The Contours of the Right to Self-Defence: Is the Requirement of Imminence Merely a Translator for the Concept of Necessity?

Published date01 April 2008
Date01 April 2008
DOIhttp://doi.org/10.1350/jcla.2008.72.2.488
Subject MatterArticle
The Contours of the Right to Self-
defence: Is the Requirement of
Imminence Merely a Translator
for the Concept of Necessity?
Onder Bakircioglu*
Abstract The right to self-defence has lately been subjected to intense
academic controversy, both at the domestic and international level. The
debate is focused on the question of whether or not the requirement of
imminence is merely a translator for the notion of necessity. At the
domestic level, the debate has mainly been kindled by feminist scholars,
who, in the context of the ‘battered woman’, argue that the requirement
of imminence should be discarded from the contours of the self-defence
doctrine. The purpose of this article is to prove the necessity of the
imminence requirement as a litmus test to detect possible abuses of
the self-defence doctrine.
Keywords Categorisation of self-defence; Necessity and duress;
Excuse and justif‌ication; Battered women; Exculpation
[T]he sole end for which mankind are warranted, individually or
collectively, in interfering with the liberty of action of any of their
number, is self-protection.
John Stuart Mill1
It is the task of criminal law to def‌ine and determine the boundaries of
individual discipline and fortitude that is required by conventional
public morality to maintain the existence of cooperative social unity.
Those who offend the social structure of society are blameworthy by
the legal norms which, to a certain extent, are in harmony with
conventional public morality,2and therefore subject to punishment.3In
* LLB, MA, LLM, PhD candidate, University College Cork; e-mail:
onderbak@gmail.com. I would like to express my gratitude to Professor Caroline
Fennell for her helpful comments.
1 J. S. Mill, On Liberty (John B. Alden: New York, 1885) 21.
2 Durkheim asserted that punishment above all should be viewed as a moral
process. It is shaped by moral sentiments and it is designed to reaff‌irm the moral
order. In other words, law channels collective sentiments into a socially binding
circle of aff‌irmation. There is no doubt that law cannot be entirely alien from the
beliefs of common people, i.e. laws of a given society must always be constructed
around the values that are, to a greater or lesser extent, shared by the community
members. In this regard, the legislature or the ruling segments of a society cannot
ignore the collective sentiments that constitute the core of social existence.
However, law should not merely be seen as the simple expression of collective
values because law itself is also a transforming mechanism in constructing social
values. Therefore, social values and the law are mutually conditioning one
another, and none is the genesis of the other. See D. Garland, Punishment and
Modern Society (Oxford University Press: New York, 1995) 47–58.
3 R. F. Schopp, Justif‌ication Defenses and Just Convictions (Cambridge University Press:
Cambridge, 1998) 62.
131The Journal of Criminal Law (2008) 72 JCL 131–169
doi:1350/jcla.2008.72.2.488
this context, since crime involves an attack on the very fabric of society,
it is countered with punishment4to restore violated moral values.5
However, extraordinary circumstances may demand unusual discip-
line and fortitude, which might force the boundaries of social expecta-
tions and public morality and therefore mitigate blameworthiness that
results in punishing the offender in proportion to his culpability. In such
cases, although offenders commit crimes under extremely demanding
circumstances, they still merit conviction by the criminal justice system,
since their conduct meets the offence elements without justif‌ication or
excuse.6
In criminal law, human life is treated as a core value that is to be
protected at all costs, i.e. life, as a rule, must not be taken or sacrif‌iced
even if it is necessary to preserve ones own life. However, criminal law,
in certain cases, allows individuals to exercise defensive lethal force
against another person when such force is immediately necessary to
prevent an unlawful aggression exercised by the other party. The con-
cept of self-defence, however, should be read as a last resort, since it
involves serious consequences to human life.
It is to be brief‌ly noted that there is no agreement upon the theoretical
foundations of self-defence. Some authors justify the doctrine by ap-
pealing to the concept of public duty to prevent crimes; others refer to
the lesser-evils rationale. Further, some theorists take aggressors as
central, asserting that they forfeit their right to life by engaging in
unlawful force,7while others look from the victims perspective, claim-
ing that victim may exercise his right to self-defence so as to protect his
personal autonomy. However, none of these theories provides a com-
pletely satisfactory basis to the self-defence doctrine.8
This article argues that society employs the institution of punishment
as a way of ensuring its harmonious unity, therefore, it not only
takes heed of the outcome of a given misconduct, but the mindset of
the defender. Thus, as in cases of duress, necessity and self-defence, the
main reason why societies excuse the actor or justify his conduct is
4 Punishment is conventionally viewed as a necessary and somewhat effective
method for controlling deviant behaviour. The institution of punishment should
also be viewed as an effective instrument to reconstitute and reaff‌irm the status
quo. For a comprehensive analysis, see Garland, above n. 2 at 7481.
5 For a productive discussion as to the philosophy of punishment, see A. Norrie,
Simulacra of Morality in A. Duff (ed.), Philosophy and the Criminal Law
(Cambridge University Press: Cambridge, 1998) 10053.
6 Schopp, above n. 3 at 144.
7 For instance John Locke asserts that a person who expresses a settled design upon
another mans life, puts him in a state of war with him against whom he has
declared such an intention, because the victims right to life imposes a negative
duty of non-interference on the attacker. Hence, by using an unlawful force, an
aggressor forfeits his right to life and that he may be treated as beasts of prey:
J. Locke, The Second Treatise of Government, T. P. Peardon (ed.) (Bobbs-Merrill:
Indianapolis, 1960) 11. However, it creates moral diff‌iculties to accept Lockes
stance particularly towards innocent aggressors. Indeed, it is hard to view a child
or an insane person, who involuntarily poses threat over anothers right, as
merely beasts of prey. See also C. Oakes Finkelstein, On the Obligation of the
State to Extend a Right of Self-Defense to its Citizens 147(6) U Pa L Rev 1361
(1999).
8 Schopp, above n. 3 at 12.
The Journal of Criminal Law
132
mainly because criminal law is not deemed to be a tool for vengeance,
but a practical means to ensure the peaceful existence of a
community.
Today the governing principles of self-defencenamely, that the
danger must be imminent and defensive force is necessary and pro-
portionate to ward off the unlawful threatare under vigorous aca-
demic scrutiny. As shown below in detail, the crux of the debate is
concerned with the imminence requirement. The debate has mainly
been kindled by feminist scholars in the context of the so-called bat-
tered woman.9They argue that the requirement of imminence should
be discarded, since it is merely a translator for the concept of necessity.
This article, however, rejects this contention and underlines the neces-
sity of the imminence requirement. It argues that the challenge to the
requirement of imminence posed particularly by the battered woman
should not be answered by loosening the grip of the law for individual
justice, but by strengthening the state institutions to take the necessary
measures in order to break the vicious circle of the battered woman. The
cure for disadvantaged groups, such as battered women, does not lie
in diluting the self-defence doctrine, and allowing pre-emptive strikes in
non-confrontational situations, but by discovering ways to cure the
disease in the societal level via accentuating the role of the state
machine.
The categorisation of self-defence
Traditionally, self-defence is viewed as justif‌ication, that is, an entitle-
ment to do something that is stronger than a legal permission.10 Today,
however, some scholars assert that in order to expand the scope of self-
defence particularly to those of minority groups in general, and battered
women in particular, self-defence should be categorically put in the
excuse camp. In other words, it is concerned that categorising self-
defence as a justif‌ication is detrimental to the needs of vulnerable
9 The founder of the battered woman syndrome, Lenore Walker, changed the
stereotype of battered woman, according to which the battered woman was not
afraid for her life, to the contrary she invites the abuse. Walker asserted that
through a cycle of violence, the victim of the constant abuse came to believe that
she is so powerless to overcome her fears and leave the relationship, a condition
named as learned helplessness. A battered woman stays in the relationship not
because she is a masochist or violence does not terrify her, but because she is
psychologically trapped in the abusive circle. The f‌irst expert testimony as to the
battered woman syndrome was accepted in Ibn-Tamas vUnited States 407 A2d 626
(DC 1979), where the court found it useful to assess the battered womans claim
of self-defence. For more information, see S. Wallace, Beyond Imminence:
Evolving International Law and Battered Womens Right to Self-Defence 71 U Chi
L Rev 17567 (Fall, 2004).
10 Fletcher points out that the distinction between justif‌ication and excuse is of
fundamental importance in German law, and it was also indispensable to the
common law of homicide as understood by Blackstone. Today, he continues, only
some common law scholars, who respect the philosophical literature, esteem the
said distinction: G. Fletcher, Rethinking Criminal Law (Little, Brown: Boston, 1978)
759.
The Contours of the Right to Self-defence
133

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