Friday, May 24, 2019

Renee Lettow Lerner

Excerpted from Renee Lettow Lerner, The Worldwide Popular Revolt Against Proportionality in Self-defense Law, Journal of Law, Economics & Policy 331 (2006)(133 footnotes)

       Many legal scholars love to draw fine analytic distinctions and invent complicated balancing tests, carefully weighing various interests in different circumstances in an effort to achieve theoretical perfection.  They contemplate issues in the safety of their offices, at leisure. True, they try on occasion to take account of the gritty world of quick action, limited information and resources, violent emotion, and basic intuition. But that world is largely foreign to their lives and temperaments. There are times when scholarly theories, embodied in law, come into conflict with popular views of morality. This is happening around the world with respect to the law of self-defense.

       While proportionality in some form has long been a feature of the English law on self-defense,  scholarly opinion has particularly championed the idea since at least the middle of the eighteenth century.  Blackstone,  Beccaria, Bentham and the utilitarians all played their role in encouraging the idea: the prevention of harm cannot be achieved by causing harm that is disproportionate. Proportionality asks a defender to balance his own interests against those of an aggressor, discounted to some extent by the aggressor's blameworthiness,  and also to take into account the means to be used and the necessity of defensive action. This is not an easy task. Ordinary people may find it hard to do in the heat of the moment. The idea, however, has spread widely: virtually every industrialized country has adopted some form of proportionality.

       A popular revolt against certain notions of proportionality has been underway for the past several decades in the United States, and for at least the past five years abroad. I do not mean necessarily that a majority of the population of various countries believe that proportionality standards should be changed, though that may be true in some, but that there is a widespread and increasingly vocal movement to do so. This worldwide revolt has several common themes. People in many countries are angered by particular instances of what they see as injustice in the treatment of those who defend themselves with force. The cause celebre is so powerful in this area because many people can easily identify with the defender and imagine themselves in his shoes; even if the incidents are rare, they have a great hold on the imagination. People blame police forces and especially prosecutors for being more concerned to punish victims of crime than criminals; there is a deep distrust of governmental authority.  This distrust of criminal justice insiders is linked with distrust of legal and other elites generally. (By “elites,” I mean primarily prosecutors, judges, and legal scholars, though popular distrust extends to other social and economic elites as well.) People are outraged by defenders having to pay court costs and civil damages to would-be burglars. This movement is thus part of a global distrust of litigation. They complain that criminals have easy access to guns while they are legally prohibited from owning or carrying any. They are concerned that the law pays insufficient attention to retribution.

       Underlying all of this discontent is the idea that the state is unable to defend law-abiding citizens against crime, and that therefore citizens must be allowed to defend themselves. The English tend to state the situation explicitly in terms of social contract theory (and to declare that the contract  has been broken), whereas continental Europeans tend to characterize private self-defense as a delegation from the state's monopoly of the use of force. In both cases, there is an undercurrent of thought that too much restraint cannot be asked of people subject to constant predations.

       It is possible that certain popular views of self-defense discussed here stem from deep-rooted moral intuitions, and are not mere passing reactions to current conditions or perceptions. Recent empirical studies have shown striking agreement in intuitions about moral blameworthiness among people throughout the world and from every demographic group.  These shared intuitions are highly nuanced.  They are so arrestingly similar that several scholars have suggested the most likely explanation is that they have some biological component, similar to language.  It would be helpful to see empirical work done on moral intuitions about self-defense, in particular. If similar agreement is found on intuitions about certain aspects of self-defense, such as use of force against an intruder in the home, for example, it may be very hard for governments to persuade citizens to accept a different view. (Not only might it be difficult to persuade citizens otherwise, it may be unwise to try to do so for other reasons. Such shared norms, whether biological or social or some combination of the two, may have developed because they further the smooth working and flourishing of individuals and societies, though the way they do so may not be immediately apparent.  Scholarly theories about self-defense that run counter to such deep-seated intuitions will tend to generate intense resentment toward government.

       In keeping with the idea of moral intuition, the popular revolt against proportionality makes appeals to common sense rather than philosophical theory. Although rejection of proportionality certainly could be justified on philosophical grounds, relying on philosophical theory alone would produce results that many would view as morally unacceptable, just as untempered philosophical theories of proportionality may be unacceptable. The  idea of autonomy as a basis for self-defense, as found in the thought of liberals Locke and Kant, provides a theory for the rejection of proportionality. Several decades ago, George Fletcher emphasized the idea of autonomy in his work on self-defense: if an intruder violates one's personal autonomy, one has the right (and possibly even the duty) to use any force necessary to prevent it.  According to the purest version of this theory, for example, the owner of an orchard would be justified in shooting a boy who was running away after stealing fruit.

       There is some evidence for a revival of autonomy notions, particularly in the United States. But one should not exaggerate the strength of this; the popular revolt against proportionality usually does not entail a complete rejection of the concept in all areas.  Reformers often talk of an effort to “rebalance” the interests of the defender and the aggressor; according to this way of thinking, the concept of proportionality is acceptable, but the way the balance has been struck (often under the influence of legal elites) is wrong. It is sometimes hard to tell if reformers are criticizing the idea of proportionality because it is wrong in theory or simply unworkable in practice (because of issues of proof, allowing too much discretion to prosecutors, etc.). The area in which ideas of autonomy seem most pronounced around the world is in defense of the home.  

       The popular revolt against elite notions of proportionality has led to several different types of proposed legislation. Characteristic of many of them is the blunting of finer legal distinctions, which may cause confusion, in favor of clear rules that ordinary people can understand and apply. The efforts frequently concern protection of the home, and seek to introduce a presumption that a forcible intrusion into a home may be met with force, including deadly force. Other proposed legislation seeks to limit proportionality rules by excusing excessive defensive force in cases of fear or panic.

       This paper examines three particular efforts to limit proportionality rules in self-defense law: enacted legislation in Florida, and proposed legislation in England and Belgium. These examples by no means exhaust the scope of the revolt: Italy has recently enacted reform, and serious efforts are underway in New Zealand, among other countries, as well as several other  states in the U.S. The paper will first look at the sources of popular discontent with the proportionality standard in each of the three jurisdictions and then compare the specific proposals made. The comparison of proposals focuses on excuse and provocation and then takes up presumptions about the use of force