Killing in Self-Defence.

• Author: Grabczynska, Arlette
• Position: Book review

FIONA LEVERICK, KILLING IN SELF-DEFENCE (OXFORD UNIVERSITY PRESS 2006). 217 PP.

1. JUSTIFYING KILLING IN SELF-DEFENCE (1)

   Based on first appearances, one might think that self-defense is easy to justify. A bad guy threatens to kill you, so you kill him. Enough said.

   However, once one scratches the surface, self-defense becomes far more complicated. Why is it permissible to kill "the bad guy"? If one is a consequentalist, one must account for how the aggressor's life gets discounted. (2) And, if the consequentalist seeks to include deterrent values in the mix (such as discouraging all aggression), then the fight to self-defense becomes contingent, ultimately depending on how the math works out in any given case. (3)

   A rights-based approach appears more promising but also quickly runs into difficulties. If the defender has a fight to life, so too does the aggressor. What happens to the latter's right? If one thinks that the aggressor "forfeits" his fight to life, what explains why the right is magically regained once the attack is over? (4) If one seeks to specify the fight to life so that one does not have the right to life if, for example, one is "aggressing," then one must look for normative considerations external to the right to life to justify the specification. (5) That is, the aggression must somehow justify the right to self-defense; the right to life, then, has no explanatory power of its own.

   What is particularly striking is that only a handful of books attempt to resolve these problems. Myriad articles, mainly in philosophy journals--but some in law reviews--attempt to justify self-defense. But books that probe the depths of the defense are few and far between. Indeed, until 2006, the only book solely devoted to the theory of self-defense was Suzanne Uniacke's Permissible Killing. (6) Thus, the appearance of two books in 2006 on self-defense is significant. (7) One author, Boaz Sangero, took on a consequentalist approach; the other book's author, Fiona Leverick, went down the path of rights-based accounts. It is this latter path that we will explore in this review. (8)

   In her book Killing in Self-Defence, Leverick attempts to provide a normative justification for self-defense within the rights-based tradition. (9) She takes the fight to life to be fundamental, and then accounts for the moral asymmetry between defender and aggressor by embracing forfeiture. Specifically, Leverick claims that one forfeits one's right to life "by virtue of her conduct in becoming an unjust immediate threat to the life of another." (10) After presenting her theory, Leverick applies it to a number of important questions including retreat, (11) imminence, (12) self-generated self-defense, (13) killing to protect property (14) or to prevent rape, (15) and mistake. (16) She also provides a chapter on the compatibility of permitting killing in defense of property and the European Convention on Human Rights' Article 2, which protects an individual's right to life. (17)

   Leverick's book is the reworking of her earlier doctoral thesis and reads as such. (18) Thus, the book is full of discussions of the work of others as well as Leverick's own views, which is both a blessing and a curse. We would recommend the early chapters of the book to anyone who seeks a fairly succinct and clear background of the competing legal theories about self-defense. Other readers may be impatient to get to the heart of Leverick's arguments, rather than wading through familiar territory. There are also several instances in which Leverick's theory appears to be supported only by her critique of others' accounts rather than by a clear affirmative argument for her own views.

   The scope, focus, and writing of this book are quite good. Although Leverick draws on Suzanne Uniacke's theory, (19) the two books could not be more different. Uniacke spends the vast majority of her work arguing about double effect, discussing early philosophers, and only then sets forth a normative theory. Leverick, on the other hand, quickly moves to the normative discussion, setting forth her thesis early on, and then endeavors to apply her theory to criminal law questions. The book therefore has tremendous potential. But does it meet that potential?

   Unfortunately, our answer is no. The critical problem with Leverick's argument is her failure to justify forfeiture, the backbone of her theory. Although Leverick offers many interesting insights along the way, we do not believe that she offers an account sufficient to justify killing in self-defense.

   The number of topics covered in this book makes it difficult for an in-depth discussion of each; thus, this review will focus on Leverick's central forfeiture claim and her theory's applicability outside the context of killing to prevent killings. Part II sets the stage by discussing the quest for the holy grail--the justification for self-defense. Part III summarizes Leverick's reasoning and proposes that there are two significant flaws with her forfeiture argument. First, Leverick's conditional forfeiture argument appears to be ad hoc. She simply constructs the right to self-defense around her intuitions without setting forth a principled argument for doing so. Second, Leverick cannot explain why innocent aggressors and threats, her own defined test cases, forfeit their rights. Part IV discusses the limits of Leverick's exploration of the use of deadly force for self-defense, noting both that Leverick's treatment of defensive force by battered women is inconsistent with her treatment of killing to prevent rape and that Leverick's reliance on the right to life as foundational limits her ability to explain why one may use non-deadly force against a non-deadly aggressor. We conclude that Leverick's theory is not successful. She attempts to justify the killing of those whom she should not--innocent aggressors and passive threats--without offering a persuasive argument for so doing, and she fails to present a theory capable of including those whom she must--non-deadly defenders. Leverick's theories of forfeiture and the right to life ultimately do not justify self-defense.

2. THE QUEST TO JUSTIFY SELF-DEFENSE

   Before discussing Leverick's view, it is necessary to defend why the obvious is not actually so obvious. That is, why is the justification for self-defense seen as a puzzle?

   1. CONSEQUENTIALIST ACCOUNTS

      One potential way to explain the right to self-defense is to argue that it is the lesser evil. It is better that the defender kill the aggressor than vice versa. Within this rubric, self-defense may not even appear to be a hard case. Unfortunately, there are a number of problems with this position. First, one must still give an account of why the culpable aggressor's life is discounted. (20) After all, why isn't the balance between the aggressor and the defender simply a draw? Indeed, how do we balance these lives if, in all other respects, the culpable aggressor has more value for society (a doctor working on the cure for cancer) than his innocent victim (a criminal law theorist)? (21) Second, the consequentalist view seems to indicate that if many culpable aggressors attacked a lone innocent defender, there would be a point at which the balance would tip in favor of the aggressors. (22) But that simply cannot be fight. You get to kill as many bad guys as threaten you. (23)

      Moreover, consequentialist accounts are problematic even if we include the value of having a more general rule of self-defense. First, such a rule seems too narrow. If we simply want to deter violence, we might prefer a far broader rule, allowing for retaliation or other punitive acts. (24) Second, and more importantly, the approach obscures the importance of the relationship between the defender and the aggressor. The defender's act is not justified because the aggressor aims to harm her, but because of some greater societal value. This view also leads to the conclusion that a given defender is not justified in a case in which the action would not deter others' aggression. But we think most people would agree that a culpable aggressor may still be killed in these instances.

      To put this point another way, to view self-defense as serving some broader societal goal is to make it contingent. (25) Because the law will not be in a position to calculate in every instance, we will have a broad rule prohibiting aggression. However, in any individual case, it may be that that rule is overinclusive and the defender should not have the right to self-defense. It strikes us that this cannot be so: it cannot be that a criminal law theorist cannot defend against a culpable attack by a philanthropic scientist while they are (briefly) stranded on a desert island. It cannot be that the fight to defend crucially depends on society getting sufficient bang for the self-defense buck.

   2. RIGHTS-BASED VIEWS

      Rights-based views start from a different premise. Typically, they begin with the very strong claim that we have a right to life, or a right not to be killed. Second, because self-defense is necessary to protect this right, we must allow defenders to use force to prevent their own extinction.

      Although rights-based accounts appear promising, there are significant difficulties here. Most problematic is the need to account for the asymmetry between the defender and the aggressor; if the defender has a right to life, so too does the aggressor. Indeed, the central question in self-defense is why one is allowed to take a life to preserve a life. At this point, theorists begin to talk of forfeiting the right to life, specifying the right to life (one has the right except...), or overriding the right to life (one may be killed if...). (26)

      The first move available to the rights theorist is to claim that the aggressor, by virtue of his aggression, forfeits his right to life. The problems with this view are well known. First, forfeiture cannot explain how the aggressor regains his...