In the previous two sections, I have described the use made in the literature—both legal and philosophical—of the test-case of the innocent aggressor, both to negate the aggressor’s culpability as the crucial factor in the rationale for private defence, and to establish the autonomy of the attacked person as the rationale for private defence. As stated, it is my opinion that the test-case does not justify the negation of the importance of the aggressor’s culpability as a central factor in the justification of private defence. In this section we shall examine in a general way the theory that the rationale that underlies private defence is the autonomy of the attacked person.
The essence of this theory is that private defence as justification is based on the absolute right of the victim of the attack to defend his personal legitimate inter- ests—his autonomy—against the attack. There are those who base this defence on the right of a person—a natural right,287according to one school, and an agreed right, according to a second school—to life and autonomy. This is the minimum requirement to maintain life that has value. Therefore, a person is permitted to give priority to his own life when his life is in conflict with the life of another.288
284 Regarding the situation of positive law—which is not completely clear—with respect to the issue that is the subject of our discussion in Anglo-American law, see, eg, Kadish, n 34 above, at 876;
JC Smith, and B Hogan, Criminal Law, 9th edn (London, 1999) at 259 and Fletcher (1978), n 1 above, at 870.
285 See DW Elliot, ‘Necessity, Duress and Self-Defence’ (1989) Crim LR 611 at 618–19; Williams (1982), n 1 above, at 739.
286 It deserves mention that this limitation, which appears in English Law, caused one of the writers to call for the (strange) application of private defence not only against the innocent aggressor but also in the absence of any attack—against natural dangers—see Elliot, previous n, at 618.
287 With regard to the view of private defence as a natural right, determined by the natural law, see Aiyar and Anad, n 134 above, at 1ff; Baum and Baum, n 1 above, at 36.
288 Enker, n 117 above, at 56.
According to this theory,289 individual autonomy and the right to defend it together constitute the essence of private defence. All that is required in order to justify private defence is a certain type of aggression against an innocent person.
The test for the required aggressive behaviour is that it should be ‘wrongful’.
Therefore, if the aggressor acts in a situation of a mere excuse (as distinct from a justification) his attack is still within the bounds of a ‘wrongful act’, and private defence is accordingly justified. The focus is not on the guilt of the aggressor, but on the autonomy of the innocent victim, where the assumption is that the latter has the right to prevent invasion of and penetration into the sphere of his auton- omy. The adage that is frequently applied to this set of circumstances is ‘Right should never give way to Wrong’.290
The explanations that Fletcher presents for this theory are as follows: the aggres- sive action places the aggressor outside the protection of the law. Locke wrote, for example, that the aggressor is in ‘a state of war’ with the defender,291 and as Fletcher adds, when a person is at war he is only interested in the enemy’s attack and not in the possible excuse for it. Another explanation, which is attributed to the Kantian tradition,292is that the attack breaches the implied contract that exists between autonomous individuals, according to which each of them must respect the living space of one another. According to Fletcher,293 the theory based on autonomy is the dominant one in the criminal theory of Germany and the former Soviet Union, and it also finds expression in the theory of ancient common law.294
289An extensive discussion on this theory was presented, as mentioned, by Fletcher, who opined that this is the suitable rationale for private defence. See, eg, Fletcher (1973) n 1 above, at 378, and also Fletcher (1978), n 1 above, at 860ff, 770ff.
An interesting development of the autonomy rationale was done by Schopp—see Robert F Schopp, Justification Defenses and Just Convictions(Cambridge, 1998). Schopp wrote about self-defence as justified conduct in a liberal society, and emphasised the importance of the sovereignty, the sphere of the self-determination and the equal status of the person (ibidat 64ff). As other supporters of the autonomy rationale, Schopp came to the conclusion that there should be no requirements of propor- tion and retreat—not even before deadly defensive force is used (ibidat 77ff.). His theory allows the victim to kill an apple thief (ibidat 83). The main basis for justifying self-defence according to Schopp is the autonomy of a person in a liberal society. However, I wonder if a real liberal society should not also consider the rights of the aggressor and should not have a little bit compassion towards him.
290Or, in other accepted phrasings: ‘Right should never yield to Wrong’; ‘Law does not have to yield to Lawlessness’. Fletcher attributes the saying to Berner (1848) (see Fletcher (1973), n 1 above, at 379 fn 34) or to a slightly earlier period (see Fletcher, n 37 above, at 97 fn 88). However, there are those who attribute this saying, that justice should not yield to evil, to the ancient Romans—P. Dykan, Criminal Law, with Special Reference to the History of Jewish Law and to the Law of Israel(1957) Pt IV (Hebrew) at 798.
291See the quotation of Locke’s words, next to the reference to n 215 above.
292See Fletcher (1973), n 1 above, at 380.
293See, eg, ibid, at 379; but compare this to Eser’s different opinion, that although this is the ancient rationale, in modern German criminal theory, the defence of the legal order is also emphasised—Eser, n 26 above, at 631ff.
294This principally concerns the position of Locke, on which we commented above, and the well- known words of Coke, according to which: ‘No man shall (ever) give way to a thief etc., neither shall he forfeit anything’. See, also Fletcher (1973), n 1 above, at 379.
In modern Anglo-American law it is not dominant, but various scholars have pointed out several specific contexts wherein it is expressed, especially where the defence of the dwelling is concerned.295
The central characteristic of private defence according to this theory is the absolute nature of the right to protect autonomy, and as a consequence the rejec- tion of any limitation involving a requirement of a particular degree of propor- tionality. Kadish notes that the unlimited character of the right according to this theory (which he does not support), stems from the principle of autonomy, according to which no person need be exploited as an instrument for the purposes of another, while the essence of the physical attack is that the aggressor asks to abuse the life of the victim (in the broader sense of his personality).296According to the principle of autonomy, the price that the aggressor pays is not considered at all: it suffices that the defensive force—as great as it may be, and for the preven- tion of a danger as small as it may be—is necessary for the protection of the auton- omy of the person attacked. Subjecting the defensive force to the requirement of proportionality means the existence of situations wherein the victim is obliged to endure exploitation for the benefit of another, against his will. Fletcher cited the hostility that exists toward the requirement of proportionality in legal systems where the principle of autonomy has been adopted—the German system and that of the former Soviet Union,297 and also explains this on the basis of the term
‘right’, which predominates in German law, just as a completely different term—
‘reasonable’—prevails in Anglo-American law298. The term ‘right’, whose devel- opment Fletcher attributes to Kant, serves only to benefit the person attacked, and the aggressor has no similar ‘right’ requiring the attacked person who defends himself to consider the interests of the aggressor as a human being. This matter is left to the complete discretion of the person attacked, and the state has no right to compel him to waive his right for the sake of altruism.299
The classic and shocking example of the consequences of this approach is the German court judgment from 1920, in which the Supreme Court of Germany upheld the acquittal of the owner of an orchard who shot at two youths (and severely wounded one of them) who tried to steal his fruit (!). In the ruling, the court discussed the rule that ‘Right must never yield to Wrong’ and established that subject to the requirement of necessity alone, it is permissible in such situa-
295 Kadish draws attention to defence of the dwelling and prevention of crime (see Kadish, n 34 above, at 887–88); Williams also commented on defence of the dwelling and added the context of theft (see Williams (1982), n 1 above, at 738). Ashworth, who calls the theory that is under discussion by the name ‘stand fast approach’, also notes—apart from defence of the dwelling—cases in which a person expects an imminent attack (see Ashworth, n 183 above, at 306).
296 See Kadish, n 34 above, at 886ff. The source of this concept can be found in Immanuel Kant, Fundamental Principles of the Metaphysic of Ethics, Ch. II.
297 See, eg, Fletcher (1973), n 1 above, at 381ff.
298 See principally Fletcher, n 37 above, especially at 72ff. See also Alexander, n 278, at 1179ff.
299 See Fletcher, n 37 above, at 99ff.
tions to shoot in order to kill. It should be emphasised that this case involved only property, and even property of little value. As Fletcher notes, most German schol- ars justified this judgment.300
The negation of the principle of proportionality is, as mentioned, the central implication of the rationale based on autonomy, since autonomy and proportion- ality are incompatible with one another.301Further on, I will discuss in detail the principle of proportionality and the immense importance—both moral and legal—of any requirement of proportionality, not necessarily absolute, between the attack and the defensive force. I believe that in light of the tremendous import- ance of the requirement of proportionality for all modern legal systems, any theory that leads to its negation is bound to be rejected, even if for this reason alone.
Kremnitzer claimed that the rights of the individual are relative and not absolute as they are represented within the framework of the autonomy theory, and he presents clear examples wherein the law also relates to the aggressor him- self and not only to his acts.302As he notes, the comparison of private defence to war distorts the true nature expressed by its name—an act of defence. It is actually in contrast to war that we can better express the nature of private defence: the law provides protection to one who is forced to defend himself and not to the warrior who uses private defence as a pretext for his belligerent actions. The comparison to war also obscures the important restriction of the right to private defence to cases of illegal attack alone. If private defence were in fact like war, legal systems—
including the German one—would not restrict it (as they all do at present) with the requirement of necessity of defensive force in order to repel the attack, since this implies consideration for the aggressor. It is precisely this same consideration that leads to the important restriction of reasonable—ie, proportional—force and not just necessary force. While in pre-modern societies, where the social institu- tions for protection of an individual’s rights were undeveloped, it was reasonable to base private defence on the unlimited right of the individual to protect his own autonomy, the situation is entirely different in modern society.303
In my opinion, it is actually possible to base strong criticism of the lack of a requirement of proportionality on the words of Fletcher himself, even though he supports the rationale of autonomy. He writes304that this theory provides a sort
300See Fletcher, n 37 above, at 72ff. and Fletcher (1973), n 1 above, at 381ff.
301See, eg, Kadish, n 34 above, at 886ff; Gorr, n 191 above, at 257; and Fletcher, n 74 above, at 1378ff.
302See Kremnitzer, n 10 above, at 184ff. Inter alia,he commented that the legal recognition of the
‘necessity’ defence in general, and of ‘necessity’ as justification in particular, proves that individual rights are relative. He noted that Fletcher himself tends to the opinion that an attack without volition (control) is insufficient to justify private defence against it (see Fletcher (1978), n 1 above, at 862ff.), and thus the sovereignty of the individual is not absolute. See, also the discussion of relativity as opposed to absoluteness of the rights in section 1.5.1 above.
303See Kremnitzer, n 10 above, at 185ff.
304See Fletcher (1973), n 1 above, at 380ff.
of paradoxical view of aggression: on the one hand it relates to the aggressor as a participant in the legal system, and on the other hand it relates to the attack that he perpetrates as negating the foundation for considering him with care and com- passion. The aggressor is protected by the legal conditions that are required for the exercise of defensive force, but his interests are considered as irrelevant. He is therefore found to be, simultaneously, both within the legal framework and out- side of it, as a peer and as an ‘outlaw’. Fletcher also notes, that according to the theory of the rationale based on autonomy, everything is seen as black or white as a result of the elimination of the various shades and nuances305. In effect, in my opinion, the reliance on ‘right’ and ‘wrong’ as exclusive categories constitutes a disregard for the existence of the gradation—which is very significant from a moral point of view—of the various attacks306. As Fletcher notes, in the legal sys- tems of Germany and the former Soviet Union, where in his opinion the rationale of autonomy was dominant, they needed solutions to concrete problems, such as the use of lethal force for the protection of property of little value, because they had despaired of finding a principled solution within the areas of the theory itself307. At another point, Fletcher wrote that in its pure form, private defence constitutes the de-humanisation of the aggressor and a lack of consideration for questions of justice308. It seems that these descriptions contain very strong criticism of the rationale of autonomy. And if this is not enough, then in the famous analysis in which Fletcher juxtaposes the ‘right’ found in German law with the ‘reasonable’ of Anglo-American law, he points to the misleading nature of the discourse of German law that describes the right as absolute309. In the same article,310Fletcher writes that the German rule that ‘Right need never yield to Wrong’, expresses the significance of being ‘an autonomous person in civil society’. I believe that we should doubt the civilisation of a society where no proportionality of any sort is required, to the extent that it is permissible and even justifiable to shoot, in order to kill, a youth who ran off with the apples that he stole. In light of the ‘justified’
character of private defence, a waiver of the requirement for proportionality means that the fatal shooting of a youth running away with the apples is the cor- rect thing to do from a moral point of view—and this is according to the ‘justified’
perception of Fletcher himself. Finally, in one of his later writings, Fletcher describes a struggle and historical transition of the law from ‘passion’ to ‘reason’—
from vengeance against the aggressor to the justification based on the autonomy
305 Ibid, at 381.
306 The same logic—ignoring the multiple grey intermediate tones between black and white—can lead to permitting the ‘taking of the law into one’s own hands’ and very broad ‘self-help’ even in other areas, while society prefers to depend on the legal system. For similar opinions see Omichinski, n 31 above, at 1466; Ashworth, n 183 above, at 290.
307 See Fletcher (1973), n 1 above, at 387; and see Bernsmann, n 265, at 178.
308 See Fletcher, n 117 above, at 208ff.
309 See Fletcher, n 37 above, at 75.
310 Ibidat 92ff.
of the defender.311It is possible and imperative to ask: why stop at this point on the scale and not come closer to ‘reason’ by also considering, among other things, the interests of the aggressor and the social-legal order?
The rationale of autonomy has other implications that constitute its additional deficiencies. Firstly, it is very difficult to explain the right of a person to defend another on the basis of this rationale. Thus, for example, Fletcher, following a long discussion of private defence based almost exclusively on the autonomy of the per- son attacked, had to bring in the consideration of defence of the legal order in order to explain the defence of another.312Moreover, this theory diminishes the area of values and interests, which it is permissible to defend within the framework of private defence. As Kadish notes—not in criticism of the theory, but merely as its simple description—the principle of autonomy only creates a right to resist threats to a person’s body and other close interests.313As we shall see below,314 there is no acceptable foundation for such a restriction of the range of protected interests. In addition, on the same subject, Kremnitzer claimed that viewing the right of private defence as a classic individual right is incompatible with the fact that some legal systems—including that of the former Soviet Union—recognise defence of the public interest, which is not necessarily derived from the rights of the individual, as being within the framework of private defence.315
The theory that is the subject of our present discussion has undergone a certain amount of honing and refinement, and this is in light of the great difficulty inher- ent in the non-requirement of any sort of proportionality. In order to solve this difficulty in extreme cases of the exercise of lethal force for defence against a slight attack, the doctrine of abuse of right—whose source is in the civil law—is used for the denial of this defence.316As Fletcher explains, this system is not ‘flat’ but ‘com- plex’: an absolute norm (the right to private defence), and only at a second stage, exceptions to restrict it. After presenting examples of the restrictions that scholars imposed on the right to private defence, based on the doctrine of ‘abuse of right’, he writes about the ‘modern conception of ‘right’, that leads to results that are
311See George P Fletcher, A Crime of Self-Defense: Bernhard Goetz and the Law on Trial(New York, 1988).
312See Fletcher (1978), n 1 above, at 869; Kremnitzer, n 10 above, at 183 fn 12; Omichinski, n 31 above, at 1460 fn 77.
313See Kadish, n 34 above, at 886. See also the description by Fletcher (1978), n 1 above, at 864, regarding the difficulties of German jurists (and the then Soviets) in explaining the defence of a wide range of interests.
314See Ch 3.3 below.
315See Kremnitzer, n 10 above, at 182ff. In German law, there is a dispute as to the possibility of defence of state interests within the framework of the private defence—see Bernsmann, n 265 above, at 176.
316See, eg, Fletcher (1973), n 1 above, at 385ff; and Fletcher, n 37 above, at 73ff. (relating especially to German law). Such a restriction, determined by the court, in effect constitutes an expansion of crim- inal responsibility and thus raises significant questions regarding the principle of legality—see section 1.2 above.