It is generally accepted that people have a moral right to self-defense. That is, if someone is unjustly attacked or threatened, then it is morally acceptable for her to act in her own self-protection. While there are moral limits on the actions a person may take, violence is generally considered morally acceptable in the right condition.
This right to self-defense does seem to provide a philosophical foundation for the right to the means of self-defense. After all, as Hobbes argued, a right without the means to exercise that right is effectively no right at all. Not surprisingly, I consider the right to own weapons to be grounded on the right of self-defense. However, my concern here is not with the right of self-defense. Rather, I will focus on the question of whether or not there is an obligation of self-defense.
The right to self-defense (if there is such a right) gives a person the liberty to protect herself. If it is only a liberty, then the person has the right to not act in self-defense and thus be a perfect victim. A person might, of course, elect to do so for practical reasons (perhaps to avoid a worse harm) or for moral reasons (perhaps from a commitment to pacifism). However, if there is an obligation of self-defense, then failing to act on this obligation would seem to be a moral failing. The obvious challenge is to show that there is such an obligation.
On the face of it, it would seem that self-defense is merely a liberty. However, some consideration of the matter will suggest that this is not so obvious. In the Leviathan, Hobbes presents what he takes to be the Law of Nature (lex naturalis): “a precept or general rule, found by reason, that forbids a man to do what is destructive of his life or takes away the means of preserving it and to omit that by which he thinks it may be best preserved.” Hobbes goes on to note that “right consists in liberty to do or to forbear” and “law determines and binds.” If Hobbes is correct, then people would seem to have both a right and an obligation to self-defense.
John Locke and Thomas Aquinas also contend that life is to be preserved and if they are right, then this would seem to impose an obligation of self-defense. Of course, this notion could be countered by contending that all it requires is for a person to seek protection from possible threats and doing so could involve relying on the protection of others (typically the state) rather than one’s self. However, there are at least three arguments against this.
The first is a practical argument. While the modern Western state projects its coercive force and spying eyes into society, the state’s agents cannot (yet) observe all that occurs nor can they always be close at hand in times of danger. As such, relying solely on the state would seem to put a person at risk—after all, he would be helpless in the face of danger. If a person relies on other individuals, then unless she is guarded at all times, then she also faces the real risk of being a helpless victim. This would, at the very least, seem imprudent.
This argument can be used as the basis for a moral argument. If a person is morally obligated to preserve life (including his own) and the arms of others cannot be reliably depended on, then it would seem that she would have an obligation of self-defense.
The third argument is also a moral argument. One favorite joke of some folks who carry concealed weapons is to respond, when asked why they carry a gun, with the witty remark “because cops are too heavy.” While this is humor, it does point towards an important moral concern regarding relying on others.
A person who relies on the protection of others is expecting those people to risk being hurt or killed to protect her. In the case of those who are incapable of acting in effective self-defense, this can be a morally acceptable situation. After all, it is reasonable for infants and the badly injured to rely on the protection of others since they cannot act in their own defense. However, a person who could be competent in self-defense but declines to do so in favor of expecting others to die for her would seem to be a morally selfish person. As such, it would seem that people have an obligation of self-defense—at least if they wish to avoid being parasites.
An obvious counter is that people do rely on others for self-defense. After all, civilians wisely allow the police and military to handle armed threats whenever possible. Since the police and military are armed and trained for such tasks, it makes sense practically and morally to rely on them.
However, as noted in the first argument, a person will not always be under the watchful protection of others. Even if others are available to risk themselves, there is still the moral concern regarding of expecting others to take risks to protect one when one is not willing to do the same for himself. That seems to be cowardice and selfishness and thus morally reprehensible. This is not, of course, to say that accepting the protection of the police and military is always a moral failing—however, a person must be willing to accept the obligation of self-defense and not rely entirely on others.
This raises the matter of the extent to which a person is obligated to be competent at self-defense and when it would be acceptable to rely on others in this matter. It would, of course, be an unreasonable expectation to morally require that people train for hours each day in self-defense. However, it does seem reasonable to expect that people become at least competent at protecting themselves, thus being able to at least act on the obligation of self-preservation with some chance of success. This obligation of self-preservation would also seem to obligate people to maintain a degree of physical fitness and health, but that is a matter for another time.
When a person does terrible things that seem utterly senseless, like murder children, there is sometimes a division in the assessment of the person. Some people will take the view that the person is mentally ill on the grounds that a normal, sane person would not do something so terrible and senseless. Others take the view that the person is evil on the grounds that a normal, non-evil person would not do something so terrible and senseless. Both of these views express an attempt to explain and understand what occurred. As might be imagined, the distinction between being evil and being mentally ill is a matter of significant concern.
One key point of concern is the matter of responsibility and the correct way to respond to a person who has done something terrible. If a person acts from mental illness rather than evil, then it seems somewhat reasonable to regard them as not being accountable for the action (at least to the degree the person is ill). After all, if something terrible occurs because a person suffers from a physical illness, the person is generally not held accountable (there are, obviously, exceptions). For example, my running friend Jay told me about a situation in which a person driving on his street had an unexpected seizure. Oddly, the person’s foot stomped down on the gas pedal and the car rocketed down the street, smashing into another car and coming to a stop in someone’s back yard. The car could have easily plowed over my friend, injuring or killing him. However, since the person was not physically in control of his actions (and he had no reason to think he would have a seizure) he was not held morally accountable. That is, he did nothing wrong. If a person had intentionally tried to murder my friend with his car, then that would be seen as an evil action. Unless, perhaps, the driver was mentally ill in a way that disabled him in a way comparable to a stroke. In that case, the driver might be as “innocent” as the stroke victim.
There seem to be at least two ways that a mentally ill person might be absolved of moral responsibility (at least to the degree she is mentally ill).
First, the person might be suffering from what could be classified as perceptual and interpretative disorders. That is, they have mental defects that cause them to perceive and interpret reality incorrectly. For example, a person suffering from extreme paranoia might think that my friend Jay intends to steal his brain, even Jay has no such intention. In such a case, it seems reasonable to not regard the person as evil if he tries to harm Jay—after all, he is acting in what he thinks is legitimate self-defense rather than from a wicked motivation. In contrast, someone who wanted to kill Jay to rob his house or just for fun would be acting in an evil way. Put in general terms, mental conditions that distort a person’s perception and interpretation of reality might lead him to engage in acts of wrongful violence even though his moral reasoning might remain normal. Following Thomas Aquinas, it seems sensible to consider that such people might be following their conscience as best they can, only they have distorted information to work with in their decision making process and this distortion results from mental illness.
Second, the person might be suffering from what could be regarded as a disorder of judgment. That is, the person’s ability to engage in reasoning is damaged or defective due to a mental illness. The person might (or might not) have correct information to work with, but the processing is defective in a way that causes a person to make judgments that would be regarded as evil if made by a “normal” person. For example, a person might infer from the fact that someone is wearing a blue hat that the person should be killed.
One obvious point of concern is that “normal” people are generally bad at reasoning and commit fallacies with alarming regularity. As such, there would be a need to sort out the sort of reasoning that is merely bad reasoning from reasoning that would count as being mentally ill. One point worth considering is that bad reasoning could be fixed by education whereas a mental illness would not be fixed by learning, for example, logic.
A second obvious point of concern is discerning between mental illness as a cause of such judgments and evil as a cause of such judgments. After all, evil people can be seen as having a distorted sense of judgment in regards to value. In fact, some philosophers (such as Kant and Socrates) regard evil as a mental defect or a form of irrationality. This has some intuitive appeal—after all, people who do terrible and senseless things would certainly seem to have something wrong with them. Whether this is a moral wrongness or health wrongness is, of course, the big question here.
One of the main reasons to try to sort out the difference is figuring out whether a person should be treated (cured) or punished (which might also cure the person). As noted above, a person who did something terrible because of mental illness would (to a degree) not be accountable for the act and hence should not be punished (or the punishment should be duly tempered). For some it is tempting to claim that the choice of evil is an illusion because there is no actual free choice (that is, we do what we do because of the biochemical and electrical workings of the bodies that are us). As such, people should not be punished, rather they should be repaired. Of course, there is a certain irony in such advice: if we do not have choice, then advising us to not punish makes no sense since we will just do what we do. Of course, the person advising against punishment would presumably have no choice but to give such advice.
A short while ago, I received a summons for jury duty. Being a philosopher, I naturally set out to research the matter and one of the more interesting things I came across was the concept of jury nullification.
Jury nullification takes place when the members of a jury believe that the defendant is actually guilty of breaking the law yet a verdict of not guilty is rendered. This has the effect of nullifying the law. Generally, the term is applied when a jury acts on the basis of either a belief that the law itself is immoral or has been improperly applied to the defendant.
Perhaps the best known case of nullification occurred in 1735. John Peter Zenger was charged with libeling William Cosby, the governor of what was then the colony of New York. While Zenger had, in fact, printed the alleged libelous material, the jury elected to find him not guilty, thus nullifying the law.
The morally tumultuous 1800s saw numerous cases of jury nullification as many juries rendered verdicts of not guilty in defiance of the Alien and Sedition Act as well as the Fugitive Slave Laws. During prohibition, many juries did the same for people accused of violating the laws relating to alcohol. The practice has continued to this day, although to a lesser degree relative to the 1800s.
The legality of jury nullification has an interesting history and is nicely summarized by Doug Linder. While the legality of jury nullification is interesting, my main concern is the ethics of the matter.To limit the scope of the discussion, I will focus on the morality of nullification based on moral grounds.
On the face of it, a jury should follow the law. After all, to paraphrase Thomas Aquinas, laws are created with the expectation of obedience. However, Aquinas also argues that there is an objective moral basis by which to assess human laws and human laws that fail to measure up are not true laws, but perversions of law. Of course, other thinkers (such as Thomas Hobbes) reject this sort of view. This disagreement provides the basis for an interesting (and possibly false) dilemma.
On the face of it, law is either based on a moral foundation or it is not. Now, if law has no moral foundation at all, then there would seem to be no basis to morally criticize a jury for nullifying a law. After all, they would have no moral obligation to follow the law.
However, if law has a moral foundation, then it would owe (at least some of) its authority to that moral foundation. This would seem to entail (with some suitable and lengthy argumentation) that any law that goes against that moral foundation would be an illegitimate law. This would clearly provide a moral basis for jury nullification. After all, if the jury has correctly discerned the law as being illegitimate (that is, it violates the moral foundation of law) then they would be in the right to refuse to apply it. Naturally, if they elected to apply it, then the folks on the jury would be acting in what would seem to be an immoral manner.
It might be objected that even if the law has a moral foundation, jury members are obligated to apply the law even if it is an immoral law. One might even point to Socrates‘ arguments in the Crito as to why a citizen owes obedience even when he disagrees with the law (although the citizen should try to persuade the state to change such laws).
While this objection does have a certain appeal, it can be countered by noting that the status of a person as a moral agent has a moral priority over her status as a citizen. This is to say that morality is more fundamental than the law. As such, a person has a primary obligation to do what is right and this can override other apparent obligations, such as the obligation to obey the law. In fact, if it is argued that a person is morally obligated to obey the law, the objection already assumes that morality is more fundamental than law. Otherwise, one would just say that the law commands obedience that overrides everything. This, of course, leads to the next objection.
Some thinkers hold exactly that: the law commands obedience. Some, such as the legalists, go even further and assert that what the law commands is good because it commands it and what it forbids is evil because it forbids it. On this view, citizens should obey the law because it is the law.
A reply to this is the intuitive view that there have been and are evil laws that should not be obeyed. That people should do what the state says because the state says so hardly seems to be a satisfying moral theory. Rather, it seems to be merely the dream of authoritarians and dictators.
A final objection worth considering is that a jury might be mistaken about the ethics of the law and hence they should simply follow the law out of fear of being wrong.
The easy and obvious reply to this is that if a jury can be trusted to make life and death decisions, surely they can be trusted to make such moral judgments. If juries cannot be trusted to make such tough moral decisions, then this would undercut the entire notion of trial by jury and thus render the whole concern about nullification moot. The objection does, however, present a reasonable concern. After all, juries should not lightly or frivolously apply nullification nor should they do so unless the folks on the jury have properly considered the ethics of the matter. In cases of immoral laws, jury nullification would seem to be more than morally acceptable-it would seem to be morally required.