Dsouza, M; (2015) Retreat, Submission, and the Private Use of Force. Oxford Journal of Legal Studies , 35 (4) pp. 727-754. 10.1093/ojls/gqv016.

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Abstract

Different jurisdictions disagree on whether a person facing an illegitimate threat is ever required to retreat in the face of it or to submit to it, rather than using force in defence. Those that have attempted to identify the principled position on this issue also disagree about (i) the philosophical source (if any) of the duty to retreat; (ii) the interests that may privately be defended; and (iii) the point of time at which private force becomes available to a defender. I address these disputes by suggesting that rules requiring retreat or submission must be limitations on private force that flow from the state’s monopoly of legitimate force within its jurisdiction. I argue that these limitations on private force operate at two stages. The first stage limitations restrict ‘in-principle’ access to private force to cases in which the threat cannot be avoided non-forcefully, and the second stage limitations ensure that the force privately deployed does not exceed the force that the state could itself have legitimately deployed. Next, I examine whether certain interests often taken to be privately defensible ought to be treated as such. Finally, I describe the model of retreat and submission that follows from the ideas canvassed.

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