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By Wanjiru Njoya

How extensive is a man’s right of self-defense of person and property? The basic answer must be: up to the point at which he begins to infringe on the property rights of someone else. . . . It follows that defensive violence may only be used against an actual or directly threatened invasion of a person’s property—and may not be used against any nonviolent “harm” that may befall a person’s income or property value. (emphasis added)

It is by no means straightforward to decide what “directly threatened invasion” means in specific cases.

Mises.org

Self-defense is an ancient common law right under which necessary and reasonable force may be used to defend one’s person or property. As Sir Edward Coke expressed it in 1604: “The house of every one is to him as his Castle and Fortress as well for defence against injury and violence . . . if thieves come to a man’s house to rob him, or murder, and the owner or his servants kill any of the thieves in defense of himself and his house, it is no felony, and he shall lose nothing.”

The meaning of reasonable force has always been heavily context dependent, considering the facts of the case including the intentions of the parties. If a trial were to become necessary in the scenario described by Coke, the court would have to establish that the intruders were indeed thieves intent on robbery or murder, or at any rate that the homeowner reasonably believed this to be the case. The use of force to defend oneself from an attack inherently carries the risk of causing the attacker’s death, making it necessary to ascertain that this was not merely a homicide masquerading as self-defense. Otherwise, anyone could shoot another and argue that he thought it was an intruder, as happened in the Oscar Pistorius case.

If the attacker shoots first, it is clearly not unreasonable to shoot back. Difficult cases arise where the attacker is unarmed or armed only with the natural weapons of his own fists. The old common law rule, as reported by the Michigan Law Review in 1904, was that

it was not necessary the assault should have been made with a deadly weapon, but that an assault with the fists alone, if there was apparent purpose and ability to inflict death or serious bodily injury, was sufficient to justify the killing in self-defense. . . . a mere battery by the fists alone, will not justify an homicide, even where there is a great disparity of physical power, without a plain manifestation of felonious intent.

The felonious intent of the attacker (intention to inflict death or serious bodily injury) has long been treated as key to justifying killing the attacker, and such intention could only be judged in all the circumstances of the case. Mere words would not suffice, as one might shout, “I’ll kill you!” with neither felonious intent nor ability, and conversely an intention and ability to kill may be exhibited clearly without any words being uttered.

In the context of comparative law, Uwe Steinhoff controversially goes further to argue that self-defense ought to be lawful even if the attacker did not use his fists: “An attack need not involve physical force; rather, an attack is every threat of violation or actual violation of an interest that is protected by law (that is, of a right) insofar as this threat stems from human action.” Steinhoff distinguishes between an “attack” and “harm” as in his view one is still entitled to defend oneself against an attack without waiting to see the degree of harm, if any, that might result from the attack.

Imagine a scenario where a weak and puny man launches himself at a weightlifting champion with intention to cause harm, only for the attacker’s fists to bounce ineffectually off his victim (as happened once to Arnold Schwarzenegger). In Steinhoff’s view, the victim in this case, bigger and stronger than his attacker though he may be, would nevertheless have a right to defend himself with a reasonable degree of force.

The aim in mentioning these examples is not to comment on the current law, which is too heavily circumscribed by legislation and case law to permit brief summary. The aim here is instead to highlight some of the difficulties in ascertaining the boundaries of self-defense. Legislative rules are typically detailed and encompass numerous conditions and exceptions.

For example, in New York, “deadly physical force” generally cannot be used unless

“the actor reasonably believes that such other person [the attacker] is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating.”

That is easy to state, but in reality, how would one “know that with complete personal safety” violence can be avoided by retreating? In many circumstances where deadly force is used or threatened, there are no guarantees of “complete personal safety.” In Steinhoff’s example, it is rarely clear that there is no other way to save Snow White other than by taking out the evil queen: “Yet one is certainly allowed to tackle the evil queen with physical force in order to prevent her from giving the apple to Snow White if there is no other way to save Snow White.”

See the rest here

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