Legitimate Defense

LEGITIMATE DEFENSE. — A person who, compelled by the necessity of defending a right of his own or of another, relating to personal safety or to a precious possession in his own keeping, against the present danger of an unjust aggression, wounds or kills the aggressor, is said to act in legitimate defense, provided that the defense is proportionate to the offense.

The lawfulness of legitimate defense flows from the natural law itself and is recognized by all positive legal systems.

I. HISTORICAL NOTES

But in Roman law it was lawful to defend oneself by killing the aggressor only when life, personal integrity, or chastity was at stake; not when property was involved, unless, on account of the time and place of the aggression, personal safety was endangered (D. 48, 8, 9), or the thief assaulted the victim by striking him (D. 43, 16, 36, 9). Nevertheless, it was not unlawful to forestall the aggressor (Cod. 3, 27, 1) or to defend, by violent means, not only oneself but also one’s own family (D. 48, 8, 1 § 4).

Little is known with precision about barbarian law on this subject, owing to the diversity of the sources and of the interpreters’ opinions; but it appears that legitimate defense was not regarded as an institution in its own right, both because of the objective character of ancient Germanic law and because private persons were permitted to avenge homicide.

Ancient canon law confirmed the lawfulness of violent defense (c. 7, D. 1; c. 3, X, 5, 39). Innocent III circumscribed the limits of defense «cum moderamine inculpatae tutelae» (c. 18, X, 5, 12; cf. also c. 6, V, 11 in Sext.; single chapter in Clement., V, 4). Within the scope of the lawfulness of killing in legitimate defense, the defense of material possessions was also included, by reference to Ex. 22, 2 (3, X, 5, 12).

Canonical doctrine, already extensively discussed in the decretals, was further developed by moral theologians under the supervision of the Church’s Magisterium, which corrected the excessively lax or rigorist opinions of both sides. Thus, the opinion was condemned of those who sought to extend the sphere of the lawfulness of legitimate defense to the protection of honor (Denz-U, 1117, 1180), or of material goods of very slight value, or of goods not actually in our possession (ibid., 1182 ff.), or who declared it legitimate to suppress a judge on the point of delivering an unjust sentence, otherwise unavoidable, or to kill a false accuser or false witness (ibid., 1118), an adulterer or a wife caught in flagrante delicto of adultery (ibid., 1119), or who granted the exculpatory effect of legitimate defense even to one who could otherwise have effectively escaped the aggression, for example, by fleeing (ibid., 1180). These are all cases in which a state of necessity does not exist; in which suppressing the adversary is not always the most suitable means of protecting oneself; or in which there is no sense of proportion among the values at stake.

On the other hand, the opinions of those who never recognized the suppression of the aggressor as lawful were regarded as tainted by rigorism, since in legitimate defense there is always a disproportion of values in preferring one’s own temporal life to the eternal salvation of one’s neighbor. Such opinions also found an echo among jurists and philosophers who lived more or less on the margins of Christian thought (Grozio, Kant).

In current canon law it is established that legitimate defense against an unjust aggressor «si debitum servetur moderamen» entirely excludes the offense and therefore punishment; whereas, if the required moderamen is not observed, it mitigates imputability (can. 2205 § 4).

II. FOUNDATION OF LAWFULNESS

S. Tommaso (Sum. Theol., 2a-2ac, q. 64, a. 7) seems in this matter to apply the principle of double effect (v. IMPUTABILITÀ DEGLI EFFETTI).

The act of one who defends himself by killing the aggressor must be considered under a twofold aspect: insofar as it is directed toward preserving his own life, and insofar as it produces the killing of the aggressor. Defending oneself falls within the sphere of the fullest lawfulness, since it is natural for man to seek to preserve his existence as far as he can. Killing the aggressor, when this is not intended but merely permitted for extremely serious reasons, is likewise not imputable to the subject. But this most vexed passage of S. Tommaso, which has been interpreted in its most obvious sense, has given rise to and formed an entire range of interpretations and opinions, from Azplicueta to card. De Lugo, from S. Antonino to S. Alfonso, from Lessio to Cathrein, Waffelaert, and Van Hove, above all because the S. Doctor would seem to forbid one who is defending himself to intend directly the killing of the aggressor: something that seems unacceptable to some, also because it would be an excessive and impractical subtlety. Thus, in addition to the various presentations of S. Tommaso’s thought, other explanations, more or less convincing, have been devised.

Some, in fact, explain its lawfulness by appealing to a kind of delegation that the public authority would grant to anyone who finds himself in such circumstances. But it may be observed that the Codes speak only of the exculpatory effect of

legitimate defense. Others appeal to the need to protect the social order in this way and consequently to promote the common good; although it may be observed that at most this provides a criterion indicating the lawfulness of the act, and not the ratio ultima. Others invoke the conflict of rights in mutually incompatible cases, which presupposes that what must be demonstrated—the lawfulness of taking the aggressor’s life—has already been proved. Puffendorff finds the ultimate reason in the fact that, in the duties of nature, no one can demand of another what he himself does not fulfill and indeed positively transgresses. Whoever unjustly attacks another’s rights forfeits his own and places himself outside the law. But even mutual duties among men ultimately proceed from God and do not cease unless, in whatever manner, he wills or permits this. Less convincing is the theory of the necessity of the law or of authorization by the State (Notstand und Notrecht), according to which killing the aggressor would be lawful simply because it is necessary for one’s own preservation or is permitted by the State (Carrara, Pessina, etc.).

Others propose the solution on the basis of the following considerations. Homicide involves a twofold injury: against God, the true master of our life; and against one’s neighbor, who, by the mere fact of existing, has a right to life. But one who attacks is conscious that he is provoking a reaction, and is therefore responsible in cause for the consequences, removing from the reaction itself, even when violent, the formal character of an injury; according to the saying: « volenti non fit iniuria ». That this violent defense of oneself is not contrary to the ethical order, which has its source in God, may in part be inferred from the instinct of self-defense found in animals and in man, who by spontaneous impulse tends to oppose the aggressor in any way: the voice of nature appears to be the voice of the Creator.

Moreover, coercibility—that is, the moral faculty of defending one’s own right, even by force under certain conditions—is a quality of the right itself, even if not an essential one, and as such derives from God, the author of things and of rights. Now the right to life is a supreme good: its coercibility must therefore extend to the highest degree; otherwise it would be illusory and ineffective if it did not reach as far as violent defense.

The S. Scriptures contain no other elements that make the divine will manifest to us. There is a passage in the Old Testament (Ex. 22, 2-3) that seems to permit violent defense against a nighttime thief, but it is uncertain whether this concerns a provision of positive law or of natural law. On the other hand, the unlawfulness of legitimate defense cannot in any way be demonstrated from the S. Scriptures, because the passages of Mt. 5, 38-39; 26, 52; Rom. 12, 18-19, which might seem to present some difficulty, are commonly interpreted as meaning that only the desire for revenge is forbidden there.

A source of the Church’s doctrine is also the ecclesiastical magisterium, which has spoken in the sense indicated above.

Legitimate defense is therefore lawful, first of all, against one who is formally an unjust aggressor. It is also lawful against one who is an unjust aggressor only materially, because in practice such an examination is almost always impossible; moreover, the argument drawn from the coercibility of the right applies against every kind of unjust aggressor.
III. CONDITIONS FOR THE LAWFULNESS OF L. S. — But the faculty of resorting to physical force for the protection of a right can never be unlimited: otherwise it would be arbitrary and would disrupt, rather than protect, the ethical and juridical order.

This also applies to the case of l. s. After what has been said, it is easy to define these limits, which moralists summarize in the formula drawn from the Justinian Code « inculpatae tutelae moderatione » (Cod. 8, 4, 1).

In simpler language, the constituent elements of moderatio are: unjust aggression, proportionate reaction, and the necessity of defence.

1. Unjust aggression. — For the exculpatory effect of reasonable restraint, it is required that the agent act to repel violence directed against himself or others, violence that is unjust either in substance or in manner, and violence that is actual. From danger arises a bond of universal fraternity, through which reaction and protection acquire the mark of legitimacy whoever exercises them and in favour of whomever they are exercised: from the egoistic and personal form of defending oneself and one’s own, one thus rises to the altruistic and impersonal form of defending the right.

Violence is unjust when it is inflicted without right; and it suffices that the violence be unjust in itself, without the need to refer it to the aggressor’s responsibility. Even if he were a maniac and a drunkard, if his act had created the need for an immediate reaction, the reaction would be justified. Nevertheless, for it to have exculpatory effect, it is necessary that the violence—that is, the harm or danger against which one reacts—be actual, at least morally.

A mere threat, unaccompanied by acts or circumstances that induce in the threatened person fear of its imminent execution, would not suffice to remove the imputability of the reaction; but, on the other hand, fear of imminent execution may suffice, since it is an ancient maxim of law and common sense that « nemo tenetur exspectare donec percutiatum ».

If the attack was repelled and, without reasonable grounds for fearing that the aggressor would persist and return to the assault, the person attacked proceeds to further violence against him, the justification of reasonable restraint cannot be invoked for such violence. In all these cases one should rather speak of vengeance; at most, depending on the various circumstances and on the sentiment that led the subject to act, there will be the figure of excess in defence or of provocation.

2. Proportionate reaction. — One may not deprive one’s neighbour of a supreme good for the sake of a minor good or of a good that can otherwise be defended. For this reason, l. s. must be restricted to attacks against life, personal integrity, liberty, and modesty, where these are such as to place the victim in a position in which he must defend himself. Reasonable restraint in response to an attack against goods must be morally regulated in proportion to the intrinsic value of the good in dispute, to the condition of the person under threat, and to the possibility of otherwise vindicating II.
For these reasons, it is not easy to translate this into figures, although some have attempted to do so. It certainly cannot be less than the relatively grave matter of theft (cf. Denz-U, 181).

3. Necessity of defence. — This must be examined and understood both in relation to the proportion between the reaction and the violence against which one reacts, and in relation to the possibility of avoiding it by other means.

The proportion between violence and reaction must not be understood in a merely material sense; regard must also be had to the means available to the agent at the moment of the aggression, to his possibility of confronting the imminent danger by acting otherwise, and to his state of mind.

As regards the inevitability of the danger, it must be such that it cannot be avoided by prayer, by cries, or by flight. The obligation to flee, however, cannot be asserted for one who has orders to remain at his post or who cannot do so without seriously compromising his dignity. In assessing all this, one must take account of the disturbance of mind produced in the person attacked by fear of the violence or danger.

These constituent elements of reasonable restraint, besides being found in natural law, are also more or less taken into account in positive law. Penal codes too generally regard l. s. as a circumstance excluding the offence (some codes, however, take it into consideration only for certain offences).

The currently applicable Italian Penal Code excludes punishment when a person who has committed an act constituting an offence was compelled to do so by the necessity of defending a right of his own or of another against the present danger of an unjust offence, provided that the defence is proportionate to the attack (art. 52). If, moreover, the limits imposed by necessity are culpably exceeded, the act is punishable as a negligent offence (v. COLPA), provided that a penalty is prescribed for the case in which it is committed through negligence alone rather than with intent (art. 55).