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.
See discussion and citation supra ch.5 at note 20.
24 Henry VIII, c. 5 ( 1532).
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.
Note that under MPC U+A7 3.06, the defense of property is considered a
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).
See, e.g., People v. Torres, 128 Misc.2d 129 ( 1985), recognizing the
admissibility of expert testimony on the "battered wife" syndrome.
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.
John Locke, Treatise of Civil Government 14 (Sherman ed., 1937).
Immanuel Kant, The Metaphysics of Morals 60 (
M. Gregor trans., 1991).
See Glanville Williams, Textbook of Criminal Law 504 ( 2d ed., 1983)