This theory is identified in the legal and philosophical literature as Kadish’s theory, since he is its main proponent and he is the one who established a suitable theor- etical foundation for the discussion of this subject. Accordingly, it is natural to commence the discussion of this theory with the description given by Kadish him- self.379Having negated the theory based on the culpability of the aggressor as the rationale for private defence, he suggests another approach that derives the free- dom of the person attacked to kill his attacker from the right that the person attacked has against the state. This right—to which every individual in society is entitled—is a right to the protection by law against the lethal threats of others. In order to give substantial content to this right, legal freedom to oppose lethal threats by all necessary means, including the killing of the aggressor, must be established. In Kadish’s opinion, there is no innovation in this right, but its source is to be found in the fact that an individual has a basic right to protect himself against attack, and that he did not lose this freedom with the establishment of the state. This liberty is required by most theories of the legitimacy of the state, accord- ing to which the submission of the individual to the prerogative of the state brings a greater right to defence against aggressors than he had prior to the founding of
378See, eg, on the subject of the requirement for proportionality, the text accompanying n 688 below.
379See Kadish, n 34 above, at 884ff.
the state. Kadish calls this liberty to oppose a lethal attack by lethal force, and the moral right against the state from which it is derived, by the name ‘the right to resist aggression’.380In his opinion, this theory explains the law that justifies the killing of aggressors in a better way than other theories that he has examined.381 Among its advantages382he enumerates its suitability even for a case of a multi- plicity of aggressors, and the lack of necessity to include the problematic concep- tion of loss of rights of the aggressor as part of its framework. Kadish claims that there is no need for an explanation regarding the loss of rights for the aggressor, since within the framework of this theory the aggressor has no such rights against the victim. According to Kadish, the aggressor has no right to life (a right that in his opinion would conflict with the theory that provides a liberty to kill him), but all that he has is the right to resist an attack against his life—a right that is not infringed by the victim who is ultimately only defending himself. This reasoning, in my opinion, is strange. Moreover, it is very similar to the well-known idea of
‘double effect’383(according to which a distinction is drawn between intention to kill and anticipation of killing)—an idea that was negated, in limine, by Kadish himself as being fictitious. An additional advantage that Kadish ascribes to this theory is that it is consistent with the right of a third party to intervene, ie, the right to defend another person. According to Kadish, in such a case the basic right does not belong to the defender but to the victim, since the right of the victim to pro- tection by the law will be infringed by denying the freedom of the defender to intervene and to defend the victim, just as (thusly)384 it would be infringed by denying the freedom of the victim to defend himself.
380 Indeed in the literature—both legal and philosophical—following the above mentioned article by Kadish (Kadish, n 34), the theory that is the subject of our present discussion is often referred to by this name—see, eg, Wasserman, n 181 above, at 362ff. and Omichinski, n 31 above, at 1451ff.
381 In my view, it is very noticeable that the theory relating to the protection of the social-legal order does not appear in the discussion by Kadish.
382An additional ‘advantage’ that was denoted by Kadish, and that in my view is actually a deficiency, is the application of this theory even when the aggressor is innocent—see section 1.5.3 above.
383See Kadish, n 34 above, at 879–80, where Kadish negates the doctrine of the ‘double effect’, that is attributed to Aquinas, according to which a distinction is to be made between an intention to kill and a mere anticipation of killing, and that it should only be said that the taking of life is justified when the actor did not intend to kill, even if he anticipated the killing. Thus, when the attacked person who defends him- self kills his attacker, the effect is not intended, but only foreseen, since the intended effect is the removal of the threat and no more. The defender does not choose the death of the aggressor as a means to save his own life, but chooses the only possible means for the removal of the threat, despite his awareness that this may lead to the death of the aggressor. This doctrine is fictitious—see the criticism of Kadish ibid, at 879–80, and his reference to the criticism of Hart, ibid, at p 880 fn 17. Currently, in the light of the accepted doctrine of the rule of foreseeability (‘Dolus Indirectus’, according to which the awareness of a person to the near certain possibility that his action will cause a certain result is equivalent—both morally and legally—to an intention to cause that result) the doctrine of double effect is, in my opinion, even more problematic (see on this matter, eg, Sangero, n 61, at 345–48, especially fn 49). It is noted that this doctrine does not provide us with a rationale for private defence, but is restricted to a (weak) undermin- ing of the argument that negates private defence by lethal force. See also Uniacke, n 28 above, at 92ff.
384 As may be understood from the symbol in brackets, I have reservations regarding this claim of equality between the infringements of the victim’s rights.
The central point in Kadish’s theory is that he himself restricts its application to cases of threats of lethal force, and to these cases alone. With regard to all the remaining cases (which bear a greater importance, in my estimation, than that which they have been accorded in the literature) Kadish suggests the application of two conflicting principles: the principle of autonomy versus the principle of proportionality. He does not provide an explanation as to why these principles do not apply to lethal threats, and why the ‘right to resist aggression’ does not apply when a milder threat is involved. As he summarises the discussion of this theory, insofar as lethal threats are involved, it constitutes the best explanation for the law that governs the killing of aggressors. His concentration on killing can, perhaps, be explained by the fact that the entire article deals with the right to life385. As for his consideration of the positive law and his attempt to explain it, I prefer to seek the suitable rationale for private defence by also considering (and even principally) the theoretically optimal law. Yet before we refer to the criticism of this theory, we must add something with regard to its description, presentation and development.
A number of scholars have noted the close affinity between this theory and the theory that focuses on the individual’s autonomy and his right to defend it. Enker noted that the right to resist aggression is based to a large extent on the idea of the individual’s autonomy.386As with the right to maintain that autonomy, ‘the right to resist aggression’ is also focused on the rights of the defender. The difference is that while the first right is directed towards the aggressor, the second is directed towards the state. There are those who view ‘the right to resist aggression’ as based on the following idea: since the state is responsible for the protection of the indi- vidual, and since it is not always able to uphold with this responsibility (for purely practical reasons), the state grants the individual the right to protect his life against attack in those cases where it has failed in this function. According to this approach, the granting of this right involves practical considerations—in light of the ineffectiveness of society and its laws in certain situations387. Others have expressed their opinion that this right involves the individual’s natural right, which is not only not revoked with the establishment of the state, but also cannot be denied under any circumstances.388 Thus, for example, Blackstone already wrote that389: ‘Self defence therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by law of society’.
385As may be learned from the title of the article (Kadish, n 34 above)—‘Respect for Life and Regard for Rights in the Criminal Law’.
386See Enker, n 89 above, at 239. See also Rosen, n 37 above, at 49 fn 205, which describes the theory as the ‘right of autonomy and [to] protection by the state’.
387See Ashworth, n 183 above, at 282ff; Omichinski, n 31 above, at 1451ff. and also Fletcher (1978), n 1 above, at 867.
388See, eg, Fletcher, n 37 above, at 100.
389See Blackstone, n 40 above, vol 3 at 4.
Enker levied in-depth and detailed criticism on ‘the right to resist aggression’ as the rationale for private defence390. His central and convincing argument is as fol- lows: the right presented by Kadish is in effect a right vis a vis the state alone and it is difficult to accept the idea that such a right would allow the pursued person to kill another person391. An additional argument presented by Enker is based on the fact that this theory does not explain the permission for a third party to intervene and assist the person attacked by means of an injury to the aggressor. He calls attention to the fact that Kadish himself writes only that the theory is consistent (ie, no more than this) with the right of a third party, and expresses doubt as to whether even this consistency exists392.
Moore goes further and negates the rationale of ‘the right to resist aggression’, as it is in his opinion almost tautological. This is because all that this rationale tells us is that it is not ‘wrongful’ to kill the aggressor because . . . there is a right to kill him.393Fletcher, as a bold proponent of the rationale of autonomy, claims that the theory that is the subject of our discussion constitutes a denial of personal auton- omy and leads to the undesirable (according to his school of thought) solution of the balancing of interests.394At another stage he comments that, in contrast to common law, where—in his opinion—private defence is considered to derive from the function of the state to preserve order (ie, the rationale that is the subject of our discussion is accepted), the literature of the former Soviet Union reflects considerable hostility towards this approach, since private defence is viewed there as a private individual right and not as a derived right.395
What are the central accepted implications in the adoption of the rationale of the
‘ right to resist aggression’? Kadish himself only noted that this rationale—in his opinion—is consistent with ‘the lapse of the right to kill after the threat has ceased’
and ‘the legal right of a third person to kill the aggressor’. He also noted the appli- cation of this rationale in cases involving an innocent aggressor.396A number of scholars have claimed that the requirements for proportionality, necessity and retreat are derived from this theory, relying especially on the following reasoning:
since it is the state that grants the right to private defence, it can also make excep-
390 Enker, n 89 above, at 235–39.
391 Ibidat 237.
392 Ibidfn 9 and the text that refers to it. Other important arguments that were raised by Enker are:
(1) For some reason Kadish restricts his explanation to an objection to the lethal attacks despite his pre- vious claim that other theories do not explain the existence of the permission in cases where there is no danger to the person pursued; (2) This approach almost nullifies the difference between a justification and an excuse (see, correspondingly, ibidfn 5 and at 238).
393 See Moore, n 222 above, at 321 (Moore calls this rationale ‘agent-based account’).
394 See Fletcher (1978), n 1 above, at 867.
395 See Fletcher (1973), n 1 above, at 389–90. For an additional criticism—not strong, in my esti- mation—of the article by Fletcher ((1973) n 1 above) regarding the rationale that is the subject of our discussion—see Rosen, n 37 above, at 49.
396 See Kadish, n 34 above, at 885–86.
tions, and since it is desirable to do so, it is done in practice.397Although this rea- soning is in accordance with the approach, which was mentioned above, that the focal point for granting the right is based on practical considerations—namely, the lack of effectiveness of society and its laws—it does not conform with the view that is more prevalent, according to which a (natural) right of the individual is at stake that the state cannot deny him under any circumstances. In its pure form, the theory under discussion deals with a right that is derived (from that of the state) and not with a right that is granted (by the state). Accordingly, the above- mentioned approach is problematic with regard to the implications of the theory.
In my estimation, the adoption of this theory will lead to implications very similar to those of the rationale of autonomy398—a rationale that is very close to it from a substantive point of view. An interesting but strange attempt to derive implications from the theory at present under discussion was carried out by Dressler. In his con- sideration of putative private defence, he writes that if the rationale is a right against the state to resist aggression, then it is possible to form a basis for the determina- tion (incorrect—in my opinion) that putative private defence is a justification (as opposed to an excuse), on the fact that when we united to become a society we did not waive our right to oppose putative aggression.399It would appear that extend- ing the scope of the right that was reserved by individuals for themselves with the establishment of the state may lead to innumerable additional implications, as diverse and as strange as the author’s imagination may allow.
In conclusion of this discussion, it should be said that while the ‘right (against the state) to resist aggression’ should not be accepted as a rationale for private defence, this factor, which almost converges with the factor of the attacked per- son’s autonomy, indeed has a certain influence on the suitable rationale for private defence. Thus, under the assumption that the factor of autonomy has a central place in the justification of private defence, the right against the state acts to strengthen the autonomy factor, or at least to negate the claim that it was greatly weakened with the establishment of the state.