§ 18.04 Deadly Force in Self-Protection: Rationale for the Defense

§ 18.04 Deadly Force in Self-Protection: Rationale for the Defense91

[A] Self-Defense as an Excuse

Although dispute about the matter exists, use of deadly force in self-defense apparently constituted an excuse, rather than a justification, in early English legal history. It is not difficult to appreciate why the use of deadly force in such circumstances is, at least, excusable.

Each of the three non-utilitarian moral theories of excuse outlined elsewhere92 can explain self-defense as an excuse. First, under the causation theory of excuses, an innocent person is not responsible for the condition that caused him to commit the crime: but for the aggressor's actions, the defendant would not have taken a life. Therefore, the innocent person is not to blame for the killing. Second, a character theorist would point out that it is the aggressor, and not the innocent person acting in self-defense, whose actions manifest a bad moral character.

Third and most plausibly, the choice theory supports an excuse for self-defense. An innocent person figuratively, if not literally, with his back to the wall, lacks a fair opportunity to choose not to kill. Moreover, as Blackstone suggested, the common law "respects the passions of the human mind."93 Killing in self-defense, therefore, may be "excusable from the great universal principle of self-preservation, which prompts every man to save his own life preferably to that of another."94 The act of killing another person to save one's own life is nearly instinctual; it represents the "the primary law of nature."95

The latter argument can also explain self-defense as an excuse according to individual deterrence principles. One who is threatened with immediate death is not deterrable by the threat of criminal sanction. Therefore, his punishment is inefficacious.

[B] Self-Defense as a Justification

[1] Utilitarian Explanations

Killing in self-defense may be socially desirable. A utilitarian may reason that if someone must die in a deadly conflict it is better that the aggressor, whose antisocial nature is manifested by his conduct, is the person killed.96 If it were otherwise, a dangerous person would remain alive and a continuing threat to others unless and until he is taken into custody.

This argument might somewhat overstate the case. Many self-defense homicidal conflicts occur between mutually intoxicated actors or start with fisticuffs and escalate into deadly affairs. In such self-defense circumstances, therefore, it is hard...

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