Is there a “right” to self‐defense?

Abstract

The use of defensive force, even deadly force, in protection of self or others (hereinafter self-defense) is paradigm of moral and legal permissibility. However, just why this is so has turned out to be quite puzzle; indeed, there is today hardly the slightest consensus on the moral justification for this permission to use force, or even on what the various possible alternative justifications might be. The question is not merely theoretical, as one's choice of foundational principle for self-defense will determine one's conception of the scope and limits of permissible self-defense, matter that is continually in controversy. In this essay I propose to critique one purported foundational account: the idea that the permission to use defensive force is grounded in the idea of individual natural rights: that is, as Judith Thomson describes it, rights that a human being has simply by virtue of being human being. (1) I will attempt to demonstrate that, whatever might be the correct account of self-defense, rights theory will not do--it is at best unhelpful, and at worst positively pernicious as an explanation of the permissibility of defensive force. This essay is part of larger project in which I defend much-neglected theory of the foundations of self-defense, one grounded in the intentions of the defender. This position, known as the Doctrine of Double Effect, is usually traced historically to Thomas Aquinas. This account can, I believe, make sense of the principles of self-defense as we currently know them, and avoid the anomalies of other attempted foundational explanations. However, I do not attempt to work out the details of such justification here. Rather, I limit myself to showing that one of the most influential (and increasingly popular) current accounts of self-defense is so clearly inadequate that no amount of tweaking or patching up is likely to save it, and that our attention is best turned elsewhere. Thus this essay is negative in focus; I can ask only that the reader take it as an element of larger positive project, which must begin with clearing away the unworkable alternatives, foremost among which is the idea that the doctrine of self-defense can be explained by the idea of natural rights. What do we want and expect theory of self-defense to do for us? Such theory should have both an explanatory and justificatory function. It should provide single unifying principle or framework that makes sense of the scope and limits of permissible self-defense, thus explaining the inner logic of the practice. This unifying framework should present itself as justifying the practice as well: it should help make it clear why self-defense is morally and legally acceptable. This issue is particularly important given that it is not obvious from either the moral or legal standpoint why we should want to allow individuals to be making judgments about who they may kill on their own initiative. Finally, and equally important, good theoretical account should not simply endorse the status quo, but should have critical or normative function as well by implying recommendations as to how the practice should be modified at the edges, though without rejecting the core of the self-defense doctrine. An account that recommended totally remaking the practice would not be an account of self-defense as we know it; an account that simply took the current practice as correct in every way would probably be too weak to do any genuine work. In any case, there are numerous controversies within the doctrine of self-defense that genuine theory is urgently needed to resolve. (2) A theoretical account of permissible self-defense will not only have to explain the existence of general permission to use defensive force, it will also have to account for widely accepted features of that permission-in particular the four strict limitations on the use of defensive force (3): (1) Force may be used only against an unlawful aggressor. …