This rationale is not exclusive to private defence, but concerns a general theory of justification. The exception to criminal responsibility, for which it is very common to use this rationale, is ‘necessity’ as a justification. The general idea is to strike a balance between the injuries to the legitimate interests that are to be expected if the actor does not act, and the injuries to the legitimate interests to be expected as a result of the action of the actor, and to choose—between the (inevitable) evils—
the lesser evil356. According to the supporters of this theory, the principle of the lesser evil should also be applied to private defence.
It seems that there is no more suitable way to introduce this rationale than through the works of Robinson, who is a great supporter of this rationale as a gen- eral theory that fits all justification defences. According to Robinson’s theory, all justifications involve injury that is generally acknowledged by the law as injury.
However, where circumstances of justification exist and even when there is injury, it is still preferable over another, greater injury.357As Robinson notes, if a com- parison is drawn—as is common regarding the defence of ‘necessity’—between the physical evils alone, this often results in an even balance, such as the life of one person versus the life of another. In order to break this deadlock, abstract interests should be taken into account and must also be placed on the scales.358
What are these ‘abstract interests’ that must be placed on the scales? The abstract factor whose inclusion in the balance is most common is the guilt of the aggressor
356Thus, eg, an exception of ‘lesser evils’ was determined in the American Model Penal Code—see section 3.02 of the MPC. In Fletcher’s opinion, the approach presented in the MPC is that all the
‘justifications’, in effect, constitute variations of the principle of the lesser evil—see Encyclopedia of Crime and Justice, ed by Kadish, n 96 above, vol 3 at 944 (he makes this deduction in particular from the expression ‘justification generally’, which the drafters used for the ‘necessity’ defence of a justification type). See also Fletcher, n 46 above, at 142.
From a terminological point of view, ‘lesser evil’ is also addressed in the literature by other expres- sions, such as: ‘balance of utilities’; ‘necessity’; ‘superior interest’; ‘choice of evils’; ‘more benefit than loss’; ‘balancing of interests’—expressions that for the most part express the same idea. See also s 34 of the Penal Code of (the former) West Germany (1975), in which a ‘necessity’ defence of the justification type was determined on the principle of the lesser evil.
357See Robinson (1984), n 37 above, vol 1 at 83, 90.
358Robinson (1984), n 37 above, vol 2 at 71.
in creating the conflict.359The accepted way in which to calculate this factor is by using it to decrease the value of the aggressor’s interests.360Other important abstract interests that must not be ignored are the autonomy of the person attacked and the social-legal order. Common to all these factors is, of course, that they work in favour of the person attacked and against the aggressor. As noted by Wasserman,361what distinguishes private defence, according to this theory, from the defence of ‘neces- sity’ is that while with regard to ‘necessity’ the court must determine on a case-by- case basis what is the lesser evil, with regard to private defence the legislator himself has already determined a substantial part of this decision.
Other advantages362of this approach were noted by Ashworth,363who called it
‘the human rights’ approach. According to him, the approach takes into account the opposing interests of the sides to the conflict: the bodily integrity of the victim of the attack on the one hand, and the right of the aggressor that no unnecessary force will be used to repel his attack on the other hand. This approach also serves important state values: preserving human life, reducing violence, and suppressing private fighting.364
What are the practical implications of this theory? The central implication is the requirement for proportionality that exists ‘by definition’ within the framework of this approach. Although it is not required that the physical evil that is avoided be greater or even equal to the physical evil that is created—given the abstract values in the balance—some sort of correlation between the physical evils is absolutely necessary.365In this context, it is worth viewing Eser’s opposite construction of the discussion. After he notes that German law today—in contrast to the past—tends to require proportionality, he deduces that because of this tendency, private defence becomes a private case of justification based on ‘superior interest’366. Additional implications of the theory are: the requirement for necessity; a certain duty to retreat; non-application of private defence against an innocent aggressor;
and a relatively wide right to defend another person.367
359 See, eg, the considerations of this factor in particular, and of the rationale of the lesser evil in general, Omichinski, n 31 above, at 1453; Fletcher (1973), n 1 above, at 377ff; Wasserman, n 181 above, at 357ff; and Fletcher (1978), n 1 above, at 357ff.
360 See, eg, Fletcher (1973), n 1 above, at 378. See also the text accompanying n 207 above.
361 See Wasserman, n 181 above, at 358.
362 Omichinski noted additional advantages, see Omichinski, n 31 above, at 1466: promoting the goals—retributive and utilitarian—of criminal law.
363 See Ashworth, n 183 above, at 288ff.
364 In Ashworth’s opinion, this is the dominant approach in English law, while Fletcher claimed that among the legal systems that he examined only the French based private defence on the balance of interests: see Fletcher (1978), n 1 above, at 860.
365 See, eg, Ashworth, n 183 above, at 297 (commenting especially on the limitation of lethal force);
Fletcher (1973), n 1 above, at 378.
366 See Eser, n 26 above, at 633.
367 These requirements will be discussed in detail below. For our present matter, see, eg, Ashworth, n 183 above, at 288ff, 297 (necessity and proportion); Fletcher (1978), n 1 above, at 857ff. (proportion and retreat); Omichinski, n 31 above, at 1455–462 (proportion; necessity; retreat; defence of another person; innocent aggressor).
This theory was not spared criticism. The difficulty that many of the critics pointed to was that many agreed cases of private defence concern balanced physical evils, and sometimes the physical evil that is created exceeds the physical evil that is pre- vented.368Thus, for example, it is agreed that it is justified to exert defensive force—
even lethal—not only to save life but also, for example, to prevent rape. It is also agreed that a single person who is attacked is entitled to use lethal defensive force against a number of aggressors.369Even when the case involves saving the life of the person attacked at the price of the life of a single aggressor, there is a claim that because of the principle of equality between human beings, neither of the sides to the dispute should be preferred over the other. It is also argued that bringing the factor of probability into account even increases the difficulty, since the defender, who is faced with (the mere) risk of death, creates certain death by his behaviour370. Fletcher—one of the main critics of this theory—comments on the fact that although there are moral factors—such as the guilt of the aggressor—that tip the scale and provide solutions to the above-mentioned difficulties, in his opinion this theory is restricted, since these factors do not enter the balance of evils.371Similarly Thomson altogether negates a theory that is based on utility, while she refers solely to the physical evil.372
The answer to these arguments of the critics that were described above, is that within the framework of the balance of interests not only the physical evils should be considered, but also the abstract interests. Some of the critics ground their crit- icism on a shallow presentation of the theory that is the subject of our discussion, as though it referred to the physical injuries alone. There are other critics who, although they refer to the abstract interests, identify the theory with a single cen- tral abstract interest, usually with the culpability of the aggressor.373Thus, their criticism is persuasive in refraining from perceiving the guilt of the aggressor alone (or any other single factor) as the decisive factor, but it is not persuasive when con- sidered against a more complex view of the picture.374
368See, eg, Wasserman, n 181 above, at 357ff; Kadish, n 34 above, at 882.
369See Ch 3.8 below.
370See Fletcher (1978), n 1 above, at 858 fn 10.
371See the Encyclopedia of Crime and Justice, ed by Kadish, n 96 above, vol 3, at 944.
372See Thomson, n 29 above, at 42ff. It is interesting that after this negation, Thomson sought the stronger right of the person attacked (in comparison to that of the aggressor) as the rationale for pri- vate defence, and finds it in the right of the person attacked to defend himself. It seems to me that this is no more than a tautology, since the basic question is, of course, what is the source of the right of the person attacked to defend himself. See also the words of Dressler, who places doubt on the suitability of a utilitarian theory as an explanation for private defence and for our intuition regarding it, in Dressler, n 32 above. at 89 fn 157. In his opinion, we require ‘deontological reasoning’ as an explana- tion for private defence and ‘teleological reasoning’ in order to explain the exception of ‘necessity’.
373See, eg, the criticism by Kadish, n 34 above, at 882.
374A relatively complex view is presented by Wasserman, n 181 above, who considers two variations of the principle of the lesser evil: ‘the act version’ versus ‘the rule version’. The first relates to the physical evils, and the second to the possible benefit to society from the rule permitting private defence. But why suffice with the negation of each of these variations as if they were exclusive, instead of describing the full picture with all its colours?
As to the argument that was mentioned above, regarding the increased difficulty involved in the consideration of the factor of probability, it seems to me that this will usually entail the wisdom of hindsight after the event (the defensive act), when the injury to the aggressor is already known and the injury to the person attacked remains—due to his defensive action—a mere possibility. According to exactly this same logic, it is possible to argue that if the person attacked were to refrain from defending himself, then the injury to the person attacked would be the known factor and the injury to the aggressor would remain as a mere possibility.
Accordingly, if we are interested in knowing as much as possible prior to the action (of defensiveness), we must consider the probability of each of the possible injuries from the defensive action, and this probability must be weighed in the estimation of the evils, while also taking all the remaining factors into account.375
With regard to the duty to retreat, it should briefly be noted here that Fletcher’s conclusion that the theory of the lesser evil necessarily leads to the clear and unam- biguous conclusion that there is a strong duty to retreat relies, in my opinion, on an inaccurate balance. On one side, Fletcher places the honour of the defender and the increased risk of injury to him (the loss that the attacked person will suffer if we require him to retreat), and on the other side the life of the aggressor (the benefit to the aggressor from the retreat of the person attacked). He thus ignores—
on the one hand—the damage to the social-legal order involved in a retreat, and he adds—on the other hand—the apparent weight of increasing the risk of injury.
‘Apparent’—since no one suggests requiring a retreat that will endanger the per- son attacked.376
A possible deficiency of the theory of the lesser evil that was observed by Omichinski,377is that this theory requires maintaining a very complex balance that sometimes includes weighing a person’s life—a balance the execution of which may even be beyond the capability of philosophers and scholars.
Accordingly, in her opinion, an ordinary person whose life is endangered should not be expected to properly maintain this balance. A third party who comes to his assistance also cannot be expected to do so.
375 Fletcher also presents criticism of a different sort. Firstly, he claims that viewing the autonomy of the person attacked as one factor in the balance of interests, constitutes an overlooking of the abso- lutist tendency in the principle of autonomy and betrayal of the individual’s honour (see Fletcher (1978), n 1 above, at 771). Yet, I have expressed my position widely above, that there are no absolute rights at all (see section 1.5.1 above) and autonomy should not be seen as the only factor in the justification of private defence (see section 1.5.4 above). Secondly, Fletcher comments on three impli- cations of the theory of the lesser evil—requirements for proportionality, retreat and non-application of private defence against an innocent aggressor—and sees deficiencies in them that lead him to the conclusion that the theory should be negated (see Fletcher (1973), n 1 above, at 378; Fletcher (1978), n 1 above, at 771, and 858ff.). This criticism is especially interesting in the light of the fact that, as was described above, and as will be detailed below (see sections 1.5.2, 1.5.3 above and Ch 3.8 and 3.9 below), in my opinion, these implications are not indeed deficiencies, but on the contrary: in a modern and civilised society, they constitute advantages.
376 And see in greater detail Ch 3.9 below.
377 See Omichinski, n 31 above, at 1466.
In my estimation, the force of this argument is not great. It is doubtful whether other rationales provide a clearer explanation (and in a significant manner) for private defence, and it is doubtful whether the other criminal law defences are intended to direct behaviour and are capable of doing so. In addition, as will be suggested below,378it is possible that part of the balance could be performed on a general normative level by the legislator himself.
The example that is discussed above—the analysis of the issue of retreat ‘in a nutshell’—leads us to the central question regarding the theory that is under dis- cussion, namely, what are the abstract interests that must be considered within its framework and what weight should be given to each of them. The word ‘frame- work’ was not chosen here by chance. My opinion is that although the theory of the lesser evil should be accepted, this theory does not provide an explanation for private defence. It merely constitutes a framework that must be filled with con- tent—a content that will include not only the physical evils but also the relevant abstract interests. With regard to these abstract interests, there should be no con- centration on one single factor alone, but all the important factors should be taken into account, and these are, principally, the autonomy of the person attacked, the culpability of the aggressor and the social-legal order.