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Firth and Quong on Liability to Defensive Harm: A Critique

12 Pages Posted: 3 Dec 2013  

Uwe Steinhoff

The University of Hong Kong - Department of Politics and Public Administration

Date Written: December 20, 2012

Abstract

Joanna Mary Firth and Jonathan Quong argue that both an instrumental account of liability to defensive harm, according to which an aggressor can only be liable to defensive harms that are necessary to avert the threat he poses, and a purely noninstrumental account which completely jettisons the necessity condition, lead to very counterintuitive implications. To remedy this situation, they offer a “pluralist” account and base it on a distinction between “agency rights” and a “humanitarian right.” I argue, first, that this distinction is spurious; second, that the conclusions they draw from this distinction do not cohere with its premises; third, that even if one granted the distinction, Firth’s and Quong’s implicit premise that you can forfeit your agency rights but not your “humanitarian right” is unwarranted; fourth, that their attempt to mitigate the counterintuitive implications of their own account in the Rape case relies on mistaken ad-hoc assumptions; fifth, that even if they were successful in somewhat mitigating said counterintuitive implications, they would still not be able to entirely avoid them; and sixth, that even in the unlikely case that none of these previous five critical points are correct, Firth and Quong still fail to establish that aggressors can be liable to unnecessary defensive harm since they fail to establish that unnecessary harm can ever be defensive in the first place.

Keywords: Joanna Mary Firth, instrumentalism, liability, necessity, rights, self-defense, Jonathan Quong

Suggested Citation

Steinhoff, Uwe, Firth and Quong on Liability to Defensive Harm: A Critique (December 20, 2012). Available at SSRN: https://ssrn.com/abstract=2362549 or http://dx.doi.org/10.2139/ssrn.2362549

Uwe Steinhoff (Contact Author)

The University of Hong Kong - Department of Politics and Public Administration ( email )

Pokfulam Road
Centennial Campus
Hong Kong, Pokfulam HK
Hong Kong

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