It follows that if a legal system may fairly punish only a person who culpably violated the law, a preventive restraint like self-defense is also fair only when it is used against a person whose offense or imminent offense is culpable. Such measures as punishment and prevention are justified because "a person who violates the order of fairness, which can be described as a system of rights,forfeits certain of his own rights." The forfeiture theory implicitly associates A's loss of rights with his deserts and suggests some analogy with punishment. Finnis' argument both makes explicit the analogy and shifts attention from A, whose aggression operates the forfeiture, to V who stands in the position of a police officer or executioner. If, as is generally accepted, it is unfair to punish innocent persons, why should it be fair to kill an IA in self-defense? The object of this article is to suggest a tentative basis for an attempt to answer this question.
Spjut, R. J.
"The Relevance of Culpability to the Punishment and Prevention of Crime,"
Akron Law Review: Vol. 19
, Article 2.
Available at: https://ideaexchange.uakron.edu/akronlawreview/vol19/iss2/2