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Speaker: Gideon Rosen, Professor of Philosophy and Chair of the Council of the Humanities, Princeton University
On November 20th 2008, Gideon Rosen, Professor of Philosophy at Princeton University, delivered a lecture, entitled "Human Weakness and Responsibility."
He begins with a memorable example: Drazen Erdemovic, a soldier in the Bosnian Serb Army after Srebrenica, was ordered to participate in the slaughter of civilian prisoners. He complied and ultimately killed as many as 100 people in a massacre that killed 1,200.
Erdemovic was a reluctant soldier. He had been expelled from the Croatian forces for helping a Serbian prisoner. He joined the Serb forces for economic reasons and specifically requested a non-combat position. When his unit was ordered to participate in the massacre, he first refused and was told that if he did not comply he would be shot along with the prisoners. He then complied, but turned himself in to the authorities at the first opportunity. He was charged with crimes against humanity, pled guilty, and was sentenced to 10 years in prison.
The case raises a legal question: A guilty plea that is accompanied by a testimony that creates a complete defense cannot be admitted. Is it a complete defense in this case that Erdemovic acted under duress? The international law under which Erdemovic was tried had, at the time, no basis for deciding the issue. Under common law, duress is a complete defense to all charges except homicide. The International Court sided with the common law countries.
The moral excuse of duress is puzzling, because it is not clear that it removes the moral stain. Can there be a moral excuse if a person is in control of her actions and knows that what she does is morally wrong?
Rosen focuses on two moral questions: (1) Was Erdmovic's action morally permissible? (2) Is he blameworthy? The answers to those questions are, Rosen explains, in principle independent: An act can be wrong without being blameworthy – that's when the agent has an excuse. And, if Scanlon is right, an act can be blameworthy without being wrong, as when it is done for the wrong reasons. However, the two questions are unlikely to have independent answers in Erdemovic's case. If his action has features that make it permissible, it also seems that those features were his reasons.
Is Erdemovic's action morally permissible then? Simple consequentialism may support an affirmative answer, and so does the Pareto Principle: Erdemovic's action made no one worse off than he or she would have been otherwise. And at least one person is better off: Erdemovic himself.
Compare the case with a modified one: Imagine that if Erdemovic had joined the ranks of the victims his act would have caused some confusion during which some of the prisoners would have escaped, and Erdemovic was able to know this. Would it be permissible for Erdemovic in this case to save himself? Here is Rosen's first working hypothesis: Erdemovic's action would be impermissible in this modified case.
How about the second moral question: Is Erdemovic blameworthy, or does duress constitute a moral excuse? Rosen suggests that a person is blameworthy for an act just in case it would be appropriate for someone to blame him for having done it. But we should distinguish blame from "moral horror." Blame is a kind of moralized anger, an emotion that we feel, or are disposed to feel, when (say) someone steals our parking space. Whether the emotion is appropriate depends on the reasons for it, but also on the relation of the blamer to the blamed. Sometimes, it wouldn't be appropriate for you to blame a blameworthy person, as when you would have done the same thing in her circumstances. Rosen's second working hypothesis is this: Both in the real and in the modified case Erdemovic is not blameworthy.
How could this hypothesis be true? What is Erdemovic's excuse? Excuses come in different forms: they are cognitive or volitional. Blameless ignorance is a cognitive excuse; lack of capacity to control one's action is a volitional one. Duress can, on occasion, be a volitional excuse as when a person acting under duress could not have resisted the pressure. But this is not obviously true of Erdemovic.
To explain why duress is an excuse, Rosen takes the issue one step further: Why is it that excuses excuse? In the case of cognitive excuses (blameless ignorance) this is because if a person mistakenly believes there is no harm in her action, she does not act out of ill-will or insufficient respect. The excuse of duress, while different from blameless ignorance, works in a similar fashion. A minimally decent agent cares about the rights and interests of others. Erdemovic's action is compatible with minimal human decency.
Of course, a saintly person may be willing to die rather than to kill both in the original and in the modified scenario. A saintly person has "substantial human decency": she is never – not even under duress – motivated to do what is morally impermissible. But being saintly is also supererogatory. The saint exhibits ideal decency, but minimal decency requires less – and the minimally decent person cares enough about others.
What then is minimal decency? It is a pattern of concern, says Rosen, whose absence makes Strawsonian reactive attitudes, such as resentment, appropriate. Drawing on Scanlon's account of blame, Rosen identifies another feature of minimal decency: According to Scanlon, if we blame someone we downgrade our relationship to him. Rosen incorporates this idea: the minimally decent person's pattern of concern does not require downgrading the default relationship that one has to strangers, which is a combination of trust and concern, and a willingness to interact with the person.
The account of minimal decency allows Rosen to vindicate the two hypotheses: Erdemovic's action is impermissible, at least in the modified case, but that he acted under duress is a moral excuse in both cases, because – while there is no blameless ignorance or an incapacity to act differently in his case – the attitudes that his actions express are compatible with minimal decency. An action can be impermissible, and yet the agent's pattern of concern may be all right.
Duress is in this case a particular kind of excuse then: it does not excuse from responsibility. Erdemovic knew what he was doing, and he had ordinary control over his action. Rosen's account of duress leads to the conclusion that if Erdemovic were to enter the lecture hall we should extend to him the same kind of good will as to any stranger. As his actions are compatible with minimal decency, he is not blameworth, and we should therefore not downgrade our relationship with him. But he is both morally responsible and legally liable for what he did.
A lively discussion ensued. Frances Kamm addressed the claim that the action (in the original scenario) may have been permissible because it is pareto optimal. Imagine Erdemovi had been asked to kill someone whose life was not under threat, thereby using the victim as a tool for his own survival. Would that have been okay? Rosen responded that the victim wouldn't have been a mere tool if the agent would have taken a different path, had there been one. Rae Langton wondered whether the common feature of some excuses is, as Rosen claims, that they show he absence of ill-will. Absence of ill-will may be no excuse at all. In Lewis Carroll's "The Walrus and the Carpenter" the walrus weeps for his victims, showing no ill-will – but that does not seem to excuse him. Conversely, imagine that Erdemovic can bring himself to kill the prisoners only by working himself into an angry frenzy. He would then show ill-will, but it does not make a difference. Rosen conceded the point: ill-will is not the right word, as it suggests malice. What matters is that Erdemovic gives the right kind of consideration to the relevant reasons. Havva Guney-Ruebenacker emphasized that the guilty legal judgment sends a certain message. It encourages an agent, even in Erdemovic's situation, to look for alternatives. Rosen agreed. The court refused to regard duress as an excuse for such policy-related reasons. While at first he thought that this kind of reasoning is wrong, Rosen added, he changed his mind. Not every moral excuse ought to be regarded as a legal excuse.
Ulrike Heuer, Faculty Fellow in Ethics 2008-09