A historical perspective is crucially important in order to understand the law in our times. This perspective has significant importance for many of the issues of private defence, and it will be useful further on. In this section, I will therefore briefly discuss the general perception of private defence as it was viewed in antecedent legal systems.
The general historical process (in a number of legal systems) that is of interest is the transition from punishment for acts that were performed as private defence—via the grant of an excuse—through the establishment of a justification.
It is generally assumed that before the formation of human society concern for personal survival was predominant. Force reigned supreme. Therefore, with the unification of society, one of the first actions of the legislator was to suppress all forms of taking the law into one’s own hands, including private defence. The clas- sical means used to achieve this goal was to impose strict liability. In previous eras
110 See Greenawalt, n 37 above, at 294.
111 See the text accompanying n 73 above.
112 See Dressler, n 32 above. at 98.
113 See Ch 3.10 below.
114 See n 80 above and the accompanying text; and n 1097 below. Compare this with n 50 above.
115 Fletcher himself suggests that no distinction should be made between an offence and a defence with regard to the issue of proof—see Fletcher (1978), n 1 above, at 545ff.
the recognition of defences was viewed with much apprehension out of fear that this would weaken the validity of prohibited norms. Only in later periods—with the strengthening of a central governing authority—was it possible to do away with strict liability and to recognise private defence, at first as an excuse and after- wards as a justification.116
In light of this accepted historical model, which as we shall see below provides a certain explanation for the development of private defence in old English law in particular and in the common law in general, it is especially interesting to find evi- dence that ancient Jewish law recognised a private defence that had strong charac- teristics of justification117. As Enker writes in his article ‘Three Opinions in Jewish Law Concerning the Theory of Self-Defence’118:
In Jewish law, as well, the sages deliberated on these principal questions [regarding the rationale of private defence, BS]. Jewish law determines that one life should not be pre- ferred over another. Thus the question is immediately and automatically raised, why should the attacked person be allowed to kill the aggressor in order to save himself.
And following a comprehensive review of three different schools of thought119 that exist in Jewish law, he concludes120:
We have found no expression in the literature of traditional Jewish law of the perception that appears in modern literature basing private defence on the right of a person to life and his own autonomy . . . Alongside the moral consideration, that the life of the one who is pursued is preferable to the life of the pursuer because of the offence involved in the act of pursuit, stands the utilitarian objective of saving the life of the one who is pursued. Permission is given to kill the pursuer when these two factors are combined.
[This is the Rabbi Meiri school of thought, BS.]
A dominant characteristic of justification that is to be found in private defence in Jewish law is the approach of Jewish law to the protection of another121. A third party is required to intervene in order to save one who is pursued from the hands
116For this historic process see and compare: Brown, n 25; Rosen, n 37 above, at 26; Finkelman, n 25 above, at 1287; Diamond, n 30 above, at 673, fn 1.
117Since private defence in Jewish law has been the subject of much research and writing, especially in the last few years, and for an additional reason—which is more substantial—that I shall immediately explain, no comprehensive survey of this subject will be presented here. See Arnold Enker, ‘Three Opinions in Jewish Law Concerning the Theory of Self-Defence’ (1991) 2 Plilim55 (Hebrew); Enker, n 89 above (especially chs 5 ‘A Person who Kills because of an Illogical Mistake in Self Defence’, 7
‘Killing out of Duress and Necessity in Jewish Law’ and 8 ‘The Borderline between Necessity and Self Defence in Jewish Law’); Finkelman, n 25 above; George P Fletcher, ‘Punishment and Self-Defense’
(1989) 8 Law and Philosophy201.
118Enker, previous n, at 56–57 (my translation, BS).
119These are the Rashi (Rabbi Shlomo Itzhaki) school of thought that emphasises the punishment that the criminal deserves, the Maimonides school of thought that emphasises saving the one who is pursued and the Rabbi Meiri school of thought that combines both of the former—see Enker, above n 117, at 59ff.
120Enker, above n 117, at 90–91 (my translation, BS).
121See Finkelman, n 25 above, at 1263ff.
of a pursuer—a requirement that, of course, assumes the existence of a right to intervene, which is a characteristic of justification.
This relationship of Jewish law to the defence of another brings us to the difficulty of simple and direct deduction from the Jewish law for current law. As many scholars noted122, ‘ Jewish law, because it is religious law, not only discusses defences . . . but also duties. It is not only that a stranger is allowed to kill a pur- suer, but that he must do so. This is a duty imposed on all who are capable, to save the pursued person even at the cost of the life of the pursuer’.123
Such a general and sweeping duty is not acceptable in modern law124. Moreover, there are interpretations of the ‘rodef’ (pursuer) defence (which con- stitutes the central source125for private defence in Jewish law) that raise doubts with regard to our ability to learn much from the ‘rodef’ law for the matter herein.
The Mishnah (the collection of fundamental principles of Jewish law that were codified in approximately 200 CE) in the Sanhedrin tractate says: ‘Those who should be saved by taking life are: the one who pursues another to kill him, the one who pursues a male, and the one who pursues a betrothed maiden’.126 It appears—and this is indeed the common interpretation—that the Mishnah refers to the rescue of the one who is pursued. However there are also interpretations according to which the Mishnah, in effect, refers to the salvation of the pursuer.
Thus, according to the interpretation of Rashi (Rabbi Shlomo Itzhaki)127—it con- cerns the saving of the pursuer from the perpetration of the offence, seen from the aspect of ‘It is better to die innocent than to die guilty’.128An additional charac- teristic that may perhaps exist with respect to private defence in Jewish law—a cer- tain element of punishment for the aggressor that already appears in the private defence act itself—is discussed below129.
122 See, eg, the words of Justice Elon, Affangar v the State of Israel PD. 33(3)141 at 151.
123 This quotation (my translation, BS) is from A Varhaftig, ‘Self Defence in Crimes of Murder and Injury’ (1977) 81 Sinai 48 (Hebrew) at 48. See also D Frimer, ‘Defining the Right of Self-Defence’
(1983) 31 Or Hamizrach325 (Hebrew) at 327ff.
124 Although in Israel the legislator has lately moved to a certain extent in this direction—see the
‘Thou shalt not stand against the blood of thy neighbour’ Act, 1998 (prohibition of standing by passively while a person is in danger). For a discussion of the possible duty to save, see the text accom- panying nn 993–94 below and the references therein.
125 For other sources such as this, such as ‘in hiding’:
If the thief is caught while breaking in and is struck so that he dies, there will be no blood- guiltiness on his account. But if the sun has risen on him, there will be bloodguiltiness on his account. (Exodus 22: 2–3, New American Standard Bible)
(An Aspect of Self-Defence by Householders)—Enker, n 89 above, at 151.
126 Mishnah, Sanhedrin 8, 7; Enker, n 117 above, at 59ff.
127 For a wider discussion of this interpretation see Enker, n 117 above, at 59ff. For the idea of sal- vation of the pursuer himself see also, Finkelman, n 25 above, at 1273ff.
128 An additional difficulty is the essential condition that the pursuer is attempting to perform an offence punishable by death. With regard to this difficulty see Finkelman, n 25 above, at 1244ff.
129 See section 1.5.8.2 below.
It is interesting to note that we can already find many of the conditions that are required for the establishment of private defence today in the ancient Jewish law.
Thus, for example, we find requirements in Jewish law for necessity130, immedi- acy131and proportionality132. It should especially be noted that we find complex and interesting frameworks there for issues that are still being debated today in modern law, such as the issue of putative defence.133
To conclude this short journey into the world of Jewish law, it should be empha- sised that the description given above does not presume to provide the reader with a comprehensive picture of private defence in Jewish law, but it is intended for a far more modest purpose: to try to deduce something from it for our present dis- cussion. As I have mentioned, we shall occasionally return to it further on and draw additional insight from it.
To a certain extent, English law134, as mentioned, provides an example of the development of private defence from punishment via excuse135 through justification. At first, so it seems, under the ancient rule of strict liability, every killing of a person resulted in punishment—including a killing in circumstances of private defence. The punishment was most drastic: the death penalty.136Later, in the Middle Ages, the exception to criminal liability for ‘prevention of crime’ was emphasised. Self-defence was extremely restricted, and intended in principle for those who, because of their guilt, were not entitled to use the force that was permitted for the prevention of crime.137As noted above, in the discussion on the distinction between ‘justification’ and ‘excuse’,138a distinction existed then that is similar to that which exists today—a distinction whose importance was immense:
killing in circumstances of justification led to a full acquittal while killing in a sit- uation of excuse led to the loss of life and property of the actor. Although the actor could be expected to receive a pardon, he was, indeed, also sorely in need of it, since the judicial process itself terminated with his conviction. The pardon did not prevent the loss of the actor’s property but only related to the loss of his life. There
130Enker, n 89 above, at 163.
131Affangar v the State of Israel PD 33(3)141 at 150ff.
132AZ Ben-Zimra, ‘Killing out of “Necessity” in Hebrew Law and in Israeli Law’ (1976–77) C–D Hebrew Law Annual 117 (Hebrew) at 142ff.
133Enker, n 89 above, at 151–63 and especially at 163.
134For a relatively broad historical survey of English law see Beale, n 40 above, at 567ff; Perkins and Boyce, n 85 above, at 1112, 1120ff; Gordon, n 1 above, at 751ff; RUSSELL, n 40 above, at 434ff; Kenny’s Outlines of Criminal Law, 19th edn by JWC Turner (Cambridge, 1966) at 141ff; Baum and Baum, n 1 above, at 3ff; Brown, n 25; Blackstone, n 40 above, Vol. IV, at 176ff; Perkins, n 40 above, at 137ff;
KJ Aiyar and RL Anad, Law of Private Defence, 2nd edn rev by CU Menon (Allahabad, 1964) at 5–10;
Rosen, n 37 above, at 25ff.
135Regarding the existence of a stage in the development of private defence when it constituted an excuse alone, not only in English law but also in French and German law, see Fletcher (1978), n 1 above, at 857.
136For a different description of this matter see Blackstone, n 40 above, vol 4 at 188.
137See, eg, Perkins and Boyce, n 85 above, at 1112.
138See n 40 above and accompanying text.
is a well-known adage regarding this matter that whoever killed in self-defence
‘deserved but needed a pardon’.139
According to the classification that Blackstone sketched in the historical survey in his book,140the category of ‘justifiable homicide’ included three cases:
(1) ‘unavoidable necessity’; (2) ‘advancement of public justice’; (3) ‘prevention of any forcible and atrocious crime’. The category of ‘excusable homicide’ included two cases: (1) ‘homicide per infortunium, or misadventure’ and (2) ‘homicide in self-defence, or se defendendo’. Another name for this last situation was ‘chance- medley’.
The first analytical treatment of private defence was, it appears, provided by Foster141. Foster made a sharp division between the killing in self-defence of an aggressor who intended to murder, and the killing in self-defence that became necessary during a fight of the ‘chance-medley’ type. He classified the first actor as
‘perfectly innocent and justifiable’ and the second as ‘in some measure blameable and barely excusable’. Based on Foster’s analysis, with supplementation from additional sources, it is acceptable to assume142that a distinction was drawn then between three principal situations: (1) An innocent person under a murderous attack—this person is not required to retreat and is entitled to use lethal defensive force; (2) A participant in a fistfight, or someone who participates by his own fault in such a fight, who is surprised to discover that his opponent has resorted to the exertion of lethal force. This person must ‘retreat to the wall’ unless he is within his ‘castle’, and if he kills—as a last resort—this will be an excuse and not a justification; (3) The aggressor in a murderous attack or a participant in a fight with prior intent to kill—this latter loses any right to self-defence in that same event, even if he finds himself during the fight in a very difficult situation.143
As stated, self-defence—the ‘se defendendo’—was classified merely as ‘excuse’
and not as ‘justification’. However, it is necessary to note that some of the situa- tions, whose suitable place is in the exception of private defence, were treated in English law within the framework of the ‘prevention of crime’ exception, and thus in effect gained the proper status of justification. Blackstone144tried very hard to justify the classification of private defence in English law as merely an excuse, alongside ‘misadventure’. In his opinion, what is common to the two categories is the guilt and the punishment. The value of a person’s life is so important that the law identified even the person who killed while defending himself as having a certain amount of guilt, inter alia in order that the citizens would learn to abhor
139 See, eg, Brown, n 25 above, at 584.
140 Blackstone, n 40 above, vol 4 at 176.
141 See, eg, Perkins and Boyce, n 85 above, at 1120ff.
142 See, eg, Perkins, n 40 above, at 138ff.
143 In a later period, Beale—in a minority opinion—disputed this classification and its implications for the duty to retreat. His very interesting opinion on this matter is presented below, as part of the dis- cussion on the duty to retreat—see the text below that commences with the reference to n 794.
144 Blackstone, n 40 above, vol 4 at 186ff.
the killings. In order to provide basis for this opinion, Blackstone ‘enlists’ Lord Bacon, who speaks of ‘se defendendo’ as ‘necessitas culpabilis’, and refers to antecedent legal systems in which various sanctions were imposed on one who killed while defending himself. However, as was pointed out by Russell in his well- known book145, Blackstone’s explanations are far-fetched, and in fact the source of the law of ‘se defendendo’ was in the ancient rule of strict liability. The assump- tion regarding the ‘se defendendo’ was that the defender actually had no real choice because of the survival instinct146, an assumption that constituted a possible ratio- nale for a real excuse, which is exempt from punishment. However, since taking the law into one’s own hands was contrary to the needs of society in the Middle Ages, or, at least was perceived as such, it was determined that the act could only be pardoned.
In the 14th century, the pardon became a purely formal matter, and was granted as a matter of routine. It is described as ‘pardon of course’ that was given even without any involvement whatsoever by the king himself.147It is important to note that the pardon did not apply to the loss of property of the killer and he was also susceptible to a claim for payment of damages to the relatives of the late aggressor.
It was only in 1532, following continuous conflict in this matter between the mem- bers of the Bar (who demanded a full exemption) and the members of the Bench, that the famous law known as ‘Statute 24 Henry VIII’ was enacted. This law abol- ished the forfeiture of the defender’s property, although only if he had killed an aggressor who had attempted to rob or murder him. However, due to the gener- ous manner in which this law was interpreted, the formal pardon died a natural death between the 15th and 16th centuries.148
Another law later replaced this law—‘9 George IV’—which established a simi- lar arrangement.149 Eventually the differences between ‘justified homicide’ and
‘excusable homicide’ were annulled, except for the small difference that remained regarding the duty to retreat.150The perception of private defence as justification, which is accepted in our times, was crystallised in English law only during the modern period.151
145See Russell, n 40 above, at 435ff.
146See, with regard to this matter, Blackstone, n 40 above, vol 3, at 3ff and Rosen, n 37 above, at 26.
147See, eg, Brown, n 25 above, at 587ff.
148Coke already did not bother to relate to it and Hale sufficed by only mentioning it—see Brown, n 25 above, at 589.
149See, eg, Kenny, n 134 above, at 144.
150See, eg, Kenny, n 134 above, at 144. This difference is discussed below as part of the discussion on the duty to retreat—see the text following the reference to n 810.
151Buds of this can be found in Foster, who wrote in the 18th century—see Brown, n 25 above, at 590. On the historical development in continental law see, eg, Silving, n 45 above, at 385, 392.