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Justifying Preemptive Defense September 28, 2009

Posted by federalist in Natural Rights, Open Questions.

Two years ago I asked, “How Can a Free Society Defend Itself?”  which raised several questions to which I still haven’t found satisfactory answers.  Among them:

  • How can we defend against asymmetric threats?  (You have to dig into my discussion on the Mises.org forum where I point out that “asymmetric threats” are essentially a product of modern technology: e.g., an individual can build and deploy a truck bomb that can kill hundreds of people, where before the 20th century an individual could not easily wreak havoc disproportionate to his ability to suffer justice.)
  • In an age of asymmetric threats how can we defend against aggressors who are suicidal or otherwise immune to deterrence?

Paul Robinson, professor of law, had an essay in the WSJ pointing out that international law lacks reasonable and moral provisions for states to deal with threats preemptively.  He suggests that the American “Model Penal Code” provides a better standard since it allows for the use of force when “immediately necessary.”

I don’t believe the MPC really addresses this problem, since the key point is defining when and what defense is “immediately necessary.”  For example, if somebody says, “I’m going to kill you — not now, but sometime when your guard is down,” our current laws do not allow you to use force against that person.  The best they offer is a judicial restraining order telling the aggressor to stay away from you.  In the context of states and international law we have the same problem: An aggressor can tailor his threat so that defense is only justified when it is impossible.  Then he can retreat as soon as a forceful defense can be mounted … at which point defense is not “immediately necessary” and hence would be unjustified.

Following some brief correspondence Professor Robinson offered the following clarification:

The point here is that modern [penal] codes switch the focus from the timing of the threat to the timing of the force needed to defend, as it should.  This is a popular provision in state criminal code reforms.  The timing of the threat – its imminence – simply is no longer the relevant test for triggering defensive force.

This has not yet been incorporated into any laws that I am aware of, but it’s at least a first step in principle to addressing these difficult questions.



1. Democratic Thinker - October 16, 2009

Are you looking for something like Vattel’s “Law of Nations,” II§49-52 (Of the right to Security …)?

As I understand it, any free individual, or nation, has the responsibility to respond to threats and intimidation, or else lose that freedom to the bully. And further must take all steps to neutralize the threat—if necessary, up to and including the destruction of the agressor. Under what principle does the agressor get the option to choose either the timing or the response? Just asking; I do not know.


2. federalist - November 21, 2012

This is not just a theoretical question. Israel has been forced address it repeatedly.

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