LESSONS
L.8 - The permissive subject
(II: GROUNDS FOR JUSTIFICATION IN GENERAL)
STRUCTURE
I. Self-defence.
1. Concept.
2. Basis.
3. requirements.
II. State of necessity.
1. Concept.
2. Basis.
3. requirements.
4. The collision of duties.
III. The performance of a duty.
IV. The legitimate exercise of a right. Relevance of consent.
Who started first (II)
As we have seen in the previous lesson, whoever destabilises the status balance of legal assets and interests is obliged to tolerate a possible re-stabilisation of that status from the injured party or a third party. This is precisely what self-defence consists of: the unjustly attacked person is entitled to defend himself. And if he acts in this way within certain limits of rationality and weighting, his conduct will be justified. Legitimate defence is not the only cause of justification known to the law. There is another, more general one, the so-called "state of necessity", which enables one to act in order to avert or avoid a danger that threatens an interest protected by law. The law is also familiar with other causes of justification, such as the fulfilment of a duty, which entitles one to harm the interests of others, if this is necessary to safeguard higher interests. These are, of course, extreme cases. The legitimate exercise of a right can also operate as a cause of justification.
As already explained, the permissive rule gives the right to act (cause of justification): it is the expression of a rule which in exceptional situations allows action to be taken. This is possible because the law is inclined in favour of an interest that is valued as preponderant (of greater weight or importance) over another interest, which nevertheless has to give way. We thus speak of a duty of tolerance on the part of the holder of the interest that yields, in favour of the holder of the preponderant interest.
The question core topic is the prevailing interest. In order to assess this, it is necessary to take into account the status in which the interests were before the crisis or danger arose (the status quo ante). Thus, it is not the same if the assets or interests are in equilibrium and suddenly a malicious agent assaults another and in doing so commits the subject goal criminal offence. In that case, the destabilisation of the status quo can be considered as maximum. And consequently, the Schools of action granted to the aggressor (or to a third party in his favour: the "legitimate defence of third parties") will also be a maximum.
Let's look at C.81, a case of unlawful criminal aggression, which gives rise to a wide-ranging Schools of action by the victim against the aggressor. The aggressor, for his part, is obliged to tolerate the possible defence coming from the aggressed: that is to say, he cannot legitimately oppose this reaction. This is typical of self-defence: the greater the initial destabilisation, the wider the scope of action Schools and the wider the duty of tolerance.
Vim vi repellere licet, we read in the Digest (D. 43.16.1.27; CASIO-ULPIANO): It is lawful to repel force with force, and since then it has been recognised in the various legal systems the School to defend oneself against force even by using force (United Nations Charter, 1945, art. 51).
C.84 Aizpuru case
The accused, José Carlos, born on 26/10/1981, Millán, born on 26/12/1980, José Enrique, born on 26/5/1975, and Iván, born on 15/11/1978, all of them with no criminal record, at around 3 o'clock on 17 June 2000, in General Aizpuru street in this city, after breaking a window of a Moroccan vehicle, owned by Luis Carlos, and when they were trying to make a "bridge" in the electrical wiring, they were surprised by its owner, who was leaving a pub, after breaking a window of a vehicle enrollment Moroccan, owned by Luis Carlos, and when they tried to make a "bridge" in the electrical wiring, they were surprised by its owner, who was leaving a pub nearby, accompanied by his friends Pablo, Pedro Jesús and Luis Angel. When they approached the accused, José Enrique took out a stiletto and stabbed Pedro Jesús, while José Carlos wielded a machete and attacked Luis Ángel, stabbing him eight times". [As a result of both aggressions, Pedro Jesús and Luis Ángel suffered injuries of varying degrees.]
(SAP Málaga, 13 December 2003; pte. Santos Peñalver).
AA.8
From agreement with what was explained in the previous lesson, within the general defences, the doctrine distinguishes a category called "justifications", which are the equivalent of the causes of justification in continental law. In total, seven justifications are known:
1. Necessity : this is the choice of evils or weighing between two evils, in order to avoid the greater evil. While the common law tradition makes reference letter that these are cases of forces of nature, the MPC does not make such a distinction (MPC § 3.02). The requirements of necessity are the following: i. the harm avoided is not physical harm (such as death or injury), but e.g. damage to property; ii. the harm actually caused can be of any class; iii. the intention to avoid the harm; iv. the harm actually caused is less than the harm avoided; v. there is no legal alternative; vi. the agent has not caused the crisis status for the legal property.
2. Self defence (legitimate self-defence): requires: i. prior attack: in almost all state laws it is also required that the attack be imminent; ii. the amount of force that the agent uses to defend himself depends on the harm that he reasonably wishes to avoid. Thus, a distinction is made between nondeadly force (used against non-lethal attacks) and deadly force. However, since 2005, more than 40 states have C or proposed legislation to extend the right to use deadly force in cases of self-defence; finally, iii. both statutory law and the MPC (§ 3.04) require a reasonable belief in the necessity to use force.
3. Public duty: refers to cases where a court order, military and other duties are executed. For example: the election official is authorised to use physical force against anyone who obstructs the elections.
4. Law enforcement (also parallel to the performance of a duty): e.g. making an arrest.
5. Defence of another (legitimate defence of third parties).
6. Defence of property (parallel to the legitimate exercise of a right).
7. Domestic authority: MPC § 3.08 makes reference letter the right of certain persons to exercise their authority. For example: Parents over their minor child, a teacher of high school over pupils, etc.
On the justification of necessity or state of necessity: US v. Contento-Pachon (723 F 2d. 691 9th Cir.) 1984. On the elements of self-defence: People v. Gleghorn (California Court of Appeals 193 Cal. App. 3d. 199, 238 Cal. Rptr. 82) 1987.
VOCABULARY
- Justifications
- Necessity
- Self defence
- Public duty
- Law enforcement
- Defence of another
- Defense of property
- Domestic authority
To get started: spanish medical residency program Puig, Criminal LawLessons 16-18.
For further information: Silva Sánchez, "Sobre el estado de necesidad en Derecho español", ADPCP 1982, pp. 663-691.
Monograph: Baldó Lavilla, Estado de necesidad y legítima defensa. Un estudio de las "situaciones de necesidad" de las que derivan Schools y deberes de salvaguarda, Barcelona, 1995; Coca Vila, La colisión de deberes en Criminal Law, Barcelona, 2016.
N.81 Self-defence - Concept - Basis - requirements.- N.82.
N.82 State of necessity.
N.83 Fulfilment of a duty.
N.84 Legitimate exercise of a right.
SYNOPSIS
