1. “Philosophers generally agree that … the force used must be necessary to avert the threat.” Lazar, Seth, Necessity in Self-Defense and War , 40 Phil. & Public Aff. 3, 3 (2012).CrossRefGoogle Scholar Notably, Lazar adopts an evidence-relative approach to necessity.

2. Jeff McMahan, Killing in War (2009), at 10.

3. For further articulation of the mechanics of forfeiture, see Ferzan, Kimberly Kessler, Forfeiture and Self-Defense , in The Ethics of Self-Defense (Weber, Michael & Coons, Christian eds., 2016)Google Scholar; David Rodin, War & Self-Defense (2002), at ch. 4. We need not pursue these nuances here.

4. I argue that forfeiture is best understood as a negative normative power in Ferzan, supra note 3, but I need not defend that stronger claim here. See generally Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (1978, 1919), at 36. Judith Thomson employs “power” in a capacious sense as well: “Following Hohfeld, I will say that a power is an ability to cause, by an act of one's own, an alteration in a person's rights, either one's own rights or those of another person or persons, or both.” Judith Jarvis Thomson, The Realm of Rights (1990), at 59.

5. McMahan, Jeff, The Limits of Self-Defense , in The Ethics of Self-Defense (Weber, Michael & Coons, Christian eds., 2016)Google Scholar. To the extent McMahan is amenable to liability for Ike, it contradicts his view of liability as instrumental, as I discuss in Section V. Victor Tadros also bases his theory on enforceable duties to “rescue,” and one does not have a duty to stop a bullet that does not exist. Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law (2011), at 326.

6. Otsuka, Michael, The Moral Responsibility Account of Liability to Defensive Killing , in The Ethics of Self-Defense (Weber, Michael & Coons, Christian eds., 2016)Google Scholar; McMahan, Jeff, The Basis of Moral Liability to Defensive Killing , 15 Phil. Issues 386, 395 (2005)CrossRefGoogle Scholar; Montague, Phillip, Self-Defense and Choosing Between Lives , 40 Phil. Stud. 207 (1981)CrossRefGoogle Scholar.

7. McMahan, supra note 6, at 395.

8. McMahan, supra note 5.

9. Some theorists advocate broader liability conditions. Jon Quong and Jeff McMahan believe that even some actors who behave nonnegligently may be liable to defensive killing. See Quong, Jonathan, Liability to Defensive Harm , 40 Phil. & Public Aff. 44, 68 (2012)CrossRefGoogle Scholar; McMahan, supra note 6, at 387.

10. See, e.g., Frowe, Helen, A Practical Account of Self-Defence , 29 Law & Phil. 245, 248 (2010)CrossRefGoogle Scholar; Quong, Jonathan, Killing in Self-Defense , 119 Ethics 507, 519 (2009)CrossRefGoogle Scholar.

11. McMahan, supra note 6, at 391. Cf. Ferzan, Kimberly Kessler, Justifying Self-Defense , 24 Law & Phil. 711 (2005)CrossRefGoogle Scholar (arguing that necessity only requires that the defender believe force is necessary). The argument here grounds and elaborates how it is that someone may lose rights because of another's beliefs. As I discuss in Section V, meeting McMahan's challenge requires not only showing that Ike forfeited rights but also that harming Ike is all-things-considered permissible. Although I will gesture at the latter half of this question in Section V, this paper aims solely to establish that Ike has forfeited rights.

12. The imprecision is the result of the difference between promising and other normative powers. It is easy to forfeit something you have. But with respect to promising, a new relationship is forced upon you.

13. McMahan, supra note 6.

14. Tadros, supra note 5, at 188–189.

15. Rodin, David, The Reciprocity Theory of Rights , 33 Law & Phil. 281 (2014)CrossRefGoogle Scholar. It would certainly be possible to expand the notion of reciprocity to include a theory such as the one I propose here. But the “I do not have to respect your rights because you will otherwise violate my rights by harming me” account cannot explain The Bluff and thus we do need a richer account.

16. See also Uwe Steinhoff, Just War Theory: Self-Defense, Necessity, and the Ethics of Armed Conflicts (book manuscript on file with author), at 35 (expressing similar discomfort with this move).

17. See sources cited in note 9, supra.

18. Unless, of course, she recklessly misleads him into believing that she is consenting, as discussed in this article.

19. I thank Victor Tadros for assistance with this formulation.

20. Thomson, supra note 4, at 309–310.

21. J.L. Austin, How to Do Things with Words (2d ed. 1975), at 14.

22. Id. at 16.

23. Hurd, Heidi, The Moral Magic of Consent , 2 Legal Theory 121 (1996)CrossRefGoogle Scholar; Alexander, Larry, The Moral Magic of Consent (II) , 2 Legal Theory 165 (1996).CrossRefGoogle Scholar

24. For various constructions, see, e.g., Peter Westen, The Logic of Consent: The Diversity and Deceptiveness of Consent as a Defense to Criminal Conduct (2004), at 48 (consent as desire state); Alexander, supra note 23, at 172 (consent as choice “to forego valid rights-based moral objections to the act”).

25. See Dougherty, Tom, Yes Means Yes: Consent as Communication , 43 Phil. & Public Aff. 224 (2015)CrossRefGoogle Scholar. For a probing critique of the puzzles created by the dual view, see Alexander, Larry, Hurd, Heidi & Westen, Peter, Consent Does Not Require Communication: A Reply to Dougherty , 35 Law & Phil. 655 (2016).CrossRefGoogle Scholar

26. See Dempsey, Michelle Madden, Victimless Conduct and the Volenti Maxim: How Consent Works , 7 Crim. L. & Phil. 11 (2013).Google Scholar

27. See Hurd, Heidi M., Was the Frog Prince Sexually Molested? A Review of Peter Westen's The Logic of Consent , 103 Mich. L. Rev. 1329 (2005).Google Scholar

One theorist who takes the view that this is a verbal act is David Owens. Owens claims the “verbal act” is its own normative power that we then have an interest in because it is the mechanism by which we waive our rights. Thus, he asks and answers, “can sex that has been chosen constitute rape? It must be so if the interest that generates the wrong of rape is an interest in being wronged by the sex unless you declare otherwise. And it is so. Someone chooses to be raped when they intend that the rapist have sex with them after they have explicitly refused their consent.” David Owens, Shaping the Normative Landscape (2012), at 181.

28. For further defense of this view as consistent with criminal law and tort law, see Ferzan, Kimberly Kessler, Consent, Culpability, and the Law of Rape , 13 Ohio St. J. Crim. L. 397 (2016).Google Scholar

29. Alexander, supra note 23, at 165 (“one who cannot alter others’ obligations through consent is not fully autonomous”).

30. Although Larry Alexander objects to the term “acquiescence” because he takes it to connote a submissive stance, we concur about the content of the choice. See Alexander, Larry, The Ontology of Consent , 55 Analytical Phil. 102 (2014).CrossRefGoogle Scholar

31. We should distinguish consent from requests. Consent waives a claim right; requests waive claim rights and generate positive reasons for action. It is the difference between my allowing you to cut through my backyard to the street (consent) and my inviting you to a dinner party (request). Cf. Enoch, David, Giving Practical Reasons , 11 Phil. Imprint 1 (2011).Google Scholar

32. “[C]onsent creates a Hohfeldian ‘privilege’ to engage in an action that would otherwise be wrongful.” Westen, Peter, Commentary: Some Confusions About Consent in Rape Law , 2 Ohio St. J. Crim. L. 333, 334 (2004)Google Scholar. Owens, supra note 27, at 165 (“consent involves not the granting of a right but just the waiving of it”).

33. Ultimately, you may disagree with my view that consent is willed acquiescence. However, to set the stage for a conflict between internal state and outward appearance, something I believe possible for both consent and abandonment, it was worth spending some time analyzing insincerity if consent is an internal mental state. Moreover, the argument below would not need further emendations for those who adopt a dual view, such as Tom Dougherty. Nevertheless, even if you take consent to be a speech act, my argument will run through as we see when we get to promising—a case where there is widespread agreement that the normative power is exercised through action. Even the speech act view invites the question of why this Austinian infelicity is normatively efficacious—that is, why insincerity does not void the act. Under this latter understanding of normative powers, this article may be viewed as an explanation of why insincere intentional invocations are normatively efficacious. In Section IV.C, I argue that the reason why insincere actions are normatively powerful is better explained by my view than by a view that takes there to be one justification that covers sincere and insincere actions alike.

34. 28 N.E. 266 (Mass. 1891).

35. Restatement (Second) of Torts §50 (1965).

36. Compare Ray v. Bowers, 2009 WL 4893209 (D.S.C. 2009), in which a college senior pursued her psychology professor, began a sexual relationship with him, and later sued for harassment, claiming that she only continued the relationship for fear of injury to her grade. She admitted that the defendant never gave any indication her grade would be impacted and agreed that “a fair characterization of her behavior [was that she was] pretending it was welcome as far as [the defendant] was concerned.” Admittedly, there are questions here about the power dynamic, the possibility of effective consent, and the potential absence of culpability on her part. But the point remains that there are cases of insincere consent where putative victims seek to pretend to exercise a normative power while maintaining that it was not truly exercised.

37. J.E. Penner, The Idea of Property Law (1997), at 78.

38. Cf. id. (“Abandonment is a permanent decision not to take advantage of the general duty in rem prohibiting interference in respect of a particular thing abandoned.”); Peñalver, Eduardo, The Illusory Right to Abandon , 109 Mich. L. Rev. 191, 197 (2010)Google Scholar (“Rather than understanding this physical separation as an essential component of the legal concept of abandonment, however, it would be more accurate to view the intent unilaterally to terminate rights as definitive of abandonment.”).

39. Indeed, the extreme difficulty in abandoning property because you either own the property on which it is placed or someone else does has led Eduardo Peñalver to conclude that abandonment is quite rare and conveyances are the actual norm. Peñalver, supra note 38, at 203. I discuss gifts below in the text and nothing for our purposes turns on the correctness of his observation. For an alternative perspective, see Stahilevitz, Lior Jacob, The Right to Abandon , 158 U. Pa. L. Rev. 355, 414–415 (2010)Google Scholar.

40. 1 Am. Jur. 2d, Abandoned, Lost, and Unclaimed Property §10 (2012); Linscomb v. Goodyear Tire & Rubber Co., Inc. 199 F.2d 431 (8th Cir. 1952); Cash v. Southern Pacific RR Co., 123 Cal. App. 3d 974 (1981).

41. Good faith purchasers will lose to original property owners, despite their reasonable beliefs. See O'Keefe v. Snyder, 416 A.2d 862 (N.J. 1980); see also Peñalver, supra note 38, at 196 (“The focus of the standard test is on the subjective intention of the owner.”).

42. For the legal standard for acquisition of abandoned property, see Hawkins v. Mahoney, 990 P.2d 776 (1999).

43. Gifts require donative intent, actual or constructive giving that relinquished dominion and control, and acceptance by the donee. Kenyon v. Abel, 36 P.3d 1161 (Wyo. 2001).

44. Id.

45. 30 N.J.L. 152 (N.J. 1862).

46. See id.:

47. Shiffrin, Seana Valentine, Promising, Intimate Relationships, and Conventionalism , 117 Phil. Rev. 481, 502 (2008)CrossRefGoogle Scholar; see also Kraus, Jody S., The Correspondence of Contract and Promise , 109 Colum. L. Rev. 1609 (2009)Google Scholar (“Personal sovereignty therefore counts the moral capacity to undertake self-imposed moral responsibilities as a basic individual liberty.”).

48. Shiffrin, supra note 47, at 500.

49. Cf. Essert, Chris, Legal Powers in Private Law , 21 Legal Theory 126 (2015)CrossRefGoogle Scholar.

50. In the same way that we might doubt one can intend what one does not believe one can do, one also cannot commit to do something one does not believe that one will do. I take this to be a very thin requirement, though. One can believe it unlikely, but cannot believe it impossible. I do not think that to promise, one needs to believe that one will perform the action. Indeed, sometimes the effect of promises is that the very act of promising itself increases the likelihood that one will perform. A promise to one's child that if he stops cracking his knuckles one will stop snacking on potato chips itself increases the likelihood one will stop snacking. See Owens, supra note 27.

51. Ian Ayres & Gregory Klass, Insincere Promises: The Law of Misrepresented Intent (2005), at 19.

52. Id. at 22.

53. Restatement (Second) of Contracts §19.

54. John R. Searle, Speech Acts: An Essay in the Philosophy of Language (1969), at 62.

55. For further exploration, see Ferzan, supra note 3.

56. Giles v. California, 554 U.S. 353 (2008).

57. John Simmons, A., Locke and the Right to Punish , 20 Phil. & Public Aff. 311, 335 (1991)Google Scholar. My own view is that the aggressor's conduct directly impacts the defender in a way that allows the defender to engage in defensive action. I do not rely on the more systemic view of forfeiture that Simmons endorses, whereby one forfeits because one treats everyone unfairly.

58. T.M. Scanlon, What We Owe Each Other (2000), at 298, 318.

59. Id. at 322.

60. I owe the example to Larry Alexander.

61. There may be additional wrinkles in these cases that I am not considering here. But I am open to this justification extending beyond the cases I discuss (just as Scanlon's principles extend beyond the promising context). I do not see anything prima facie implausible about such extensions.

62. And, forfeiture by insincere act is only applicable when such a remedy is available. If A tricks B into believing that C has consented to an act, B's only remedies are against A, not C, and thus forfeiture by insincere act would not apply. Moreover, to the extent that you believe that B is wronged by A, this further justifies my claim that a remedy is required. And, with respect to the cases I discuss, invoking that normative power will be directly responsive to the wrong.

63. Cf. Fennell, Lee Anne, Forcings , 114 Colum. L. Rev. 1297 (2014).Google Scholar

64. Compare People v. Young, 183 N.E.2d 319 (N.Y. 1962).

65. Larry Alexander & Kimberly Kessler Ferzan, with Stephen J. Morse, Crime and Culpability: A Theory of Criminal Law (2009), ch. 3; Moore, Michael S. & Hurd, Heidi M., Punishing the Awkward, the Weak, the Stupid, and the Selfish: The Culpability of Negligence , 5 Crim. L. & Phil. 147 (2011).Google Scholar

66. Hurd, Heidi M., Finding No Fault in Negligence , in Philosophical Foundations of Tort Law (Oberdiek, John ed., 2014), at 387.Google Scholar

67. Enoch, David, Tort Liability and Taking Responsibility , in Philosophical Foundations of Tort Law (Oberdiek, John ed., 2014), at 259.Google Scholar

68. Id.

69. It is worth noting that many theorists, including Otsuka and McMahan, think that such mistaken self-defenders can themselves be liable to defensive force. Otsuka, supra note 6; McMahan, supra note 6.

70. Ferzan, Kimberly Kessler, Culpable Aggression: The Basis for Moral Liability to Self-Defense , 9 Ohio St. J. Crim. L. 669 (2012)Google Scholar

71. Kraus, supra note 47, at 1620.

72. An anonymous reviewer raises the following objection: If Anna recklessly leaves her backpack in the trash can and the city then dumps the trash can in a landfill, Anna does not seem to have a claim, but who, we might ask, is being misled? This is complicated. First, with property, typically one does not abandon unless one intentionally does so. For instance, in Linscomb v. Goodyear Tire & Rubber Co., Inc., 199 F.2d 431 (8th Cir. 1952), the plaintiff had a warehouse fire and then sold the remaining debris. As it turned out, there were tires under the rubble. The court held the plaintiff did not intend to abandon the property and could recover the tires. So, if no one was misled and took a property claim to Anna's backpack, I would argue that it is still hers. There is then a separate question whether she may recover for damages to her property. Here, her reckless behavior may be sufficient to negate her entitlement to damages, irrespective of the fact that because there was no uptake, there was no transfer in the claim right to the property.

73. Notice that irrespective of whether the clerk believes Ike, Ike will warrant the appropriate punishment for causing fear or attempting to cause fear. He might warrant additional punishment for risking death or injury to others by posing as a threat. These questions about Ike operate irrespective of whether the clerk believes the threat. But Ike only forfeits his right to those who believe his attack is real because of his action.

74. Of course, we might alter the friend's calculations. What if he thinks there is a chance that the clerk will respond with a gun, and then miss and hit a bystander? But then the assault is no longer what is grounding the permissible use of force.

75. Given that both lack of culpability and lack of wrongdoing relieve a defendant of criminal responsibility, we should not read into statutes that allow defenders to use deadly force against attacks that the fear itself is sufficient to warrant deadly force. It is equally plausible that the honest and reasonable belief renders the defender nonculpable.

76. I argue for this in Ferzan, Kimberly Kessler, Provocateurs , 7 Crim. L. & Phil. 597 (2013)Google Scholar. It is the position of the criminal law.

77. As a matter of legal doctrine, estoppel is less precise. As Doug Laycock notes, “Estoppel arose in equity, waiver in the common law of contracts. Waiver emphasized the intentional relinquishment of a known right; estoppel emphasized reliance and prejudice. But each doctrine has spread out both in its range of application and in the bases on which it will be found, until the two defenses are substantially overlapping.” Douglas Laycock, Modern American Remedies: Cases and Materials (2010), at 954.

78. Neil MacCormick & Joseph Raz, Voluntary Obligations and Normative Powers, 46 Proceedings of the Aristotelian Society, Supplementary Volumes 82–83 (1972).

79. Kraus, supra note 47, at 1621–1624.

80. Id. at 1625.

81. Scanlon, Thomas, Promises and Practices , 19 Phil. & Public Aff. 199 (1990)Google Scholar; Hurd, Heidi M., Promises Schmomises , 36 Law & Phil. 279 (2017).CrossRefGoogle Scholar

82. Kraus, Jody S., Personal Sovereignty and Normative Power Skepticism , 109 Colum. L. Rev. Sidebar 126 (2009)Google Scholar; Shiffrin, supra note 47; Charles Fried, Contract as Promise: A Theory of Contractual Obligation (1981), at 16.

83. Alan Wertheimer, Consent to Sexual Relations (2003); Westen, supra note 25.

84. I am working on such a paper. Kimberly Kessler Ferzan, Defensive Killing Without Defensive Reasons (draft on file with author).

85. An additional wrinkle to which I cannot do justice is the question of whether Ike would be permitted to cause a very minor harm to prevent the clerk from killing him. Here, we might think that even if his interest is not protected by a right, that interest (his life) is sufficiently weighty that he may use a small amount of force. But I would think that this is true even when the threat was real (assuming the latter harming is not being employed to accomplish the goal of killing the clerk). Alternatively, we might think that Ike does wrong the clerk (he would certainly need to pay damages) but that he is excused under the circumstances.

86. McMahan, supra note 5.

87. McMahan, Jeff, Targeted Killing: Murder, Combat or Law Enforcement?, in Targeted Killings: Law and Morality in an Asymmetrical World (Finkelstein, Claire et al. eds., 2012), at 140.Google Scholar