Edmund Tweedy Flanigan (LMU Munich), "Futile Resistance as Protest"
Forthcoming, Mind
Imagine that you are being attacked by a vicious and powerful attacker. Your appeals to your attacker to stop have been ignored, and you know that you cannot forestall the attack with defensive force of your own. In other words, resistance is futile. But while you cannot forestall the attack, you could still, in some sense, fight back: you could punch, kick, scratch, maybe even break some bones. That is, you could engage in futile resistance. May you?
On the one hand, the answer seems intuitively (and clearly) to be yes. Surely victims of serious attacks are morally permitted to resist their attackers, including by harming them, even when there is no hope that by doing so they could successfully avert these wrongs.
On the other hand, these acts fail to meet the justificatory standards set by widely accepted principles of defensive action. According to the effectiveness condition on permissible defense, a defensive act must effectively avert a threatened or ongoing wrongful harm in order to be permissible. And according to the necessity condition, only those defensive acts which are necessary to avert a threatened or ongoing wrongful harm are permissible. But if an act is futile, it could not be effective, or succeed. And if an act could not succeed, it could not be necessary. If it could not be necessary, it must be gratuitous. But how could gratuitous harm be justified? (Underlying this is a question that is independent of defensive ethics: what is the point of futile resistance, and why is it not simply gratuitous harm?)
This is what I call the "puzzle of futile resistance," which I take up in my new paper, "Futile Resistance as Protest." Unlike previous attempts to solve this puzzle, which have focused on extending or adapting the principles of defensive ethics to meet the challenge posed by these cases, I instead pursue the idea that acts of futile resistance are not, properly speaking, acts of defense at all. Rather (and as the title of the paper reveals), I think that they are acts of protest - ways of insisting on the wrongness of the attacks they respond to and insisting that these attacks should stop, despite victims' inability to make them stop. These are things, in my view, that are worth saying. Moreover, adequately saying them may, in the most serious cases, demand doing so forcefully, i.e. with (harmful) acts. The surprising consequence, if I'm correct, is that the norms governing expression, in cases like these, can directly justify the imposition of harms.
My (ahem) defense of this claim proceeds in two stages. In the first, I take on existing attempts to solve this puzzle, which, as I mentioned, try to extend or adapt the principles of defensive ethics to cover these cases. Daniel Statman, Helen Frowe, and Jeff McMahan have all taken the view that in cases of futile resistance, victims defend something other than their bodies: their honor, moral standing, or dignity (respectively). The idea is that when victims engage in futile resistance, though they may not defend their bodies, they nevertheless successfully defend one of these other things, rendering the relevant harms non-gratuitous and thereby resolving the puzzle.
I raise a number of objections to this family of views, but let me mention just the most general objection here. It is simply that it isn't very plausible (to me) that defense - in the sense that the principles of defensive ethics apply and thus license harm - is what's going on here. I agree that it's natural to talk about defending one's honor, but it's also natural to talk about (say) defending one's view in a philosophical argument, or coming to a friend's defense when they're maligned, or defending one's queen on the chess board. But clearly, in none of these cases could one rightly defend these things with force. So the real question is, what makes the principles of defensive ethics apply to something like honor, moral standing, or dignity, such that their protection licenses harm?
Some reason to doubt that they do apply comes from thinking about the origins of the principles. The principles of defensive ethics originate in the common law and just war traditions, on one side, and in recent philosophical case-based reflection, on the other. In those contexts, they have been developed principally with respect to cases of defense of life, limb, and (to a lesser extent) property. But honor, moral standing, and dignity are very unlike life, limb, and property. So we have good reason to doubt that they regulate these very different objects.
This is supported by the observation that canonical objects of permissible defense are things one can lose, like life, limb, or property, and the point of defense seems to be to prevent their loss. Now, here's a dilemma: Perhaps we can, in an analogous way, lose (say) our honor, and so perhaps defending it is loss-preventive in a similarly analogous way. But then we face very odd consequences. What if you've lost your honor already? Are you then no longer permitted to engage in futile resistance? What if your resistance is pathetic, so that it contributes to rather than prevents the loss of your honor? Not only do these consequences not align with intuitions about permissible futile resistance, they're just plain difficult to bear. But the other horn of the dilemma is hardly easier. Suppose the object in question (dignity or moral standing, say) cannot be lost. Then, what does it mean to attack it, and what does it mean to defend it? It's most natural to use language like "affront" and "undermining" to describe these alternative effects. But can we harm others to prevent their affront from successfully undermining us? Taking this tack only widens the gap between canonical cases of defense and these cases, which deepens my concern about whether the principles of defensive ethics apply to them.
The second stage of my argument turns to filling out the details of the alternative account I propose. My first claim is that acts of futile resistance are best understood as acts of protest, which is to say as a certain kind of directed expression. This is not a new thought: one important theme of philosophical reflection on resistance to oppression has been to point out what Tommie Shelby calls the "noninstrumental elements" of the "political morality of dissent," i.e. the value (symbolic, intrinsic, or otherwise) of standing up for oneself and others, or the way in which doing so satisfies moral duties.
By contrast, however, I do not claim that protest is justified in virtue of the value it realizes or a duty it satisfies. My second claim, and what most distinguishes my view, is that protest is justified when and because it is the fitting response to the kinds of wrongs victims face in cases of futile resistance. In other words, it is (synonymously) what is correct, appropriate, proper, merited, apt, and called for when facing a threat of wrongdoing one cannot overcome.
There's too much to say about what this means, more precisely, than I can do justice to here. So let me just note some of the upshots. The benefit of taking this approach is that bringing acts of protest under the governance, so to speak, of the category of the fitting yields distinctive and interesting regulative principles. The ones I point out and discuss in the paper are that fitting acts of futile resistance should be:
Proportionate;
Correctly directed; and
Adequate to the wrong protested.
To see how these principles work, it helps to compare other kinds of fitting interpersonal response. When someone is kind to you, they merit thanks. When you thank them, which you ought to do, it is important that your thanks be proportionate (some thanks are excessive!), correctly directed (you should thank the person who merits thanks, not any old person), and adequate (cases of major kindness demand serious thanks, including maybe acts of gratitude). Moreover, what is called for is that you say "thank you" somehow, not just that you possess the appropriate inner attitude of gratitude. Satisfying these principles is part of what makes a given response fitting or not fitting. Similar remarks apply to other forms of interpersonal response, like blame and apology. Moreover, I claim that when some response is fitting in this way, it is also thereby (pro tanto) justified.
I claim that justified acts of futile resistance are like this. To say that an act of protest is fitting is, on my view, to say that it is proportionate, correctly directed, and adequate to the wrong protested. Cases of futile resistance often involve very serious wrongs, and they correspondingly call for very serious protest. This explains why victims engaged in futile resistance may do more than say 'no' or 'stop' to their aggressors. Sometimes, when a wrong is severe enough, words may not be enough, and only an act - and a forceful one at that - will do to adequately protest it.
There is, of course, much more to say about the details of this view, including about the deeper grounds of what makes protest the fitting response to certain wrongs, and about whether this view rules out non-violent resistance or non-resistance (it doesn't!). My hope is that if you've read this far, you'll go and see what I have to say about those questions in the full paper.
What are the implications of the view? Well, if I am right about all this, then it turns out that the solution to the puzzle of futile resistance lies not in the ethics of defense but in the ethics of protest. This is, I think, of interest in itself, as well as perhaps to scholars working on the ethics of defense. But the view also suggests that protest generally, including therefore political protest, is regulated by considerations of fit. This, I think, may be of much wider significance. When we judge acts of protest, it may often be wrong to focus on the ends achieved (or achievable). It may also be wrong to think, as many do, that violence is always to be condemned. Rather, it may be the only response adequate to the circumstances.