When Is Force Justified?
by Alan Duppler
Editor's Note: This article is presented for educational
purposes only, and is not intended to be legal advice. If anyone has questions
regarding a specific set of circumstances, he or she should contact a
private attorney.
Whether we study judo (as I do), or a style of karate, jujitsu or what
have you, we are engaged in learning a system of using physical force.
Learning how to use force is the easy part.
Things become complicated when we are either compelled or choose to use
it against another. That’s when the law becomes involved and we
learn that using force is not simply a matter between two individuals.
Rather, it is a matter between the two individuals and the society in
which they live. This article will first discuss the philosophy behind
relevant aspects of the Anglo-American legal system and will then apply
that system when discussing circumstances in which force against another
may, legitimately, be used.
I am a lawyer. I work with the law every day, and I’m proud of
that fact. This may sound strange in the lawyer-bashing age we live in,
but it is true. The law impacts everything we do. If you want to function
in society then you have to be concerned about the law. The law not only
defines who we are; it also regulates how we interact with others. It
is the very glue that holds us together as a society. Without the law
we would be huddled masses of frightened humanity—unable to function,
much less express opinions, object to the actions of our leaders or assert
our individuality.
Clearly, something so important as the law cannot be irrational or capricious.
It has to be grounded in common sense, and it has to reflect the mores
and values of every day people leading every day lives. Contrary to what
some would have you believe, our legal system does just that. Our laws
are based on how people live and what they hold most dear. The law is
not a trap for the unwary. The law is a guidebook to what our society
holds valuable.
When I was in law school, one of my professors put it this way. "Look
at the laws of the State of North Dakota," he said (they took up
about four feet of shelf space). Then he said, "Look at the U. S.
Code" (which took up about sixty feet of shelf space). "The
Bible," he continued, "does it all in Ten Commandments."
Now, I’m not a preacher. In fact, I’m not certain I’m
even a Christian. But, there is a lot of truth in that statement. The
first truth is historical. Our American legal system arose out of the
English Common Law. (Thus the term "Anglo-American".) This,
in turn, developed after the year 1066 A.D., when the invading Normans
imposed their legal system on the natives of the British Isles. The Normans
had adopted, or rather, had been forced to adopt, the legal system of
the Romans. Roman law in turn came from the Old Testament during the reign
of the Emperor Constantine.
The second truth is the fact that all of our laws, all of our regulations,
all of the paper work that keeps guys like me busy have, at their root,
only a handful of central concepts. These concepts (so succinctly stated
in the Ten Commandments) are what I will call "core values,"
and they form the heart of our law. Learn them and you will become a lawyer.
What are the core values that control the use of force in modern, urban,
industrialized America? There are three of them: (1) you may defend yourself,
(2) you may defend another, and (3) you may defend your property. All
other uses of force, our society says, are forbidden.
Stated this way, the core values are deceptively simple. Of course you
can use force to accomplish these three things. No one wants to see himself
or his loved ones attacked, nor does he want to see his things taken.
It is this very simplicity, however, that conceals profound truths about
our society. A closer examination of these statements is in order.
The one word that is common to all three core values is "defend".
That says a lot about us. While aggression may be acceptable in the boardroom,
in the courtroom and sometimes even in the classroom, it is never acceptable
when using physical force. Many hours of attorneys’ time and many
gallons of ink have been spent arguing and deciding whether a particular
use of force was defensive or offensive in nature. As one can well imagine,
the distinction is not always clear or easily made.
Imagine yourself at an automobile dealership. The garage has just performed
work on your car, which you feel was not only unnecessary, but a "rip
off" to boot. You refuse to pay for the repairs. A heated argument
ensues. At some point the shop foreman draws back his fist as if to strike
you. In so doing he shifts his weight to his left, or back, foot. Seizing
the opportunity you sweep the foreman’s right foot with deashi-harai,
drop into juji gatame (arm bar) and break his arm. Were you justified
in using the force you did?
In all honesty, I can’t answer that question with just the facts
I’ve just given you. You have the absolute right to defend yourself.
If the shop foreman were actually intending to strike you when he drew
back his fist, then you could clearly protect yourself from his blow(s).
But, without more information, I can’t say for sure that he was
really going to strike.
The question is whether a "reasonable person" would have felt
threatened under the circumstances. For example, if the foreman says,
"You dirty son-of-a-bitch" as he draws back his fist, the implication
is he intends to strike. Defensive force is justified. If, on the other
hand, he says, "These damn flies!" A real question exists as
to his intent. Maybe he was really going to strike you, but maybe the
flies are the objects of his strike.
The lesson to be learned from this is not alien to martial artists. That
lesson is control. When we seek to perfect our art, we are seeking control:
control of our bodies, control of our minds and (in some cases) control
of our surroundings. An act of aggression is not an act of control. Rather
it is an act which evidences a loss of control. If, in my example above,
the shop foreman were really in control of the situation, he would have
no need to strike you, the customer. If he drew back his fist it would
be to swat those "damn flies." On the other hand, if he were
not in control then striking you would be much more plausible.
Similar examples can be developed for each of the remaining two legitimate
uses of force stated above. In each instance the central question is one
of defense (for the Anglo-American legal system) or of control (for the
martial artist). These are not separate questions but, rather, different
manifestations of the same question.
In the end common sense tells us when force can be justified. We are
not a nation of bullies. We do not seek to impose our will on others by
force. Rather, we all want to get along without conflict while living
our lives to the fullest. Jigoro Kano, the founder of judo, expressed
it as "Minimum effort, maximum efficiency." In other words,
by using the minimum amount of effort we all strive to attain the maximum
benefits society has to offer. Using force to attain these benefits is
a waste of effort. Force can only be justified if it is used to protect
that which we hold most dear: ourselves, our friends and family, and our
possessions. Any other use of force is unjustified and, therefore, inefficient.
About The Author:
Alan Duppler is a graduate of the North Dakota Law School (1977). He
then entered government service. In 1981 he was appointed to complete
the unexpired term of the Mercer County (North Dakota) State's Attorney.
After 10 years as a prosecutor (1990) he joined the United States Department
of Veterans Affairs. A year later (1991) he was appointed as a Special
Assistant United States Attorney, where is primarily responsibility
is prosecuting crimes occurring at the Fargo VA Medical Center. Duppler
is also a black belt judo practitioner and continues to work out with
the Gentle Ways at a Judo Club in Fargo.
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