Self-Defense, Necessity, and Punishment

A Philosophical Analysis

Uwe Steinhoff

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781000727470
• Edition: 1
• Topic: Filosofia
• Subtopic: Filosofia etica e morale

This book offers a philosophical analysis of the moral and legal justifications for the use of force. While the book focuses on the ethics self-defense, it also explores its relation to lesser evil justifications, public authority, the justification of punishment, and the ethics of war.

Steinhoff's account of the moral use of force covers a wide range of topics, including the nature of justification in general, the precise elements of different justifications, the logic of claim- and liberty-rights and of rights forfeiture, the value of human life and its limits, and the principles of reciprocity and precaution. While the author's analysis is primarily philosophical, it is informed by a metaethical stance that also places heavy emphasis on existing law and legal scholarship. In doing so, the book appeals to widely shared moral intuitions, precepts, and concepts grounded in criminal law.

Self-Defense, Necessity, and Punishment offers the most comprehensive and systematic account of the ethics of self-defense. It will be of interest to scholars and graduate students working in applied ethics and moral philosophy, philosophy of law, and political philosophy.

1 Introduction

This book is about basic justifications for setting back interests that are normally protected by rights, and hence it is also, indeed in particular, about justifications for the use of force. The book will focus on the self-defense justification, but insights drawn from the discussion of self-defense can and will, with the necessary modifications, be applied to different kinds of emergency or lesser evil justifications, to the justification of punishment, and, relatedly, to the public authority justification. While a discussion of justifications for the use of force is of obvious practical importance, such a discussion cannot proceed without examining a host of issues that are of wider philosophical and theoretical interest, such as the nature of justification in general, the logic of claim- and liberty-rights, the interplay between rights and other sources of normativity (like values and prerogatives), the value of human life (and its limits), and the importance of reciprocity and precaution, among other things.

In this introductory section I will first disclose my metaethical position (Section 1.1). Readers who are not interested in metaethical questions can safely skip Section 1.1 or at least need not worry too much if they feel that they do not “get” the intricacies of the metaethical debate – nothing of what I say in the following depends on my metaethical position. Considerably more important is Section 1.2, where I describe why widely accepted law, and hence also common sense, is actually partly constitutive of valid morality. This explains why I refer frequently to actually existing law, not just to armchair intuitions (although the latter can be relevant too, in particular if they reveal common sense rather than being merely idiosyncratic). It also explains why my liberalism is context-sensitive and allows for legitimate variations in the self-defense law and ethics of different liberal societies. Finally, in Section 1.3, I will give an overview of the structure of the book.

1.1 Metaethical Disclosure

Moral theories of the self-defense justification or the lesser evil justification are, like just war theory, or more precisely like the different and competing just war theories that constitute the just war tradition, normative and ethical theories: they provide an ethics and make normative statements, telling us what we ought to do, what we are justified in doing, what we are permitted to do, what we are prohibited from doing, or what would be virtuous or vicious to do. Metaethical (or “metanormative”) theories, in contrast, are higher-order theories: they are theories about normative theories or statements – that is, they deal with the status and properties of such theories and statements.¹ Typical metaethical questions are: what is the function of moral discourse – for instance, do moral statements like “Killing people for fun is wrong” express facts just as statements like “The cat is on the mat” do, or are they rather disguised forms of expressing mere preferences or giving commands, so that “Killing people for fun is wrong” would mean something like “I find killing people for fun disgusting” or “Don’t kill people for fun”? Are there moral facts at all, just as there are facts about tables, germs, and galaxies? Is there such a thing as moral knowledge and can we ever justify our moral statements? Are moral statements “objectively,” or, more precisely, absolutely true or false, or are they at best true according to some standard and not according to another, without there being an independent, absolute criterion which would determine, and by which one could decide, what the right standard is?

One might be tempted to say that it is not the task of normative theory to answer such questions. That would rather be the task, precisely, of metaethics. Nevertheless, it would appear that one can expect a normative theory, including just war theory for that matter, to be sufficiently self-reflective to position itself within the metaethical debate (an expectation that is virtually always disappointed); not least since the reader of a book on basic justifications for setting back interests that are normally protected by rights, and hence also for the use of force, might be interested in knowing whether the theory developed in front of his or her eyes claims to be the absolute truth (or an approximation thereof) or something else.

Thus, although this is clearly not the place to enter into an elaborate discussion of metaethics,² this is nevertheless the place to disclose, as it were, my metaethical position. To anticipate: I reject the idea that there is something like absolute moral truth. In my view, normative statements are only true relative to a certain standard, and there exists no independent, absolute standard that could in a non-biased, non-circular fashion claim to be the one correct standard against which all others have to be measured. However, the “relativism” expounded here is not of the “cultural relativism” kind: the relativism endorsed here is perfectly able to condemn certain practices of other cultures (I will say more on this below). Moreover, even if a reader does not share the relativist stance defended here, this, fortunately, has little bearing on the rest of this book and on how it might guide the reader. After all, the way I shall argue after this chapter does not depend on my fundamental relativist outlook. Absolutists about morality, people who think that there is an absolute moral truth, actually employ exactly the same methodology: they appeal to the reader’s moral intuitions and to reasoned argument and try to achieve some kind of “reflective equilibrium,” that is, to formulate a theory that is coherent and plausible in the light of “our” considered moral judgments (I shall say more about the meaning of “our” in a moment).

Thus, if I should be wrong about relativism, and if there is an absolute moral truth, then my later arguments, if sound at all, will reveal that moral truth. In other words: if relativism is wrong, this does not imply that any of the later ethical or normative statements I make are wrong. (This also means, as already noted, that readers who are not interested in the discussion of metaethics can safely skip this section or at least need not be worried if they are not sure that they fully understand some of its more intricate points.) It would only imply that I am wrong about the metaethical status of such statements: while I (humbly) thought they are only true relative to a certain standard (basically: “our” standard), they might well then be absolutely true. (Of course, they might also be wrong, but fallibility is also a problem for non-relativist theories. Moreover, if my normative statements are wrong, they are not wrong because of the relativist background of this treatise.)

At this point it is necessary to explain some concepts. Moral relativism is usually opposed to moral objectivism.³ This, however, is conceptually misguided. The opposite of “relative” is “absolute,” not “objective.” And the opposite of “objective” is “subjective.”⁴ Finally, the opposite of “universal” is “particular.” Examples will help. Consider drugs or medicines. There is no absolute curative capacity. A medicine, even if adequately applied, may cure one person but kill another. Thus, its curative capacity is relative to an addressee: the medicine has a curative capacity relative to patient A, but not relative to patient B. Another example (one we will return to frequently) are positive laws, for example tax laws. A statement like “It is illegal to deduct one’s office expenses from one’s sales tax” is not absolutely true, but true only relative to a certain legal code: it might be true in jurisdiction A but not in jurisdiction B. Even if, surprisingly, moral statements turn out not be relative, legal statements of the “x is legal/illegal” kind most certainly are. That such statements as well as the curative capacities of drugs are relative, however, does not mean that they are subjective. That something is subjective means, roughly (at least this is the meaning in which I will use the term in this section, unless otherwise stated), that it is dependent on each individual’s experience, perception, or attitude: whether chocolate ice cream tastes good, for example, is subjective – if a person experiences chocolate ice cream as delectable then it is delectable for the person. Her liking it makes it delectable. Thus, the delectability of chocolate ice cream is not only relative (some like it, others don’t), but also subjective. This is different from the curative capacity of drugs. Yes, this capacity is relative to the patient, but it is not subjective: whether it actually will cure the patient is an objective fact independent of what beliefs, perceptions, or attitudes the patient has about the drug. The patient can be convinced that the drug will save him and be utterly enthused by it – yet it might still kill him.

Relativism does not necessarily imply particularism. It is conceivable that some miracle drug, the curative capacity of which is, of course, relative, and which can thus only be curative for someone or something but not “in itself” (things can be round in themselves, but they cannot be curative in themselves), is nevertheless curative for everyone. Its curative capacity would be relative, but universal. However, usually relativism is accompanied by particularism.

Let us now look at the case of law again. Is the claim that the statement “It is illegal to deduct one’s office expenses from one’s sales tax” is correct only relative to a certain jurisdiction or legal code compatible with the claim that the code itself is absolutely correct? No, it is not, since if the code itself is absolutely correct, then, for straightforward logical reasons, the statements made or logically implied by this code must also be absolutely correct. They would also be correct relative to the code, yes, but they would not only be correct relative to the code, they would also simply be correct, period.

We know this from physical theories. It is quite right to say that “E = mc²” is correct relative to Einstein’s theory, but (so it seems) it is also simply correct because (this part of) Einstein’s theory is correct. But what makes Einstein’s theory absolutely correct? Obviously not Einstein’s theory itself. Of course, Einstein’s theory is correct relative or according to Einstein’s theory, but for it to be absolutely correct more is needed than a circular reference to itself. So, again, what makes Einstein’s theory absolutely correct (if it is absolutely correct)? The answer is obvious – physical reality: the universe.

But could one not give exactly the same answer with regard to a moral code? (I will say more on the meaning of “moral code” below; for present purposes the term is meaningful enough, however.) The answer to this question is “no,” and this is what gives rise to relativism. Why is the answer “no”? Let us approach this question somewhat from the side. Some theists claim that: “Without God anything would be permissible.” Obviously, however, without a god certain things would still be impermissible relative to a certain legal or moral code, or relative to the commandments of mommy and daddy. Thus, what the claim is actually supposed to mean is probably that without a god nothing would be absolutely prohibited (“absolutely” in the sense of non-relatively: another sense of “absolute prohibition” – pertaining to normative ethics, not metaethics – is “non-overridable prohibition”) instead of only relative to a certain code. But what makes theists think that with a god things can be absolutely prohibited instead of only being prohibited relative to the god’s code (like his ten commandments, for example)? What makes this god’s code absolutely correct?

It cannot be absolutely correct only because God says so – just like the statement “The cat is on the mat” is not absolutely correct only because He says so. After all, God, being omnipotent, also has the power to lie. So He could say “The cat is on the mat” without the cat being on the mat. Of course, He could make it true that the cat is on the mat, by causing a cat to be on the mat: He could simply put it onto the mat, or divinely organize some atoms in such a way that they form a cat standing on the mat. But what constitutes the cat’s being on the mat is then the cat’s actually being on the mat, not the will of that god. Thus, “The cat is on the mat” is true because of a physical fact. God might have caused that physical fact into existence with the power of His mind; but if it is not a physical fact that the cat is on the mat, then the statement “The cat is on the mat” is wrong, whatever else might be going on in God’s mind.

The same is true of God’s moral statements. “Murder is wrong” does not become true only because God claims it to be true (might doesn’t make right). Of course, if He states that murder is wrong, one would be quite right in saying that murder is wrong according to God, but still, that by itself would not make it absolutely wrong. But couldn’t God make certain moral statements absolutely true, just as He can make certain descriptive statements absolutely true by causing what the statements state? Well, here lies the rub: while in the case of “The cat is on the mat” we know what God would have to do to make the statement absolutely true – for example, put the cat on the mat, or organize some elementary particles in a certain way – it is entirely unclear what would make a moral statement like “Murder is wrong” absolutely true. What elementary particles would God have to reorganize here to make the statement absolutely true? In fact, how could the reorganization of physical particles possibly make a moral statement true? The whole idea seems bizarre. Or is it, perhaps, not physical particles, but something else? “Moral particles,” perhaps? But what is that?

Thus, “God sees to it” is by itself not a rational explanation but a mere stipulation, not least since it remains unexplained how God sees to it – an appeal to divine magic is most certainly not an explanation. Of course, a theist might, instead of providing an explanation, simply insist that thanks to God certain moral statements are absolutely correct. But then, of course, someone might also insist that this is so because of the Easter Bunny, Diego Maradona, or Adolf Hitler. Or someone might insist that it is simply a “fact of the universe” (or “a fact of reason,” for that matter) that morality is absolute. “It’s just how it is!” Yet dogmatic insistence is a poor substitute for argument and most certainly does not provide us with any reason to belief in the claims made. Conversely, the difficulty in explaining how there could possibly be an “absolute moral trut...