Now you might say that the situation that I have described is fanciful and not likely to happen.
The punishment is draconian, and the crime was not an act of protest - it was an act of survival. In the case I am describing, neither of these is true. I find this avenue most convincing when the disobedience is an act of protest and when the punishment is relatively modest.
As Marko Milanovic and others have noted, the classic theory of civil disobedience (Gandhi, Thoreau, King) requires that the disobedient actor accept his or her punishment. One possibility to resolve this quandary is to think of it as a case of civil disobedience. What would you do? If you say, well, the positive law has eliminated self-defense, so the defendant must be convicted - my only response is that I hope I don’t get you as a judge if I’m ever in this situation. I would acquit the defendant on that basis. I think the correct answer to this puzzle is that the defender has an inherent right to defensive force, and the positive law cannot curtail this right. What to do? If you convict the defendant, you are sending him to jail for the rest of his life–or worse yet condemning him to execution.
#Actio libera trial#
Now imagine that you are the trial judge hearing this case as a bench trial. You are facing a mandatory sentence of life in prison or the death penalty. You clearly committed a killing and the defense was repealed. So the public prosecutor charges you with murder. Now suppose that the attack occurs, and you exercise personal defense in order to save yourself from the unlawful assault. If the police refuse to come, or do not come in time, you are not legally permitted to exercise defensive force on your own behalf. Here is the explicit consequence of that legal decision: if an attacker comes to your door and starts attacking, you are required to notify the police so that they may come to exercise protective force on your behalf. Imagine that the state had an extensive policy discussion about it and determined that the police should be the exclusive vehicle for the deployment of protective force, in order to maintain security within the state. Suppose a state decided to repeal its criminal law defenses of self-defense and defense of others. To explain my answer, let’s think a little bit more about domestic law.Ĭonsider the right of self-defense under domestic criminal law. The positive law can expand the natural right but cannot curtail it. In a comment to my earlier post on humanitarian intervention and natural rights, Adil Haque asks me the following question:Ĭan States voluntarily make binding agreements that curtail their natural rights of legitimate defense for the sake of greater collective security?
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