HOME

TheInfoList



OR:

The right of self-defense (also called, when it applies to the defense of another, alter ego defense, defense of others, defense of a third person) is the right for people to use reasonable or defensive force, for the purpose of defending one's own life (
self-defense Self-defense (self-defence primarily in Commonwealth English) is a countermeasure that involves defending the health and well-being of oneself from harm. The use of the right of self-defense as a legal justification for the use of force in ...
) or the lives of others, including – in certain circumstances – the use of deadly force. If a defendant uses defensive force because of a threat of deadly or grievous harm by the other person, or a reasonable perception of such harm, the defendant is said to have a "perfect self-defense" justification.Criminal Law Cases and Materials, 7th ed. 2012; John Kaplan, Robert Weisberg, Guyora Binder If defendant uses defensive force because of such a perception, and the perception is not reasonable, the defendant may have an "
imperfect self-defense Imperfect self-defense is a common law doctrine recognized by some jurisdictions whereby a defendant may mitigate punishment or sentencing imposed for a crime involving the use of deadly force by claiming, as a partial affirmative defense, t ...
" as an
excuse In jurisprudence, an excuse is a defense to criminal charges that is distinct from an exculpation. Justification and excuse are different defenses in a criminal case (See Justification and excuse).Criminal Law Cases and Materials, 7th ed. 2012 ...
.


General concepts – legal theory

The early theories make no distinction between
defense Defense or defence may refer to: Tactical, martial, and political acts or groups * Defense (military), forces primarily intended for warfare * Civil defense, the organizing of civilians to deal with emergencies or enemy attacks * Defense industr ...
of the person and defense of property. Whether consciously or not, this builds on the
Roman Law Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
principle of ''dominium'' where any attack on the members of the family or the property it owned was a personal attack on the ''
pater familias The ''pater familias'', also written as ''paterfamilias'' (plural ''patres familias''), was the head of a Roman family. The ''pater familias'' was the oldest living male in a household, and could legally exercise autocratic authority over his ext ...
'' the male head of the household, sole owner of all property belonging to the household, and endowed by law with dominion over all his descendants through the male line no matter their age. The right to self-defense is phrased as the principle of ''vim vi repellere licet'' ("it is permitted to repel force by force") in the ''Digest'' of Justitian (6th century). Another early application of this was
Martin Luther Martin Luther (; ; 10 November 1483 – 18 February 1546) was a German priest, theologian, author, hymnwriter, and professor, and Order of Saint Augustine, Augustinian friar. He is the seminal figure of the Reformation, Protestant Refo ...
's concept of justified resistance against a
Beerwolf A ''Beerwolf'' (''Bärwolf'', ''Werwolf'') is a German folk-tale monster commonly known as a werewolf. In a debate arranged by Philip of Hesse and the Elector of Saxony in 1539, when it appeared the Holy Roman Emperor Charles V was readying to a ...
ruler, which was used in the doctrine of the
lesser magistrate The doctrine of the lesser magistrate is a concept in Protestant thought. A lesser magistrate is a ruler such as a prince who is under a greater ruler such as an emperor. The doctrine of the lesser magistrate is a legal system explaining the exact ...
propounded in the 1550 ''
Magdeburg Confession The ''Magdeburg Confession'' (officially, the ''Confession, Instruction, and Admonition of the pastors and preachers of the Christian congregations of Magdeburg'') was a Lutheran statement of faith. It was written by nine pastors of the city of M ...
''. In ''
Leviathan Leviathan (; he, לִוְיָתָן, ) is a sea serpent noted in theology and mythology. It is referenced in several books of the Hebrew Bible, including Psalms, the Book of Job, the Book of Isaiah, the Book of Amos, and, according to some ...
'' (1651),
Hobbes Thomas Hobbes ( ; 5/15 April 1588 – 4/14 December 1679) was an English philosopher, considered to be one of the founders of modern political philosophy. Hobbes is best known for his 1651 book ''Leviathan'', in which he expounds an influe ...
(using the English term ''self-defense'' for the first time) proposed the foundation political theory that distinguishes between a
state of nature The state of nature, in moral and political philosophy, religion, social contract theories and international law, is the hypothetical life of people before societies came into existence. Philosophers of the state of nature theory deduce that ther ...
where there is no authority and a modern state. Hobbes argues that although some may be stronger or more intelligent than others in their natural state, none are so strong as to be beyond a fear of violent death, which justifies self-defense as the highest necessity. In the ''
Two Treatises of Government ''Two Treatises of Government'' (or ''Two Treatises of Government: In the Former, The False Principles, and Foundation of Sir Robert Filmer, and His Followers, Are Detected and Overthrown. The Latter Is an Essay Concerning The True Original, ...
'',
John Locke John Locke (; 29 August 1632 – 28 October 1704) was an English philosopher and physician, widely regarded as one of the most influential of Age of Enlightenment, Enlightenment thinkers and commonly known as the "father of liberalism ...
asserts the reason why an owner would give up their autonomy:
...the enjoyment of the property he has in this state is very unsafe, very unsecure. This makes him willing to quit a condition, which, however free, is full of fears and continual dangers: and it is not without reason, that he seeks out, and is willing to join in society with others, who are already united, or have a mind to unite, for the mutual preservation of their lives, liberties and estates, which many call by the general name, property.
In earlier times before the development of national policing, an attack on the family home was effectively either an assault on the people actually inside or an indirect assault on their welfare by depriving them of shelter and/or the means of production. This linkage between a personal attack and property weakened as societies developed but the threat of violence remains a key factor. As an aspect of
sovereignty Sovereignty is the defining authority within individual consciousness, social construct, or territory. Sovereignty entails hierarchy within the state, as well as external autonomy for states. In any state, sovereignty is assigned to the perso ...
, in his 1918 speech ''Politik als Beruf'' (
Politics as a Vocation "Politics as a Vocation" (german: Politik als Beruf) is an essay by German economist and sociologist Max Weber (1864–1920). It originated in the second lecture of a series (the first was ''Science as a Vocation'') he gave in Munich to the "Free ...
),
Max Weber Maximilian Karl Emil Weber (; ; 21 April 186414 June 1920) was a German sociologist, historian, jurist and political economist, who is regarded as among the most important theorists of the development of modern Western society. His ideas profo ...
defined a
state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States * ''Our S ...
as an authority claiming the
monopoly on the legitimate use of physical force In political philosophy, a monopoly on violence or monopoly on the legal use of force is the property of a polity that is the only entity in its jurisdiction to legitimately use force, and thus the supreme authority of that area. While the mon ...
within defined territorial boundaries. Recognizing that the modern framework of
nation A nation is a community of people formed on the basis of a combination of shared features such as language, history, ethnicity, culture and/or society. A nation is thus the collective identity of a group of people understood as defined by those ...
s has emerged from the use of force, Weber asserted that the exercise of power through the institutions of
government A government is the system or group of people governing an organized community, generally a state. In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government is a ...
remained indispensable for effective government at any level which necessarily implies that self-help is limited if not excluded. For modern theorists, the question of self-defense is one of
moral authority Moral authority is authority premised on principles, or fundamental truths, which are independent of written, or positive, laws. As such, moral authority necessitates the existence of and adherence to truth. Because truth does not change, the princi ...
within the nation to set the limits to obedience to the state and its laws given the pervasive dangers in a world full of weapons. In modern societies, states are increasingly delegating or privatizing their coercive powers to corporate providers of security services either to supplement or replace components within the power hierarchy. The fact that states no longer claim a monopoly to police within their borders, enhances the argument that individuals may exercise a right or privilege to use violence in their own defense. Indeed, modern
libertarianism Libertarianism (from french: libertaire, "libertarian"; from la, libertas, "freedom") is a political philosophy that upholds liberty as a core value. Libertarians seek to maximize autonomy and political freedom, and minimize the state's en ...
characterizes the majority of laws as intrusive to personal autonomy and, in particular, argues that the right of self-defense from
coercion Coercion () is compelling a party to act in an involuntary manner by the use of threats, including threats to use force against a party. It involves a set of forceful actions which violate the free will of an individual in order to induce a desi ...
(including
violence Violence is the use of physical force so as to injure, abuse, damage, or destroy. Other definitions are also used, such as the World Health Organization's definition of violence as "the intentional use of physical force or Power (social and p ...
) is a fundamental
human right Human rights are moral principles or normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for certain standards of hu ...
, and in all cases, with no exceptions, justifies all uses of
violence Violence is the use of physical force so as to injure, abuse, damage, or destroy. Other definitions are also used, such as the World Health Organization's definition of violence as "the intentional use of physical force or Power (social and p ...
stemming from this right, regardless whether in defense of the person or property. In this context, note that Article 12
Universal Declaration of Human Rights The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the Human rights, rights and freedoms of all human beings. Drafted by a UN Drafting of the Universal De ...
states:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
The inclusion of defense of one's family and home recognizes the universal benefit claimed to stem from the family's peaceable possession of private property. This general approach implicitly attacks Hohfeld's focus on the
correlative In grammar, a correlative is a word that is paired with another word with which it functions to perform a single function but from which it is separated in the sentence. In English, examples of correlative pairs are ''both–and, either–or, nei ...
relationship between right and duty as an aspect of human interactiveness as opposed to rights deemed implicitly more important because they attach to a person by virtue of his or her ownership of property. Further, it follows that, in this moral balancing exercise, laws must simultaneously criminalize aggression resulting in loss or injury, but decriminalize qualitatively identical violence causing loss or injury because it is used in self-defense. As a resolution of this apparent paradox and in defiance of Hohfeld,
Robert Nozick Robert Nozick (; November 16, 1938 – January 23, 2002) was an American philosopher. He held the Joseph Pellegrino University Professorship at Harvard University,
asserted that there are no positive
civil rights Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life of ...
, only rights to property and the right of autonomy. In this theory, the "acquisition principle" states that people are entitled to defend and retain all holdings acquired in a just way and the "rectification principle" requires that any violation of the first principle be repaired by returning holdings to their rightful owners as a "one time" redistribution. Hence, in default of self-defense in the first instance, any damage to property must be made good either in kind or by value. Similarly, theorists such as George Fletcher and Robert Schopp have adopted European concepts of autonomy in their liberal theories to justify the right-holder using all necessary force to defend his or her autonomy and rights. This right inverts the ''felicitation principle'' of
utilitarianism In ethical philosophy, utilitarianism is a family of normative ethical theories that prescribe actions that maximize happiness and well-being for all affected individuals. Although different varieties of utilitarianism admit different charact ...
with the responsive violence being the greatest good to the individual, but accurately mirrors
Jeremy Bentham Jeremy Bentham (; 15 February 1748 Old_Style_and_New_Style_dates">O.S._4_February_1747.html" ;"title="Old_Style_and_New_Style_dates.html" ;"title="nowiki/>Old Style and New Style dates">O.S. 4 February 1747">Old_Style_and_New_Style_dates.htm ...
who saw property as the driving force to enable individuals to enhance their utilities through stable investment and trade. In liberal theory, therefore, to maximise the utility, there is no need to retreat nor use only proportionate force. The attacker is said to sacrifice legal protection when initiating the attack. In this respect, the criminal law is not the tool of a
welfare state A welfare state is a form of government in which the state (or a well-established network of social institutions) protects and promotes the economic and social well-being of its citizens, based upon the principles of equal opportunity, equitabl ...
which offers a safety net for all when they are injured. Nevertheless, some limits must be recognized as where a minor initial attack simply becomes a pretext for an excessively violent response. The civil law systems have a theory of "abuse of right" to explain denial of justification in such extreme cases.


Moral theory

The right to armed self-preservation is derived from Graeco-Roman natural rights theory, clearly enunciated by the Roman statesman
Cicero Marcus Tullius Cicero ( ; ; 3 January 106 BC – 7 December 43 BC) was a Roman statesman, lawyer, scholar, philosopher, and academic skeptic, who tried to uphold optimate principles during the political crises that led to the estab ...
(
BCE Common Era (CE) and Before the Common Era (BCE) are year notations for the Gregorian calendar (and its predecessor, the Julian calendar), the world's most widely used calendar era. Common Era and Before the Common Era are alternatives to the or ...
106–43) and other stoic philosophers, influenced by
Aristotle Aristotle (; grc-gre, Ἀριστοτέλης ''Aristotélēs'', ; 384–322 BC) was a Greek philosopher and polymath during the Classical period in Ancient Greece. Taught by Plato, he was the founder of the Peripatetic school of phil ...
. Miguel Faria, author of the book ''America, Guns, and Freedom'' (2019), writing in
Surgical Neurology International ''Surgical Neurology International'' is a bimonthly peer-reviewed open access medical journal that was established in 2010 and is published by Medknow Publications. It publishes original articles, review articles, case reports, technical notes, an ...
explained that individuals have a right to protect their persons via a natural right to self-defense; that people have not only a right to self-defense but also a moral duty to defend their families and neighbors; that the right to armed self-defense extends collectively to the community to curb or prevent tyrannical government. The right of free men to bear arms for self-defense, becomes a duty to protect those under their household and care. Most religions, especially in the Judeo-Christian heritage agree on the right to self-defense and home protection with arms. The Catholic catechism derived from inception based on the theological work of
Thomas Aquinas Thomas Aquinas, OP (; it, Tommaso d'Aquino, lit=Thomas of Aquino; 1225 – 7 March 1274) was an Italian Dominican friar and priest who was an influential philosopher, theologian and jurist in the tradition of scholasticism; he is known wi ...
. It reads: "Legitimate defense can be not only a right but also a grave duty for one who is responsible for the lives of others. The defense of the common good requires that an unjust aggressor be rendered unable to cause harm." Furthermore, as "it happens that the need to render the aggressor incapable of causing harm sometimes involves taking his life." The English philosopher
John Locke John Locke (; 29 August 1632 – 28 October 1704) was an English philosopher and physician, widely regarded as one of the most influential of Age of Enlightenment, Enlightenment thinkers and commonly known as the "father of liberalism ...
(1632–1704) posited that natural rights were self-evident and gave man the power "to pursue life, health, liberty and possessions," as well as the right to self-defense. This concept was taken by the
Founders of the United States The Founding Fathers of the United States, known simply as the Founding Fathers or Founders, were a group of late-18th-century American revolutionary leaders who united the Thirteen Colonies, oversaw the war for independence from Great Britai ...
and clearly formulated by
Thomas Jefferson Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Fathers of the United States, Founding Father who served as the third president of the United States from 18 ...
in the
Declaration of Independence A declaration of independence or declaration of statehood or proclamation of independence is an assertion by a polity in a defined territory that it is independent and constitutes a state. Such places are usually declared from part or all of the ...
. Locke did not inspire Jefferson's formulation in the Declaration of Independence, "life, liberty and pursuit of happiness". Francis Hutcheson did. Cf. Arthur Herman, "How the Scots the Modern World", for an introduction, and Wikipedia's "Francis Hutcheson". In his review of David Kopel's ''The morality of self-defense and military action: The Judeo-Christian Tradition'' (2017), Faria concludes: "Liberty and the right to preserve life through self-defense are natural rights of the people – namely, gifts from God or Nature to man – and governments that attempt to circumvent those rights are no longer legitimate governments but usurpations. Bad governments and usurpations are already in rebellion against God and man, so the people have a legitimate right to self-defense in the form of insurrection to overthrow those governments."


Defense of others

The rules are the same when force is used to protect ''another'' from danger. Generally, the defendant must have a reasonable belief that the third party is in a position where they have the right of self-defense. For example, a person who unknowingly chances upon two actors practicing a fight would be able to defend their restraint of the one that appeared to be the aggressor. However, in many jurisdictions a person who causes injury in defense of another may be liable to criminal and civil charges if such defense turned out to be unnecessary.


Legal defense for self-defense claim

Claiming a self-defense case will greatly depend on the threat. This includes whether it was a verbal threat that made the person feel threatened, to the extent that they felt the need to defend themselves. It will also depend on if the threat was imminent or not. Some questions to ask are was the threat about to happen and was the person's life really in danger? Did they provoke the person for the attack to happen? When the person attacked the person, did his or her self-defense match the threat, or was it to the point where the person ended up dead when they did not need to have been killed? Was it a '
castle doctrine A castle doctrine, also known as a castle law or a defense of habitation law, is a legal doctrine that designates a person's abode or any legally occupied place (for example, a vehicle or home) as a place in which that person has protections and ...
' defense? Did they intentionally break in the person's home and try to harm the person or their family to the point where they had to defend themselves or others using deadly force?


Model Penal Code

In the US,
Model Penal Code The Model Penal Code (MPC) is a model act designed to stimulate and assist U.S. state legislatures to update and standardize the penal law of the United States.MPC (Foreword). The MPC was a project of the American Law Institute (ALI), and was pu ...
§3.04 contains an elaborate formulation for use of force, including when it is justified, and limitations on the justification. The MPC is neither static nor legally binding in any jurisdiction, however more than half of all
U.S. state In the United States, a state is a constituent political entity, of which there are 50. Bound together in a political union, each state holds governmental jurisdiction over a separate and defined geographic territory where it shares its sover ...
s have enacted criminal codes that borrow heavily from the MPC. In general the MPC hold great sway in criminal courts even in states that have not directly drawn from it, as judges often use the MPC as a source of the doctrines and principles underlying criminal liability. However this is not the case with regards to the law on self-defense; the MPC's definition has been resoundingly rejected by both courts and legislatures, with only a handful of jurisdictions applying the MPC's definition of self defense. In the U.S., most states apply instead the ''stand your ground'' doctrine of self-defense; whereby an otherwise law abiding individual, while in any location they have a legal right to be, enjoys an extremely broad right to self-defense, being under no legal obligation to retreat from an agressor regardless of ease or ability to do so.


Common law cases

In '' People v. La Voie'', Supreme Court of Colorado, 395 P.2d 1001 (1964), The court wrote, ''"When a person has reasonable grounds for believing, and does in fact actually believe, that danger of his being killed, or of receiving great bodily harm, is imminent, he may act on such appearances and defend himself, even to the extent of taking human life when necessary, although it may turn out that the appearances were false, or although he may have been mistaken as to the extent of the real actual danger."''


Definition in specific countries

*
Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
*
Czech Republic The Czech Republic, or simply Czechia, is a landlocked country in Central Europe. Historically known as Bohemia, it is bordered by Austria to the south, Germany to the west, Poland to the northeast, and Slovakia to the southeast. The ...
*
Sweden Sweden, formally the Kingdom of Sweden,The United Nations Group of Experts on Geographical Names states that the country's formal name is the Kingdom of SwedenUNGEGN World Geographical Names, Sweden./ref> is a Nordic country located on ...
*
England and Wales England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
*
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...


See also

*
Justifiable homicide The concept of justifiable homicide in criminal law is a defense to culpable homicide (criminal or negligent homicide). Generally, there is a burden of production of exculpatory evidence in the legal defense of justification. In most countri ...
*
Overview of gun laws by nation Gun laws and policies, collectively referred to as firearms regulation or gun control, regulate the manufacture, sale, transfer, possession, modification, and use of small arms by civilians. Laws of some countries may afford civilians a right t ...
*
Pikuach nefesh ''Pikuach nefesh'' ( he, פקוח נפש, lit=watching over a soul) is the principle in Halakha (Jewish law) that the preservation of human life overrides virtually any other religious rule of Judaism. In the event that a person is in critical dang ...
* Right to keep and bear arms * '' Son assault demesne'' *
Use of force continuum A use of force continuum is a standard that provides law enforcement officers and civilians with guidelines as to how much force may be used against a resisting subject in a given situation. In some ways, it is similar to the U.S. military's es ...


References


Bibliography

* * Sir Edward Coke, ''The First Part of the Institutes of the Laws of England, or, A Commentary on Littleton'' (London, 1628, ed. F. Hargrave and C. Butler, 19th ed., London, 1832) * Dressler, Joshua, ''New Thoughts About the Concept of Justification in the Criminal Law: A Critique of Fletcher's Thinking and Rethinking'', (1984) 32 UCLA L. Rev. 61. * Fletcher, George P. (1990) ''Crime of Self-Defense: Bernhard Goetz and the Law on Trial'', Chicago: University of Chicago Press, . * Fletcher, George P. (2000) ''Rethinking Criminal Law'', Oxford: Oxford University Press, . * * * * * * * Schopp, Robert F. (1998) ''Justification Defenses and Just Convictions'', Cambridge: Cambridge University Press, . * * Semeraro, (2006
Osservazioni sulla riforma della legittima difesa
* Vitu, Legitime defense et infraction d'imprudence, Revue de Science Criminelle, 1987, 865.


External links


UseofForce.us
an independent, in-depth breakdown of US self-defense legalities. * {{DEFAULTSORT:Right Of Self-Defense Human rights Self-defense