My colleague Janie Kim has a fascinating new article on SSRN called The Rhetoric of Self-Defense. In the article, she explores a surprising difficult problem in criminal law theory: why we don’t punish people who kill in order to save themselves from deadly attacks. I say “surprisingly difficult” because the self-protection defense is a well-established, noncontroversial aspect of criminal law. Compared to, say, the insanity defense, self-protection provokes little deep-seated opposition. Indeed, some purported self-defenders (like Bernhard Goetz, pictured above) have become folk heroes of sorts. Given its intuitive appeal and widespread support, the self-protection defense must rest on a firm theoretical foundation, right?
It turns out, though, that the dominant strands of criminal law theory have a hard time providing a compelling justification for the defense.
For instance, under the utilitarian view, self-protection might be recognized as a defense because the social harm produced by the defendant’s action (that is, the death of the initial aggressor) is less than the social harm that would have been caused otherwise (that is, the death of the defendant). But, as Janie points out, this is a hard argument to push very far: we normally regard all lives as being of equal value, and, if we really did want to get into the business of weighing the relative value of two lives, it surely would not be the case that the lives of all aggressors would turn out to be worth less than the lives of all defenders.
After identifying the weaknesses of conventional explanations for the self-protection defense, Janie suggests that we have been looking in the wrong place: rather than seeking justification for the defense in moral theory, we should look to political theory. This is a profound move that runs counter to the normal way defenses are conceived in criminal law theory. The conventional approach sees defenses as protecting morally right conduct from criminal punishment. Under Janie’s political approach, by contrast, we should start by considering why we have government and criminal law in the first place: to protect ourselves from interpersonal violence. (Here, she draws heavily on the social contract tradition of political theory.) If we understand this to be the purpose of criminal law, then we can see the self-defender as someone whose motives are congruent with the very reason we have criminal law: the prevention of violence. As Janie puts it,
This account helps to explain why our understanding of self-defense is often more intuitive than deliberate. The rationale behind self-defense is both basic and familiar because it constitutes the foundation of our notion of an organized, civilized society.
Put differently, since the whole point of the social contract is to protect ourselves from violence, it would make no sense to have a legal system (which is merely a byproduct of the social contract) that punishes people for their individual efforts to protect themselves from violence.
Although Janie’s political theory provides a justification for the self-protection defense, it turns out not to be so robust a version of the defense as some might like. The social contract may contemplate self-protection, but it does not countenance private vengeance. Quite the contrary, the social contract aims to bring private vengeance–and the cycles of interpersonal violence that vengeance breeds–to an end. Thus, Janie notes with concern the subtle themes of deserved vengeance that have marked much of the public discourse surrounding, for instance, Bernhard Goetz and Judy Norman (a battered wife who also became something of a folk hero by killing her husband while he was sleeping and then claiming self-defense). Indeed, Janie suggests that a basic flaw with attempts to develop a moral justification for self-defense is that the whole theoretical project tends to characterize the moral value of the defender in elevated terms and the moral value of the aggressor in degraded terms, which plays into the unfortunate rhetorical conflation of self-protection with vengeance.
Janie’s argument is subtle and complex, but I think she is really onto something here, not only as to self-defense, but as to criminal law theory more generally. I share her discomfort with the tendency of some writers to treat criminal law as nothing more than a branch of applied moral theory. I agree with Janie that moral theory seldom provides clear answers to the really difficult problems in criminal law. Other philosophical traditions can enrich the discussion of these problems, so I am happy to see Janie and a growing number of other criminal law scholars thinking hard and well about the implications of political theory for criminal law.
If, as you say “the dominant strands of criminal law theory have a hard time providing a compelling justification for the defense” it is only because these dominant strands confuse self defense (a response to a clear and present threat) and vengeance (a response to any wrong from slight to extreme). Self-defense makes sense under a social contract: we would never agree to a protective agreement that penalizes individual acts of self-protection under compelling circumstances; and any contract divorced from the realities of life is doomed to breakdown.
The social contract may seek an end to the cycle of violence created by “private vengeance” but a true act of self-defense is very different from “private vengeance”. Vengeance is never a necessary act unless the social contract is perceived to have broken down, which explains in part why Bernard Goetz became a folk-hero. His act was not actually self-defense, but in those years in NYC it was widely believed that the social contract was broken (though most people probably wouldn’t have used that phrase). Absent an intact sense that the law will protect you, the law of the jungle prevails.
If the dominant strands of criminal law theory have a hard time with this distinction, one wonders how the theorists who stumble over this distinction came to be influential. Clearly some, like Janie Kim are able to comprehend this. I assume you can too. So perhaps the question should be; “Why do some legal theorists have a hard time understanding why we don’t punish people who kill in self-defense?”
I cannot really understand the nuances of the legal theory as applied in creating statues but I would like to speak to the fine line a person must walk if he or she does decide to use self-defense.
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
“For instance, under the utilitarian view, self-protection might be recognized as a defense because the social harm produced by the defendant’s action (that is, the death of the initial aggressor) is less than the social harm that would have been caused otherwise (that is, the death of the defendant). But, as Janie points out, this is a hard argument to push very far: we normally regard all lives as being of equal value, and, if we really did want to get into the business of weighing the relative value of two lives, it surely would not be the case that the lives of all aggressors would turn out to be worth less than the lives of all defenders.”
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.
I think this is less about balancing the values of lives (which we cannot do competently) than it is construing the moral ambiguity of the situation against the aggressor.
If the right and reasonable impulse to defend ones’ self against attack cannot be understood without a theory, then we are all lost.