Reclaiming Proportionality (Society for Applied Philosophy Annual Lecture 2016)

RIPSTEINMy aim in this lecture is to reclaim the idea of proportionality for a rights-based theory of interpersonal morality and law.The topic gets its interest from two directions.Recent philosophical writing about proportionality analyses it in terms of some weighted balance of goods to be achieved against harms that are created in the process.There is a great sophistication in this contemporary writing about proportionality, and many important distinctions between different occasions, in particular, between proportionality in the use of defensive force, and proportionality in the context of a broader judgment about the justification of so-called 'lesser evils'. 1 Prominent writers in this area reject consequentialism, restricting both the catalogue of goods to be weighed and the range of morally significant difference in weight.I will argue for a fundamentally different way of thinking about proportionality, which focuses not on the relation between good results and bad side effects, but instead on the restrictions on the use of means of enforcement that are otherwise available.Like many of these contemporary writers, I will treat the example of proportionality in the use of defensive force against wrongdoing as a central example.In addition to this philosophical interest, the topic has recently acquired a legal and moral urgency, as a result of the recent development of what purports to be a more narrowly rights-based perspective on the use of defensive force.In a number of American states, the law of self-defence has been modified to include what are called 'stand your ground' provisions, which entitle someone when faced with aggression or wrongdoing to use lethal force to prevent it.As the name suggests, under these regimes, there is no duty to retreat when faced with a wrongdoer.Instead, you can stand your ground against him.There are many objections that might be made to the application of these lawsthe extent to which they depend upon the defender's subjective beliefs about the danger posed by the supposed aggressor, 2 and the way in which on-going patterns of discrimination seem to be reinforced by them.Without in any way meaning to suggest that these are minor difficulties, I hope to use a discussion of proportionality to raise a different objection to them; in particular, focusing on the way in which they misunderstand the nature of rights and the nature of their enforcement.Stand your ground laws raise issues about necessity as well as proportionality; where traditional Anglo-American ideas about defensive force suppose it to be necessary only when retreat is impossible, stand your ground laws permit force as an alternative to retreat.The central issue is proportionality: the laws in question stand the defender's entitlement to stand his ground (not merely to preserve his life) as sufficient to justify the use of lethal force.In order to defend the idea that proportionality is about the acceptable use of means rather than the relation between good results and bad side effects, I will, as advertised

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