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San Diego Law Review

Douglas Husak

Document Type

Article

Abstract

The burgeoning self-defense literature, like that in most areas of moral and legal philosophy, typically begins with and seeks to rationalize our intuitions. I submit that the intuitive judgment of virtually all respondents, at least initially, is that IV is permitted to exercise her right of self-defense, however futile, and scratch WA. This intuition, I believe, is incredibly powerful and robust; I certainly have it myself. Yet quite a few philosophers and legal theorists contend IV is not permitted to employ futile self-defense against WA. Presumably, they believe IV must passively accept her fate without injuring WA. Why hold this counterintuitive judgment? Two possible answers are available. First, contrary to my generalization about what most respondents are likely to believe initially, these philosophers may not share my intuition that IV is permitted to injure WA when resistance is futile. Second, these philosophers might share this intuition initially, but ultimately reject it on theoretical grounds. I find it hard to believe the first answer explains why many philosophers contend that IV’s act is impermissible. Virtually all respondents, as I have said, begin with the initial intuition that IV is permitted to scratch WA, although it is hard to know how to respond to those philosophers who disagree.

In what follows, I focus on the second answer, which I regard as more common and plausible. Philosophers who eventually reject their intuition and come around to holding that IV is not permitted to injure WA do so because they are unable to bring their initial judgment into reflective equilibrium with other particular judgments and general principles they hold about self-defense. Of course, nothing is methodologically suspect about a procedure by which initial intuitions are rejected because they fail to withstand the test of reflective equilibrium. Unless some such initial intuitions were eventually rejected on this ground, we could simply rely on them without the need to subject them to reflective equilibrium in the first place. Nonetheless, I will try to defend the initial intuition that IV is permitted to employ futile self-defense against WA. I will endeavor to show that our intuition about this case does not really contradict some of the other particular judgments and general principles about self-defense we should hold. This effort, however, is necessarily incomplete. I make no systematic effort to show that this intuition is compatible with the judgments we are likely to make about every case in which self-defense is permissibly exercised.

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