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12/01/2015

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Matt

"by most empirical metrics America is notoriously more violent country than other advanced Liberal Democracies."

My understanding is that if you look at _violent crime_ or _assaults_, the U.S. isn't significantly worse, and perhaps a bit better, than the U.K. as far as violence goes. Where the U.S. does worse than almost everywhere else, including the U.K. is _gun violence_. That's not a trivial thing, but is perhaps relevant for the particular issue here. Now, if both the UK and the US are significantly more violent than typical continental countries, (I just don't know), this would tell pretty strongly against the idea that the common law is good for resolving violence!

Schliesser, Eric

I was thinking of data on intentional homocides (and other such metrics--I know of no data that makes the US come out less violent than Scandinavia and Western Europe):
https://en.wikipedia.org/wiki/List_of_countries_by_intentional_homicide_rate
https://en.wikipedia.org/wiki/List_of_countries_by_intentional_homicide_rate_by_decade

Jason Brennan

It's worth noting that the doctrine of defensive killing here is also the one Jeff McMahan relies on in his work.

Eric Enlow

First, some technical legal comments:

I don't see how common-law doctrine necessarily gets you to "very strong presumptive grounds for killing abortion doctors and bombing abortion clinics... ." The only common-law doctrine relating to defense of others is a defense to liability, not a duty. The common law says nothing about whether one must act, even in one's own self defense; it simply limits liability if one reasonably does so.

It certainly does not make bad people "liable to be killed by performing certain wrongful or unjust actions." That is, it creates no liability of the wronging party if they prevent themselves from being killed for their wrongs; the wronging party has no duty to allow himself to be killed, though he may not be able to win a suit for damages if someone injures him while he is trying to kill another. If the would-be murder defends himself successfully, he is not liable for the tort of refusing to allow himself to be killed; he doesn't have to pay for the would-be defenders lost right to kill him, as he would if he was liable to be killed.

If the common law is particularly relevant here, then it is because the common law teaches that there is no general duty to rescue others. Here, the civil law and the common law tradition clearly split with the civil law generally demanding and punishing failure to intervene for others. By contrast, the common law holds that there is generally no duty to aid others in danger, except in a few circumstances, e.g. one has caused the danger, one has assumed a duty through a previous action or fiduciary relationship. (The exceptional Vermont law changing this basic common-law norm was highlighted in the Seinfeld finale.)

Furthermore, in the case of defending others unlike defending oneself, the common law does not recognize a full defense because it excludes reasonable mistake from the coverage of the defense, unlike in the case of self-defense where a reasonable belief is all that is necessary.

My own sense is that the idea of a private duty to intervene to stop the killing of others arises from moral reflection on the Holocaust. We look back with judgment on those private persons who did not rise up against the Nazi government or take whatever shots they could at individual Nazis they happened across. Indeed, purported Lutheran doctrines of passive resistance to tyranny, i.e., that the evils of tyranny must generally be suffered without fighting back for oneself or others, often play the bad guy in this story. Certainly, in the Christian tradition, there has never been even a suggestion of a universal private duty to kill would-be murderers or tyrants. That is much more a feature of classical praise of tyrannicide and modern imitators of its spirit. Calvin, for example, specifically attacks the renaissance praise of tyrannicide, arguing instead that it is only lesser magistrates charged with the constitutional duty of limiting abuses who could commit such an act against proper authority. Those who followed Calvin sought to broaden the right, but I am not aware of any who claimed that there was a universal private duty.

There has also been some discussion of a right of zealotry in Rabbinical sources, based on biblical models -- e.g. Moses killing of the Egyptian beating the Israelite, Phineas killing Zimri -- which allows but does not compel defense of others in extraordinary circumstances where legal process is not operating. This plays some role in the Maccabbees account as well.

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