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Proportionality and the Psychotic Aggressor: Another View1

Published online by Cambridge University Press:  16 February 2016

Mordechai Kremnitzer
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In an article published in this journal in 1973, Professor George P. Fletcher maintained that there ought to be no limitation of proportionality on the exercise of self-defense. The requirement of proportionality signifies that there is a limit to the price society is willing or agreeable to pay for the protection of a legitimate interest against an unlawful attack. The right to use self-defense therefore rests upon the condition that there be some kind of relationship, which is not one of equivalence, between the interest attacked and that sacrificed in order to save it. In the absence of such a relationship, self-defense may not be employed. Thus, for example, in the case of a petty theft, if the interest attacked (ownership or possession of the property) can be defended only by inflicting serious injury—death or grievous bodily harm—upon the aggressor, one must refrain from doing so, even if this means sacrificing the interest at stake. If self-defense is not circumscribed by the requirement of proportionality, then the owner of an apple orchard who shoots and kills a thief, lacking any other means of stopping him from running off with the fruit he has stolen, will bear no criminal responsibility for his act.

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Israel Law Review , Volume 18 , Issue 2 , Spring 1983 , pp. 178 - 214
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1983

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References

2 This is also the example used by Fletcher in his article to illustrate the requirement of proportionality (p. 367).

3 As ruled in Germany in a Decision of September 20, 1920, Entscheidungen des Reichsgerichts in Strafsachen 82. We must distinguish between the requirement of proportionality and that of necessary force. The latter assumes the existence of a condition of proportionality (based on the acknowledged right of the victim of the attack to defend himself by inflicting injury upon his attacker), and on the basis of it demands that the defender do no more than is absolutely necessary to defend the interest attacked. Thus, for example, one may not use firearms against a person attempting to attack one if bare hands would suffice to frustrate the aggressor's intentions. On the other hand, however, if the orchard owner had no other way to prevent a thief from getting away with his loot, he would have a right, in terms of the requirement of necessary force, to shoot him. The issue of retreat in a situation threatening life or person would appear, at first glance, a mixed question of both necessity and proportionality, as retreat may also involve a question of honor. An injury to one's honor, however, would only be of an indirect nature, since it would involve an interest that was not under attack, and an injury that would not in itself be unlawful.

4 In German law, the right to employ self-defense does not depend upon the attack being culpable, but only upon its being unlawful, and it therefore exists in situations where the attack is unlawful without the attacker being culpable for his action.

5 Both the victim of the attack and another person coming to his aid may, in German law, take shelter for their actions under the exception of self-defense.

6 The Artide, p. 378.

7 Ibid.

8 The Article, pp. 389, 390.

9 The Article, idem; and in his book, Fletcher, G.P., Rethinking Criminal Law (Boston, 1978) 860, 861, 865Google Scholar (hereafter: The Book).

10 Without relating to social considerations of the common good. On p. 389 of his Article, Fletcher refers to German and Soviet law as systems that are “more amenable to justifications based on individual rights rather than the public interest”. (emphasis added). See also p. 390 of the Article.

11 In his Book (p. 861), Fletcher notes that Soviet jurisprudence has adopted the same principles as those accepted by German law, on the basis of its liberal legal theory, for different reasons, i.e., that “The theory of autonomy generates maximum scope for the privilege and thus encourages private parties to maintain the social order (emphasis added) by injuring or killing aggressors”. See also n. 26 on p. 861, and pp. 868 and 872. And see, further, Piontkovsky, A.A. and Tchkhikvadze, V.M., Le Système penal Soviétique (Paris, 1975) 44–46Google Scholar; and also the unambigious attitude of East German law in this respect, as expressed in the Strafrecht Allgemeiner Teil (Berlin, 1978) 397: Derjenige, der von seinem Notwehrrecht Gebrauch macht … handelt im Intresse der sozialistischen Gesellschaft [this wording is the same as that of Art. 17.1 of the East German Criminal Code].

12 If society were indeed viewed as a collection of separate autonomies, it is doubtful that the right of a person to come to the defense of another would be recognized.

13 The Book, p. 869; see also A.A. Piontkovsky & V.M. Tchkhikvadze, op. cit., at 45–46; Aiyar, & Anand, , Law of Private Defense (Allahabad, Revised by Menon, C.U., 1964), 19, 20Google Scholar; Roxin, C., “Die ‘sozialethischen Einschränkungen’ des Notwehrechts” (1981) 93 Zeitschrift für die gesamte Strafrechtswissenschaft 68, 71CrossRefGoogle Scholar; Jescheck, H.H., Lehrbuch des Strafrechts Allgemeiner Teil (Berlin, 3rd ed., 1978) 270.Google Scholar

14 The Article, p. 378. The author gives this aspect insufficient emphasis, in our opinion, and his likening of self-defense to war has the effect of blurring it. Clearly, however, if we do not relate to this aspect of self-defense, but only to its protection of legitimate interests, we will be unable to define its unique character and distinguish between it and necessity, since necessity too, means that one is protecting a legitimate interest, one's own or that of another. What is unique about self-defense is that it is employed against an aggressor whose behavior is unlawful. In the book (p. 863), Fletcher raises the question of “whether the concept of aggression presupposes purposive conduct, or whether any threatening event will do”. In our opinion, a “threatening event” is not sufficient to give rise to a right of self-defense; see also the Book, p. 865.

15 The Book, p. 862.

16 The Book, p. 554; see also Eser, A., “Justification and Excuse” (1976) 24 Am. J. Comp. L. 621, 626, 627.CrossRefGoogle Scholar

17 The Book, pp. 802, 863. See also Bockelmann, P., Strafrecht—Allgemeiner Teil (Munich, 3rd ed., 1979) 93.Google Scholar

18 The Book, p. 802.

19 According to Soviet law, which, according to Fletcher, sees mistake and duress as justifications as well, the autonomy of the individual must retreat before any violation committed as a result of mistake or duress.

20 Ahmed & Sheikh v. M.I. (1972) (I) 26 P.D. 309, 316. Montesquieu's statements on this point are also relevant to our discussion: “Entre citoyens le droit de défense naturelle n'emporte point avec lui la nécessité de l'attaque. Au lieu d'attaquer, ils n'ont qu'à recourir aux tribunaux. Ils ne peuvent donc exercer le droit de cette défense que dans les cas momentanés, où l'on serait perdu, si l'on attendait le secours des lois. Mais entre les sociétés, le droit de la defense naturelle entraîne quelquefois la nécessité d'attaquer…” Quoted from Esprit des Lois, liv. x, Chap. 11, Foriers, P.De L'État de Nécessité (Brussels, 1951) 119.Google Scholar

21 The Book, p. 862; The Article, p. 378.

22 Mezger, E., Blei, H., Strafrecht 1 Allgemeiner Teil (Munich, 15th ed., 1973) 136Google Scholar; Petters-Preisendanz, Strafgesetzbuch (Berlin, 28th ed., 1974) 202Google Scholar; Schönke, A. & Schröder, H.Strafgesetzbuch Kommentar (Munich, 20th ed., 1980) 450–452Google Scholar; Maurach, R., Zipf, H., Strafrecht Allgemeiner Teil (Heidelberg, 5th ed., 1977) 1, 384Google Scholar; Sauer, W., Allgemeine Strafrechtslehre (Berlin, 1955) 121CrossRefGoogle Scholar; H.H. Jescheck, op. cit., supra n. 13 at 270, 275, 276. On Soviet law see: A. A. Piontkovsky & V. M. Tchkhikvadze, op. cit., supra n. 11 at 46: On East German law see: Strafrecht op. cit., supra n. 11 at 402–404; see also the Austrian Criminal Code, Art. 3, and its interpretation as it relates to our topic in Kienapfel, D., Österreichisches Strafrecht Allgemeiner Teil (Vienna, 2nd ed., 1979) 152.Google Scholar See also the Argentinian Criminal Code, Art. 34(6) (b); Spain, Art. 4.8(b); Norway, Art. 48.

23 See, e.g., A. Schönke & H. Schröder, op. cit., at 452; W. Sauer, op. cit., at 121; Logoz, P., Commentaire du Code Pénal Suisse-Partie Général (Neuchâtel, 2nd ed., 1976) 172.Google Scholar

24 Kenny's, Outlines of Criminal Law (Cambridge, 19th ed. by Turner, J. W. Cecil, 1966) 142.Google Scholar

25 H.H. Jescheck, op. cit., supra n. 13 at 270; A. Schönke & H. Schröder, op. cit. supra n. 22 at 452; Aiyar & Anand op. cit., supra n. 13 at 10; The Book, p. 867.

26 Or, to give another example, if a person tried to kill someone on the mistaken assumption that his victim was an animal, or otherwise Without “malice afore-thought”, his victim would not be entitled to use self-defense against him, while the victim of a person who thought, as a result of his illness, that all men were vegetables would be so entitled.

27 Foriers, op. cit., supra n. 20 at 114; Lenckner, , Der Rechtfertigende Notstand (Tübingen, 1965) 49, 50Google Scholar; see also for the idea of solidarity in reference to self-defense in Soviet law, A.A. Piontkovsky & V.M. Tchkhikvadze, op. cit., supra n. 11 at 44, 45.

28 The criminal codes of the Communist countries.

29 See the criminal codes of Belgium, Art. 422 bis; France, Art. 63; Norway, Art. 387; Denmark, Art. 253; Holland, Art. 450; Czechoslovakia, Art. 227; the Soviet Union, Art. 127; Hungary, Art. 259; Romania, Arts. 315, 316; Yugoslavia, Art. 147; Poland, Art. 164; Italy, Art. 593; Turkey, Art. 476; Germany, Art. 330 C; Austria, Art. 95; and with regard to Portugal, see the Civil Code 1867, Art. 2368.

30 The Book, p. 846. See also, Baum, F. S. & Baum, J., Law of Self-Defense (New York, 1970) 19, 20.Google Scholar

31 The Article, p. 379.

32 The Article, p. 378: “…the psychotic aggressor is not culpable”; “…aggressive propensities for which he is not morally to blame”.

33 See the criminal codes of Austria, Art. 3; Colombia, Art. 25.2; Finland, Chap. 10, Art. 6; Hungary, Art. 15; Holland, Art. 40; Sweden, Chap. 24, Art. 1; Turkey, Art. 49.2.

34 C. Roxin, op. cit., supra n. 13 at 94; H.H. Jescheck, op. cit., supra n. 13 at 279; Maurach-Zipf, op. cit., supra n. 22 at 385–387; Schönke-Schröder, op. cit., supra 22 at 456; P. Bockelmann, op. cit., supra n. 17 at 97. See also the Article, pp. 384–385.

35 The Article, p. 384. The author sees this result as “patently absurd”.

36 Graven, P., An Introduction to Ethiopian Penal Law (Addis Ababa, 1965) 220.Google Scholar This is also the reason for its special treatment, in comparison to other exceptions to criminal responsibility, in the Swiss code; in Art. 33 it is described as a right. See also Foriers, op. cit., supra n. 20 at 214–216; Bertel, C., “Notwehr gegen verschuldete Angriffe”, (1972) 84 ZStW 1, 10CrossRefGoogle Scholar; C. Roxin, op. cit., supra n. 13 at 73; E. Mezger, H. Blei, op. cit., supra n. 22 at 136. For the attitude of Soviet law, see the Book, pp. 861, 868, 872.

37 Aiyar & Anand, op. cit. supra n. 13 at 9; Eser, op. cit., supra n. 16 at 633, 634; C. Bertel, op. cit., at 7; Maurach-Zipf, op. cit., supra n. 22 at 374, 375; Schönke-Schröder, op. cit., supra n. 22 at 442, 443; H. H. Jescheck, op. cit., supra n. 13 at 270; Schmidhäuser, E., “Über die Wertstruktur der Notwehr”, Festschrift für R. M. Honig (Göttingen, 1970) 185, 194Google Scholar; C. Roxin, op. cit., supra n. 13 at 74.

38 See, e.g., the Swedish Criminal Code, chap. 24, Art. 1; the Italian Criminal Code, Art. 54; the Spanish Criminal Code, Art. 4.8 (a); the Argentine Criminal Code, Art. 34(6); the Colombian Criminal Code, Art. 25.2; Indian criminal law: Aiyar & Anand, op. cit., supra n. 13 at 39; Hall, J., “Comment on Justification and Excuse” (1976) 24 Am. J. Comp. L. 638, 644CrossRefGoogle Scholar; P. Graven, op. cit., supra n. 36 at 220, 221.

39 On the distinction between self-defense and necessity see also: T. Lenckner, op. cit., supra n. 27 at 49; and compare his comments on necessity on p. 338 with those on self-defense on pp. 214–216; Foriers, op. cit., supra n. 20 at 212, 213; see also Logoz's discussion of the essential character of necessity, P. Logoz, op. cit., supra n. 23 at 182, 183.

40 The exercise of self-defense is not defined by the various legal systems as being dependent upon “the lack of any other alternative”, as is action based upon necessity. Those legal systems which do not favor the application of a general and comprehensive requirement of retreat include that of West Germany: see T. Lenckner, op. cit., supra n. 27 at 24; C. Bertel, op. cit., supra n. 36 at 8; The Book, p. 865; though see also A. Eser, op. cit., supra n. 16 at 632, n. 55; that of East Germany: see Strafrecht, supra n. 11 at 405; that of Switzerland: P. Logoz, op. cit., supra n. 23 at 169, 172; Schwander, V., Das Schweizerische Strafgesetzbuch (Freiburg, 1969) 84Google Scholar; and Soviet law: see A.A. Piontkovsky & V. M. Tchkhikvadze, op. cit., supra n. 11 at 46. The reason for this attitude is that the person who has been attacked is considered to be protecting not only himself—or not only a private interest, if he has come to the defense of another—by his resistance, but also the public order and the legal system. Were the general, social interest at stake not a consideration, it would follow that the victim of the attack ought to be obliged to retreat, at least insofar as he does not endanger himself in so doing. See the Book, p. 865; C. Roxin, op. cit., supra n. 13 at 71. Anglo-American law, which does not have a clear approach on this subject, distinguishes between a perfect right of self-defense, which applies to a person who bears no culpability at all and so is not subject to a requirement of retreat, and an imperfect right of self-defense, applicable to someone who has gotten into a fight, which does require retreat where possible. See Perkins, R.M., Criminal Law (Mineola, 2nd ed., 1969) 998, 1002Google Scholar; F. S. Baum and J. Baum, op. cit., supra n. 30 at 16; Aiyar & Anand, op. cit., supra n. 13 at 9–10, 15, 24. See also, and compare, their discussion on pp. 426–430. See also: Smith, J. C. & Hogan, B., Criminal Law (London, 4th ed., 1978) 326Google Scholar; Bein, D., “The Duty to Retreat in ‘Self-Defense’” (1967) 23 HaPraklit 221, 375.Google Scholar This system also distinguishes between the situation of a person attacked in his own home or work-place, who is not required to retreat, and that of a person attacked in some other place, who is required to do so. See the Book, p. 868.

41 See the Swiss Criminal Code, Art. 34; Turkey, Art. 49.3; the Soviet Union, Art. 14; Yugoslavia, Art. 12; Hungary, Art. 16(1); Romania, Art. 45; Czechoslovakia, Art. 14; Bulgaria, Art. 6; Poland, Art. 23; East Germany, Art. 19.1; Finland, Chap. 3, Art. 10; Ethiopia, Art. 71; Colombia, Art. 25.3; Egypt, Art. 61. See also Foriers, op. cit., supra n. 20 at 116, 215, 335–6, 344; T. Lenckner, op. cit., supra n. 27 at 119; J. Hall, op. cit., supra n. 28 at 426; Schwander, op. cit., supra n. 40 at 82; P. Logoz, op. cit., supra n. 23 at 477.

42 The importance of the interest attacked is supplemented, in cases of self-defense, by that of the injury to the public order. See: E. Schmidhäuser, op. cit., supra n. 37 at 194; C. Bertel, op. cit., supra n. 36 at 8, 9; Schmidhäuser, E., Strafrecht Allgemeiner Teil (Tübingen, 1970) 264Google Scholar; C. Roxin, op. cit., supra n. 13 at 71, 73. Thus, killing a robber or a burglar would be considered a matter of self-defense, and so, too, might the use of non-deadly force against a thief. We must emphasize, however, that the difference between the two exceptions in this respect is one of degree.

43 See the Swiss Criminal Code, Art. 34; Turkey, Art. 49.3; Greece, Arts. 25, 32; Italy, Art. 54; Ethiopia, Arts. 71, 72 (by implication from Art. 72); Austria, Art. 10(2); New York, Art. 35; Egypt, Art. 61; Spain, Art. 7.8(b); Argentina, Art. 34(3); Colombia, Art. 25.3; Yugoslavia, Art. 12; Hungary, Art. 16(3). See also: Feller, S.Z., “‘Necessity’ Stricto Sensu as a Situation Negating the Criminality of Conduct” (1972) 4 Mishpatim 5, 18–21Google Scholar; Foriers, op. cit., supra n. 20 at 111.

44 In their definitions of self-defense, these legal systems do not mention any requirement that the defender bear no blame for creating the situation, though such a requirement does appear, in these same systems, in relation to the exception of necessity. In East and West German law, the right to employ self-defense is denied only—and not utterly—to a person who has intentionally provoked his attacker, with the intention of attacking him in the guise of resistance, but it is not denied a person who, though he anticipated what would happen, did not wish for it to come about. See: C. Roxin, op. cit., supra n. 13 at 87; Schönke-Schröder, op. cit. supra n. 22 at 457, 458; H.H. Jescheck, op. cit.; supra n. 13 at 278; Strafrecht, op. cit., supra n. 11 at 406. There are also those who believe that not every intentional provocation will necessarily obviate a person's right of self-defense: P. Bockelmann, op. cit., supra n. 17 at 95; Schönke-Schröder, op. cit., supra n. 22 at 458, 459. Concerning Israeli law, see: S. Z. Feller (n. 43, above) 22–26; and Gur-Arye, M., “The Doctrine of Actio Libera in Causa” (Dissertation for the degree Doctor of Law, submitted to the Senate of the Hebrew University on 10 June 1980) 100–106.Google Scholar This also explains German law's restriction of the right of self-defense in cases where the assailant is his victim's spouse, for the law in such a case takes into account the general obligation of the spouse to defend and protect his or her partner. See: C. Roxin, op. cit., supra n. 13 at 100–103.

45 This distinction is relevant, for example, in approaching the subject of the victim's retreat. If self-defense is viewed solely as an individual right, then the fact that the victim of the attack is not required to retreat might be viewed as an expression of his right to defend his personal honor—see Aiyar & Anand, op. cit., supra n. 13 at 430, 432—and as such it would be difficult to defend, since it ascribes greater value to a person's honor than to life itself. See R. M. Perkins, op. cit., supra n. 40 at 1017. On the other hand, if self-defense is viewed as a defense of the legal system as well, then this fact would represent refusal to surrender on the part of the law and the legal system to a person who attacks them. When this second justification for self-defense is taken into account, we can go on to deny a person who has caused or contributed to the situation in which he has been attacked the right to defend himself, since his behavior makes him unworthy to defend the law and the legal order: T. Lenckner, op. cit., supra n. 27 at 24; C. Bertel, op. cit., supra n. 36 at 5, 9.

46 H.H. Jescheck, op. cit., supra n. 13 at 276–279; Maurach-Zipf, op. cit., supra n. 22 at 374, 375; Schönke-Schröder, op. cit., supra n. 22 at 455–460; C. Roxin, op. cit., supra n. 13 at 76, 77; E. Schmidhäuser, op. cit., supra n. 37 at 194, 198–9.

47 A. Eser, op. cit., supra n. 16 at 632.

48 Maurach-Zipf, op. cit., supra n. 22 at 374.

49 As cited by R. M. Perkins—who disagrees—in his book (supra n. 40) 991.

50 Krey, V., “Zur Einschränkung des Notwehrrechts bei der Verteidigung vom Sachgütern” (1979) 34 Juristenzeitung 702, 714Google Scholar; T. Lenckner, op. cit., supra n. 27 at 24: “da hier ein ‘Kampf um das Recht’ sinnlos ist”; C. Roxin, op. cit., supra n. 13 at 97; the Article, n. 45 on p. 381, and p. 385.

51 C. Roxin, op. cit., supra n. 13 at 77.

52 Bouzat, P., Traité de Droit Pénal et de Criminologie (Paris, 1963), vol. 1, p. 272.Google Scholar

53 C. Bertel, op. cit., supra n. 36 at 10, 11. It is doubtful that the psychotic himself will learn a lesson from the fact that his attack has been repulsed, and even more so that other psychotics will learn anything from it. As for sane people, they will most likely view the psychotic's attack as so extraordinary and different from one committed by a sane person that they will draw no inferences whatever regarding themselves from either it or its consequences. At any rate, there is, in our opinion, very little likelihood that placing restrictions upon the resistance to a psychotic aggressor will influence sane people in the direction of criminal behavior.

54 The Book, p. 844. See also: C. Roxin, op. cit., supra n. 13 at 81.

55 The Article, p. 373.

56 The Book, pp. 865, 866.

57 Or, to use Schmidhäusers terms (supra n. 37 at 194, 195), its empirical significance.

58 The dispute, as they see it, concerns only exceptions which are considered excuses. Where justified behavior, such as justified necessity and self-defense, is concerned, the author too, does not believe that self-defense may be employed against it.

59 Kremnitzer, M., “Insanity and Intoxication—The Burden of Proof” (1978) 31 HaPraklit 465.Google Scholar

60 See, for example, the difference between German and Soviet law in their classification of mistake: the Article, p. 371, n. 15; the Book, p. 799. On the debate over the classification of necessity and duress—the Book, p. 799. On the complex nature of duress—the Article, pp. 371, 372, n. 17; and see also Fletcher's, article, “The Individualization of Excusing Conditions” (1974) 47 S. Cal. L. R. 1269.Google Scholar The complex nature of these exceptions is also reflected in some aspects of self-defense, in that its cover is considered to extend to cases in which the defender has violated the restrictions governing it on account of the terror to which he was subject. See, for example, the criminal codes of Holland, Art. 40; Bulgaria, end of Art. 5; Denmark, Art. 13.2; Switzerland, Art. 33.2; Ethiopia, Art. 75.2; Yugoslavia, Art. 11.3; Hungary, Art. 1–5(2); Romania, end of Art. 44; Norway, end of Art. 48; and also Soviet law, though such a situation is not given explicit mention in the definition of self-defense, and apparently finds its place amongst the various extenuating circumstances: see A.A. Piontkovsky & V.M. Tchkhikvadze, op. cit., supra n. 11 at 46. In German law this situation is regulated by a separate clause (Art. 34), and it is considered an excuse. Fletcher himself writes of self-defense in his book (p. 767) that: “The theory of self-defense itself oscillates between a rationale of excuse and of justification”. See also: A. Eser, op. cit., supra n. 16 at 636; J. Hall, op. cit., supra n. 38 at 640.

61 A. Eser, op. cit., supra n. 16 at 628.

62 J. Hall, op. cit., supra n. 38 at 640.

63 I say this only for purposes of exemplification and clarification, since where an insane person is concerned we need not enter into an analysis of his behavior to see whether the elements of the crime were present.

64 P. Foriers, op. cit., supra n. 20 at 104–106, 124–127.

65 If we put aside our skeptical attitude towards it from a factual point of view.

66 S. Z. Feller, op. cit., supra n. 43 at 9. See also the Book, pp. 821, 823; P. Foriers, op. cit., supra n. 20 at 44, 45; in our opinion, there is no reason to relate differently to the person acting under duress (who has been forced to act by persons threatening his life) than to a person constrained by necessity, simply because the effective reason for the former's behavior is created by criminal behavior on the part of others and not merely by circumstances, for the person acting under duress himself did not choose this situation, and he has no relationship towards or responsibility for it.

67 The Article, p. 372, n. 17. We might ask whether it would not be more consistent on the part of German law to distinguish between two kinds of duress, as it does between the two categories of necessity, according to the relative values of the interest to be sacrificed and that to be saved.

68 Williams, G., “The Theory of Excuses” [1982] Crim. L. R. 732Google Scholar; Robinson, P. H., “Criminal Law Defenses: A Systematic Analysis” (1982) 82 Col. L. R. 199.CrossRefGoogle Scholar

69 We might mention here, too, that the author was unable to classify the repulsion of the psychotic aggressor within the framework of self-defense, using the distinction between justification and excuse, and he thus had to propose a unique conception of self-defense.

70 The author believes that justifications, as opposed to excuses, also help guide people's behavior: the Book, pp. 768, 810, 811. There is, indeed, always the possibility of mistake, which would create a situation of “putative necessity”, but this is the exceptional, extraordinary situation; here, however, I doubt whether there is much chance of not being mistaken.

71 Moreover, different people will have different subjective views of the same interest: T. Lenckner, op. cit., supra n. 27 at 98, 99. The relative values of the two interests in conflict, too, may look different to the person acting on the basis of necessity than they do to the victim of his action: J. Hall, op. cit., supra n. 38 at 643, The statement that the victim of the necessary action has a right to use self-defense if the case is one of excused necessity, but not if it is justified, thus seems rather dubious. See: P. Graven, op. cit., supra n. 36 at 213. In general, the victim of the necessary action would not be able to tell which category of necessity is involved, and we can thus at best relate to him according to the image created in his mind concerning the nature of the action of the person acting under circumstances of necessity.

72 In many cases, the person acting on the basis of necessity will have no information by which to appraise the importance of the interest he must sacrifice to the person to whom it belongs. A property interest which might, from an objective point of view, appear relatively unimportant could be its owner's pride and joy. On the court's method of gauging the values of the interests involved, see A. Eser, op. cit., supra n. 16 at 635.

73 Without disregarding the variety of situations subsumed under this category.

74 See the criminal codes of Austria, Art. 10(1), which is concerned with excused necessity; Poland, Art. 23; Sweden, Chap. 24, Art. 4; Finland, Chap. III, Art. 10; Italy, Art. 54; Korea, Art. 24; Germany, Art. 35 (Entschuldigender Notstand); Ethiopia, Art. 71; and see P. Graven, op. cit., supra n. 36 at 209. On the other hand, a number of codes demand a ratio of equivalence between the damage that has been prevented and that which has been caused: Yugoslavia, Art. 11; Spain, Art. 8.7(a); Switzerland (according to the commentaries); while others demand that the damage that has been caused be less than that prevented: Greece, Arts. 25 (on justified necessity) and 32 (on excused necessity); Iceland, Art. 13; Norway, Art. 47; Model Penal Code, 3.02(1) (a); Soviet Union Art. 14; Czechoslovakia, Art. 14; Hungary, Art. 16. And see also A. Enker, op. cit., supra n. 1 at 115.

75 Excepting, perhaps, the type of situation in which a poor man is saving his last possession by his damage to the more valuable property of a rich man. It may be, too, that a person's sentimental attachment to a particular object may justify his damaging something of greater pecuniary value in order to save it.

76 See the Book, pp. 787, 800, 803, 819, 824, 826, 831.

77 P. Foriers, op. cit., supra n. 20 at 118, 119; Bassiouni, Ch. M., Substantive Criminal Law (Springfield, 1978) 452–453Google Scholar; Hall, J., Principles of Criminal Law (Indianapolis, 2nd. ed., 1960) 416, 429Google Scholar; Williams, G., Criminal Law—the General Part (London, 2nd ed., 1961) 437, 438Google Scholar; Chevalier, J. Y., “L'État de Nécessité”, in Mélanges en l'honneur du doyen Pierre Bouzat (Paris, 1980) 117, 125, 126.Google Scholar On the other hand, some legal systems consider necessity to create an exemption from criminal responsibility only when the value of the interest sacrificed is less than or equivalent to that of the interest that has been saved. See n. 74 above.

78 See, for example the criminal codes of Austria, Art. 10—and this despite the fact that it concerns excused necessity; Yugoslavia, Art. 12; Romania, Art. 45; Turkey, Art. 49.3; Switzerland, Art. 34.2. The defense of the interest of another might even be viewed as a more justified instance of necessity than that in which a person is defending his own interest, since it is motivated by altruism rather than by an egotism and may involve both heroic behavior—because of the risk involved—and sacrifice. See: T. Lenckner, op. cit., supra n. 27 at 101; P. Foriers, op. cit., supra n. 20 at 17, 329. The third party who intervenes usually has some kind of relationship to the owner of the interest, but the applicability of the exception should not be restricted to non-strangers. If the life of a child is in danger, it is in the interest of society for a neighbor or even a chance passerby to come to his aid, and, if necessary, break into the apartment where the child is, even if this means damaging the property of others; moreover, saving one person at the price of injury to another ought not to be considered a crime if the person who has been saved has a family, while the other is alone; nor would it be contrary to human nature for a person to come to the aid of a child, or a man to that of a young girl, even if they must be saved at the cost of the life of another. See also the Book, pp. 852–3.

79 Seeing another person in the midst of a calamity is distressing to the enlooker as well.

80 One might, perhaps, say that what detracts from the value of the interest of the psychotic aggressor in comparison to that of his victim is the fact that he is the source and initiator of the danger (though he is not to blame for this), while the victim is the object of that threat.

81 The Book, p. 863.

82 The Article, p. 378; he is, at any rate, more like a person acting involuntarily than a criminal.

83 Graven's (supra n. 36 at 222) explanation for considering resistance to a psychotic a matter of self-defense is that the victim of the attack, cannot be expected to know, or to have time to find out, whether his assailant is sane or not. We must agree that when the victim does not know that his assailant is insane, the case is not one of necessity, and that, in general, he is not required to make an investigation of his assailant's state of mental health (though if the incident took place in a mental hospital, the matter would be different). It is interesting to note that the Article (p. 379, n. 36) cites one Soviet writer as being of the opinion that if the defender does not know that his assailant's mental faculties are impaired, his resistance has the nature of self-defense, while if he docs know this, it is considered a matter of necessity. Another writer, I. Tishkevich, relates favorably to this view, though it also has its opponents. It may be that it is the explanation offered by Graven that underlies the German, Soviet and Swiss legal systems' view that resisting an insane assailant has the character of self-defense. If so, then this approach is really of a practical nature; the law is framed in accordance with the great majority of cases, though it is ill-conceived to deal with the minority.

84 The Book, pp. 803–805.

85 See supra n. 41.

86 See supra n. 45.

87 See supra n. 44.

88 Ibid.

89 See, e.g., E. Mezger, H. Blei, op. cit., supra n. 22 at 135. Even from the point of view of one's personal honor, this suffers no injury if it is a child or insane person before whom one must flee. E. Schmidhäuser, op. cit., supra n. 42 at 266.

90 Petters-Preisendanz, op. cit., supra n. 22 at 203; MauracH-Zipf, op. cit., supra n. 22 at 385; W. Sauer, op. cit., supra n. 22 at 122; Mezger-Blei, op. cit., supra n. 22 at 136, 139, 140. Schönke-Schröder, op. cit., supra n. 22 at 457; H.H. Jescheck, op. cit., supra n. 13 at 277; T. Lenckner, op. cit., supra n. 27 at 24; C. Roxin, op. cit., supra n. 13 at 81, 83; Schmidhäuser, op. cit., supra n. 37 at 186; Bockelmann, P., “Notwehr gegen verschuldete Angriffe”, in Festschrift für Richard M. Honig (Göttingen, 1970) 19Google Scholar; the Book, p. 865; in East Germany, Strafrecht, op. cit., supra n. 11 at 405.

91 The Book, p. 865.

92 See the criminal codes of Yugoslavia, Art. 12; Spain, Art. 8.7(c); Greece, Arts. 25, 32(2); Hungary, Art. 16(3); Italy, Art. 54; Poland, Art. 23(3); Korea, Art. 22(2); Colombia, Art. 25.3; Austria, Art. 10(1); for German law, see Schönke-Schröder, op. cit., supra n. 22 at 476, concerning necessity as a justification; and as for necessity as an excuse, see Art. 35 itself; V. Schwander, op. cit., supra n. 40 at 82.

93 See supra n. 42, and also P. Bockelmann, op. cit., supra n. 17 at 102.

94 C. Roxin, op. cit., supra n. 13 at 81; W. Sauer, op. cit., supra n. 22 at 121, 122. See also the difference between the Swedish code's definition of necessity—“his conduct is considered justified” (Chap. 24, Art. 4)—and its definition of self-defense—“so long as the act is not obviously unjustifiable” (Chap. 24, Art. 1).

95 See supra n. 43.

96 See Schönke-Schröder, op. cit., supra n. 22 at 459, para. 61.

97 See supra n. 44.

98 In a 1949 decision in Germany, it was ruled that the acquittal of a guard who had intentionally killed a thief who was running off with some paltry loot was “a gross violation of natural law” (The Article, p. 381, n. 45). The author himself believes it would be “patently absurd” to acquit someone who had shot at a gang of noisy motorcyclists in order to silence them (The Article, p. 384). See also the references in n. 50.

99 See, e.g., the criminal codes of Italy, Art. 54; Sweden, Chap. 24, Art. 1; Switzerland, Art. 33, and see: Germann, O. A., Das Verbrechen im neuen Strafrecht (Zürich, 1942) 217Google Scholar; V. Schwander, op. cit., supra n. 40 at 84; P. Logoz, op. cit., supra n. 23 at 171, 172; Yugoslavia, Art. 11; Denmark, Art. 13.1; Norway, Art. 48; Czechoslovakia, Art. 13; Ethiopia, Art. 74; Austria, Art. 3; for French law: P. Bouzat, op. cit., supra n. 52 at 273; Vouin, R., Leauté, J., Droit Pénal et Criminologie (Paris, 1956) 272Google Scholar; Avant Projet de Code Pénal (1978) §44, Spain, Art. 48(b) and Holland, Art. 41 I—according to the literature in those countries: H.H. Jescheck, op. cit., supra n. 13 at 281, 282; for Anglo-American law: in England—Criminal Law Act, 1967, §3, and see also: J. C Smith & B. Hogan, op. cit., supra n. 40 at 323–325; in American law: R. M. Perkins, op. cit., supra n. 40 at 1004; In East Germany: Strafrecht, op. cit., supra n. 11 at 404. If confronting the problem of resistance to the psychotic aggressor means that the legal system must reject the requirement of proportionality, then, it would be preferable, in our opinion—to take up the image used by the author at the end of his article—to stay in the cave rather than come out.

100 The Article, pp. 382–387.

101 The use of the doctrine of “abuse of right” may also conflict with the principle of legality. See the Book, p. 874.

102 H.H. Jescheck, op. cit., supra n. 13 at 279; and see also: Schönke-Schröder, op. cit., supra n. 22 at 456; Maurach-Zipf, op. cit., supra n. 22 at 386; A. Eser, op. cit., supra n. 16 at 636; Petters-Preisendanz, op. cit., supra n. 22 at 204; Welzel, H., Das Deutsche Strafrecht (Berlin, 6th ed., 1958) 77Google Scholar; Kohlrausch-Lange, , Strafgesetzbuch (Berlin, 43rd ed., 1961) 204.Google Scholar

103 The wording of Art. 13 of the basic principles of Soviet criminal law is quite compatible with the requirement of proportionality (see also the Article, p. 383, and the Book, p. 872, n. 64). It seems that those places in Soviet case-law and literature where the author found objection to the requirement of proportionality were really referring to the question of necessary force. Thus, for example, he states on p. 383 of the Article that “…and the weight of the literature is clearly hostile to the rule of proportionality”, and immediately afterwards that “the writers devote a great deal of space to criticizing lower courts that impose limitations on the right of self-defense, either by imposing a duty to retreat or by finding that the defendant used excessive force” (emphasis added). The second sentence is clearly referring to necessary force, and not to proportionality. This is also implicit in the ruling given in Decree No. 11 of the Plenum of the Supreme Court of the USSR, December 4, 1969. What the Soviet writers and judges were trying to emphasize is that a mechanical comparison—for the purpose of equivalence—ought not be made between the damage caused and that prevented (see the Article, pp. 367, 368, n. 2). Rather, all of the circumstances surrounding the incident must be taken into account, including the degree and nature of the danger facing the defender (see the Article, p. 387), that is to say, the importance of the interest being protected as well (see Piontkovsky & Tchkhik-vadze, op. cit., supra n. 11 at 46), and one must also allow for the defender's state of distress, his fear or terror, which may, at times, prevent him from making a precise evaluation of the degree and severity of the danger confronting him. These emphases do not controvert the requirement of proportionality; they are quite compatible with it (the Article, p. 367, n. 2). The fact of the matter —and the author, too, acknowledges this—is that most of the Soviet writers agree that one may not kill a thief getting away with his loot (the Article, p. 384, despite what he has to say on pp. 381–82). In Maurach, R., Die Grundsätze der Strafgesetzgebung der USSR und her Unionsrepubliken (Munich, 1960) 52Google Scholar, we find that “Hinsichtlich der Erforderlichkeit wurde schon bisher Verhalt-nismässigkeit der Mittel und der Intensität und ‘dabei eine gewisse Güterabwägung verlangt’“, (emphasis added). See also Pionikovsky & Tchkhikvadze, op. cit., supra n. 11 at 46. There is, in our opinion, no real difference between the way German and Soviet law relate to the issue of proportionality and the conditions of proportionality given in the Norwegian Criminal Code (Art. 48): “… il ne doit pas non plus être considéré absolument inadmissible d'infliger un dommage aussi considérable que lui était visé par l'acte” or the Swedish Criminal Code (Chap. 24, end of Art. 1): “son action ne soit point manifestement injustifiable” (see also the Czechoslovakian Criminal Code, Art. 13). All of these reflect the special, extremely flexible standard of proportionality imposed in cases of self-defense.

104 The Book, p. 872.

105 And not a fetus.

106 See supra n. 70.

107 And we are aware of the fact that the requirement of proportionality gives only limited guidance of this sort.

108 Viewed as an outlaw, he is not really seen as a person any more.

109 For example, as a justification.

110 The author acknowledges that his composite model is hybrid in nature, and that we may have to follow one theory in relation to the issue of resistance to a non-culpable attack and another in relation to the issue of proportionality. The Book, p. 874.

111 V. Schwander, op. cit., supra n. 40 at 83, 84; P. Logoz, op. cit., supra n. 23 at 170–172; Strafrecht, op., cit., supra n. 11 at 399, 400, 404.

112 Indian Criminal Law, Art. 98, and see Aiyar & Anand, op. cit., supra n. 13 at 146–149; 24.

113 The Book, pp. 865–866.

114 And there will then be no reason and no need to use more than one theory in order to deal with the various issues involved with self-defense, in contrast to what Fletcher says in his Book, p. 874.

115 Taking as its point of departure a specific legal arrangement (the distinction between justification and excuse, with its various consequences, and that between the two kinds of necessity, as formulated by German law) and categorizing issues by the results produced by this arrangement, rather than by the nature of what is to be categorized and that of the categories to which it may be assigned.