to Joe Biden is the relation in which every human being stands to every other, then it may seem that the only way to downgrade my relationship with Biden would be to come to think of him as something less than a human being, which would be wrong. Scanlon’s response is that this default moral relationship among human beings has two components (Scanlon 2008, pp. 139ff.). No matter what a person does it would be wrong to treat him as a non-person by discounting his rights and interests altogether. This is the compulsory element of therelationship. But the default relation also has a variable component. We confront a stranger, in fact or in imagination, with a modicum of good will and openness: some minimal wish that things go well for him, some minimal willingness to extend trust, to cooperate, to take his aims into account in our decision making, etc. This aspect of the default relationship is downgradable. I can obviously come to regard a stranger as untrustworthy, and so limit my willingness to cooperate with him. But I can also withdraw some of the good will that I would normally extend. Even ifI do not become actively hostile, I may become less concerned with his weal and woe. According to Scanlon, thisis what it means to blame a stranger.

I have not defined ‘blame’ in Scanlon’s way, but this is not a genuine disagreement: it’s a verbal choice. The social distancing he describes is clearly real, whatever we call it, and noting this is useful for my purposes. Our problem was to give content to the norms of basic decency. The basically decent agent never merits resentment because he always cares enough about the rights and interest of those affected by his acts and about other important values.Enough for what?, we asked. Scanlon’s theory provides an answer. Suppose we say that the basic norms in the area are

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the norms governing Scanlon-style social distancing. To care enough about others is to care in a way that one’s actions will never warrant the sort of retreat from ordinarysociability that Scanlon identifies with blame.13 We treat astranger about whom we have no relevant information as a member in good standing of the moral community of which all competent moral agents are presumptively a part. Treating her in this way involves a syndrome of attitudes, but also awillingness to trust, cooperate, share, and interact. Even if we cannot have moral obligations with respect to feelings(because they are involuntary), we can have moral obligations with respect to these more overt forms of conduct. The tentative hypothesis, then, is that a basicallydecent agent is one whose attitudes, as manifest in his conduct, never give other people sufficient moral reason to withhold this sort of basic sociability. When we say that someone who complies with the norms of basic decency therebycares enough about others — shows a sufficient degree of concern and respect — we simply mean: his manifest level of concern never justifies a revision in the default moral relationship.

Our challenge was to provide an interpretation of the basic concepts from the theory of blameworthiness that wouldallow us to distinguish basic decency from full moral decency. The proposed account is as follows. Basic decency requires us to care enough about the rights and interests ofothers that our actions never warrant a retreat from 13 The norms governing social distancing are to some degree conventional. Subcultures may accept very different norms concerning how much selfishness warrants a retreat from ordinary sociality, and I see no reason to believe that there is only one defensible way to order this aspect of social life. If this is right, the principles of blameworthiness have a conventional element; whether X is blameworthy for A may depend on the conventions to which X is party . This would distinguish these principles from thepure principles of moral permissibility, which are (in my view) non-conventional.

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ordinary sociability. Moral decency, by contrast, involves a willingness always to do what morality requires. These two ideals can come apart if there are cases in which an agent does not care enough about morality (and the values that underlie it) to do what morality requires, and yet still cares enough about others that a retreat from the default moral relationship would be unwarranted. The Erdemović caseand others like it suggest that this is possible.

Let me try to make this last point concrete, and perhaps even plausible. If we were to encounter Erdemović now, face to face, we would confront a real question about whether to treat him as one of us — as someone entitled to thepresumption of sociability to which any stranger would be entitled. My thought is that when we bear in mind the awfulcircumstances in which he acted — either in the real case orin the modified case — it is plausible that he would be entitled to a seat at the table, i.e., to ordinary sociability.14 The intuition that he has a complete excuse may then be supported as follows:

(a) Moral blame in our sense — resentment and indignation — would not be warranted

because

(b) Erdemović did not manifest an insufficiently good will in acting as he did;

and this is so because

14 This thought comes in two flavors. The weak version holds that he would be entitled to ordinary sociability fromus because for all we know, we would have done what he did in his awful circumstances. The stronger version is that heis entitled to ordinary sociability from anyone, even from someone who somehow knows that he would have been a self-sacrificing hero in such a scenario. I am defending the stronger claim.

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(c) Scanlon-style social distancing would not be warranted given the attitudes manifest in his act.

In my view, (c) is initially more clearly true than (a). Ifthe claims are connected as the argument suggest, then this gives us a reason to believe that (a) is true.

Perhaps more importantly, even if (c) is ultimately false in this particular case, we still have an answer to our theoretical question: How can duress possibly constitutean excuse in cases in which a knowledgeable and competent agent acts wrongly? The answer is that when morality is extraordinarily demanding, failure to comply with its demands may reveal a pattern of concern that does not warrant social distancing. Since blame involves the thoughtthat the underlying pattern of concern is objectionable, andsince an objectionable pattern of concern is just a pattern of concern the manifestation of which would warrant social distancing, we can see how it might be that in such cases the agent is not blameworthy for the wrong he does.

REFERENCES

Brooks, Rosa E. 2003: “Law in the Heart of Darkness: Atrocity and Duress”, Va. J. Int. L., 43, pp. 861-88.

ICTY transcript, 1996: Prosecutor vs. Drazen Erdemović, case no. IT-96-22-T, transcript, November 19,1996.

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ICTY Appeal Judgment, 1997: Prosecutor vs. Drazen Erdemović, case no. IT-96-22-A. Graham, Peter. (forthcoming) “A Sketch of a Theory of

Blameworthiness”, Philosophy and Phenomenological Research.Kant, Immanuel. 1996/1797: The Metaphysics of Morals, M. Gregor

(ed.), Cambridge University Press. Roberts, Robert C. 2003: Emotions: An Essay in Aid of Moral

Psychology, Cambridge University Press.Rosen, Gideon. 2009: “Kleinbart the Oblivious and Other

Tales of Ignorance and Responsibility”, Journal of Philosophy vol. 105, no. 10, pp. 591-610.

Singer, Peter. 1972: “Famine, Affluence and Morality”, vol. 1, no. 1, pp. 229-43.

Scanlon, T. M. 2008: Moral Dimensions: Permissibility, Meaning, Blame, Harvard University Press.

Strawson, P. F. 1962, “Freedom and Resentment,” Proceedings ofthe British Academy, pp. 187-211.

Turns, David 1998: “The International Criminal Tribunal for the Former Yugoslavia: The Erdemović Case”, International and Comparative Law Quarterly 47, pp. 461-474.

Williams, Bernard. 1973: “A Critique of Utilitarianism,” in J. J. C. Smart and B. Williams, Utilitarianism: For and Against, Cambridge University Press.

 

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