Shortcomings of and Alternatives to the Rights-Forfeiture Theory of Justified Self-Defense and Punishment

Abstract

I argue that rights-forfeiture by itself is no path to permissibility at all (even barring special circumstances), neither in the case of self-defense nor in the case of punishment. The limiting conditions of self-defense, for instance – necessity, proportionality (or no gross disproportionality), and the subjective element – are different in the context of forfeiture than in the context of justification (and might even be absent in the former context). In particular, I argue that a culpable aggressor, unlike an innocent aggressor, forfeits rights against proportionate defense, including unnecessary defense (as well as rights against the infliction of proportionate non-defensive harm). Yet, I demonstrate that this stance need not lead to the abandonment of the necessity condition of justified self-defense in the case of a culpable aggressor. Since justification and liability are not the same, there is no reason to assume that the necessity condition of justified self-defense must be explained under an appeal to the aggressor’s rights. Parallel arguments apply to the other limiting conditions of permissible self-defense as well as to the limiting conditions of permissible punishment. Accordingly, I also sketch alternative explanations of the proportionality requirement and the subjective element. All these alternative explanations appeal to a principle of precaution: instead of explaining the unjustifiability of unnecessarily harming a culpable attacker or wrongdoer by an appeal to the rights of the attacker or wrongdoer himself, one can also, and better, explain it by a requirement to take reasonable precautions against violating the rights of innocent people.

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Uwe Steinhoff
University of Hong Kong

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References found in this work

Killing in self‐defense.Jonathan Quong - 2009 - Ethics 119 (3):507-537.
Locke and the right to punish.A. John Simmons - 1991 - Philosophy and Public Affairs 20 (4):311-349.
Justifying self-defense.Kimberly Kessler Ferzan - 2005 - Law and Philosophy 24 (6):711-749.
On Cheering Charles Bronson: The Ethics of Vigilantism.Travis Dumsday - 2009 - Southern Journal of Philosophy 47 (1):49-67.
What Is Self-Defense?Uwe Steinhoff - 2015 - Public Affairs Quarterly 29 (4):385-402.

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