Reformulating Proportionality

The Shai Dromi affair has revived an age-old discussion about the proper scope and the legal boundaries of self-defense.

The Shai Dromi affair has revived an age-old discussion about the proper scope and the legal boundaries of self-defense.

One important element around which this discussion has long revolved is the principle that the one who is defending himself do so in a proportionate way. For years we have understood this demand as meaning that killing a burglar is not justified if he intends "only" to relieve us of our possessions illegally. Depriving a person of life, most reasonable people can agree, is disproportionate to being deprived of any property.

But the principle of proportionality confronts us with two main problems: First, am I as a homeowner to know precisely what the intentions of an illegal intruder are? On what basis must we assume that a burglar intends only to steal our valuable possessions? Even if he enters with that intention, we know a burglar can easily panic if confronted by a homeowner, and may end up attacking him. It can be risky to assume that a stranger who shows up in your bedroom in the middle of the night is just there for your cash and jewelry. What's more, it is unrealistic to expect the victim, surprised by the unexpected guest, to be able to make an intelligent decision about the intruder's possible plans.

Second, in looking at the principle of proportionality, it's a mistake to pose the question as being one of property against the right of the burglar not to be harmed. The real conflict is between the individual's right to privacy, and the right of the intruder not to be harmed. The time has come, therefore, to revisit the old notion of self-defense and in so doing, to reformulate the notion of proportionality.

Unless we can reinvigorate it with its true meaning, "A man's home is his castle" will remain an empty phrase. Its real meaning is that every person has the right to a space in which he can live his life without interference. This legal expectation reflects the importance of this constitutional right. If people can feel confident that their homes are places of sanctity, intruders will know that they must anticipate resistance when they invade the private domain of others.

Let's look at the Dromi case, though it is still before the court. If the trespassers had known they were risking their lives by entering Dromi's farm with the intention to steal his property, I think it's safe to assume they would have thought twice about their plan. Because the law in its current form did not allow Dromi to confront them with deadly force, they were likely more willing to take the risk.

As I write, the Knesset is considering two drafts of an amendment to the existing criminal code. I would agree that the version proposed by MK Yisrael Katz and other Knesset members is too extreme, in that it would allow the killing of a trespasser regardless of the danger he poses. Legalizing such killing would be a manifest contradiction of our values of the sanctity of human life and would be totally improper and disproportionate. The draft proposed by the government, however, is much more moderate and reflects a just compromise between the right of a person to defend his home, and the right of a person not to be harmed without a reason.

The government draft embodies the presumption that a trespasser poses a real danger to the residents and thus they have the right to self- defense. This presumption can be rebutted in cases when it is clear the use of excessive force was unreasonable. Even in those cases, however, the bill would give the court discretion to impose a lenient sentence or even a full acquittal. The government proposal has another important change: According to existing law there is a suggestion that the homeowner has an obligation to retreat from the premises in order to avoid any confrontation with the burglar. The government resolves this possibility by stating clearly that there is no such obligation on the part of the victim.

I support the second draft because it reflects a considerable change from the present understanding and limited scope of self-defense, and more properly reflects the right of the individual to defend himself, his family and his property.

Let's also consider the argument that use of a deadly weapon against a burglar is immoral and disproportionate. As noted, it is incorrect to assume that a burglar's intentions are limited to a desire to steal our private possessions. But even if this were always the case, according to what moral basis is the illegal trespasser permitted to take our property without our being able to try and stop him? Usually, force will be the only means available to stop the intruder. This does not mean that we should always fire to kill, but we should empower a householder to use the amount of force necessary to stop the intruder. And if the owner feels physically threatened by the intruder, he should be entitled to use deadly force.

The contention that allowing the use of firearms in self-defense may tend to cheapen the notion of the sanctity of human life is ill- founded. We should also remember that at present, the police in this country are not willing - or at least are generally unable - to defend us against intruders. As long as this is true, then the only way we can feel secure that our home really is a refuge of peace and privacy is if we know that ultimately, we have the right to defend ourselves in that home from invasion.

Emanuel Gross is a professor in the law faculty of the University of Haifa, specializing in criminal law.