Two clarifications are necessary before beginning this discussion. The first: this discussion deals principally with the legitimate interests of the attacked person who may be injured by the attack of the aggressor, and does not include consider- ation of the abstract interests that are also taken into account in striking a balance of interests. In other words, it relates to the first level of the balance that was noted above.531Another important clarification: the question under consideration is for which interests is defence (of any sort) justifiable—and not—what is the extent of private defence that may be justified with regard to each of them. I shall discuss this last question below, especially within the framework of the discussion con- cerning the principle of proportionality.532Before going on to the discussion itself, I should also clarify that the significant issue of the defence of another person, which also has a close affinity with the subject under discussion, will be discussed separately and extensively further on.533
What does the rationale that underlies the justification of private defence teach us about the group of values whose defence is justified? As explained, this rationale
530 An additional example: A is a lifeguard on a bathing beach by the sea. B—who does not know how to swim—comes towards him on a boat holding a dagger in his hand and it is clear—to A as well—
that he intends to kill A. The boat capsizes, B is floundering in the water (but insists on continuing to brandish the dagger . . .) and A—in order to defend himself—does not fulfil his duty to rescue B.
A final example—from the field of defence of another person: A is a doctor who is needed by B—a patient with a chronic disease—to inject him with medicine that he must receive immediately. The sit- uation is such that it is clear that as soon as B receives the medicine and returns to his former strength—
he will try to fatally injure C who is also present in the same room. A stipulates the condition that he will only give the injection to B if he hands him his revolver (that he intends to use to kill C), B refuses, and A does not inject the medicine into B and leaves him without the necessary medical treatment.
531 See Ch 1.6 above.
532 See section 3.8 below. Thus, eg, when s 3.04(2)(b) of the MPC restricts the group of values that it is permitted to defend with lethal force, this constitutes a (specific) expression of the principle of proportionality and not a comprehensive list of the values for which private defence (of any sort) is permitted.
533 See Ch 4.2 below.
is composed of a number of important factors, apart from the legitimate interests of the sides to the conflict.534One factor is the autonomy of the person attacked.
This factor bears great weight when there is an injury to any sort of legitimate interest of the attacked person. Although when an interest of little value is involved the strength of this factor is not great, this involves a question of proportionality, whose solution may dictate a restriction and limitation of the defensive force, but not its total negation. In contrast, the factor of the individual’s autonomy—by its very definition—does not support defence of the public interest, of the state and of society, unless it is said that the direct defence of such interests also indirectly protects the individual’s autonomy. Another important factor in the justification of private defence is the social-legal order. Here too, insofar as the interest at stake is smaller, thus—correspondingly—the consideration of the protection of the social-legal order will be weaker. It is weakened, but it still exists, and therefore the defence of a legitimate interest of minor value should not be summarily negated just because of its limited value. The principle of proportionality that operates to negate a strong defensive force for the defence of a small value interest suffices for this matter. If the actor (who acts within the setting of private defence) makes do with limited defensive force, there is no reason in principle to reject his action out of hand. If, in contrast, he chooses to use excessive defensive force, then the social- legal order will in fact be injured as a result of the performance of a serious offence in the face of a risk of minimal injury, and therefore the justification of private defence will be denied.
Even though it is possible in principle as we have seen, to allow private defence of any legitimate interest without summarily negating certain interests, there are nevertheless legislators who provide an exclusive list of values for which private defence is justified. Four of them do not cause any particular difficulty and are acknowledged by all: a person’s life, liberty535, body and property536.
This leads us to the more problematic values. The first—still one of the personal interests of the person attacked himself—is the person’s honour. This interest was widely discussed, especially in Israeli law, and this is because in the past (before the state of Israel was established) the law drafted by the British Mandate legislator explicitly specified it in an article that was not changed until a new law was enacted in 1992.537It is possible to explain the exclusive list of values that was promulgated
534One of these factors—the aggressor’s guilt—does not have any real influence in principle on the subject under discussion.
535It is interesting that the American MPC—for some unknown reason—placed the defence of freedom of movement (pushing away a person who blocks the way) in a section that deals with defence of property—see s 3.06(6) and the examples given in the explanatory wording of the MPC (Proposed Official Draft (Philadelphia, 1962)) at 48.
536These are also the four values that appeared in all the proposals of the Israeli law and that were eventually enshrined in the Israeli Penal Code itself.
537Art 18 of the Criminal Law Ordinance 1936, which was later almost copied into s 22 of the Penal Code 1977, which remained in force until 1992.
by the British Mandate legislator against the backdrop of the conservative attitude of English law with regard to the ‘necessity’ defence and the fear that its existence would bring about anarchy.538However, it is this same exact background, which renders it difficult to explain how it happened that honour also found a place in the limited list of values that were established by the law. Indeed, some authors had reservations regarding the inclusion of this word in the law. It was suggested that it should be interpreted as relating (only) to a person’s sexual freedom539. It was claimed that it is doubtful whether such a case could exist in which defence of hon- our would fulfill the other conditions of private defence where there was no injury to a person’s body540. I do not agree with this automatic negation. Thus, for exam- ple, it is possible that a very slight push would comply with the requirements of private defence—including proportionality—when it is intended for the preven- tion of a severe infringement of a person’s honour. In the present form of the Israeli Penal Code that was enacted in 1992,541honour is again absent from the list of the four protected values that are enumerated in the definition of self-defence (‘his life, liberty, body or property’).
A more significant issue (in comparison to that which concentrates on honour) is that of the interests that are not those of the individual but are interests of the public, the state or the society in general, and interests of security in particular. In principle, it is possible to base the justification of private defence of such interests on the factor of the social-legal order,542although, as mentioned, the factor of the autonomy of the individual does not support defence in such cases. An additional option is to see the interest of the society as replacing the factor of the individual’s autonomy, just as the society (or the state) replaces the individual for our discus- sion in the function of the person attacked who bears the potential for suffering injury. It is also possible, perhaps, to see the direct defence of the state as an indi- rect defence of the individual’s autonomy, since in modern society the state pro- vides most of the protection for the individual. In several Penal Codes (especially
538 An interesting construction was built by Sheleff, who wished to base the inclusion of failure to comply with the law for reasons of conscience within the boundaries of s 22 of the Penal Code, based on the word ‘honor’ that was specified in that section (L Sheleff, ‘Disobedience to the Law for Conscience Reasons’ in R Gavison (ed)Civil Rights In Israel: A collection of Articles in Honor of Justice Haim H. Cohn(1982) 117 (Hebrew), at 139ff). Although this option deviates from the area of private defence into the area of ‘necessity’, it is presented here in order to demonstrate the danger—that was mentioned above—of anarchy, as a result of deployment of the defence for all the existing values (in passing it should also be noted that the above-mentioned construction deviates from the characteris- tics of the compulsion situation, inter alia, by not complying with the requirement for immediacy).
539 D Bein, ‘The Duty to Retreat in “Self Defence” ’ (1967) 23 Hapraklit221 (Hebrew) at 7 (espe- cially fn 31), in which Bein bases his opinion on the court’s rulings.
540 Feller, n 14 above, vol 2 at 424.
541 The Penal Code (Amendment no 39) 1994.
542 See the words of Eser, n 26 above, at 632. As he notes, although the accepted rationale in German law permits defence of the ‘public interest’, in practice this defence is not accepted.
in the legal systems of the communist countries) such interests—of the state and the society—were included in the definition of private defence. It is interesting that in these codes the interests of the state and the public were usually established even before the interests of the individual.543Silving presents arguments in sup- port of private defence of the interests of the state, as follows: it is accepted that the defence of property is justified—even for the property of another.544If this is so, there is no reason not to justify the defence of the property of a corporation, and from there on, it is only a short path to the justification of defence of the essential interests of the state, including infringement of the constitution, territory or state security.545
With regard to the necessity defence, Feller noted the essentiality of defence of state interests. According to his school of thought, there is no reason to negate the
‘necessity’ defence in the case of an action that was performed to protect interests the infringement of which is not specifically expressed in terms of money or life.
The intention is to relate to the superior interests of the state or of the public, such as security, sovereignty etc.546
This approach was expressed in the definition of ‘necessity’ and ‘private defence’ that appeared in the Israeli draft of the Preliminary Part and the General Part of the new Penal Code, and also related to the ‘security interest of the state’.
In the explanatory wording for these sections it states:
There is no justification for the imposition of criminal responsibility on one who acts to rescue the state’s security interest. Moreover, there is room to encourage such activity, and an explicit statutory provision may contribute to this; of course, within the limits of reasonability.547
A completely different position was adopted by Enker. While considering section 18 of the Penal Code Ordinance 1936, in which the exclusive list of defended values was established, he wrote that the formulation of section 18 had an advantage over the general and principled formulation of Stephen’s Digest in that it limits the defence to cases in which the accused acted to protect a specific person.
543See s 13 of the Penal Code of the (former) USSR (1958) (‘the interest of the Soviet state, public interests, the person or the rights of the individual’); s 17 of the Chinese Penal Code (1979); s 22 of the Polish Penal Code (1969); s 44 of the Rumanian Penal Code (1968; 1973).
544For a detailed discussion of defence of another person’s property see Ch 4.4 below.
545See Silving, n 1 above, at 596. On the subject of protection of state property, see also Heberling, n 62 above, at 942.
546SZ Feller, ‘The “Necessity” (Stricto Sensu) as a Situation Negating the Criminality of the Action’ (1972–73) 4Mishpatim5 (Hebrew) at 12 and also the ruling, 143/68Davidi v The State of IsraelPM 71 104 (Beer Sheva District Court) which concerned the causation of damage to a tractor that was privately owned and operated by the army during the days of vigilance before the Six Day War (1967).
547Ss 43 and 45 of the Israeli draft law (SZ Feller and M Kremnitzer, Draft of the Preliminary Part and General part of the New Penal Code, (1984) 14 Mishpatim127) and the explanation, at 209–10.
This formulation excludes from the defence cases in which the accused acted for the sake of a public interest. This limitation prevents attempts to use section 18 for a purpose that is principally political. Enker illustrates this danger and notes that there are solutions to such cases, but that such a claim turns the trial into political proceedings and the court is not the proper forum for such a discussion.548
Permission for private defence of a state interest may lead to undesirable polit- ical abuse of the defences of compulsion.549It appears that this estimation was eventually accepted as correct even by the drafters of the Preliminary Part and the General Part of the new Israeli Penal Code, since in the last version of their pro- posal, reference to the interest of state security no longer appeared.550
In contrast to the approach whereby it is desirable to define an exclusive list of values that may be defended by private defence in the law, an approach also exists according to which private defence should be permitted for any legitimate inter- est—at least those of the attacked person. This approach is widespread in the majority of the Penal Codes that were examined within the framework of this study.551Fletcher noted that German and Soviet theoreticians extended private defence so that it would apply to all the rights and interests recognised by the law.
While in Anglo-American law the requirement of proportionality led to internal distinctions between private defence, defence of property and defence of the dwelling, there is evidence in German law and in the law of the (former) Soviet Union of an opinion that all interests that are legally protected merit the same level of defence.552The proper place for discussion of this approach is in the sections below that deal with the principle of proportionality and the internal distinctions
548 Enker, n 89 above, at 111. It is interesting that Stephen was, apparently, not afraid of political abuse of the compulsion defences, since he presents an example of what in his opinion is a legitimate use of the ‘necessity’ defence; an example that, in my view, constitutes dangerous political abuse of the compulsion defences. In Stephen’s words:
A, the Governor of Madras, acts toward his council in an arbitrary and illegal manner. The council depose and put him under arrest, and assume the powers of government themselves.
This is not an offence if the acts done by the council were the only means by which irrepara- ble mischief to the establishment of Madras could be avoided.
See Illustration No 1 in the Digest, Stephen, n 228 above, at 11.
549 This danger differs, of course, from society to society.
550 S 46 of the draft law (Draft Penal Code (Preliminary Part and General Part) 1992). The final (and determining) word on this matter was pronounced by the Knesset (the Parliament of Israel), which accepted the Penal Code (Amendment no 37) 1992 and the Penal Code (Amendment no 39) 1994, both of which do not include consideration of the state interest, rejecting the suggestion of the inclu- sion of such an option in the law.
551 See: s 17 of the Chinese Penal Code (1979); s 32 of the Penal Code of the (former) West Germany (1871; 1975); s 52 of the Italian Penal Code (1930, 1977); s 44 of the Rumanian Penal Code (1968;
1973); s 22 of the Polish Penal Code (1969); s 22 of the Greek Penal Code (1950); s 5 of the Greenland Penal Code (1954); s 34(6) of the Argentinian Penal Code (1921); s 48 of the Norwegian Penal Code (1902); s 21 of the Korean Penal Code (1953); s 8 of the Spanish Penal Code (1944; 1963); ss 271–73 of the Queensland (Australia) Penal Code; s 13 of the Penal Code of the (former) USSR (1958).
552 See Fletcher (1978), n 1 above, at 864, 871. See also Gorr, n 191 above, at 256.
between the various areas of private defence,553but it is presented here, since it gives rise to the principle, a fortiori, that defence of any legitimate interest should be permitted. Robinson also expressed his support for a broad private defence that would extend to all legitimate interests,554although he has not become entrapped in the mistake that is made, in my opinion, by the consideration of all suitable interests as worthy of the same measure of defence (the principal expression of this last distinction is, of course, the principle of proportionality).
In my view, the limitation of the group of values for which private defence is justified is undesirable. Any exclusive list of values may be revealed as being too restrictive when faced with specific cases. If we take, for example, the four values that appeared in the various draft proposals of the Israeli law and that were mean- while established in the Penal Code itself, problematic cases may arise. This list includes life, liberty, body and property. We may consider a case where holy uten- sils are desecrated in a house of prayer, but no damage is done to property. Is it not desirable, in such a case, to allow a low level of defensive force (such as a slight push of the aggressor in the direction of the exit from the house of prayer)? And if so, is it possible to perform interpretative acrobatics that will squeeze the feelings and beliefs of those devotees who are praying there into the Procrustean bed of life, liberty, body and property? And if it is possible—is it desirable in the light of the principle of legality?
Between these two approaches (of limiting the group of defended values or not limiting it), there is an intermediate approach that appears to me to be desirable.
Such a compromise can be found in section 34 of the German Code that refers to
‘danger to life, limb, freedom, honour, property or another legal interest’. At the end of the detailed list of interests for which the defence applies, a general definition is given of ‘another legal interest’. This wording, which provides a specific rule and a general rule, and restriction of the general rule itself to an addi- tional legalinterest, provides the court with the tools to distinguish between the various interests as desired.555
The advantage of such an approach is that while on the one hand it does not negate the private defence of any legitimate interest on a threshold basis (a nega- tion that, as was set forth above, is undesirable), on the other hand, it emphasises the core values that may guide the court with regard to the special attention that these values should be given—in comparison to other interests.556It seems that
553See section 3.8 below and Ch 4 below.
554See Robinson (1984), n 37 above, vol 2 at 73.
555Enker, n 89 above, at 112.
556It is interesting that even though the wording of the German law, in my view, supports the demand for proportionality—in emphasising certain central values—Fletcher claims that the German law does not require proportion. Eser, as mentioned, has a different view. See nn 297 and 319 above and section 3.8 below.