Wednesday, November 9, 2011

Is the right to self-defense "unlimited"?

By "unlimited" I mean to ask Are there limits to this right to the number of people killed in self defense (assuming that one is in a situation that fully justifies the exercise of that right)? Of course, causing more harm than is necessary to perpetrators in the defense of oneself and foreseeable but unintentional side-effects to innocent bystanders ought to always be in consideration. Jeff McMahon's discussion of self-defense takes as a case example of unjustified exercising of self-defense by risking life or serious harm to innocent bystanders. If defending oneself has a reasonably high risk to harming an innocent bystander as well as the perpetrator, one may be prohibited from defending oneself if that risk is great enough and harmful enough to others.

But here I will give another scenario that may also be at tension with a conception of the right to self-defense in an absolute, unlimited sense. It is directed at perpetrators but the proportionality criteria is different in my case than the standard way it has been treated which focuses on the proportionality directed at one agent perpetrator. My scenario exploits our conflicting intuitions that the state has a right to impose its coercive powers on people so long as it has justified means to do so with our intuition that our right to self-defense in life threatening circumstances are absolute (that is, we are permitted to go so far as even to kill those that poss a justifiable threat to us).

The right to defend one's life from unjustly being killed seems to be one of the most foundational ethical intuitions most of us have. But does that right extend to the justified defense of oneself against the state when the state is also justified in killing or seriously harming someone?

Now assume for argument's sake that the state has enough evidence and justly convict someone of a heinous crime, say, mass murder. The state, as the argument goes, has a right to execute under its laws this individual [NOTE: I'm assuming here that the death penalty can be justly applied by the state. I will illustrate a more general case below that does not rely on the justifiability of capital punishment but the justifiability of other kinds of serious punishment such as long term  imprisonment).

But even if the evidence is sufficient for justification in this particular case is met, that does not entail that it will be accurate for even justly convicted individuals can be innocent. Even the best DNA evidence when it is done right and points an accusatory finger at someone can be wrong. The strongest evidence may sometimes be wrong. The state, if it is to have punitive capital punishment laws at all, must do its best in the face of epistemic blind-spots. It can only diminish the probability of punishing the innocent, never completely eliminating it. There is no such thing as absolute 100% proof of guilt.

Does someone who is objectively wrongly convicted but justly under some reasonably good justice system of some capital crime have a right to defend his life against the state? If yes, then he may try to justly kill the state's representatives (hence forth collectively called 'The Law') who try to kill him (capture and detain him in order to kill him). But how many of these agents of The Law may he kill if he is successful in killing the first one(s) that try to do so? The state is justified in killing him under some subjective criterion for the standard of proof is met but they are objectively wrong. The defendant is objectively and subjectively correct about his own innocence. Are there proportionality constraints to the number of unjust perpetrators liable to be killed in self-defense scenarios in this case? In other words, must at some point in exercising his right to self-defense in killing those trying to kill him he ought to willingly sacrifice his own life to be killed by the state? If so what is that point, how many is too many? Perhaps a person may kill an arbitrarily large number of The Law so long as they continue to try and execute him. So long as they continue to attempt to apply the law to him he has that right. Perhaps he may not permissibly kill even one. But either case it seems counter intuitive when one compares it to our common sense notion of self-defense. We can justifiably defend our right to defend ourselves when our lives are in danger against those liable for our predicament even by taking their lives.

Now you may say that it is unlikely that someone can keep killing members of The Law in this way because a state usually has so much more might than individuals within it so this scenario is unlikely to ever be real so why worry about it even if there are no limits to the number of state representatives liable to be killed in self-defense by one wrongly convicted individual. But kinds of rare scenarios, even ones that cannot happen in our actual world must be worked out in any area of philosophy to test the conceptual soundness of the reasoning. The scenario sketched may happen in our world such that someone may obtain enough power by some means (or is simply just lucky or good at avoiding capture through killing the law enforcement officers who try to bring him to "justice")

In the case of the innocent man under threat of execution, he seems to have a moral right (though maybe not a legal right) to kill any number of The Law and maybe even those that operationally or otherwise indirectly support his capture and execution. If they keep coming for him and he, by luck or miracle say, is able to kill all those who come for him we are left with the question how many may he continue to kill. How many is the limit until the killing of those that try to execute him will become unjust? Or can he keep killing them and any number is just? Maybe until he kills all agents of The Law?

This is a scenario for capital punishment but does it extend to life imprisonment? A lifetime of unjust captivity by some kidnapper may seem like a crime that one is justified in defending against even if it means killing one's captor. Kidnappers seem justifiably liable to be killed in self-defense. So do those who are sentenced to life in prison (objectively innocent though meeting reasonably just criterion for proof of guilt) have a right to kill their captors who are members of The Law? The Law also seem to be innocent in a strong sense (though guilty in some other) for they are merely doing their jobs the criterion for justice having already been met in a court of law before imprisonment of the innocent prisoner. So this scenario is a very infelicitous one where all parties are in some sense innocent but it seems all are permitted to seriously harm each other and it is unclear if there are any moral constraints at all to say when the violence ought to end.