Before discussing the implications of the rationale of private defence for the sub- ject under discussion, a note should be made of the nature of private defence as a justification and the implications thereof, as a completely justified act, for the issue of the mental element. The reason for this is that the question of the mental element does not arise with regard to private defence alone, but it is a general ques-
875 This is Robinson’s approach—see 2 Robinson, n 37 above, at 20ff, 28ff, 571.
876 This is Williams’ approach—Williams (1983), n 1 above, at 504; Williams (1982), n 1 above, at 741.
877 For a non-standard approach to this matter, according to which the actor should only bear responsibility for an impossible attempt—Feller, n 14 above, vol 2 at 444.
878 I shall relate to putative defence separately in Ch 5.2. The mention of it here stems principally from the occasional tendency to confuse it with the completely different issue of our present dis- cussion.
tion of principle that arises with regard to all the justification defences. Indeed, in many discussions that were carried out in legal literature on the issue of the men- tal element required for the establishment of justifications, scholars viewed private defence as one of those justifications. Consequently, in order to derive a benefit from these discussions with regard to the justification of private defence, it is also necessary to relate to the nature of justifications as a whole.
In order to consider the essence of justification and its implications for the subject under discussion, it is necessary to reiterate two substantive and major dis- tinctions that were discussed above, and which together set the boundaries of justification and characterise it: on the one hand—the distinction between the definition of the offence and the justification, and on the other hand—the dis- tinction between justification and excuse.
According to the approach that does not draw a substantive distinction between offence and justification, no mental element of any sort should be required for the establishment of justification, and the objective justifying circumstances are sufficient in and of themselves. For the existence of justifying circumstances is equivalent to the non-existence of a factual element of the offence.879In contrast, according to the approach that distinguishes substantively between an offence and a justification, the minimum requirement is awareness of the actor of the justifying circumstances (in order that it may be said that he acted on the basis thereof), and perhaps a certain purpose (such as—for this discussion—a purpose of self-defence or protection). According to this approach, the circumstances of justification only have value and legal significance when the actor is aware of them.880
These approaches are connected to various perceptions of the nature of justification.881According to one main perception, the justification is an action whose performance is desired by society on the basis of utilitarian considerations (lack of ‘societal harm’). According to another prevalent perception, the ‘justified act’ must also be morally justified, in terms of just, good and correct behaviour. In this basic dispute, as mentioned, I favour the latter approach. In any case, the gen- eral character of private defence suits its perception as a morally justified act and not as an act whose performance is desired by society from a purely utilitarian point of view.882There is an important difference in value and substance not only between justification and excuse, but also between an element located in the framework of justification and an element that constitutes part of the definition of a criminal offence.883The requirement of a certain mental element in order to
879This is Robinson’s approach—see in detail the text above that begins with the reference to n 102.
880This is Fletcher’s approach—see in detail the text above that begins with the reference to n 105, and the references that appear there. See also Gardner, n 37 above, at 106.
881That I have noted, inter alia, within the discussion of the distinction between justification and excuse—see Ch 1.1 above.
882As I attempted to show above during the extensive discussion of the rationale of private defence.
883See principally Chs 1.1 and 1.2 above.
establish the justification is based on this difference, which is recognised by most scholars.884
There should be no acceptance of Robinson’s opinion, according to which just as the mental element of a person is not examined when he does not meet the factual element of the offence—since he does not cause damage or evil—so too, for our matter, there should be no search for his mental element when a person commits an offence, but justifying circumstances exist.885There is a substantial difference between the two cases, which cannot be ignored. While in the first case the actor does not commit an offence of any sort, in the second case he commits a criminal offence, including both its factual and mental elements. Accordingly, the criminal offence is established, and in the absence of the required mental element for the establishment of justification, criminal responsibility still exists. The importance of the fact that the actor willingly (and sometimes out of choice) caused real damage, completely voluntarily and without any compulsion, harm- ing a value that is protected by the prohibition of the offence, should not be over- looked.886It seems that even Robinson cannot completely ignore the significance of the fact that the actor commits an offence (even if the objective circumstances of justification exist), for he admits—although in another context and volume, but in the same book—that ‘harm’ also exists in a situation such as this.887
Support for the requirement of a mental element for the establishment of justification was expressed by Fletcher.888According to his school of thought, the situation is not that the absence of the circumstances of self-defence determines criminality, but that the existence of these circumstances provides a good reason for the breach of norms forbidding killing and assault. He suggests characterising private defence as an exception that should only be awarded to a person who deserves special treatment. The nature of justification—according to him—is that
884 See the text above, beginning with the reference to note 109, and the references that appear there.
885 See his book Robinson (1984), n 37 above, vol 2 at 19.
886 The willingness to harm the protected value exists at least in the offences of mens rea(in dis- tinction from negligence).
887 See Robinson (1984), n 37 above, vol 1 at 83, 90. He writes (at 83) ‘The harm caused by the justified behaviour remains a legally recognised harm that is to be avoided whenever possible’; and (at 90) ‘Justified conduct, on the other hand, causes a legally recognised harm or evil’. A hint of Robinson’s recognition of the problematic nature of justifying the action of the actor who is unaware of the cir- cumstances of ‘justification’ is also to be found in his book ibidat 124, n.10. Moreover, if the exclusive guiding principle is the existence of ‘net harm’, even without need for awareness of the justifying circumstances—as Robinson holds—it would probably be necessary to wait, whenever an offence occurs, for many years in each case (and to avoid conviction) until there would be sufficient historical perspective in order to determine whether society had benefited from the action of the offence or not . . . (for then, perhaps, some sort of objective circumstances of justification would exist, if not those of private defence, then those of ‘the lesser evil’ (justifying ‘necessity’)—at least in those legal systems where such a justification is recognised).
888 See Fletcher (1978), n 1 above, at 762, 768, 555ff; Fletcher, n 72 above (in its entirety); Fletcher, n 75 above, at 1363ff; Fletcher, n 74 above at 1376ff; vol 3 of the Encyclopedia of Crime and Justice, ed by Kadish, n 96 above, at 945.
the actor has good and sufficient reasons to breach the norm, and therefore the justification is available only to one who acts for such reasons. Fletcher also sug- gests viewing justification as a privilege of the actor, so that in the absence of awareness of the justifying circumstances, it would not be possible to establish that the actor used his privilege.889This interesting idea was already expressed at the beginning of the previous century by Beale, who wrote as follows:
Justification, then, is a legal power to act offensively. The power is the power to act, not the right to cause the result. Though the result would be desirable, it is not justified unless the defendant’s personal action was done in exercise of the power.890
This leads to criticism regarding the very classification of defences into justifications and excuses. The argument is that this classification leads to incor- rect conclusions, according to which there should be no requirement for the exist- ence of any sort of mental element in order to establish justification defences—as distinct from excuse defences.891The problem stems from the mistaken assump- tion that justification is an objective phenomenon, and accordingly behaviour that is justified from an objective point of view cannot become illegal because of the actor’s lack of awareness. The decisive answer to this argument was provided by Hall. According to him, the logic is not that previously existing justification was abolished because of ‘mens rea’ (in his words), but that there is no justification if there is ‘mens rea’892(ie, the justification was never established at all, since a cer- tain mental element is also required, apart from the objective conditions, as an essential condition for the establishment of justification—author’s clarification).
It is interesting to note that in another context Robinson himself claimed as follows:
While there was at one time some doubt, it is now undisputed that otherwise lawful con- duct can be made criminal by an actor’s culpable state of mind.893
Such is the situation, for example, with regard to the criminal attempt.894Both with regard to the creation of criminal responsibility and its negation, not only purely objective phenomena are addressed, and it is insufficient to question whether the external situation is prohibited by the criminal law. Moreover, even if the distinction between justifications and excuses is accepted, this does not imply that it is necessary to distinguish between them with regard to each and every
889See Fletcher (1978), n 1 above, at 762, 768, 555ff.
890JH Beale, ‘Justification for Injury’ (1928) 41Harvard Law Review 553.
891See Dressler, n 32 above, at 70, 80; Robinson (1975), n 37 above, at 280;Robinson (1984), n 37 above, vol 2 at 27; Gur-Arye, n 13 above, at 232.
892See Hall, n 13 above, at 229.
893See Robinson (1984), n 37 above, vol 2 at 44.
894Although in the attempt, the intent to harm also serves as a source of the danger and not only as an element in the evaluation of the guilt of the actor—see Arnold Enker, ‘Mens Reaand Criminal Attempts’ (1977) American Bar Foundation Research Journal845.
matter. Therefore, the fact that a certain mental element is required in order to establish excuses does not negate a possible conclusion that for the establishment of justifications a certain mental element is also required. There are great differ- ences between justification and excuse. However, they are not comprehensive, and are not meant to encompass all their features. Thus, in both cases—of justification and of excuse—the existence of all the elements of the offence is required, and in both cases criminal responsibility is not imposed on the actor.
There is an argument that the requirement of a mental element of any sort for the establishment of justification should be avoided due to utilitarian considera- tions. For the requirement of a mental element deters individuals from perform- ing actions whose performance is actually desired by society.
Robinson, for example, presents the following case: a large fire approaches a vil- lage and is liable to kill its residents. The way to stop it is to burn a private field that stands in its path. His argument is that if we demand a certain mental element in order to establish justification of the ‘lesser evil’, we shall deter the actor, who hates the field owner, from burning the field and thereby saving the population of the village.895
Robinson’s argument is unpersuasive. Firstly, it does not relate to the require- ment of awareness of the justifying circumstances, for if the actor is not aware of them (if, for example, he is completely unaware of the huge fire that is approach- ing) there is no reason to encourage him to set fire to his neighbour’s plot only because of the slight chance that he will thus halt a larger and more dangerous fire—if one should break out. Secondly, with regard to the stronger require- ment—of justifying purpose—to which Robinson indeed refers, the argument is also unconvincing. As will be seen later, the desirable format of a requirement of a justifying purpose does not entail a requirement for exclusivity of the purpose. A negative purpose or motive accompanying the justifying purpose will not negate the justification. Therefore, in the decisive majority of the cases that Robinson considers, including the example presented above, the justifying purpose will also exist. With regard to his determination, for example, that in light of a requirement of a mental element, it is advisable for the burglar to break into the residential home of people who hate him,896it should be noted that the said hatred does not negate the existence of a purpose of self-defence or protection.
It is important to compare the situation where the actor is not aware of the cir- cumstances that justify his action, and a situation of blameless mistake. The offence is not established when the actor performs the factual element of a certain offence without awareness of this element (or part of it), for no significance is attributed—either value-moral or legal—to chance. Likewise, for the issue that is the subject of our discussion, there is no reason to allow the actor to reap the
895 See Robinson (1975), n 37 above, at 287.
896 See ibidfn 75.
benefit of chance—ie, from the fact that after having performed his action it turns out that circumstances of private defence existed—although the actor was totally unaware of them at the time of his action.
With regard to this random chance, it is interesting to examine the two basic foundations on which criminal responsibility is founded—danger and guilt.
When the actor who is unaware of the circumstances that justify his action is tested, no difference of any sort can be discovered—not from the point of view of his (existing) guilt, nor from the point of view of the danger to be expected from him (which also exists)—in comparison to another offender who commits the same offence without the existence of objective circumstances that justify his action. The coincidental existence of the justifying circumstances is obviously unlikely to establish such a difference between them.
There is no room from a moral or legal point of view to justify the action of the accused who was unaware of the existence of the justifying circumstances for his action, and it would even open the law to ridicule, scorn and contempt. For exam- ple, C attacked B illegally. A saw them fighting. He was mistakenly convinced that it was B who had attacked C, and killed C because of his hostility towards him. Is it acceptable to morally justify the action of A only because, contrary to A’s belief, C was actually the one who had attacked B illegally, and thus (considering the objective circumstances alone, and completely ignoring the mental element) to view the action of A as private defence of another person?
An additional argument against the requirement of a mental element in order to establish justification was proposed by Silving, who is amongst those few scholars who reject this requirement. Her reason for this negation is that it is rea- sonable to assume that the actor was unconsciously aware that he was being attacked, and that weight should be given to unconscious factors which operate to the benefit of the accused.897This is odd reasoning: how can we know that such a probability exists? What exactly is this ‘unconscious awareness’? Silving left this reasoning vague and unexplained. Is such a dubious probability, of
‘unconscious’ awareness, sufficient to justify the action of a person who commits a criminal offence?
A few scholars have attempted to derive from the intuition of members of soci- ety what would be the appropriate legislative framework for the issue under dis- cussion. Robinson and Fletcher, for example, held competing views on this subject, each of them bringing different examples claiming that the intuition of most members of society were in accordance with his own particular school of thought.898Firstly, the power of an argument that is based on the intuition of most members of society is limited. Secondly, in the absence of data from thorough
897See Silving, n 45 above, at 394.
898See the consideration of the ‘findings’ of the two scholars in Robinson (1984), n 37 above, vol 2
empirical research of the issue,899the very different impressions of these two wor- thy scholars are sufficient to lead us to abandon the intuition argument. Instead, we must search for other criteria for the resolution of the dispute.
A further attempt by Robinson to defend his theory, dubbed by him ‘the deeds theory’, is made by posing the ‘reasons theory’ in opposition to it and launching an attack on the latter.900His attack on ‘the reasons theory’ is based on a mistaken assumption that presumes that all those who support this theory are necessarily satisfied with the fact that the actor reasonably believes that the justifying circum- stances exist in order to establish the justification. This assumption is not dictated by ‘the reasons theory’ but, rather, stems from the MPC’s statutory arrangement.
Therefore, Robinson’s criticism is fitting regarding this statutory framework.
Indeed, the actor’s mistake does not create justification, but solely an excuse.
However, Robinson makes it easy for himself by almost completely ignoring the more persuasive approach, according to which in order to establish the justification there is a requirement not only of a certain mental element, but also of certain objective demands (immediate danger, necessity, proportionality, etc).
Therefore, it is not ‘the deeds theory’ but the theory proposed in this book that provides the correct solutions for all the situations discussed by Robinson: (1) The action of ‘The Unknowingly Justified Actor’ is not justified, since the requisite mental element does not exist; (2) A mistake of the actor, according to which the justifying circumstances seem to exist, does not create a justification, but rather, creates an excuse; (3) The responsibility of A who resists B—’The Unknowingly Justified Actor’—should not necessarily be automatically-mechanically derived
899 In PH Robinson, ‘Theft of the Bomb: On the Substance of the Justification Defenses’ (1999) 22 Tel Aviv University Law Review65 (Hebrew) (at 76–79), Robinson reported on an empirical research and attempted to make deductions from it with regard to the issue under discussion here. However, it is difficult to learn significantly from this research for the current matter. Firstly, the details of the research and the proof of its reliability are not presented in this article. Secondly, those questioned were not asked about the various theories, but the investigators composed scenarios, representing the vari- ous theories, which were presented before those questioned. The very choice and composition of the examples—which are not presented to us—may influence the opinions of those questioned (just as the example of the bomb thief, on which Robinson bases his article, is not a ‘pure’ (unbiased) example—
see n 944 below). Thirdly, those questioned did not think that it was necessary to justify (or even to excuse) a justified arson carried out without awareness of the justification, but they expressed an opin- ion that a significant punishment should be imposed—the same severity of punishment that in their opinion should be imposed for an unjustified attempted arson (although less than for an intentional unjustified arson)—see the article, ibidat 77.
Finally, if nevertheless the author may be permitted to transgress by mentioning a modest (in terms of the number of persons interviewed) survey that he conducted, the findings were as follows: almost all those questioned supported the minimum requirement of awareness of the justifying circum- stances, and were divided between those who also supported an additional requirement—of a purpose of self-defence or protection—and those who sufficed with the requirement of awareness (the distrib- ution was approximately equal).
900 Paul H Robinson, ‘Competing Theories of Justification: Deeds v. Reasons’ in AP Simester and ATH Smith Harm and Culpability(Oxford, 1996) 45. See also Robinson, n 602 above, at 451–76. For another view see Fletcher, n 46 above, at 103.