Reclaiming Proportionality (Society for Applied Philosophy Annual Lecture 2016)

My 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 laws – the 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 when retreat is stand your ground laws force as to The central is the laws in stand the defender's to stand ground to as to the use of lethal force. 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The of force has to be the ground’ the it is to – a can the the judgment it a about it in with the the In that a what that judgment in of some the of a The use of defensive force is as the that you when you the from the of nature in which is to the which with the of defensive force, to law. is it a in the of nature and in the in a of with in the way that the stand your ground laws might seem to Instead, it is on which the of rights can be the of a The is by the of the and the of a to the it is it by its to – in the force for or what is necessary and what is – in a legal these are for the law to the that the defensive force that use of force to be necessary and is not the of the of force, the use of defensive force by someone has the of in is to by a As a but of of a defensive force in the of in particular, in that the be to a can proportionality in both both by force and by force, of defensive force to the the to to stand on or difference between the and the is that in the the a duty to both As a in the self-defence the has a but not a duty to or and can use defensive force is to the a different to example of the it two the and about rights as between as to enforcement in a legal to the not proportionality but the of As a a legal – not – that its is to against that means that as a can be and a to can its in the of the of a legal might be to with lethal force against the – it necessary in they can be made to or the it might be that ‘stand your ground’ laws on necessity on the to be is The is not the no but their ground or to is to the ground or can be or The with lethal force that the it there be no to the with force is that are to In addition to otherwise necessary of force can as a what is a is a of of defensive force that I you are to but I not to against your defensive force. I I a with no to what I the that I I might Instead, it the which can be a not but I you and you and I use force against your the force I use might be not entitle to use force, use of force. I that the way to reclaim the idea of proportionality is to it not as a of the rights that as against but as a of enforcement. My aim in this lecture has been to can be both and to I not a for to is no that to or use force, they suppose that they are the law. a on the enforcement of rights – these are rights – that the of the in enforcement. of stand your ground laws that the is the of enforcement. I to argue that proportionality in enforcement of the of a in any enforcement and the of a in a for is what it is to under the for In with both the lecture and between the lecture and it to I its is that of the I to as a in to this to the for to the to the of the for their and and to and for

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