19 Killing in Self-Defense
Here is what I should have said in class today when Mr. Boltz said that, e.g., jailing people who have been properly convicted of a crime violates their right to liberty, but is justified. Or that when Tom kills Dick who is trying to kill Harry (and Harry’s infant son Archie), Tom violates Dick’s right not to be killed, but since it is in self-defense (or, in this case, other-defense), it is justified.
I think that is not the right way to think about these cases. If an action is (morally) wrong, then it cannot be (morally) justified. It is possible that the person who acts wrongly is not culpable (blameworthy), but that is different from saying the action is justified. It is possible that the person has an excuse for acting wrongly. Typical excuses include: ignorance and duress. But if the action is not wrong, then no excuse is needed.
If you believe in the (moral) right of self-defense, and if you believe that sometimes it is morally justified to kill in self-defense, then, when it is justified, killing in self-defense is not morally wrong.
Notice that in the law, there is such a thing as justified homicide (homicide that is not wrong), but not justified murder. Murder is by definition wrong or unlawful, so it cannot be justified.
What happened to Dick’s right not to be killed? It was forfeited. By trying to kill Harry and Archie, Dick forfeits his right not to be killed. He no longer has a right not to be killed (in that situation, for the purpose of preventing him from killing Harry and Archie). Of course, the forfeiture is temporary: once it is no longer necessary to kill Dick in order to save Harry and Archie, Tom has the right not to be killed. And if Tom is not able to stop Dick from killing Harry and son, it would be wrong for Tom to kill Dick the next day. Perhaps the state has the right to kill (execute) Dick at a later date, but Tom doesn’t. (That would be vigilante justice.) (How come the state has the right to execute Dick a year later, but Tom doesn’t have the right to kill Dick a week later? That is a very good, and hard, question. Of course, maybe it doesn’t have that right.)
Something I didn’t say in class today: it is also possible that rights can be overridden (as well as forfeited and waived). Let’s say that you promised to meet me at J&B at 3:00 pm so that I could try to explain this stuff more clearly to you. But on the way, you see a small child fall into the fountain at the entrance to campus. No one is around. Only you can rescue the child. You ought to break your promise to meet me and rescue the kid instead. (Right?) In this case, my right (a purely moral right, with no legal force) was overridden. I did not waive it (because I didn’t know what was happening). Nor did I forfeit it (I was just sitting at J&B watching my coffee get cold). Instead, my right was overridden. Perhaps because the child had a (moral) right to be rescued (by whoever was passing by and could perform the rescue without undue risk and/or cost), and his moral right was more stringent, or weightier, than my moral right. Or perhaps the kid had no right to be rescued, but the child’s interest in being rescued far outweighed my interest in not being stood up.
Did you act wrongly in breaking your promise to me? I don’t think so. So I am inclined to say that my right was overridden by the child’s right (or by the child’s interest in being rescued). Your were justified in breaking your promise.
Suppose that on your way to J&B, you slip on the ice, break your leg, and have to call an ambulance and go to the hospital (it is a compound fracture). In this case, you have an excuse for breaking your promise. I should not blame you for standing me up (and I won’t). Or suppose you were kidnaped on your way to J&B and taken to Amarillo. Again, you have an excuse for breaking your promise.
Classic cases of excuses involve mistaken identity. Suppose you are a police officer and arrest Samantha, thinking she was going to kill Archie. But it was her identical twin Sarah who was the culprit. You arrested the wrong person, but assuming you were not negligent (or reckless), then you have an excuse for arresting the wrong person.
If some rights are absolute, they cannot be overridden. That is why it is dangerous to say that there are absolute rights, because if two absolute rights conflict, then one has to give way. But then it is not an absolute right. And why would you say that there is only one absolute right? And why that particular right? Inquiring minds are waiting for your answer.
Going back to what several of you were saying in class: I don’t see why you want to say that Dick retains his right not to be killed. It seems unmotivated. If you want to insist that the right not to be killed is absolute (no exceptions), then I think you have to say that Tom is not justified in killing Dick in self-defense. If he is justified, then the right not to be killed is not absolute.
If Tom kills Dick (and saves Harry and Archie), was Dick wronged? I don’t think so. At least not if he had forfeited his right not to be killed.
Over the years, in my introductory ethics course, there have been students who tried to persuade me that the same action can be both (morally) right and (morally) wrong. They have never been able. As long as we are talking about a single act-token (e.g., Jack killing Jill at 1:30 p,m. on 1/19/2020) then it is either right or wrong. It cannot be both and it cannot be neither. It is either morally permissible for Jack to kill Jill at that moment, or it is not. It is either (morally) OK, or it is not (morally) OK.
Act-types, in contrast, can be both right and wrong: it can be right to swing a baseball bat in a baseball game when no one will be struck, and wrong to swing a baseball bat on a crowded subway. That just means that the same act–the same kind or type of action–can be right in some situations and wrong in other situations. We already knew that.
If you are interested in the criminal law, I attach the article from the Stanford Encyclopedia of Philosophy on “Theories of Criminal Law.” I have not read it, yet.
I just pulled A Theory of Criminal Justice by Hyman Gross off my bookshelf. Chapter Eight is entitled “The Limits of Excuse.” It doesn’t seem to be an easy chapter.
None of this is to deny that the distinction between excuse and justification can be puzzling and hard to explain. So I shan’t. Instead, I shall quote from George Fletcher’s book, A Crime of Self-Defense: Bernhard Goetz and the Law on Trial (another book I do want to read, someday). (If you don’t know who Goetz is, google him. He was the talk of the town in the 1980s.) Fletcher writes:
“The point of a justification is that it renders a nominal violation lawful–in conformity with the jus, or higher, unwritten law of legitimate conduct.” “Consent is a justification for physical intrusions and taking the property of another.” “Claims of justification are distinguishable from other claims that bar conviction for crime, such as claims of duress (‘Someone forced me to do it’) and insanity (‘My disease forced me to do it’). These claims do not render conduct lawful and proper. No one would say that an insane purpose has a right to kill, or that his killing conforms with higher principles of rightful conduct. These other claims of defense, often called excuses, merely negate the actor’s personal responsibility for the violation. It is unquestionably wrong for an insane person to kill, but his mental condition undercuts his responsibility for his wicked deed” (19). As you know, excuses can be partial or full.
“George P. Fletcher is the Cardozo Professor of Jurisprudence at Columbia Law School. Fletcher is regarded as one of the leading scholars in the United States in the fields of torts and criminal law, and, in particular, comparative and international criminal law. Fletcher is the only scholar, writing in English, to be cited by the International Criminal Court. In 2015, Fletcher received the Silvia Sandano Prize in Human Rights. The international prize was presented at a ceremony in the Rome Senate. In 2009, Fletcher published two books, The Bond and also Tort Liability for Human Rights Abuses, which discusses tort liability in international cases. Another book he wrote, Defending Humanity: When Force is Justified and Why, explores the analogies between self-defense in domestic and international law”
(https://www.law.columbia.edu/faculty/george-fletcher). Defending Humanity is another book I would like to read, someday.
Here is what I should have said in class today when Mr. Boltz said that, e.g., jailing people who have been properly convicted of a crime violates their right to liberty, but is justified. Or that when Tom kills Dick who is trying to kill Harry (and Harry’s infant son Archie), Tom violates Dick’s right not to be killed, but since it is in self-defense (or, in this case, other-defense), it is justified.
I think that is not the right way to think about these cases. If an action is (morally) wrong, then it cannot be (morally) justified. It is possible that the person who acts wrongly is not culpable (blameworthy), but that is different from saying the action is justified. It is possible that the person has an excuse for acting wrongly. Typical excuses include: ignorance and duress. But if the action is not wrong, then no excuse is needed.
If you believe in the (moral) right of self-defense, and if you believe that sometimes it is morally justified to kill in self-defense, then, when it is justified, killing in self-defense is not morally wrong.
Notice that in the law, there is such a thing as justified homicide (homicide that is not wrong), but not justified murder. Murder is by definition wrong or unlawful, so it cannot be justified.
What happened to Dick’s right not to be killed? It was forfeited. By trying to kill Harry and Archie, Dick forfeits his right not to be killed. He no longer has a right not to be killed (in that situation, for the purpose of preventing him from killing Harry and Archie). Of course, the forfeiture is temporary: once it is no longer necessary to kill Dick in order to save Harry and Archie, Tom has the right not to be killed. And if Tom is not able to stop Dick from killing Harry and son, it would be wrong for Tom to kill Dick the next day. Perhaps the state has the right to kill (execute) Dick at a later date, but Tom doesn’t. (That would be vigilante justice.) (How come the state has the right to execute Dick a year later, but Tom doesn’t have the right to kill Dick a week later? That is a very good, and hard, question. Of course, maybe it doesn’t have that right.)
Something I didn’t say in class today: it is also possible that rights can be overridden (as well as forfeited and waived). Let’s say that you promised to meet me at J&B at 3:00 pm so that I could try to explain this stuff more clearly to you. But on the way, you see a small child fall into the fountain at the entrance to campus. No one is around. Only you can rescue the child. You ought to break your promise to meet me and rescue the kid instead. (Right?) In this case, my right (a purely moral right, with no legal force) was overridden. I did not waive it (because I didn’t know what was happening). Nor did I forfeit it (I was just sitting at J&B watching my coffee get cold). Instead, my right was overridden. Perhaps because the child had a (moral) right to be rescued (by whoever was passing by and could perform the rescue without undue risk and/or cost), and his moral right was more stringent, or weightier, than my moral right. Or perhaps the kid had no right to be rescued, but the child’s interest in being rescued far outweighed my interest in not being stood up.
Did you act wrongly in breaking your promise to me? I don’t think so. So I am inclined to say that my right was overridden by the child’s right (or by the child’s interest in being rescued). Your were justified in breaking your promise.
Suppose that on your way to J&B, you slip on the ice, break your leg, and have to call an ambulance and go to the hospital (it is a compound fracture). In this case, you have an excuse for breaking your promise. I should not blame you for standing me up (and I won’t). Or suppose you were kidnaped on your way to J&B and taken to Amarillo. Again, you have an excuse for breaking your promise.
Classic cases of excuses involve mistaken identity. Suppose you are a police officer and arrest Samantha, thinking she was going to kill Archie. But it was her identical twin Sarah who was the culprit. You arrested the wrong person, but assuming you were not negligent (or reckless), then you have an excuse for arresting the wrong person.
If some rights are absolute, they cannot be overridden. That is why it is dangerous to say that there are absolute rights, because if two absolute rights conflict, then one has to give way. But then it is not an absolute right. And why would you say that there is only one absolute right? And why that particular right? Inquiring minds are waiting for your answer.
Going back to what several of you were saying in class: I don’t see why you want to say that Dick retains his right not to be killed. It seems unmotivated. If you want to insist that the right not to be killed is absolute (no exceptions), then I think you have to say that Tom is not justified in killing Dick in self-defense. If he is justified, then the right not to be killed is not absolute.
If Tom kills Dick (and saves Harry and Archie), was Dick wronged? I don’t think so. At least not if he had forfeited his right not to be killed.
Over the years, in my introductory ethics course, there have been students who tried to persuade me that the same action can be both (morally) right and (morally) wrong. They have never been able. As long as we are talking about a single act-token (e.g., Jack killing Jill at 1:30 p,m. on 1/19/2020) then it is either right or wrong. It cannot be both and it cannot be neither. It is either morally permissible for Jack to kill Jill at that moment, or it is not. It is either (morally) OK, or it is not (morally) OK.
Act-types, in contrast, can be both right and wrong: it can be right to swing a baseball bat in a baseball game when no one will be struck, and wrong to swing a baseball bat on a crowded subway. That just means that the same act–the same kind or type of action–can be right in some situations and wrong in other situations. We already knew that.
If you are interested in the criminal law, I attach the article from the Stanford Encyclopedia of Philosophy on “Theories of Criminal Law.” I have not read it, yet.
I just pulled A Theory of Criminal Justice by Hyman Gross off my bookshelf. Chapter Eight is entitled “The Limits of Excuse.” It doesn’t seem to be an easy chapter.
None of this is to deny that the distinction between excuse and justification can be puzzling and hard to explain. So I shan’t. Instead, I shall quote from George Fletcher’s book, A Crime of Self-Defense: Bernhard Goetz and the Law on Trial (another book I do want to read, someday). (If you don’t know who Goetz is, google him. He was the talk of the town in the 1980s.) Fletcher writes:
“The point of a justification is that it renders a nominal violation lawful–in conformity with the jus, or higher, unwritten law of legitimate conduct.” “Consent is a justification for physical intrusions and taking the property of another.” “Claims of justification are distinguishable from other claims that bar conviction for crime, such as claims of duress (‘Someone forced me to do it’) and insanity (‘My disease forced me to do it’). These claims do not render conduct lawful and proper. No one would say that an insane purpose has a right to kill, or that his killing conforms with higher principles of rightful conduct. These other claims of defense, often called excuses, merely negate the actor’s personal responsibility for the violation. It is unquestionably wrong for an insane person to kill, but his mental condition undercuts his responsibility for his wicked deed” (19). As you know, excuses can be partial or full.
“George P. Fletcher is the Cardozo Professor of Jurisprudence at Columbia Law School. Fletcher is regarded as one of the leading scholars in the United States in the fields of torts and criminal law, and, in particular, comparative and international criminal law. Fletcher is the only scholar, writing in English, to be cited by the International Criminal Court. In 2015, Fletcher received the Silvia Sandano Prize in Human Rights. The international prize was presented at a ceremony in the Rome Senate. In 2009, Fletcher published two books, The Bond and also Tort Liability for Human Rights Abuses, which discusses tort liability in international cases. Another book he wrote, Defending Humanity: When Force is Justified and Why, explores the analogies between self-defense in domestic and international law”
(https://www.law.columbia.edu/faculty/george-fletcher). Defending Humanity is another book I would like to read, someday.
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