In this paper, I propose a new self-defense theory of punishment, the rights-protection theory. By appealing to the interest theory of right, I show that what we call “the right of self-defense” is actually composed of the right(s) to protect our basic rights. The right of self-defense is not a single, self-standing right but a group of derivative rights justified by their contribution to the protection of the core, basic rights. Thus, these rights of self-defense are both justified and constrained by the basic rights they are supposed to protect. I then explain how this theory responds to a common objection. Opponents argue that, to exercise the right of self-defense, some threat must be present. However, in the context of punishment, the threat has already taken effect or is already gone. Thus, the right of self-defense becomes irrelevant when we punish an offender. I show that this objection is based on an implausibly narrow conception of self-defense. A reasonable conception would allow us to exercise our right of self-defense when there is a present definite threat, a future definite threat, or a potential threat. Thus, we may still exercise our right of self-defense in the context of punishment.
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To use Hart’s terminology, the problem I consider here is the general justifying aim of punishment, not the problem of distribution (1968:3–4).
This distinction is recognized in many criminal justice systems, see for instance, the case of the Finnish Sanction System (Lappi-Seppälä 2012:335).
For an example of a system of criminal punishment that aspires to satisfy these conditions, see the Execution of Sentences Act of the Norweigein Correctional Service. http://www.kriminalomsorgen.no/index.php?cat=265199
(Accessed: March 13, 2017). See also Anderson and Groning 2016.
Some may wonder whether acknowledging the justification problem of punishment implies the acceptance of the abolitionist thesis. Whether this is so depends on one’s answer to the justification problem. One the one hand, some philosophers, such as David Boonin, argue that there is no way to adequately meet the challenge raised by the justification problem. Accordingly, the only morally viable option is abolitionism. On the other hand, quite a few philosophers argue that the challenge to justify punishment can be met. If so, then we may need to reform the system of criminal punishment. However, we need not abolish the system entirely.
Whether a right is a core right depends on the order of justification. In contrast, whether a right is basic depends on the effect of its enjoyment. Basic rights, such as the right to safety, are the necessary conditions for the enjoyment of other rights (Shue 1980).
Rights may have both internal and external constraints (Marmor 2007).
This difference is best explained, I assume, by reference to the principle of necessity in self-defense (Lazar 2012).
This does not imply a success condition. All that it takes is that the act be a token of a type of action that generally contributes to the defense of an attack (Steinhoff 2015).
Supporters of the imminence requirement such as Kimberly Ferzan and Uwe Steinhoff seem to equate the right of self-defense with the use of force in self-defense. This seems to me to be the reason why they insist on the imminence requirement. However, if we make a distinction between the right and the means of self-defense, I suspect that there would not be different judgments with regard to cases of justified self-defense.
Some legal theorists insist that some imminent threat be present before one claims a right of self-defense. For instance, consider the following passage by Kimberly Kessler Ferzan: “the right to self-defense is not the right to act as early as is necessary to defend oneself effectively. The right to self-defense is the right to respond to aggression…Without aggression, there is no self-defense, only self-preference (Ferzan 2004:262).”
The fact that one has a right to a certain X does not entail that she also has the right to every means that would help her obtain X. Consider, for instance, Judith Jarvis Thomson’s example of the famous violinist and Henry Fonda (Thomson 1971).
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Early drafts of this paper were presented at the 2013 Taiwan Philosophical Association Annual Conference, 2014 Taiwan Association for Philosophy of Law and Social Philosophy Annual Meeting, and 2015 American Philosophical Association Pacific Division Annual Meeting. The author would like to thank the participants of these sessions for their helpful comments. She is particularly indebted to Richard Dagger, Eirik Harris, Richard W. T. Hou, Philip J. Ivanhoe, Jonathan Jacobs, Sungmoon Kim, Andrei Marmor, David Speetzen, Peng-Hsiang Wang for their constructive comments. She would also like to thank Alida Liberman for her proof-reading service.
This work was supported by the City University of Hong Kong under New Faculty Startup Grant [Grant number: 7200410]
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Lee, HW. A New Societal Self-Defense Theory of Punishment—The Rights-Protection Theory. Philosophia 46, 337–353 (2018). https://doi.org/10.1007/s11406-017-9931-z