License to Kill? The Morality and Legality of Self-Defence

In a recent exchange on Facebook, I tried to explore the legal and ethical questions raised by a recent shooting in Oklahoma, and, having failed to get a debate going there, thought I would explore them further here.  A young teen mother, recently widowed, and home alone with her infant son, was besieged in her home by two men, one armed with a 12-inch hunting knife, demanding entry.  The woman grabbed her pistol and 12-gauge shotgun (what do you expect? it’s Oklahoma!), retreated to her bedroom with her baby, called 911, and aimed both guns at the front door.  She asked the 911 operator if it was fine for her to shoot the intruders if they entered.  The operator replied more or less, “I won’t tell you should, but I won’t tell you shouldn’t.”  As soon as the man with the knife broke down the door, she fired the shotgun and killed him instantly; the other man, on the other side of the house, fled as soon as he heard the shots fired.  The woman was not prosecuted.   

In the media, this was reported with a clear tone of approbation, hailing the gritty heroism of the young mom, and the woman, without any hesitation or apparent remorse, declared that she would do the same thing again if need be.  My friend on Facebook (whose response was fairly typical of most readers) linked to the story as a case of why gun laws and self-defence laws in the US were so great; in France or England, he said, the woman would be prosecuted (for the record, this is not quite true: both French and English law permit the use of reasonable and proportionate force in self-defence and defence of one’s home; while gun laws in those countries would certainly limit the range of acceptable weapons that the young woman could have had in her home, she would not have been left without viable options.  And, for the record, there is no indication that these strict gun laws make society more dangerous, as my friend implied; on the contrary, murder rates in the UK and France are 1/4 of the US murder rate).  Others joined into the discussion more or less to vaunt about how this was a fine example of the American way—”if you set foot in my house, I’ll shoot ya!”

But is this a cut-and-dried case of legitimate self-defence?  Not quite.  Of course, before going any further, I should say that my point here is not to impugn the actions of the young mother.  One could hardly have asked her to have been less trigger-happy in such a terrifying situation, and no equitable legal authority, it seems to me, should prosecute her.  Nonetheless, there is a difference between the right thing to do and what is understandable and forgivable, and the gloating response of most readers of the story suggests a disturbing lack of ethical sensibility. So I would like to use this as an opportunity to reflect on what law and ethics ought to say about such cases in general, not to cast any blame in the woman in this particular case (especially as I know far too little about the details of the case to be certain if the conditions discussed below were met or not).

 

There are, it seems to me, potentially four different levels at which to consider this question—the ethical ideal, the ethical permissibility, the legal permissibility, and the legal enforcement (though these will not always be different).  The first concerns the question: what is the morally best response, from a Christian perspective at any rate?  I confess that I am still not clear on the answer to this question.  Most of the Christian ethical tradition has always considered killing in self-defense to be perfectly appropriate, but I have never been entirely comfortable with this conclusion, or with the arguments usually used to reach it; certainly, the New Testament and the earliest Christian tradition do not seem to share this perspective.  Of course, it might be argued that the young woman was killing in defence of another—her infant son—which all but pacifists would endorse as the right thing to do, but this is perhaps not a strictly accurate description, given the apparent intentions of the intruders (However, if it turns out it was a matter of defending her son, not herself, that would not change any of the principles below, I don’t think).  On the whole, my (unsettled) view is that to kill in self-defence is not morally ideal, but it may well be morally permissible, which is to say it can be done without sin.  

However, for it to be an un-sinful action, certain conditions would have to be met, among which the following four appear to me particularly salient: (1) there is strong indication that the assailant intends to do potentially mortal harm to you; (2) there is no escape route; (3) the assailant is warned of his peril, and given every opportunity to reconsider and retreat; (4) the intention is to simply to stop the assailant, not to kill him unless that is absolutely necessary (e.g., if you are pinned down with no escape route and he is armed with a gun, in which case merely disabling him might not neutralize the threat).  I do not know all the details of this situation, but it appears that only the first two conditions were met—there was good reason to believe the assailants intended to attack her, not merely her property, and because there were two of them, one on each side of the small house, there was no escape route.  However, it does not appear that the third condition was met, since (a) the assailants were armed only with one knife between them, and would have been rash indeed to continue the attack if they knew they were up against a pistol and 12-gauge shotgun, (b) the second assailant fled as soon as he heard the sound of gunfire, suggesting that this was not something they were prepared to face, and (c) the first assailant was shot as soon as he broke down the front door.  Nor does it appear that the fourth condition was met, given that (a) he seems to have been killed immediately, and (b) the woman implied in subsequent interviews that she had fully intended to kill him.

Now, what should the law say?  Well, my first instinct is to say that the law ought to approximate the moral permissibility as much as is possible.  This will not always be the case (there are certainly a number of things that we would say are morally impermissible, which the law ought not to attempt to regulate), but when we are talking about matters of life and death, the law should be concerned to draw the line right at the point of moral impermissibility.  Now, I say “as much as is possible,” because many of the factors that might make a given action morally unacceptable may be beyond the reach of the law to accurately determine.  In this case, however, I think we would want to say that a good law would for the use of reasonable and proportionate force in self-defence—which is to say that, to the extent that one’s person genuinely was (or genuinely appeared to be) threatened, and to the extent that force was one’s only (or only reliable) recourse, to that extent, force is justified.  So, if an intruder is unarmed (and otherwise unlikely to be capable of inflicting mortal harm), deadly force would not be justified; and if an assailant can be disabled or otherwise eluded without deadly force, deadly force would not be justified.  Now, as a principle, the standard of reasonable or proportionate force may be difficult to apply in particular circumstances, but it seems a good legal principle, more ethical at any rate than the so-called “Castle Doctrine,” operative in Oklahoma and most US states, which allows a homeowner to employ deadly force against any intruder believed to have unlawful intent, with no duty to take advantage of an opportunity for retreat. 

As it turns out, the biblical guidance we have on the subject appears to bear out my first instinct here (always nice when that happens, eh?).  In the Old Testament law, which, while not always functioning as a good guide to ethical ideals, often serves as a good indicator of what should be considered morally permissible, or at any rate, worth socially tolerating, we have a case law that bears directly on this in Exodus 22:1-3.  This case law stipulates that if a thief is killed breaking into a house at night, the killer will not be held guilty before the law; however, if he is killed in the day, it will be homicide.  The Jubilee Foundation has an excellent discussion of the intention and application of this law, and how it might apply to contemporary issues of self-defence.  The gist, however, appears to be that at night (before artificial lighting), a homeowner will probably not know the intention or the threat posed by an intruder, and will probably not be in a position to seek assistance if he or his family is mortally threatened.  Therefore, he is permitted to kill first, ask questions later.  However, if it is daylight, then he is in a better position to assess the threat, to escape, or to seek assistance, and may only kill in direct self-defence, not merely  because an intruder has broken into his home.  Now, of course the application of this law will be somewhat different in a modern setting, when we have firearms, 911, and electric lights.  The general principle, however, seems to be that (1) deadly force is only justified in defence of life, or when there is good reason to believe that life is being threatened, and no time to determine clearly if it is or isn’t; (2) deadly force is not justified when mere property is being threatened, or when one may ensure one’s safety without deadly force; (3) when in doubt, the law should give the benefit of the doubt to the person attacked. 

This last point leads to the last question, that of legal enforcement.  In the Old Testament law just mentioned, law-as-written and law-as-enforced are elided, since what we have here is a case law, and a system in which justice simply does not exist outside of its concrete administration by local judges.  For us today, the concrete administration of justice is separated from the creation of legislation, and it is in the administration of justice that the important principle of “equity” comes in—the idea that it is not always necessary or helpful to impose the full rigour of the law, given the circumstances.  This is important in the Oklahoma case before us.  To my mind, the Oklahoma law (which follows the Castle Doctrine) is unjust.  The young woman’s actions (killing as first resort, not last resort) were also unjust.  However, no equitable judge should punish her for them.  She was 18, had been widowed the previous week, had a infant child, and was alone and terrified at night.  Did she fail to warn the intruders that she had a gun and was prepared to shoot simply because she was scared, or because she wanted to kill them?  Perhaps we will never know.  But she should be given the benefit of the doubt, and considered to have acted in what seemed to her at the time the only way to defend herself.

 

Nonetheless, excusing her action is not the same as praising it, glorying in it, or using it as proof that every citizen should be armed and empowered with sweeping rights to kill in defence of self and property. 


Counsels or Commandments: The Protestant Line through the Heart

In his Loci Communes, Philipp Melanchthon turns at chapter 8 to address “the Distinction of Commandment and Counsel,” which as mentioned in my previous post, has been growing on my mental radar of late as a key player in my ethico-political ambiguities.  Most intriguingly, though, Melancthon turns specifically to consider this distinction in terms of the lawfulness of private property, an issue I have been reading and writing on for the past several months.   

My bold, tentative thesis that emerges from this brief passage: it was the Protestant dissolution of the tension between the commandments and counsels that naturalized the moral justification of private property and thus paved the way for the development of the capitalist principle of absolute private property rights, in which one’s freedom to do entirely as one wished with what one owned preceded and relativised any legal or moral claim that could be made on one’s property.  Bold thesis, right?  (If you have any idea what I’m talking about, at least.)  I’ll sketch out the background of the distinction of commandment and counsel, and the Protestant reaction to it, in this post, and in the following one, I’ll develop how Melancthon applies it to the question of property.

So, let’s take a tour through 1,500 years of Christian ethics. 

Before the coming of Christ, we have the moral law, which is, as the WSC so eloquently puts it, “summarily comprehended in the Ten Commandments.”  Scholastic thinkers identify the Ten Commandments also as a summary form of the natural law, engrained in mankind from creation, and in principle knowable (though not necessarily successfully known) by all men.  The principles of natural law serve as the basis not only for moral living, but for political justice.  We see this in the Old Testament, where the civil laws of Israel are given as elaborations and case-law applications of the basic principles of the moral law.  

Enter Jesus, saying, “You have heard it said…but I say unto you,” and issuing a new set of moral norms that seem to go beyond those of the Old Testament (and of natural law).  Now, we can hedge and qualify and say a lot about how the Sermon on the Mount, for instance does not overturn the Law, but fulfills it–it continues and intensifies the original trajectory, rather than simply contradicting it.  But be all that as it may, it does seem to go further in its call for holy living.  Where the old law (and the natural law) permitted–or indeed, one might say mandated–a just use of force in repelling force, Jesus seems to call us to a love that overcomes evil with good, that turns the other cheek.  But does this mean it is no longer permissible to defend ourselves, for instance?  Certainly the earliest Christianity carried with it a strong radical, perfectionist edge, but as it settled down to life in history, and grappled with the responsibilities involved in running a Christian state, the tension began to be felt quite sharply, the impossibility of using the evangelical law as the law for everyone.  

The neat solution devised (this is of course very oversimplified, glossing over a millenium’s worth of debates) was the distinction of commandments and counsels, which said, more or less, that although it was perfectly lawful and not sinful to live in accordance with the basic principles of the moral/natural law, it was even better, if possible, to follow the “counsels of perfection”–the extra moral demands of the evangelical law.  Melanchthon summarizes the definitions:

“A commandment is so called because it speaks of necessary obedience.  Everything that is contrary to the commandments is sin, and this brings eternal punishment if man is not converted to God.  A counsel is a doctrine, not a commandment; it does not demand a work, even though it praises the work as blameless and useful.” 

Three points of the evangelical law in particular were singled out by the medievals: non-violence, renunciation of personal property, and celibacy.  The monastic orders observed these, but most laymen were not expected to, and of course the political realm was not expected to operate according to these principles, but according to the natural law commandments.  This resulted in two levels of Christianity–first-class Christians, who observed the counsels, and second-class Christians, who observed merely the commandments.  Both were legit, but one was holier than the other.  Of course, it is not difficult to see how neatly this tied in with the emerging two-tier paradigm of nature and grace, with natural law governing laymen and the political sphere, and the law of grace governing the full-time Christians, so to speak.  

 

An unsatisfactory situation, no doubt, and one against which Luther forcefully reacted, rejecting the distinction between commandments and counsels, and insisting that all Christians were the same, and were bound to the same standards.   A short paragraph in Melanchthon’s discussion give some insight as to why: 

“First, it is obvious that our works cannot merit forgiveness of sins; so also are our works not perfection, for in this weak life we are still far from fulfilment of the law, and much sin, doubt and disorder remain in us, as Job 9:2 says, ‘No man is justified before God.’ Therefore it is empty blindness when men extol their own works as perfection, as if such works were a complete fulfilment of the divine law, and as if such holiness were higher than commanded works.”

In other words, since man is not justified by works, then what could it mean for the counsels to be better than the commandments?  They couldn’t contribute any justifying merit, and since for the Reformers, justification is the central question, there’s no sense in the distinction.

The Anabaptists took Luther to be saying, more or less, that all were bound to follow the counsels, and the commandments were out (although they did not accept celibacy as one of the counsels).  However, Luther quickly became alarmed by the radical, perfectionist, and legalistic direction that this led, and rejected Anabaptism as a false understanding of his teaching.  In his later work, he basically re-introduced the commandments/counsels distinction, but this time, internally and individually, instead of outwardly in the Christian community.  It was a line through the heart of each Christian, not through the Christian community.  All Christians were called to live outwardly in accord with the commandments, but to have their inner attitudes governed by the counsels.  All of this development thus far I have traced, more or less, in my series of posts on the Sermon on the Mount, which I never finished, but of which we could perhaps consider this a continuation.

The magisterial Reformation, following the later Luther, basically jettisons the counsels of perfection from the socio-political sphere, and lodges them merely in the inward motions of the Christian heart.  So, for instance, you not only may, but ought, to fight back with force (deadly force if necessary) against an aggressor, but with charity in your heart toward him all the while–you must use your outer fist, while turning your inner cheek.  What this means is that the laws of political ethics become not a baseline for preserving order, within which a fuller social ethics can be fostered by the Church, but become themselves the only standard of social ethics.   

 

A couple examples may clarify.  For Augustine, the laws ought to permit killing in self-defense, but Christian ethics ought not to allow it.  In On Free Choice of the Will, Book 1, he turns to discuss the subject.  Intriguingly, his opening opens the door to take the later Lutheran route, but promptly shuts it:

Augustine: First we ought to discuss, I think, whether there is any lust in the case where an attacking enemy or an assassin in ambush is killed for the sake of life, liberty, or chastity.  Evodius: How can I think that men lack lust for the things that they can lose against their will?  Or, if they cannot lose these things, what need is there to go as far as murdering a man for them?” 

Augustine, in common with Luther, recognizes that the key moral problem is of the inward lust, but whereas the magisterial Reformers at this point would answer Evodius by saying, “No, we can  act in this way toward the enemy without any accompanying lust in our hearts, but preserving all the while charity toward the aggressor and acting out of mere concern for justice,” Augustine concurs with Evodius–the outward action is the expression of the heart.  He and Evodius then go on to develop a careful justification for why, given that the action of violent self-defense is itself wrong, the laws may still justly permit it.  The magisterial Reformation, however, will conclude that not only should the laws permit such, but because they permit it, and are an expression of the natural law when they do so, that it is therefore morally right to use violent self-defense, and–here’s the kicker–morally negligent not to do so.  

Another example: Augustine famously argued in his letter to Macedonius for clemency toward convicted criminals.  While acknowledging that there was genuine justice in the penalties prescribed by law for criminals–including capital punishment–Augustine argued that nevertheless, it was even better and more Christlike, to pardon them if possible, and he maintained that the Church had a duty to intercede for such pardon and work for it.  In Bk. 4, ch. 14 of his Loci Communes, Peter Martyr Vermigli took Augustine to task for this argument in no uncertain terms, mounting a vigorous and unequivocal point-by-point refutation.  The gist of his argument (about which I have been planning to post for a year now; hopefully I will have a chance to discuss it fully in a later post) is that, since the laws are just in requiring the full penalty, based as they are on the natural law and the Old Testament, it would be unjust and therefore wrong for the magistrate to do anything other than impose the full penalty.  And it would therefore be unjust and wrong for any clergyman to exhort the magistrate to impose anything less than the full penalty of justice.  All of Augustine’s arguments drawn from the teaching of Christ Vermigli considers irrelevant–this evangelical law pertains only to the inward disposition of the heart.  So the magistrate must of course act with full charity and non-judgmentalness in his heart, but this should not in any way affect his actions.

This, I take it, is the fundamental move of Protestant ethics and political ethics, and, understandable as it is in reaction both to the Catholic two-class system and the Anabaptist legalism, I can’t help but consider it a very unsatisfactory move.  So, let’s turn in the next post to see how Melancthon develops this with respect to property.