Fairness, Responsibility and Self-Defense

78 Pages Posted: 20 Jul 2005

See all articles by Re'em Segev

Re'em Segev

Hebrew University of Jerusalem – Faculty of Law

Abstract

There is general agreement, which is rarely found in normative discussions, that self-defense is justified, at least in some paradigm situations. Indeed, most commentators consider self-defense to be the archetype justification for harming individuals and the yardstick for the validity of other alleged justifications for harmful conduct. Yet the justification for self-defense is typically presumed rather than explained. Moreover, when it is explored, substantial disagreements emerge with respect to its foundation and scope, and many of the offered explanations seem unsatisfactory. The inability of moral and legal theories to provide a cogent justification for self-defense has even made some scholars pessimistic about the general project of accounting for the normative foundation of self-defense and has caused others to consider self-defense not as a justification but merely as an excuse. In light of this background, this article suggests a justification for self-defense based on a general thesis regarding the resolution of interpersonal conflicts. This thesis includes two basic ideas. First, individual well-being is the fundamental value in the contest of interpersonal conflicts. Second, interpersonal conflicts should be resolved in light of several notions of fairness, which reflect the independent value of persons, the difference in the importance of various aspects of individual well-being and the moral significance of responsibility of persons for interpersonal conflicts. These ideas are elaborated in several normative principles. This article applies this thesis to the justification of self-defense, explores its implications, and compares it to other proposed justifications for self-defense.

Keywords: Fairness, Responsibility, Self-Defense

Suggested Citation

Segev, Re'em, Fairness, Responsibility and Self-Defense. Santa Clara Law Review, Vol. 45, No. 2, pp. 383-460, 2005. Available at SSRN: https://ssrn.com/abstract=756947

Re'em Segev (Contact Author)

Hebrew University of Jerusalem – Faculty of Law ( email )

Mount Scopus
Jerusalem, 91905
Israel

HOME PAGE: http://en.law.huji.ac.il/people/reem-segev

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