On the Obligation of the State to Extend a Right of Self-Defense to Its Citizens

Claire Oakes Finkelstein
1999 University of Pennsylvania law review  
INTRODUCTION A certain way of arguing for legal rights is common in liberal political discourse. It suggests that the State is obligated to extend a given right to its citizens, based on their possession of a parallel, or closely related, moral right. Someone might argue for a legal right to abortion, for example, by claiming that women have a prior moral right to make choices concerning their bodies. Or someone might argue for a private club's entitlement to restrict its membership by saying
more » ... at people have a right to associate in their private lives with whomever they wish.1 This way of arguing has also historically been used to evaluate existing legal regimes more generally. It was, for example, the charge of the American Declaration of Independence against the British that all men have certain rights, such as the right to life, liberty, and the pursuit of happiness, that the Crown had failed to respect.2 It was no less prevalent in the rhetoric of the French Revolution, where the French monarchy's indifference to a supposed set of natural rights was a for their helpful comments on various drafts. I also wish to thank Kim Kempton for her assistance with research. I The fact that abortion and free association are also constitutional rights is not relevant here, because the argument is frequently made to support nonconstitutional rights as well. A version of it has even been used to support laws restricting cruelty to animals, on the grounds that animals have moral rights that the State is bound to respect. See ANIMAL RIGHTS AND HUMAN OBLIGATIONS 105-38 (Tom Regan & Peter Singer eds., 2d ed. 1989). 2 THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). Some constitutional scholars claim that certain constitutional provisions were meant to incorporate the natural rights of citizens. See CHARLES L. BLACK, JR., A NEW BIRTH OF FREEDOM: HUMAN RIGHTS, NAMED AND UNNAMED 5-40 (1997) (arguing that the Framers intended the Ninth Amendment, among others, to refer to a set of natural rights they conceived citizens as possessing). (1361) 3 Universal Declaration of Human Rights, G.A. Res. 217(III)(A), U.N. Doc. A/810, at 71 (1948). 4 While someone might wish to argue for a set of extrapolitical, moral rights that are not natural, the traditional contrast is between the rights human beings have in civil society and the rights they have in nature. We are accustomed to hearing statements of the first sort as providing a reason for statements of the second sort. Upon further reflection, however, it is not clear why this should be so. Why would the moral rights of citizens place the State under an obligation, and what could the nature of that obligation be? Is it a moral obligation? Or is the obligation based on political considerations, such as those that bear on a State's legitimacy? Inattention to the gap between moral and ideal legal rights is not limited to ordinary political discourse. Contemporary moral philosophers contribute to the tendency by focusing exclusively on the parameters of various moral rights and failing to trace the implications of these rights for civil society. Presumably they are not indifferent to the political implications of the moral rights for which they argue. More likely, moral philosophers also assume the political relevance of such rights. If we were to consider the move from moral to legal rights more carefully, however, any such assumption would appear unwarranted. In this Article, I address the relation between moral and legal rights in the context of the right to self-defense. I suggest that even when the right to self-defense is conceived in its strongest form, it is not easily shown that the State is obligated to respect conduct in its exercise. Although I focus on one particular right, I suspect that a number of the other moral rights that liberal political thinkers use to argue for corresponding legal rights would be subject to the same difficulty.8 I do not, however, attempt to establish this broader claim here. In Part I, I consider a way of establishing the relevance of the moral right to self-defense for the corresponding legal right that seems consistent with liberal rights discourse. This account would make use of a standard feature of rights in the philosophical literature, namely that rights impose duties on other agents. In the case of self-defense, the relevant duties are duties of noninterference. It follows that the State may not forbid acts of self-defense, since this would constitute interference with the moral right its citizens have to perform them. The State's obligation to extend a legal right of self-defense to its citizens, on this account, is based on a more general obligation to respect the moral rights individuals have. I call this the "Moral Obligation Argument." A difficulty with this way of arguing, however, stems from the fact that the right to self-defense is subject to conflict with other instances of the 8 More specifically, I suspect that moral rights to do or to refrain from doing things have only weak implications for their corresponding legal rights. Property rights, by contrast, seem better suited to the picture ordinary rights discourse and moral philosophers have in mind. Even then, the picture is not free from difficulties. See discussion infra at notes 35-38 (presenting a contradictory example). 1999] 1363 1364 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 147: 1361 right, and that in these cases the duty of noninterference does not necessarily hold. Of particular importance is the position of third parties in the face of a conflict between two equally entitled self-defenders: the question is whether a third party may intervene on one side or the other of such a conflict or whether she remains subject to the duty of noninterference which the right to self-defense normally imposes. Part II argues that the fact that each party to the conflict is acting from a claim of right does not obligate a third party to stay out of the fray. If this is correct, the Moral Obligation Argument must be abandoned. Part III considers a possible strategy for rescuing the foregoing way of moving from the moral to the legal right to self-defense. One could shrink the scope of the moral right, reducing it to those instances in which the right is not subject to conflict. It would then be possible to preserve the idea that the State is under a duty of noninterference for some instances, even if it must be relinquished for others. I argue, however, that the shrunken picture of the right to self-defense is not a plausible one and that a unified treatment allows for a more compelling account. The possibility of conflicts of right in one class of cases thus puts pressure on the view that the right imposes duties of noninterference in other cases. In light of the foregoing difficulties, I suggest that the moral right to self-defense is better understood as a moral permission to favor one's own life over the life of another than as a right, as moral philosophers would hold. Moral permissions, unlike rights, allow others to interfere with the exercise of the entitlement, provided that the act of interference is permissible on other grounds. If self-defense is a mere permission, the question whether the State should extend a right of self-defense to its citizens cannot be answered by pointing to the underlying moral entitlement and saying that the State has a duty to respect it. This leaves the problem of whether the State must respect the entitlement unresolved. As we see in Part IV, there is historical precedent for conceiving of selfdefense as a mere permission rather than as a right. Thomas Hobbes and Saint Thomas Aquinas, for example, both treat the entitlement in this way. Crucial for our purposes is that neither thinks the entitlement irrelevant for establishing a corresponding legal right. Each, in different ways, attempts to show that the underlying moral entitlement ultimately does supply a reason to think the State obligated to extend a corresponding legal right. Unfortunately, however, secular political philosophy cannot adopt either approach in its entirety, for each depends on the idea that states can owe duties to God. Accordingly, in Part V, I reconsider the question Hobbes and Aquinas address. I argue that a secular account of the State's obligation to extend a right of self-defense to its citizens must be sought not in moral 39 (1990) (applying the Hohfeldian idea of rights as correlative with duties to moral rights). 10 Hohfeld does not say that rights are "claim rights," but he does explain the notion of a right as a kind of claim. See HOHFELD, supra note 9, at 38 ("If... we should seek a synonym for the term 'right' ... perhaps the word 'claim' would prove the best."). The expression "claim right" is generally preferable to "right," because some philosophers, such as Hobbes, use the term "right" to refer to what Hohfeld would call a "liberty" or "privilege." See infra Part IV (discussing pre-moder approaches to the legal right of self-defense). To avoid ambiguity, I shall distinguish "claim rights" from "liberty rights." As Thomson writes, if X is trying to defend life and limb, Y "infringe[s] a claim of X's if Y interferes." THOMSON, supra note 9, at 280. 12 To be more precise, we could say, as Hohfeld does, that there is no such thing as a right against the whole world. As he says, "the supposed single right in rem correlating with 'a duty' on 'all' persons really involves as many separate and distinct 'right-duty' relations as there are persons subject to a duty." HOHFELD, supra note 9, at 94. 1999] 1365 17 See A. JOHN SIMMONS, THE LOCKEAN THEORY OF RIGHTS 71-73 (1992) (arguing that Locke's primary conception of right is that of claim right). Simmons, however, suggests that Locke may have gotten the notion originally from Puffendorf. See id. at 73. But see A.I. MELDEN, RIGHTS AND PERSONS 230-31 (1977) (noting that Locke ushered in the modem the-1999]
doi:10.2307/3312726 fatcat:o7igohktxzatzd43suoba5gyje