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.
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.”
When it comes to criminal law, things get a bit more complicated. But none of those complications are avoided in the current legal system. They are actually exacerbated by having the same group make the laws, enforce the laws, prosecute the cases, and judge the cases. These are no longer disinterested third parties. They have many interests wrapped up in performing their jobs to satisfy bosses and colleagues rather than victims and people in dispute.
How can something be considered a crime if there is no victim?
This is a problem. You can go through life making sure you don’t hurt anyone, and still break the law. Wouldn’t that be great if you could simply base your actions on common sense and respect for the standards of a community?
Instead, people must also make sure they don’t do anything labeled wrong by the government. Of course, it is impossible to know all the multitude of laws which the government has created. And what they call wrong is not always intuitive, nor offensive.
The whole point of common law was to settle disputes in non-violent ways.
The problem with government statute law is it goes beyond resolving disputes. It includes enforcers trolling around looking for a statute that has been broken. There doesn’t have to be a victim. No one has to have been wronged by the legal breach.
These enforcers actually create conflict instead of resolving it. Their actions often lead to violent altercations, rather than deescalating disputes.
In an essay called “The Obviousness of Anarchy,” John Hasnas discusses the origins of common law, and how it was born out of anarchy. He says that clearly, no organized society can exist without governance.
But that does not necessarily mean it has to be organized by government.
In arguing for anarchy, I am arguing that a society without a central political authority is not only possible but desirable. That is all I am doing, however. I am not arguing for a society without coercion. I am not arguing for a society that abides by the libertarian non-aggression principle or any other principle of justice. I am not arguing for the morally ideal organisation of society. I am not arguing for utopia. What constitutes ideal justice and the perfectly just society is a fascinating philosophical question, but it is one that is irrelevant to the current pursuit. I am arguing only that human beings can live together successfully and prosper in the absence of a centralised coercive authority. To make the case for anarchy, that is all that is required.
Inevitably, there will be disputes between humans living in the same area. Hasnas argues that the best society possible is one where the entire governing structure exists exclusively to settle disputes.
Rule of law was born out of trying to peacefully solve disputes that might have otherwise erupted into violence. Common law is a collection of these outcomes. Others in similar predicaments can look to precedent to see what worked to avoid violent outcomes in similar past circumstances.
…common law provides us with rules that facilitate peace and cooperative activities. Government legislation provides us with rules that facilitate the exploitation of the politically powerless by the politically dominant. The former bring order to society; the latter tend to produce strife. Hence, not only is government not necessary to create the basic rules of social order, it is precisely the rules that the government does create that tend to undermine that order.
No Victim? No crime.
Courts consisted of respected members of a community who had been involved in previous conflict resolutions. They were therefore well equipped to suggest outcomes that had in the past avoided violence. Their job was to find an arrangement that satisfied both parties involved in the dispute.
English common law is, in fact, case-generated law; that is, law that spontaneously evolves from the settlement of actual disputes. Almost all of the law that provides the infrastructure of our contemporary society was created in this way. Tort law, which provides protection against personal injury; property law, which demarcates property rights; contract law, which provides the grounding for exchange; commercial law, which facilitates complex business transactions; and even criminal law, which punishes harmful behavior, all arose through this evolutionary process.
When it comes to criminal law, things get a bit more complicated. But none of those complications are avoided in the current legal system. They are actually exacerbated by having the same group make the laws, enforce the laws, prosecute the cases, and judge the cases. These are no longer disinterested third parties. They have many interests wrapped up in performing their jobs to satisfy bosses and colleagues rather than victims and people in dispute.
And it is further complicated by the fact that government has mixed arbitrary statute law with laws protecting actual victims.
But do we really need the government to know that murder is wrong, theft is wrong, and rape is wrong?
It is true that most of our current law exists in the form of statutes. This is because much of the common law has been codified through legislation. But the fact that politicians recognised the wisdom of the common law by enacting it into statutes, hardly proves that government is necessary to create rules of law. Indeed, it proves precisely the opposite.
Rape, murder, and theft were being punished before the government said they were illegal. Victims and their families naturally have an incentive to bring suit against people who have wronged them. And they have an incentive to do so through a neutral third-party, lest it devolve into a “Hatfields and McCoys” type family feud.
In common law, the entire point is to solve a problem. So the best solutions are more widely adopted.
But that doesn’t mean those solutions are universal best practices.
Cultures and communities have different values and standards. One culture may see picking an apple off a neighbor’s tree as trivial, while another may take the crime quite seriously. And it likely depends on whether it is a region where food is abundant or a society on the brink of starvation.
But even with different legal standards by region, obeying common law does not require years of legal study.
Understanding the traditional rules of common law requires only that one be a member of the relevant community to which the rules apply, not that one be an attorney.
Government legislation, in contrast, need have no relationship to either the understanding or the moral sensibility of the ordinary person.
It is still your responsibility to understand how rules differ from place to place.
Under common law, if you aren’t hurting anyone, you are probably fine. But you have to be more careful if you don’t know the cultural acceptance of, for example, picking apples that don’t belong to you.
By contrast, governments have arbitrary statutes that are not intuitive.
For instance, walking around town with an alcoholic beverage isn’t hurting anyone, but could be illegal depending on what town or state you’re in.
The same applies to carrying a concealed weapon, possessing marijuana, and taking your shirt off. None of these actions by themselves hurt anyone, but could very well be illegal.
Throughout his piece, Hasnas repeatedly tells readers to look around when it comes to evidence that things can, will, and do function just fine without government law in certain areas.
Business is contracted around the world among parties from virtually all countries. Although there is neither a world government nor world court, businesses do not go to war with each other over contract disputes.
…[I]nternational commercial disputes are effectively resolved without the government provision of courts. How can this be?
The answer is simplicity itself. The parties to international transactions select, usually in advance, the dispute settlement mechanism they prefer from among the many options available to them. Few choose trial by combat.
This is the main argument for why there would still be effective governance without government. Disputes, violence, and unpredictability threaten profits and wealth.
We don’t need legislatures: all law can be created through dispute resolution.
We don’t need government courts: neutral, preselected, third-parties have more incentive to deliver justice.
And we don’t need government enforcers. They create conflict by initiating violence when a statute has been violated, even when no victim exists.
In fact, government sponsored law enforcement is relatively recent. Society as we know it predates public police.
The proper response to the claim that government must provide police services is: look around.
I work at a University that supplies its own campus police force. On my drive in, I pass a privately operated armored car that transports currency and other valuable items for banks and businesses. When I go downtown, I enter buildings that are serviced by private security companies that require me to sign in before entering. I shop at malls and department stores patrolled by their own private guards. While in the mall, I occasionally browse in the Security Zone store that sells personal and home protection equipment.
I converse with attorneys and, once in a while with a disgruntled spouse or worried parent, who employ private detective agencies to perform investigations for them. I write books about how the United States Federal government coerces private corporations into performing criminal investigations for it. When I was younger, I frequented nightclubs and bars that employed “bouncers.”
Although it has never happened to me personally, I know people who have been contacted by private debt collection agencies or have been visited by repo men. Once in a while, I meet people who are almost as important as rock stars and travel with their own bodyguards. At the end of the day, I return home to my community that has its own neighborhood watch.
Look around.
The most important laws, the ones that actually protect people from harm, were not created by government.
The most effective courts which settle disputes without violence were not created by government.
And most current security which keeps us safe, investigates crime, and brings people to justice are not government forces.
It’s not about creating utopia. But we could have a society where aggression is extremely dangerous and unprofitable, whether the attacker is an individual, a corporation, or the police.
MCViewPoint 