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« British gov't opposes liberalizing home defense | Main | Al-Zaraqawi may be spending Thanskgiving all over Mosul »

Don Kate's thoughts on self defense

Posted by David Hardy · 20 November 2005 10:33 AM

The previous posting put me in mind of an argument Don Kates once made, relative to the legal doctrine of self defense.

Don observed that it evolved against a common law background where a person had an almost unlimited (and maybe completely unlimited) power to use deadly force to prevent a felony or apprehend a felon. Felonies were, after all, capital offenses, so using lethal force wasn't going very far -- the state itself would use lethal force if the felon was caught -the only question was whether the person was a felon. So any self-defense against a felon would be handled under this segment of the law.

That meant that the only time you considered self-defense as a legal defense would be in a conflict between otherwise law-abiding persons. A tavern fight, that manner of thing. In this context, restrictions such as "you must retreat to the wall" made some sense. There was a valid interest in defusing the conflict rather than escalating it, and retreat would often be available. (Note, in support of this concept, that at earliest common law self-defense did not mean a finding of innocence. Rather, the finding was guilty with the understanding that the Crown would issue a pardon. I seem to remember that by Tudor times it was almost automatic, with the court finding guilt, ruling that it was self-defense, and requesting that a pardon issue).

The problem, Don argued, was that with the narrowing of felonies, and of the right to use lethal force to prevent them or to hold a felon, the vast majority of defensive uses against criminals wind up drawn into self-defense, and held to the narrower standards which historically were only used in fights between otherwise law-abiding citizens.

· Self defense

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