Basic Concepts of Criminal Law

By George P. Fletcher | Go to book overview

the aggressor is not culpable, the demands of proportionality restrict the scope of permissible self-defense. 39 Linking the culpability of the aggressor with the permissible degree of defensive force seems, however, to confuse the institutions of punishment and of self-defense. The question of the aggressor's personal desert intrudes upon the analysis of the measures the potential victim may use to defend his rights. If the wrongful nature of the attack, whether by a psychotic or a culpable actor, proves to be a less-compelling rationale for self-defense, then necessity might indeed be the better way to justify the use of force against a psychotic aggressor.

The future boundary between self-defense and necessity will depend in large part on how important the distinct rationales of the two defenses remain in our legal consciousness. The collective, utilitarian argument for balancing competing interest is well grounded in modern legal thought, and therefore we can assume that the defense of necessity will remain a powerful argument. Whether self-defense flourishes as a theoretically distinct defense depends largely on the political future of libertarian thinking.


Notes
1.
See discussion and citation supra ch.5 at note 20.
2.
24 Henry VIII, c. 5 ( 1532).
3.
14 Q.B.D. 273 ( 1884).
4.
Id. at 288.
5.
The biblical example is interpreted to rest as well on the protection of the homeowner's life. The Talmudic interpretation of this provision is that even if the thief intended merely to steal, the homeowner would resist the taking of his property, which would cause the thief to threaten the life of the homeowner. Babylonian Talmud, Tractate Sanhedrin 72a.
6.
Note that under MPC U+A7 3.06, the defense of property is considered a separate defense.
7.
The characteristics described here are common to Western systems of criminal justice. For a totally different approach to the legitimacy of defensive force, see the Talmudic materials discussed in George P. Fletcher, Talmudic Reflections on Self-Defense, in Crime, Punishment, and Deterrence: An American Jewish Exploration 61 ( David Gordis ed., 1991); id., Defensive Force as an Act of Rescue, 7( 2) Social Philosophy and Policy 170 ( 1990).
8.
See, e.g., People v. Torres, 128 Misc.2d 129 ( 1985), recognizing the admissibility of expert testimony on the "battered wife" syndrome.
9.
On the dangers of loosening the imminence requirement, see the analysis of the Menendez brothers case in With Justice For Some at 137, 141-47.
10.
Blackstone 181.
11.
John Locke, Treatise of Civil Government 14 (Sherman ed., 1937).
12.
Immanuel Kant, The Metaphysics of Morals 60 ( M. Gregor trans., 1991).
13.
See Glanville Williams, Textbook of Criminal Law 504 ( 2d ed., 1983)

-145-

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