Written by Dr Nicholas Shackel
Cardiff University
If you were attacked at a work party you would expect the person who attacked you to get sacked. In this case (http://www.telegraph.co.uk/news/uknews/11846084/London-Zoo-love-rivals-in-vicious-fight-over-llama-keeper.html) it seems to be the person attacked who got sacked, apparently because the boss doesn’t understand the right of self defence.
First of all, there are a number of oddities we need to put aside if we are not to get distracted. I shall not concern myself with any such issues, nor for that matter with the accuracy of the reporting. So allowing that there may be more to the story than we know, I shall address it as it appears in the report but call the women Ann and Beth and the manager Boss.
Ann punched Beth, Beth responded resulting in Ann being cut by Beth’s glass and Ann continued the assault. Ann was given a final warning whereas Beth was sacked. According to Boss, there was no evidence that Ann had punched Beth first whereas Beth had glassed Ann.
Let us take the last first: to be a glassing it is not sufficient that Beth hit Ann with her glass; it is necessary that she intentionally use the glass as a weapon. If, however, as she claimed, she instinctively defended herself when punched by Ann then the glass was not so used. Consequently Boss was simply wrong in her claim that Beth glassing Ann is indisputable. It all depends on Beth’s intention in doing whatever she did that resulted in Ann being cut by the glass. What we should think about that depends a lot in this case on who was the aggressor.
It is also simply not true that there was no evidence that Ann had punched Beth first. Beth testified that Ann had started it and that is evidence. Beth may be lying, but she may be telling the truth, and whether she is making a false accusation or not is essential to this case.
Boss seems to have decided that Beth is making a false accusation. Suppose she is right. In that case Ann was the victim who was defending herself, and yet she was given a final warning, apparently on the grounds that ‘[Ann] was found to have engaged in fighting’. I think this gives us an important clue about Boss: she doesn’t understand the first thing about self defence.
If someone attacks you, you are entitled to defend yourself proportionately, not to their attack but to whatever conclusively stops them attacking you further. For example, if someone punches you and will not stop unless you break their leg, you can break their leg.
To apply that to this case, if Beth is telling the truth then she was simply defending herself and struck Ann with a glass but did not glass her. Furthermore, even if she deliberately used her glass as a weapon, i.e. did glass Ann, Ann carried on her assault after that. Consequently the glassing did not in fact stop Ann’s attack and therefore was not disproportionate. Beth was the victim of an assault and should not have been sacked. Ann should have been arrested, charged, and prosecuted for the assault.
If Beth is falsely accusing Ann of starting the fight then Beth is the aggressor whether or not she used the glass deliberately, which latter question is now only a matter of how severe the assault was, not of who merits sacking. In that case Ann was the victim of an assault and should not have been given a final warning. Beth should have been arrested, charged, and prosecuted for the assault.
So whatever the truth is, Boss has got it wrong because she doesn’t understand self defence. Either Beth should not have been sacked or Ann should not have been given a final warning.
Definitely! Logic 101.
Interesting post, and I cannot fault your logic. I have a quibble about the proposition regarding proportionality, though.
I have seen difficulties encountered with this point when I’ve been at conferences where both lawyers and philosophers have been present. (Dangerous things.) Basically, lawyers (like me) tend to conceive of proportionality as being about the force offered, not what would be sufficient to stop the attack. Philosophers tend to focus on what would be sufficient. (This leads to debates on the question of whether I can offer force when I know it won’t be sufficient to stop the attack. The reaction of lawyers is “of course I bloody can!”, and the reaction of some philosophers (I am thinking principally of McMahan and Frowe) is “No!”. I’ve never seen this debate get very far!)
For what it’s worth, the English courts are rather unclear on this question. But in the case of Rashford (2005), the Court of Appeal endorsed a Scottish decision that talked about proportionate responses to the “violence offered” by the aggressor. I suspect this is because, from the ex ante perspective, the defender will likely have no idea what would stop the attack, and so the courts are attempting to offer a guide – try and keep within the bounds of what you honestly (even if unreasonably) believe the person is going to do to you.
(A lawyer who sometimes pretends to be a philosopher.)
Yes, the law is frequently out of step with morality, which is the only ground of its legitimacy. The right of self defence is to stop or in diminish the attack (which last is why insufficient but weakening defence is ok) but not to go beyond sufficiency. As you say, it may be difficult to know conclusively what is sufficient. Consequently it is right that doing what you honestly believe is sufficient is a defence in law even if what you did went beyond what was sufficient. Also, the point about proportionality in law is not so much about what the right of defence permits but rather, that if the defence was roughly commensurate to the attack that is evidence that you were aiming at defence alone rather than going beyond defence into revenge. That is not to say that there is no right of revenge: perhaps there is, but that would certainly be a matter of proportion and because we are poor judges in our own cases it is better that revenge is left to the law’s punishment (this is, perhaps, what we learn from the Orestia). Nevertheless, and assuming there is a right of revenge, I’m inclined to think if the legal system fails a victim by not inflicting a suitably painful punishment then morally they may be entitled to inflict it themselves.
I want to dispute one specific point.
“…the glassing did not in fact stop Ann’s attack and therefore was not disproportionate.”
There is an assumption here that the only purpose of a response to an attack should be to attempt to stop it; and the only measure of proportionality is whether in fact you succeed in stopping the attack. Those are both quite strong assumptions, and both, I think, unwarranted. (There is also an assumption that the blow with the glass did not in fact exacerbate the situation, which is also unwarranted and somewhat undermines any use of the concept of proportionality.)
If our purpose in responding to an attack is simply to end it, then the correct response, almost without exception, is to run away. The concept of proportional response arises precisely because everyone knows that that’s not realistic. When we are hit, we are angered. Everyone knows that the quickest way to end the violence is to run away, but that’s not always going to happen. Proportional response allows us to vent our anger – possibly prolonging the violence – while remaining within some bounds. If I am punched, then punching back is proportional – illegal, but proportional. Pulling a knife is not, and that has little to do with any assessment of what is needed to stop the attack. If I am 5’4″, and my attacker is a prop forward in a rugby world cup team, I may in fact need a knife to stop him; but it would still be disproportionate to pull a knife.
So I think the nature of a proportionate response is in fact not to end the attack; it is to give vent to the natural human need to strike back without escalating the situation. And in that sense, the blow with the glass may have been disproportionate. A glassing is an escalation. It is the kind of action that can cause blood loss, scars, even threats to life. It is a different category of attack to a punch. If A launched a (relatively mild) punch-level attack on B; and B responded by escalating the conflict to a (generally very serious) glassing-level incident; then B was indeed at fault.
You are right that I am assuming the proportionality is determined by sufficiency to stop the attack but that is because I am talking about the right of self defence and not other rights and for that reason it is the correct assumption. You seem to be concerned with the right of revenge (if there is such a right), or alternatively, the psychological impulse to vengeance. That is not my topic. Nevertheless, in any particular case all three of these are at issue. We would have to distinguish why Beth glassed Ann. If it was with the intention of self defence then my point stands. If, however, it was with the intention of revenge then things are more complicated. Because it didn’t stop the attack it wasn’t disproportionate for self defence and so can’t be faulted on that ground, and it looks like a victim gets a free go at revenge on an aggressor on any defences that don’t go beyond what is necessary to stop the attack, so the act itself may not be wrong. Our judgement of the actor may have to be more complex: perhaps their will for vengeance goes beyond any right of revenge they have and so whilst their act may be permissible they would be judged a bad actor. If revenge is never right then insofar as their acts of self defence were motivated by revenge rather than self defence they are a bad actor even if they had a right to the act. If, on the other hand, there is a right of revenge then its requirement of proportionality seems directly related to the harm inflicted by the original attack. Your points about escalation certainly apply to this right.
A further point I missed: there is no requirement to run away, although it may often be the wise thing to do if you can’t defend yourself. The right of self defence, however, is precisely the right to overcome an aggressor rather than running away from them. Insofar as the law expects people to run away it is defective. Sometimes the law gets itself properly in line with the right by incorporating what are called ‘stand your ground’ clauses which explicitly deny any requirement for a victim to run away.
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