To conclude the discussion of the requirement of proportionality, I will note the very interesting proposal set forth in the philosophical literature by Nozick. In his well-known book Anarchy, State and Utopia,776he draws a connection between self-defence and punishment within a discussion of various theories of punish- ment. According to his school of thought, the theory of retribution for punish- ment means that the punishment that the actor deserves is r H(rmultiplied by H), where Hsymbolises the extent of the harm (that was caused or that the actor intended to cause) and r symbolises the extent of the actor’s responsibility for the harm (H). It is common to assume that the rule of proportionality sets an upper limit for permissible harm to the aggressor within the framework of private defence. This limit is a certain function of H(that Nozick calls f (H); [fof H]).
In his opinion, f (H) >H, or at least f (H) H. This determination is provided
775 Finally, two exceptional opinions should be mentioned, which in light of the above discussion should not be accepted. The first—that of Alexander, according to which the right to threaten with deadly force accompanied by a threat in practice, creates a right to carry out the threat in practice (see Alexander, n 278 above, at 1181 and LA Alexander, ‘Self-Defense, Punishment and Proportionality’
(1991) 10 Law and Philosophy323). He even goes further and establishes that there is no requirement of proportionality if there is a threat to use a certain force before its commission, and illustrates his theory by expressing his opinion that it is morally justified to kill a flower thief if this killing was pre- ceded by a threat to kill—ibidat 324ff. The other opinion is that of Heberling, according to which a threat of force does not constitute ‘force’ at all, unless there is intention and ability to realise the threat (see Gorr, n 191 above, at 933). In my view, the first opinion grants too great a significance to a threat, to the extent of a complete waiver of the requirement of proportionality on the sole condition that a threat to use force preceded it; and the second opinion errs to the opposite extreme—failing to grant weight of any sort to the threat itself.
776 Nozick, n 270 above, at 62–63.
without a reasoned basis, but it can be assumed that it stems from the flexibility of the requirement of proportionality that I noted earlier (ie, harm to the aggressor that is greater than the expected harm to the defender can, indeed, also comply with the flexible requirement of proportionality). This leads to the innovation that Nozick suggests: to allow the defender—as part of his defensive action—to make a ‘down payment’ on account of the punishment that is due to the aggressor (that is r H). He comes to the far-reaching conclusion that the upper limit of the harm that the defender is permitted to cause to the aggressor within the framework of his self-defence is f (H) r H. Correspondingly, he argues that when the defender causes additional harm to the aggressor to the extent of A, in addition to the harm f (H)which is permitted according to the proportionality requirement, then the punishment that is later imposed on the aggressor by the court should be mitigated to that same extent, so that it is set at r H A. Finally, Nozick adds that with the aid of the above-mentioned model that he constructed, it is possible to settle the apparent difficulty, which Fletcher noted, between the use of deadly force against a psychotic aggressor (whose responsibility is r = 0) and the requirement of proportionality. In order to complete the picture, we should add Nozick’s clarification in his later book Philosophical Explanations,777according to which the size r (the extent of the actor’s responsibility for the harm) varies between 0 (ie, lack of responsibility for the harm) to 1 (ie, full responsibility for the harm). Thus, the retribution (r H) of the actor who has full responsibility (r = 1) is H(the harm that was caused or that the actor intended to cause). So far, this reflects Nozick’s arguments.
My remarks with regard to Nozick’s very interesting proposal include one clarification, two reservations and one point of agreement.778 Firstly—the clarification. It seems, at first sight, that Nozick views the punishment of the aggressor as part of the rationale that underlies self-defence. It seems that this was also the understanding of Fletcher, who used Nozick’s words in an article in which he noted legal systems where private defence constitutes, inter alia, punishment of the aggressor, while the state just completes—by means of a judicial proceeding—
the portion of the punishment that was not carried out by the person attacked himself.779However, a strict examination of Nozick’s writings reveals that he does not accept punishment of the aggressor as a rationale (or a component of it) for self-defence. The main basis for this conclusion is Nozick’s unequivocal require- ment that all defensive force—including the addition to f (H) that is used as a
‘down payment’ on account of the punishment for the aggressor—should comply
777See Nozick, n 402 above, at 363ff.
778An additional clarification that is perhaps needed, is that despite my consideration—following Nozick—of ‘harm’, the significant factor for the issue of the proportionality requirement is, as men- tioned, the expected harm or that which it is possible to foresee at the time of the act and not the actual harm, which is influenced by random chance (see the text above accompanying n 717).
779See Fletcher, n 117 above, entitled ‘Punishment and Self-Defense’, especially at 207.
with the requirement of necessity. For if the rationale is punishment of the aggres- sor, the infliction of a ‘down payment’ should be allowed even in the absence of necessity. Additionally, Nozick proposes that only the addition to the harm, A, that exceeds f (H)should be subtracted from the aggressor’s punishment. While if he had thought that punishment serves as a rationale for self-defence, he would have suggested deducting all the harm caused to the aggressor: f (H) A.
This brings me to two reservations regarding Nozick’s argument; the first concerns his permission for the defender to inflict overly severe harm: r H f (H).
It may indeed be possible to accept an approach, according to which—assuming that r His the expected penalty to be imposed on the aggressor in court—if it is essential for the defender to exert force the harm from which to be expected is greater than f (H)(the harm that is permitted by the requirement of proportional- ity) but still less than r H(the retribution of the aggressor), then it appears that simple utilitarian considerations lead to the conclusion that it is preferable to allow the attacked person to defend himself. For in this way he can rescue his interest, and the aggressor will be harmed only to the extent of the harm that would be inflicted on him anyway at the end of the legal proceedings. However, such a situation does not exist—literally by definition. I will clarify my last words: simple logical prin- ciples lead to the conclusion that since r is defined such that 1 r 0, and since f (H)is defined such that f (H) H, then inevitably and always f (H) r H.
Consequently, it is impossible to allow the attacked person to inflict on the aggres- sor a harm greater than the proportional harm f (H)(defined as greater than or at the most equal to the harm H) which is yet still less than the retribution for the aggressor (r H)(defined as less than or at the most equal to the harm H).
But Nozick’s far-reaching approach, according to which the attacked person should be permitted to cause harm to the aggressor whose measure is r H f (H), should not, in my opinion, be accepted. The real implication of such an approach would be a practical waiver of the principle of proportionality in all cases where the aggressor is responsible for his actions. As mentioned, Nozick claims that his approach enables the settlement of the difficulty—which Fletcher pointed out—
between the permission for deadly defensive force against a psychotic aggressor and the requirement of proportionality. From a purely theoretical point of view, perhaps Nozick does resolve this difficulty. But the price is too high. According to his school of thought, a solution is provided for the case of the psychotic aggressor (a case that, as mentioned, in my opinion has no place at all within the purview of private defence780) and the requirement of proportionality is met in regard to it. However, in all the other cases severe deviations from the principle of proportionality will occur, which will increase in direct proportion to the responsibility of the aggressor.
This is so, until the maximum deviation occurs in the case of the aggressor who has full responsibility—in which case it is permissible to cause harm to the aggressor
780 See Ch 1.5.3 above.
that exceeds the upper limit set by the requirement of proportionality (f (H)) to the extent of the full harm to be expected to the person attacked (H) (or, to put it another way, to more than double in comparison to the retribution of the aggressor(!)).781 The harm to the aggressor that can be justified within self- defence—f (H)—already includes consideration of the aggressor’s guilt (~ =respon-
sibility) and the danger (~ =harm) that is expected from his illegal attack. Therefore, increasing f (H)by r H(the aggressor’s responsibility multiplied by the expected harm from his assult) is a mistaken doubling of the same two factors.
The second reservation: If it is accepted that the court—when sentencing the aggressor—should also take into account the harm that the aggressor suffered as a result of the private defence, why should this consideration be limited only to the harm that exceeds f (H)?What, if any, is the relevance of the additional A that exceeds f (H)? If the principle is accepted that there is room here for mitigation, I think it would be artificial and without a principled basis to limit it just to the addi- tion that exceeds f (H). It is natural, actually, that the sentence should consider the full harm to the aggressor.
Here is also my point of agreement with Nozick. It is only natural that the court will, when deciding the punishment of the aggressor, take the harm suffered by the aggressor as a result of the private defence into account. Although, as men- tioned,782the punishment does not constitute part of the rationale that underlies private defence, once private defence has already taken place and the aggressor is injured, it is highly reasonable that the court will take the injury into account, not for the conviction itself, but definitely with regard to the punishment. It is difficult to imagine that the court would impose a strict sentence on an accused person who committed a slight attack (a slap to the cheek, for example), and who lost his eye as a result of the defensive action of the attacked person. Thus, for example, the Israeli Supreme Court in the Al-Nabariruling saw as a cause for mitigation of the punishment: ‘the fact, that he was already severely punished and suffered greatly, because of his murderous action, when at the time that he performed it, he was dealt a blow that caused him to lose consciousness and to break his skull, which required a serious operation in order to save his life’.783
Similarly, the Israeli Supreme Court, in the case of Gera, held that the fact that
‘the two appellants were sufficiently severely injured’,784was a reason for mitiga- tion of the punishment.
Indeed, significant damage that is suffered by the aggressor, as a direct result of the private defence, should be seen as a mitigating circumstance for his sentence.
781This is because when the aggressor has full responsibility r= 1 and then r H = H, while f(H) H so we receive as f (H) r H the size 2HB(in which the symbol Bexpresses the differential between f (H)and H).
782See Ch 1.5.8.2 above.
783CA 50/64 Al-Nabari v The Attorney-General PD 18(4)73 at 84.
784CA 216/62 Gera et al v The Attorney-General PD 16, 2673 at 2676.
Obviously, it is highly desirable that the court should provide reasons for the mit- igation of the punishment—in order to prevent a situation in which the relatively light sentence would be considered as viewing the attack as not severe or as unjustified discrimination in favour of the accused (in comparison to other crim- inals who committed similar attacks).785