Many retributivists maintain that when a defendant commits an offense, (1) the defendant forfeits rights against punishment and (2) it is intrinsically good for the defendant to get the punishment he deserves. Self-defense theorists often maintain that when certain conditions are met, (1) an aggressor forfeits his rights against defensive force and (2) the aggressor may be harmed instrumentally to prevent his attack. In the context of a symposium on Uwe Steinhoff’s "Just War Theory," this paper examines the intersection of defense and desert. First, may desert and defense be aggregated when, for instance, the amount of harm that is proportionate solely as a matter of self-defense is insufficient? That is, may the defender, to quote Robert Nozick, “draw against” the punishment to increase the amount of harm that may be imposed? Second, when an aggressor is harmed as a matter of self-defense, is this also an instance of punishment? And if so, may that punishment be set off against any later punishment by the state? I argue that desert and defense can aggregate, but that when defense is sufficient to justify the harm, the desert reason remains inoperative, such that the aggressor may later be fully punished. In instances of overdetermined justification, defense and desert reasons don’t share.
Self-Defense, Retributivism, Desert, Proportionality, Steinhoff
San Diego Law Review
Ferzan, Kimberly Kessler, "Defense and Desert: When Reasons Don’t Share" (2018). Faculty Scholarship at Penn Law. 2325.