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Don Kate's thoughts on self defense

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