Understanding the Development (and Surprising Deficiencies) of England's Storied Self-Defense Law

Abstract

Self-defense, often referred to as “the ancient right” or the “first civil right,” is among the handful of criminal law subjects enjoying substantial academic (and, increasingly, public) attention. And deservedly so, given the recognized foundational role it plays in criminal justice systems the world over. Even more, the current debate about over-policing, violence, and the exercise of self-preferential force has vividly brought to the forefront the challenges inherent in setting boundaries between the state’s claimed monopoly on force and the individual’s right to deploy self-preferential violence against an attacker. In the United States, the names George Floyd, Ahmaud Arbery, Breonna Taylor and Kenneth Walker, Joe Horn, and Trayvon Martin have each, in their own—and tragic—way, substantially contributed to this reform-minded re-examination that presently underway in both the public square and legislative halls. Within the broader Anglo-American context, the media, law school professors, public intellectuals, and legislators have long instructed that US self-defense law is particularly loose and unregulated. They often characterize it as reflecting a distinctly “wild west” or even “barbaric” approach. In stark contrast, England’s approach to self-defense is frequently characterized as sensible, humanitarian, and civilized. But, as this article reveals, these perceptions reverse reality. Outlining and then deploying what has been termed the value-based model of self-defense as the appropriate analytical yardstick, this article demonstrates that it is, in fact, England’s self-defense law that fairly deserves to be characterized as unduly harsh. For example, unlike US law, English law accords entirely unreasonably mistaken actors the right to cloak themselves in the doctrine of justification, provided their mistakes are honest. Further, it rejects any requirement of safe retreat prior to exercising deadly self-preferential force. But the result of such an approach can have serious consequences. In fact, this article will argue that England’s self-defense law devalues important systemic interests, such as overall violence-reduction, protecting the lives of the morally innocent, ensuring equal standing between people, and maintaining the legitimacy and creditworthiness of the legal order in the public’s eyes. Taking this closer look at self-defense value-judgments, reveals the deficiencies of our common law ancestor’s approach to resolving the inescapable conflict created when rights and interests lock horns. This is all the more so since those judgments are often unstated and almost never explored. A critical study of US and English self-defense law, therefore, contributes mightily to the legal literature, especially when that examination covers the similarities and key differences between the two legal systems—an endeavor this article tackles head on.