If the right and reasonable impulse to defend ones’ self against attack cannot be understood without a theory, then we are all lost.

I think this is a very shallow look at the utilitarian defense of laws that provide for a right to self-defense. Perhaps it is true that the act of self-defense itself may not be utile, if for the purposes of thought experiment the person attacking is Bill Gates and the person acting in self-defense is somebody living a horrible life. However, the utility of the act itself is not the only consideration when looking at the utilitarian justification for a law which allows an action.

A utilitarian analysis of laws providing for self-defense requires one to look at a comparative perspective. Would society derive more utility by criminalizing self-defense? Bentham famously posited that all punishment is mischief, because of the costs it imposes on society, the offender, the offender’s family, etc. Therefore, under a utilitarian framework, criminalizing ANY action requires not just that the action itself is disutile, but that the consequences from criminalization would outweigh the harms of the action. Typically the consequences that are said to justify criminalization are deterrence, incapacitation, rehabilitation, and retribution. Looking at the effect of a hypothetical ban on self-defense through this justificatory framework easily demonstrates why it is utile to allow acts of self-defense.

First, even if acts of self-defense are not utile, rarely would the threat of criminal sanction deter someone from acting in self-defense. If a person is in threat of severe bodily harm, even the possibility of prison would not be a deterrent from acting in a way to preserve one’s life. Further, acts of self-defense are more an act of reflex and impulse than “crimes of passion,” further mitigating any beneficial deterrent effect. On the contrary, even if one were to posit that the law had a deterrent effect, it would be a harmful deterrence, as criminals would be marginally less deterred from assaulting a victim if the criminal had the knowledge that the person would be deterred from acting in self-defense.

Second, incapacitation, a costly burden on society, is not justified in a case of self-defense, a situation in which the person being attacked almost certainly did not act voluntarily and is therefore unlikely to offend again and be a danger to society. Once again, on the contrary, incarceration of those who acted in innocent self-defense would likely only harm society by hardening those people and causing an outcry. Rehabilitation, too, is clearly not a possible benefit from criminalizing self defense.

Finally, retribution, which from a utilitarian’s perspective is the positive feeling society feels from punishing those who are guilty of crimes, would be counteracted by a criminalization of self-defense. Those who act in legitimate and reasonable self-defense are in their situation as the result of pure moral luck, and but for their attacker, would not be under threat of criminal sanction. Our moral intuitions are so aligned against the punishment of those who act in self-defense that no benefit of retribution (“catharsis” or otherwise) would be gained by putting such people behind bars.

The utilitarian justification of criminal law provides a compelling and robust defense of the legal status of self-defense. However, it requires an evaluation of the public policy, rather than merely the act of self-defense itself. While there are other shortcomings of the utilitarian theory with regards to criminal justice, a defense of self-defense is not one of them.

Firstly the threat must be real and immediate (to justify the use of force). If a person has not real way to avoid the conflict (some states demand this) the defender has to do whatever it takes to reasonably survive.

This is the issue I think about, what will it take to win and ensure safety. I can use the least amount of force I guess will work but then if I’ve guessed wrong – I end up hurt or worse.

If I go overboard judging from the (California) reasonable man standard, I risk losing liberty.

The only thing I can reasonably do is use as much force as needed to endure the attacker (or attackers) will not be able to present a threat after I defend myself.

I would rather do the prudent thing and inadvertently kill an attacker in self-defense then put myself at risk.

I’m hoping that this choice will not come up in the remainder of my lifetime as I avoid dive bar, I don’t work protection for any employers and I generally try to avoid confrontation.

I wrote a post about self-defense entitled, “Is self-defense legal?” here: http://myselfdefenseblog.com/http:/myselfdefenseblog.com/is-self-defense-legal/ that you might enjoy.

This was not exactly on topic but I thought you might enjoy the “street view” of the self-defense dilemma.

Kind regards,

John W. Zimmer