Viewing the guilt of the aggressor as the basis for justification of private defence is the classic and most common theory in Anglo-American law.199Kadish200pro- vides us with a basic description of this viewpoint. The approach focuses on the rights of the aggressor. Its starting point is the general right to life that is granted to all human beings. The central argument of this approach is that the aggressor, by his guilty act, loses his right to life, or, at least, the right to claim this right.
Omichinski illustrates this theory with the accepted description of ‘moral for- feiture of the right to life’.201She explains that even though the right to life is tra- ditionally considered to be non-transferable, it is however normally considered as one, which can be lost—as noted by the philosopher Locke, and the jurists Blackstone and Feinberg.202
This is, as stated, the basic description of the theory—a description that it is easy to criticise. Thus, for example, Kadish notes that if the theory assumes that the aggressor—by his act—agrees that his life may be taken as a result of a defensive act, then this is a fiction, because the aggressor probably did not even think of this possibility.203Fletcher, in his critique of this theory,204considers the close affinity between the term ‘forfeiture’ and the original conception of the ‘outlaw’ (a person standing outside the boundaries of the law). The ‘outlaw’ forfeits his rights in relation to everyone—even in relation to people who know nothing at all about this forfeiture. Any person is entitled to kill him, without any requirement of a positive purpose of any sort, and even without a need of awareness of his above- mentioned status. As we shall see below, it is accepted that in order to establish pri- vate defence there is at a minimum a requirement of awareness of the justifying circumstances, if not also of a defensive or protective purpose.205Therefore, there is no complete equivalence between the aggressor and the ‘outlaw’. Neither is it possible to escape the conclusion that the aggressor’s right to life continues to be valid—close to the time of his assault, during it and after it—and that the justification for private defence cannot be found in such a ‘forfeiture’.206
199 As Fletcher notes, this theory gained support in Germany, England and the United States, but only became dominant in the common law and not in continental law. See Fletcher (1973), n 1 above, at 377. From a historical viewpoint, Blackstone’s school of thought is famous. According to Blackstone, the right to self-defence by lethal force is dependent on the aggressor having committed a capital crime by means of his attack. See ibidat 377–78; and similarly Omichinski, n 31 above, at 1450.
200 See Kadish, n 34 above, at 883ff.
201 See Omichinski, n 31 above, at 1449ff. See also Uniacke, n 28 above, at 196ff.
202 See Omichinski, n 31 above, the references that appear in nn 20 and 19 (correspondingly).
203 See Kadish, n 34 above, at 883.
204 See Fletcher, n 74 above, at 1380ff.
205 See Ch 3.10 below.
206 For expressions that are in this form in particular, see, eg, Williams, n 13 above, at 26 (raising the possibility that if the purpose of the law is deterrencethen the guilt of the aggressor excludes him from the protection of the law); Ashworth, n 183 above, at 283 (forfeiture of the right to life).
Another variation of the theory that is the subject of our discussion, and a stronger one, is that according to which the aggressor does not lose his rights at all, but because of his guilt, we reduce the value of his interests to a certain extent when balancing the competing interests at stake. This is, in effect, a variation of the justified ‘necessity’ defence, known also as the ‘lesser evils’.207 A person who chooses to start a conflict is entitled to less protection in comparison to the inno- cent victim. Fletcher describes this in another manner—as a partial waiver by the aggressor of his interests, where the extent of this waiver stands in a direct pro- portion to the extent of his guilt.208However, even if the waiver is partial, I am still convinced that it is fictitious. Therefore, the reduction of the value of the aggres- sor’s interests cannot be grounded upon this waiver, but must be based directly on his guilt. It is also important to emphasise that the reduction of the value of the aggressor’s interests is not valid ‘in rem’ with regard to everyone, but solely with regard to the interests of the person who is attacked.209
What is the dominant factor—the aggressor’s culpability, the very fact of his attack or both of these? In the legal literature there is sometimes mention of guilt alone, and sometimes of guilt connected to the ‘wrongful act’ of the aggressor.210 In the philosophical literature there is a dispute concerning this matter, which reaches its peak in the exchange of articles between Montague and Wasserman.211 The essence of this argument is that Montague based the rationale for private defence on the fact that the aggressor forces a choice between lives by the very fact of his attack, in conjunction with the aggressor’s guilt which, in his opinion, is the important factor.212
In the opinion of Wasserman, Montague emphasises the guilt of the aggressor far too heavily, and does not consider the tremendous importance of the very fact of the attack from a moral standpoint. We will need to consider this dispute
207See extensively in section 1.5.6 below and see Robinson (1984), n 37 above, vol 2 at 70.
208See Fletcher (1973), n 1 above, at 377–78.
209Thus, eg, Enker describes this approach:
Others condition the right to self-preference on the existence of the defender’s moral advan- tage. They usually find this moral advantage in the fact that the aggressor commits an offence by his attack, while the person attacked is innocent. (Enker, n 117 above, at 56; emphasis is added)
210See and compare: Kadish, n 34 above, at 883 (‘by his culpable act’); Williams, n 13 above, at 26 (the aggressor’s guilt); Fletcher, n 72 above, at 305 (‘wrongful conduct’); Kadish, n 96 above, vol 3, at 944 (written by Fletcher) (two factors—the aggressor’s guilt and the wrongdoing); Omichinski, n 31 above, at 1450 (‘fault or misconduct’).
211See P Montague, ‘Self-Defense and Choosing between Lives’ (1981) 40 Philosophical Studies207;
the responding article by Wasserman, n 181 above; and the ‘counter-response’ article by P Montague,
‘The Morality of Self-Defense: A Reply to Wasserman’ (1989) 18 Philosophy and Public Affairs81; and also Montague, n 181 above; Ryan, n 196 above; Gorr, n 191 above.
212In fact, Montague’s theory (that he named the ‘distribution thesis’—Montague (1989), previous n, at 82) is wider and provides that if people find themselves in a situation where a certain harm must occur, then those that are innocent of any crime are entitled to choose that the guilty ones will be injured, and a third party must so choose as well.
further below—in the context of the discussion of the rationale based on the aggressor forcing a choice between lives.213
There is crucial value and moral significance regarding both the attack of the aggressor and his guilt. In fact, this is the primary uniqueness of private defence—
it is comprised of both the attack itself and the aggressor’s culpability. Great moral significance should be attributed both to the fact that the defensive force is directed towards the aggressor himself (a matter which gives significant expression to the important factor of the aggressor’s guilt) and also to the fact that the aggres- sor can cease his attack and render the defence unnecessary (a matter that gives significant expression to the important factor of the attack itself). In effect, the fac- tor of the attack is taken as a given to such an extent in the legal literature, and essentially constitutes an integral part of the definition of the situation of private defence itself, that scholars do not always bother to discuss it. There is therefore sometimes a concentration on the guilt of the aggressor alone.214
It is extremely interesting to examine the words of Locke, where the rationale that is the subject of our discussion may be found215:
The state of war is a state of enmity and destruction; and therefore declaring by word or action, not a passionate and hasty, but a sedate, settled design upon another man’s life, puts him in a state of war with him against whom he has declared such an intention, and so has exposed his life to the other’s power to be taken away by him or any one that joins with him in his defence . . . For by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred; and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion; because such men are not under the ties of the common law of reason, have no other rule but that of force and violence . . . In an interesting analysis of these words of Locke, Montague points out three con- nected but separate justifications for private defence: (1) Moral duties are mutual and do not exist with regard to one who excludes himself from civilisation; (2) The aggressor causes a lessening of the value of his interests; (3) If someone has to suf- fer—it should be the guilty one, not the innocent. These justifications concern two of the principal variations of the theory that is the subject of our discussion and were presented above—ie, the aggressor’s forfeiture of his rights and the devalua- tion of these rights. As mentioned, the second variation is the more solid of the two.216It is interesting that the words of Locke include several completely differ- ent ideas bound together as a whole. They are therefore also quoted to support an
213 See section 1.5.8.5 below.
214 It is very common to talk about ‘illegal attack’, and this expression is accurate.
215 John Locke, The Second Treatise of Government, Ch. III.
216 See and compare the position of Gordon (n 1 above, at 754–57), who contradicts Hume by expressing the opinion that the rationale is not that the one who commits a crime loses the defence of the law (as Hume claimed), but that in a situation of private defence—as opposed to the situation of
‘necessity’—the law provides a solution based on the legal guilt and the legal innocence of the parties involved.
entirely different theory—that will be discussed below—which sets forth that the decisive factor is the autonomy of the attacked person.
What are the central217implications of the theory that focuses on the aggressor’s culpability? The two main implications are: (1) There is a relatively strong require- ment for proportion between the expected injury to the one attacked if private defence is not performed and the force used within the framework of private defence (or—in another variation—the injury to the aggressor within the framework of the defensive action), since the fact that the aggressor’s interests are devalued certainly does not nullify them. (2) There is no private defence against an innocent aggressor.
In Dressler’s opinion,218an important implication of this theory is that the determi- nation that the act of private defence is ‘right’—in other words: that the attacked per- son has a strong right to use defensive force—remains unfounded, since this theory only supports the determination that his behaviour is ‘tolerable’. This is because the attacked person is allowed to defend himself—since the aggressor has lost his right—
but nothing is determined with regard to his right to defend himself. It is clear that this characteristic which is suggested by Dressler is indeed correct if we refer to the
‘forfeiture’ variation of the theory that is the subject of our discussion, but it is greatly weakened if we base ourselves on the other above-mentioned version—that which carries out a balance of interests within the framework of the ‘lesser evils’.
A number of scholars who rejected this theory raised several principal argu- ments.219One counter-argument sets forth that the theory does not explain why, although the aggressor loses his right to live during his attack, he is nevertheless for- bidden to use defensive force after the attack is terminated, given the customary requirements for necessity of the defensive force and for the (present) existence of danger. Thomson220suggests three independent possible solutions for this: (1) Because of utilitarian considerations, society forbids the attacked person to kill the aggressor after his attack is over; (2) The termination of the attack demonstrates—
in retrospect—that, in the specific case, it was never necessary at any stage to kill the aggressor; (3) Once he has ceased his attack, the aggressor is again entitled to the
217It is noted that, at this point, I do not consider the characteristic implications of all theories of justification of private defence, such as those concerning the involvement of a third party—implica- tions that do not particularly distinguish this theory from others. Omichinski considers additional implications of the theory in comparison to those that I discuss below. In her opinion, inter alia, there is no requirement for necessity and no demand for a retreat (see, correspondingly, Omichinski, n 31 above, at 1456 and at 1457). I cannot accept these two determinations, but since no reasoning is pre- sented for them it is difficult to challenge them here. I will only note at this stage that the duty to retreat may and must—as we shall see below—be derived not only from the demand for necessity but also and principally from the demand for proportion—a demand whose existence even Omichinski does not dispute, within the framework of this theory as well (ibidat 1454).
218See Dressler, n 32 above, at 85ff.
219For additional—in my opinion, secondary—counter-arguments see Omichinski, n 31 above, at 1465ff; Kadish, n 34 above, at 884; Wasserman, n 181 above, at 358–59; Gorr, n 191 above, at 266; Ryan, n 196 above, at 511.
220See Thomson, n 29 above, at 34ff.
right that he lost before. With regard to this last matter, Thomson notes that it may be said that the aggressor only ceases to hold his right during the attack, in distinc- tion to saying that he loses it completely. Another similar possible solution is to say that the right of the aggressor recedes before the right of the person attacked—
because of the guilt of the aggressor—but only if several accumulative conditions are fulfilled, one of which is the existence of (present) necessity.
Another principal counter-argument, that was mentioned above, is that the theory—that focuses on the aggressor and his guilt—only deals with the freedom of the attacked person to kill the aggressor and does not deal with any sort of right of his to do so. Thus, Kadish221claims that if the law forbade the killing during the act of defence, it would perhaps be unjust, but would not be contradicted by the theory of forfeiture. These two counter-claims are, in my estimation, relatively weak in light of the variation of this theory that does not involve forfeiture, but involves a devaluation of the aggressor’s interests—a devaluation that takes place within a framework similar to that of the ‘lesser evils’.
The central counter-argument that is presented in the literature—both legal and philosophical—is that the entire theory that is the subject of our discussion col- lapses in light of the case of the innocent aggressor, since it is clear that in such a case it is impossible to justify private defence by basing it on the guilt of the aggres- sor (which does not exist). It should be mentioned that scholars see this as the cen- tral and decisive deficiency of the theory—a deficiency that is a cause, and often the sole cause, for its negation. Thus, for example, Fletcher wrote222(by the expression
‘self-defence II’ he means the theory that is the subject of our discussion):
Thus it seems that self-defence II may provide a perfectly sound rationale of self-defence in the typical case, but it fails to give an account of our intuition in the case in which the aggressor’s conduct is excused by reason of insanity or by other acknowledged excusing conditions.
However, in my opinion, the case of the innocent aggressor does not in any way refute the theory that focuses on the aggressor’s culpability, and for the simple rea- son that this case does not fall within the bounds of private defence at all. Because of the tremendous significance that is attributed to this case, which serves in the literature as a general test-case for the rationale of private defence, I shall deal with it extensively in the following section. At this stage, I will refer to the other facet of Fletcher’s statement that is quoted above. From Fletcher’s words, it appears that if it were not for the difficulty that is presented by the case of the innocent aggressor,
221 See Kadish, n 34 above, at 884.
222 See Fletcher (1973), n 1 above, at 378; and see also Fletcher, n 72 above, at 305 and Fletcher, n 74 above, at 1379. For similar expressions of other scholars, who also see the case of the innocent aggressor as refuting the theory based on the aggressor’s guilt, see, eg, Kadish, n 34 above, at 884; MS Moore, ‘Torture and the Balance of Evils’ (1989) 23Israel Law Review280 at 321; Thomson, n 29 above, at 36; Ryan, n 196 above, at 511.
the theory based on the guilt of the aggressor would be a satisfying rationale for private defence. My position, which will be presented more widely below, is that despite the great value, moral and legal importance of the factor of the aggressor’s guilt,223to base the rationale for private defence on this factor alone would be to miss a substantial part of the essence. There are additional extremely significant factors that should be taken into account, in particular, the social-legal order,224 which operates strongly for the justification of private defence. Accordingly, the guilt of the aggressor—the subject of our discussion—is an essential factor in the justification of private defence, but it is not alone a sufficient factor for this purpose.225