Self-Defense and Human Rights:
David Little Responds
As we continue the important conversation begun in early June with the publication of David Little’s The Right of Self-Defense and the Organic Unity of Human Rights, Dr. Little here responds to comments and reflections on his theory previously offered by Mark Hill QC and John Witte, Jr.
Responding to Mark Hill’s Human Rights, Human Dignity and Personal Autonomy: A Reflection on David Little’s Theory of Self-Defense and Organic Unity
I wish to embrace and, as I understand things, expand a bit on the deeply perceptive comments of Mark Hill, suggesting the interconnection of self-defense, dignity, and autonomy. In declaring that “all members of the human family” have “inherent dignity” and “equal and inalienable rights” in the opening passage of the Preamble, or that “all human beings are free and equal in dignity and rights” in Article 1, the Universal Declaration of Human Rights (UDHR) places the two ideas, “dignity” and “rights,” side by side without ever indicating what, exactly, their relationship is. Many commentators have seized on the concept of dignity as the basis from which human rights should be derived, and there is no denying that the concept, which means a “state or quality of being worthy of honor or respect,” is central in human rights terminology, as Hill points out. To uphold the human rights of everyone is at the same time to uphold the dignity of everyone.
The problem is the idea of dignity, in and of itself, is not self-limiting. It has been applied in radically different cultural and religious contexts. It may well be used to mean treating all people equally, regardless of “race, color, sex, language, religion,” etc. But it has also been used in other settings, such that slaves, ordained by nature to their lot, are treated with due dignity in an ideal Aristotelian society if they are kept in their place. Similarly, women can be thought to be accorded due dignity if they are treated as servants of the male, as in some interpretations of Christianity and Islam.
To ground the idea of dignity in the prior equal right of self-defense, and in the concomitant nonderogable and derogable rights that arguably flow from it, as I would propose, is to understand the right of self-defense, and the rights associated with it, as at least partly constitutive of the notion of dignity. Simply put, one could not be said to treat another person with dignity, and, at the same time, inflict arbitrary force (in its various forms) on that person. The idea is not, to be sure, that there is nothing more to the notion of dignity than that. Respecting the logic of defensive force and the rights associated with it is but a necessary condition for treating others with dignity, certainly not a sufficient condition. But it is an indispensable condition, nevertheless. If this is correct, then, as Hill implies, the dignity of all is best guaranteed where a government, dedicated to protecting human rights by the rule of law, is systematically and consistently organized and conducted in accord with the conditions of defensive force: necessity, imminence, proportionality, and right intention. These conditions should be supplemented with certain rule-of-law conditions, such as accountability and transparency, as discussed in my response to David Kim).
Something similar may be said about the idea of autonomy. The word does not appear in the human rights instruments, but it has been taken by numerous commentators to be strongly implied in them. Hill’s comments are very interesting in this regard. He defines “autonomy” as “the right to act in accordance with one’s beliefs and precepts. It also extends to associational autonomy, allowing legitimate self-governance for religious organizations. And it applies internationally in affording autonomy to nation states to defend their borders and their people. When the autonomy of a person, a group, or a nation state is threatened, the individual, organization, and country have a right to self-defense. But the exercise of that right must be subject to a nuanced evaluation of reasonableness and proportionality in the given circumstances.” So understood, autonomy assuredly underlies the human rights code, and is indissolubly related to self-defense.
But Hill’s last sentence calls for special emphasis, something he himself anticipates. He correctly worries about a prevalent attitude he calls, “the aggressive absolutism of rights.” It is nicely captured in his description of the way critics these days characterize “rights talk” in general, and the idea of autonomy in particular: “‘It is my right to do x and I don’t care about anyone else’. We rarely hear the language of civic duty.”
However, if we put the language of rights and the idea of autonomy into the context of defensive force, “a nuanced evaluation of reasonableness and proportionality”, as Hill suggests, we can see immediately how mistaken the popular characterization is. Above all, as I stressed in my essay, the right of self-defense is a precarious right. It permits the use of lethal force, to be sure. But it does so only under strict conditions that are extremely hard to comply with because of the predictable influence of passion and fear in face of a mortal threat, and the strong likelihood, therefore, that defensive force will readily degenerate into its opposite, arbitrary force. Rather than ultimately trusting individuals to exercise successfully their own autonomous right of self-defense in the restraint of arbitrary force, the best guarantee for instituting the conditions of defensive force—required by the universal right of self-defense—is for everyone to submit to a cooperative communal system dedicated to the equal enforcement of those conditions. In such a system each person’s protection against arbitrary force depends on the equal protection of every other person. This suggests the idea, as we might put it, of “bounded autonomy,” entailing a wide range of social responsibilities and obligations, rightly synthesized under Hill’s term, “civic duty.”
Responding to John Witte’s The Right to Self-Defense as the Grundnorm for Human Rights: A Response to David Little
I am especially indebted to John Witte for the excellent summary of my position he has provided in the first part of his submission. He gets my basic argument exactly right, and with a rhetorical flourish I envy. I am particularly gratified by the support he offers in regard to my interpretation of the right of rebellion referred to in the Preamble to the UDHR, and by the parallel he draws to the American Declaration of Independence that I call attention to in my response to Jeremy Gunn. Otherwise, I have nothing else to add but appreciation.
I am also indebted to him for his discussion of the “traditional prototypes” of the position I am developing. Witte is of course a leading scholar of the history of rights, especially during and since the Protestant Reformation, and his succinct, masterful overview of the role of self-defense in the thought of Lutheran and Calvinist revolutionaries in Germany, France, Holland, Scotland, England, and America, from the sixteenth to the eighteenth centuries, is a vivid reminder of how unoriginal much of my position actually is. It is very valuable to have the historical background of my argument brought out, and to have, now, the chance to address it briefly. A special reason it is valuable is to remind secular readers that modern discussions of human rights have deep antecedents extending back well before the Enlightenment that are abundantly intertwined with religiously-identified reform movements.
Although I myself have dealt with these matters elsewhere, I left out reference to the historical background in my essay because of space constraints, but also, more importantly, because I wanted my argument to stand (or fall) on its own merits, and not be drawn into controversies over the accuracy of my historical interpretation.
Still, in the two last paragraphs of his response, Witte makes a claim about the differences between my position and the historical precedents that call for comment. He asserts that “while earlier Calvinists saw the right to self-defense as instrumental, a means to protect their fundamental rights—beginning with the fundamental rights to religion—Little variously calls the right of self-defense itself ‘foundational,’ ‘supreme,’ ‘the greatest’, the fulcrum of all other rights…the fountain through which other rights flow.” Witte continues: “And while earlier thinkers coupled natural law and natural rights with natural duties, virtues, and prescriptions for the good life and good society—often grounding and interweaving them in elaborate theological and philosophical systems of religion and belief—Little wants to limit natural law and rights talk to this minimum set of protections without a metaphysical foundation.”
In the first place, I am not clear what it means to call the right of self-defense “instrumental, a means to protect…fundamental rights,” and I doubt that radical Calvinists and their allies would have characterized their understanding that way. Richard Overton, a leader of the English Leveller movement, active during and after the Puritan Revolution of the 1640s, articulated a belief that lay deep in the natural rights tradition: “Reason hath no precedent, for reason is the foundation of all just precedents.” The “natural radical principle of reason,” which undergirds “all human rights and freedoms,” “is conveyed to men in general and to everyman in particular, that “by all rational and just ways and means,” all human beings may “save, defend, and deliver [themselves] from all oppression, violence, and cruelty whatsoever.” And John Locke, articulating the basic assumptions of the same tradition, elaborates further in the Second Treatise of Government:
And thus in the state of nature one man comes by a power over another; but yet [has] no absolute or arbitrary power to use a criminal [who is under control], according to the passionate heats or boundless extravagance of his own will; but only to retribute to him, so far as calm reason and conscience dictate, what is proportionate to his transgression, which is so much as may serve for reparation and restraint; for these are the only reasons why one man may lawfully do harm to another…
Taken together, these remarks by Overton and Locke illustrate the fundamental character of the right of self-defense: force is morally justified (i.e., legitimate) when the “only reasons” for using it are to protect one’s own life and person or another’s against an imminent arbitrary (i.e., illegitimate) attack, and are applied in a way that is proportionate and rightly intended. So understood, the right is not instrumental to some other end; on the contrary, the right itself establishes the defensive terms according to which force tout court is to be regulated. It is hard to get more “foundational” than that.
In the second place, while natural rights advocates, going back at least to medieval Europe, were not always as clear as they might have been in distinguishing “natural” from “extra-natural” appeals in the justification of rights, we have it on Brian Tierney’s authority that “the subjective idea of natural right was not derived specifically from Christian revelation or from some all-embracing natural-law theory of cosmic harmony[,] but from an understanding of human nature as rational, self-aware, and morally responsible.”1 Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law, 1150-1625, p. 76 (1997). I don’t think my argument in favor of the blatant rational “incomprehensibility” of arbitrary force—force employed “according to the passionate heats or boundless extravagance of…will,” in Locke’s memorable words—is very much different from what Overton, Locke, and many other natural rights advocates had in mind.
I concede my position is somewhat narrow in that it is limited to underwriting the human rights code definitively enshrined in the UDHR and the ICCPR and ICESCR. But that doesn’t mean it leaves completely out of account “duties, virtues, and prescriptions for the good life and good society,” or ignores any reference to metaphysical questions, as Witte suggests.
As I contend in my response to Mark Hill, the need to find a cooperative communal solution to the precariousness of the practice of self-defense—the likelihood when the threat of force exists that “passionate heats” and “the boundless extravagance of will” will obscure “calm reason and conscience”— entails the cultivation of duties and virtues in support of the public good, and involves at least the necessary conditions for “the good life and good society.”
I do not take the matter up in my essay, but holding the “grundnorm” I do undoubtedly begs some limited metaphysical support. I admit that while my appeal to what I believe is the blatant irrationality of arbitrary force assumes a kind of self-evidence, there exists behind that claim a notion of ethical objectivity, or “judgment-independent truths of ethics and practical reason” in Thomas Nagel’s terms, that cannot altogether avoid metaphysical questions.2Thomas Nagel, Mind and Cosmos: Why the Materialist Neo-Darwinian Conception of Nature is Almost Certainly False 75 (2012). It would, for example, be necessary to provide a metaphysical defense against reductionist accounts, including Darwinian evolutionary theories of morality, that are incompatible with ideas of ethical objectivity. Having no room here to provide such a defense (though I have begun to address it elsewhere), I simply mean to deny Witte’s assertion that I assume I can escape the subject altogether. ♦
David Little is at present a research fellow at the Berkley Center for Religion, Peace, and World Affairs at Georgetown University, having served before that as Professor of the Practice in Religion and International Affairs at Harvard Divinity School, and as Senior Fellow in Religion, Ethics, and Human Rights at the United States Institute of Peace. In 2015, Cambridge University Press published Essays on Religion and Human Rights: Ground To Stand On, and a book of responses to his work by colleagues and former students: Religion and Public Policy: Human Rights, Conflict, and Ethics, ed. by Sumner B. Twiss, Marian Gh. Simion, and Rodney L. Petersen.