self-defense (theory)
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The right of self-defense is the right for people as individuals to commit a crime, violent or non-violent, for the purpose of defending their 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 (law), ...
) and property, or to defend the lives of others, in certain circumstances. For example, while
reckless driving In United States law, reckless driving is a major moving violation related to aggressive driving that generally consists of driving a vehicle with willful or wanton disregard for the safety of persons or property. It is usually a more serious o ...
is usually against the law, it can be justified if it was done to avoid a collision. The right, when it applies to the defense of another, is also called alter ego defense, defense of others, defense of a third person. Nations and
states State most commonly refers to: * State (polity), a centralized political organization that regulates law and society within a territory **Sovereign state, a sovereign polity in international law, commonly referred to as a country **Nation state, a ...
also have a right to self-defense in relation to their existence and independence. In
criminal law Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and Well-being, welfare of people inclusive of one's self. Most criminal l ...
, if a defendant commits a crime because of a threat of deadly or grievous harm, 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 a defendant commits a crime because of such a perception, and the perception is not reasonable, the defendant may have " imperfect self-defense" as an
excuse In American jurisprudence, an excuse is a defense to criminal charges that is a distinct from an exculpation. Justification and excuse are different defenses in a criminal case (See Justification and excuse).Criminal Law Cases and Materials, ...
.


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 (), to the (AD 529) ordered by Eastern Roman emperor Justinian I. Roman law also den ...
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'' (: ''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 extende ...
'' 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, Theology, theologian, author, hymnwriter, professor, and former Order of Saint Augustine, Augustinian friar. Luther was the seminal figure of the Reformation, Pr ...
's concept of justified resistance against a Beerwolf ruler, which was used in the doctrine of the lesser magistrate propounded in the 1550 '' Magdeburg Confession''. In ''
Leviathan Leviathan ( ; ; ) is a sea serpent demon 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, and the pseudepigraphical Book of Enoch. Leviathan is of ...
'' (1651),
Hobbes Thomas Hobbes ( ; 5 April 1588 – 4 December 1679) was an English philosopher, best known for his 1651 book ''Leviathan'', in which he expounds an influential formulation of social contract theory. He is considered to be one of the founders ...
(using the English term ''self-defense'' for the first time) proposed the foundation political theory that distinguishes between a
state of nature In ethics, political philosophy, social contract theory, religion, and international law, the term state of nature describes the hypothetical way of life that existed before humans organised themselves into societies or civilisations. Philosoph ...
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'' (full title: ''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 O ...
'',
John Locke John Locke (; 29 August 1632 (Old Style and New Style dates, O.S.) – 28 October 1704 (Old Style and New Style dates, O.S.)) was an English philosopher and physician, widely regarded as one of the most influential of the Enlightenment thi ...
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 can generally be defined as supreme authority. Sovereignty entails hierarchy within a state as well as external autonomy for states. In any state, sovereignty is assigned to the person, body or institution that has the ultimate au ...
, in his 1918 speech (
Politics as a Vocation "Politics as a Vocation" () 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 (i.e. Non- incorporated ...
),
Max Weber Maximilian Carl Emil Weber (; ; 21 April 186414 June 1920) was a German Sociology, sociologist, historian, jurist, and political economy, political economist who was one of the central figures in the development of sociology and the social sc ...
defined a
state State most commonly refers to: * State (polity), a centralized political organization that regulates law and society within a territory **Sovereign state, a sovereign polity in international law, commonly referred to as a country **Nation state, a ...
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 nations has emerged from the use of force, Weber asserted that the exercise of power through the institutions of government 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 princip ...
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 ; or from ) is a political philosophy that holds freedom, personal sovereignty, and liberty as primary values. Many libertarians believe that the concept of freedom is in accord with the Non-Aggression Principle, according t ...
characterizes the majority of laws as intrusive to personal autonomy and, in particular, argues that the right of self-defense from
coercion Coercion involves compelling a party to act in an involuntary manner through the use of threats, including threats to use force against that party. It involves a set of forceful actions which violate the free will of an individual in order to i ...
(including violence) is a fundamental
human right Human rights are universally recognized moral principles or norms that establish standards of human behavior and are often protected by both national and international laws. These rights are considered inherent and inalienable, meaning t ...
, and in all cases, with no exceptions, justifies all uses of violence 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 D ...
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 Harvard University Professor, University Professorship at Harvard University,civil rights Civil and political rights are a class of rights that protect individuals' political freedom, freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and ...
, 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 the affected individuals. In other words, utilitarian ideas encourage actions that lead to the ...
with the responsive violence being the greatest good to the individual, but accurately mirrors
Jeremy Bentham Jeremy Bentham (; 4 February Dual dating, 1747/8 Old Style and New Style dates, O.S. 5 February 1748 Old Style and New Style dates, N.S.– 6 June 1832) was an English philosopher, jurist, and social reformer regarded as the founder of mo ...
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 (polity), 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 oppor ...
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, orator, writer and Academic skeptic, who tried to uphold optimate principles during the political crises tha ...
( BCE 106–43) and other stoic philosophers, influenced by
Aristotle Aristotle (; 384–322 BC) was an Ancient Greek philosophy, Ancient Greek philosopher and polymath. His writings cover a broad range of subjects spanning the natural sciences, philosophy, linguistics, economics, politics, psychology, a ...
. Miguel Faria, author of the book ''America, Guns, and Freedom'' (2019), writing in '' Surgical Neurology International'' 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 ( ; ; – 7 March 1274) was an Italian Dominican Order, Dominican friar and Catholic priest, priest, the foremost Scholasticism, Scholastic thinker, as well as one of the most influential philosophers and theologians in the W ...
. 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 (Old Style and New Style dates, O.S.) – 28 October 1704 (Old Style and New Style dates, O.S.)) was an English philosopher and physician, widely regarded as one of the most influential of the Enlightenment thi ...
(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 and clearly formulated by
Thomas Jefferson Thomas Jefferson (, 1743July 4, 1826) was an American Founding Fathers of the United States, Founding Father and the third president of the United States from 1801 to 1809. He was the primary author of the United States Declaration of Indepe ...
in the
Declaration of Independence A declaration 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 territory of another state or failed state, or are breaka ...
. 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

Son assault demesne ("his own first assault") is a form of a plea to justify an assault and battery, by which the
defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one juris ...
asserts that the
plaintiff A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the ...
committed an assault upon him, and the defendant merely defended himself. 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, an automobile or a home) as a place in which that person has protection ...
' 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? When the plea is supported by evidence, it is a sufficient justification, unless the retaliation by the defendant were excessive, and bore no proportion to the
necessity Necessary or necessity may refer to: Concept of necessity * Need ** An action somebody may feel they must do ** An important task or essential thing to do at a particular time or by a particular moment * Necessary and sufficient condition, in l ...
, or to the provocation received.
Character evidence Character evidence is a term used in the law of evidence to describe any testimony or document submitted for the purpose of proving that a person acted in a particular way on a particular occasion based on the character or disposition of that per ...
that the plaintiff was noted for quarrelsomeness is generally admissible where an answer of son assault demesne is filed.


Model Penal Code

In the
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 ...
applicable to
states of the USA In the United States, a state is a Federated state, 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 i ...
, (MPC) §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. states 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 Doctrine (from , meaning 'teaching, instruction') is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the essence of teachings in a given branch of knowledge or in a belief system. The etymolo ...
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 aggressor 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 country comprising mainland Australia, the mainland of the Australia (continent), Australian continent, the island of Tasmania and list of islands of Australia, numerous smaller isl ...
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Czech Republic The Czech Republic, also known as Czechia, and historically known as Bohemia, is a landlocked country in Central Europe. The country is bordered by Austria to the south, Germany to the west, Poland to the northeast, and Slovakia to the south ...
*
Sweden Sweden, formally the Kingdom of Sweden, is a Nordic countries, Nordic country located on the Scandinavian Peninsula in Northern Europe. It borders Norway to the west and north, and Finland to the east. At , Sweden is the largest Nordic count ...
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England and Wales England and Wales () is one of the Law of the United Kingdom#Legal jurisdictions, 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. Th ...
*
United States The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...


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 to produce exculpatory evidence in the legal defense of justification. In most countries, ...
*
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 to ...
*
Pikuach nefesh ''Pikuach nefesh'' (), which means "saving a soul" or "saving a life," 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 critic ...
*
Right to keep and bear arms The right to keep and bear arms (often referred to as the right to bear arms) is a legal right for people to possess weapons (arms) for the preservation of life, liberty, and property. The purpose of gun rights is for Self-defense#Armed, self ...
* ''
Son assault demesne The right of self-defense is the right for people as individuals to commit a crime, violent or non-violent, for the purpose of defending their own life (self-defense) and property, or to defend the lives of others, in certain circumstances. F ...
'' *
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 use of force, force may be used against a resisting or compliant subject in a given situation. In some ways, it is similar ...


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. * "Criminal Law: Self-Defense". Michigan Law Review, vol. 2, no. 8, 1904, pp. 727–28, JSTOR, https://doi.org/10.2307/1272411. Accessed 18 May 2023.


External links


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