Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory

Abstract

Western legal systems diverge radically in their approaches to setting limits on the privilege of self-defence. Some systems incline to the view that a person defending his or another life or property may use all the force necessary to stifle an aggressive attack. Taken to the extreme, this means that if there is no other way to apprehend a thief escaping with a petty bounty, one may shoot him—if necessary, shoot to kill. In contrast to this approach, which is adverse to limits on the use of necessary force, another set of Western jurisdictions insists that the degree of force meet two desiderata: it must be both necessary and proportional to the interest protected. The requirement of proportionality or reasonableness means that there are some cases, like petty thievery, where the cost of protecting a threatened interest may be so great that one must surrender the interest rather than inflict grievous harm on the aggressor.