• Christopher Heaps

The Right of Self-Defense

As you may know, there is a high-profile murder case going on in Portland right now that centers around the right of self-defense. Self-defense is one of the more fascinating concepts in the law. It is an ancient idea, and is nearly universal in legal systems around the world, but it has undergone considerable change over time and is far from universally-defined.

The first known mention in western law comes from Justinian in the sixth century. Under Roman law, the principle of vim vi repellere licet ("it is permitted to repel force by force") follows from the over-arching doctrine of dominion, whereby the pater familias, the male head of the household, is owner of all of his family members and the household property and therefore may defend those persons and property from attack or theft.

The same concept of self-defense was imported to the English common law, which later became the basis for American law. Statutes passed by the English Parliament as early as the 1300s imposed limitations on "self-help" as it is known in the legal profession, which refers to "taking the law into your own hands" (in the parlance of our times) to effect justice (for example, using the threat of violence to prevent theft of one's property).

Lawmakers often don't like self-help because it tends to result in people solving legal disputes through violence, rather than through a legal process. A law that encourages or authorizes violence could have serious consequences for society. And herein lies the great debate and difficulty in applying the concept of self-defense: How can the law allow people to act to prevent further violence without encouraging or excusing violence in the first place?

The conundrum is illustrated well from the English case Palmer v The Queen, which explains the test then use to decide whether a particular act of alleged self-defense was legally justified:

The defence of self-defence is one which can be and will be readily understood [by] common sense. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. … It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have [to] avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence… If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.

As you can see, self-defense depends greatly on the circumstances of the situation. Courts tend to view legitimate self-defense as actions that were necessary, reasonable, and proportionate to defend an imminent attack. And that idea has given rise to some general rules of what is acceptable in particular situations.

For example, acting on the assumption that life is more valuable than property, many English and American jurisdictions required a threatened party to retreat or attempt to retreat before defending property (as opposed to life) with deadly force. Many jurisdictions have also adopted some form of the "castle doctrine," which relaxes the requirements for self-defense when a person defends their home against unlawful entry.

Recently, several US states have passed "stand your ground" laws, which say that the person who is first attacked has no duty to retreat or attempt to retreat before using force to defend him or herself. For example, in Oregon a 2007 Oregon Supreme Court case (State v Sandoval) established that a person is not required to retreat before using deadly force to defend against the imminent use of deadly physical force by another.

Many people have argued that imposing a duty to retreat on someone being attacked values the life of the attacker over that of the victim. Some have even called the duty to retreat un-American. But there is now good reason to believe that legalizing violence, even in a situation where it may seem to make logical sense, may be bad policy because it results in more violence overall.

For example, a recent empirical study by the RAND Corporation concluded there is "moderate evidence that stand-your-ground laws may increase homicide rates and limited evidence that the laws increase firearm homicides in particular." Other studies have failed to find evidence that "stand-your-ground" laws prevent violent crime or encourage legitimate acts of self-defense.

As with many gun violence issues, more empirical research is needed. But we do have some evidence that we may have gone too far in protecting the long-recognized right to self-defense.

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