Is there a "right" to self-defense?

Criminal Justice Ethics

Volumn 23, Issue 1, 2004, Pages 20-32

  Kaufman, Whitley ^a  

^a UNIVERSITY OF MASSACHUSETTS   (United States)

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EID: 79957005255     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129X.2004.9992157     Document Type: Article

References (93)

1. Judith Jarvis Thomson, Rights, Restitution, and Risk (Cambridge: Harvard University Press, 1986), 44. The idea of a natural right should be distinguished from that of a positive right, i.e., a right explicitly created by a society's laws. A natural right is a right prior to and independent of the explicit creation of a positive right, and in fact grounds and justifies the creation of the positive right (I leave aside the difficult question of the metaphysical status of such natural rights; that is a further problem for the rights approach). It should be obvious that invoking positive rights will be of no use in justifying self-defense, for it would merely push the question back: why is society morally justified in creating such a right? Of course, we will have occasion to refer to positive rights to self-defense in this essay, but for purposes other than morally justifying self-defense (e.g., as evidence of what common sense morality and tradition hold as to the content of the right to self-defense).
2. Just a few examples of some of the controversies are as follows: need a person retreat from an encounter, if he is not in his home? May he use deadly force in his home, even if he knows the intruder is unarmed? May a policeman use deadly force to stop a fleeing felon? Does the imminence requirement hold in the case of battered women? May one use force in defense of personal property? May one harm innocent bystanders in the course of protecting oneself; if so, how many?
3. Wayne LaFave & Austin Scott, Criminal Law, 2nd. edn. (Minnesota: West Publishing,1986), Sect. 5.7.
4. Suzanne Uniacke, Permissible Killing (New York: Cambridge University Press, 1994), 6.
5. Hugo Bedau, The Right to Life, The Monist 52 (1968): 550-572 for a discussion of the natural rights thinkers on selfdefense. Modern thinkers often assert similar fundamental rights,
6. Warren Quinn, in The Right to Threaten and the Right to Punish, in Punishment, ed. A. John Simmons (Princeton, NJ: Princeton University Press, 1995): 47-93. Quinn asserts a general right of self-protection or self-defense which he attempts to use to justify punishment.
7. Jeremy Bentham, Logical Arrangements, in Works ed. J. Bowring (Edinburgh: William Tait, 1843), Vol. III, 293; cf. also Vol. X, 518.
8. Uniacke, Permissible Killing, 177.
9. Sanford Kadish also resorts to a form of specification, arguing for a right to resist aggression (though obviously his specification is not sufficient: he must mean a right to resist unlawful aggression).
10. "Respect for Life and Regard for Rights in the Criminal Law", California Law Review 64 (1976): 885.
11. Phillip Montague's critique of the similar ceteris paribus strategy, Punishment as Societal Defense (Lanham, MD: Rowman & Littlefield, 1995), 32.
12. CF. Thomson, Rights, Restitution, and Risk, 37 ff.
13. George P. Fletcher, The Right to Life, The Monist 63 (1980):135-55
14. Andrew Ashworth, "Self-Defence and the Right to Life", Cambridge Law Journal 34, no. 2 (1975): 282-307
15. Uniacke, Permissible Killing, Chapter 6: Self-Defence and the Right to Life; cf. also Permissible Killing, 178: My right of self-defence. derives directly from my right not to be killed.
16. Bedau, The Right to Life, 559.
17. Michael Thompson, Self-Defense and Relations of Domination, University of Pittsburgh Law Review 57 (Spring, 1996): 678.
18. Ashworth, Self-Defence and the Right to Life, 287.
19. George Fletcher's The Right and the Reasonable, Harvard Law Review 98 (March 1985): 949, in which he asserts the justifiability of deadly force in self-defense, but leaves undefined what the right at stake is (at one point he refers to the criteria of security and personal freedom, 969).
20. Robert Schopp, who sometimes seems to interpret the right as one of dignity or self-respect: an aggressor may be attacked because of his imputation of lesser status to his victim, because he denies the victim's status as a person, Self-Defense, in In Harm's Way, ed. Jules Coleman (Cambridge, UK: Cambridge University Press, 1994), 270.
21. Stuart Green, Castles and Carjackers: Proportionality and the Use of Deadly Force in Defense of Dwellings and Vehicles, University of Illinois Law Review 1999, no. 1 (1999):
22. Green's view raises the question whether a violation of honor or dignity permits engaging in a duel to restore one's honor, as was traditionally thought. Another example of the confusion on this point is seen in Kadish, who asserts a right to resist aggression, but doubts whether this right is governed by the principle of autonomy or the principle of proportionality. Kadish, Respect for Life and Regard for Rights in the Criminal Law, 888. But this is a category confusion-proportionality is a constraint on autonomy, not an independent source of the right. Elsewhere Kadish obscurely states that the right to resist aggression rests to some extent on the principle of autonomy (896).
23. discussion in Green, Castles and Carjackers, 24 ff.
24. George P. Fletcher, Rethinking Criminal Law (Boston: Little, Brown, 1978), 868.
25. Nancy Davis, Abortion and Self-Defense, Philosophy & Public Affairs 13 (Summer, 1984): 175-207.
26. The discussion in Kadish, Respect for Life and Regard for Rights in the Criminal Law. Kadish puzzles over this very question without, however, attempting an answer (p. 899).
27. See the discussion in Green, Castles and Carjackers, 35 et seq.
28. Schopp, Self-Defense, 267.
29. My use of the term forfeiture reflects the dominant approach among rights theorists, although many other terms might be used (see for example the list given in the text accompanying n.32, below). However, it is important to note that the question is not merely one of word choice. The idea of forfeiture is that the right of the aggressor has somehow disappeared, been given up, or eliminated, so that in attacking him we are not violating or interfering in any way with his right. The idea of forfeiture must therefore be contrasted with the idea of rights being overridden, an idea in which the right of the aggressor remains but is somehow outweighed by other concerns. Most rights theorists opt for forfeiture rather than overriding for a simple reason: the very idea of a right is that it is a trump and is not supposed to be overridable, either for the sake of good consequences or even, as Robert Nozick explains, to minimize the total violation of rights in a society.
30. Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 28-30. For more discussion of this absolutist feature of rights doctrine, see Section III of this essay.
31. Schopp is an exception here, denying that he needs a theory of forfeiture to justify taking away someone else's right to life and liberty, Self-Defense, 268. See my criticism of his position below at p. 25. Compare also Kadish, Respect for Life and Regard for Rights in the Criminal Law, 885, where he attempts to argue that he does not need a forfeiture account, since to hold that an aggressor has a right to life would be incoherent, since it would contradict the theory that gives the victim the right to kill him. The patent circularity of this argument hardly needs pointing out. Indeed, it is remarkable how often forfeiture doctrine is treated as distinct from natural rights as an account of self-defense.
32. Green, Castles and Carjackers.
33. Uniacke, Permissible Killing, 195 n.3 for a discussion of the inalienability issue. Bedau also discusses the problem of the inconsistency of inalienability and forfeiture, The Right to Life, 567.
34. Fletcher, The Right to Life, p. 143. Some writers still utilize the notion of forfeiture as akin to outlawry. James Rachels, for example, argues that Hitler could legitimately have been assassinated, since he had forfeited all of his rights, and we may regard ourselves as released from any obligations that we have had toward him. Rachels, Political Assassination, in Assassination ed. Harold Zellner (Cambridge: Schenkman, 1974), 16.
35. Bedau, The Right to Life, 570.
36. Bedau, The Right to Life, 570.
37. Richard L. Lippke, Criminal Offenders and Right Forfeiture, Journal of Social Philosophy 32, no. 1 (Spring 2001): 78-89.
38. Alan Goldman, The Paradox of Punishment, in Punishment, ed. Simmons, 33.
39. Tziporah Kasachkoff, "Killing in Self-Defense: An Unquestionable or Problematic Defense?" Law and Philosophy 17 (1998): 515.
40. I assume here that causing foreseen deaths in the course of self-defense does not raise fundamentally different sorts of justificatory issues, at least in the context of a rights theory, for innocent bystanders surely have a right to life and bodily integrity, and this must place a limit on what actions I may take even in protecting myself. Kadish (who accepts this assumption), simply gives up on the rights doctrine in this context, and resorts to utilitarian calculation to account for the status of innocent bystanders. Respect for Life and Regard for Rights in Criminal Law, 890.
41. Uniacke, Permissible Killing, 194; cf. 208.
42. David Rodin claims he has dispatched this objection by declaring that the right to self-defense is relational and therefore may depend on particular facts such as whether the defender is sufficiently fleet-footed to escape without using force. It is, however, difficult to see how calling the right relational is any more than a verbal solution. Rodin, War and Self-Defense (Oxford: Clarendon Press, 2002), 76.
43. Schopp, Self-Defense, 271.
44. Kasachkoff, Killing in Self-Defense, 519.
45. Jeff McMahan raises an even more bizarre problem: the (innocent) human projectile, against which one may defend oneself. Self-Defense and the Problem of the Innocent Attacker, Ethics 104 (January 1994): 252-90. As McMahan says, the rights theory must hold that one can violate a right not only without culpability but even without agency (276).
46. Ashworth, Self-Defence and the Right to Life, 305.
47. McMahan's discussion of this problem, Self-Defense and the Problem of the Innocent Attacker, 275. The same issue arises as well for the case of mistaken self-defense: the object of the mistake can surely defend himself against the mistaken attacker.
48. John Q. LaFond, The Case for Liberalizing the Use of Deadly Force in Self-Defense, University of Puget Sound Law Review 6 (1983), 237-84.
49. Kasachkoff accuses Uniacke as well of simply begging the question on this issue, Killing in Self-Defense, 518 n.12. Fletcher also raises the related problem regarding whom the right is forfeited to. A satisfactory theory must explain why the right is forfeited to a person who mistakenly believes one is an aggressor, but not to a bystander who does not make that mistake, The Right to Life, 143. Cf. also Schopp, Self-Defense, 268, implying that the forfeiture theory seems to allow retaliation when the threat is over.
50. CF. McMahan, Self-Defense and the Problem of the Innocent Attacker, 278: There is, in fact, no independent theory of what constraints there are or what rights people have, nor any independent theory of forfeiture.
51. Montague, Punishment as Societal Defense, 118-20 (criticizing forfeiture accounts) and Lippke, Criminal Offenders and Right Forfeiture, criticizing the forfeiture idea in the context of justifying punishment.
52. Mary Ann Glendon, Rights Talk (New York: Free Press 1991), 41.
53. Glendon, Rights Talk, 9.
54. Glendon, Rights Talk, 171.
55. Glendon, Rights Talk, 16.
56. Larry Alexander, Justification and Innocent Aggressors, Wayne Law Review 33 (1986-87): 1179. It is not clear whether he means the phrase to act as a qualification, such that rights in general may be in conflict. In any case, the assertion seems clearly wrong: a person reasonably but mistakenly believing that he is endangered by another has a right to act in self-defense, but the other person equally has a right to defend himself. A person with a mistaken belief that another is a deadly aggressor has a right to (putative) self-defense, but the object of his attack surely may defend himself against this attack.
57. Fletcher, The Right and the Reasonable, 979.
58. John Locke, Treatise of Civil Government, cited in Fletcher, Basic Concepts of Criminal Law (New York: Oxford University Press, 1998), 136.
59. George Fletcher, Proportionality and the Psychotic Aggressor, Israel Law Review 8, no. 3 (1973): 381.
60. Schopp, Self-Defense, 282.
61. Alexander, Justification and Innocent Aggressors, 1502.
62. Alexander, Justification and Innocent Aggressors, 1501.
63. Cf. also his The Philosophy of Criminal Law, in The Oxford Handbook of Jurisprudence, ed. J. Coleman and S. Shapiro (New York: Oxford University Press, 2002), 846 (any requirement that the defender cede his rights to a culpable aggressor are questionable). In the context of punishment, Alexander also advocates an absolutist account of protecting one's rights. So long as notice/due warning is given, preventive force against those violating one's rights need not be restrained by either the proportionality or the necessity provision. Thus a sheriff can kill trespassing sunbathers on the courthouse lawn with a machine gun if he chooses. Larry Alexander, The Doomsday Machine: Proportionality, Punishment, and Prevention, The Monist 63, no. 2 (April 1980): 213. Elsewhere, Alexander takes a less extreme view. In his more recent article he argues that the defense of one's rights must be context-sensitive rather than absolute (at least with regard to innocent aggressors). It is far from clear however what a context-sensitive right is, or how this idea can give any concrete guidance, Justification and Innocent Aggressors, 1183.
64. Kadish, Respect for Life and Regard for Rights in the Criminal Law, 886.
65. LaFond's view is rather puzzling: he claims to have maintained the proportionality constraint, though his statement of the self-defense right does not include it. Apparently, he has confused the proportionality and the necessity criterion: thus LaFond seems to think that a warning that one is about to use deadly force suffices to satisfy the proportionality criterion. The Case For Liberalizing, 280 n.201.
66. See supra, note 13.
67. Fletcher, The Right and the Reasonable, 966.
68. Fletcher, The Right and the Reasonable, 967.
69. Fletcher, The Right and the Reasonable, 971.
70. Fletcher, Rethinking Criminal Law, 871.
71. Fletcher, Rethinking Criminal Law, 873.
72. Green, Castles and Carjackers.
73. Note that by merely I mean over and above any threat to one's life or bodily integrity, i.e., even where the homeowner does not fear personal harm, but is merely vindicating his right to defense of his domain. As Green explains, the traditional defense of premises doctrine permits just this: a defender is privileged to use deadly force against an intruder even when the defender has not been threatened with death or serious bodily injury, Castles and Carjackers, 1.
74. Green, Castles and Carjackers, 35, 38.
75. Schopp, Self-Defense, 273.
76. Schopp, Self-Defense, 274.
77. Fletcher, Basic Concepts of Criminal Law, 80.
78. Kadish, Respect for Life and Regard for Rights in the Criminal Law, 895.
79. Schopp, Self-Defense, 259. Schopp's alternative and unique explanation for the existence of a proportionality constraint is especially dubious. He proposes that it does not reflects a concern for the life or safety of the offender, but rather functions as a guide to the victim; given human fallibility, it expresses a preference for nonfatal errors, 275. (It is not clear what sort of error he is referring to.)
80. Rodin, War and Self-Defense, 81.
81. R. V. Kemp [1957] 1 QB 399.
82. Rodin, War and Self-Defense, 94.
83. Rodin, War and Self-Defense, 67.
84. Rodin, War and Self-Defense, 97.
85. Rodin, War and Self-Defense, 98,
86. Larry Alexander, "Self-Defense and the Killing of Noncombatants," Philosophy & Public Affairs 5 (Summer 1976): 408-15.
87. Alexander suggests that a case can be made against the widely-held view that morally innocent persons can be killed in selfdefense, though he does not elaborate on this point (408).
88. Rodin, War and Self-Defense, 95.
89. Rodin, War and Self-Defense, 96.
90. His account of mistaken aggressors is equally implausible. Rodin claims that most mistakes have an element of fault in them, so that self-defense is justified (War and Self-Defense, 90-91). But even if this is true, surely the presence of a minor fault in one's judgment hardly justifies a forfeiture of one's life.
91. Schopp, Self-Defense, 271. I have already criticized his unconvincing rationalization that one has no obligation to sacrifice one's interests to an aggressor, supra, 25. Indeed, we can now see that Schopp tries to have it both ways. If it is morally permissible to cause harm in vindication of one's rights, then why should there be a proportionality and necessity limitation? But if one is not justified in protecting one's rights against an innocent, why is any harm at all permitted?
92. Cathryn Jo Rosen, "The Excuse of Self-Defense," American University Law Review 36 (Fall 1986): 11-56.
93. Fletcher, Basic Concepts of Criminal Law, 135.