The questions you ask determine the answers you get. If you ask the right questions, you have some hope of reaching the right answers. If you ask the wrong ones, you’ll likely reach the wrong answers. If you give up on asking, you get nothing but what you started with, so that if you begin in ignorance, you end there.
The debate about the killing of Brian Thompson threatens to begin and end either in misdirection or reinforced ignorance or both. Stuck between two competing brands of outrage–one exulting in Thompson’s death, the other outraged at the exultation–we’re in danger of losing the denials/reimbursement plot altogether. I know I’ve posted on this issue already, but think I’ve found a better way of saying what I was trying to say in that post, one that does a better job of asking the right questions than my last post did.* So here is UHC, Denials, and Death, Take 2.
The Thompson killing raises a bunch of questions, but here is a basic one: what, in principle, is the connection between a health insurance denial and moral responsibility for wrongful death?
If there is such a connection, and responsibility for wrongful-deaths-through-denial points to Thompson, then Luigi Mangione’s assassination of Brian Thompson has a certain plausibility to it on moral grounds. If Thompson was systematically responsible for a large series of wrongful deaths, he had to be stopped. But given the structure of our legal system and society, it’s highly unlikely he would ever have been stopped by legal means. In that case, Mangione did us all the service of stopping him. You might accuse him of utopianism, impracticality, imprudence, disrespect for legal process, or even for leaving the job half-done, but if Thompson is guilty of wrongful killing, then whatever his faults, Mangione can’t be faulted on grounds of justice. Justice is what he brought about.
That said, if there really is a connection between insurance denials and wrongful death, we ought to be able to specify this connection with some degree of precision and explain how Brian Thompson can be saddled with guilt by means of it. If we can’t, then Thompson’s killing starts to look like plain old murder, and in cheering it, Mangione’s cheerleaders are hastening us into a moral abyss. Because let’s face it: if there’s no clear, defensible connection between denials and wrongful killing, all that the valorization of Thompson says is that you can kill people on the basis of half-baked rationalizations that you’ve written up in a spiral notebook. And that’s a soberingly psychopathic thought.
I think it’s cowardly that the mainstream media is largely refusing to print Mangione’s “manifesto,” but having read it, I also think it’s obvious that there’s nothing of substance there. I understand that Mangione has suffered a great deal from his back injury, and don’t mean to make light of it. My late wife suffered through almost exactly the same ordeal as Mangione, and eventually committed suicide over it. I witnessed her suffering for years, made my own failed attempts to ameliorate it, and have for years blamed myself for not doing enough. I myself have suffered chronic back pain for decades from a severely extruded spinal disc, the worst part of which was caused by an incompetent chiropractor. After years of chronic pain, I eventually had to devise my own cure: I stopped sleeping in beds, and started sleeping directly on the floor. I’ve done that now with success for twenty years, and now find floors more comfortable to sleep on than beds. The cheapest cure that money didn’t buy.
I don’t mean to suggest that my suffering is comparable to what I take Mangione’s to be. I only mention it to indicate that I have a sense of the suffering involved. But medical suffering by itself can’t be a reason for killing someone. You can’t legitimately kill someone, no matter how badly you’ve suffered, if you can’t identify how he in particular is morally responsible for making you suffer. And Mangione didn’t. His manifesto gestures in a very general way at work done by Michael Moore and Elisabeth Rosenthal, but that’s a long, long way from making a plausible case for anyone’s having engaged in wrongful killing.
As for Mangione’s defenders, they’ve sort of fudged things. They seem sure that Mangione was justified in killing Thompson, but get vague at precisely the point when certainty would be required. What they say in effect is that UHC’s denial rate is high (which is true), that there are plenty of prior authorization denials in there (also true), that these prior authorization denials may well be responsible for some wrongful killings (also true). They then claim that there’s a strong connection between lack of coverage in the broadest sense and premature mortality (also true).
But while I grant all that, it doesn’t really justify Thompson’s killing. It’s not certain that UHC’s prior authorization denials have led to any wrongful deaths, and even if so, it’s not certain that Thompson can be saddled with guilt for them.
Caution: health care tangles ahead
It’s not obvious to me that Thompson can be held responsible for the mortality arising from sheer lack of coverage, either. “Lack of coverage” is ambiguous as between failing to cover procedures written into the insurance contract, and declining to cover procedures by excluding them from the contract. Those are themselves different things, and the latter is more a case of letting-die than killing. I admit that some lettings-die are wrongful, but few if any justify retaliatory killing. So while ambiguous invocations of “lack of coverage” may indict our health care system, they don’t indict Brian Thompson in particular. And if taking on a leadership role in a dysfunctional social system is a capital offense, we’ve got a lot of killing to do, some of which includes those cheering for more assassinations. You should only cheer for more bloodletting if you’re either certain you don’t deserve a bullet yourself, or you’re willing to take one.
Beyond this (and more problematically, in my view), many commentators seem to be suggesting that UHC’s high denial rate is by itself evidence of malfeasance or wrongful killing. That’s not true. Not all denials are wrongful, much less wrongful killings. To make that equation is to ignore the role of provider upcoding, overbilling, and overcharging in generating costs. All of those things exist in abundance, and insurance companies justifiably have to issue denials for them. The role of provider overcharging is a complex topic of its own that demands separate treatment, and is to some extent getting mangled in this controversy.
It’s worth noting that while UHC’s denial rate is high, its prior authorization rate is relatively low. By contrast, Humana’s prior authorization rate is the highest in the country (or was, as of 2022). That might suggest prima facie that Humana’s CEO would have been a better target than UHC’s. But just to be clear, I’m not suggesting that you do that.** My real point is, if you think Thompson should have been killed, you should at least be able to lay out a case for killing him that approximates the rigor of a legal brief, whether or not it adheres to specifically legal standards. I so far haven’t seen one that does.
My opening question really involves two different questions.
(1) First: how does a denial cause wrongful death or morbidity?
(2) Second: when it does, who is morally responsible, and why them?
I want to sketch the logic of a hypothetical answer to each question, taking each in turn.
(1) Wrongful-death denials. We want to know how a denial can amount to a wrongful death/killing, a term I’m using here to encompass homicides and wrongful deaths in the more familiar legal senses of those terms. Legally speaking, what I’m calling a wrongful death or killing ends up being either a crime or a tort, but ethically, we have to allow for the possibility of a broader conception of wrongful killing than American law recognizes. Whatever the details, a wrongful killing is one person’s voluntarily killing another who is innocent of any wrongdoing that might justify killing him. Voluntarily killing any patient in a medical context would suffice.
What we’re looking for is something like medical malpractice, but broader than that. Medical malpractice is professional negligence by a health care practitioner that causes harm, injury, or death to the patient. So, again, what we’re looking for is like malpractice, except that it may or may not operate by negligence, and is not engaged in by a medical practitioner. What we’re looking for are deaths, somehow wrongful (though not necessarily negligent), and somehow caused by a professional involved in health care, though not a specifically medical one, causing death that cannot equally be attributed to any other factor.
The next ambiguity we face is that of a denial. It’s easy to get lost in over-complication here, but consider a way of cutting through it. Take the set of anything that counts as a health insurance denial of a medical claim. The full list will number in the hundreds. Now distinguish those denials that in principle can and those that can’t be causes of death, whether wrongful or not. Whatever the complications, two things will be clear about denials-capable-of-causing-death. One is that some distinctive feature of the denial is the cause of death–obviously a feature of the denial that precedes the death itself. Second, this feature of the denial, whatever it is, will have to be unique among the causes of death. In other words, the denial will have to be what caused death in a sense over and above the other things that might have done so. The denial can’t simply be a distasteful bureaucratic epiphenomenon of the death, a lapse in taste, a failure to show appropriate respect, a callous expression of the general indifference of the system, etc. It has to make the death happen in some clear sense.
Suppose that we can isolate the set of denials that can in principle be unique causes of death. Now we need a criterion for wrongful deaths. This will be a long and complicated story (at least as complicated as it already is in law, and then some), but I would put things in this way. Think of denials as lying on a continuum. If so, there are clear cases of wrongful death, clear cases where wrongful death is not an issue, and then cases intermediate between these. We need to get clear on all three.
At one end will be denials that clearly satisfy a plausible criterion of wrongful killing, for instance a prior authorization denial for a life-saving procedure where prior authorization was gotten yet capriciously denied anyway. If the denied treatment would have saved the patient’s life, but the patient died for lack of getting it, it seems to me that we have a clear case of wrongful death, regardless of how the law actually conceptualizes such cases. Likewise in cases where the denial for a service already rendered adversely affects the receipt of treatment in the present or future, e.g., follow-up care, the availability of pharmaceuticals, etc.
At the other extreme, however, will be denials that fail any plausible criterion of wrongful killing, however right or wrong they might be in other respects. Suppose that I receive treatment, and am fully cured of my health condition. Now suppose that I’m on the receiving end of a medical necessity denial by my insurance provider, in other words, a denial that refuses reimbursement for treatment (or underpays for treatment) by alleging that my treatment was unnecessary (or excessive). The most commonly denied diagnosis is sepsis, but spinal conditions are up there.
Unless the process of receiving the denial kills me (which I admit is possible, but unlikely), it makes no sense to say that a denial of this kind–known as a claim denial–brings about wrongful death. Obviously, a claim denial can’t bring about wrongful death if it doesn’t bring about death, but more to the point, a denial can’t bring about wrongful death if the denial comes after the denied treatment. If wrongful death operates through the denial of treatment (as in prior authorization denials), an ex post facto claim denial comes too late in the process to be the cause of wrongful death at all. (That said, a denial can bring about poverty or bankruptcy, which can exacerbate health factors and indirectly bring about premature death. The causality here will be complex and hard to tease out, but that doesn’t mean it doesn’t exist or lacks moral significance.)
Between these two extremes lie a multitude of cases, far too diverse to list in an exhaustive way. But a couple of points about them are worth making.
First, most of the excess or premature mortality/morbidity that takes place in insurance contexts arises, not because a policy holder is denied treatment, but because the patient lacks insurance coverage altogether. There is dispute about the numbers, but it’s more important to get straight on the causality and on the orders of magnitude involved than haggle about details.
The relevant point is that an uninsured patient is denied treatment in a different way than a denied policyholder. Suppose I’m admitted to a hospital and lack coverage. Suppose that I’m denied care for inability to pay, and prematurely die as a result. In this case, it’s the provider rather than any insurance company that’s the agent of my demise, and so, the provider rather than any insurance company that would (ex hypothesi) have to be on the receiving end of any retaliatory violence. This is very different from the case in which I’m admitted to the hospital and have coverage, yet die because my insurance denies authorization for a covered condition. In this case, the insurance company seems more at fault than the provider. Whatever the squabbling about details, it strikes me as obvious that lack of insurance is a bigger driver of mortality (if anything is) than wrongful-death denials among the insured.
Now focus on the cases where the patient is insured. In these cases, we have to make a similar distinction to the preceding, between cases where the patient is denied coverage for a covered condition, and cases where the patient is denied coverage for a condition that isn’t part of the insurance contract in the first place. There is admittedly a lot of room for squabbling and disagreement here–the whole industry of denials management is built on the squabbles–but the basic distinction should be clear enough.
If a condition is not part of the insurance contract, it is much less clear that denial can in principle be a cause of death than otherwise. If your insurance contract says at the outset that it won’t cover you for X, and you have X, then the company’s not covering you is not the denial of an eligible claim but a denial of the eligibility of the claim (ex hypothesi, a legally correct one). You might argue that it’s unconscionable for insurance contracts to do this as much as they do (or at all)–the exclusion of pre-existing conditions being a case in point–but in that case, we have to distinguish two senses of wrongness: one reducible to a breach of contract, however broadly we take the terms, the other owing to the substantive unconscionability of the terms of the contract itself. My point is not that one is more important than the other, but that they’re different things, and clarity is facilitated by distinguishing them.
So that’s (1). In short: We’re looking for the kind of denial, by analogy with malpractice, that wrongfully kills the patient, where nothing else can be said to kill the patient, and where the wrongfulness arises either from a breach of contract or (maybe) the substantive unconscionability of the contract.
Contrary to some overly hasty claims I made in my prior post, I now don’t want to pronounce on the percentage of overall denials that satisfy the preceding criterion. For now, I think it’s better to say that no one can really know. The data on denials are proprietary, fragmentary, and stored in inconsistent formats. In many cases, the data are frankly unreliable. There is no master database on denials that captures them all, and no imminently forthcoming hope of constructing one. In any case, I’m not familiar with any database that carves the data up by means of moralized variables like death-producing denial or wrongful-death producing denial. I doubt any insurance company has the incentive to collect data of this kind, and it’s unclear how one would operationalize the variables anyway. (For a good discussion of the uncertainties involved, see this article, which if anything understates the problem.)
It doesn’t really matter that much. I think we can say with confidence that we’re not talking about the null set: there definitely are cases where denials wrongfully kill patients. I’m inclined to think that the percentage involved is either a minority or a small minority of the total. I spend my days looking at denials data, and most of the denials I see not only do not but could not wrongfully kill anyone (which is not to say that these denials are just or fair; they’re not). My worry is that in focusing on wrongful killings, we’re focusing in the wrong place. Once it’s revealed that there aren’t as many as people were initially led to think, I worry that the significance of the underlying issue will be lost–not just denials per se, but the structure of the health care system as such. But that’s a worry, not an assertion of fact about the state of the data. Despite working in denials, my contact with the data is limited, and in some ways idiosyncratic–restricted to certain clients, to certain swatches of their data, and to a delimited subset of accounts determined by contractual provisions I myself have never seen. That proviso will likely be true of most people, however immersed in the data they are or claim to be.
Stepping back for some perspective
(2) Individual, executive, and collective responsibility. Suppose we have a population of wrongful-death denials. Suppose that we can identify UnitedHealthcare’s share of them. Can we now attribute them to the CEO? If so, how?
(a) The CEO is responsible. One possible answer is a simple yes: he’s the chief executive officer of the company, so he’s responsible for everything that it does or that happens in it. If UHC engages in any prior authorization denials, and any of them wrongfully kill anyone, he is the fundamental author of any and all UHC killings. So he’s the killer.
(b) Nobody is responsible for systemic collateral damage. Another possible answer, however, is that wrongful-death denials are a predictable instance of collateral damage in any healthcare system, and in general can’t be attributed to the CEO or anyone in particular, except in cases where there is some highly local malfeasance by some identifiable agent. The CEO, after all, isn’t himself a denials representative. Few CEOs have likely ever done a pre-auth or claims denial, and most would be lost if you stuck them at a claims desk with a computer, a phone, and a fax machine (yes, we still uses faxes) and told them to get to work.
So consider a particular death-by-denial. It’s possible that it was caused by the negligence of some claims rep or some clinician or someone way down in the org chart, or even with some vendor. The rep should have authorized treatment, but didn’t read the documentation carefully, or was in a bad mood that day, or whatever, and didn’t authorize treatment. The consequences ramified, and the patient died. You can’t blame the CEO for that one. If and when the CEO is guilty (on this interpretation), it’s only because we can peg some local malfeasance on him, not simply because he’s the CEO. And likewise the rep.
I don’t think anyone can deny that a CEO can in principle be guilty of a malfeasance that makes him guilty of wrongful death, so I won’t belabor it. But what about “low level people”?
As someone who operates at the lowly level of the denials rep, I think it’s obvious that a front-line rep or clinician or whomever can screw up a claim, and even get people killed, without implicating the CEO.*** All large organizations have this feature. When I worked in a hospital OR a few years ago, I accidentally almost set off the fire alarm while using a robotic ultraviolet lamp to disinfect an equipment storage room. (I started the robot without placing a special shield on a particular sensor of the fire detection system.) Had the alarm gone off, the sprinkler system would have activated during patients’ surgeries, with unknowably terrible consequences for those patients (and, essentially, the ruination of the OR itself). Could we blame the CEO of the health system or Chief Medical Officer of the hospital for that? Not really.****
And what if a housekeeper or janitor accidentally throws out a claim, and that leads to no prior authorization, which obviates treatment and leads to death? As someone who’s been in housekeeping, in janitorial services, and in denials, trust me: the first part of that chain can definitely happen. I leave this one as an exercise. Do we shoot the janitor?
I can’t help adding a little proviso here. Though some commentators have written about the Thompson killing as though pre-authorizations or denials are unique to private insurance, that’s not true. They are in fact common to all insurance payers, including Medicare and Medicaid. All payers strive to control costs. (It’s misleading to call them “payers.”) I so far have not seen anyone suggest that the Administrator of the Center for Medicare and Medicaid Services should be killed for wrongful-death denials by Medicare or Medicaid. But Medicare and Medicaid deny, too.
Granted, traditional Medicare uses prior authorization denials to a much lesser degree than Medicare Advantage or private insurance, but if you combine “much lesser degree” with high volume, you still get something. If we knew where to look, and had access to their data, we could probably find some prior authorization wrongful-death denials in the Medicare database. Remember that we don’t really know whether UHC’s prior authorizations have killed anyone, either. Remember also that Mangione was not a UHC policy holder, and is not dead. So the heuristic I’ve adopted here, of looking at his assassination of Thompson as retaliation for wrongful deaths, is a little artificial. At any rate, if speculations and extrapolations can justify assassinations in the one case, they can justify them in others.
While we’re on this subject, people get denied for disability (in the sense of not getting disability after making an application), but I’ve never heard anyone valorize the assassination of the administrative law judges who oversee SSI or SSDI cases. And some of them can get pretty callous and mean-spirited. People get denied for a lot of other things, too: where there are high-stakes applications, there are denials. So there seem to be a lot of people to kill out there: UHC is just the tip of a large iceberg. There seems to be some cognitive dissonance over option (b) that may be worth working out: is it that we depend for our lives on bureaucracies that systematically kill us, or is it that those bureaucracies occasionally let some die because they unavoidably fall through the cracks? Another question to add to our list.
By the way, I am not suggesting that anyone actually kill the Administrator of CMS or any administrative law judges. So if you draw that inference, you’re on your own. No need to mention my blog at your inquest.
(c) Everybody is responsible for systemic effects. A third possible answer, half suggested by (b), is that killing the CEO of UnitedHealthCare isn’t enough. It’s not the CEO of UHC that’s engaged in wrongful-death denials, but UHC itself. So if retaliatory killing is justified, we really should be addressing the root cause of the problem, meaning UHC itself–and likewise, Aetna, BlueCross, Cigna, Humana, their vendors, along with CVS, the CMS, the CDC, the FDA, maybe the Social Security Administration, and some of the bigger hospital systems while we’re at it.
After the wanton destruction of the health care system in Gaza, this should be an appealing prospect to many, particularly the civilizationally superior folk among us with pro-Israeli sensibilities. All we need is the handwaving claim that some guilty insurance execs are, like Hamas in the hospitals of Gaza, using insurance companies as “human shields.” With that claim in hand, abstracting from its truth or falsity in any particular case, we should be able to incinerate the entire health insurance industry and exterminate everyone in it within about a year or so, treating the cities they’re in as collateral damage (Chicago, Illinois; Minnetonka, Minnesota; Newark, New Jersey; most of Connecticut, etc.), maybe leveling the cities themselves, invading some neighboring countries, and creating a large scale refugee crisis of a couple million people in the bargain. Since at some level, we’re all responsible for everyone’s lack of health insurance coverage, maybe we can commit genocide against ourselves, and solve our problem that way.
Again, this is not really meant as advice.
(d) The role of complicity. A fourth answer would make use of the concept of complicity: maybe the relevant issue is not so much who is guilty of wrongful killing as who is complicit in it. To be complicit in wrongdoing is to contribute or facilitate or enable it in a secondary or indirect way. Though I actually think that complicity is the most plausible approach to the whole issue, discussing it would take me too far afield for this post, so let me save it for another day.
What I’ve done is just to sketch a framework for inquiry while leaving a lot undiscussed. Though I can’t claim to have done a comprehensive reading of every discussion of the Mangione/Thompson case, I’ve read enough to say that for the most part, what I’ve discussed here is not what’s being discussed out there. I prefer my approach to most of what I’ve read. Feel free to compare it with whatever else you’re encountering, and judge for yourself.
*Thanks to Sophia Trocentraisin for pushing me to be clearer than I was.
**For the claims in this paragraph, see this article.
***To clarify: I work in denials management, on the provider (i.e., hospital) rather than insurance side of the industry. My point is that my position on the provider side is at roughly the same level as that of a denials representative for an insurance company–closer to that level, at any rate, than to the managerial or executive level.
****For a similar case, see this story about a laboratory janitor who accidentally destroyed years of potentially groundbreaking scientific research at Rensselaer Polytechnic Institute due to a misunderstanding concerning the alarm system of a laboratory freezer. Such cases are in fact strikingly common in janitorial work, and arise in part because managers and executives grossly underestimate the complexity of the work itself.
I write here in my own name, on my own responsibility. I am not a spokesperson for my employer or any other organization.
Policy of Truth 
I think it’s odd that the (im)morality of retaliatory violence itself wasn’t discussed. I know it wasn’t the focus of this post, but the post seems to leave the reader with the implication that the badness of an individual (assuming it is unambiguously confirmed and crosses some threshold of badness) morally justifies someone to take vigilante action and murder them. Maybe that isn’t what you meant?
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I did discuss it, though. The whole post is structured around two possibilities.
(1) If Thompson committed a systematic series of wrongful killings, then Mangione’s killing him was justified.
(2) If Thompson didn’t commit a systematic series of wrongful killings, then Mangione’s killing him was murder (therefore wrong).
The issue then turns on whether Thompson did or didn’t commit a series of wrongful killings by presiding over the kind of denial that wrongfully killed people. Where I differ from most commentators is that I don’t think it’s obvious one way or another. But precisely because it’s not obvious, I argued, Mangione’s killing Thompson was probably wrong.
I don’t think anyone is in a position to issue a stronger verdict than “probably wrong.” I realize that there’s a camp out there that wants to hear an unequivocal verdict of “absolutely wrong” against Mangione. But I think such people are claiming to know something unknowable.
There’s no way for you or me to rule out the possibility that Thompson knowingly and voluntarily presided over a system that killed people through prior authorization denials, in order for UHC to maximize its profits. In fact, there’s a great deal of plausibility to the idea that he did. There just isn’t proof of it. Because proof is lacking, we’re forced into uncertainty about Thompson’s guilt. Since it’s not justifiable to kill someone when you’re uncertain of their guilt, Mangione was probably wrong to kill Thompson.
But being forced into uncertainty about Thompson’s guilt is not the same as affirming his innocence, for reasons I explained in the post. Though we’re forced to conjecture, once we take the evidence seriously, there are good reasons (not conclusive ones) for thinking that Thompson was responsible for a great deal of unnecessary misery and possibly some wrongful killing.
I deal with insurance companies at a much lower level than, say, the CEO. Even at this level, the bad faith and deception of the people one deals with are totally transparent. The following is a common occurrence: A patient needs a medical procedure done. The patient’s condition is extremely serious. The procedure required is very expensive, but is covered under the policy. Any rational person would expect the procedure to be covered per the policy. Yet the insurance company announces that the procedure is not “medical necessary,” confabulates a totally nonsensical, obviously dishonest reason why this is so, and then fights every attempt for years to prove its claims wrong.
It doesn’t just do this once or twice because it’s making an innocent mistake. It does this as a matter of self-conscious, deliberate, knowing strategy on thousands of accounts iterated across decades. Now consider the possibility that there is at least suggestive evidence that the corporation’s strategy is killing people. The possibility is brought to the company’s attention, but the company is unmoved. Patients are driven into bankruptcy. Hospitals are driven out of business. Yet the game goes on, and on, and on, making the same few people millions and millions of dollars with every turn of the wheel.
Are we supposed to believe that the CEO doesn’t know that this is happening? Of course he knows. He’s not just letting it happen. He’s making it happen. Had Mangione not shot Thompson, it’s likely Thompson would have gone his whole life making $10 million a year, lionized for his role as a great business leader. For what? For making bundles of money for UnitedHealthCare while destroying peoples’ lives by the thousands.
Imagine that we find conclusive evidence that the preceding protocol is not just bankrupting but killing people, that the CEO knows it, and that the CEO approves of it. In that case, would Mangione’s assassination have been wrong? My answer is “no.” It’s only because we lack that kind of evidence that it’s wrong. But suppose that we had it.
In that case, is the CEO merely being “bad”? No, he’s doing worse than that. Wrongfully killing people is more than mere naughtiness.
Is he unambiguously crossing some threshold of badness? He is. Wrongfully killing people is a serious injustice, not precisely equivalent to murder, but in the same moral ballpark.
Is assassinating the CEO murder under this scenario? No. The legal system may regard it that way, but substantively, it’s not murder. It’s Thompson who is engaging in wrongful killings, and Mangione who is stopping him. Stopping wrongful killing is not murder.
Is Mangione’s action vigilantism? Yes, but so what? If someone is systematically engaged in wrongful killings, and the legal system permits or encourages it, then vigilantism seems perfectly justified. The alternative is to let the wrongful killings continue forever. There are prudential reasons why you might want to let them continue forever, but such considerations can’t turn the assassination of a wrongful killer into murder.
About a month ago, I wrote a post about a medical malpractice case.
https://irfankhawajaphilosopher.com/2024/11/10/the-hard-domination-of-everyday-life/
Actually, the post describes several medical malpractice cases across decades, all engaged in by the same physician. Imagine for a moment that there was no medical malpractice system to stop her, and that hospitals kept hiring her despite her checkered history. Now imagine that someone had all the evidence against her that was used in the malpractice case. In that case, would it have been wrong to kill this physician? No. This is a person who’s spent her entire career getting away with near-murder. Someone had to stop her. If the law refuses, and there is no other option, someone else has to stop her, even if they have to kill her to do it. I would say that that principle holds across the board.
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So you ARE saying that if someone is sufficiently evil (and the law won’t or can’t deal with it) then any guy on the street is morally justified in killing him or her. That’s an invitation to chaos, especially since the people who will take up the call are the most deranged among us, and this morality will invite them to apply their deranged judgment to whether some individual lives or dies.
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“So you ARE saying that if someone is sufficiently evil (and the law won’t or can’t deal with it) then any guy on the street is morally justified in killing him or her.”
I certainly am saying that. Who wouldn’t? If someone is sufficiently evil, and the law won’t or can’t deal with it, you already have chaos. That’s what unregulated evil is: people running around committing evil while the law looks on. In that case, killing the source of the evil is not an invitation to further chaos, but an attempt to end the chaos already underway. Your comment seems to imply that if a sufficient evil is happening right now, we have an obligation to endure it. Whereas if we can imagine one in the future, that’s intolerable “chaos.” My point is that evil can be intolerably chaotic right now. When it is, any guy in the street can act to end it, using lethal force if necessary.
Just to repeat something I’ve said before: though I endorse the principle above, I don’t think it applies to the Mangione-Thompson case. So I’m not defending Mangione’s shooting Thompson. Mangione’s defenders have not proven that Thompson was guilty of intolerable chaos right now. More precisely, they haven’t shown that Thompson was guilty of systematic wrongful death. I have another post coming out fairly soon where I discuss this point in some detail.
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One more question, then I’ll let it rest. The moral justification of extra-legal vigilante killings (outside of self defense or in the case of a failed state) seems to me a pretty fringe position – the territory of extremist militia groups (left- wing, right-wing, or religious fundamentalist), for example. Do you agree? Are there semi-mainstream philosophers or legal theorists that support this position? If so, I would be interested in reading more on the topic. Thanks.
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It’s not a fringe position at all. Every school child in America is taught that a shooting on March 5, 1770 on Boston Commons was a “massacre” despite the fact that six of the eight shooters were acquitted in a jury trial, two were convicted, and the shooters were duly constituted law enforcement officers. They then take this event to be the catalyst of the vigilante action known as “The American Revolution,” and have celebrated it ever since.
Virtually all of the historiography on the American Revolution takes the legitimacy of the Revolution for granted. That’s certainly not a fringe position. It’s the founding event of the United States, taught as justified to hundreds of millions of schoolchildren for two centuries. The American Founders are widely venerated as statesmen, but the Revolution they led consisted of vigilante militias that acted contrary to law. Even the most conservative historians, e.g., Samuel Morrison, Gordon Wood or Richard Archer, take all of this for granted. Robert Middlekauff describes the American Revolution as “The Glorious Cause.”
Amazon.com: The Glorious Cause: The American Revolution, 1763-1789 (Oxford History of the United States Book 3) eBook : Middlekauff, Robert: Kindle Store
Many people defended vigilante action against slavery as justified. Both Emerson and Thoreau valorized John Brown. So did WEB Dubois. His biographer Evan Carton calls him “The Soul of America.”
Why read Patriotic Treason?
For something more contemporary, I would recommend Jason Brennan’s When All Else Fails. It has a narrow focus, but it makes the point.
Jason Brennan on When All Else Fails | Princeton University Press
The classic discussion, of course, is Locke’s defense of revolution in the Second Treatise, used to justify the Glorious Revolution in England.
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Thanks for the suggestions. I’ll take a look. The Second Treatise is incredibly powerful. When I finished the conclusion recently I was ready to jump up and foment Revolution right then and there and I had to talk myself down. Normally I’m pretty peaceful, but I can see how a society steeped in Locke’s rhetoric would justify the Revolution. Justified or not, however, a political revolution is different from an act of vigilante justice. The American Revolution was not started in order to target and kill an individual because of his evil (no matter how much they griped about George III). Locke himself described circumstances in which a revolution within a political society may be justified, but at the same time made it very clear that vigilante justice is only justified in the state of nature (where there is no society or state), but in an organized society individuals give up to the state the right to enact justice or use violence. A revolution may be necessary in extreme cases, but even a justified revolution remains an act of society and doesn’t revert individuals back to the state of nature in which there is no other option to vigilante justice.
I don’t think Locke’s Second Treatise supports vigilante murder, but I’ll check out your other sources.
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Our original question was whether killing someone extra-legally is a fringe view. My point in bringing up Locke was that it isn’t. Locke is just one prominent example of that, as are the others I mentioned. Consider some others.
Warfare takes place within a state of nature, not an organized legal setting. Virtually all Americans believe that the US (and its allies) has the right to engage in mass killing through warfare, regardless of the strictures of international law or the dictates of the UN. That’s obviously not a fringe view.
For the last sixty years (since 1967), the US has supported the Israeli occupation of Palestine. It’s been the explicit strategy of the Israeli government since 1967 to employ civilian settlers functioning as vigilantes to kill, rob, and terrorize Palestinians to solidify Israel’s conquests over these lands. Americans have no problem with this at all. They’ve voted for it over and over for almost sixty years. When Sirhan Sirhan assassinated RFK over this very issue–over RFK’s support for the Israeli conquest–it was Sirhan Sirhan who was condemned for killing RFK, not RFK who was condemned for sending the Israelis the weapons with which to kill Palestinians. Yet it is indisputable that Israel initiated the violence that led to the conquest, indisputable that it was an act of conquest, and indisputable that the conquest was solidified by vigilantes who killed people to do it. Sixty years of state policy in two countries is not a fringe position.
Try another example. It’s Hannukah right now. Turn to any American newspaper, and you’ll find a celebration of the meaning of that holiday. Yet what is Hannukah about? It’s a holiday that celebrates a vigilante uprising against established power (the Maccabees against the Seleucids). Is Hannukah a fringe holiday? How about Purim, which celebrates the same thing?
The electorate of the United States just elected a President who fomented an insurrection against the United States in which people were (predictably) killed. How can a view condoned by half the electorate of the US be a fringe view?
As to the issues you mentioned, Locke explicitly defends regicide in the Second Treatise, and was part of the Rye House Plot that aimed to assassinate King Charles II. He had no problem with assassination.
There is a difference between an attempted revolution and a one-shot vigilante assassination, but in this context, it strikes me as irrelevant. If the question is whether extra-legal killing is fringe or not, then the combination of those two kinds of killing is less fringe than any single one taken by itself.
And the distinction between the two kinds of killing isn’t that morally significant, either. It’s not as though killing-for-revolution is inherently more justifiable than one-shot-killing-in-a-vigilante-setting. It depends on the context. The killings that take place through an attempted revolution can be totally wrongheaded, whereas a one-shot vigilante assassination can be exactly justified. Compare any wrongheaded revolution of your choice to an attempt to kill the worst of the Jim Crow sheriffs, or to kill a Klan leader during one of the Klan’s lynching rampages. What you have there is a breakdown of law that justifies resort to self-help. Southern blacks did not in general engage in such vigilante activity (for prudential reasons), but they would have been perfectly justified if they did.
Incidentally, “the state of nature” has two different meanings in Locke. In one sense, it applies to areas. But in another sense, it applies to individuals. Two people can be in a state of nature vis-a-vis one another, even if they live in an area that is no longer officially a state of nature. If you and I meet in some desolate place in the US, and neither of us has a cell phone or other means of communication, and no one could come to assist us anyway, we are effectively in a state of nature vis-a-vis one another. A whole community could be in this situation. I have friends in West Bank villages that exist in a state of nature vis-a-vis the Israelis. There is no consented-to law or sovereign above them, just one set of individuals living in a village, and an army that functions as a pretended overlord. This would hold true no matter who declares themselves sovereign over the West Bank. They would remain in a state of nature until someone established a regime to which all under it consented, in some sense of “consent.”
Being committed to killing outside of the law is not a fringe position at all. Almost everybody believes in it. The fringe position is consistency about it.
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To fill out your last sentence, the fringe position is in not appreciating a distinction between vigilante killing as domestic justice (not defense) despite the existence of a functioning legal system (even if imperfect) versus killing in a war or political revolution. (Not to say that all wars or revolutions are justified – far from it.) Maybe yours is a virtuous and principled non-distinction, but it is fringe and in my opinion quite problematic.
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Your rebuttal of my position ignores what I actually said.
“To fill out your last sentence, the fringe position is in not appreciating a distinction between vigilante killing as domestic justice (not defense) despite the existence of a functioning legal system (even if imperfect) versus killing in a war or political revolution.”
The vigilante killing I was defending was a matter of defense, not of ex post facto revenge. The persons killed were, in every example I gave, engaged in wrongful killing that was ongoing. If you kill someone who is engaged in ongoing wrongful killing, you’re engaged in defense, not in ex post facto revenge.
Further, it’s a clear misreading to say that there is an “imperfect functioning legal system” in my examples. I stipulated in every case that there wasn’t one. Look again at the malpractice case. I said, “Imagine that there was no malpractice law…” How is no malpractice law equivalent to an imperfectly functioning legal system? No malpractice law is equivalent to no law governing malpractice, not to imperfect law doing so.
In the case of the Klan, the Klan had come, with the connivance of local law enforcement, to subvert the criminal code itself. Again, that’s not merely an “imperfectly functioning legal system,” but the wholesale subversion of the rule of law.
In the Brian Thompson case: if UHC was wrongfully killing people through denials, how is that compatible with a “functioning but imperfect legal system”? It’s not. There’s no such thing as an “imperfectly functioning legal code” in which people systematically get wrongfully killed, but there is no legal recourse for it. The point I made was that the “if” clause of the first sentence remains unproven. But if it was proven, it would prove that we lacked a legal system with respect to wrongful medical killings, not that we had an imperfect one. If someone is wrongfully killed, and there is no legal process for dealing with it, it’s illogical to equate “no legal process” with “some legal process, however imperfect.”
The same thing is true for the Gaza cases. In the case of Gaza, the United States is complicit in the commission of Israel’s genocide. Doing so is contrary to international law, and also to US domestic law. Forget international law if it’s too controversial. The Leahy Law is domestic and governs US aid to Israel.
https://www.justsecurity.org/96522/israel-leahy-law/
The United States government has been violating the Leahy Law (among others) with impunity, lying about it, and doubling down on its violations now for decades. Within the last year, it has become complicit in what has been called a genocide by Amnesty International, Human Rights Watch, Doctors without Borders, and dozens of qualified scholars. A government knowingly, dishonestly, and illegally engaged in genocide (while going out of its way to suppress dissent) is not merely an “imperfectly functioning government,” but a ruling class of criminals masquerading as a government–a ruling class much, much worse than the monarchy of King George III. A government engaged in genocide, like ours, is no different in principle from the Third Reich, Cambodia under Pol Pot, Serbia under Milosevic, or Rwanda under the Hutus. It deserves the same respect and invites the same fate.
Americans somehow manage to believe that it’s justifiable to start a war over an event like the British occupation of Boston–five people killed in the latter, most of the shooters acquitted in a jury trial–but that Americans engaged in systematic mass killing are exemplars of mere “imperfection” that everyone has to tolerate unto death. The fringe view is seeing that that combination of claims is incoherent, not that extra-legal killing is justifiable.
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I left one thing unaddressed, because I was away from home, and didn’t have my Locke with me:
I didn’t say that Locke supports “vigilante murder.” Murder is by definition wrongful, so almost no one advocates it. The original question was whether I was “saying that if someone is sufficiently evil (and the law won’t or can’t deal with it) then any guy on the street is morally justified in killing him or her.” I said I was, and gave Locke as an example of someone who agrees with me. Having reviewed the text, I think it’s clear that Locke is saying that: a tyrant who crosses a certain threshold can be killed. “A tyrant who crosses a certain threshold” is an instance of “someone who is sufficiently evil and the law won’t or can’t deal with it.” Killing the one is an instance of killing the other.
The argument is in chapter 18 of the Second Treatise, the chapter on tyranny. The discussion here is how to deal with a tyrant, rather than how to dissolve the government as such. After a certain point, the remedy for tyranny is to kill the tyrant. If you can solve your problem simply by killing him (and no more), there’s no need to go further and dissolve the whole government. So the text implies that in that case, assassination is clearly justified. There is no claim that killing is only justified within the context of a just war or revolution.
For reasons of prudence, Locke couldn’t be as explicit with examples as we’d like, but he makes it clear that Nero and Caligula could both have been assassinated (ST, 237). Nero was on the receiving end of a semi-failed assassination attempt, and Caligula was assassinated. Granted the Roman Senate declared Nero an enemy of the people before his near-assassination, and Caligula was assassinated by the Praetorian Guard, but these are incidentals. Locke’s text is perfectly consistent with the claim that anyone could have assassinated either of them. These are examples that Locke treats as so obvious that they barely require discussion.
For obvious reasons, Locke couldn’t say this in the Second Treatise, but he was involved in the Rye House Plot to assassinate Charles II (and James II). Locke was just an ordinary person (“any guy in the street”), and he regarded these two as sufficiently evil to be killed precisely because they were “the government,” and couldn’t be relied on to deal with the problem posed by their own governance. The problem had to do with the Plotters’ suspicion that Charles and James were going to turn a Protestant government Catholic. That problem, however problematic, falls far short of engaging in a series of systematic wrongful killings, the would-be justification for killing Brian Thompson. If killing Charles and James is consistent with the text (and I think it is), then killing a CEO engaged in systematic wrongful killings that the law won’t deal with is clearly so.
So is killing Charles/James consistent with the text? Locke defines a tyrant as someone who exercise power beyond right for his own benefit rather than the common good (ST 199). He makes clear that when a tyrant exercises a power of life and death over you that the law won’t deal with, you can kill him (ST 202). More generally, force may permissibly be opposed to unjust force (ST 204). Though there is a potential dispute about what this implies for the head of state in certain cases (ST 205), there’s no dispute about “subordinate magistrates” (ST 202). Actually, Locke quietly says, there’s really no dispute about any tyrannical magistrate, high or low–but this is a dangerous thing to say, and having said it once, he lets it go (ST 202). Tyrants shouldn’t be killed for trivial reasons, but “if a long train of actions show the council all tending” one way,” there’s no objection to assassination (ST 210).
Is that enough to kill Charles/James? Locke thought that the plot to turn Britain into a Catholic country would have involved a systematic violation of the religious consciences of Protestants. That violation, he thought, was enough to justify assassination. He thought assassination was justified despite the fact that in other respects, England was a perfectly functional commonwealth. Locke himself did not suffer in any appreciable way from the malfeasances of the government (until after the discovery of the plot). So there’s no implication that you can only assassinate a tyrant when society is at the verge of destruction or dissolution. You can do it if your head of state is about to turn your country into a Frenchified Catholic theocracy.
On Locke’s view, Shylock (in Shakespeare’s Merchant of Venice) would have been justified in killing Portia, Antonio, and the Duke of Venice in the famous court scene of that play for forcibly converting Shylock (or trying to convert him) to Christianity, even though they spared his life. The threat of forced conversion is far more direct in the play than it was in Locke’s suspicions of Charles II.
That’s a lower bar than my argument requires. Locke thinks you can kill to stop or prevent forced conversions. If so, you can certainly kill to stop or prevent wrongful killings. If Brian Thompson had an unregulated power of wrongful killing through UHC’s denials policy, he was a tyrant in Locke’s sense. If UHC’s policy was systematic but was not dealt with by government (and had little or no chance of being dealt with), that was a non-trivial reason for killing Thompson. Even if that political judgment was premature, killing Thompson would not have been murder. It just would have been a bad idea. Thompson would have been the one engaging in something like systematic manslaughter. Killing such a person is not murder even when it’s imprudent.
There are two potential complications here. One is that Locke had no concept of the modern corporation as a legal person with limited liability. The other is that a corporate CEO is not literally the King’s “subordinate magistrate.” So you could insist that a corporate CEO can’t be a tyrant and can’t be assassinated as a tyrant (though a government regulator or administrative law judge can). But that seems like pointless hairsplitting to me. If a theory permits an ordinary person to kill Charles II out of a fear that Charles will Make England Catholic Again, the same theory permits an ordinary person to kill a corporate CEO for engaging in systematic wrongful killings. If anything, Locke is overly permissive about assassination. He’s not a voice of moderation.
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