2012-09-03 19:02:13

Although unfettered in the state of nature, an individual’s right to use force on another individual is largely ceded to the state. But the state’s monopoly on the legitimate use of force is not absolute. Because the state cannot always prevent aggression, an individual retains the right to use force in self-defense. But this right is also not absolute, because the state owes a duty to protect the autonomy of all its citizens, aggressors and defenders alike. The law of self-defense reflects the attempt to balance the competing interests of aggressor and defender as well as the state’s goals of preventing crime and suppressing vigilantism.

Although jurisdictions will vary as to how this balance is best struck, self-defense is widely accepted where: (1) an innocent victim, (2) uses minimally necessary, (3) proportional, and (4) nonlethal force, (5) with the purpose of self-protection, (6) against what the innocent victim reasonably believes, (7) is a wrongful aggressor, (8) posing a present or imminent unlawful threat, (9) from which a safe retreat cannot be effected, and (10) the victim’s defensive force does not endanger any innocent bystanders. Although jointly sufficient in nearly all jurisdictions, none of these are necessary conditions for self-defense in all jurisdictions. Which particular conditions a jurisdiction will require is a function of the subjective assessment of the optimal balance between maximally protecting the autonomy of innocent defenders while minimally disrupting the state’s near monopoly on legitimate force. This subjective assessment varies over time and is shaped by changing tides of cultural, geographical, social, racial, and gender-based perceptions of crime and violence.

Although seemingly a fundamental and inalienable right, self-defense is curiously not an express constitutional right. Recent attempts to argue that self-defense is an implicit, even if unenumerated, constitutional right have been rebuffed in two federal appellate decisions. In both cases, prisoners sought to defend against charges of violating prison rules prohibiting fighting among inmates by claiming their use of force was only in self-defense. While conceding the possibility of the validity of their claims of selfdefense, the courts cited the overriding imperative of maintaining discipline in prison and ruled that there was simply no constitutional right to self-defense.

Perhaps the most currently contested aspect of selfdefense law is implicated in the plight of women battered by their husbands. Typically smaller and weaker than their husbands, battered women’s ability to use effective self-protection is hampered by the traditional limitations that defensive force be proportional and used only against an imminent attack. When nonlethal attacks are imminent, the proportionality requirement limits the wife to also using nonlethal force. But because of a size and strength disparity, nonlethal defensive force may be ineffective in thwarting the attack. But if a battered woman waits until such force might be effective, for example, when the husband is sleeping, the woman’s defensive force runs afoul of the imminence requirement. Although most states have recognized battered women’s syndrome evidence to partially alleviate the difficulty, many states continue to strictly construe the right of self-defense.


References and Further Reading

  • Dressler, Joshua. Understanding Criminal Law. 3rd Ed. Newark: LexisNexis, 2001.
  • Fletcher, George P. A Crime of Self-Defense: Bernhard Goetz and the Law on Trial. New York: The Free Press, 1988.

Cases and Statutes Cited

  • Rowe v. DeBruyn, 17 F.3d 1047 (7th Cir. 1994)
  • State v. Norman, 378 S.E.2d 8 (N.C. 1989)

See also Domestic violence; Martin v. Ohio, 480 U.S. 228 (1987); Patterson v. New York, 432 U.S. 197 (1977); Proof beyond a Reasonable Doubt