Skip to main content
Log in

What Should We Say We Say about Contrived ‘Self-Defense’ Defenses?

  • Original Paper
  • Published:
Criminal Law and Philosophy Aims and scope Submit manuscript

Abstract

Imagine someone who deliberately provokes someone else into attacking him so that he can harm that person in defending himself against her attack and then claim “self-defense” when brought to court to defend himself for what he has done to her. Should he be allowed to use this defense, even though it’s clear that he has deliberately manipulated his attacker into attacking him precisely in order to be able to harm her with impunity (assuming he were allowed to use the defense and thus escape legal penalties)? This question is the focal point in the paper that follows. I argue first that the case described above is indeed an instance of an “actio libera in causa,” albeit arguably one at the margins of this controversial class of cases. Then, using a view about the justification of self-defense that I have defended elsewhere, I show why I believe that, while the manipulator should not be deprived of the legal right to defend his self-defensive actions in such cases by claiming they were a legitimate matter of self-defense, there is good reason to enact laws that will allow him to be prosecuted, independently of his “self-defense” defense, for manipulating his attacker as he did, thus allowing him to harm her in self-defense and then defend his actions as purely a matter of “self-defense.”

This is a preview of subscription content, log in via an institution to check access.

Access this article

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Similar content being viewed by others

Notes

  1. Claire Finkelstein and Leo Katz, “Contrived Defenses and Deterrent Threats: Two Facets of One Problem” (5 Ohio State Journal of Criminal 2008, p. 480.

  2. Ibid., p. 480.

  3. See especially “The Justification of Deterrent Violence,” Ethics, Vol. 100 (1990), 301–317. All of my work on self-defense and related issues of “forced choice” was importantly influenced by Philip Montague’s extremely important paper “Self-defense and Choosing Between Lives,” Philosophical Studies, Vol. 40 (1981), pp. 207–219, and by conversations with Montague on these issues.

  4. Note that I am assuming here, in addition to the “proportionality” requirement that is explicit in the final clause, a “minimum harm” requirement which holds that, quite apart from proportionality, one must not do more than one reasonably believes one has to do to prevent wrongful harm to oneself. Note also, quite importantly, that Pj is actually a special case of a more general principle, which I shall have to ignore here, that supports protecting the innocent from wrongful harm regardless of whether the innocent party is the defender herself or some other (third) party.

  5. The best account of “justice as fairness” I know of is in some of the early work of John Rawls. (See especially “Justice as Fairness,” The Philosophical Review, Vol. 57 [1958].) In these early writings, justice, or fairness, is identified with doing one’s part in a voluntary cooperative enterprise. I think some of the insight and power of this early account gets obscured in Rawls’ later, more famous work.

  6. So far as I know, this case emerged from a conversation with Philip Montague years ago. But it may have earlier antecedents that I am unaware of.

  7. Note that even in its direct-self-defense applications, Pj is ultimately about risk of harm, as opposed to absolute certainty of harm, in any case.

  8. Note that there is a sense in which T might plausibly say she was faced with a choice of harms: she might think that either she harms M, physically, or else she suffers the harms of public humiliation by virtue of not responding to his insults. I ignore this interesting possibility, here, partly because it’s not descriptive, in my view, of a straightforward case of “self-defense.” (I also ignore, importantly, the claim that T must choose between harming M, for the sake of deterring future insults, or living with a higher risk of further insults as a result of not harming him now.).

  9. Note that the objector certainly need not be saying that M is not morally responsible for any sort of wrongdoing at all. He may well feel—and I think it would in any case be plausible to say—that M is responsible for a serious act of wrongdoing in “setting up” T, as he has done, and that he is deserving of serious moral censure for what he’s done. His (the critic’s) point, rather, is that whatever else he is responsible for, M is not responsible for wrongfully making it the case that someone has to be harmed—either he or his “target,” T. For, as indicated, he (the critic imagined above) doesn’t see how we can plausibly say that M is responsible for that’s being the case. Rather, that responsibility, on his view, is T’s. I return to this point below.

  10. On the “minimum harm” requirement, see Note 3 above.

  11. Others, of course, have argued for this way of thinking of the criminal law. See, for just one example, Philip Montague, “Punishment and Societal Defense,” Criminal Justice Ethics, Vol. 2 (1983).

Acknowledgments

I am grateful to my colleagues Justin D’Arms and Don Hubin for helpful conversations on the problems discussed above. I am also indebted, for their comments and for their encouragement, to the participants in the conference at the University of Pennsylvania College of Law at which the presentation on which the present paper is based was first delivered.

Author information

Authors and Affiliations

Authors

Corresponding author

Correspondence to Daniel M. Farrell.

Rights and permissions

Reprints and permissions

About this article

Cite this article

Farrell, D.M. What Should We Say We Say about Contrived ‘Self-Defense’ Defenses?. Criminal Law, Philosophy 7, 571–585 (2013). https://doi.org/10.1007/s11572-013-9220-2

Download citation

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s11572-013-9220-2

Keywords

Navigation