World Library  
Flag as Inappropriate
Email this Article

Right of self-defense

Article Id: WHEBN0000146342
Reproduction Date:

Title: Right of self-defense  
Author: World Heritage Encyclopedia
Language: English
Subject: Criminal possession of a weapon, Per minas, Self-defense (United States), Intentional tort, Fraud
Collection: Human Rights, Self-Defense
Publisher: World Heritage Encyclopedia
Publication
Date:
 

Right of self-defense

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 persons to use reasonable force or defensive force, for the purpose of defending one's own life or the lives of others, including, in certain circumstances, the use of deadly force.

Contents

  • Theory 1
  • Defense of others 2
  • Definition in specific countries 3
  • See also 4
  • References 5
  • Bibliography 6
  • External links 7

Theory

"Justification does not make a criminal use of force lawful; if the use of force is justified, it cannot be criminal at all." [1]

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.[2] 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).

In Leviathan (1651), Hobbes (using the English term self-defense for the first time) 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 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.

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 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.

Definition in specific countries

See also

References

  1. ^ Dennis J. Baker, Glanville Williams Textbook of Criminal Law (London: 2012) at Chapter 21.
  2. ^ See generally, Frier & McGinn, A Casebook on Roman Family Law, Oxford University Press (2004).

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, ISBN 0-226-25334-1.
  • Fletcher, George P. (2000) Rethinking Criminal Law, Oxford: Oxford University Press, ISBN 0-19-513695-0.
  • Schopp, Robert F. (1998) Justification Defenses and Just Convictions, Cambridge: Cambridge University Press, ISBN 0-521-62211-5.
  • 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.
  • Self-Defence and the Canadian Criminal Code, a look at reasonable force as it applies in Canadian law.
  •  
This article was sourced from Creative Commons Attribution-ShareAlike License; additional terms may apply. World Heritage Encyclopedia content is assembled from numerous content providers, Open Access Publishing, and in compliance with The Fair Access to Science and Technology Research Act (FASTR), Wikimedia Foundation, Inc., Public Library of Science, The Encyclopedia of Life, Open Book Publishers (OBP), PubMed, U.S. National Library of Medicine, National Center for Biotechnology Information, U.S. National Library of Medicine, National Institutes of Health (NIH), U.S. Department of Health & Human Services, and USA.gov, which sources content from all federal, state, local, tribal, and territorial government publication portals (.gov, .mil, .edu). Funding for USA.gov and content contributors is made possible from the U.S. Congress, E-Government Act of 2002.
 
Crowd sourced content that is contributed to World Heritage Encyclopedia is peer reviewed and edited by our editorial staff to ensure quality scholarly research articles.
 
By using this site, you agree to the Terms of Use and Privacy Policy. World Heritage Encyclopedia™ is a registered trademark of the World Public Library Association, a non-profit organization.
 



Copyright © World Library Foundation. All rights reserved. eBooks from World eBook Library are sponsored by the World Library Foundation,
a 501c(4) Member's Support Non-Profit Organization, and is NOT affiliated with any governmental agency or department.