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The right of self-defense (according to U.S. law) (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 civilians acting on their own behalf to engage in a level of violence, called reasonable force or defensive force, for the sake of defending one's own life or the lives of others, including, in certain circumstances, the use of deadly force.
The early theories make no distinction between defense of the person and defense of property. Whether consciously or not, this builds on the Roman Law 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 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.1 In Leviathan (1651), Hobbes proposed the foundation political theory that distinguishes between a state of nature 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, John Locke 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 I 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, in his 1918 speech Politik als Beruf (Politics as a Vocation), Max Weber defined a state as an authority claiming the monopoly on the legitimate use of physical force 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 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 characterizes the majority of laws as intrusive to personal autonomy and, in particular, argues that the right of self-defense from coercion (including violence) is a fundamental human right, 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 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 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 asserted that there are no positive civil rights, 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 with the responsive violence being the greatest good to the individual, but accurately mirrors Jeremy Bentham 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 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.
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||This section contains too many or too-lengthy quotations for an encyclopedic entry. (January 2012)|
"Justification does not make a criminal use of force lawful; if the use of force is justified, it cannot be criminal at all." 2
The defense of justification (New York Penal Law art. 35) affirmatively permits the use of force under certain circumstances... The defense does not operate to excuse a criminal act, nor does it negate a particular element of a crime. Rather, by recognizing the use of force to be privileged under certain circumstances, it renders such conduct entirely lawful...
In this regard, the current statutory defense reflects the common-law "right" of an individual to repel a threat to life or limb... Defense of oneself or one's relations, deemed a natural, inalienable right at common law, justified the use of force, making even homicide lawful.3
The defense of justification would fail, for example, if a defendant deliberately killed a petty thief who did not commit robbery and who did not appear to be a physical threat. However, the owner or lawful possessor of property has a privilege to a reasonable degree of non-deadly force necessary to protect his possession or recover his property, regardless of no physical threat to his person.citation needed
'Property' is more than just the physical thing—the land, the bricks, the mortar—it is also the sum of all the rights and powers incident to ownership of the physical thing. [T]he right to use the physical thing to the exclusion of others is the most essential and beneficial. Without this right all other elements would be of little value.'4
The ownership and possession of property confer a certain right to defend that possession, [including] a defense of it which results in an assault and battery, and that which results in the destruction of the means used to invade and interfere with that possession."5
In Cross v. State, 6 the Court found that the Due Process of Law clause in the state constitution guaranteed "the inherent and inalienable right to protect property."
However, when an assailant ceases to be a threat (e.g. by being tackled and restrained, surrendering, or fleeing), the defense of justification will fail if the defending party presses on to attack or to punish beyond imposing physical restraint. A somewhat less obvious application of this rule is that admitting the use of deadly force in an attempt to disable rather than kill the assailant can be construed as evidence that the defendant was not yet in enough danger to justify lethal force in the first place. Sometimes there is a duty to retreat which makes the defense problematic when applied to abusive relationships (see battered woman syndrome and abuse defense), and in burglary situations given the castle doctrine (see: Edward Coke), which argues that one cannot be expected to retreat from one's own home, namely, "a man's house is his castle, et domus sua cuique est tutissimum refugium" i.e. Latin for "and one's home is the safest refuge").citation needed
New York Penal Law section 35.15 effectively ordains that:
"A person may... use DEADLY physical force upon another person" "when and to the extent he reasonably believes such to be NECESSARY to defend himself or a third person from what he reasonably believes to be .... a kidnapping, forcible rape, forcible sodomy or ROBBERY; or (c) ... a burglary...."
There is no duty to retreat under these circumstances. However, if one is "challenged" in a bar for a fight, accepting such challenge and using deadly force, instead of walking away, generally will not constitute a self-defense.
In some countries and U.S. states, the concept of "pre-emptive" self-defense is limited by a requirement that the threat be imminent. Thus, lawful "pre-emptive" self-defense is simply the act of landing the first-blow in a situation that has reached a point of no hope for de-escalation or escape. Many self-defense instructors and experts believe that if the situation is so clear-cut as to feel certain violence is unavoidable, the defender has a much better chance of surviving by landing the first blow and gaining the immediate upper hand to quickly stop the risk to their person.
Justification for self-defense usually cannot be applied to actions committed after a criminal act has taken place, but the laws of many states authorize the use of force, sometimes even deadly force, to effect the citizen-arrest of a fleeing offender. A rape victim who, after the rape is committed and the rapist leaves, subsequently finds and shoots the rapist, is not entitled to claim self-defense. Most other victims of assaultive offenses are similarly not entitled to this defense if they act in revenge. In many U.S. jurisdictions, using deadly force against a burglar/thief who is attempting to escape with stolen property is likewise not justifiable. (Texas law holds the defendant to a high burden of proof that the deadly force was the only means available to recover the property without a serious risk of death or serious injury). However, the Common Law and the Model Penal Code makes a distinction between mere thieves and those who are guilty of "robbery". Many states apply the Common Law's "fleeing felon" rule as a justification for private persons to use deadly force necessary to "arrest" violent criminals.citation needed
New York Penal Law, sec. 35.30, titled "Justification; use of physical force in making an arrest or in preventing an escape", provides:
4. A private person acting on his own account may use physical force, other than deadly physical force, upon another person when and to the extent that he reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom he reasonably believes to have committed an offense [in his presence] and who in fact has committed such offense; and he may use deadly physical force for such purpose when he reasonably believes such to be necessary to:(a) Defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or (b) Effect the arrest of a person who has committed Murder, manslaughter in the first degree, Robbery, forcible Rape or forcible sodomy and who is in immediate flight therefrom.
Although the Law of Justification has heretofore been considered a matter of state law, the recent Supreme Court decisions in District of Columbia v. Heller and McDonald v. Chicago may have constitutionalized some of the common law rules of "self-defense" as fundamental rights. The U.S. Supreme Court held that the Second and Fourteenth Amendments "protect the right to possess a handgun in the home for the purpose of self-defense." And, "stressed that the right was also valued because the possession of firearms was thought to be essential for self-defense. As we put it, self-defense was 'the central component of the right itself.'”; The Constitution, they wrote, secured "the right to keep and bear arms for self-defense." Prior to these decisions, other Constitution provisions were recognized as securing a right of self-defense. In Frank v. Maryland, the Supreme Court recited the Rights of Englishmen, including the "Right to Resist" Unauthorized Deprivations, was incorporated in the Constitution:
In 1761 the validity of the use of the Writs [of Assistance] was contested in the historic proceedings in Boston. James Otis attacked the Writ of Assistance because its use placed 'the liberty of every man in the hands of every petty officer.' [Otis argued: "This Writ is against the fundamental Principles of Law." ] His powerful argument so impressed itself first on his audience and later on the People of all the Colonies that President Adams was in retrospect moved to say that 'American Independence was then and there born.' ... [It was therefore recognized that] the broad constitutional proscription [against Unauthorized Deprivation in the Due Process of Law clauses, includes] the right to shut the door on officials of the state unless their entry is under proper authority of law ... [and] self-protection: the right to resist unauthorized [deprivations of Life, Liberty and Property]7
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 would 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 defence turned out to be unnecessary.
Defense of others is called pikuach nefesh in Jewish law. One may violate most negative commandments of the Torah in order to save someone's life.
- Castle doctrine
- Gun politics
- Imperfect self-defense
- Justifiable homicide
- Ossian Sweet
- Son assault demesne
- Use of force continuum
- See generally, Frier & McGinn, A Casebook on Roman Family Law, Oxford University Press (2004).
- Dennis J. Baker, Glanville Williams Textbook of Criminal Law (London: 2012) at Chapter 21.
- People v. McManus, N.Y.2d 541, 496 N.E.2d 202, 505 N.Y.S.2d 43 (1986).
- Dickman v. Commissioner, 465 U.S. 330, 336 (1984).
- People v. Kane, 131 N.Y. 111 (142 N.Y. 366, 37 N.E. 104).
- Cross v. State, P.2d 371 (Wyoming 1962).
- Frank v. Maryland, 359 U.S. 360, 364 (1959).
- Carpenter, Catherine L. (2003). "Of the Enemy Within, The Castle Doctrine, and Self-Defense". Marquette Law Review 86 (4): 653–700.
- 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, ISBN 0-226-25334-1.
- Fletcher, George P. (2000) Rethinking Criminal Law, Oxford: Oxford University Press, ISBN 0-19-513695-0.
- Getman, Julius G; Marshall, F Ray (2001). "The Continuing Assault on the Right to Strike". Texas Law Review 79 (3): 703.
- Green, Stuart P. (1999). "Castles and Carjackers: Proportionality and the Use of Deadly Force in Defense of Dwellings and Vehicles". University of Illinois Law Review 1999 (1).
- McCoy, Scott D. (2001). "The Homosexual-Advance Defense and Hate Crimes Statutes: Their Interaction and Conflict". Cardozo Law Review 22 (2): 629.
- Maguigan, H. (1991). "Battered Women and Self-Defense: Myths and Misconceptions in Current Reform Proposals". University of Pennsylvania Law Review 140 (2): 379–486. doi:10.2307/3312349. JSTOR 3312349.
- Nourse, V. F. (2001). "Self-Defense and Subjectivity". The University of Chicago Law Review 68 (4): 1235–1308. doi:10.2307/1600480. JSTOR 1600480.
- Schopp, Robert F. (1998) Justification Defenses and Just Convictions, Cambridge: Cambridge University Press, ISBN 0-521-62211-5.
- Segev, Re'em (2005). "Fairness, Responsibility and Self-Defense". Santa Clara Law Review 45 (2): 383–460.
- Semeraro, (2006) Osservazioni sulla riforma della legittima difesa
- Vitu, Legitime defense et infraction d'imprudence, Revue de Science Criminelle, 1987, 865.