Self-defense, moral acceptability, and compensation: a response to professor Fontaine.

• Author: Corrado, Michael Louis
• Position: Article by Reid Griffith Fontaine in this issue, p. 57 - A Symposium on Self-Defense

Professor Fontaine has very kindly asked me to comment upon his paper. It is an ambitious paper, one that raises many interesting questions. I will confine myself to commenting on just two or three.

1. THE THREE REQUIREMENT FRAMEWORK

   Professor Fontaine proposes a three-requirement framework for his hybrid theory of justification. (1) I have questions about two of the requirements.

   1. "Prior to the actor's initiation of force."

      If we accept that there cannot be competing justifications, that Jones and Smith cannot both be justified in their aggression against each other, then a problem may be said to arise for a hybrid theory of justification. Suppose that Jones and Smith, two enemies, come upon each other in a dark wood, and suppose that each reasonably believes that the other will try to kill her in mistaken self-defense. Both, therefore, simultaneously initiate deadly force intended to protect themselves from the threat posed by the other; and in fact each is correct at that point in time in believing that if she does not kill the other, the other will kill her. (2)

      According to Fontaine, what a Fletcher-type hybrid theory requires for justified self-defense is that (a) the killer acted with the belief that his act was necessary to prevent the victim from carrying out his imminent threat of grievous bodily harm or death, and (b) the killingdid indeed prevent the victim from causing grievous bodily harm or death to the killer. (3) (I think Professor Fontaine is mistaken in this formulation, a point I will take up later.) Suppose the defensive action taken by Smith and Jones succeeded in protecting each of them from serious harm or death. Since each acted, at the moment of action, with the true belief that action was necessary to prevent the other from carrying out his lethal threat, each is therefore justified. Assuming that such competing justifications are impossible, the situation is paradoxical.

      The paradoxical conclusion may seem to depend upon the defensive actions being undertaken simultaneously; otherwise one of them would be unjustified, since she would have initiated defensive action when she was not yet under attack. Professor Fontaine therefore adopts the following requirement for justification as a way to avoid the paradoxical conclusion:

      2. The defender need act with the genuine, valid belief that it is necessary to kill the perceived source of the threat in order to prevent himself from suffering grievous bodily harm or death. Said genuine, valid belief must arise prior to the actor's initiation of defensive force. (4)

      Since neither Smith nor Jones was correct in her belief, prior to her initiation of defensive force, that it was necessary to kill the other, neither is justified, and there is no paradox.

      A necessary condition? I am not sure I fully understand Professor Fontaine's proposal and I have some questions about it. The first is whether the proposed requirement is not too strong. Is it a necessary condition of justified self-defense that an actor's belief that he is under attack must be true before he initiates defensive action? Suppose, for example, that Jones believes that she is being hunted by Smith. It is not true that Smith is hunting Jones, but she has in fact sworn to kill her if she spots her. In a dark wood where she is hiding Jones spots Smith, but cannot tell whether Smith...