Tuesday, February 25, 2014

Debrabander on "Stand Your Ground"

Firmin Debrabander has a truly bad post at "The Stone" on so-called "Stand Your Ground" laws. I am just baffled at his argument. He gives us a characterization of the particular features of "Stand Your Ground" in which he is interested:

Florida’s Stand your Ground statute says that a person may use force, “including deadly force if [he] reasonably believes it is necessary to do so to prevent death or great bodily harm to himself …” It is a logical extension of the increasingly expansive gun legislation in many parts of the country. Ohio recently approved its own version of the law, and others are poised to join in. Still, controversies surrounding the law continue to pile up.

OK, so Debrabander himself tells us that the law is that you are protected from penalty if you kill someone when you "reasonably believe" that if you don't you yourself will be killed or maimed. And he gives us his overall opinion of "Stand Your Ground", which is that it encourages the wrong kind of society. That is fine, as well. Where the whole post goes obviously haywire is when he goes beyond merely giving his personal opinion and tries to build a relevant philosophical argument on the subject.

The philosophical argument is based on Locke's concept of the 'state of nature'. Locke gives us a whole discussion of the state of nature, so we have a pretty good idea of what it is supposed to be. But what does it have to do with "Stand Your Ground" laws? According to Debrabander:

Proponents and defenders of Stand Your Ground effectively wish to return us to a State of Nature and its attendant “Inconveniences” — and dangers. LaPierre urges individuals to presume the worst about supposed assailants — damn the consequences.

Err, no; this is obvious hyperbole, and at a fatal point in the argument. In Locke's state of nature there is no civil society at all; there would be no SYG laws in the state of nature because the only law in the state of nature is natural law. Further, in the state of nature, each human being is executive enforcer of every single law, and thus may punish someone for any actual crime under natural law; but SYG laws -- as Debrabander well knows, having actually quoted a typical one -- are restricted in scope. They do not say that you can use deadly force in the face of any crime.

In addition, the distinguishing feature of civil society as opposed to the state of nature is, as Debrabander says, that civil society is based on the principle that men should not act as magistrates in their own cases. But obviously this does not imply that men can do nothing unless authorized by the magistrate; it means that there should be common magistrates determining such cases as prevent abuses involving violence and partiality to one's cause. And SYG laws don't do away with the common magistrate or judge; they depend on them, because it will be such magistrates who determine that yes, the person in question is protected under the law. Locke recognizes one kind of state of nature in our age of civil societies: the state of nature existing between sovereigns. But SYG is based on there being a higher magistrate to which one may appeal and before which one may be held accountable.

We see the problems with Debrabander's hyperbole in one of the arguments he makes:

Without recourse to a Common Judge, violent reprisals spawn violent reprisals in turn, which are each seemingly just, and a cycle of violence — a state of war — is born. Civil society, and its institution of a Common Judge who takes over executing the law of nature, relieves us of the “Inconveniences of the State of Nature,” Locke argues — which can be dire indeed.

This is what leads directly into his claim that proponents of the SYG laws are advocating the state of nature. But SYG has nothing at all to do with reprisal; Debrabander explicitly noted that they were concerned with self-defense, which is not reprisal.

So not only does SYG not establish, or even get one anywhere near, a state of nature, depending as it does on common judges, but the state of nature is not a state of war at all, and civil society does not make the state of war impossible. In fact, if we go back to the scenario envisaged in Florida's SYG law, which Debrabander had quoted, it is clear that it's a law protecting the right to defend yourself, even if it means killing, if someone else initiates a state of war against you. That's how would one characterize it in Lockean terms. And what is more, it is clear that Locke would think this thoroughly reasonable:

... the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which if lost is capable of no reparation, permits me my own defence and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge, nor the decision of the law, for remedy in a case where the mischief may be irreparable.

Indeed, Locke thinks that this means that you could kill someone deliberately trying to steal your coat (his own example). But contrary to Debrabander this has nothing to do with the state of nature; it has everything to do with the fact that the other person has initiated a state of war against you, whether you are in a state of nature or in a political society. (He is quite clear that the state of war is initiated by anyone who violates the natural rights of another, regardless of the kind of society in which they live.)

Now, in fact Locke does think that in civil society we give up our executive powers to the commonwealth government. But the government has this power in order to sustain the natural law, in which individual preservation ranks high. Thus the people in civil society, according to Locke's view, have the right to demand that the government pass whatever laws are required to protect the people against aggressors. While Locke obviously doesn't consider the matter in detail, it's clear enough that Locke's conception of how the commonwealth relates to natural law directly implies that the legislature has no right to demand that people let other people kill or maim them: so either it guarantees that this will not happen, or it recognizes under law the ways in which people can defend themselves. This does not return matters to a state of nature, because it is under law. It does not establish a state of war; it protects people against whom someone else has established a state of war.

None of this, of course, has much to do with whether SYG laws are any good; nor does it imply that you couldn't have a general argument on Lockean principles against them. Rather, it's that Debrabander's attempt to turn Locke 'round against it collapses under its own exaggeration. In reality, the real question of SYG is this: How far can the state go in recognizing your right to defend yourself against someone threatening your life and body? That's pretty much it; no need for talk about states of nature. (It's worth noting that David French, to whose argument Debrabander is responding, never appeals to Locke on the state of nature; he quotes Locke on the state of war, and on the natural law, both of which would be stronger points to press. Why Debrabander takes this turn into talking about the state of nature is beyond me.)

1 comment:

Please understand that this weblog runs on a third-party comment system, not on Blogger's comment system. If you have come by way of a mobile device and can see this message, you may have landed on the Blogger comment page, or the third party commenting system has not yet completely loaded; your comments will only be shown on this page and not on the page most people will see, and it is much more likely that your comment will be missed.