Lesser Evils, Mere Permissions and Justifying Reasons in Law

This Chapter is concerned with cases in which we are justified in performing an otherwise prohibited action but not required to perform it. My discussion focusses on cases in which conduct is permitted because it amounts to a ‘lesser evil’. What interests me is the curious nexus that these cases illustrate between justifying reasons and the conclusion that conduct is either permitted or required. So-called reason-based or ‘reasons-first’ accounts hold that our normative conclusions—our conclusions about what we are required to do and what is permissible—are explained by our practical reasons. It is difficult to offer a reason-based account of lesser evils justifications that does not collapse the distinction between the required and the permissible with respect to justified conduct. Some justifying reasons generate mere permissions, rather than requirements. I consider several prominent attempts to account for the distinction. I conclude by suggesting that none of these attempts is adequate without the further concession that some reasons lack deontic or requiring force