As explained, both the nature of private defence as a justification and the rationale of private defence obligate a requirement of a certain mental element as a condi- tion for the establishment of private defence. But what is the appropriate content for this requirement? There is no doubt that it is founded on the underlying requirement of awareness of the justifying circumstances. This is the minimum condition, while the dispute is whether this is sufficient in and of itself, or if in addition there is a need for a requirement of a certain purpose. It should also be noted, that most of the arrows shot by those opposing the requirement of a men- tal element of some sort are aimed—as shall be seen below—at the requirement of a purpose, since it is not easy to criticise the requirement of awareness.924
With regard to the requirement of awareness, an important clarification is nec- essary. Just as the criminal mens reathat is required as a basic condition for the establishment of a typical criminal offence is an awareness of the actor of all the factual elements of the offence except the prohibiting norm itself,925thus too the requirement of the awareness of the actor of the justifying circumstances as a condition for establishing the justification of private defence does not encompass the law in general nor the requirement of proportionality in particular. The exist- ence of proportionality is a question of law. It does not concern the determination of a fact’s existence, but the application of a normative requirement for the facts of a concrete case, and consequently it constitutes part of the ‘law’. It involves a concept that leaves discretion to the court, especially given the impossibility of providing for all the possible balances between the various competing interests, within the legislated law. The test that courts usually use in order to determine the existence of the (objective) requirement of proportionality—‘the reasonable per- son’926—also demonstrates that the courts, in effect, determine a norm and not the existence of a fact. Consideration of the mental element of the actor regarding the existence of proportionality therefore takes place within the framework of the arrangement of putative private defence or diminished responsibility in a case of private defence with excessive force, arrangements which are discussed later.927
924Thus, eg, Robinson bases all his criticism of the requirement of awareness on the very specific case of placing a trap and on the fact that awareness constitutes a mere approximation of a more suit- able standard—according to the supporters of the requirement of a mental element—of a justifying purpose—see Robinson (1984), n 37 above, vol 2 at 15ff. In passing, it should be noted, that in my opinion, Robinson’s analysis concerning the issue of the trap is mistaken, since he only focuses on the awareness of the actor at the moment of the trap’s activation, while he completely ignores the aware- ness of the actor at the time he sets the trap.
925See, eg, Williams (1983), n 1 above, at 454.
926See, eg, Yeo, n 733 above, at 364.
927See (correspondingly) Ch 5.2.5 and 5.3 below.
This leads to a more difficult question: what is the desirable requirement—
relying on awareness alone or requiring a purpose in addition? Here, too, it is first necessary to make an important clarification. In contrast to the tendency that sometimes exists to talk about motives, or to confuse motives and purposes,928the requirement that should be taken into account is a requirement of purpose and not of motive.929My opinion is that as a general rule motives are not relevant for substantive criminal law, in clear distinction from purposes, which are likely to be relevant, as they highlight the choice of the actor to injure the object that is pro- tected by the prohibition of the offence.930
As mentioned, the requirement of a purpose in addition to awareness fits better, both with the factor of the social-legal order in the rationale for private defence, and also with the completely justified character of private defence. However, on the path to the conclusion that this is also the desirable law, it is necessary to overcome sev- eral additional theoretical obstacles that the opponents of this requirement have presented. Most of the possible difficult questions in this matter were posed by Robinson: Which exact purpose should be required? Should it be exclusive? Should it be the main purpose? Or, perhaps, necessary purpose (without which the actor would not have acted as he did)? An additional argument that Robinson raises is
928 For mistakes regarding this matter (in most cases—the use of the terms ‘motive’ and ‘purpose’
interchangeably, where the opinion of the authors is in fact that a ‘purpose’ should be required) see the explanatory wording of the MPC (Tentative Draft No 8 (Philadelphia, 1958)), at 17; Dressler, n 32 above, at 70. In contrast, when Robinson speaks of an evil motive instead of a lack of the required good purpose (see Robinson (1975), n 37 above, at 291), this does not stem from his lack of distinction between motives and purposes, but is, apparently, intended to serve his argument—negation of the requirement for a purpose—while blurring the true requirement.
929 To refresh the distinction between these terms, I shall present the following example (The verdict of CA 309/58 Barazani and Mizrahi v The Attorney-General of Israel PD 13(3) 1409): a sense of having been insulted and humiliated directed against a man who had disappointed a woman in love with him, led that woman to murder the man’s father, with the purpose of causing severe emotional harm to the man. The motive—in this example is the sense of having been insulted and humiliated—
is the answer to the question: why did the actor act in this way? It concerns a mental attitude that does not relate to any future event. The purpose—in this example, the desire to cause severe mental harm to the man who had disappointed her—is the answer to the question: what did the actor desire to achieve by means of his act?
The purpose is a will, an aspiration for the achievement of a certain aim (in the above example—the mental injury to the man). In terms of the mental attitude, the purpose is identical to criminal inten- tion (that in the above example is the aspiration for the death of the father). Both cases concern a will, an aspiring attitude. The difference is that while the criminal intent relates to the achievement of a result, whose existence is required in the definition of the factual element of the offence, the purpose relates to the achievement of an aim, whose existence is not a condition for the establishment of the offence (such as the permanent denial of an object that is stolen from its owners—in an offence of theft). Thus, in substance, the purpose is very close to the intention, and both of them differ greatly from motive (consequently, eg, it is possible to replace them with the value-equal replacement ‘the foreseeability rule’ (practical certainty; ‘the knowledge rule’; ‘dolus indirectus’) while this rule cannot be applied to motive at all, since motive does not relate to any future event). For greater detail: Sangero, n 61 above, at 339ff., and Sangero (1998), n 83 above, at 725ff.
930 For detail, Sangero, n 61 above, at 339–43; also with regard to the tendency to confuse motives and purposes. For additional and reasoned support for my approach see Robinson (1984), n 37 above, vol 2 at 17.
that while with regard to a criminal offence the requirement for a purpose relates to an objective factor that appears in the definition of the offence, with regard to a defence the purpose has no parallel objective factor of any sort to relate to.931
Silving and Dressler also voiced their criticism regarding the requirement of a purpose. Dressler doubts the exalted purposes of the defender, his commitment to the public interest and the courage that his action reflects, and notes that the actor often acts out of mixed purposes or in a spontaneous manner.932Silving claims that the requirement of a purpose is absurd in its simplicity, for it assumes that human behaviour is directed by an isolated motive, in contradiction to psycho- logical reality.933
The main response to most of the difficult questions and arguments that were mentioned is that there should not, in fact, be any requirement that the justifying purpose (to defend oneself or to protect) be the sole purpose of the actor. Indeed, often additional purposes and motives will accompany it, some of which will not be pure. However, this does not detract from the correctness of the determination that the actor did indeed act in order to defend himself or to protect, and this should suffice. The supporters of the requirement of a justifying purpose some- times make it clear that it should not necessarily be the only purpose of the actor.934A full examination of all the purposes of the actor would also be compli- cated and complex, to a degree that would render it impractical. Consequently, there is also no room for striking a balance of purposes, or constructing a hierar- chy of the various purposes of the actor. What is important for our discussion is the actual existence of a defensive or protective purpose.
The Spanish legislator created a good example of the unreasonableness of the requirement of an exclusive purpose. In the section of the penal code relating to the defence of another person, the legislator required that the actor (defender) should not be motivated by revenge, resentment or any other improper motive. A possible and undesirable result of such a requirement is that if the attacked person offers a financial reward to the actor for rescuing him from his aggressor, the actor risks conviction.935
As to Robinson’s question regarding the purpose that should be required and his argument that there is no objective factor in a defence to which the require- ment of a purpose relates, without generalising and determining whether there is
931See Robinson (1984), n 37 above, vol 2 at 17–18.
932See Dressler, n 32 above, at 80–81. Similarly, Ashworth speaks of a negative purpose for defen- sive actions—see Ashworth, n 183 above, at 302.
933See Silving, n 1 above, at 304.
934See the explanatory wording of the MPC (Tentative Draft, No 8 (Philadelphia, 1958)) at 17 (the drafters clarify that exclusivity of the justifying purpose is not required and that this is also the reason for their avoidance of a requirement that the actor should act under the influence of fear alone); La Fave and Scott, n 43 above, at 655; Rosen, n 37 above, at 28.
935See Silving, n 1 above, at 590–91 (presenting this version of the section and noting this criticism by Spanish scholars).
any validity to his arguments with regard to justifications in general, it should suffice to determine that, at least with regard to private defence, no difficulty arises. The purpose that should be required is a purpose of defending oneself (when self-defence is involved) or protecting the attacked person (when defence of another person is involved) or protection of property (when defence of prop- erty is involved).936
With regard to Robinson’s other argument, indeed the purpose of defending oneself or protecting another relates directly to the physical object that is attacked (and which is defended). This object is part of the defence no less than the target, to which the requirement of a purpose established in the criminal offence refers, is part of the criminal offence. Having defined the required (not necessarily exclu- sive) purpose as defence of oneself or protection of another, an answer is also pro- vided to the arguments of Dressler: there is no difficulty in justifying the action of the actor even if he did not act out of commitment to the public interest and courage937and even if he had additional purposes (such as—in defence of another person—the purpose of receiving a financial reward for the rescue from the aggressor). As to the person who acts spontaneously, it is reasonable to assume that such an actor acts with the purpose of defending himself or to protect, and not to fulfill other purposes.
This last conclusion leads to a larger and more significant generalisation. I am of the opinion that with regard to self-defence (of the attacked person for himself) there is usually no practical difference between a requirement for a purpose of self- defence and being satisfied with awareness of the justifying circumstances. For it is difficult to imagine an actor who is aware that he is being attacked by an immedi- ate attack that endangers him and who uses necessary defensive force in order to repel the attack, and yet does not aspire to repel the attack. Consequently, the dis- tinction between requiring a purpose and being satisfied with awareness will be found mainly in the other areas of private defence, especially defence of another person, and perhaps protection of property. It is also reasonable to assume in regard to these cases that the actor, who is aware of the circumstances of private defence and exerts defensive force, intends to defend, even if only to enjoy the defence that exempts him from criminal responsibility. The probability that the purpose of the actor will indeed be to defend is extremely high given the situation of compulsion, the requirement for immediacy, and the fact that the act is often almost instinctive. Whereas in those rare cases in which the actor does not aspire to
936 The difficulty in determining the exact purpose that should be required, as Robinson noted, exists—if at all—with regard to the general justification of the ‘lesser evil’, but not with regard to pri- vate defence.
937 On this matter of courage, it should be noted that the example presented by Dressler of behav- iour lacking in courage—the killing of a child (see Dressler, n 32 above, at 81)—does not, in my opinion, serve his argument, since, as mentioned, when the aggressor is not responsible for his actions this does not involve (again: in my opinion) private defence at all, but a ‘necessity’ defence type as an excuse (see Ch 1.5.3 above).
defend, but only exploits the situationthat enables him—according to his under- standing—to exercise physical force in opposition to the prohibitive norm, then, in light of the factor of the social-legal order within the rationale of private defence, and if indeed we wish to preserve its character as a justification free from any moral stigma, it is indeed possible to support the approach that there is no room to justify his action. This conclusion is compatible with the spirit of the above- mentioned words of Beale, according to which the justification is not a licence to cause damage, but rather a grant of authority to act in order to defend.938
Another interesting possibility—that was not raised in the literature—is to rely on the actor’s awareness of the fact that by his act he would with near certainty defend the attacked physical object against the aggressor. This is similar to the fore- seeability rule(practical certainty; ‘the knowledge rule’; ‘dolus indirectus’), accord- ing to which when the actor foresees that it is almost certain that the consequence required in the definition of the offence (or the target that is mentioned there) will occur, this is viewed as a substantive replacement for the intention to cause that same consequence (or a purpose of achieving that target). Such an approach, which is based on weighing the value between an awareness of the existence of practical certainty and a desire for it to happen,939will even further reduce (and in fact will almost completely nullify) the difference between a requirement of a purpose of defence and the sufficiency of awareness of the justifying circumstances.