Abstract
This article considers the proportionality requirement of the self-defense justification. It first lays bare the assumptions and the logic—and often illogic—underlying very strict accounts of the proportionality requirement. It argues that accounts that try to rule out lethal self-defense against threats to property or against threats of minor assault by an appeal to the supreme value of life have counter-intuitive implications and are untenable. Furthermore, it provides arguments demonstrating that there is not necessarily a right not to be killed in defense against theft or minor assaults. While there is a general moral right of self-defense and a general right to life, the scope of these rights (like the scope of the right to liberty and the scope of the right to property) depends on certain social facts that—even within a liberal framework—can differ from one society to another. Moreover, the proportionality of self-defense does not depend on the rights of the aggressor alone, but also on a precautionary rule, shaped by the balance of interests of the society in question and aimed at protecting innocent people and other social interests. This rule can protect an aggressor even in cases where he does not have the right to such protection.
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What is meant by this is that Right need not yield to Wrong for the benefit of the aggressor (it might have to yield for the benefit of innocent and non-threatening persons). The self-defense justification is concerned with the infliction of harms on the aggressor. Harms inflicted on bystanders are dealt with by the German justifying emergency justification, that is, by a necessity justification.
Leverick (2006: 54–68) endorses rights-forfeiture theory. With this term I mean to refer to theories according to which a person’s forfeiture of the right not to be harmed makes it permissible to harm her (at least barring special circumstances, like forbidding side-effects). Thus, one can believe that aggressors forfeit certain rights without thereby being a rights-forfeiture theorist in the sense intended here.
But see Steinhoff (2016a: esp. Sect. II).
Compare Uniacke (2011: Sect. II). See also the discussion below.
Rodin (2011: 105) indeed claims that “if action for which A is responsible threatens to wrongfully cost D $1000, A would be liable to a defensive harm of $1000.” As already pointed out, I know of no jurisdiction accepting this claim, and the claim seems to be morally downright absurd given that it only compares costs but seems to entirely overlook the anything but irrelevant fact that one party is innocent while the other one is the morally responsible wrongful aggressor. Moreover, Rodin himself emphasizes that this equivalent harm view does not apply to attacks on human life or bodily integrity; yet he fails to provide an argument as to why we should think that it does apply to attacks on property.
For an extended criticism of the “equal worth” doctrine and related concepts, see Steinhoff (2014).
Some Western jurisdictions do not have so-called Samaritan laws at all.
On the basis of so-called Samaritan laws.
For an overview, see Bott (2011: 110–118).
The qualification lies in Germany’s acceptance of International Humanitarian Law, and thus in the acceptance that “collateral damage” is permissible if proportionate or “militarily necessary.” Here weighing is not only allowed but required. The embarrassing fact is that this qualification flatly contradicts German legal commentators’ attempts to ground the non-weighing principle in the domestic case on human dignity. Enemies are humans too.
This debate is amply documented in both the German and international media.
There might be still other grounds, but this need not concern us for the moment.
Iron Man (Marvel Studios and Fairview Entertainment 2008).
See also Uwe Steinhoff, “Self-Defense and the Necessity Condition,” unpublished ms., available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2653661.
For a critique of Quong’s account of proportionality, see Uwe Steinhoff, “Quong on Proportionality in Self-defense and the ‘Stringency Principle,’” unpublished ms., available at http://philpapers.org/rec/UWEQOP.
See footnote 2.
In the following pages Schopp actually suggests something like proportionality as precautionary rule. However, he seems not to think that such a rule could undermine the moral justifiability of shooting the apple thief. I will return to this below.
My position is also quite compatible with the view that there are some fundamental moral principles that are exactly the same for all societies. There could, for instance, be some basic norm- or duty-generating principles like the principle that valid promises create duties to keep them, without this implying that promises create the same duties in all societies: that obviously depends on what promises are made. In the same vein, I think that what the precise contours of the proportionality criterion in a given society is depends on deeper principles and mechanisms, some of which I explain in the text.
Incidentally, “approaching” still does not amount to being equivalent.
This is not noted by Uniacke.
Libertarians consider them more or less absolute, but then again, they are a minority. I have also yet to come across a libertarian who was able to explain how properties in a society could be distributed without allowing for some leeway. They must believe that there is some “absolutely right” distribution, based on an alleged “principle of acquisition” and an alleged “principle of transfer.” However, that is first objectionably abstract, and second, rather obscure. Not surprisingly, so far no libertarian has explained what the absolutely just distribution of goods on the planet would be. (Incidentally, the Rawlsian “solution” is equally obscure. The “difference principle” remains opaque as long as it remains unexplained who the mysterious “worst off” mentioned by that principle actually are. Is there supposed to be an absolute truth about their identity? If so, it is deplorable that so far no Rawlsian has even attempted to convey that truth to the rest of humanity.)
Note that with the term “society” I do not mean to refer to a collective being with a hive mind of its own. Rather, my talk of a society is metaphysically not more ambitious than a game theorist’s or social biologist’s talk of “populations” in the context of the study of dominant strategies or reigning norms and conventions.
For a prominent exponent of such a view, see Martin (1997).
This is also the view of a number of other authors. As Hruschka (2003: 213) points out with regard to Kant’s position on the necessity or (in Kant’s words) moderation requirement in self-defense situations: “This is the reason why, as the ‘Metaphysics of Morals’ states, ‘a recommendation to show moderation (moderamen) belongs not to right but only to ethics.” See Kant (1996: 28). See also Locke (2002: esp. 273–274 [§11], 278–280 [§§ 17–18], and 282–283 [§172]). Compare also Simmons’ (1991: 331) interpretation of Locke. Miller (1993: esp. 332–338) likewise argues that killing a lethal aggressor to save one’s own life (or other sufficiently valuable goods) need not be necessary for the aggressor to forfeit his life. Kershnar (2001: 133–135) agrees. Frowe (2011: 545, n. 31, 2014: ch. 4) has recently made the same point. Rodin (2010: 165), too, admits that “many rights are implicitly reciprocal” and that “on a plausible understanding of rights, one only has the right to life so long as one respects the right to life of others.” However, he does not draw the logical conclusion from this insight. Instead, he insists (Rodin 2002: 76) that there “is nothing incoherent or peculiar” in binding an aggressor’s liability to the defender’s awareness that he is being confronted with an aggressor or to “material facts about the defender” and thus to necessity. This latter claim contradicts the reciprocity claim. Rodin (2014) has meanwhile further elaborated his thoughts on reciprocity. Again, he seems not to be aware of the fact that his reciprocity theory contradicts his views on liability.
Alien (20th Century-Fox and Brandywine Ronald Shushett, 1979).
See on this Uwe Steinhoff, “Self-defense and Imminence,” unpublished ms., Sect. 10, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2653669.
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Acknowledgements
The research presented in this paper was supported by a grant from the Research Grants Council of the Hong Kong Special Administrative Region, China (Project No. HKU 17610315). I am very grateful for this support. I also thank the audience of a seminar at the Department of Politics and Public Administration of the University of Hong Kong, in particular Helen K. H. Liu, Richard W. X. Hu, Franz Mang and Kai Quek, for their helpful feedback. I owe special thanks to Stephen Kershnar for helpful written comments on a first draft of this paper.
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Steinhoff, U. Proportionality in Self-Defense. J Ethics 21, 263–289 (2017). https://doi.org/10.1007/s10892-017-9244-2
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DOI: https://doi.org/10.1007/s10892-017-9244-2