Hostname: page-component-586b7cd67f-r5fsc Total loading time: 0 Render date: 2024-11-27T11:11:55.820Z Has data issue: false hasContentIssue false
  • English
  • Français

Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory*

Published online by Cambridge University Press:  12 February 2016

George P. Fletcher
Get access

Extract

Western legal systems diverge radically in their approaches to setting limits on the privilege of self-defence. Some systems incline to the view that a person defending his or another life or property may use all the force necessary to stifle an aggressive attack. Taken to the extreme, this means that if there is no other way to apprehend a thief escaping with a petty bounty, one may shoot him—if necessary, shoot to kill. In contrast to this approach, which is adverse to limits on the use of necessary force, another set of Western jurisdictions insists that the degree of force meet two desiderata: it must be both necessary and proportional to the interest protected. The requirement of proportionality or reasonableness means that there are some cases, like petty thievery, where the cost of protecting a threatened interest may be so great that one must surrender the interest rather than inflict grievous harm on the aggressor.

Type
Articles
Information
Israel Law Review , Volume 8 , Issue 3 , July 1973 , pp. 367 - 390
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1973

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Narrowly construed, the term “self-defence” refers only to the defence of one's person. In the absence of more suitable terminology in English, the term is used in the text to include the defence of others and the defence of property, thus parallel to the German and Russian concept of “necessary defence”. See Strafgesetzbuch (hereinafter cited as StGB) sec. 53; Uglovnyj Kodeks RSFSR (hereinafter cited as Ugol. Kod.) sec. 13.

2 The same term appears in French, proportionnalité, in German, Proportionalitaet, and in Russian, proportsional'nost'; unhappily, it is ambiguous in all these languages. The claim that harm is disproportionate may mean either (1) that it unduly exceeds the interest spared, or (2) that it is simply greater than the interest spared. In most contexts, it is clear that the first meaning is intended. See, e.g., Jescheck, H.H., Lehrbuch des Strafrechts (1969) 231Google Scholar; Stratenwerth, , “Prinzipien der Rechtfertigung” (1961) 68 Zeitschrift fuer die gesamte Strafrechts-wissenschaft 41, 60–61.Google Scholar But the Russian literature must be read with caution. Some authors seem to intend the second meaning, accordingly their rejection of proportionality means merely that they regard defensive force as justified even if it causes more harm than it spares. See Soviet Criminal Law: The General Part (M. Shargorodskij & N. Belaev eds. 1960, in Russian) 373 (identifying the issue of proportsional'nost' with the rule in necessity cases that the harm caused must not be greater than the harm spared). This ambiguity also explains the unfortunate translation of the word “proportionality” in the Hebrew text of Israel's C.G.O. sec. 18. The translators opted for the second meaning above and held that neither self-defence nor necessity applies as a defence if the harm caused is greater than the interest spared. This makes the section unsuitable for cases of self-defence. See Feller, , “Necessity Stricto Sensu as a Situation Negating the Criminality of Conduct” (1972) 4 Mishpatim 5 at 14.Google Scholar

3 There is little controversy on the point today, Bouzat, P. & Pinatel, J., Traité de Droit Pénal et de Criminologie (1970) Vol. 1, p. 363Google Scholar (“everyone agrees that the defence must be proportionate to the attack”); Degois, C., Traité Elémentaire de Droit Criminel (1912) 168–70.Google Scholar A few nineteenth century writers followed the German pattern and rejected the rule of proportionality, see e.g., Garraud, P., Précis de Droit Criminel (3rd ed., 1888) 184Google Scholar; Ortolan, J., Eléments de Droit Pénal (5th ed., 1886) 179.Google Scholar

4 Ugol. Kod. sec. 13.

5 See infra nn. 53, 60.

6 Zweites Gesetz zur Reform des Strafrechts sec. 13, enacted July 4, 1969, (1969 (I) Bundesgesetzblatt 717). The new code will hereinafter be cited as StGB 1973.

7 See infra text at n. 32.

8 See, e.g., Perkins, R., Criminal Law (1969) 995Google Scholar; Comment, “Justification for the Use of Force in the Criminal Law” (1961) 13 Stan. L.R. 566–67. In England, see Criminal Law Act, 1967, ch. 58, sec. 3(1): “A person may use such force as is reasonable in the circumstances in the prevention of crime…” This rule is assumed to control cases of self-defence, Smith, J. & Hogan, B., Criminal Law (2nd ed., 1969) 258.Google Scholar The word “reasonable” emerged in this context within approximately the last century and a half; it appeared in Bishop's discussion, Bishop, J., Criminal Law (7th ed., 1882) 518–9Google Scholar but not in Blackstone, see Blackstone, W., Commentaries Vol. 4, pp. 178–89Google Scholar, and apparently not in earlier texts. It was not used in California's 1872 legislative formulation of the defence and its limits; Calif. Penal Code, Sec. 197.

9 See generally Comment, supra n. 8, 573–81; Model Penal Code, sec. 3.04 (self-protection); sec. 3.05 (protection of others); 3.06 (protection of property) (Proposed Official Draft 1962). In addition, one finds references, particularly in the United States, to a privilege to prevent the commission of crime. E.g., Calif. Penal Code sec. 693. This privilege is expressed in absolutist language: The defending party may exert “sufficient resistance” to prevent an offence against his person, family or property. Id. In practice, however, this privilege seems to merge with those of self-defence and defence of property and is subject to the same rule of reasonable force. People v. Heisse, 217 Cal. 671, 20 P. 2d 317 (1933); Commonwealth v. Emmons, 157 Pa. Super 495, 43 A. 2d 568 (1945).

10 StGB 1973, sec. 34; Ugol Kod. sec. 14.

11 For early systematic discussions, see, Loeffler, , “Unrecht & Notwehr” (1901) 21 Zeitschrift fuer die gesamte Strafrechtswissenschaft 537, 539Google Scholar; Criminal Law RSFSR (ed., by Piontovskij, A., 1924, in Russian) 11.Google Scholar For references to Tsarist discussions of the same problem, see Shavgulidze, T., Necessary Defence (1966, in Russian) 101, n. 200, 110.Google Scholar The subject has been a popular one for dissertions in Germany, see e.g., Christman, K., Der rechtswidrige Angriff bei der Notwehr (1931)Google Scholar; Schlaeger, M., Die Rechtswidrigkeit des Angriffs bei der Notwehr (1897).Google Scholar Also, see authorities cited, infra nn. 18, 35.

12 Hall, J., General Principles of Criminal Law (2d ed., 1960) 233–34, 436 n. 85.Google Scholar

13 I have defined the problem narrowly. There is ongoing controversy in the German literature whether self-defence is applicable against non-purposive human threats, compare Jescheck, supra n. 2 at 229, with Schmidhaeuser, E., Strafrecht (1970) 271.Google Scholar

14 This point seems beyond dispute, Jescheck, supra n. 2, at 229; Course in Soviet Criminal Law (ed. by Piontovskij, A., Romashkin, P. and Chkhikvadze, V., Vol. 2, 1970, in Russian)Google Scholar (hereinafter cited as Kurs (1970)) 357, but it is curiously omitted from many common law codes, see, e.g., Calif. Penal Code, sec. 197 (deadly force permissible whenever anyone is threatening “great bodily injury to any person”.) Israel C.C.O. sec. 18 (defensive force permissible whenever necessary to avoid a greater harm). Neither the California nor the Israeli provision distinguishes between resisting legal and resisting illegal force.

15 Both the common law and Soviet law regard putative self-defence (a reasonable mistake that one is being attacked) as a case of privilege. Model Penal Code sec. 3.04 (Proposed Official Draft 1962); Perkins, supra n. 8, at 993–94; Kurs (1970) at 363–65. German law regards it as a case of excused but wrongful (rechtswidrige) conduct. Schmidhaeuser, supra n. 13, at 281; Jescheck, supra n. 2, at 233.

16 So far as necessity is recognized legislatively in common law jurisdictions, it is an instance of justification (lesser evils); Model Penal Code, see 3.02 (Proposed Official Draft 1962). Kadish, S. & Paulsen, M., Criminal Law and its Processes (2nd ed., 1969) 544–45Google Scholar (pointing out the gap in the Model Penal Code's coverage). Soviet law similarly ignores necessity as an excuse. Ugol Kods. sec. 14; Kurs (1970), at 380–93. German law, on the other hand, recognizes necessity as an excuse, StGB sec. 54, StGB 1973, sec. 35, and as a justification, StGB 1973, sec. 34, Schoenke, A. & Schroeder, H., Strafgesetzbuch (16th ed., 1972) 435–440.Google Scholar For the difference between necessity as an excuse and as a justification, see text infra at nn. 20, 23.

17 Duress has an ambiguous status in the common law. It is based partially on balancing interests as evidenced by the tendency to limit the defence to compliance with threats of death or serious bodily harm and exempting cases of homicide from the scope of the defence, Israel C.C.O. sec. 17, Calif. Penal Code sec. 26. It is also based partially on the view that submitting to the threats is involuntary, non-culpable, and thus excusable. See, e.g., Kawamita v. United States, 343 U.S. 717 (1952). Soviet law holds that cases acting under duress are to be analyzed as instances of alleged necessity under Ugol Kod. sec. 14. Course in Soviet Criminal Law (ed. by Beliav, N. & Shargorodskij, M., 1968, in Russian) 320.Google Scholar In German law, on the other hand, duress is clearly an excuse parallel to insanity. StGB sec. 52; Schoenke-Schroeder, supra n. 16 at 464. Cf. Code Pénal sec. 64 (treating duress as parallel to insanity).

18 If the problem is analyzed as one of self-defence, the privilege extends, by the language of the code, to attacks against third parties. StGB sec. 53; Ugol. Kod. sec. 13. There is general agreement today that self-defence applies against the psychotic aggressor. E.g. Schoenke-Schroeder, supra n. 16 at 469; Jescheck, supra n. 2 at 229; Enneccerus, L. & Nipperdey, H., Allgemeiner Teil des Buergerlichen Rechts (15th ed., 1959) Vol. 1, p. 1450Google Scholar (same conclusion as to tort law); Loeffler, supra n. 11 at 539–40; Kurs (1970) at pp. 356–57; Piontovskij, A., Theory of the Offence in Soviet Criminal Law (1961, in Russian) 426Google Scholar; Criminal Law: The General Part (Text of the Ministry of Higher Education, 1948, in Russian) 369. But note the dissenting view, infra n. 31.

19 J. Hall, supra n. 12, at 436 n. 85; Williams, G., Criminal Law: The General Part (2nd ed., 1961) 733Google Scholar; see also the parallel treatment in the French literature, Bouzat & Pinatel, supra n. 3, at 363; Vabres, H. Donnedieu de, Traité de Droit Criminel et de Législation Pénale Comparée (3rd ed., 1947) 232.Google Scholar But cf. the dissent by Merle, & Vitu, , Traité de Droit Criminel (1967) 318.Google Scholar

20 Goldschmidt, , “Der Notstand: Ein Schuldproblem” (1913) Oesterreichische Zeitschrift fuer Strafrecht 129, 224.Google Scholar

21 Regina v. Dudley and Stevens (1884) 14 Q.B. 273.

22 StGB sec. 54. The conditions of the defence are that (1) there be an imminent risk or death or serious bodily harm, (2) the risk threatens the actor or his dependent, (3) the situation not be the actor's fault, (4) there be no other way to avoid the risk but to inflict the harm in question. Compare the substantially similar defence in StGB 1973, sec. 35.

23 For a fuller discussion of the difference between the concepts of excuse and justification, particularly as applied to tort theory, see Fletcher, , “Fairness and Utility in Tort Theory” (1972) 85 Harv. L.R. 537, 558–59.CrossRefGoogle Scholar

24 Most strikingly in Bouzat & Pinatel, supra n. 3, at 362; cf. J. Hall, supra n. 12, at 436, n. 85 (analogy to natural force).

25 The same point was made by Loeffler, supra n. 11 at 541 n. 7, in criticizing those “who regard it as modern to depreciate the life of the insane”.

26 In the realm of excuses, intervention is permitted only on behalf of relatives or dependents. See, e.g., StGB sec. 54 (Angehoerige), StGB 1973, sec. 35. The reason is that excuses are based on the judgment that intervention is sufficiently involuntary that the actor can not be fairly blamed for his conduct; this presumably would not be the case if the actor intervened on behalf of a stranger. Many common law formulations of self-defence retain this limitation on third party intervention and thus reflect the influence of theories of excuse; see, e.g., Calif. Penal Code sec. 197 (3) (intervention only on behalf of wife, husband, parent, child, master, mistress or servant); Israel C.C.O. sec. 18 (intervention only on behalf of persons the actor “is bound to protect”).

27 StGB sec. 53; Ugol. Kods. 13.

28 Coke, E., Third Institute 55Google Scholar; Hale, M., Pleas of the Crown (1680) vol. 1, pp. 481–7Google Scholar; Foster, M., Crown Law 275Google Scholar; Hawkins, W., Pleas of the Crown vol. 1, p. 113Google Scholar; Blackstone, W., Commentaries Vol. 4, p. 184Google Scholar; a similarly limited defence emerged in sixteenth and seventeenth century ordinances in Germany and France. See Constitutio Criminalis Carolina secs. 139, 140 (1532); De Vabres, supra n. 19, at 227–28 (discussing the Ordinance of 1670); Vidal, G., Cours de Droit Criminel (9th ed. by Magnol, J., 1949) 312.Google Scholar

29 Coke, supra n. 28, at 55; Hawkins, supra n. 28, at 113; Forster, supra n. 28 at 278.

30 Indeed, se defendendo was thought to be part of the theory of necessity; see Blackstone, supra n. 28 at 186.

31 Some noteworthy German writers maintain that self-defence is based on a theory of balancing interests. Lenckner, , “Gebotensein und Unforderlichkeit der Notwehr” (1968) Coltdammers Archiv fuer Strafrecht 1Google Scholar; Schaffstein, , “Notwehr und Guterabwaegungsprinzip” (1952) Monatschrift fuer Deutsches Recht 132.Google Scholar See also the writers supporting the theory of Rechtsmissbrauch as limitation on defensive force, infra n. 68.

32 Blackstone, supra. n. 28, at 182. This seems to be the first account of why there are limits to the common law privilege of deadly force.

33 Model Penal Code sec. 3.11(1). (Proposed Official Draft 1962). The effort was not understood by legislators who adapted the code. See Fletcher, , “The Theory of Criminal Negligence: A Comparative Analysis” (1971) 119 U. Pa. L. R. 401, 428, n. 74.CrossRefGoogle Scholar

34 It is generally held that Berner coined the phrase in Berner, , “Die Notwehrtheorie” (1848) Archiv des Criminalrechts 547, 557, 562.Google Scholar Since then the maxim has appeared in virtually every German analysis of self-defence.

35 There are two features of Self-defence III, as it is defined in the text: (1) applicability of the defence against excused agression. On this point, see Jesheck, supra n. 2, at 229; Schoenke-Schroeder, supra n. 16, at 469; Maurach, R., Deutsches Strafecht (3rd. ed., 1968) 264Google Scholar; older authorities, cited supra n. 11 but cf. Schaffstein, supra n. 31, at 315–36 (scepticism about self-defence against psychotic aggressors); Schmidhaueser, , “Unter die Wertstruktur der Notwehr” (1970) Festschrift fuer Honig 194Google Scholar (rejecting self-defence against excused aggression). (2) rejection of the rule of proportionality. On this point see Himmelreich, K., Notwehr und bewusste Fahrlaessigkeit (1971) 76–86CrossRefGoogle Scholar; Kratsch, D., Grenzen der Strafbarkeit in Notwehr (1968) 52CrossRefGoogle Scholar; Heinsius, , Moderne Entwicklung des Notwehrrechts (1965) 32Google Scholar; Stratenwerth, supra n. 2, at 60–61; Oetker, “Notwehr und Notstand” (1930) Festgabe fuer R. Frank 283Google Scholar; Frank, R., Strafgestz fuer das Deutsche Reich (1908) 118–19.Google Scholar But cf. authorities recognizing the limitation imposed by the doctrine of Rechtsmissbrauch infra n. 68.

36 See authorities cited supra nn. 18, 35. The only dissent in the Soviet literature was voiced by Slutskij who argued that if the defendor knew that the aggressor was insane, the case should be analyzed as one of necessity; if the defendor did not know it should be a case of self-defence. Slutskij, I., Conditions for Negating Criminal Responsibility (1956, in Russian), 48–9Google Scholar, this view is routinely castigated in the literature, e.g. Piontovskij, supra n. 18, at 426–27; Kurs (1970) at 356–57; but it received sympathetic treatment in Tishkevich, I., Conditions and Limits to Self-Defence (1969, in Russian) 22–4.Google Scholar

37 Coke, E., Third Institute 55.Google Scholar

38 Locke, J., Two Treaties on Civil Government (1960) 120–7.Google Scholar

39 Id. at 126.

40 This is a theory of self-defence developed in the Kantian tradition. For survey of other theories, including some that might be more difficult to comprehend today, see Himmelreich, supra n. 35, at 70–72.

41 E.g. Schoenke-Schroeder, supra n. 16, at 471 (Die Notwehr dient der Bewahrung der Rechtsordung im ganzen: Self-defence serves to maintain the Legal Order in its entirety); Schmidhauser, supra n. 35, at 93–94 (Der Angriff stellt die Rechtsordnung in Frage: The aggressor's attack put the Legal Order into question).

42 There is no concept in the Soviet literature corresponding to Unrecht (the Wrong), but Soviet writers do rely heavily on the notions of protivopravnost' (Rechtswidrigkeit) and social dangerousness to make even excused aggression appear to be a threat to the Soviet social order. For a general treatment of these concepts, see Kurs (1970) at 131–34, 342–46.

43 In contrast to the German and Soviet emphasis on the connection between self-defence and protecting the Right and the Legal Order, it is interesting to note Joseph Beale's effort to banish a similar analysis from the common law of self-defence; he went so far as to say: “The law does not ordinarily secure the enjoyment of rights … Still less frequently the law permits one to protect his own rights…” Beale, , “Retreat from a Murderous Assault” (1903) 16 Harv. L.R. 567, 581.CrossRefGoogle Scholar

44 Decision of September 20, 1920, 55 Entscheidungen des Reichsgerichts in Strafsachen 82.

45 There was strong opposition in 19th century Germany to an unlimited right of self-defence. See, e.g. Geyer, A., Die Lehre von der Notwehr (1857) 39–42Google Scholar (favouring use of deadly force only to save life; citing other writers in accord). Dissent continued after the 1920 decision, cited, supra n. 44. Coenders, , “Zur Lehre vom Notrecht” (1925) Juristische Wochenschrift 891.Google Scholar Several factors in post-war Germany stimulated academicians to rethink the established view. One was a 1949 decision by the Higher State Court in Stuttgart, which held that acquitting a guard who intentionally killed a petty thief in flight was “a gross violation of natural law”. OLG Stuttgart, (1949) Deutsche Richterzeitung 42; another stimulating factor was the 1952 German ratification of the European Convention on Human Rights, which held in Article II (2) that deadly force is justifiable only to avert threats to life. See Woesner, , “Die Menschenrechtskonvention in der Deutschen Strafrechtspraxis” (1961) Neue Juristische Wochenschrift 381.Google Scholar Though this provision is legally binding in the German Federal Republic, its impact has been nullified by a variety of interpretative manoeuvers; Heinsius, supra n. 35 at 18–30; Schoenke-Schroeder, supra n. 16 at 467.

46 But note there is one strain in the German literature that regards proportionality as an exception, rather than as a rationale for the defence. E.g., Schoenke-Schroeder, supra n. 16 at 472.

47 E.g., Kratsch, supra n. 35 at 43–44; Berner, supra n. 33 at 584–85. The argument recalls the classic formulation of Justice Holmes: “Detached reflections cannot be demanded in the presence of an uplifted knife”, Brown v. United States 256 U.S. 335, 343 (1921).

48 The Soviet literature routinely stresses the importance of individual self-defence in combating crime, e.g. Kurs (1970) 347–49; Jakubovich, M., Theory of Self-Defence in Soviet Criminal Law (1967, in Russian) 17–20.Google Scholar

49 Draft 1925 sec. 21 (II) (“…in einer den Umständen nach angemessenen Weise…” as quoted in Heinsius, supra n. 35, at 5; Cf. the Swiss Criminal Code sec. 33, which also relies on the word angemessen (appropriate) to define the limits of self-defence. Schwander, V., Das Schweizerbche Strafgesetzbuch (2nd ed., 1952) 83–84.Google Scholar

50 Draft 1927 sec. 21 (“…nicht ausser Verhaeltnis…steht”) as quoted in Heinsius, supra n. 35 at 6. Cf. the German Civil Code (BGB) sec. 228, which used the same formula to regulate the justification of necessity against risks emanating from objects.

51 Draft 1939 sec. 24 (II) (…dem gesunden Volksempfinden nicht widerspricht), as quoted in Heinsius, supra n. 35 at 6.

52 StGB 1973, sec. 32.

53 Fundamental Principles of Criminal Legislation sec. 13 (1958) The identical language appears in Ugol. Kods. sec. 13.

54 Note that one could relate the issue of proportionality to the word “character” and the issue of necessity to the word “dangerousness”. There were some early signs that this interpretation might emerge; see the 1960 text on criminal law, cited supra n. 2 at 346, which held that the word “character” referred to the quality of the interest protected. But this view is not to be found in the subsequent Soviet works canvassed in this paper.

55 E.g., Kurs (1970) at 369, 371; Tishkevich, supra n. 36 at 97; Shavgulidze, supra n. 11 at 111.

56 E.g., Tishkevich, supra n. 36 at 93, 98; see also the criticism of lower courts in the 1969 decree of the Supreme Soviet, infra n. 57.

57 Decree No. 11 of the Plenum of the Supreme Court of the USSR, December 4, 1969 (On the Practice of Courts in Applying Legislation of Self-Defence), (1970) Bulletin of the Supreme Court at the USSR no. 1, p. 15 (in Russian).

58 Id. at 18 (point 3).

59 Kurs (1970) at 369.

60 Id. at 371; Shavgulidze, supra n. 11 at 109; Piontovskij, supra n. 18 at 442.

61 A good example is the development of the new defence of mistake of law; the issue was first debated in the literature; the Supreme Court endorsed one of the competing schools in its decision of March 18, 1952, 2 Entscheidungen des Bundesgerichtshofs in Strafsachen 194; and that position was then incorporated in the new code, StGB 1973 sec. 17.

62 Hale, supra n. 28 at 485–86 (distinguishing between tresspass and felonies); Calif. Penal Code sec. 197 (1), permitting deadly force “when resisting any attempt… to commit a felony…” This sweeping language has been narrowed in the case law, E.g., People v. Jones 191 Cal. App. 2d 378, 481; 12 Cal. Rptr. 777 (1961) (privilege limited to felonies involving danger of serious bodily harm).

63 Blackstone, supra n. 28 at 180 (deadly force limited to “forcible and atrocious crimes”) Storey v. State 71 Ala 329 (1882) (limited to “atrocious crime(s) committed by force”).

64 Oetker, supra n. 35 at 359.

65 Schmidhaueser, supra n. 35 at 196 (in the author's idiom, these attacks do not put “the empirical validity of the Legal Order in question”.)

66 See generally, Ennecerus—Nipperdey, supra n. 18 at 1442–48.

67 Decision of the Bavarian Higher State Court, January 22, 1963, (1963) Neue Juristische Wochenschrift 824.

68 Jescheck, supra n. 2 at 230–31; Schoenke-Schroeder, supra n. 16 at 472–73; Welzel, H., Das Deutsche Strafrecht (11th ed., 1969) 87CrossRefGoogle Scholar; Wessels, J., Strafrecht (1970) 50Google Scholar; Sauer, W., Allgemeine Strafrechtslehre (3rd ed., 1955) 120–22CrossRefGoogle Scholar; Baumann, , “Rechtsmissbrauch bei Notwehr” (1962) Monatschrift fuer Deutsches Recht 349 (discussing earlier references).Google Scholar The phrase Rechtsmissbrauch appears regularly in judicial opinions, even though the context rarely requires it. See, decision of the Supreme Court, June 6, 1968, (1969) Goltdammers Archiv fuer Strafrecht 1 (dicta; issue was unnecessary force); Decision of the Supreme Court, January 8, 1961, (1962) Neue Juristische Wochenschrift 308 (confusing issue of necessary force with the problem of proportionality). See the comment by Guttman, “Die Berufung auf das Notwehrrecht als Rechtsmissbrauch” (1962) id. at 286.

69 Kratsch, supra n. 35 at 30; Cf. Schaffstein, supra n. 31 at 135.

70 Grundgesetz sec. 103 (II).

71 One reply to this argument is that imposing limits on the defence is but to make explicit the underlying theory of the defence; see Leckner supra n. at 8–9. This argument assumes, without support, that the German theory of self-defence reflects the balancing of interests and is thus based on the model of Self-defence II.

72 Schmidt, , “Notwehr” 2 (1958) Niederschriften Ueber die Sitzungen der Crossen Strafrechtskommission, 54.Google Scholar

73 See also Schmidt, id at 58, suggesting that one should wait until the “hypothetical” problems arise in cases and then trust in the capacity of judges to solve them with “creative judicial legislation”.

74 E.g., Kurs (1970) at 371; Jakubovich, supra n. 48 at 85.

75 E.g., Kurs (1970) at 369; Piontovskij, supra n. 18 at 441.

76 Kurs (1970) at 369.

77 Tishkevich, supra n. 36 at 100–1; Jakubovich, supra n. 48 at 43–44; see also Decree of the Supreme Court, supra n. 57, at 16.

78 One source of scepticism is that in his classic article coining the maxim “Right should never yield to Wrong”, Berner does not even mention the problem of the psychotic aggressor, see Berner, supra n. 33.

79 See text supra at nn. 35, 43.

80 See W. Blackstone, supra n. 28 at 185 (referring to the King and his courts as “vindices injuriarum” thus stressing the primary role of the state in responding to aggression); accord, Hale, supra n. 4 at 481.

81 Kurs (1970) at 349; Piontovskij, supra n. 18 at 425; see also Decree of the Supreme Court, supra n. 57 at 17 (referring to self-defence as “inalienable right”).

82 Kurs (1970) at 349 (criticizing a Tsarist rule conditioning the right of self-defence on the unavailability of official help): Tishkevich, supra n. 36 at 62.

83 See generally, Enneccerus—Nipperdey supra n. 18 at 1440.