Here’s an essay i’ve just finished writing. There’s been some discussion over in the Philosophy Forum, but I wanted to post this to get some feedback. If you’re curious about my citations, PM me and I’ll give you details on the sources they reference. Thoughts?
In Ha vs. State, the victim, Buu, threatened the life of the defendant, who believed the threat based on the “vicious tendencies of Buu’s ‘violent criminal clan’†(KS 783). Additionally, Ha concluded that “because of his cultural background and poor command of English, …it would be useless to go to the police for help†(KS 783). Ha therefore obtained a rifle and shot Buu to death. Ha was convicted of murder, but the case went to appeal based on a claim of self-defense. According to the appeals court judge, “a reasonable person in Ha’s position would have feared death or serious physical injury from Buu,†and that it was reasonable for him to conclude that “there was no escape†(KS 783). However, the court upheld the conviction, on the grounds that “‘inevitable harm’ is not the same as ‘imminent’ harm. [A] reasonable fear of future harm does not authorize a person to hunt down and kill an enemy†(KS 783). The court’s refusal of Ha’s request for a self-defense claim raises the question of the so-called “imminence doctrine.†Many jurisdictions, including the one in which Ha was tried, require that a threat to be repelled by violent or deadly force must be in fact imminent in the sense of being temporally immediate.
I will argue that requiring imminence of the threatened harm constitutes an unjust curtailment of an individual’s rights, but it will first be useful to examine the case in favor of the presently accepted version of the criminal law. The imminence requirement appears to follow from the commonly held position that in many (arguably even all) cases, self-defense is justified only to the individual committing the act, rather than objectively so for society as a whole. Alexander argues for this view by asserting that “even the culpable aggressor – who, keep in mind, in cases of self-defense, has not yet finally launched his attack, and is killed or wounded preemptively – possesses only the culpability of one who intends to attack the defender but who might conceivably change his mind if not preemptively attacked†(Alexander 22). Justifications in law involve a utilitarian calculus, a weighing of goods and evils in order to choose the best outcome. But as Alexander points out, in the instance where the defendant’s case is the strongest, the victim is not necessarily culpable to the point where society would deem his conduct worthy of punishment, so such actions do not receive the justification defense. But, since the defendant could not have been reasonably expected to act differently, he remains blameless and is therefore excused for his action.
From this view it can be argued that imminent harm is a prerequisite to an act of violent self-defense. Since killing even in self-defense is almost never a positive good, it ought not to be encouraged, and not even permitted except in cases of absolute necessity. This is the court’s reasoning in Ha: the defendant was not excused in killing Buu because there was no immediate attack to prevent. An active move to attack someone is a clear sign that intent exists and is quite strong and highly likely to be carried through. Someone who has opted instead to wait for the attack does not show the same degree of commitment – he hasn’t gone so far as to initiate the attack. In either case, we are dealing with counterfactuals: “He would have killed me if I hadn’t shot him first.†As Alexander observes, the truth of such statements cannot be known, though beliefs about their truth certainly exist. However, in a long time frame more change is possible, and the less likely a belief about a counterfactual is to be reasonable and well-grounded. The more time between the present moment and the expected onset of attack, the greater chance the aggressor will have a change of heart and call off the attack. Similarly, when the threat is not imminent, the defendant has more opportunity to seek help from outside sources. Were imminence not required, says the argument, the law would implicitly encourage an undesirable system of vigilante justice.
That is how I see the case for imminence, and I am willing to concede many of its arguments. However, before accepting it, we should re-examine just what the defense-as-excuse definition entails. The fact that although self-defense is frequently not socially preferable, it is permitted anyway for basically selfish reasons, reminds us something about the purpose of law. Law is designed and implemented at its most basic level to protect the rights of the citizens of a civil society. One of the most basic rights of man is generally taken to be a right to life, equally held by all people. This right is part of what renders self-defense an excuse rather than a justification: even an intended murderer has such a right, and to deprive him of it unnecessarily is criminal.
Having been reminded of the importance of this right to life, it becomes clear why the requirement of imminence should be rejected. Let us return to Ha, or at least a hypothetical version of the case. The court admitted that Ha had reasonably concluded that “there was no escape†from violent death other than proactively killing Buu, and in the next breath denied the legality of this only escape. An individual in such circumstances has had his fundamental right to life abrogated. The application of the imminence doctrine leaves him with no legal option but to wait until the inescapable threat does in fact become immediate, likely thereby thrusting himself into mortal danger: Had Buu’s attack come, it would have come from a gang of thugs that Ha would not have been able to repel. Under the imminence doctrine, the only way for someone in such a situation to protect his life is to commit what the court deems to be murder, for which he will be imprisoned. A state that would thus deny the essential right to life of its citizens is indefensibly unjust in this respect.
I therefore propose a doctrine of inevitability without the requirement of the somewhat vague notion of imminence. Inevitability is already a fundamental feature of the law in such cases, and is well-defined and understood. The 5th Circuit pattern jury instructions include the following criteria:
Criterion 3 indicates that inevitability – the lack of a “reasonable legal alternative†– is in fact required for a self-defense claim’s success. This is meant to protect the rights to life of both parties by limiting legally permissible violence to cases without alternatives.
Immediate danger as required by Criterion 1, however, is not an essential element of the defense. It should therefore be eliminated, with emphasis placed instead on Criterion 3 and its requisite inevitability. The lack of an immediate threat does not categorically deny the necessity of defending oneself. Whenever the defendant can be shown to have reasonably and honestly believed that death or great bodily harm was in fact inevitable in that they could not have been avoided by any means available, he ought to have a claim of self-defense for acting in an otherwise criminal manner. Showing that such a belief is reasonable will of course be more difficult and unlikely as more time is allotted for the defendant’s choice, since he must demonstrate that no options but violence were available to him. It is clear that when an attack is actually occurring, few or no choices exist. If the aggressor has to load his gun or sharpen his knife before the attack, the additional time grants more avenues of escape. Moreover, if the threat is for some vague time in the future, the defendant likely has even more potential alternatives from which to choose.
Imminence of danger ought not to be a requirement of the defense, but merely one potential platform on which to build a case for belief of inevitability. Without such a proof, however constructed, a claim of self-defense is void, thus discouraging the vigilantism feared by the proponents of the imminence doctrine. However, should a defendant somehow manage to prove the existence of his reasonable belief of an inability to take advantage of these additional choices (no small feat), he should be afforded a claim of self-defense so that he is not deprived of his own supposedly inalienable rights.
It should now be clear that the immediacy requirement is not fundamental to an assertion of self-defense. Even as promoted by its advocates, it is a merely practical concern, a way to keep exaggerated and contrived defenses from being accepted by the jury. However, in so doing, the demand of immediacy denies a basic right to citizens of the state by preventing them in particular cases from defending their lives by the only means possible. By eliminating the imminence doctrine from law and instead emphasizing the necessity of a reasonable belief in the inevitability of death or great bodily harm, the law would effectively extend a self-defense excuse to all who rightly deserve to receive it. At the same time, such an emphasis would withhold the defense from those seeking to abuse it by employing it in cases where violence had not in fact been the only option. Imminent danger is certainly a boon to a claim of self-defense, as it demonstrates beyond much doubt the reasonableness of a belief that action was necessary. Yet it is not itself essential and should therefore be stricken from the law of self-defense.