5.4 Situation of Private Defence Caused by the
5.4.2 Examination in Light of the Rationale for Private Defence
What can and should be deduced from the rationale for private defence with regard to the issue under discussion? Firstly, the tendency that exists at times to derive the solution for this issue from the very classification of private defence as a justification should be rejected. There is an approach according to which while the prior guilt of the actor is relevant to a defence of an excuse nature, it is not rele- vant to a defence that carries a character of a justification.1214However, such an automatic mechanical derivation of a solution to an issue from its very classification as a justification is over-simplified. Since—as we shall see below—
the very determination that an action of private defence is desirable for society cannot be made while the prior guilt of the actor is completely disregarded—a guilt which bears a significant implication for the different factors which operate for the justification of private defence. Moreover, even if the action of private defence is desirable despite the prior guilt of the actor, this matter still would not necessarily negate the imposition of some sort of criminal responsibility (not necessarily full) on the actor.
1212 See, eg, the explanatory wording of the MPC (Tentative Draft No 8 (Philadelphia, 1958)), at 22;
Perkins, n 40 above, at 159; Perkins and Boyce, n 85 above, at 1141.
1213 According to one opinion, it is possible in certain cases, to attribute full criminal responsibility to the actor for an offence of consequence with a non-defined behavioural element (namely, an offence of causation, such as the offences of killing). For at the first stage the actor caused the result that took place at the second stage—the stage of compulsion and private defence. However, in light of the actor’s additional behaviour—at the second stage—that directly caused the result, such an attribution of responsibility is likely to be too far-reaching, since this is liable to create too great an extension of the causation offences. It should also be noted that the actor causes his own (subsequent) behaviour, vol- untarily and accompanied by a certain mental element. In any case, it should be remembered that this solution is restricted in advance to offences of causation alone. In effect, it creates—for them alone—
an arrangement quite akin to the doctrine of ‘actio libera in causa’, which, as will be seen below, can be provided for all the offences. A possible advantage of such a solution over the use of this doctrine is the existence of simultaneity between the factual element and the mental element of the offence.
1214 For such an approach see Robinson (1975), n 37 above, at 280. Regarding such an approach see Williams (1983), n 1 above, at 505 fn 17; Gur-Arye, n 13 above, at 222–24.
I shall therefore note the different factors that act together to justify private defence. Two of them do not create any special difficulty. The first—the autonomy of the person attacked—operates for the justification of private defence despite the actor’s guilt in creating the situation, since this guilt does not negate the injury to the autonomy of the person attacked by the illegal attack of the aggressor. An exception to this matter is the special situation, in which the actor acts intentionally and plans the creation of the situation of private defence in advance in order to harm the aggressor. With regard to such an attacked person—who in effect is interested in being attacked—it could definitely be determined that there is no real injury to his autonomy despite the illegal attack on him. The factor of the aggressor’s guilt does not cause any special difficulty in our matter either, since the actor’s prior guilt does not negate the guilt of one who performs an illegal attack. Although in a normal sit- uation—without the prior guilt of the actor—the aggressor’s guilt becomes more clear, against the background of the actor’s good faith, in the situation under dis- cussion the guilt of the aggressor still exists and provides an additional weight—
even if less than in regular cases—for the justification of private defence.
The factor of the social-legal order raises greater difficulty for the issue under discussion. Prima facie, given the illegal attack of the aggressor, this order is restored if the actor exerts defensive force against him. But would exertion of force by an actor who is guilty of creating the situation really serve the social-legal order?
Is such an actor fitting at all to protect law and order? At least in the extreme case when the actor provokes the aggressor, aiming to harm the aggressor under con- ditions of private defence, it seems that the defensive action of the actor does not serve the social-legal order.1215It can even be argued that the desirable defence for the interests of such an attacked person is restricted.1216
The case in which the actor plans in advance both his provocation and also the reaction of the assigned aggressor (who is—in a certain sense—the victim) with the purpose of injuring the latter, is indeed a special and extreme case, for which there exists an almost absolute consensus that the actor should be denied private defence and bear full criminal responsibility. Later I shall discuss this case separ- ately, but at this stage—especially because of the very extreme nature of this case that simplifies its suitable solution—I shall concentrate on more common situa- tions, while attempting to establish a suitable arrangement for them that is not distorted by the impact of the extreme case of prior intention and planning.
A central argument used to support the approach that the legitimacy of private defence is absolute—even when the actor is guilty of creating the situation—is that the aggressor has almost complete control of the situation. He is capable of ceas- ing his illegal act and thus ensuring that the need to injure him, in order to repel his attack, becomes superfluous. This characteristic of private defence is often
1215 For a similar opinion see Eser, n 26 above, at 632 and fn 56.
1216 See Hermann, n 342 above, at 754–55.
highlighted as its unique feature, distinguishing it from the defence of neces- sity.1217Indeed, prima facie, this matter is irrelevant to the criminal responsibility of the actor, and is only relevant for the guilt and the criminal responsibility (and consequently—for his punishment) of the aggressor, whose responsibility is not at issue here.1218Further, the justification of private defence in modern criminal law is not based on the punishment of the aggressor.1219However, it seems that the aggressor’s breach of his duty to cease his attack bears a certain relevancy for our matter, since the illegitimacy of the aggressor’s action and the violation of the social-legal order that it entails can be halted by the action of private defence and thus order can be restored. In addition, it appears that there is merit in the claim that negation of private defence is liable to provide a certain legitimisation for the illegal attack, and that the prohibition of such defensive action in effect imposes a duty on the person attacked to abandon himself to the aggressor and to enable him to persist in his illegal attack.1220
Parenthetically, it should be noted at this point that alongside the unique characteristic of private defence regarding the ability of the aggressor to cease his attack—on the other hand—it is also necessary to emphasise an additional exclusive characteristic that should be taken into account for the arrangement of this issue: the ability of the actor (the person attacked) to make a ‘withdrawal’, including an announcement to his opponent of his honest intention to cease the confrontation. The important interest of maintenance of the social-legal order requires consideration of such a possibility, as is detailed below.
In the final analysis, my opinion is that except for the special case of intention and planning in advance of the entire series of events, the social-legal order factor, alongside the factors of autonomy of the person attacked and the guilt of the aggressor, also supports the justification of the private defence action once the sit- uation of compulsion has already been established, despite the prior guilt of the actor. The more difficult questions are: whether this justification of private defence should be limited by conditions additional to those that already exist in regular situations (in the absence of prior guilt of the actor1221) and whether there is room to impose criminal responsibility of some sort on the actor, not based on his justified action in the situation of compulsion, but rather, perhaps, on the earlier stage when he was guilty of causing the situation in an attempt to deter the creation of such dangerous situations.
1217 Eg, Feller, n 14 above, vol 2 at 471–78.
1218 For a similar opinion see, eg, Gur-Arye, n 336 above, at 81.
1219 See Ch 1.5.8.2 above.
1220 For such a claim, see eg, Feller, n 14 above, vol 2 at 474. Consider also the questions posed by the Supreme Court in CA 298/88 Twito v The State of Israel PD 44(1), 151, at 58–59 (especially those that relate to the victim ‘taking the law into his own hands’; to ‘disregard for his life’; and to the desir- able policy with regard to ‘taking the law into one’s own hands in a violent way’).
1221 Thus, eg, it is possible—given the prior guilt—to make more stringent requirements of pro- portionality, necessity, immediacy and retreat.
An additional consideration of policy that should be noted before turning to an examination of different possible arrangements for this issue is based on the ‘own- ership’ of the interest that is placed at risk as a result of the illegal attack. For even though in most cases the interest that is endangered pertains to the actor himself, there could be cases in which another person’s interest is involved that the actor is able to rescue within the framework of private defence of another person. If in the regular (first) case society has an interest that the actor should nevertheless act to cease the illegal attack, despite his prior guilt, and if there is a certain fear that the imposition of criminal responsibility on him will deter him from acting, then these considerations are strengthened when the interest at stake is that of another per- son. Firstly, the justification, at least moral, of defence of another person who is devoid of prior guilt is stronger in comparison to the justification of the defensive action of the actor (who caused the situation by his own guilty behaviour) himself.
Secondly, when the life, body or other interest of the actor himself are at risk, it is very reasonable to assume that he will act to protect them even if he is liable to bear responsibility of some kind for this because of, among other things, his survival instinct. However, when the interest that is endangered is that of another person, there is a real concern that the imposition of criminal responsibility on the actor will deter him from acting to save the person attacked.1222It is interesting to note that in the Israeli Penal Code, such a distinction was made regarding the defence of necessity.1223I am of the opinion that this distinction is also necessary, espe- cially within the framework of private defence, for the goal in such a case is to encourage the rescue of another person’s interest and not to abandon this interest by deterring a rescue action. A proposed method for applying this distinction will be set forth following.
5.4.3 ‘Solutions’ that do not Solve the Problem
A ‘solution’ that was proposed for the issue under discussion is to rely on the ordinary rules, according to which there should be no opposition to justified behaviour but it is justified to oppose illegal behaviour1224. According to this approach, the examination should focus on the reaction of the actor’s opponent,
1222 I shall refer later to the argument that if criminal responsibility is imposed on the actor accord- ing to the doctrine of ‘actio libera in causa’, it is preferable for the actor—in order to reduce his respon- sibility—to act in order to save the interest at stake. Already at this stage it should be noted that this argument is likely, in my opinion, to be persuasive with regard to the defence of choice of the ‘lesser evil’, but it is not convincing regarding private defence, since there could be a justified action of private defence for an interest of the person attacked by means of a more severe (yet still proportional) injury to the interest of the aggressor.
1223 S 34n of the Penal Code, 1977, as amended in Amendment No. 39 (1994).
1224 For such proposals see Robinson (1984), n 37 above, vol 2 at 32; the explanatory wording of the MPC, Tentative Draft No. 8 (Philadelphia, 1958), at 22–23. See also the examples presented in American Jurisprudence, n 500 above, 1998 supplement of vol 6 (addition to s 75) at 47.
which is made in response to the preliminary attack of the actor. If the opponent relies on moderate force that is justified as private defence against the attack of the actor, then his action is completely legitimate and the actor is not entitled to defend himself against it. However, if the opponent uses excessive force, then his action is illegal and the actor is entitled to defend himself against it. As to the first possibility, in such a case a basic condition for private defence is missing—an ille- gal attack—and therefore even without taking the prior guilt of the actor into account it is clear that there is no room for private defence on his part. The second possibility, which involves the issue under discussion, leaves intact the question of whether, even though all the conditions for private defence exist at the second stage (including of course, an illegal attack), there is nevertheless room to restrict the force that is justified within its framework or to impose a certain responsibil- ity on the actor, given his guilt in the creation of the situation. In addition, it should be remembered that the fact that the actor’s causing of the situation and the guilt he bears for having done so are not actually limited to an attack.
Another ‘solution’ is based on the requirement of necessity. According to this
‘solution’, defensive force is not necessary if the actor could choose another way of preventing his entry into the situation of defensiveness. However, the mistake stems from the fact that compliance with the conditions of necessity—just as com- pliance with the rest of the conditions of private defence—must be examined by considering the moment of compulsion and not an earlier (or later) time.1225With regard to the time of the compulsion, the preliminary assumption is that the action of the actor has met the requirement of necessity, since otherwise no defence would be established at all and there is no room or need to examine the influence of the actor’s prior actions and guilt.