According to this modern theory, the justification of private defence, in addition to being based on the legitimate interest of the person who is attacked, is based on the social interest of protection of the public order in general and the legal system in particular. The rationale of protection of the social-legal order forms the foun- dation underlying another criminal law defence, accepted in several legal systems, which permits the use of force in order to prevent a crime.324Within the frame- work of private defence, it is not usually accepted to view protection of the social- legal order as an exclusive rationale325, but as one factor of several for the justification of private defence, the most important of which is the factor of pro- tection of the legitimate interest of the person attacked. In any case, it is possible to learn something of the power of the factor of protection of the social-legal order as a justification of private defence from the fact that there are legal systems in which it constitutes a completely independent factor for the permission of use of force, within the above-mentioned defence of prevention of a crime.
A detailed discussion of this rationale appears in Kremnitzer’s article.326As he notes, Fletcher also mentioned this rationale.327 However, Fletcher did not emphasise the distinction between this rationale and the rationale of autonomy, and it seems that in his opinion the latter is stronger.328As will be seen below, in Fletcher’s collective works it appears that he does not support the rationale that is under discussion, but—in quite a consistent manner—chooses the rationale of autonomy. Kremnitzer begins by negating the exclusivity of the autonomy of the person attacked as the rationale for private defence—a negation that I mentioned in the previous section. After this he proceeds to discuss the important factor of
324With regard to this defence in American law, the rationale on which it is based and its affinity to private defence, see, eg, American Jurisprudence, vol 40, 2nd edn (Rochester, NY; San Francisco, CA 1999) at 649; Perkins and Boyce, n 85 above, at 1108ff, 1145ff; and in English law—see especially art 3 of the Criminal Law Act, 1967, and also Card, Cross and Jones, n 180 above, at 624ff; Smith, n 91 above, at 123ff. and C Harlow, ‘Self-Defence: Public Right or Private Privilege’ (1974) Crim LR 528.
A broad field in which overlap exists—in many legal systems—between private defence and preven- tion of a crime, is the defence of another person. See, eg, Smith, n 91 above, at 123–124; Perkins and Boyce, n 85 above, at 1145ff.
325Silving expressed an exceptional opinion that proposed the unification of the defences ‘preven- tion of crime’ and ‘private defence’. See Silving, n 45 above, at 393ff. A similar situation exists in prac- tice—according to the opinion of Smith and Hogan—in light of art 3 of the Criminal Law Act, 1967.
See Smith and Hogan, n 284, at 254ff; Smith, n 91 above, at 123ff.
326See Kremnitzer, n 10 above, at 181–83, 189–96, 209, 214.
327In his well-known article (Fletcher (1973), n 1 above), to which Kremnitzer responds.
328See Kremnitzer, n 10 above, at 181.
protection of the social-legal order. The distinction between private defence and the ‘necessity’ defence is based on this factor, since the uniqueness of private defence329is found in the fact that the source of danger is an illegal attack and that the response is directed against a guilty aggressor who bears criminal responsibil- ity. According to the theory currently under discussion, the person attacked acts as the representative and protector of society, public order and the legal system, since his actions are directed at neutralising a violation of the law. This is a ‘polic- ing action’ as well, because if the police were present at the time of the event, they would not have acted in any way other than how the defender acted. The act of the attacked person serves the public interest by deterring offenders and preventing offences. This deterrent function has a dual character: the individual aggressor is effectively deterred by the repelling of his attack, and potential offenders will be deterred when they know that their plan may be frustrated not only by the police (who are not always present at the site of an event) but also by the victim (who is usually present where the event takes place) or by any other person who is by chance in the vicinity (as part of the ‘defence of another’). Moreover, the know- ledge that the protection of the social-legal order is given to all citizens strength- ens the sense of security of the law-abiding public. The key to understanding private defence, and to understanding the difference between private defence and
‘necessity’, is therefore to be found in the comparison between the justifications for each exception. The common factor is that both exceptions stem from the need to protect the legitimate interest that is in immediate danger (ie, a situation of
‘compulsion’). The difference is, as mentioned, in the source of the danger: private defence involves the illegal act of a person, while ‘necessity’ involves a result of the circumstances (usually natural). Thus, in private defence there is an additional—
social—interest for the protection of public order and the legal system. In contrast, in ‘necessity’ the injuries to public order and to the legitimate interest of another person (who is not a culpable aggressor) stand in opposition to the defence of the legitimate interest that is endangered. Accordingly, Kremnitzer proposes a schematic description (Figure 1)330:
329 As already explained—see extensively in sections 1.5.2 and 1.5.3 above.
330 See Kremnitzer, n 10 above, at 191. With regard to the ‘dual rationale’ of private defence see also Bernsmann, n 265 above, at 172–73.
I agree that the protection of the social-legal order has immense importance for the justification of private defence. However, the ‘equation’ that appears in Figure 1, describing private defence, is incomplete. For it must also include an expression of additional factors, beyond those presented there, especially the interests of the aggressor. Although a certain reduction of these interests can and should be made in light of the aggressor’s culpability,331they should be expressed to some extent.332 It is indeed possible to try to introduce these interests into the balance by ‘the back door’ of the factor of the social-legal order, and to say, for example, that an exces- sive injury to the aggressor harms this order, as is done in practice by Kremnitzer, in his article.333This is not sufficient, however, in my opinion, just as we are not satisfied by the inclusion of the attacked person’s interests within the framework of the factor of the social-legal order, but give them an independent place in the equa- tion. This independent place has great significance, both principled-declarative and practical especially with regard to the requirements for proportionality, necessity and retreat, which will be discussed below.334
Other scholars have referred to functions that are fulfilled by private defence, namely, the deterrence of aggressors335 and ‘private policing’.336 Thus, for example, Williams337noted that a rule that permits defensive actions operates to
331See section 1.5.2 above.
332A minimal expression of the aggressor’s interests, that it appears that everyone will agree with (as a minimum), can be found in the words of Ashworth, who related to the right of the aggressor that unnecessary force should not be used against him for the repelling of his attack—see Ashworth, n 183 above, at 289.
333See Kremnitzer, n 10 above, at 193–94.
334See (correspondingly) Chs 3.8; 3.6; 3.9.
335See, eg, Nino, n 181 above, at 185.
336See, eg, Miriam Gur-Arye, Actio Libera in Causa in Criminal Law(1984) at 98; Silving, n 45 above, at 392 (seeing the defender as the arm of the state); Gordon, n 1 above, at 754ff (relating to the rationale of private policing that was noted by Hume).
337See Williams (1982), n 1 above, at 739.
deduction symbol Protection of a
Legitimate Interest (of the attacked person, B.S.)
Injury to the Public Order and the Law Necessity
⫽ ⫺ Injury to a Protected ⫹ 再
Interest (of another person, B.S.)
再
Private Defence Protection of a Legitimate Interest (of the attacked person, B.S.)
Protection of the Public Order and the Law
⫽ ⫹
Figure 1
suppress aggression, or at least to reduce it, while a rule that prevents defensive actions would act to encourage aggression.
Soviet jurists thought that the maximal use of defensive force would deter crime effectively, and even went further by supporting the maximum response to aggres- sors, to the extent that it was claimed that killing the aggressor is a moral duty and not a mere right.338It should be emphasised, that apart from the deterrent element in private defence, it also constitutes a direct defence of the social-legal order, since this order is damaged by the malicious attack inherent in the illegal action of the aggressor.
There are those who also attribute this rationale of private defence, inter alia, to Hegel’s idea regarding the nullification resulting from the aggressor’s action and the nullification of this nullification by the defensive action of the person attacked (‘nullification of injustice’).339
What are the main implications of this rationale? Eser340notes that the combina- tion of individual defensive action with social maintenance of law and order leads, on the one hand, to the widening of private defence, and on the other hand to its restriction. How is it broadened? By the fact that this double rationale provides a basis both for the defence of another (any other) person and by the fact that it also provides an explanation for the protection of public interests. How is it restricted?
By the fact that it leads to the perception of the right to private defence as a right that is not absolute, but relative, and only exists for as long as the social function that it fulfils also continues to exist. This perception—in Eser’s opinion—supports a num- ber of requirements, such as a certain duty to retreat, certain limitations on whoever causes the defensive situation by his guilt, and the requirement of proportion.
It should be noted that no agreement exists among the scholars concerning the implications of the rationale currently under discussion. Kremnitzer,341for exam- ple, refers to the operation of the rationale as a weakening force—in comparison to the ‘necessity’ exception—on the duty to retreat (since it is no longer the retreat of the individual alone, but also the retreat of the law and the order)342; as acting to render flexible the requirement for proportionality (since against the interest of the aggressor stands not only the interest of the person who is attacked, but also the social-legal order)343; and operating to temper the harsh treatment of the individual who caused the situation of defensiveness by his guilt. With regard to the requirement of proportionality, Kremnitzer claims that dialectically the social-
338 See Fletcher (1978), n 1 above, at 868, 872.
339 See, eg, Silving, n 45 above, at 392–93.
340 See Eser, n 26 above, at 631ff.
341 See Kremnitzer, n 10 above, at 191ff.
342 A similar opinion was expressed by Herrmann,—J Hermann, ‘Causing the Conditions of One’s Own Defense: The Multi-Faceted Approach of German Law’ (1986) Brigham Young University Law Review747. (This article was also published in the book by Eser and Fletcher, Justification and Excuse (Freiburg, 1987) vol 2 at 754).
343 A similar opinion was expressed by Gur-Arye, n 37 above, at 82; Gur-Arye, n 13 above, at 227.
legal order rationale may operate to restrict the use of force (since the use of exces- sive force infringes this order).344
Indeed, an excessive injury to the aggressor also harms the social-legal order. An additional implication of this rationale is that private defence does not apply against an innocent aggressor, since in the absence of criminal responsibility, the aggressor’s action bears no anti-social nature, and accordingly it does not—cer- tainly not significantly—injure the social-legal order.345
As mentioned, it is not accepted to view protection of the social-legal order as the exclusive justification for private defence (in contrast to, for example, its use as a justification for the prevention of crime defence). Accordingly, beyond the consen- sus regarding the existence of this justifying factor, it is very important to determine the scope of its operation and the rest of the justifying factors that exist alongside it, that together constitute the rationale that forms the foundation for private defence.346With regard to the weight of the factor of the social-legal order in any given case, in my opinion, this weight stands in direct proportion to the weight of the given interest that is endangered347and to the guilt of the aggressor (as an expression of the anti-social element that is embodied in his action). Thus, for example, the injury to the social-legal order will be especially great in an attack with criminal intent against an existential value, endangering the life of the individual who is attacked.348
344All these issues (the requirement for proportionality; the duty to retreat; the responsibility of the person by whose guilt the defensive situation was created) will be discussed widely below. At this stage the intention is to illustrate the existence of different views regarding the substance of the social-legal order and with regard to its weight and function in the justification of private defence.
345See Kremnitzer, n 10 above, at 194ff; Fletcher (1978), n 1 above, at 865–66; Gur-Arye, n 37 above, at 82; Gur-Arye, n 13 above, at 227. As Gur-Arye notes, for the same reason that society gives an excuse to the aggressor, it must also negate the justification of private defence against him. See also the discussion in section 1.5.3 above.
Another example of different possible perceptions of the substance and content of the term social- legal order is provided by the structure of responsibility in German criminal law. The second stage of this structure, between the existence of elements of the offence and the guilt (that is negated by the excuse), is the unlawful character of the action that is identified with the injury to the social-legal order.
It is accepted there that this injury is only negated by justification (and not by excuse), and thus a dif- ferent perception of the term social-legal order prevails there than that which I have presented above—
a different and strange perception, that sees the innocent aggressor as significantly harming the social-legal order. See also the above-mentioned references in n 46 above and accompanying text.
346Such a framework will be proposed in section 1.6 below.
347A weight that is expressed, eg, in the measure of protection provided by the law for a protected value: insofar as its weight is greater, a more severe penalty is fixed for its violation, and thus its pro- tection by the law is increased.
348A possible explanation for the astounding German decision in which the owner of an orchard who had shot children who ran away with his stolen fruit was acquitted (see n 300 above and accom- panying text) is as follows: as distinct from the picture drawn by Fletcher (id.), the social-legal order was also considered by the court, alongside the autonomy of the individual who was attacked.
However, the court did not manage to see that the weight of the injury to this order is a function of the weight of the interest that is endangered (and there it involved mere property, and even property of lit- tle value). The court instead ruled as though the fate of the entire legal system was held in the balance.
An additional factor that was also ignored, in my opinion, by the German Court, is that the excessive injury to the aggressor in fact harms the social-legal order.
It is difficult to find explicit criticism of consideration of the factor of the social- legal order as a justification of private defence. However, it is possible to find approaches that ignore this important factor. Against this background, Fletcher’s consideration of this factor is of interest. He mentions it in many of his writings, but the slight weight that he attributes to it is evident.349In his discussion of the rationale of private defence, for example, Fletcher mentions no less than four dif- ferent theories for the explanation of private defence,350but finds no room for social-legal order rationale. At another point he goes even further and writes that establishing private defence as a means of personal defence is preferable to justify- ing it as a tool for the nullification of the evil that is represented by the aggressor,351 as if these alternatives preclude one another. Fletcher devotes a relatively substan- tial degree of consideration to the social-legal order in his famous article that deals with the psychotic aggressor.352On the one hand, he tends to negate this rationale, by expressing his opinion that the conception of protection of the ‘legal order’, that views attacks against individuals as attacks against the entire society and against its legal system, is just a more sophisticated way of describing, as did Locke, a situation of war between the aggressor and his victim. On the other hand, it would appear that the conception of ‘legal order’ as seen by Fletcher, is different from that which was described above, which I supported. According to Fletcher’s viewpoint, the conception of the legal order pushes the aggressor into the margins of the legal system. The aggressor is perceived as the enemy of the system and is cast outside the boundaries of social concern and consideration—and all this is true even if he is innocent.353It appears that the legal order to which Fletcher refers identifies with the concept of the ‘right’ that we discussed above, and does not include consideration of the aggressor’s interests.354In effect, it seems that even when he mentions the social-legal order, the principal, dominant, and almost exclusive rationale for private defence according to his school of thought is still the autonomy of the person attacked.355
In conclusion it should be emphasised, that on the one hand, the importance of the factor of the social-legal order for the justification of private defence should not be overlooked and on the other hand, private defence should not be based on this
349 Protection of the social-legal order is mentioned in Fletcher’s writings as follows: Fletcher (1973), n 1 above, at 380, 388ff; Fletcher (1978), n 1 above, at 771, 861ff; Fletcher, n 117 above, at 208ff;
Fletcher, n 72 above, at 306; Fletcher, n 37 above, at 97ff.
350 See Fletcher, n 311 above.
351 See Fletcher, n 72 above, at 306.
352 See Fletcher (1973), n 1 above, at 388ff.
353 Ibidat 380, 388–89.
354 See, eg, Fletcher, n 117 above, at 210ff.
355 On this matter it should be noted, that there are scholars who describe the German law in a very different manner from that which was described by Fletcher. Eg, Eser notes that although the ancient rationale that ‘Law does not yield to Lawlessness’ still exists as a principle in German law, it is never- theless in decline. Similar weight (and even greater) is given to the social function: the social interest in maintaining the ‘general peace’. See Eser, n 26 above, at 631ff.