Philosophy of Law Study Questions

Questions on Applbaum/Hohfeld

Much of today will be spent just getting a feel for the Hohfeldian analysis upon which Applbaum relies.

1) To get a feel for what a Hohfeldian privilege is, consider the following example (from Jeremy Waldron, who borrowed it from Sanford Kadish) :

A fanatical terrorist armed with various weapons has killed a number of people and is now holed up in a building surrounded by police. The police believe that if he is permitted to escape, he will kill many more, and they have decided they cannot allow this. 

Unfortunately, the terrorist has a hostage, and he is determined to move out of the house using the hostage as a human shield. He knows that there is a good chance that the police will try to kill him even if this means shooting through the body of the innocent hostage. Devilishly, he explains the situation to the hostage and convinces him that either they will both escape together or they will both die together. He gives the hostage a pistol with which he can shoot back at any police officers who may try to shoot (through) him, assuring him of course that if he even so much as makes a move to turn the pistol on his captor he (the terrorist) will kill him instantly. The police, for their part, are fully aware that an escape attempt of this kind may be made. 

The terrorist and his hostage begin moving down the stairway of the building. By sheer bad luck, an armed police officer has chosen just that moment to move to a position higher up that stairway. He turns a corner of the stair and sees the other two coming down towards him. All three individuals grasp the situation in a flash, and all three begin firing: the terrorist and his hostage firing at the officer, the officer firing at and through the hostage. Each of them is shooting to kill. None of them is under any misapprehension of fact.

In this story, we have a number of people shooting at each other, each trying to save his own skin. How are we to deploy ideas of justification, necessity, and self-defense in such a terrible case?

To begin with, presumably no one believes that the terrorist is justified in firing. He can make no valid claim of self-defense since he knows very well that if he were instantly to throw down his weapons, the other two would stop firing, and there would be no further danger to his life. But he doesn't, and in the circumstances his actions have the effect of making the hostage and the police officer mortal threats to one another, even though both of them are innocent. They fire on each other, both, as I have said, shooting to kill, each convinced that killing the other is the only way to save his own life. Are either or both of them justified in firing?

Few will have difficulty saying the police officer is justified. In fact his action seems justified several times over. He is firing in self-defense to save his own life, and he has also either a general defense of necessity or a specific law enforcement defense justifying him in doing whatever it takes to arrest, disarm, or kill the terrorist.

The interesting question relates to the hostage. Does he have a valid claim of self-defense? It seems odd to say that he does not. He is an innocent party, and had no choice but to become a human shield for the terrorist. He is shooting only in order to save his own life, not to help the terrorist, and he would stop shooting in an instant if he thought the police officer was not shooting at or through him. He fires only because someone is trying to kill him, and this is the only way he can defend himself against attack. 

    Waldron introduces the example to discuss the normative problem of when a legal justification for self-defense is appropriate. But we can also use to bring up a descriptive puzzle. The puzzle is this: Let us assume that the law takes both the officer and the hostage as having a "right" to self-defense. We usually understand the possession of a right to an activity as putting an obligation upon others not to interfere with us. So, for example, that we have a right to farm our property means, among other things, that others cannot come onto our property and trample our crops. But if that is what a right means, how is it possible that both the officer and the hostage have the right to self-defense? For the hostage’s “right” to self-defense puts upon the officer no obligation not to interfere. In what sense, therefore is there any legal right there at all? 

2) Consider the following comment from Judith Jarvis Thomson (a philosopher at MIT):
[T]here is an even simpler way of bring[ing] out how weak Hohfeld’s notion of a ‘privilege’ is. Notice that … other things besides human beings – indeed, non-human entities of all sorts, including your left shoe – have privileges….I presume your left shoe has no duties toward anything; that being so, your left shoe has privileges as regards everything.  

Doesn’t that show that there is something meaningless about the concept of a Hohfeldian privilege?

3) Could we solve the problem in the question above by assuming that simply because someone or something lacks a duty it is not enough for them to have a privilege? Perhaps they are simply in a legal void. Privileges, on the other hand, would be a case in which there is indeed something legal there – namely a legal absence of a duty. The officer and the hostage would have privileges. My left shoe would not. Does this distinction make sense?

4) Are all duties correlative with claim-rights? What about the duty to pay taxes or not to counterfeit money?

5) How is Applbaum's view of legitimacy different from the legitimacy-entails-duty view?