To which element should the immediacy requirement relate? Should immediacy of the danger be required, (ie, the danger that threatens the legitimate interest should be immediate), or immediacy of the attack (an immediate attack)? Or per- haps the appropriate requirement is one of immediate necessity (viz, that the defensive action is immediately required)? Each of these three main options and also additional options647are supported by legislation, case law, literature and draft laws.
The penal codes that were examined in this study usually addressed immediacy of the attack.648In contrast to this, Williams and Robinson suggested that the immediacy of necessity for the use of force649should suffice. A similar formula was set forth recently in the Israeli Penal Code—‘an action that was immediately required in order to repel’.650The proposals of Williams and Robinson embody resistance to the requirement of immediacy; resistance that will presently be discussed. As to the first two options, it is my opinion that the difference between the immediacy of the attack and the immediacy of the danger is not great. Where, nevertheless, is there liable to be a difference between these two potential require- ments? When an imminent attack is anticipated, although no imminent danger can be expected from it. In such a case, the justification for private defence can only be based on that same danger that is already expressed in the imminent attack, and not on the more remote danger. Consequently, this justification will be relatively weak and will enable only a restricted private defence, if any. Assume, for example, that A installed a device that was meant to cause damage to B’s car one year after it was activated. The operation of the mechanism involved turning on the switch, and it was not difficult to neutralise the device at any point during the year (in fact, five minutes and a little skill are all that were needed to perform this).
In such a situation, I am of the opinion that the movement of A’s hand towards the switch (the attack) should not be viewed as a sufficiently immediate factor, but it should be taken into account that the danger is so remote that it cannot be compatible with the requirement of immediacy. Accordingly, my opinion is that
647An additional interesting option is the requirement that was presented in s 3.04 of the MPC (Proposed Official Draft (Philadelphia, 1962)) according to which the defensive force must be immi- nently necessary. In addition the force that it is anticipated the aggressor will use must be expected at that same event (‘on the present occasion’). In their written explanation, the drafters noted that this phrasing would enable the necessary flexibility (see the explanatory wording of the Draft (Tentative Draft No 8 (Philadelphia, 1958)) at 17. However, even such a formulation, in my opinion, provides too much flexibility, to the extent that it very significantly weakens the requirement for immediacy, although of course it is preferable to relying on the immediacy of necessity. See also Kadish and Schulhofer, n 640 above, at 869; La Fave and Scott, n 43 above, at 656; Heberling, n 62 above, at 931–32.
648In the various Israeli draft laws it was the immediacy of the injury that was considered.
649See Williams (1983), n 1 above, at 503–4; Robinson (1984), n 37 above, vol 2 at 4, 78.
650The present formulation of Art 34j of the Israeli Penal Code 1977.
in the rare cases where a real difference exists between the immediacy of the attack and the immediacy of the danger, it is preferable to consider the immediacy of the danger. However, as a general rule, this distinction will be only an artificial one.
The requirement for immediacy has two facets. Justified private defence must be performed at its earliest when the danger is already close, and not earlier (‘imminent danger’), and at its latest when the danger or part of it still exists, and no later (‘present danger’). These two features of the requirement for imme- diacy can be posed against two negative possibilities that should be avoided. The first—precipatory violence—for then the ‘defensive’ action is too early (and in effect—from a substantive point of view—is not defensive at all), and the other—
disguised revenge651—when the ‘defensive’ action is too late (and again—from a substantive point of view—is not defensive at all). In any case, from a substantive point of view it is possible to disregard the distinction,652given the fact that in the second case as well—of danger that still exists and has not yet passed (‘present danger’) there exists, in effect, an immediate danger that is about to occur and is close (‘imminent danger’) that finds expression in the injuries that have not yet been inflicted. For example, when A, who intended to destroy a certain property of B, demolishes three-quarters of that same property, there is still an impending danger for the remaining quarter, and this danger is immediate for all intents and purposes. In contrast, once A has pushed B, who attacked him, and B is lying wounded and powerless on the ground, there is no longer an immediate danger that justifies the exercise of additional force against the aggressor (B).653
A more significant question relates to the first facet—the closeness of the danger, and not to the second—the ongoing existence of the danger. As noted, the immediate danger exists throughout the attack—from its inception until its ter- mination. The solution to the question of the second facet of the immediacy requirement (the latest point in time at which private defence is still justified) is usually achieved by identifying the time that the attack ended. In contrast, for the solution of the question posed by the first facet of the immediacy requirement (the earliest point in time at which private defence is already justified), it is not sufficient to establish the time at which the attack began, since there is no dispute that for a certain period of time before its commencement an immediate attack
651 Dykan, n 290 above, at 775–76. Dykan noted the ability of immediacy to serve as a good test for distinguishing between defensiveness and revenge, and as a reaction to provocation, a reaction that can perhaps be understood and for which the punishment should be eased, but which certainly cannot be justified and exempted from responsibility.
652 The distinction is explicitly established in the Finnish and in the Swedish Penal Codes, at s 6 of the Finnish Penal Code (1889; 1986) and s 24(1) of the Swedish Penal Code (1962; 1972).
653 Such was the case in the ruling in CA 229/62 Gerzitski v The Attorney-GeneralPD 17 1077, where the accused strangled her husband after he was lying wounded on the ground. Another typical example of danger that has already passed is when the aggressor retreats (a real retreat, as opposed to a temporary withdrawal in order to immediately improve his position).
already exists that justifies private defence.654 This last clarification brings us directly to the significant question of justification of ‘the preemptive strike’.
‘If someone comes to kill you—kill him first.’ This adage of Jewish law,655which is very frequently quoted, contains more than a hint of the possibility of a pre- emptive strike. In modern criminal law, there is also consensus regarding the con- cept that the attacked person does not have to wait until the aggressor launches his attack and until the attacked person bears the brunt of his blow, but a preventive action by the attacked person is permitted under certain circumstances in order to repel the aggressor. This is also the existing rule in the main legal systems that were examined within this study.656In fact, the accepted recognition of the existence of a facet of the requirement for the immediacy of the danger that relates to the ear- liest moment when private defence is justified—even before the attack begins—
constitutes a recognition that a pre-emptive strike is indeed permitted, under certain circumstances. If we attempt to derive further guidance beyond the afore- mentioned with regard to the immediacy requirement from the rationale of pri- vate defence, I believe that insofar as the actor takes action earlier, not only will there be increased doubt as to whether the requirement of necessity in general and of immediacy in particular exists, but the justification for his action will be directly impinged, since the factors of autonomy of the person that might potentially be attacked, guilt of the potential aggressor and the social-legal order will play a weaker role (in comparison to an act at a later stage) in the justification of defen- sive force. Moreover, if the actor chooses a point in time for his action that is too soon, his action is liable to actually injure the social-legal order, and definitely not protect it. With progression along the axis of time, it is not only that there is a point in time from which private defence is henceforward justified and before which it is forbidden, but that the amount of the defensive force that is justified also grows greater from the point in time from which force of some sort is justified.
When a potential aggressor slowly approaches the potential victim with a weapon that has a limited range of operation (such as a knife), but is still far enough away
654It is possible to describe the period of time within which private defence is usually justified in a schematic fashion, as follows:
655The Talmud, ‘Massechet Brachot’ 65, 72 (see also n 27 above).
656See, eg, with regard to English law, and accompanied by references to the rulings, Card, Cross and Jones, n 180 above, at 626; Ashworth, n 183 above, at 293–94; Smith, n 91 above, at 114–17 (a dis- cussion under the title ‘The Pre-emptive Strike’). See also, with regard to American law, and accompa- nied by references to the rulings, American Jurisprudence, n 500 above, vol 6 at 70 (and the Amendment of 1998, at 48); JH Beale, ‘Homicide in Self-Defense’ (1903) 3 Columbia Law Review526 at 529–30.
Beginning of the attack Existence of the Immediacy of danger
End of the attack Time axis
from him (for example, a hundred metres away), threatening the aggressor with a firearm will be justified, even if shooting him will not be justified until he comes closer.657
Finally, it is interesting to note an idea that was presented in the philosophical literature by Nozick, although in another context, that of the self-defence of one state against another state, which has a certain relevance for our discussion.
Nozick suggests different tests for the determination of the stage when the act of self-defence is already permitted.658These tests concentrate on the action of the aggressor state and are very reminiscent of the recognised tests in criminal law for the identification of the point of commencement of the behaviour that is necessary for the establishment of a punishable attempt to commit a criminal offence.
Although it is undesirable to determine such tests for the current discussion, they nevertheless may provide some guidance to the court—not for the detection of the point in time at present under discussion (from which henceforward private defence is justified), but in identifying the point of time at which it is very reason- able to assume that private defence is already justified (although a certain period of time preceding this is likely to also comply with the test of immediacy).
However, given the great theoretical difficulty of identifying the commencement of an attempt (a difficulty that has elicited the comparison to the attempt to woo a beautiful woman who eludes her many suitors), it is very doubtful whether practical guidance can be drawn for purposes of our discussion from the tests for identifying when an attempt begins.659
657 The issue of threats (alone) in comparison to the exercise of (physical and actual) force will be addressed below—see section 3.8.5. For our discussion, it is sufficient to assume, perhaps self- evidently, that a threat to use a certain amount of force constitutes a slight defensive force in compar- ison to the actual use of this particular force.
An interesting issue that is connected to the issue of the pre-emptive strike is the issue of setting a human trap.Is it justified to set a trap that will injure the potential aggressor if and when he attempts to attack? The similarity to the pre-emptive strike is expressed in the fact that the actor (the attacked person in potential) acts a considerable time beforehand, in advance of the attack, yet the force itself is, in effect, ‘conditional force’, that is only meant to be exercised in the future and on the occurrence of a certain condition (the attack by the aggressor). Given the frequent occurrence and importance of this issue, we shall discuss it separately below.
658 See Nozick, n 270 above, at 126ff.
659 With regard to the possibility of identifying the beginning of the attack with the beginning of the criminal attempt see Bernsmann, n 265 above, at 174, and the references that appear there.
An additional issue, which is connected especially to the issue of the pre-emptive strike, arises in many cases where battered women kill (or only attack) their abusive partners, without any proximity (in time) of particular attacks performed by the latter. The issue of the defence of battered women has been awarded considerable attention in American law in the last few decades—both in case law and in the literature. The central problem posed by these cases is the immediacy. Eg, there were cases in which battered women killed their partners when the latter were asleep—a situation in which it is difficult, if not impossible, to reconcile the defensive force with the requirement for immediacy (to view the issue of the battered woman as a particular case of the issue of immediacy see, eg, Smith, n 91 above, at 116–17; La Fave and Scott, n 43 above, at 656–57; Kadish and Schulhofer, n 640 above, at 869–74; the Encyclopedia of Crime and Justice, ed Kadish, n 96 above, vol 3, at 947). Given the extensive case law and