What is the legal origin of self-defence? Diane Bederman
https://dianebederman.com/what-is-the-legal-origin-of-self-defence/
Is self-defence a God Given right? Are our Courts breaking God’s law?
We begin with one of the most important statements from the Bible:
All life is sacred.
There are millions who say that individuals have the right to self-defence. This right has been questioned in America and Canada.
In America we watched the trial of Kyle Rittenhouse who was ultimately found not guilty for the act of self defense.
“Self-defence law in Wisconsin, which is generally consistent across the states, allows for an individual to use deadly force when they reasonably believe deadly force or serious force that could cause great bodily harm or death is about to be used against them.”
In Canada, a man was charged with murder for killing an intruder in his house who was also carrying a gun.
“An Ontario case raises the thorny question of how far Canadians can go to protect themselves and their property from attack — and avoid criminal charges.”
Lisa Dufraimont, a criminal law professor at York University’s Osgoode Hall law school said:
“What we’re trying to do here is to balance the security of the person who is being subjected to some sort of attack or assault on the one hand, with the security of the person who might get shot…. We don’t want to undervalue either of those lives.”
Because we start with the teaching: all life is sacred.
Mr. Ali Mian shot an intruder IN his house. His lawyer, Jag Virk, said in a statement that his client shot at an intruder who attacked his single mother. He is a registered gun owner and fired his weapon at an armed man, said the lawyer.
In America, the Constitution declares the right to self-defence in the Second Amendment:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
In the 2008 case District of Columbia v. Heller,the Supreme Court held, after a lengthy historical analysis, that the Second Amendment protects an individual right to possess firearms for historically lawful purposes, including self-defense in the home. The Heller majority also provided some guidance on the scope of the right, explaining that it is not unlimited and that nothing in [the] opinion should be taken to cast doubt on longstanding prohibitions like laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, among other presumptively lawful regulations.
The right to defend oneself: Does it really come from the government? Or some higher power?
In truth, the right to self-defence is Biblical: from God.
The Founding Fathers praised the teachings of the Hebrew Bible:
John Adams, a member of the Declaration of Independence committee and second president of the United States (1797–1801), understood the deep connection between ethical monotheism and freedom.
“I will insist that the Hebrews have done more to civilize men than any other nation. If I were an atheist, and believed in blind eternal fate, I should still believe that fate had ordained the Jews to be the most essential instrument for civilizing the nations. If I were an atheist of the other sect, who believe or pretend to believe that all is ordered by chance, I should believe that chance had ordered the Jews to preserve and propagate to all mankind the doctrine of a supreme, intelligent, wise, almighty, sovereign of the universe, which I believe to be a great essential principle of all morality, and consequently of all civilization.”
Let’s look at the teachings from the Hebrew Bible which gives us the Jewish law upon which our freedoms originate.
The law of Rodef
The right to self-defense is well established within Jewish law as manifested by the law of ‘rodef’ (the pursuer).
The right to self-defense is well established within Jewish law as manifested by the law of rodef (the pursuer). The sages contended that the verse “You shall not stand idly by the blood of your neighbor” (Leviticus 19:16) not only demands saving a friend from drowning or other dangerous situations but further dictates that one stop an assailant from committing murder (Sanhedrin 73a). This right was extended to both onlookers and threatened victims alike and was also applied in cases of sexual assault.
The license to kill an attempted intruder (haba bamahteret), however, stems from a different biblical passage. “If the thief is seized while tunneling and he is beaten to death, there is no bloodguilt in his case. If the sun has risen on him, there is bloodguilt in his case” (Exodus 22:1-2). Some biblical commentators understood the difference in the two cases to be a matter of timing.
If the thief is killed during the act of the robbery, the killer is not liable to punishment; but once he has emerged from the house and the intensity of the moment has dissipated, one may no longer kill him (Hizkuni).
“If one comes to slay you, kill him first” (Sanhedrin 72a). The sages stipulated that people do not remain passive when their property is attacked. As such, a robber expects a confrontation and comes prepared to kill the owner, thereby giving him the status of a rodef (Geneiva 9:8).
Then there is Pikuach nefesh
Pikuach nefesh: the preservation of human life that overrides virtually any other religious rule of Judaism: the moral and ethical right to protect ourselves including carrying weapons. Protecting life is above all other religious considerations.
Jewish law imposes a binding and very demanding level of obligation to help others when their well-being or even their property is in danger. The Torah commands us, “Don’t stand idly by the blood of your fellow” (Leviticus 19:16); rather, we are obligated to take affirmative action to help him.
Jewish law, like other legal systems, recognizes the right to self-defence. Harming another person is of course normally forbidden, but when that person threatens us we are allowed to act aggressively to protect ourselves. A critical question here is, what is the ethical justification for this right? Is it self-defence per se or is it the culpability of the attacker?
Any person with life-saving information is obligated to reveal it (duty of rescue), and that the right of self-defence would justify aggressive actions to compel the knower to disclose his information. Rabbi Bleich writes: “By failing to act the potential informant makes it possible for a calamity to occur. . . It is thus clear that the law of pursuit sanctions any form of bodily force, including mayhem, when necessary to preserve the life of the victim.”
Kyle Rittehouse is not-guilty based on Biblical Law.
The man in Ontario? Will the Courts follow the laws of God, as our Constitution is based on those laws; or will men make up the law?
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