Sunday, September 20, 2015

On the right to self-defense

An essay by James Stevens Valliant 

A person may use physical force upon another person, even deadly force, when and to the extent that he reasonably believes it to be necessary to defend himself or a third person from a physical attack by another. The level of force used may be greater than that used by the attacker, but it must not be disproportionate to the level of force used in the attack. (One may not use a deadly weapon, for example, if merely slapped in the face, but one may use a gun if the attacker is aiming a club at your head.)

A person may use force to defend someone else who is being attacked under the same standards and with the same limitations as he may lawfully defend himself. A person may do so even if the victim of the attack is not himself acting to defend himself.

The law of self-defense (or defense of others) does not excuse an illegal act of force--it renders the act totally lawful and innocent.

In deciding whether the person acted reasonably, the jury is instructed to consider all the facts and circumstances as they were known to and appeared to the person acting under a claim of self-defense, and determine what a "reasonable person" in the same or a similar situation (and with similar knowledge) would have acted. If his beliefs were reasonable, the danger does not need to have actually existed at all. The belief that he (or someone else) was threatened may be reasonable even if he relied on information or evidence that was not true but reasonably appeared to be true.

A person acting in reasonable self-defense need not retreat (under the classic, old fashioned law of self-defense that existed long before contemporary "stand your ground" laws), and a defender may make sure that he is safe before ending his own responsive force. Say, for example, you have been attacked by someone with a knife. He slashes at your face and throat, but you manage to deflect the blade so that it cuts only your forearms and hands. You are able to push back your attacker and pick up a stick. You start hitting him with the stick. You may continue to hit the attacker with the stick until you are reasonably certain that the potentially deadly attack will not recommence, i.e., you can make sure that he will not get up again. You need not stop merely because the attack itself has stopped.

If a person who is justified in using force against an attacker instead (and/or also) accidentally harms an innocent bystander, he does not lose his legal justification for harming the aggressor, of course, but the harm caused to the innocent bystander is also generally considered to have been legally justified. The attacker need not be using the third party as a "human shield" as Hamas uses children, either. Now, the defender is not legally justified if he acted carelessly with regard to other lives, and he still may be subject to a charge of manslaughter under those circumstances, as with other negligent homicides. Thus, shooting back at an attacker through a crowd would likely be seen as unreasonably subjecting innocent bystanders to harm, for example--unless, say, the attacker was himself in the act of throwing the switch on a bomb that would have killed everyone. The question is one of the apparent necessity of the act. However, the mere fact that an innocent bystander was harmed does not in itself render an act of self-defense unlawful.

It does not matter if the attackers outnumber the victim(s). If ten people seem to be involved in a violent attack on a single person, if threatened with serious injury, he may kill them all in order to preserve his own safety. Indeed, the very number of the attackers in itself implies the reasonable possibility of great harm to the defender. The burden is on each of the attackers to unmistakably withdraw from the attack before he regains any legal claim against the defender.

Consider the following scenario: a bank robber straps a bomb to the chest of an innocent person who he kidnapped for the purpose of robbery, and tells him to go rob a bank or the explosive will be detonated. The poor victim is wired with mics and told that if he should let on about the bomb, it will be detonated as well. He is given a fake gun that looks real, one he is told is fake (and, thus, that HE can actually harm no one). Say the poor fellow under such duress actually tries to rob the bank using the realistic but fake gun. Let's say a security guard sees him pointing the fake gun and shoots him. Has the security guard committed any crime, even though the man with the "gun" was himself innocent? No, just being himself an instrumentality of force gave others the right to use force against him even though he was innocent.

Who is responsible for the death of our "innocent" robber? The law says that the security guard is completely innocent and that the only one liable for the murder is the kidnapping, bomb-strapper.

Thus, the person acting in self-defense is not legally liable for the "collateral" damage of his own force on even innocent third persons so long as he acted reasonably by the same objective test.

When it is an entire nation that is acting in self-defense or defense of another, that nation, too, may regard the instrumentalities of an enemy nation--innocent or not--as fair targets (e.,g., factory workers in the war machine of the enemy.) The guilt for the death of innocent third parties and bystanders is forever squarely and completely on the shoulders of the aggressive nation's leadership, if we are to apply the classic law of self-defense to the situation.

The law of self-defense is simply applied egoism. It assumes, correctly, that peaceful coexistence is best for everyone, but it also permits you to intentionally kill another person if that person has threatened you with serious injury. You may, in other words, treat your own life as more important than your attacker's life. The altruist response would be to submit to evil, to "turn the other cheek" to aggression, as Christ put it, or to take the stance of the pacifist. Indeed, if we are to love our neighbors as we love ourselves, then how can I place my life above that of anyone else? Thus, St. Augustine taught that killing in self-defense was still a sin even if necessary to preserving your own life. Christians have since walked back the demands of Jesus. Aquinas held that reasonable self-defense was not a sin.

In any case, in demanding that for war to be ethically permissible any collateral damage must always be avoided, the libertarians are imposing a mystical and altruistic standard of self-defense that is both contrary to common sense and the law of self-defense in civilized nations.

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