Properties of Blood I.4: Defending Self, Part C–Private Violence in Self-Defense
Private Violence in Self-Defense--A Natural Duty
Christ’s equation of physical violence with internal anger raises questions that juries often have to face: What are the circumstances that justify the use of lethal violence in self-defense? Specifically, when an argument leads to a violent altercation, does the one party bear any responsibility for the consequences if, though the other party struck the first blow, his own anger was a contributing factor? One of the most famous literary cases of a violent altercation leading to death is narrated by Sophocles' Oedipus (OT 800-813), who uneasily gives an account of how he killed an old man and his retainers.
As I was walking near the place where three roads meet, there was I confronted by a herald and a man mounted on a horse-drawn wagon.... The guide and the old man himself tried to drive me from the road by force, and I struck in anger the driver, the one who was trying to turn me aside; and the old man, when he saw, having waited until I passed by the wagon, struck the middle of my head with his two-pronged goad, and I paid more than I got; namely, having been struck by this hand with a stick he rolled backwards right out of the wagon, and I killed them all.
Oedipus has described one of the earliest recorded instances of road rage. Oedipus was, however, not quite correct in claiming to have killed the entire party, which consisted of five men: King Laius of Thebes, a herald, probably a driver, and the slave who escaped. Laius and his company were certainly at fault in trying to drive the young wayfarer out of the road, but it is a sign of Oedipus' intemperate character that he strikes the first blow and later murders as many as he could lay his hands on, including the old king, who will turn out to have been his own father.
Greek roads were not the grand highways built by the later Romans but were more like single-lane tracks. It would not have been easy or even possible for a walker to pass by a wheeled carriage heading in the opposite direction. Both father and son were arrogant characters, neither of them willing to give place to the other. Such conflict must have been a common occurrence, though not often with such fatal results.
Although the dramatic date of the Oedipus Tyrannus is two generations before the Trojan War (thus about 1300 B.C.), the play was staged in Athens in the 420’s, and Sophocles would certainly have been thinking of Athenian law and custom rather than of Thebes in the Bronze Age. Oedipus seems not to have been much disturbed by the events, but under Athenian law, he would almost certainly have been prosecuted for murder by Laius' kinsmen. (The obligation to prosecute extended as far as the sons of first cousins.) To kill in self-defense was lawful at Athens, but not when committed by the man who struck the first blow. To avoid problems, the killer might attempt to bribe the victim's family--though to accept such blood-money was considered shameful--or go into exile.
In Athens, Oedipus might have been executed for striking the first blow before going on to kill four men. On the other hand, the driver seemed to be offering violence in attempting to drive him off the road. Laius and his retainers, had they killed the insolent young man who attacked them, would probably have got off, even though their behavior was provocative. It is useless to speculate on the decision that might have been rendered by an Athenian jury that was liable to be swayed by extra-legal considerations. Nonetheless, one can say in general terms that the conduct of a young man who displayed angry disrespect to a distinguished older man, whom he proceeded to kill along with his attendants, would not have been approved.
Every society has its own laws regulating self-defense, but it is only reasonable to distinguish between the wanton killing of an innocent man and the killing of an assailant. Much later in his career as dramatist, Sophocles brought Oedipus back on stage as an old man his own age—though the chronology is impossible. There, he says in killing Laius he had done what anyone would have done. It is not that the old blind man has a failing memory but, rather, that for the purposes of the play Sophocles emphasizes the innocence of Oedipus and portrays, though without details, the homicides as justifiable self-defense.
Before looking into the history of self-defense legislation, let us rather begin (as Plato or John Locke might) by imagining a state of society in which there is no legitimate authority or, at least, no legal power to protect the innocent or punish the guilty. We do not have to dig into the ethnographic accounts of such violent peoples as the Ifugao of the Philippines or the Yanamano of South America. The Celtic, Slavic, and Germanic peoples of Europe provide a rich record of violent periods in which self-help and vengeance were a normal means of protection and punishment, while the frontier history of the United States is a fertile source for gaudy tales of self-defense and collective vengeance. To get down to the bedrock question of individual violence, we need look no farther than to the records of the Germanic and Scandinavian peoples who are ancestors to so many people living today in Western Europe and North America.
No literature speaks so movingly of the horrors and the pleasures of violence as the Icelandic sagas. Njal's Saga, written in the late 13th century, concerns a blood-feud that began in the early 10th century and ended about 1020. Gunnar Hamundarson, one of the heroes, dies an outlaw, but even in his cairn his spirit sings out to his son, Hogni, of the pleasures of a life well-spent:
Hogni's generous father
Rich in daring exploits,
Who so lavishly gave battle Distributing wounds gladly,
Claims that his helmet,
Towering like an oak-tree
In the forest of battle,
He would rather die than yield,
Much rather die than yield.
Icelandic violence was a brutal necessity of life, but, as Gunnar makes clear, it could also be a source of honor and joy. Along with feeding to sustain life, and copulating to propagate it, man's other greatest need--and pleasure--is fighting. Men who cannot go to war will spend their time watching boxing matches and football games that mimic combat, and, if violence were taken out of films and television, it would leave only sex to attract young male audiences.
Sex, eating, and fighting, however different their objects and techniques, share a number of qualities. In men, at least, sexual desire and aggression are triggered by the same hormones, and all three activities are rooted in complex physiological processes that result in a general sense of euphoria and well-being. If there are any activities to which we might be entitled to claim a natural right, it is these three basic activities that create, sustain, and defend life, though from both the classical and Christian points of view, it is better to look on them as natural duties. All three are circumscribed by custom and precedent, and social rules dictate what and how one may eat, with whom and when one can sleep, and whom one can strike or kill.
In simple societies most of the rules are implicit or, at least, informal. No one posts a notice declaring the tribe's totem animal to be “taboo;” one learns such things by hearsay or during the period of initiation. Eventually, formal laws are passed, declaring what everyone already knew, that eating pork or sleeping with sister or assaulting father is wrong. As the power of the rulers grows, however, they are tempted to make more and more laws restricting natural activities. Theocratic societies and religious cults become obsessed with sexual purity and may forbid--or require--a variety of specific acts. The demand for ritual purity may also lead to complex dietary restrictions, as among the ancient Jews and the modern Americans who brand tobacco, distilled spirits, and red meat as unclean.
So long as regulations do not absolutely interfere with the discharge of our natural duties, the meddling of shamans and augurs, politicians and social workers can be regarded more as an annoyance than as tyranny. What difference does it make, ultimately, if I eat pork or beef, so long as I can eat meat? Of what am I deprived, when marriage with deceased wife's sister is forbidden, if I am still free to marry?
No Duty to Retreat by Richard Maxwell Brown and Gunfighters, Highwaymen, and Vigilantes by Rodger D. McGrath provide excellent descriptions of self defense as practiced in early America.
Regarding assaulting one’s father, I never did that. However, when I was a kid, I could never beat my father playing checkers. When I was in the Navy, one of the wardroom officers was from Indiana. Indiana may be known for basketball, but those citizens of the state not gifted with attributes to play that game played checkers. My checkers tutor was barely 5-7 and a master of the game. It took awhile, but eventually I was able to keep up with my teacher and even to beat him every so often. (I read that it takes more time to become an international-level checkers player than a Chess Grand Master because in checkers you can force your opponent to make a specific move.) When I went home on leave, I challenged my dad to a game. I experienced the worst feeling after I beat him. What I had expected to enjoy, I really regretted. You youngsters whose father is still alive, do not ever try to best him at anything. You too may regret it.
No Duty to Retreat does have interesting anecdotes, but it is fundamentally wrong and, I should say, intellectually dishonest. –and by the way he spent a career twisting evidence to make it appear the inner-city violence is the legacy of slavery and racism. Since I take up Maxwell Brown’s distortions near the end of this chapter, I’ll postpone discussion till that point. He either does not know the British legal tradition well enough to write such a book or he deliberately lied. Perhaps both problems are at work.
Poe regarded “draughts” as a more intellectually demanding game, and I have read that computers have a harder time beating checker masters than beating chess masters.
Dr. Fleming, I am pretty sure that I learned of No Duty to Retreat from Chronicles and you were editor at that time. Am I wrong?
Dr. Fleming, in the June 1999 issue of Chronicles (The Decline of the West: From the Alamo to Kosovo) in your Perspective essay “The Only Game in Town,” you wrote (regarding the gunfight at O.K. Corral):
In part, the feud between the Earps and their enemies was a product of post-war sectional conflict (as Richard Maxwell Brown argues in a recent book). Many of the cowboys were from Texas or Missouri, Confederate sympathizers, and Democrats; the Earps were good Republicans, and Wyatt’s older brother Virgil fought for the Union.
Now you did not mention the title of Brown’s book in this essay, and your reference here is not an endorsement of No Duty to Retreat, I am pretty sure that somewhere in an issue of Chronicles both Brown’s and McGrath’s books were recommended. I need to see if I can find the correct issue, it is likely to be one after the June 1999 issue. It may have been in or just before the Obiter Dicta section of the magazine. I have yet to locate some issues from 1999 and 2000. I do know I lost some issues to water damage when my hot water heater failed and my sump float was obstructed flooding part of my basement. I will continue to look.
And I will also reread Brown’s book while waiting for your next post discussing the book.
Thanks for your persistence. As I replied earlier, I am holding off commenting on Maxwell Brown until th relevant part of the chapter is posted. What you cite comes from a cursory examination of the book made when it came out:. Later I reread more carefully, first in the light of his biased study A strain of violence, and after some better study of British legal history. I took RMB to task rather savagely in print in an article you must have missed. The discussion in this chapter is more polite but no less contemptuous:
PS wouldn’t waste time on rereading Brown. He is a dyed-in-the-wool ideologue.
Dr. Fleming, I guess I can throw out all of my copies of Chronicles because there is no telling what is worth reading. I did find the January 1995 issue in which you started the “Commendable” feature, described in Obiter Dicta as a new feature that “highlights books and movies that illustrate the theme of the issue.” Commendable listed McGrath’s book and Brown’s Strain of Violence and No Duty to Retreat.
Perhaps you can provide a reference to the critical article you mention above.
Meanwhile I will go back to reading readily identified fiction.
Sorry for the lapse in infallibility. What interested me in Brown, initially,was his portrait of the Earps/Cowboys feud as a hangover of the War. I think he was basically right on that. But it was only as I researched the legal point that I realized that a) he was wrong and that b) his mistake derived from leftist bias that sees Americans as particularly prone to violence, which is ultimately responsible for what he regarded as the understandable response of inner-city blacks to the legacy of slavery etc etc.
PS I am in Sullivan’s Island and do not have access to my sporadic collection of back issues, and even when I return I do not have access to the archives.
Thank you for the clarification, Dr. Fleming. With insufficient education in many areas of history, I depend on my betters, like you, for guidance.
I inventoried my collection of Chronicles issues today. I have every issue from January 1984 to the present except for: January 1987-October 1989; August 1990, October 1993, February 1995, September 1997, and March 2002. I think my subscription started with the November 1989 issue. (I back ordered the 1984-1986 issues; I may have some of the more recent missing issues stashed somewhere in my basement, except for the Feb ’95 issue, which has all the pages stuck together after it got soaked by the failed hot water heater – see above.)