The right to self-defense is perhaps the least disputed of all moral principles. It is also common sense that we have the right to defend other people who are aggressed upon. Virtually everyone recognizes these rights as the most obvious of ethical principles, yet many people believe that our rights to defense do not apply if the aggressor to our person or property is an agent of the state. In this video relying on Jason Brennan’s book When All Else Fails – The Ethics of Resistance to State Injustice, we explore why this belief is wrong.
“The standard view, which almost every one of every ideology seems to accept, is that government agents are surrounded by a kind of magic moral force field. They enjoy a special privilege status when they commit unjust actions. The standard view holds both that government agents have a special permission to perform unjust actions – actions that we would judge evil and impermissible were a nongovernment agent to perform them – and that these agents enjoy a special right against being stopped when they commit injustice.”
Jason Brennan, When All Else Fails – The Ethics of Resistance to State Injustice
In the West, the principles that determine the ethical use of self-defense, or the defense of others, were not created by an emperor, king, or government, but are a product of English common law. The English common law system developed after the Norman Conquest of 1066 AD and is a bottom-up form of lawmaking. Judges decide cases based on societal customs and legal precedents and then these decisions become the precedents that are taken into consideration to resolve future disputes. Or as Brennan explains:
“Judges had to decide cases with a mind to what is fair and just as well as to find solutions to problems that would solve problems and enable disputing parties to stop fighting and get on with their lives. When judges made good and useful decisions, other judges would copy them. The use of juries and competition between alternative courts also ensured widespread and smart input from the masses. Accordingly the common law represents the wisdom of the masses.”
Jason Brennan, When All Else Fails – The Ethics of Resistance to State Injustice
The common law system spread from England to its colonies such as the United States, Canada, Australia and India, and integral to common law are the rights to self-defense, and the defense of others. The common law principles that define these rights reflect, in the words of the political philosopher John Hasnas, “what fifty generations of juries and judges believed to be a fair and proper response to attack.” (John Hasnas, Lobbying and Self-Defense)
Common law recognizes that individuals have the right to protect themselves, and others, with the use of force, against threats of violence, such as assault, battery, rape, or murder. It also allows reasonable force to prevent theft or trespass onto one’s property. Common law also recognizes that when acting in self-defense, deadly force is justified so long as certain conditions are met. Firstly, the killer must not be the aggressor. Secondly, the killer must believe that he, or someone else, is in imminent danger of severe bodily harm. Thirdly, the killer must reasonably believe that killing is necessary to avoid the threat. This final condition is called the doctrine of necessity and it states that if an alternative non-lethal means is just as effective at stopping the threat, it should be used rather than deadly force.
It is important to emphasize that for self-defense, or the defense of others, to be justified under the principles of common law the threat must be imminent. Or as Brennan explains:
“You engage in self-defense against the bully when you fight back as he pushes you. You defend someone else against the would-be mugger when you stop him as he tries to rob his victim. If, on the other hand, you beat up the bully or mugger a year later when they’re harming no one, you aren’t defending yourself or anyone else. You are exacting revenge or inflicting private punishment.”
Jason Brennan, When All Else Fails – The Ethics of Resistance to State Injustice
Government agents commit all sorts of injustices that meet the common law threshold for a defensive reaction by the victim. For example, governments steal a large portion of our money every year, they kidnap and imprison people for using drugs they don’t approve of, they murder people en masse in unjustified wars, and agents of the state, such as police officers, sometimes abuse and even kill citizens who don’t comply to their commands – even if their commands are in support of unjust laws. If a private citizen did any of these things no one would dispute that the victim of the aggression could defend themselves with force, and in some cases deadly force. For example, imagine if your neighbour believed that drinking alcohol was a threat to society and decided to break into your home, kidnap you, subject you to a trial under his direction, and then imprison you in his basement for years if you were found guilty. No one would deny that you could use force to prevent yourself from being the victim of this grave injustice.
But when agents of the state commit similar injustices, we are told that we cannot defend ourselves and that the acceptable forms of response are limited to peaceful protest, moving to another country, expressing our discontent at the voting booth, or hoping that the internal workings of the state will punish the government agents who abuse their power.
This belief that agents of the state possess a special moral status, and that when they commit an injustice the victim cannot defend himself, is known as the special immunity thesis, and as Brennan writes:
“The prevailing view is that when it comes to government agents, [self-defense and the defense of others] are governed by different moral principles from those that govern defensive [action] in other contexts. This presupposes that it makes a difference to the permissibility of lying to, deceiving, sabotaging, or killing an aggressor in self-defense or the defence of others that the aggressor is wearing a uniform, holds an office, or was appointed by someone who was in turn elected by my neighbours. According to the prevailing view, my neighbours can eliminate my right to self-defense or the defense of others by granting someone an office. This is especially puzzling because almost everyone today recognizes that the law and justice are not the same thing; laws can be deeply unjust.”
Jason Brennan, When All Else Fails – The Ethics of Resistance to State Injustice
