Self-defense, necessity, and punishment : a philosophical analysis

Cover
Half Title
Series Page
Title Page
Copyright Page
Contents
Preface
Acknowledgments
1 Introduction
	1.1 Metaethical Disclosure
	1.2 Methodology and the Moral Significance of Law and Common Sense
	1.3 Overview
2 Self-Defense (Understood as Including Other-Defense): Foundations
	2.1 What Is Self-Defense?
		2.1.1 Defining “Self-Defense”
			2.1.1.1 Self-Defense Is Directed against Attacks and Need Not Aim at Averting or Mitigating Harm
			2.1.1.2 Although Self-Defense Is Directed against Attacks It Need Not Be Aimed at Averting or Mitigating Them
			2.1.1.3 Actual Self-Defense Must and Can Nevertheless Be Distinguished from a Mere Attempt to Defend Oneself
			2.1.1.4 Self-Defense Can Be Partially Punitive
			2.1.1.5 Self-Defense Is Not Merely Accidental
			2.1.1.6 Self-Defense Is Directed against Imminent or Ongoing Attacks
			2.1.1.7 Practical Implications and the “Success Condition”
		2.1.2 Normative Structure: Self-Defense as Claim-Right, Liberty, and Act-Specific Agent-Relative Prerogative
			2.1.2.1 Rights Forfeiture Cannot Ground the Self-Defense Justification
			2.1.2.2 A “Positive Right to Self-Defense” Cannot Ground the Self-Defense Justification Either
			2.1.2.3 But a Right to Self-Defense Can Obviously Explain why Interference Would Wrong Us – The Rights Forfeiture Approach Can’t
			2.1.2.4 The Right to Self-Defense Is Basic, Fundamental, That Is, It Is Not Derived from Other Rights
			2.1.2.5 Even the Conjunction of Rights Forfeiture and “Limiting Conditions” Cannot Explain Certain Features of the Self-Defense Justification
			2.1.2.6 Self-Defense Is Also an Act-Specific Agent-Relative Prerogative
			2.1.2.7 Conclusion
	2.2 The Scope and Limits of the Self-Defense Justification
		2.2.1 A Deeper Look at the Shortcomings of Rights Forfeiture Theory and a First Look at the Alternative of Precautionary Rules
			2.2.1.1 The Importance of the Distinction between Permissibility and Liability for the Limiting Conditions
			2.2.1.2 Against Rights Forfeiture Theory: Forfeiture without Necessity and Instrumentality
			2.2.1.3 An Alternative to Rights Forfeiture Theory: The Precautionary Rule Account
			2.2.1.4 Conclusion
		2.2.2 The Necessity Requirement
			2.2.2.1 Necessity and Rights Forfeiture: Reciprocity, Reason-Independence, and the “Wide Account”
			2.2.2.2 Reminder: Necessity and Justification
			2.2.2.3 For a Harsh Necessity Condition
			2.2.2.4 Against the Formulaic Interpretation of the Necessity Condition and for Reasonableness
			2.2.2.5 Conclusion
		2.2.3 The Imminence Requirement
			2.2.3.1. Self-Defense vs. Justifying Emergency
			2.2.3.2 What Counter-Arguments Would Have to Show
			2.2.3.3 The Home Invasion and “Kill You Tomorrow” Argument
			2.2.3.4 The “Imminence Is a Proxy for Necessity” Argument
			2.2.3.5 Christopher’s Puzzles
			2.2.3.6 McMahan’s Liability Argument
			2.2.3.7 Changing Direction: Imminence Triggers the Self-Defense Justification and Its Harsh (on the Aggressor) Necessity Criterion
			2.2.3.8 The Rationale of the Imminence Requirement
			2.2.3.9 Exceptional Cases and Different Justifications
			2.2.3.10 Conclusion
		2.2.4 The Proportionality Requirement
			2.2.4.1 Proportionality and the Value of Life
			2.2.4.2 Quong’s “Stringency Principle”
			2.2.4.3 Proportionality and the Rights of the Aggressor
			2.2.4.4 Proportionality as Precautionary Rule
			2.2.4.5 Conclusion
		2.2.5 The Subjective Element of Justified Self- Defense: The Knowledge Requirement
			2.2.5.1 Is Moral Obligation Objective or Subjective?
			2.2.5.2 The Curious Case of the “Unknowingly ‘Justified’ Defender”
				2.2.5.2.1 The Invocation of Attempt Liability
				2.2.5.2.2 How The Purely Objectivist Account Makes Justified self-Defense Practically Impossible
				2.2.5.2.3 Does A Reasonability Requirement Fit Into An Objectivist Account?
			2.2.5.3 Morality and Proper Action-Guidance
			2.2.5.4 The Form of the Subjective Element
			2.2.5.5 Conclusion
3 Self-Defense: Special Cases (Innocent Attackers, Justified Attackers, and Non-Responsible Threats)
	3.1 Justifying Defense against Non-Responsible Threats and Justified Aggressors: The Liability vs. the Rights-Infringement Account
		3.1.1 The Liability Account
		3.1.2 Quong on Self-Preference, Justified Rights-Infringement, and Liability
		3.1.3 Frowe on the Tactical Bomber and Compensation without Liability
		3.1.4 Conclusion
	3.2 But Is Defense against Non-Responsible Threats Really Justified?
	3.3 The Liability of Justified Attackers and the Permissibility of Counter-Attacking Them
		3.3.1 Against McMahan (“Justification Defeats Liability”)
			3.3.1.1 McMahan’s Argument
			3.3.1.2 Who Has a Right to Self-Defense – The Justified Bombers or the Innocent Civilians?
			3.3.1.3 Do Neutral Third Parties Have a “Liability-Justification” to Kill the Justified Bombers?
			3.3.1.4 What Really Matters: On Permissibly Resisting Justified Bombers and Impermissibly Resisting (Certain) Unjustified and Liable Thieves
			3.3.1.5 Who “Should” Compensate? – And Why That Does Not Matter
			3.3.1.6 Why McMahan’s Responsibility Account Is Also Too Permissive
			3.3.1.7 Conclusion
		3.3.2 Against Tadros (“Conflicts Should Normally Be Rejected”)
4 Emergency Justifications (Including Necessity and Lesser Evil)
	4.1 The Basic Idea and the Basic Elements of Emergency Justifications
	4.2 Variations, Concretizations, and the Interpretation of “Danger”
	4.3 Lesser Evil Justifications Do Not Amount to Obligations nor Do They Provide Moral Immunity from Defensive Counter-Measures: On Frowe’s Most Recent Claims to the Contrary
		4.3.1 Frowe’s “Requirement Thesis” and Its Shortcomings
		4.3.2 Frowe’s Unwarranted Claims Concerning the Impermissibility of Defense against “Lesser Evil Harms”
5 Punishment and the Public Authority Justification
	5.1 What Is Punishment?
	5.2. Justifying Punishment
		5.2.1 I ndividual Acts of Punishment Inflicted on Culpable Offenders
		5.2.2 The General Practice of Punishment: What Justifies State Punishment, and Does the State Have an Exclusive Right to Punish?
			5.2.2.1 Wellman on the State’s (Exclusive) Right to Punish
				5.2.2.1.1 The “Consequential” Rationale For The Alleged Exclusivity Of State Punishment
				5.2.2.1.2 The Limits Of “Consequential Considerations”: Rights, Liberties, And Permissions
	5.3 The Public Authority Justification
Concluding Remarks
References
Index