Professor Fontaine and self-defense: a reply to his rejoinder.

• Author: Corrado, Michael Louis
• Position: Response to article by Reid Griffith Fontaine in this issue, p. 97 - A Symposium on Self-Defense

I appreciate Professor Fontaine's crisp, concise rejoinder, (1) and I thank him for the opportunity to reply. In my original reply I made four concrete points about Fontaine's three-requirement framework for self-defense. He has accepted two of them, offered a clarification that I may be able to accept in connection with a third, and rejected the fourth. Each of these things is worth commenting on, as is our disagreement about the proper attitude toward mistaken self-defense.

1. THE FRAMEWORK

   In connection with the third requirement, I made two objections. Fontaine accepted both, and the requirement now reads (more or less) as follows:

   3. The defender's act is necessary to prevent (a) his life from being wrongfully taken, or (b) grievous injury from being wrongfully inflicted upon him. (2)

   Although this answers the two objections, it sharpens a point of disagreement I will discuss in Section B below.

   Fontaine's formulation of the second requirement is designed to result in self-defense only when the defender's belief that he is being wrongly attacked is true before he launches his defense. I offered an example in which the defender must begin her action before the aggressor has decided to attack--thus the belief that defensive response is not "valid" before she initiates action--but retains control over the instrument of self-defense. In particular she retains the ability to call it back if she is mistaken. I said, "[t]he answer may be that the defensive action was not actually 'initiated' until Jones made the decision not to stop the missile." (3) That is in fact the direction that Fontaine takes. He says, "Here, the action is the omission of disarming the deadly missile." (4) That may solve the problem. But in my original reply I also said that I would like to see that response worked out in some detail. (5) What I had in mind was an effort to give expression to that qualification in the actual formulation of the second requirement. There is no doubt that my example satisfies the requirement as it stands: The defensive force, the firing of the missile, was initiated before the belief was valid. I know of no general rule that requires us to say that action is initiated only when it is no longer reversible. Something must be added to the formulation to account for that qualification. As criteria become more complex they become more difficult to get right, and so I am skeptical about whether merely adding a phrase like, "or prior to the last...