Self Defense?

[1] The American law of self-defense, as a general rule, requires that a defender who kills show that she reasonably feared that she was in imminent threat of serious bodily injury or death. This rule embodies two important understandings consonant with Christian views of human nature and violence. One is implicit in the requirement that the defender “reasonably” fear for her life before she is justified in killing: the law recognizes how we humans tend to see what we want to see – the self-centered and self-justifying will can easily distort even the “facts” of a situation, our sense of personal danger, the way we interpret others around us as threats.

[2] Second, the law requires that the killer make a “reasonable choice to kill,” that is, that she have no alternative (such as escaping or calling for help) because the threat is imminent, and that killing is a proportional response to the threat which she faces. The law of self-defense thus says, “you must choose life” if you possibly can do so without risking death or serious injury.

[3] This law of self-defense does not always work flawlessly, as Americans are discovering after the tragedy of September 11. The government has called for a war against terrorism, effectively arguing that the U.S. is acting in self-defense, rather than trying to bring killers to justice as a law enforcement agency would first attempt. Like the law of war, designed to govern nation-states which send visible armies into battle over a particular piece of earth, the limitations of the law of self-defense do not always seem appropriate or to achieve justice, as in stalking or battering cases, where the victim never knows where or when she will be harmed, but lives constantly in fear. Many Americans want to say that, like battered women who kill their abusive husbands in their sleep, we need to go to war now, even though we cannot identify any immediate physical danger, because we sense that the terrorists will escalate to even greater crimes, and that no alternative short of killing will stop them. Like battered women, these Americans are not necessarily wrong to be apprehensive: in fact, many batterers do kill, and wives’ apprehensions of death often are correct.

[4] Yet, the conditions that the law of self-defense identifies are important for Christians to consider as they go about their daily lives after September 11. First, we can be sure that, because we are creatures of the will, our sense of danger will be distorted: we will see, in another’s skin, or his different dress, or his accent, a danger that does not exist. We will imagine terrorists as larger than life, able to find us in ballparks and tall buildings and airplanes no matter where we are, rather than just as human beings who murder for the same complicated and inexplicable reasons as those whose mug shots are shown on the local news. We will be convinced that if the right security precautions are put into place and we avoid the right activities, we will be able to protect ourselves against the risk of death. Or we will believe that if we employ violence immediately and forcefully, throwing tons of weaponry against a few hundred terrorists rather than waiting for peaceful alternative, we will be safe – if for no reason than everyone will once again be afraid that we are larger than life, and believe that we are untouchable.

[5] The real danger is not only that in our fearful attempts to secure ourselves against the innocent other, we will harm him for no good reason – not just by making him fearful, but by refusing him the respect due him as made in the image of God. Just as importantly, we will do harm to the truth. The Christian call for force (at best) as a last resort and, in Lutheran tradition, only to protect others, is no pie-in-the-sky idealism. It is the means for forcing us to give up our illusion and face the ironic reality of life in this world: that overcaution and violence share the same mistake: the more we try to trust in ourselves and our own clever devices for our security, refusing to name and to trust the real ground of our existence, the more terrorists we will see.

Marie Failinger

Marie Failinger is a Professor of Law at Mitchell Hamline School of Law, St. Paul, MN. She is a lifelong Lutheran, and earned her B.A. and J.D. at Valparaiso University and her LL.M. at Yale Law School. She was the long-time editor of the Journal of Law and Religion, and has co-edited Lutheran Theology and Secular Law: The Work of the Modern State and On Secular Governance: Lutheran Perspectives on Contemporary Legal Issues with Rev. Ronald Duty, along with other articles on Lutheran theology and secular law.