What Should We Say about Contrived ‘Self-Defense’ Defenses?

Professor Daniel Farrell
A good example of one kind of case that raises the problem of the “Actio Libera in Causa” is the case of the defendant who “deliberately drinks himself into a state of irresponsibility in order to commit a crime while in that state” (Finkelstein and Katz, “Contrived Defenses and Deterrent Threats,” p. 480). The question such a case raises, of course, or one question it raises, at any rate, is “whether we should deny the defendant a defense we would otherwise grant because the defense is claimed in the context of a plan to produce [that defense]” (ibid.). In my presentation I want to ask about a different kind of case, also mentioned but not discussed by Finkelstein and Katz: the case of “the person who provokes another to attack him, in order to be able to kill the latter in self-defense” (ibid., p. 482). I show that there are important differences—some obvious, some not—between this sort of case and the first case mentioned above, and I explore those differences to see what we can learn from them in connection with the “Actio” problem generally. Central to my discussion is my own view about self-defense and when it is (morally) justified, which holds, very briefly, that when it is justified, harm to another in direct self-defense is justified as a form of distributive justice: when someone has wrongfully made it necessary that either he or some other(innocent) person must suffer some degree of harm, the latter is justified, as a matter of basic justice, in taking steps to see to it that the former is harmed, rather than that she is harmed, at least if the harms in question are in some sense roughly proportional. The problem in contrived cases of self-defense, I argue, is that it is not entirely clear, in such cases, whom to hold responsible for the necessity of someone’s having to be harmed. At first blush, it seems the planner/provoker is the responsible party in such cases and that his “target” is the victim. But reflection on the case, especially in the context of the theory of self-defense just sketched, suggests that the question of whom to hold responsible for the choice of harms is more complicated than this initial answer suggests.