Jonas Haeg (King’s College London), "Provocation, Self-Defense, and Protective Duties"

Philosophy & Public Affairs, 2024

By Jonas Haeg

Imagine a classic bar brawl scene:

Andy is watching a football game at a bar when Bobby starts mocking him for supporting a rival team. An argument develops, and soon Bobby chucks the rest of his drink at Andy and shoves him to the ground. A fight breaks out, punches are exchanged, and Andy ends up on the floor again. In a fit of rage, he grabs a shard of broken glass and lunges at Bobby.

What may Bobby do to defend himself now? While Andy doesn’t have a right to stab Bobby, it seems wrong to ignore the fact that Bobby provoked him when determining the morality of Bobby’s options. His right to defend himself intuitively feels weaker or compromised compared to the right an innocent victim would have if they faced a similar threat (for example, if Andy, in the chaos, mistook an innocent bystander for Bobby and lunged at them).

For example, typically, innocent victims are required to retreat instead of fighting back only when it’s easy and safe to do so. But for Bobby, it seems reasonable to expect him to retreat even when it’s more costly and risky. Similarly, innocent victims are typically required to submit to an attack only if their only means of defence is disproportionate to the threat. Again, however, it’s intuitive to think we could demand even more restraint from Bobby. For example, perhaps he ought to let Andy stab him in the leg instead of using the same force to stop him – something we cannot demand of innocent victims. In other words, it’s more difficult for Bobby to justify harming Andy instead of suffering harm himself compared to how difficult it is for an innocent victim to justify the same.

Situations like this aren’t just interesting for thinking about individual self-defence but also because analogous situations pop up in many other contexts. Think, for example, of a state that provokes another state into war by ramping up military exercises close to the border, infringing on disputed territory, or spreading propaganda. Or consider a state which causes some of its citizens to commit crimes either directly through entrapment or indirectly by subjecting them to criminogenic injustices like poverty. In my view, these states can compromise their right to (respectively) fight defensive wars and punish those who break the law in ways analogous to how Bobby compromises his right to defend against Andy.

In my new paper, “Provocation, Self-Defense, and Protective Duties,” I explain how and why provocation negatively affects rights such as the right to self-defence. My view, which I call the Protective Duty View, has two main parts. The first answers the question of how provocation impacts the right to self-defence. Provocation does so by giving rise to a duty to protect the other party from harm, including defensive harm. In short, Bobby’s right is compromised because the new duty to protect Andy weighs against the ordinary right to self-defence, thereby making it more difficult for Bobby to justify defensively harming Andy. Exactly how difficult it is for Bobby to justify self-defence – how compromised his right is – depends on how stringent his protective duty is, which in turn depends on several factors. For example, the more culpable Bobby was, the stronger his duty, and the more culpable Andy was (say, if he had a history of anger issues and never worked on them), the weaker Bobby’s duty.

The second part of the Protective Duty View answers the question of why Bobby ends up with this duty to protect Andy. The reason is that provocation isn’t just wrong because it’s offensive, disrespectful, violent or any of the other things that provocative actions tend to be. It’s also wrong because it violates, or threatens to violate, Andy’s right to reasonable opportunities to avoid harm. The motivation for this kind of right is simple: people shouldn’t make it harder for others to avoid harm. For example, if you trick someone into a dangerous hike they’re not prepared for, it’s wrong not just because it’s disrespectful to trick and deceive others but also, more specifically, because in doing so you’ve made it harder for them to avoid danger. Moreover, when you wrong someone like that, you should try to make up for it by preventing the harm from materialising (or, failing that, compensating them afterwards), even when this comes at considerable costs to yourself.

Similarly, when Bobby mocks, fights, and enrages Andy, he makes it harder for Andy to avoid lashing out and putting himself in a position where he becomes the potential target of defensive harm. Bobby therefore acquires a duty to go to great lengths to ensure Andy doesn’t actually get harmed. And that’s why Bobby can be required to seriously limit, or even refrain from imposing, defensive harm.

As said, I believe this Protective Duty View not only explains the impact of provocation on individual rights to self-defence but also has broader potential implications for moral and political issues concerning the justification of harm and violence, such as war and punishment.

I invite interested readers to check out the full paper where I say much more about what provocation is, how to understand “reasonable opportunities”, how protective duties interact with liability, and what practical and theoretical advantages the Protective Duty View has over alternative explanations.