In the self-defense literature, there is a general assumption that defensive force must be necessary for it to be permissibly employed.Footnote 1 In some ways, this seems obviously correct. After all, you cannot shoot someone when you know the gun he is pointing at you is unloaded. However, I have always been skeptical of objective necessity as a necessary condition for permissible defensive force because of cases like the following hypothetical:
The Bluff: Ike goes into a 7-Eleven and points a gun at the clerk. The clerk hands Ike the money in the cash register. Ike then laughs menacingly and points the gun directly at the clerk's chest, stating, “Now, I am going to kill you. No witnesses.” The clerk, while previously getting the money, had pulled a pistol from under the counter. The clerk shoots Ike and kills him. As it turns out, Ike's gun was not loaded. Moreover, Ike had told his friend, immediately prior to entering the store, “I am now going to rob a store and scare the bejesus out of the clerk with an unloaded gun.”
I take it that there is widespread agreement that the clerk is not blameworthy; he is not going to jail. We should pause, though, to ask why we immediately condone the clerk's behavior. He killed someone whom he did not have to kill to save his own life. Ike was no threat whatsoever.
The seemingly obvious explanation for why we condone the clerk's behavior is that he reasonably believed that Ike was going to kill him. Yet I believe we ought to reject this as a sufficient explanation of the situation. The problem with a reasonable belief view is that it cannot explain why Ike may not kill the clerk to defend himself. After all, I may reasonably believe that Albert is attacking me, but clearly, if Albert is innocently rehearsing for a play, he may fight back against my use of force. He has not forfeited any rights simply because I reasonably believe he is a threat. Hence, a complete account of The Bluff cannot rest content with showing that the clerk is not blameworthy because he is reasonably mistaken. It must give an account of how Ike's rights have changed.
Within the self-defense literature, the analysis of Ike's potential loss of rights is framed as a question of liability. Liability is best understood as a limited forfeiture of one's rights. According to Jeff McMahan's formulation, “[t]o attack someone who is liable to be attacked is neither to violate nor to infringe that person's right, for the person's being liable to attack just is his having forfeited his right not to be attacked, in the circumstances.”Footnote 2 Aggression, in certain circumstances, forfeits the aggressor's claim right against being harmed, thus creating a Hohfeldian privilege for the defender to harm the aggressor.Footnote 3 Forfeiture differs from positive normative powers, such as consent, because forfeiture is a shift in Hohfeldian relations whereby when the aggressor engages in a wrongful action, the surrendering of the right is an unintended—but fitting and appropriate—consequence.Footnote 4
Surprisingly, when it comes to liability accounts within the self-defense literature, many self-defense theorists seem to deny that Ike is liable to be killed by the clerk.Footnote 5 These scholars begin with the premise that self-defense is akin to distributive or corrective justice.Footnote 6 (Jeff McMahan calls it “preventive justice.”Footnote 7 ) The general idea is this. We have a harm; it will fall on someone. The question is: Upon whom should it fall? Theorists then offer different accounts of why the harm ought to fall upon one person instead of another. In The Bluff, because no harm needs to befall Ike as there is no harm to distribute in the first place, on these views, Ike cannot be liable to any harm. For instance, Jeff McMahan states, “I believe that even a fully culpable threatener is not liable to suffer harm inflicted on him that is unnecessary for any defensive purpose. This is because I conceive of liability as necessarily instrumental. If a harm inflicted on a person is neither a means nor an unavoidable side effect of preventing or rectifying a wrong for which the person is responsible, that person cannot be liable to that harm.”Footnote 8 Notably, if Ike has not forfeited rights, then theorists such as McMahan need additional machinery to explain why Ike is not permitted to fight back against the clerk.
If one begins with the paradigmatic case of self-defense, the defender must in fact use force against the aggressor. It is relatively uncontroversial that when a culpable attacker poses an immediate threat that will result in an innocent victim's death, the innocent victim may use force against the culpable attacker. In other words, ceteris paribus, a culpable attack that will be successful unless stopped will render one liable to defensive force.Footnote 9 But The Bluff is not a case in which there will be success. Ike in fact poses no threat of bodily harm. So why does Ike forfeit rights? If The Bluff presents an instance of liability to defensive force, it must have a separate grounding. Although some scholars have mentioned in passing that there ought to be liability in bluff cases, asserting that there is such liability is not enough, as bluff cases radically depart from the paradigm where the threatened harm will occur.Footnote 10 The challenge, as raised by McMahan, is to explain “how your lack of morally relevant knowledge can establish a justification where otherwise there would be none.”Footnote 11 The clerk would have wronged Ike had he known the facts—had he known the gun was unloaded, the clerk would not have been permitted to shoot Ike—so how can a mistake make an action right that would otherwise be wrong? We have already rejected the possibility that reasonable beliefs can do the work.
The claim I defend in this paper is that Ike forfeits his rights against the clerk's use of defensive force and thus the clerk does not wrong Ike in killing him because Ike culpably causes the clerk to believe that defensive force is necessary. This solution to The Bluff is supported by a more general principle, a principle that extends beyond self-defense to other alterations of Hohfeldian relations, detailed below. The dual aims of this paper are therefore to defend the general principle, and by so doing, to solve the puzzle of The Bluff. The unifying idea is that sometimes we can alter our rights and duties when we insincerely evince that we are altering our rights and duties.
There are typical ways that one alters one's rights and duties—that is, that one employs one's normative powers. When Andy acquiesces to my punching him in the nose during a friendly boxing contest, he consents. He thereby has the power to alter his claim right (that I not hit him) and my correlative duty (not to hit him). Abandonment is the power whereby we relinquish our claim rights to property. Promising is the power by which we create new duties for ourselves and new claims rights in others. My promise to my son to take him to the zoo gives him the ability to claim that I have a new duty, usually manifested in the whining, “But you promised!” A central claim of this paper is that, although there are typical ways that one can use one's normative powers, there are atypical ways that will have the same effect. Although a subjective mental state with or without an accompanying affirmative act might ordinarily be the way that one can exercise a power, some insincere expressions of those states or actions can count. As different normative powers can be exercised in different ways and thus the way that insincerity matters can vary from power to power, I do not aim for grand theoretical unity. However, I do hope to render plausible the idea that insincere acts’ power to alter rights and duties applies beyond the self-defense context.
Ultimately, I argue that when a person, without justification or excuse, acts in a way that she knows is likely to be understood by the “interpreter” as an alteration of their Hohfeldian relations, and the interpreter believes that those relations have been so changed, then the actor's behavior will have the same normative effect as if the act had been sincere. I will call this, somewhat imprecisely, “forfeiture by insincere act.”Footnote 12 The grounding of this forfeiture is the actor's culpable responsibility for causing the interpreter's belief that Hohfeldian relations have been altered. This forfeiture is fitting and appropriate because it is directly responsive to the interpreter's normative vulnerability. We have an interest in not wronging others and in knowing when we will be wronged. When we are misled or manipulated such that we do not know the normative stakes at issue, we are left normatively vulnerable as to where we stand vis-à-vis our rights or duties. The appropriate response when the interpreter is culpably misled into believing a normative power has been exercised or a right has been forfeited is for the normative power to be exercised or the right forfeited. Put simply, an insincere promise counts as a promise; insincere consent counts as consent; insincere abandonment of property counts as abandonment; and an insincere threat counts as a real one—each has the same normative effect.
It is this more general principle of forfeiture by insincere act that resolves The Bluff. That is, one is liable to defensive force when one is an actual culpable threat or when one culpably creates the appearance of such a threat. Because Ike is culpably responsible for creating the clerk's belief, Ike forfeits his claim right against harm. Hence, although the clerk's reasonable belief is sufficient for us to say that the clerk was not blameworthy for killing Ike, it is Ike's behavior in culpably causing that belief that yields that the clerk also did not wrong Ike.
Admittedly, claims with respect to any normative power can be debated. One might adopt my view of consent but not of promising. The approach of this paper is to let the whole be greater than the sum of its parts. Although one might offer an alternative explanation of The Bluff or an account of insincere promising or a reason why apparent consent counts as consent and so forth, the hope is that the broader principle of “forfeiture by insincere act” has greater explanatory power than do separate and discrete accounts in each domain. The strategy here, then, is that after making the case that forfeiture presents one plausible explanation for The Bluff, the fact that this forfeiture likewise presents a plausible account of related normative phenomena supports the stronger claim that forfeiture is the best explanation for The Bluff.
I. FORFEITURE BY INSINCERE ACT: A FIRST PASS
With respect to the paradigmatic instance of self-defense, an aggressor becomes liable to the defender's force because he has culpably decided to harm the defender and the defender must use force to stop the harm from occurring. Liability is a limited forfeiture of rights. The aggressor loses claim rights against force that is believed to be capable of fending off his attack.
Accounts of why culpable aggressors forfeit rights vary. To some, an aggressor forfeits rights because the harm must befall someone and the aggressor is the person most responsible for the forced choice.Footnote 13 To others, once an aggressor creates the risk of harm, he has a duty to rescue that entails that he may be used to prevent the threat he has created.Footnote 14 Finally, others may think that some notion of rights reciprocity or fair play grounds the loss of rights by a culpable aggressor as against his innocent victim.Footnote 15
None of these accounts would entail that a bluffer forfeits rights. There is no harm to be distributed. There is no injury that the bluffer has a duty to prevent. There is no disrespect for another's rights against injury such that fairness would require a reciprocal loss.
One approach to this problem would be to distinguish between evidence-relative and fact-relative justifications. Then, the clerk would be evidence-relative justified, but fact-relative unjustified. This move strikes me as unhelpful. At the end of the day, we are concerned with moral justification, and it seems odd to maintain that the clerk is and is not justified at the same time.Footnote 16 Moreover, such a move would be unavailable to theorists such as McMahan and Jon Quong, as they hold the defender to be the liable party when the defender honestly and reasonably, but mistakenly, believes that she is under attack.Footnote 17 That is, on a view like McMahan's, a person who is evidence-relative justified, but fact-relative unjustified, may herself be liable to attack. Yet, I doubt that we want to say that Ike may defend against the clerk. Hence, even McMahan is likely to find the evidence-relative/fact-relative move insufficient to describe fully the normative terrain.
We could simply admit that the clerk wrongs Ike but that he does so nonculpably. That is, I may mistake your property for mine and take it, thus wronging you. Still, I may not be blameworthy because I believe (perhaps reasonably) that the property is mine. However, this explanation cannot explain why Ike may not defend himself. Even if I am taking your property nonculpably, you may certainly engage in remedial actions, such as smacking my hand, to retain what is rightfully yours.
Moreover, the clerk's nonculpable belief is certainly not sufficient to cause Ike to forfeit his rights. You do not lose rights just because someone else thinks you have. Imagine a man who incorrectly believes that a woman is consenting to sexual intercourse, but he is mistaken. He wrongs her, irrespective of his belief that she is consenting.Footnote 18 She would certainly be permitted to defend against his advances, even using deadly force, just as you would be able to harm me to stop me from taking your belongings. Unlike these scenarios, Ike is not permitted to kill the clerk. We thus need a different explanation of the alteration of rights and duties between Ike and the clerk.
That explanation is as follows. What Ike does is to culpably cause the clerk's belief. It is his role in inducing the clerk's behavior that leads to the forfeiture of his rights. Consider then the following:
Forfeiture by Insincere Act (I): If D intends to create in X the impression that he vs or intends to v, and his actually ving or intending to v would result in him lacking a certain right or being under a certain duty, either through that right being forfeited or waived or by that duty being created, and X is induced in this way to believe that D lacks the right or has that duty, then D has in fact forfeited his right against X acting in this way or D has created a duty to act in this way.Footnote 19
Forfeiture by Insincere Act (I) indicates that Ike forfeits his rights because he leads the clerk to believe that he has done some act that has such forfeiture as a consequence. Before grounding this principle, I aim to support its plausibility by showing its applicability across the domains of consent, abandonment, and promises.
II. INSINCERITY ACROSS DOMAINS
I now want to examine insincerity across the domains of consent, abandonment, and promising. To think that insincerity may matter is nothing new, though theorists typically do not offer robust accounts. Thomson notes that individuals who make false promises that invite reliance may need to compensate for losses.Footnote 20 J.L. Austin explicates that with respect to speech acts, acts can be defective (“infelicitous”) in different ways.Footnote 21 Some defects prevent an act from being achieved, so “I do” and “I now pronounce you husband and wife” fail to result in a marriage if the speaker is already married or the conductor of the ceremony actually lacks the authority to wed the couple. On the other hand, sometimes infelicities do not defeat the act. Austin dubs these “abuses.”Footnote 22 One type of abuse is insincerity. The bride may say, “I do” and not mean it, and yet, she is married. Insincerity does not alone void the act.
In crossing domains, we must tread carefully. Let me raise three concerns. First, this exploration requires that I take a stand on contested claims about these normative powers. In these domains, I am going to set forth what I believe to be the most persuasive theory, but I will do little to defend it, as to do so would require a monograph-length work (maybe many monographs). Hopefully, even if you reject the theory I (sometimes tentatively) endorse, you will see how the insincerity argument runs generally. Second, because each normative power operates differently, we should not expect insincerity to apply in precisely the same manner for each. Nevertheless, I hope to make the case that the moral principle at the heart of “forfeiture by insincere act” applies in each domain. Finally, I will often focus on law as evidence of our underlying moral commitments. However, many of our practices and legal rules require the use of safeguards beyond the moral core of the normative power. For example, an affirmative act may be required, in addition to an intention, not because the intention is not itself morally sufficient, but because the act provides evidentiary corroboration of the intention. For instance, consider acquisition in property law. How does something become yours? You have to do something. Perhaps, though, we are able to acquire items merely by being the first to intend to claim them. We might still have a rule that requires action because we would otherwise create insurmountable proof problems for courts. Despite these concerns, I hope this journey is instructive, as it reveals the range of cases to which insincerity makes a difference.
A. Consent
From where does consent get its “moral magic”?Footnote 23 Consider three possibilities, and assume for each that the act will be permissible if there is consent. Consent might be a subjective mental state, such as a desiring, willing, choice, or acquiescence.Footnote 24 Call this the “subjective mental state” view. According to this view, if Chloe has the requisite subjective mental state, then she consents to Joe's having sex with her, even if she does nothing to so communicate it. Alternatively, consent might be an objective expression of Chloe's subjective mental state.Footnote 25 If Chloe says “Yes” to Joe's request and this statement accurately reflects Chloe's subjective mental state, then and only then does Chloe consent, thus making it permissible for Joe to act.Footnote 26 Finally, consent might be a “verbal act.”Footnote 27 On this account, it does not matter what Chloe's subjective mental state is or whether what Chloe says reports her subjective mental state accurately. Rather, it is the speech act that makes it permissible or impermissible. So, if Chloe says “No” when she “means yes,” then insofar as Joe is concerned, it is a no. Chloe's statement has the normative effect of rendering sexual intercourse impermissible, irrespective of her internal (subjective) mental state.
To my mind, the best account of consent is the first one.Footnote 28 If we think that Chloe can alter rights and duties, then the reason Chloe can do this is because she wishes to exercise her autonomy to grant permission to acts that were previously impermissible.Footnote 29 It seems that the moral magic in that is internal. Specifically, I take it that what Chloe must do is perform the mental action of acquiescence to Joe's action.Footnote 30 Acquiescence is not a desire state or a lack of interest; it is a choice to allow.Footnote 31 Because she chooses to allow the conduct, her choice effectively drops her claim right against his conduct, thereby creating a Hohfeldian privilege.Footnote 32 Even if Joe thinks that Chloe is not consenting, he is not wronging her by having sex with her, as she chooses to allow the very act. Of course, Joe may very well be guilty of attempted rape.
Of course, even if Chloe chooses to allow Joe to have sex with her, this internal acquiescence may not be normatively effective if certain conditions of knowledge and voluntariness are not met. If Chloe believes she is having sex with Joe, her husband, but it is his twin brother, John, she does not consent. If Chloe only chooses to allow the act because a gun is being held to her head, her choice will not be normatively efficacious then either. That is, there is a certain degree of information and voluntariness that is necessary for normatively effective consent. But specifying those conditions is not necessary for our purposes.
Having set forth the paradigmatic case of consent,Footnote 33 the question, then, is what to do in cases where the person expresses consent but does not internally choose the conduct, nor is the consent invalid because it is compelled, mistaken, and the like. Let us consider the tort chestnut of O'Brien v. Cunard S.S. Co. Footnote 34 The plaintiff needed to be vaccinated in order to enter the United States. She held out her arm for the shot, but she maintained that she did not internally choose to receive the shot. Tort law's response was, and is, that apparent consent is consent.Footnote 35
Now, tort law, because it is about whether the plaintiff should recover damages from the defendant, does not need the distinction between a lack of culpability on the part of the defendant and a lack of wrongdoing. That is, the result is the same whether tort law determines that (1) the defendant acted wrongly, but nonculpably, and therefore the plaintiff cannot recover, or (2) the defendant did not act wrongly and therefore the plaintiff cannot recover. Morality, however, does distinguish between those cases. Indeed, we might think that if the defendant reasonably believes the plaintiff to be consenting, but the plaintiff does not subjectively acquiesce, the plaintiff retains her ability to defend her rights. If O'Brien did not understand that her action would be interpreted as consenting to the shot, maybe she should be permitted to slap the doctor's hand away before he pricks her with the needle.
In other cases, however, it simply is not the case that having manifested apparent consent, the plaintiff still retains the very same rights that she seems to have altered through her act. So, assume that in O'Brien the plaintiff thought to herself, “I do not acquiesce to this shot. I am going to put my arm up as if that is what I consent to, but then I am going to sue the doctor for giving me the shot.” Here, the plaintiff causes the doctor to believe that she truly consents, and she lacks a good reason for causing the belief.
Or, consider a progressive, attentive, and caring man, Nathan, who specifically asks his girlfriend, Patty, if she consents to having sex. And assume that Patty smiles and says “Yes.” After intercourse, Patty looks at Nathan and says, “You just raped me. I did not really consent to that.” It seems he would have a very strong argument that he did not just rape her. In fact, it seems plausible to claim that he did not wrong her at all. Now imagine that she then explains that she did not want to hurt his feelings and she really loves him. A woman might give in to such psychological pressures and acquiesce. But that is not this case. What Patty wants to do is to have tried to achieve the effect of pleasing Nathan by expressing consent while maintaining that he actually lacked the permission to engage in the act. It seems hard to believe that that is possible.Footnote 36
B. Abandonment
I am not going to delve into whether property rights are grounded in some natural right or are conventional. From wherever they arise, we do indeed have rights to property. There are plenty of things we can do with it. When we allow others limited use of our property, principles of consent apply. But sometimes we want to get rid of our property, too. The power to abandon is tied to our autonomy. Our lives would be quite encumbered if we could not choose to sever relations with things we no longer wish to have.Footnote 37
There is a clear convention for getting rid of your property. You put it in the trash can. (Sometimes, you have to abide by strict rules about putting your property in recycling receptacles.) You can also commit a crime by failing to abide by the conventions. We often call that crime “littering.”
What does abandonment consist in? Let me suggest that at the purely moral level, all that you need is an internal mental act of choosing to renounce your claim to the property.Footnote 38 So, when my son goes to school and fails to bring home the ugly sweater his aunt knit for him, he and I might decide not to go retrieve it from lost and found. Voila! It is no longer ours.
It is admittedly more difficult to abandon property that is on your own property.Footnote 39 No matter how much I want to disown the hideous painting I have in my basement, no act of will will be sufficient to make it cease to be mine. One might ask, at the purely moral level: If a thief broke into my house, went to my basement, and took the painting that I truly disavowed, then did he take something that belonged to another? In practice, however, I need to physically remove it from my house. Indeed, property abandonment is heavily regulated because of evidential concerns. The legal system requires both an intention to abandon and an act of relinquishment.Footnote 40 Property law thus works quite differently than torts. Reasonable beliefs of others are not sufficient for shifts of property rights.Footnote 41
Irrespective of whether abandonment's normative core requires only a mental act or an external act and an intention, the effect of insincerity will be the same, because what insincerity is about is the performing of an action that is inconsistent with the actor's will or other subjective state. If I take the ugly painting in my basement and put it on the curb in front of my house on Sunday night (Monday morning is trash pickup), and the neighborhood junk guy comes by in his white truck and puts it in his truck (as he scours the neighborhood every Sunday night), I cannot accuse him of stealing my stuff. Indeed, if I put a sign on it that says “Free,” I would be very hard pressed to retain my property by claiming that it was just a sick joke on my part. Property law may seek to place additional requirements on abandonment for fear of moral free-for-alls, but from a purely moral perspective, I relinquish my claim when I put that property on the curb with the “Free” sign on it. I can be held to mean what I know I am saying.
Abandonment is to relinquish one's property in rem. The property is open to all to acquire; it is just a matter of how they may acquire title.Footnote 42 It is worth noting, however, that the relevance of insincerity ought to hold for gifts, too. Like abandonment, the giving of a gift requires an internal mental state—donative intent—and this intent must be accompanied by an act. In addition, the donee must accept the gift.Footnote 43 Giving, like abandoning, is heavily governed by intentions, not by others’ reasonable beliefs. So, for instance, in Kenyon v. Abel, the defendant bought a painting from the Salvation Army. Unfortunately, it turned out that the Salvation Army, when taking items the plaintiff intended to donate, also took the painting, which the plaintiff did not intend to give. Thus, the plaintiff was entitled to recover the painting as against the good faith purchaser defendant.Footnote 44
Still, despite the intention-focused nature of gifting, it seems wildly implausible that you could wrap a bracelet up with a bow, hand it to someone saying, “Here is a gift for you,” allow the person to thank you, and then argue that it was never really a gift because you never meant what you said. A case that comes closest to holding this is Betts v. Francis, where a father claimed that creditors could not take furniture that his son had used as collateral because the father had never actually intended to give the furniture to the son, just to let the son use the furniture.Footnote 45 One suspects, of course, that the worry here was about the father and son scheming to defraud the creditors, rather than a sincere claim that the earlier act was insincere.Footnote 46 Here, too, then, it appears that insincere acts are normatively powerful, despite the fact that the exercise of the underlying normative power depends upon a subjective state that did not exist. For ease of further exposition, I will refer solely to abandonment, but it is worth noting that insincerity would also apply to gifts.
C. Promises
To be a morally autonomous agent, one must have the power to promise.Footnote 47 “The idea that an agent can intentionally form an obligation through the exercise and expression of her will alone (and not by first transforming the state of affairs around her) comes part and parcel with any plausible conception of an autonomous agent.”Footnote 48 The power to promise is necessary to have rich and fulfilling relations with others.Footnote 49
How does one promise? Well, unlike consent and abandonment, where one can simply change rights and duties via acts of unmanifested will, I take it that promising is a case where “saying makes it so.” To promise is, by words or conduct, to commit oneself to performing the action.Footnote 50 The promise to meet my friend at the movies is a promise because I say the words that are understood as making that promise. It is true that by uttering those words, I not only may engage in the performative of making a promise but also may convey information, namely, that I actually have the intention to perform the act promised.Footnote 51 A false representation of my intention may thus subject me to other liability, such as promissory fraud, but the underlying intention's existence is not itself sufficient to exercise the normative power. (And an expressed intention to do something is not itself a promise.Footnote 52 )
In addition, consider the Restatement (Second) of Contracts, section 19:
(2) The conduct of a party is not effective as a manifestation of his assent unless he intends to engage in the conduct and knows or has reason to know that the other party may infer from his conduct that he assents.Footnote 53
Notice then that contract law counts as assent not just the intended communication of assent but also the negligent communication of it. Like the doctrine of apparent consent, this sweeps broadly, including not just insincerity but essentially any reasonable appearance of assent. And this may be because, as mentioned before, legal doctrine serves many masters, and may only mirror imperfectly the morality of promising.
Philosophers of language have simply accommodated insincerity within their core theory of promising. For instance, John Searle does not miss a beat as he simply includes insincerity within his speech act theory. He notes that, “To allow for insincere promises, we need only revise our conditions to state that the speaker takes responsibility for having the intention rather than stating that he actually has it.”Footnote 54 To philosophers, then, insincere promises have always counted as promises.
III. GROUNDING FORFEITURE BY INSINCERE ACT
To this point, I have suggested that insincere acts have the power to alter rights and duties just as their sincere sisters do. We have canvassed a variety of powers. We should now take a closer look at the features and grounding of forfeiture by insincere act.
A. Self-Defense and Forfeiture
Let us back up a minute and think about why there is forfeiture in the typical case of self-defense. With respect to the paradigmatic instance of self-defense, an aggressor becomes liable to the defender's force because he has culpably decided to risk or impose harm to the defender and the defender must use force to stop the harm from occurring. Liability is a limited forfeiture of rights. The aggressor loses claim rights against force that is believed to be capable of fending off his attack.
When we say that the aggressor forfeits rights as a consequence, we are not talking about an empirical relation, but a normative one. There is a notion that the consequence is fitting and appropriate, not that it is likely or possible. What then makes forfeiture fitting? I am skeptical that there is just one account. I do not think that should trouble us. After all, the reason I would deserve to go to jail for killing someone may not be the same reason I deserve a medal for winning a race. If different instances of desert can have different justifications, so, too, can different cases of forfeiture.
Here is an account to get us started.Footnote 55 The baseline of rights and duties allows us to lead full, autonomous lives as people worthy of respect and concern. In particular, our fenced-off perimeters demarcated by our claim rights derive from our security interests. Having powers to shift our fences derives from our autonomy.
What some wrongdoers do is to attempt normative land grabs. By attacking, they fail to respect the claim rights of others. The problem arises because they then seem to have the benefits of their own fenced-off perimeters, perimeters preventing harm to them, while attempting to gain land by ignoring the fences of others. Oftentimes, what forfeiture does, then, is to restore the normative balance. It is a form of normative disgorgement.
Take the Confrontation Clause. Criminal defendants are vested with particular positive rights as to how trials are conducted. When a defendant kills the witness and then seeks to stand on his positive right to confront her, he is benefiting from the wrong. He seems to have gained greater entitlements from his wrongdoing than he ought to have. Denying him his confrontation right reestablishes a fair balance.Footnote 56
We simply could not make sense of a system that grants people rights while allowing them to then benefit from culpably violating the rights of others. As John Simmons notes, “To extend such privileges to those who break the rules would seem to involve serious and straightforward unfairness to those who limit their own liberty by obeying the rules.”Footnote 57 Therefore, what forfeiture doctrines do is to redraw the normative perimeters. Importantly, I am not claiming that forfeiture is a form of actual annulment of tangible benefits, nor am I claiming that it is about correcting harm to the victim. A defendant who forfeits his confrontation right may be worse off at trial (perhaps the witness would have cracked). He should compensate the victim's family. He will deserve to go to jail. Yet, the forfeiture of the confrontation right operates simply because if he did not lose his right, he would normatively benefit from a set of rights and entitlements that he has created by killing the witness.
How can self-defense possibly look like this? In the typical case, the aggressor likewise seeks a land grab. He denies that the defender has a claim right against being harmed. It would be problematic if he could retain his own right against being harmed. The way to recast his normative relation with her is to allow her to defend herself against the attack. It is for this reason that he loses his claim right only with respect to those who believe their acts to be defensive. The aggressor culpably denies the defender her full moral status; he thus loses his rights to prevent the defensive action.
Now, one might object that the aggressor does not really get greater entitlements. It is not that the aggressor truly gets to benefit from (1) no claim right against harm on the part of the defender and (2) a claim right against harm on his part. After all, it is not the case that the defender has lost his right. Rather, what is at foot is a rights violation; for there to be a rights violation, there still has to be a right.
This is undoubtedly correct but we can accommodate it within our land grab analogy. What the aggressor does is to treat the defender as if the defender does not have such a right. He acts as if her claim right not to be injured does not apply to him. If his interference with her right could not be stopped, such that he effectively denies her right while standing on his own, he winds up being better situated because duties of noninterference do not apply to him and there are no preventive steps available to his victim.
We can directly see the equities at work as between the aggressor and the defender. If culpable aggressors could aim to harm defenders while simultaneously shielding themselves from injury because of their claim rights against harm, something would be seriously out of balance with our moral entitlements. It would positively reward culpable wrongdoing. On the other hand, defenders without defensive intentions do not get to kill attackers. That would create a windfall for the defender. The defender would gain greater entitlements than she had prior to the aggressor's attack. She does not get that. She just gets to mend the fence.
B. Forfeiture by Insincere Act
Although normative disgorgement justifies forfeiture in the paradigmatic case of self-defense, we need a different account of why forfeiture is appropriate for insincere actions. When one insincerely evinces that she is exercising a normative power, why are her lies made true? This is not a case where the insincere actor is made better off, as the sincere culpable aggressor is. Rather, it is that the interpreter is made worse off. The insincere actor makes her interpreter normatively vulnerable. She mistreats her by representing that a normative boundary has shifted. In some cases, she may positively lure another across a boundary, by—as occurs in our hypothetical Patty scenario—evidencing consent that she does not mean.
The issue here is not to punish Patty for lying—for being insincere. Rather, it is that in the speech act sense, she manifests a mental state that she does not have. I have argued that she does not consent simply by saying “yes” (even though she means “no”). The reason why her conduct counts as a “yes” is that she culpably causes Nathan to believe that she is consenting—that is, that she has willingly acquiesced, even though she has not. This makes Nathan normatively vulnerable because he believes that she has dropped her claim right, and that, ceteris paribus, it is now permissible to have sex with her. If her conduct does not have the effect of counting as consent then she is effectively able to trick Nathan into wronging her.
The question then is: What is it about insincere acts that requires the shifting of rights and duties? Generally, this forfeiture is a fitting and appropriate response because the concern is not only over the downstream effects of the normative power, but also the exercise of the normative power itself. Nathan does not want sex with Patty; he wants consensual sex with Patty. It is the permission that is at stake. Nathan would be worse off, not because Patty would have any grounds for complaint, but simply because he would be open to the judgment that he wronged Patty.
With respect to the insincere actor, if he is not treated as having exercised the normative power that he insincerely mimics, then he is effectively able to trick others into wronging him. In this regard, consider two principles endorsed by T.M. Scanlon: the principle against manipulation and the principle against intentionally misleading others.Footnote 58 Scanlon argues that neither of these principles can undergird promising because a breach of either can be remedied by warning or protection against loss.Footnote 59 Neither principle, according to Scanlon, is sufficient to justify the requirement to perform one's purported promise. Still, both principles have force within their applicable domains. We do not need to consider why Scanlon thinks these principles cannot justify promising. Rather, the question is whether these moral principles, which Scanlon endorses, have applicability here.
Here, insincerity violates one or both of the principles set forth by Scanlon. The person who insincerely consents misleads another into potentially violating her rights. Nathan is misled by Patty such that he believes she is consenting to sex. The person who insincerely abandons tricks another into taking “his” property. The person who insincerely promises misleads the putative promisee into believing that she has a right to performance.
Insincere acts are special cases because they are a special kind of lie. They are instances in which what the lie is about is the exercise of the normative power. What is at stake is not the remedy of desired sex, or property, or performance. Rather, the lie is about consent, abandonment, or promising. The remedy that follows then is not a matter of giving the person the usual sort of reliance damages. Rather, the reliance is with respect to the normative power itself. Accordingly, the appropriate remedy for the wrong is for the rights and duties to shift as they would had the normative power been sincerely invoked.
Let us then contrast three sorts of cases. Assume that in the first case, Griffin tells Maggie that he intends to go on the school camping trip. Her reliance may lead to one of two requirements: first, if Griffin changes his mind, he has to tell her. Second, if Griffin has intentionally misled her and does not warn her, she might be able to argue that he should pay for her expenses. The point is that the intentional statement of one's intention in a way that induces another's reliance can sometimes create a duty to warn or, if one also intentionally misleads, a duty to remedy. A second case presents an even stronger duty. If Michael Phelps loudly announces his presence at the beach, “Olympic lifeguard on duty,” in hopes of impressing some girls and this announcement causes Mildred, a weak swimmer, to believe that she can be adventurous and Phelps will save her, then if Mildred is in peril, Phelps had better get paddling.Footnote 60 Causing Mildred's peril generates the duty to rescue. Patty and Nathan are case three. What is the remedy for reliance? When Patty misleads Nathan into believing she is consenting, the remedy is the consent.
To be clear here, I take forfeiture by insincere act to be a remedy for insincere behavior that causes a kind of reliance. The primary form of reliance is that the insincere act creates a belief that rights and duties have changed—that normative boundaries have been redrawn. The primary harm that needs a remedy is not injury but the fact that the interpreter mentally redraws her map of the normative terrain in reliance on the insincere actor's behavior. Second, in many cases, without this remedy, the interpreter also acts on those beliefs and will then be open to the judgment that he has wronged another. If Patty gets to pretend to say yes, she leaves Nathan open to the normative judgment that he has wronged her, even if nonculpably, and it is Patty's wrongful behavior that has left him in this precarious position. Even when the actor does not aim to trick the person into wronging him—Ike, for instance, does not intend for the clerk to shoot him—his culpable behavior still leaves his addressee open to this moral judgment. These addressees are worse off, just as Maggie is for relying on Griffin and Mildred is for relying on Phelps. Our interests extend beyond our interests in not being physically harmed.
Three clarifications are in order. First, one certainly cannot abandon by insincerity if the sincere act itself would not have the power to change rights and duties. If one cannot dispose of one's car by writing, “Free” on the windshield or abandon one's house by saying “free to the first to inhabit,” then one cannot forfeit by insincerity. The same would be true if one were to take someone else's property and write “free” on it. One would simply lack the power to transfer, and therefore forfeiture would not apply.
But what if the actor, rather than engaging in an action that insincerely evinces the exercise of a normative power, insincerely reports the exercise of a normative power? That is, like many underlying justifications, this justification might extend beyond the cases that I have considered. I think this is entirely possible. If Joe reports to Joanna that he had attached a “free” sign to the bike he has parked on the curb but the wind blew that sign away, this lie—as to the exercise of the normative power—likewise leads Joanna to believe she may now take the bike. If Patty falsely tells Nathan she wrote him a note stating that she wanted sex with him on the next date and he believes her and acts in accordance, then (assuming such a note would be normatively efficacious), she has misled him in the same way as to the exercise of the normative power. Accordingly, the remedy remains that normative power's exercise.Footnote 61
Second, this is not to say that forfeiture by insincere act is the only remedy.Footnote 62 A false promise may often be worse than a broken promise, as the former defiles the trust inherent in promises at the outset. The Bluff is not simply a bluff but an assault, and may be punished as such. More may follow than simply the forfeiture defended here.
Third, my argument is that these insincere acts shift rights and duties just as their sincere counterparts do. The insincere promise is a promise. Now, one might object that Patty does not subjectively acquiesce to sex with Nathan. That is undoubtedly true. I am certainly not arguing that Patty has a subjective state that she most certainly lacks. Rather, like doctrines of imputation, I am arguing that Patty's conduct shifts rights and duties irrespective of the fact that this result has not come about from the typical route. There is nothing wrong with imputing consent so long as that imputation doctrine has its own normative justification. That is what I have provided.
How does this apply to bluffs? When Ike presents himself as a real threat, the clerk must decide whether to defend himself. Granted, anyone with a reasonable belief is in the same position, but not everyone has been put in that position by a bluffer. Ike toys with the clerk's moral framework. The clerk believes a culpable aggressor is attacking him, that that aggressor is liable, and that he will not wrong the aggressor with his defense. Having put the clerk in this epistemic situation, Ike forfeits his rights against the clerk acting on his perception.
C. Refinements: Forcings, Culpability, and Uptake
1. Forfeiture and Forcings
How should we understand how rights and duties are shifted? One thing that The Bluff obscures is that—for all normative powers—insincerity operates negatively, as a forfeiture principle. It is hard to see this with The Bluff because insincerity simply substitutes one reason for forfeiture for another. Being liable to defensive force because one is a real culpable aggressor is itself a form of forfeiture. However, this is not what is at work with a positive normative power. In other words, with the paradigmatic exercise of consent, the shift in normative relations is something the consenter wills. When insincere consent is effective despite being insincere, then this change in normative relations is not something that the consenter positively wills but something that is forced upon her as a fitting and appropriate consequence. We might think of these misleading actions as creating a kind of forfeiture—hence the label, “forfeiture by insincere act.”
What conditions are required for “forfeiture by insincere act”? Consider again:
Forfeiture by Insincere Act (I): If D intends to create in X the impression that he vs or intends to v, and his actually ving or intending to v would result in him lacking a certain right or being under a certain duty, either through that right being forfeited or waived or by that duty being created, and X is induced in this way to believe that D lacks the right or has that duty, then D has in fact forfeited his right against X acting in this way or D has created a duty to act in that way.
Insincere promises, however, do not relinquish a claim right but rather create a duty. A new obligation is being forced upon A. It is therefore more perspicuous to call this “forcing” instead of “forfeiture.”Footnote 63 Hence, we might separate the principles as follows:
Forfeiture by Insincere Act (IIA): If D intends to create in X the impression that he vs or intends to v, and his actually ving or intending to v would result in him lacking a certain right, through that right being forfeited or waived, and X is induced in this way to believe that D lacks the right, then D has in fact forfeited his right against X acting in this way.
Forcing by Insincere Act (IIB): If D intends to create in X the impression that he vs or intends to v, and his actually ving or intending to v would result in him being under a certain duty, and X is induced in this way to believe that D has that duty, then D has in fact created a duty to act in that way.
2. Culpability
As currently formulated, D must intend to create the impression. This is a culpability requirement. The fittingness of the shift in rights and duties stems from the actor's culpability in creating the interpreter's belief. One does not lose rights just because someone else misunderstands her. Rather, one only loses rights by consciously acting in a way that creates this misunderstanding. Although “insincerity” sounds in intentional action, the insincerity is not the ground of the forfeiture; it is the description of the disparity between internal subjective states and outward manifestations thereof. Hence, the question is when one forfeits rights because one has caused another person to believe something. Let me suggest here that recklessness is the appropriate (minimum) mental state for forfeiture. In other words, Forfeiture by Insincere Act does not require intentional mistreatment. We should further investigate why this is so. Consider:
Anna's iPad. Anna has an iPad, which she loves very much. She is at the park and decides to help a child, who has skinned her knee, get home. Anna decides that it is too difficult to carry her heavy backpack (containing her iPad and other items) with her, so she sticks it in the nearby garbage can, hidden under some garbage. Betty, a homeless woman, walks by five minutes later, and as is her practice, digs through the garbage can. She finds the backpack. When Anna returns and finds Betty sitting on a park bench playing Angry Birds, she demands the return of her iPad. Betty claims the property was abandoned and now it is hers.
One critical difference between Anna and Ike is that Ike intends to cause the clerk's belief that he is in real danger. Anna, however, does not put her backpack in the trash can with the purpose of causing someone to believe she has abandoned it. If this had been Anna's purpose, then again, it seems that her action ought to count as abandonment.
There are a range of mental state/culpability assessments beyond intention: Anna might know someone will view it to be abandoned; she might be reckless (consciously disregarding a substantial and unjustifiable risk); she might be negligent (unreasonably unaware of a substantial and unjustifiable risk); or she might act reasonably.
Let us begin at the bottom of the culpability ladder. Now, I think that many would find it hard to believe that Anna's behavior is completely reasonable because, well, leaving your stuff in a trash can is a pretty unreasonable thing to do if you do not intend to abandon it. But it is not hard to imagine cases where an individual is not behaving unreasonably—say, an undercover police officer who appears to a bystander to be about to assault someone, but is actually arresting a criminal.Footnote 64 In these cases, although the act appears to express an underlying mental state that does not exist, and is in that respect “insincere,” such conduct seems insufficient to justify forfeiture. That is, you cannot forfeit your rights by behaving reasonably when others may still misinterpret the meaning of your conduct. Forfeiture is not governed solely by the interpreter's perspective. Rather, it is based on what the “speaker” has done. (Again, this does not mean that the interpreter is blameworthy or ought to pay tort damages. It is merely a question of whether the speaker's right remains.) A reasonable bit of behavior does not subject one to a forcible shift of rights and duties.
What about negligence? When we blame someone for negligence, we are saying that but for some “fault” in the actor, she would have adverted.Footnote 65 Anna, for example, might have been feeling queasy because of the child's bloody knee and so she just failed to reflect on what putting something in a trash can “means.” This queasiness accounts for why she failed to advert to the fact that what she appeared to be doing was throwing away her iPad. What a forfeiture account then needs is a reason why making such a mistake is sufficient for her to lose her rights. At its very worst, negligence reveals a character flaw, and character flaws are not sufficient to justify the involuntary reduction of one's rights.Footnote 66 However, my argument does not depend on my view of negligence. If negligence is culpable, then forfeiture by insincere act also applies to the negligent.
We can now move to recklessness. Recklessness is the conscious disregarding of a substantial and unjustifiable risk. If Anna decides that she will “risk it” by putting her backpack in the trash and she does not have a good reason to do this, then as to Betty, Anna has abandoned the property. Betty did not simply misunderstand Anna; rather, Anna is responsible for this miscommunication and she lacks a good reason for misleading Betty. Notably, this will mean that if Ike decides to pull a gun as a prank or Patty foresees the risk that Nathan will misunderstand her, then both forfeit rights because it is wrong not only to lure another across one's boundaries but also to risk such crossings for insufficient reasons. And if recklessness is good enough, then knowledge ought to be as well.
In assessing whether the speaker is culpable, we ought to also consider the implications of justifications and excuses. If we think that the speaker shifts rights and duties because she mistreats the interpreter, then we should ask whether the speaker also shifts these rights when she has good reason for her trickery.
Because forfeiture must be appropriate or fitting, forfeiture may not apply when an action is justified or excused. We would need to ask whether the loss of the right ought to follow from the actor's conduct. There will not be perfect symmetry between sincere acts and their insincere sisters here. After all, one might consent for good reasons. If one consents for good reasons, then the consent is effective consent. On the other hand, if one feigns consent for good reasons, then, in some situations, “forfeiture by insincere act” does not apply. In other words, there is no problem with our positively altering our rights and duties for good reasons, but the penalty of forfeiture may not apply when insincerity is justified. To put it simply, if a lie is justified, it is not a binding promise.
So, for instance, consider the following hypothetical (and resolution) from David Enoch (which I will title and embellish for him):
David's Dilemma. A single-parent friend, John, of David's is diagnosed with severe illness. John is extremely anxious about who will take care of his daughter if he dies. Suppose that they are not close enough for it to be morally required that David take care of her. John has other friends who will be better parents to the daughter than David will. However, these friends cannot arrive before John dies and John desperately wants the peace of mind that a friend has promised to care for his daughter. By promising, David can significantly alleviate John's anxiety.Footnote 67
According to Enoch, he must promise.
It seems to me that there are ways of filling in the details of the example such that I will be morally required to promise my friend to take care of his daughter if he dies. This, even though I am not morally required—independently of and prior to the promise—to take care of her if he dies. Of course, if I make the promise and the friend later dies, I am then morally required to take care of his daughter, partly in virtue of having made the promise.Footnote 68
I disagree with Enoch's resolution of this dilemma. If we assume that after the friend's death, David will be able to find a better caretaker, then I believe, contra Enoch, that David is not required to make a binding promise. (Certainly, David can make this sort of promise if he wants to do so.) However, the most that morality requires of David is to make an insincere promise to his dying friend, but because that insincerity is justified, David is not bound by the terms of his promise. Rather, if all that matters is the deathbed assurance, then once the friend dies, David is free to find someone else to take care of the daughter. His lying is justified.
But this is a lie to a dead man. Let us return to The Bluff and Anna's iPad. What if Ike has good reason to threaten the clerk? After all, threatening the clerk with an unloaded gun is a crime but it is not attempted murder. What if Ike was told that his brother, Mike, would be killed unless Ike threatened the clerk? Certainly, pointing an unloaded gun at the clerk (and even robbing the store) is the lesser evil. Similarly, what if Anna was told that unless she left her iPad for Betty to pick up (perhaps Anna's threatener wishes to play a cruel joke), Anna's sister would be seriously injured? In these cases, the speaker intentionally communicates the exercise of the normative power and is insincere in doing so. The question is, is the action still normatively powerful?
I submit that it is not. There is no forfeiture here. It is most certainly true that vis-à-vis the clerk and Patty, there is simply no way for them to tell the difference. This is also true for reasonably mistaken self-defenders.Footnote 69 However, The Bluff is not a case where what we are concerned with is that the defender simply properly acts based on appearances. What we need are grounds for claiming that the aggressor has forfeited her rights. The justified insincere actor has a good reason for acting insincerely. Why, when she does the act that she ought to do, should she forfeit a right?
We may have contrary intuitions in some cases, but that may be because what appears to be justified is not. After all, if one is prohibited from using another as a means, then there may be times that the insincere actor's behavior is not justified. Just as we may not push the large man in front of the trolley, we may be forbidden from causing someone fear in order to prevent harm to another.
Still, this would leave open the question of whether there is forfeiture when the insincere actor is excused. At the outset, let me note that the intersection of excuses and forfeiture are difficult cases even in paradigmatic instances of self-defense. If Alice suffers from a delusion that Betty is about to kill her and begins to harm Betty, there is a question whether Alice is liable to be killed. I believe she is not.Footnote 70 Innocent aggressors are still innocent, and thus, though Betty perhaps has an agent-relative permission to harm Alice, Alice is not liable—she has not forfeited any rights. The more difficult cases are duress cases. What if Alice is threatened with having one of her fingers broken unless she breaks two of Betty's? Criminal law would hold that Alice has a complete defense (so long as we agree that a “person of reasonable firmness” would succumb to such a threat), but self-defense theorists have been far more reticent to recognize such a defense.
Duress cases are vexing, even when true self-defense is at issue. On the one hand, what the actor does is not blameworthy; on the other hand, to the extent that the actor under duress is attempting to shift a harm from herself to another, the question is how she could be so entitled. Perhaps in such cases, although the criminal law would not deem her blameworthy for punishment, self-defense's forfeiture conception should still recognize that it is fitting and appropriate for the loss to remain with the person who seeks to displace it. Alternatively, this may be like other dual innocent actor cases, where we ought to take a broad distributive view and ask, as between these two people, which one ought to bear the harm. I will not attempt to resolve that question here.
In this section, I have sought to clarify the culpability requirements for forfeiture. It is time to revisit the formulation of forfeiture by insincere act, to take into account culpability's relevance. I will use “culpability” to encompass the mental states of purpose, knowledge, and recklessness, as well as for the absence of justification and excuse.
Forfeiture by Insincere Act (III): If D culpably intends to create in X, or culpably risks creating in X, the impression that he vs or intends to v, and his actually ving or intending to v would result in him lacking a certain right, through that right being forfeited or waived, and X is induced in this way to believe that D lacks the right, then D has in fact forfeited his right against X acting in this way.
Although the same emendations should be made for “forcing by insincere act,” for ease of exposition, I will refer only to Forfeiture by Insincere Act (III).
3. Uptake
One last feature of both formulations ought to be acknowledged before I turn to potential objections. This is the requirement of “uptake.” Forfeiture by insincere act occurs when the speaker causes the interpreter to believe that a normative power is being exercised. We can immediately see why belief is necessary—if Nathan does not believe that Patty is consenting, he has not relied on her misstatement; if the junk guy overhears me say that I plan to keep my stuff, he does not rely on the “trash” sign; and certainly, if the clerk knows that Ike's gun is unloaded, the clerk may not shoot Ike.
Notably, not all powers require uptake for them to be effective. In the typical case of consent, the consenter's act of will, communicated or not, is enough to constitute consent because the autonomy interest that grounds consent is recognized in her unilateral choice. Abandonment, too, does not require that another person understand the goods to be abandoned. If I have thrown away my watch, you do not wrong me even if you believe you are stealing it. In contrast, promises take two people. An uncommunicated promise is a silent vow.Footnote 71 Gifts take two people as well. You cannot hand someone your chewing gum wrapper, call it a gift, and make him throw it away. (I know. I have tried.) This is because the shift of the property right cannot be done unilaterally; other people cannot force their stuff on us.
When we attend to the rationale underlying forfeiture by insincere act, it becomes apparent why uptake would be required.Footnote 72 If the reason we are saying that Ike forfeits rights is because he misleads the clerk, he needs to mislead the clerk. The mistreatment rationale does not come into play if Ike never causes the belief.Footnote 73
IV. OBJECTIONS
A. Threats
Let me turn to three possible objections. One might ask in which sense Ike is being insincere at all. After all he is assaulting the clerk. He is also threatening the clerk. So, why think that Ike's action is at all insincere?
This objection trades on different conceptions of a threat. On one conception, a threat is an act that causes fear. With respect to causing fear, there is no question of sincerity; sincerity does no work. All the work is done by making the clerk afraid. And, Ike's threat surely constitutes a fear-causing assault.
Even this much shows that Ike wrongs the clerk. His threat, moreover, constitutes a tort and a crime. But it takes more to show that the clerk did not wrong Ike by shooting him. Killing is disproportionate to preventing fear. You do not get to kill someone to stop them from scaring you.
Indeed, if we thought that fear-causing threats were sufficient to justify the clerk's use of deadly force, then this justification would likewise apply to Ike's friend. Assume that Ike's friend's only way to stop Ike is to shoot him. If causing fear is sufficient to justify the use of deadly force, then the friend should be able to shoot Ike, but I would suggest that so doing would be disproportionate.Footnote 74
One might wonder why I have shifted from necessity to proportionality. This is because an aggressor is only liable to proportionate force, and then such force may only be inflicted if necessary. Once we leave the question of forfeiture by insincerity and look at the harm inflicted by threatening—fear—it seems that one may not kill to stop fear. What distinguishes Ike's friend and the clerk is that one believes there is a greater danger, and it is this danger that would justify deadly force.Footnote 75
This leads us to the second way to understand threats. Threats are actions that have the capacity to cause harm. So, if Barry plans to kill Chris, then irrespective of Chris's beliefs, we can say that Barry is a threat to Chris. In this sense, threats are inchoate wrongs. This is a threat as something that has the potential to harm. It is in this sense that Ike's threat is an insincere act because he falsely presents himself as having the potential to harm the clerk when he doesn't.
In many cases of self-defense, both sorts of threats will be present. The act will cause fear because it has the potential to harm. But these two concepts are severable. And it is the latter sense of threat—qua harming potential—that is the insincere act that misleads the clerk as to the normative relationship between Ike and the clerk. Thus, we cannot simply rely on the fear-causing notion of threat to solve our problems.
B. Provocateurs and Estoppel
Here is a stronger objection. Ike is a provocateur. A provocateur is someone who picks the fight. In such cases, provocateurs are denied the right to defend themselves, but the respondent still acts wrongfully. If I call you a bunch of names to get you to punch me, then you still wrong me by hitting me, even if we think that I may lose my right to use preventative force by hitting you first. That is, it is possible to have a right that you may not defend.Footnote 76
Let us compare the trappings of liability with the trappings of being a provocateur. If an aggressor is liable to defensive force, he may not defend himself. He is not entitled to compensation for harm the defender imposes upon him. Third parties may not aid the aggressor but may aid the defender.
Are these effects equally present if we call Ike a provocateur? Here, Ike picked the fight. Being a provocateur, he may not defend himself. Provocateurs are also not entitled to any compensation. It seems that deeming Ike a provocateur captures important aspects of the situation.
Let us turn, however, to the other side of the equation, and ask whether the respondents perform the same sort of act. A person who responds to provocation wrongs the provocateur, and typically, she knows that her action is impermissible. That is, even if we think the respondent is partially justified and/or partially excused, the respondent performs a wrongful action. This would mean that the clerk wrongs Ike. Still, we can grant that the clerk is not the typical respondent. He is an innocent dupe. We could then combine the provocateur account with the excuse and determine that (1) the clerk wrongs Ike; (2) the clerk is excused because of his mistaken belief; and (3) Ike may not fight back because he has forfeited his right to counterdefense by provoking the clerk.
Thus far, our picture reveals that Ike may not be compensated or engage in counterdefense. The clerk acts wrongly, but is not blameworthy. What about third parties? Third parties will not help the clerk, but if the clerk aims to harm Ike, they will only impose a small degree of harm on the clerk to stop him, irrespective of whether we say that Ike forfeited rights or that he should bear more harm for starting the affray.
In the private law arena, the same objection arises as a question of estoppel. Estoppel is not a claim that the normative furniture has moved. It is a claim that, although one has been wronged, one cannot complain about the wrong because the wrong is of one's own making.Footnote 77 (The inability to complain can be construed as its own normative furniture move, but it is not coextensive with the shift of rights and duties exemplified by promising, consenting, and so forth.)
One way we might test our intuitions is to make property at stake. That is, what happens when we have to decide who truly has a right to keep something so that our considerations extend beyond Nathan's claims about the wrongfulness of his completed act? Consider:
Mork and Mindy's Cruel Joke. Married couple Mork and Mindy have a bet as to whether their neighbors will sneak by in the middle of the night and take items they have left in front of their house marked “trash.” Mork and Mindy place these items in front of their home, and then they watch with night vision goggles as their neighbors sneak over to the collection and take various items. The next day, Mork and Mindy reveal the bet to their neighbors and demand the items back. The neighbors claim the property was abandoned. Neighbor-Doug, in particular, is fiercely protective of his new Bud Light wall art.
A decision must be made. Doug has little, if any, reliance interest. He was not going to buy the Bud Light sign otherwise. He had never wanted such a sign. His back does not hurt from carrying it home. Doug just thinks that this item is now his. Someone gets to hang that ugly tacky sign on the wall. Mork and Mindy have led Doug to believe that that sign was free for the taking, and that they had relinquished all rights. It seems odd to say that Mork and Mindy own the sign but they cannot assert their ownership against Doug's usurpation. Rather, what we want to say is that Mork and Mindy's behavior had the effect of actually shifting the property rights.
Forfeiture by insincere act gives us a general reason for saying not only that Ike is liable but also that Patty has consented and that Doug owns the sign. Any other resolution allows the insincere actor to mistreat others and mislead them as to the implications of their own actions. Ultimately, we have an interest not just in acting nonculpably but in acting nonwrongfully. The insincere actor makes us vulnerable to the latter judgment, and only forfeiture by insincere act can remedy that vulnerability. The insincere actor should not receive the benefit of appearing to alter another's moral boundaries without all of the consequences that follow. To say that Ike is a provocateur misses this facet of the relationship: that Ike's responsibility in creating the clerk's normative vulnerability does more than make the clerk nonculpable; it also makes the action nonwrongful.
C. Normative Powers and the Intentional Act View
A final objection is based upon my premise that (at least some) normative powers are, at bottom, the internal mental act of choosing. A contrasting view would be that consent just is the intentional expression of consent, irrespective of whether one means it. My argument thus proves too much. I have not offered an alternative route by which normative relations may be shifted; I have simply filled out our account of the core of normative powers themselves.
The intentional act view challenges Forfeiture by Insincere Act because if normative powers simply consist in the intentional enactment of a performative (such as, “I promise”) then the insincerity does not seem to be doing any work. And, if the insincerity does not play a forfeiture role in altering rights and duties, then such a principle cannot be applied to The Bluff. This would mean that insincere promises, insincere consent, and insincere abandonment just are promises, consent, and abandonment. In contrast, if the reason an aggressor forfeits rights in the case of a loaded gun is because the gun is loaded and if insincerity does not itself have the power to cause forfeiture, Ike does not forfeit rights in the case of The Bluff. This objection, then, seemingly devastates my central claim.
I believe I can meet this objection. Let us start with Joseph Raz's claim that “an act is the exercise of a legal power only if it is recognized in law as effecting a legal change and if it is so recognized because, among other things, it is an action of a type that it is reasonable to expect to be performed for the most part only when the person concerned wants to bring about the legal change.”Footnote 78 The intentional act view comports with Raz's conception because it captures not only the core (changing things we want to change) but also the periphery (intentional invocation of the normative power even when we do not want the end result). The question, though, is what accounts for why the periphery counts as the invocation of the normative power. My answer is that even when we count insincere promises as promises, insincere cases have a distinct forfeiture grounding that departs from why core cases change rights and duties. A forfeiture account of the periphery better explains why insincere cases also move the moral furniture.
To draw the distinction between the intentional act view and my own, consider Jody Kraus's sophisticated argument for why promises ought to be objectively understood.Footnote 79 Kraus claims that promisors exercise personal sovereignty by making promises and that promisors want promisees to take promises as creating new reasons for action. Then, Kraus notes that promisees cannot distinguish between sincere promises and “objective promises,” which are statements that appear to be promises but are not sincere (what I will call “insincere promises”). We all have an interest in binding ourselves, not only when we make sincere promises but also when we intentionally or negligently make insincere promises, argues Kraus. Why? Kraus argues that if objective promises are not promises, then promisees would be entitled only to reliance, not expectation, damages. That is, only promises get you the equivalent of performance, whereas reliance damages only allow you to recover the extent to which your interests were set back. But the reason people want promises is because they want the value of the promise if performed. If insincere promises did not count as promises, argues Kraus, such a result would have the effect that promisees do not know the value of the promisor's statement. This would undermine the point of having promises in the first place. Kraus thinks that for this reason individuals have an interest in making insincere promises binding because this is the only way to give adequate assurances to promisees. The interest that true promisors have in having the ability to provide assurances to promisees trumps the rights of individuals who culpably make insincere promises, thus leading to the result that insincere promises ought to count as true promises. Notably, Kraus does not take insincere promisors as exercising their personal sovereignty. Rather, he believes their sovereignty is overridden.
Kraus's argument, then, is that although insincere promisors want to create a belief, but not an actual duty to perform, we are better off if we have a practice of promising that holds insincere promisors to what they have said. The question, then, is what to say about mistaken promisors (those who nonculpably engage in conduct that creates the appearance of a promise). After all, from the promisee's vantage point, a sincere promisor, an insincere promisor, and a mistaken promisor are indistinguishable. We might expect, then, that Kraus would hold us to our mistaken promises as well, as that is the only way to give promisees adequate assurance. But he does not claim that.
Within the personal sovereignty account, there is no ground for subordinating [the nonnegligent actors’] negative liberty to be free of unintended moral obligations. It is therefore not possible for the personal sovereignty account to accord full respect for both the positive liberty of individuals to choose to make objectively binding promises and the negative liberty of individuals who nonnegligently make merely objective promises by accident. Full respect for one entails diminished respect for the other.Footnote 80
Hence, despite his claims to the contrary, Kraus still leaves promisees unable to distinguish binding promises from appearances thereof. Kraus is unwilling to override the rights of some innocent individuals for the rights of other innocents. Surely promisees cannot tell the difference between an accidental “insincere” promise and a culpable insincere promise, but, according to Kraus, only the latter generates duties. Notably, he could have come out the other way. After all, if accidental promises have normative power then although we would accordingly lack some control over making promises, we would do so to the benefit of knowing that when we make genuine promises, promisees know they can rely upon us. So, it does not follow from Kraus's account that we would draw a line between different types of objective promises. That line is better explained, I submit, by recognizing that a forfeiture principle is at work and that principle ought only to apply to culpable actors.
The argument advanced in this paper allows us to recognize this distinction, between culpable and accidental promisors, and simultaneously provides grounds for holding that the normative power was exercised in a way that could give rise to expectation damages. Insincere promises count as promises but they do not do so for the same reasons that sincere promises count. Just as Kraus would have it, we are overriding the sovereignty of insincere promisors. Indeed, my account, that this is a forfeiture principle and not an exercise of personal sovereignty, offers a better explanation of why nonculpable actors are excluded from those whose objective promises count as promises. Kraus admits that those individuals cannot be held to have made promises. My argument explains why—promises are made by either the exercise of personal sovereignty (sincere promise) or by the forcing/forfeiture caused by the culpable causation of the belief (insincere promises). Where an individual is not culpable, as is the case for accidentally “promising,” there is no forcing/forfeiture and there is no promise. Ultimately, then, even if one thinks that normative powers are performatives, my view explains why insincere performatives count while better describing why accidental invocations of performatives do not.
This difference in grounding is also apparent when we look at justifications. Justifications defeat the moral efficacy of insincere acts but not the efficacy of their sincere sisters. Assume I promise my neighbor's son that I will take him to the zoo because I think he will enjoy it, it will be educational, and so forth. We would take this to be a good promise to make. Now assume that I promise my neighbor's son that I will take him to the zoo because my neighbor threatens to kill my child if I do not. (Note, this is not just a case of duress. It is a case where the lesser evil is to lie. This is a justification.) Here, although I might mean my promise, I would also have every reason to insincerely promise (so long as what is required to save my child is solely the promise and not the action). If I made an insincere promise (imagine I crossed my fingers behind my back), I would have a strong argument that my promise was morally inert because, for good reasons, I falsely evinced my willingness to take the boy to the zoo. Hence, it seems that although good reasons do not undermine the efficacy of expressed sincere promises, good reasons do undermine the efficacy of expressed insincere promises. The intentional act view simply lacks the resources to make this distinction. Under the intentional act view, in both cases I intentionally “promise” for good reasons.
Hence, even if one thinks that normative powers are exercised whenever one intentionally invokes a convention (such as saying, “I promise”), the question remains why insincere intentional invocations are morally binding. My account claims that embedded within the intentional view is a forfeiture principle. Moreover, the fact that this is forfeiture becomes clear when we see that we may treat a justified lie as morally inert while maintaining that a justified truthful invocation is efficacious in shifting rights and duties.
V. CONCLUSION
I have claimed that when an individual, without justification or excuse, leads another to believe that he has shifted Hohfeldian relations, this act has the same effect as a sincere alteration of normative relations. Insincere expressions mislead and manipulate their interpreters as to the normative status of the actions at issue. Rather than leave the interpreters normatively vulnerable, it is appropriate that the actors should forfeit their rights so that their lies or reckless misrepresentations are made true.
Let me conclude with a few thoughts about the implications of Forfeiture by Insincere Act (III) to promising, consent, and self-defense. The disparate literatures make different assumptions, and thus, the impact of the claims I have made here will vary in how potentially controversial they are.
We often take a promise to be simply the intentional invocation of the convention. Crossing your fingers behind your back cannot render your words ineffective. Although some theorists focus on the promisee's reliance or expectations,Footnote 81 I am sympathetic to the thought that promises derive from our autonomy.Footnote 82 But any autonomy-based view must come to terms with the idea that one may say something one does not mean, and such a view must have an account of why one may still be bound. As I have argued contra Kraus, rather than overriding the will of the insincere and saying they promised through an exercise of their autonomy, we ought to think that the insincere actors have engaged in an act that provides alternative normative grounds for creating the duty.
With respect to consent, there is substantial disagreement over whether consent is best conceptualized as an internal act of will or whether it is best understood as a communication to the consentee.Footnote 83 As noted above, I endorse the view that consent is an internal state of willed acquiescence. Nevertheless, even for those theorists who take consent to be an external expression, they must still ask the question of what happens when the external and the internal do not match. Assume that in a state that adopts an affirmative consent requirement for sexual assault, a reasonable person would take the victim's behavior as consent, but the victim does not acquiesce to the contact. I think we need the normative space to say that the victim can use some force to stop the mistaken actor, and that the mistaken actor is wronging her, albeit nonculpably. Hence, if we want grounds in the promising and consent cases to allow for some mismatches to “count” for purposes of shifting normative powers, we need to understand how that might happen. I hope I have provided that.
Let me now turn to self-defense and to the puzzle with which we began. The application of forfeiture by insincere act to The Bluff itself is straightforward. Because (1) Ike intentionally communicated to the clerk that his threat was real, (2) Ike lacked a justification or excuse for so doing, and (3) the clerk believed Ike's threat was real, Ike is liable to the clerk's defensive force. Therefore, the clerk did not wrong Ike when he killed him.
Does this accord with the trappings of the loss of a right? With respect to counterdefense, the answer is yes. Ike should not be able to fight back. And, this view seems to get the intuitively right answer to compensation. Namely, the clerk does not owe Ike's family a dime.
We should pause, though, to consider third-party implications. Certainly, an epistemically privileged third party cannot throw the clerk a gun to shoot Ike! He knows Ike's not a threat! But if a third party cannot assist the clerk, we might pause to question whether the clerk is acting permissibly. After all, if Ike's gun were loaded, a third party could throw the clerk a gun.
This gets to a far more central question about how we ought to think about the relationship between liability and all-things-considered permissibility. I will offer a few thoughts here, though it will take a separate paper to defend this position fully.Footnote 84 The view suggested here is a position that holds that liability simply is forfeiture. The question of what reasons exist to support defensive action is a distinct question. Hence, we can say that Ike is not wronged by the clerk's use of force, but we must still inquire further as to whether the clerk's action is all-things-considered permissible. The fact that Ike forfeited rights significantly affects this calculation, but one reason that is unavailable to the clerk, a reason that exists in the typical self-defense case, is the need to impose the harm to prevent the aggressor from succeeding.Footnote 85
Some theorists seek to bind liability to the existence of an instrumental defensive reason to harm. If Ike is not a threat, he cannot be liable. Recall that McMahan claims, “I believe that even a fully culpable threatener is not liable to suffer harm inflicted on him that is unnecessary for any defensive purpose. This is because I conceive of liability as necessarily instrumental. If a harm inflicted on a person is neither a means nor an unavoidable side effect of preventing or rectifying a wrong for which the person is responsible, that person cannot be liable to that harm.”Footnote 86
For now, I wish to suggest only that it is more perspicuous to ask about forfeiture separately from asking about reasons. The quest to make self-defense necessarily instrumental leads to confusion, even among the theorists who define liability instrumentally. In a chapter on targeted killing, McMahan asks what would happen if someone killed Osama bin Laden and bin Laden was not actually planning another attack. McMahan's answer is that appearances can count. After noting that one may “forfeit[] any claim to the benefit of the doubt,” McMahan further claims that he may not fight back and that, “[h]e is, one might say, liable to be killed on the basis of a mistake that he is responsible for making it reasonable for others to make, even though he is not liable to be killed for defensive reasons.”Footnote 87 I submit that the only way to render that claim intelligible is to divorce liability from instrumentality. Mistakes are not reasons, so one cannot be killed instrumentally to service a mistake. Rather, what McMahan wants to say is that there has been forfeiture. That is the claim that this paper has made. Indeed, what I have hoped to show here is precisely why one's responsibility for another's mistake can itself alter rights and duties. The further exploration of the relationship between forfeiture and reasons I will leave for another day. For now, I hope to have robustly defended the idea that Ike forfeits his rights in The Bluff and to have grounded this forfeiture in a more general normative principle.
