Properties of Blood I.4: Defending Self, Part E–The Natural Right

Roman law did, nonetheless, recognize the right to defend oneself.   In earlier times, self-help was used in a variety of circumstances, though the range was gradually narrowed during the empire.  The Twelve Tables permitted a householder to kill a thief in the night, (II.4) and if a thief acted in broad daylight and used weapons to prevent the householder and helpers from arresting him, he could also be killed.  Cassius Longinus, an eminent jurist in the early empire, regarded vim vi repellere licet (it is permitted to repel violence with violence) as a law of nature.

Even in Justinian's day, the Emperor explicitly acknowledged the right to self-defense: "We grant to all persons the unrestricted power to defend themselves (liberam resistendi cunctis tribuimus facultatem), so that it is proper to subject anyone, whether a private person or a soldier, who trespasses upon fields at night in search of plunder, or lays by busy roads plotting to assault passers-by, to immediate punishment in accordance with the authority granted to all.  Let him suffer the death which he threatened and incur that which he intended (Codex Justinianus (“CJ”) 3.27.1).  The legislator went on to explain the rationale for this provision: “For it is better to meet the danger at the time, than to obtain legal vengeance (vindicare) after one’s death.”  And he concludes: “We therefore permit you to seek your own revenge, and we join to this decree those situations which a legal judgment would be too late to remedy. Thus, let no one spare a soldier, whom it is fitting to challenge with a weapon, just as it is fitting to challenge a thief.

Even at Rome Milo was not executed, though he did flee into exile.  Among Rome's German and Celtic enemies, he might have been required to pay restitution to the family of Clodius.  Alternatively, a blood-feud might have emerged, as it did in Njal's Saga.  In some cultures, the killing would have been applauded as a courageous as well as prudent act.  From every continent and every racial group, it is easy to assemble testimonies--the Sudanese Nuer, the Ifugao of the Philipines, the Comanche of the American Southwest (and virtually every other native American culture.)

Before killing Clodius, Milo must have wondered how far a man may go in his own defense?  Every animal seems to "know" that the laws of life are survival and propagation, that each creature seeks to preserve its own identity and to transmit it genetic heritage through time.  It is mere reflex to strike a blow, when one is received, and to kill, when death is threatened.

Prudence might go further and kill, by anticipation, those who have made serious threats against life.  But what constitutes a serious threat?  Mere fighting does not count; wolves, after all, and baboons may struggle to acquire dominance within the pack and fight with tooth and claw, but the surrender of one of the combatants is supposed to restore peace.  Such natural justice may underlie the Common Law provision that in a fray, no matter how it began, both parties are supposed to do everything possible to prevent homicide.

But what if the case is, as Milo believed, that of a fight in which one man will, if he escapes, return to kill the other?  Suppose an enemy has sworn to kill you, and from his past record you know he means business.  In 1996 a retired Naval officer in San Diego confronted a local hoodlum who had been terrorizing the neighborhood and, pointing a gun at him, told him to go away.  When the trouble-maker told him, "You and your family are as good as dead," the alarmed citizen shot the would-be killer 13 times.  A jury declared him guilty of second-degree murder, but 80% of the callers to local radio programs proclaimed him a hero.  It is best to be careful. The argument was taken to preposterous lengths by an American President who invaded a country on the grounds that he believed its leader was stockpiling "weapons of mass destruction," which turned out not to exist.

The natural response is to eliminate a serious threat before it materializes, and this conviction grows if one is staring down the barrel of a gun.  My father used to tell me never to point a gun at anyone, because the other man, who can only assume that you intend--or at the very least are willing--to kill him, may decide to kill you first.  Men wise in the ways of firearms will always advise against firing warning shots or shooting to wound, and I have heard it said all my life, by kind and civilized men, that if a man is worth shooting, he is worth killing--if only to prevent legal complications.  I once knew a game manager on a plantation who spent several nights in the woods trying to catch poachers.  When the county sheriff heard about how the manager spent his sleepless nights, he politely told him, "If anything does happen, remember, I only want to hear one story."

Such an attitude, while in some circumstances it may tempt reckless young men to engage in gun play, may also serve to repress any frivolous use of weapons.  As a child I was taken out hunting with my father and knew that guns were designed for killing.  Boys brought up in cities and suburbs are not always so lucky.    When I was about thirteen years old, I went out into the woods with a friend who had a pump .BB gun.  We came across several older boys--about 18-20 years old, one of whom I had known as the assistant scoutmaster of my Boy Scout troop  They were all city kids—somehow you could always tell—and they had a .22 they were obviously playing with.  When one of them "borrowed" our .BB gun and begin pinging away at one of his companions, the victim responded by grabbing the .22 and firing away at the legs of his persecutor.  My friend and I were more astonished than terrified to see the foolishness of older boys—grown men, really— who did not realize that guns were for killing.

Everything depends upon circumstances.  In close-knit communities, people can assess threats because they know each other's characters.  Even in Rome, members of the ruling class knew a great deal about each other.  In a modern city, such intimate knowledge is rare, and the incessant mixing and jostling of strangers can lead to altercations and violence that could be avoided in a face-to-face community of neighbors and acquaintances.  Quoting the Second Amendment is not a sufficient answer to reasonable people who are appalled by the violence of modern life.  Just as the sabbath was made for man, not man for the sabbath, so laws and amendments are passed for human good, which should not be sacrificed on the altar of strict construction of an imperfect Constitution that long ago was reinvented by the enemies of everything the “framers” were trying to protect.  It goes without saying that fundamental laws and customs should not be altered without overwhelming agreement on the principles involved.

Even if we are agreed that natural men have a broadly-construed duty to defend their own lives and those of their family members, it is too easy for men of disordered temperament to abuse this privilege.  A fearful man might think it right to kill a stranger who had threatened him only in jest; a choleric man might take revenge for an insult or a slap; a suspicious sort might pay too much attention to troublemakers who, because they wished to precipitate a quarrel, have exaggerated threats against him.  Worst of all, a bully might manufacture a story in order to justify his murderous intentions.  Among barbarians, whose only law is blood, circumstances and motive weigh very lightly on a freeman who is quick to defend his status in society.   Before deciding upon any theoretical limits to the duties of self-defense, we should take a look at how such duties have been exercised in more wholesome circumstances.

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Thomas Fleming

Thomas Fleming is president of the Fleming Foundation. He is the author of six books, including The Morality of Everyday Life and The Politics of Human Nature, as well as many articles and columns for newspapers, magazines,and learned journals. He holds a Ph.D. in Classics from the University of North Carolina, Chapel Hill and a B.A. in Greek from the College of Charleston. He served as editor of Chronicles: a Magazine of American Culture from 1984 to 2015 and president of The Rockford Institute from 1997-2014. In a previous life he taught classics at several colleges and served as a school headmaster in South Carolina