In the previous sections,178I presented private defence as a justification as opposed to the alternative view of private defence as an excuse. In the present section, I shall attempt to establish its ‘justified’ character, not in a negative way—as preferable to
174 In order to remove all doubt, I would like to clarify that the characterisation of justification as morally justified does not mean the artificial grant of moral justification to acts that are not appropri- ate, but rather the ‘cleansing’ of justification while restricting it, and excluding the acts that lack justification that are sometimes attributed to it.
175 See Robinson (1984), n 37 above, vol 1 at 109–10; Dressler, n 32 above, at 68, 80, 84; Robinson (1975), n 37 above, at 275, 284; Finkelman, n 25 above, at 1285; and Fletcher (1978), n 1 above, at 767.
176 See Kadish, n 34 above, at 881; Omichinski, n 31 above, at 1468 fn 106.
177 With regard to American law see Kadish, n 34 above, at 881; with regard to English law see Williams (1982), n 1 above, at 739; and with regard to German law see Silving, n 45 above, at 392.
178 See sections 1.1; 1.3; 1.4 above.
being characterised as an excuse—but in a positive way—based on a convincing rationale that has a strong moral foundation. As mentioned, in our times, most principal legal systems179, legal scholars180 and philosophers181, see private defence as a justification. However, as a significant opponent of the distinction between a justification and an excuse—Hall182—commented: ‘We must ask, why justified?’. Why, is it that although the act would generally be forbidden, in special circumstances this same act is not only permitted but also even desirable? This significant question that is considered in this section is, in my opinion, the central question of the entire issue of private defence.
In this section, I shall discuss first of all and in breadth, the principal and accepted approaches regarding the rationale of private defence as a justification.
Within this discussion I shall refer to the accepted test-case, known as the question of the psychotic aggressor (specifically, and the innocent aggressor, in general).
Following this, I shall briefly examine the various additional ideas that have been proposed in order to justify private defence. Finally, I will propose the desirable rationale for private defence. However, before we embark on this path, we must take note of a question that may be perceived—if only by a few—as a preliminary question: what is the implication of the right to life—especially if it is perceived as an absolute right—for the use of deadly defensive force?
There is no dispute that the right to life is one of the most basic human rights.
This is established in many legislative acts and documents, both national and international183, and no less important—it is accepted by all the scholars of our generation184. Is it therefore possible to justify private defence that involves force leading to a fatal result? The nature of rights and of values is that they sometimes clash with one another, and then they must be qualified, or at least some of them.
However, it is sometimes claimed that the right to life is an absolute right.
179See, eg, the words of Williams on the situation in English law; the words of Kadish on the situa- tion in American law; and the words of Silving on the situation in German law (the references for these writings appear in n 177 above).
180Comments regarding this matter were provided, inter alia, by Williams (1982), n 1 above, at 739 and by Omichinski, n 31 above, at 1447. See also, eg, R Card, R Cross, and PA Jones, Criminal Law, 14th edn (London, 1998), at 624. On this subject, it is interesting to note, that even the scholars who do not accept the distinction between justification and excuse recognise the ‘justified’ nature of private defence.
181See, eg, D Wasserman, ‘Justifying Self-Defense’ (1987) 16 Philosophy and Public Affairs356;
P Montague, ‘Punishment and Societal Defense’ (1983) 2 Criminal Justice Ethics30 at 31ff and CS Nino, ‘Does Consent Override Proportionality?’ (1986) 15 Philosophy and Public Affairs183 at 185.
182See Hall, n 37 above, at 645.
183See, eg, Art C of the Universal Declaration of Human Rights 1948; Art 6 of the United Nations Proclamation, 1976 and Art 2 of the European Convention on Human Rights and Fundamental Freedoms (it should be noted that this article explicitly recognises the right to private defence—even with lethal force—albeit with qualifications—see AJ Ashworth, ‘Self-Defense and the Right to Life’
(1975) 32 CLJ 282 at 288.
184This was noted, eg, by Ashworth, previous n, at 282; Fletcher, n 74 above, at 1372; Kadish, n 34 above, at 871. See also, in detail, HA Bedau, ‘The Right to Life’ (1968) 52 Monist550.
What is an absolute right? In his article entitled ‘Are There Any Absolute Rights?’185Gewirth defines an ‘absolute right’ as a right that does not withdraw before any other right when a conflict exists between them. My opinion is that absolute rights do not exist at all. For our present discussion, the determination that the right to life is absolute means that it is forbidden to infringe this right in any circumstances and for any reason at all. This leads, inter alia, to the negation of the legitimacy of taking the life of another person in war (including defensive war), in a revolution (including a revolution against an oppressive and tyrannical regime), and also in private defence. This type of pacifism is indeed consistent, but it cannot reasonably be accepted.186
Kadish discusses this issue extensively.187 Following his explanation of the immense importance of the right to life, he notes that there is conflict between rights, and that every society has to cope with the difficult decision of determining when the lives of some individuals must be superseded by the important interests of others. He also notes that there are exceptions based on value judgment, accord- ing to which intended killings are ‘right’ in certain situations: the death penalty, law enforcement by authorised personnel and private defence. The opinion of Kadish is, therefore, that the sanctity of life is not always the crucial factor, and he bases this on a possible understanding of the principle of the sanctity of life in a weaker sense—not an absolute preference for life and not a total prohibition of intentional killing, but an assumption that exists favouring life and opposing killing. It appears that no one would dispute this assumption, but as Kadish him- self notes, not much can be learned from it.
Ashworth made an important contribution to the discussion of this issue.188 According to his view, it is not only that the right to life does not negate the right to private defence, but it actually strengthens it, since:
If a legal system is to uphold the right to life there must be a liberty to use force for the purpose of self-defence.189
However, in philosophical literature, it is acceptable to negate the idea that the right to life directly creates a right to private defence.190An interesting opinion is expressed by Gorr,191who claims that the situation is not that other rights, such as
185 See A Gewirth, ‘Are There any Absolute Rights?’(1981) 31 Philosophical Quarterly1.
186 See I Primorac, ‘On Capital Punishment’ (1982) 17 Israel Law Review 133 at 141.
187 See principally the interesting article by Kadish, n 34 above, entitled ‘Respect for Life and Regard for Rights in the Criminal Law’, at 871–81.
188 See principally Ashworth, n 183 above, entitled ‘Self-Defence and the Right to Life’, at 282–83, 288.
189 Ashworth, n 183 above, at 283. This idea was also presented in the explanatory wording for the Canadian bill, Law Reform Commission of Canada, Report Recodifying Criminal Law 1987, rev and enl edn, no 31, (Ottawa, 1987) at 37.
190 See, eg, Wasserman, n 181 above, at 362.
191 See, principally, M Gorr, ‘Private Defense’ (1990) 9 Law and Philosophy241 at 268.
the right to private defence, are derived from the right to life, but that the other rights create the right to life.
From the philosophical literature, the work of Thomson on the subject of our discussion deserves a mention.192She denies the argument that the right to life is an absolute right, basing this in particular on the existence of cases in which ‘a right may be infringed without being violated’.193Fletcher also notices this pos- sible distinction, and suggests drawing a distinction between infringement of the right itself—harm that may be caused, for example, by the state—and infringe- ment of an interest (only) of a certain person in the course of the activity of another person and as a result of that activity.194
In the end, as is noted in the philosophical literature by Gorr195:
Extreme pacifists aside, virtually everyone agrees that it is sometimes morally permissi- ble to engage in . . . ‘private defense’.
It should be mentioned that even Ryan,196 who admits to being a pacifist, expresses his opinion that the claims of pacifism do not negate the possibility that justification exists for private defence (by lethal force). Instead, they only dispute the validity of certain justifications197that were proposed for it, and in so doing contribute to enhancing the value of human life.
To conclude this discussion, my opinion is that while the right to life is not an absolute right and does not negate the possibility of lethal defensive force as part of the framework of private defence, it is sufficiently strong to greatly restrict the justified use of lethal force, acts to strengthen the demands for proportionality and necessity, and requires separate consideration for a category of defensive deadly force.198
192See Thomson, n 29 above, entitled ‘Self-Defense and Rights’ (especially at 40ff.).
193Thomson, n 29 above, at 41. See also the discussion of ‘The Theory of Specification’ that appears in section 1.5.8.8 below.
194See (correspondingly) Fletcher, n 74 above, entitled ‘The Right to Life’, at 1385ff. and 1373ff.
Fletcher also negates the claim—that I too think is mistaken—that the right to life is only a prima facie right (ibidat 1371).
195See, principally, Gorr, n 191 above, at 241.
196See CC Ryan, ‘Self-Defense, Pacifism, and the Possibility of Killing’ (1983) 93 Ethics508 at 508 and at 520 (correspondingly).
197On this matter it should be noted that Ryan’s analysis lacks consideration of some central theories that justify private defence, such as that which justifies private defence on the basis of the social-legal order.
198These matters will of course be discussed further on, within the framework relating to the above requirements and categories. Note should also be taken of the factors proposed by Gewirth (n 185 above) that should be taken into account when there is a conflict between rights: (1) the relative importance of the right; (2) the extent of injury to the right; (3) the probability of occurrence of the danger; (4) alternative means for the prevention of the danger or its reduction.