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Citation: 30 Isr. L. Rev. 188 1996
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DURESS, SELF-DEFENSE AND NECESSITY IN ISRAELI LAW
Arnold Enker*
A. HistoricalBackground
The defenses of Duress, Self-Defense (or private defense) and Necessity
are today set forth in sections 21, 22 and 22A, respectively, of the Israel
Penal Law, 1977. However, in order to understand these defenses fully,
it is necessary to go back to the provisions of the Criminal Code Ordinance,
1936, wherein the ruling British Mandatory authorities replaced the
Ottoman Penal Law which had prevailed in Palestine before the Mandate.
For, its name to the contrary notwithstanding, the 1977 Penal Law was
not primarily an original Israeli enactment. Rather, it was in considerable
measure merely a Hebrew translation of the original Criminal Code
Ordinance.' This is especially the case in connection with the Ordinance's
*
1
Professor of Law, Bar Ilan University, Israel.
The Criminal Code Ordinance was promulgated by the British High Commissioner
and became effective in 1936. It was based on the English common law and is much
the same as criminal legislation introduced by the British in other colonies. The
history and sources of the Criminal Code Ordinance were uncovered and described
in two important articles: Abrams, "Interpreting the Criminal Code Ordinance, 1936:
The Untapped Well", (1972) 7 Is. L.R. 25; Shachar, "The Sources of the Criminal Code
Ordinance 1936", (1979) 7 Iyunei Mishpat 75.
Section 16 of the Law and Administration Ordinance, 5708-1948, provides a
streamlined procedure for publishing a Hebrew translation of Mandatory laws in
effect at the time the State of Israel was established, to be called the New Version.
Upon completion of the procedure, the Hebrew New Version becomes the official
version of the law, replacing the English Mandate text. The New Version is prepared
by an advisory committee consisting of a judge, the Attorney General or his
representative, a representative of the government ministry charged with
administering the law at issue, a practicing lawyer and an academician. Approval
of the proposed New Version is by decision of the Knesset's Law and Constitution
Committee.
In 1977, work was completed on the New Version of the Criminal Code Ordinane.
Since by then many provisions of the special part of the Ordinance had been amended
by the Knesset, it would have been somewhat misleading to call the Code a "New
Version" of the Criminal Code Ordinance. It was, in fact, in part, a New Version of
the Mandatory Ordinance and, in part, original Israeli legislation. The Committee
chose to call the code the Penal Law, 5737-1977. But despite the name, sections 21
and 22 of the Penal Law were not new Knesset legislation. They were merely a New
Version of sections 17 and 18 of the 1936 Criminal Code Ordinance, which had
governed duress and necessity since 1936.
Nos. 1-2, 1996]
DURESS, SELF-DEFENSE AND NECESSITY
General Part, which includes the defenses that concern us here. It was
only in 1992 that the Knesset enacted original Israeli legislation
concerning these defenses.
B. The Criminal Code Ordinance 1936
1. Duress and Necessity
Sections 17 and 18 of the 1936 Ordinance covered the defenses of
duress and necessity. No clear pattern of underlying rationale emerges
from their examination. Perhaps even more remarkably, the Code
contained no express provision dealing with self-defense. Section 17,
2
Duress, provides as follows:
Except murder and offences against the state punishable with death,
no act is an offence which is done by a person who is compelled to do
it by threats which at the time of doing it reasonably cause the
apprehension that instant death or grievous bodily harm to that
person will otherwise be the consequence:
Provided that the person doing the act did not, of his own accord,
place himself in the situation by which he became subject to such
constraint.
It is not entirely clear what is the rationale that lies behind these
provisions.3 The reference in this section to the person being "compelled
to do" the act and the severity of the compelling threats - "instant death
or grievous bodily harm" - suggest an excuse rationale, that the
defendant's act is considered morally involuntary, rather than an objective
justification. So, too, the restriction of the defense to threats directed
at the defendant himself appears to indicate a rationale of excuse. But,
it should be noted, that the section states that "no act is an offence" when
done under duress, which appears to suggest that the act is legally
justified rather than that it is unlawful but excused. And the exception
for murder and certain other very serious offenses also appears to
2
3
Section 17 continues to be the governing law, in its Hebrew New Version. It is now
section 21 of the Penal Law 1977. See n. 1, supra.
This matter was dealt with at length in Enker, Duress and Necessity in the Criminal
Law (Bar Ilan Univ., 1977).
ISRAEL LAW REVIEW
(Is.L.R. Vol. 30
suggest a justification rationale or, at least, that the excuse rationale
was inconsistently applied.
The defense of necessity was governed by section 18 of the Code,
4
which stated:
An act or omission which would otherwise be an offence may be
excused if the person accused can show that it was done or omitted
to be done only in order to avoid consequences which could not
otherwise be avoided, and which if they had followed would have
inflicted grievous harm or injury to his person or to his honour or his
property or to the person or honour of others whom he was bound to
protect or to property placed in his charge:
Provided that in so acting he did no more than was reasonably
necessary for the purpose, and that the harm inflicted by the act or
omission was not disproportionate to the harm avoided.
Several elements of this defense suggest the possibility that it is
based on a justification rationale. The requirement of proportionality,
contained in the proviso, and the broader class of persons and interests
which may be protected, as compared with those referred to in section
17's definition of duress, point in this direction. So, too, the stress placed
on the act being "reasonably necessary" appears to point in the direction
of an objective standard that renders the act proper in the circumstances.
On the other hand, the introductory phrase to section 18 states that "an
act or omission which would otherwise be an offence may be excused"
under the terms of this section. Moreover, if this section were limited
to claims of justification, the Code would contain no provision dealing
with that type of necessity which excuses.
Quite clearly, then, the British mandatory legislator did not have in
mind a model, conceptual or otherwise, that drew a clear distinction
between excuses and justifications. Indeed, he most likely gave little or
no thought at all to this distinction. The differences between the
defenses of duress and necessity appear to be casuistic rather than
based on any principle. Duress deals with a crime committed in
submission to an unlawful demand under threat of grievous harm.
Necessity concerns situations in which events and circumstances, rather
than human threats, create the danger of injury which the actor seeks
to avert by injuring another. This model continues to prevail today, even
4
This provision no longer is part of the Law. It was amended in 1992. See part C
below.
Nos. 1-2, 1996]
DURESS, SELF-DEFENSE AND NECESSITY
after the recent amendment of the law concerning necessity. It also is
the model adopted in the draft of the proposed new Code now under
consideration by the Knesset.
By its terms, then, the defense of necessity is sufficiently broad to
cover both situations of necessity that excuse the actor as well as those
that justify the act. Seen in this light, the requirement of proportionality
contained in the proviso to section 18 appears to place an unnecessary,
and undesirable, burden on claims of excusing necessity. For,
proportionality makes sense as a condition of objective justification. It
carries little weight, if any, in judging whether the actor should be
excused. One way to deal with the matter successfully, had the issue
arisen in a case before the courts, would have been to interpret the
requirement of proportionality differently in the two settings. In order
to justify the act, the injury inflicted would have to be less, perhaps
significantly so, than the harm prevented. An excuse could be allowed
even when such proportionality is not met, so long as the injury inflicted
is not grossly excessive in relation to that which is prevented. 5 The case
law did not have occasion to test this issue.
The two sections under consideration derived from independent
literary sources, which further contributed to the difficulties in discerning
their respective meanings. Section 17, Duress, had its origin in section
94 of the Indian Penal Code of 1860, which has long been thought to be
a finer example of legal craftsmanship than other English criminal
codes. Section 18, Necessity, was taken from James Fitzjames Stephen's
Digest of the CriminalLaw of England,which he wrote in 1877 to assist
him in preparing his draft Criminal Code, which was presented to the
Parliament in 1879 but failed of enactment. Stephen himself thought
his very general summary of the principles governing the defense of
necessity more appropriate for inclusion in the Digest, by its nature
summary and concise, than in a code of law, and omitted any such
provision from the 1879 draft code.
Nor was any attempt made to integrate the provisions of the two
defenses or to reconcile apparent differences between them. For example,
Stephen himself, who, as we have seen, authored the source for the
5
Section 18 also provided the source in Israel law for self-defense. In this case, too,
the legal literature proposed to solve the problem by interpreting the requirement
of proportionality differently in cases of necessity and in cases of self-defense. Feller,
"Necessity 'Stricto Sensu' as Negating the Illegality of the Act", (1972) 4 Mishpatim
5; Enker, supra n. 3, at 97-105.
ISRAEL LAW REVIEW
[Is.L.R. Vol. 30
defense of necessity, would not have agreed to the provision allowing the
defense of duress in the form allowed under section 17. He thought that
the criminal law should respond to illegal threats with counter threats
of increased severity of punishment rather than with sympathy and
6
leniency.
This absence of any attempt at integration of the provisions may
explain the contrasting treatment of omissions in the two sections.
Section 17 refers to "acts" and says nothing about omissions, while
section 18 allows its defense with respect to both. Presumably, basic
principles of criminal law, which equate acts and omissions, should
prevail and no distinction should be made between them, despite these
differences of drafting.
The absence of any attempt at integration and reconciliation may
also explain why the explicit exception for murder in the case of duress
was not repeated in the section dealing with necessity, although later
English law rejected the latter defense as well when presented to a
7
charge of murder.
In sum, the original provisions concerning the defenses of necessity
and duress, as promulgated by the British Mandatory authorities, were
drawn from different literary sources and were lacking any conceptual
foundation which might have provided a basis for some attempt to
integrate their features. It should not be surprising, then, that they
were replete with omissions and inconsistencies.
2. Self-Defense
As already noted, the 1936 Code contained no provision dealing
expressly with self-defense. For most of its history, it was assumed that
the necessity defense in section 18 was a self-defense provision. We
have already noted the generality and breadth of its language, which
permit it to apply to both the excusing and the justifying varieties of
necessity. It should come as no surprise, therefore, that this language
also managed to furnish the statutory basis for self-defense. In fact, for
6
7
See Stephen's History of the Criminal Law of England, vol. 2, (1883) p. 107.
R. v. Dudley and Stevens, (1884) 14 Q.B. 273. In the fourth edition of his Digest of
the CriminalLaw, published after the decision in the Dudley case, Stephen expressed
the opinion that he could "discover no principle in the judgment" (p. 25).
Nos. 1-2, 1996]
DURESS, SELF-DEFENSE AND NECESSITY
many years it was assumed that this was section 18's original function
and that its application to situations of necessity was secondary. But
legal scholarship in the 1970s, more than forty years after promulgation
of the Code, uncovered its source in Stephen's Digest and the fact that
Stephen intended this section to deal with necessity only. 8 Stephen's
Digest contained additional separate provisions dealing with self-defense,
that differed from his necessity section in significant respects.9
Apparently, the draftsman's ignorance produced this anomalous result
Wherein the Criminal Code contained no section dealing with selfdefense.' 0
In practical terms, as indicated, section 18 provided the needed
statutory provision. Notwithstanding the section's introductory phrase
to the effect that "an act or omission... may be excused", the courts held
that self-defense provides the defendant with a complete defense to
alleged criminality, as a matter of right, rather than as an excuse which
might or might not be granted him in the court's discretion." And the
academic literature laid the groundwork for interpreting the
proportionality requirement as applied to self-defense in a manner that
differed from its application to necessity. In justifying necessity,
proportionality would require that the injury prevented be greater,
perhaps even substantially so, than the injury caused. In situations of
self-defense, proportionality would require that the interest protected
not be so minor in relation to the injury caused so that it would have
been better to suffer the injury to that interest rather than cause such
great harm. 2
One unfortunate consequence of this situation in which a single
statuory provision, originally drafted to summarize the law concerning
necessity, covered self-defense as well, was that the scope of self-defense
became limited to the actor's protection of himself and of those "whom
he was bound to protect". Private defense, in its broad scope, was not
recognized. Stephen had imposed this limitation in the Digest on the
defense of necessity, perhaps because of its potentially anarchic tendency,
but he had not imposed any such limitation on the scope of self-defense.
8
9
10
11
12
Feller, supra n. 5; Enker, supra n. 3, at 97-105.
Section 200, renumbered in later editions as section 305.
Shachar, supra n. 1.
Attorney General v. Patniev, (1949-50) 2 P.D. 424, at 447.
Feller, supra n. 5; Enker, supra n. 3.
ISRAEL LAW REVIEW
[Is.L.R. Vol. 30
In the latter case, he allowed the defender to act "in order to defend
13
himself or any other person".
In an effort to solve this problem, the scholarly literature suggested
that section 18's limitation of the defense to persons "whom he [the
actor] was bound to protect" be applied in its ordinary narrow historic
meaning to situations of necessity, but that it should be interpreted
more broadly in cases of private defense, on the ground that morality
and the duties of citizenship impose a duty to protect all persons
threatened by unlawful attack. 14 Attention was also drawn to the fact
that Jewish law grants a broad power -
defense
of others. 15
indeed, a duty -
of private
But these efforts to broaden the scope of the defense
6
were rejected by the courts.1
To summarize, the original Ordinance provided two defenses based
on the prevention of injury. One, duress, was defined in very narrow
terms, submission to overwhelming threats of grievous harm to the
actor. Threats to other persons were excluded from the defense, no
matter how closely such persons were related or otherwise connected to
the actor. Even then, certain crimes were excepted from the defense of
duress, most notably murder. In the case of murder, circumstances of
duress also could not be considered in amelioration of the seriousness
of the offense or in mitigation of the penalty.
In remarkable contrast, the defense of necessity was extremely broad
in scope. The generality and breadth of section 18's language allowed
it to make do for what were actually three separate defenses, necessity
that excuses, necessity that justifies and self-defense. Carrying this
heavy burden, section 18 necessarily creaked at the seams. Academicians
might conceptualize these independent defenses and strive to keep them
apart. They might even succeed in elaborating means for dealing with
each separately, all within the unitary language of a single Code section.
As a practical matter, however, the lines would not be delineated so
sharply. Still, for many years, the legislature made no attempt to
correct this situation.
13
14
115
16
"Article 200: Private Defence.
The intefitional infliction of death or bodily harm is not a crime when it is inflicted
by any person in order to defend himself or any otherperson from unlawful violence,
provided that . ,. ." (Emphasis added.)
Enker, supra n. 3, at 117-125.
Ibid.
Afanjar v. The State of Israel, (1979) 33(iii) P.D. 141.
Nos. 1-2, 19961
DURESS, SELF-DEFENSE AND NECESSITY
C. The Law after the 1992 Amendment
In 1992, the Knesset passed Amendment No. 37 to the Penal Law of
1977, which distinguished between the defenses of self-defense and
necessity and provided separate sections for each. Amendment No. 37
left the defense of duress unchanged. The amendment was enacted
barely two months before the national elections that were held in May
of that year. The Knesset debate over its provisions reflects that timing
quite clearly. Many of the amendment's details, especially those relating
to the scope of self-defense, became enmired in political controversy as
they related to the scope of defense that should be permitted Jewish
settlers in the occupied territories against acts and threats of Arab
terror.
Section 22 of the Penal Law, which until the recent amendment of
the Law contained the broad British Mandatory defense of necessity,
now deals with private defense only. It provides a defense for any act
or omission "directed against an aggressor in order to repel an unlawful
assault, which endangered his [the actor's] life, liberty, body or property,
or those of another person". A separate section, section 22A, was added
to the Law. It allows a defense of necessity for
an act or omission that was required to be done immediately in order
to prevent the danger of severe injury to his [the actor's] life, liberty,
body or property, or to those of another person, stemming from
circumstances, provided that the actor could not prevent the injury
in any other manner, and the injury he caused was not disproportionate
to the injury he sought to prevent.
Section 22B, which applies to both defenses, states that the defenses
will not apply if,
in the circumstances, the act or omission were not reasonable for the
purpose of preventing the injury.
The express requirements of section 22A, in the case of necessity,
that the act be required immediately and that it not be disproportionate
to the threatened injury sought to be prevented, are noticeably absent
in the case of self-defense, section 22. Much of the Knesset political
debate related to these two elements. Many right wing activists strongly
resisted any attempt to incorporate similar conditions in the case of self-
ISRAEL LAW REVIEW
[Is.L.R. Vol. 30
defense. Others, at the other end of the political spectrum, fought
equally to include these requirements expressly. The former group
prevailed.
Still, the absence of any explicit reference to the requirements of
immediacy and proportionality in regard to self-defense is far from
conclusive. Some of the specifics of the Knesset debate reflect confusion
and misunderstanding concerning the precise meaning of these
requirements, reflecting no doubt the ambiguities of the law in these
matters under the Criminal Code Ordinance. Also, some of the
participants in the Knesset debate thought that the new law required
immediacy and proportionality, in any event, by virtue of its overriding
requirement of reasonableness contained in section 22B. Moreover, the
definition of self-defense as involving the "repelling" of an unlawful
assault carries within itself an implicit element of immediacy, even if
the term "assault" be interpreted broadly. One case that arose under
the new law, before a military tribunal, held that the omission of explicit
reference to the requirement of immediacy from the section dealing with
self-defense is not conclusive and that such a requirement would exist
anyway, by virtue of the requirement that the act be reasonable or that
it be designed to "repel" an unlawful assault.17
Does the Israeli law of self-defense require that the defender withdraw
from the encounter or retreat to his home or to a wall, as is sometimes
required by English law? Section 22A does not contain any express
requirement to that effect, but that is inconclusive for several reasons.
Once again, the requirement of "reasonableness" would appear to be
broad enough to allow the courts to include a requirement of
disengagement or withdrawal, in at least some circumstances, should
they choose to interpret the law in this manner. Section 18 of the
Criminal Code Ordinance also lacked any requirement of withdrawal,
but one Supreme Court decision rejected a claim of self-defense on the
ground that the actor did not retreat to the wall. 8 Early decisions of
the Supreme Court are in conflict over the question, though they are
easily reconcilable on their particular facts.
One such case involved a dispute between residents of a temporary
immigrant tent camp that ended in one killing the other in self-defense.
The killer had acted with great self restraint, both on the preceding day
17
18
Special Military Tribunal 2/91, The ChiefMilitary Prosecutorv. Lt. Col. 'R", at p. 8.
Attorney General v. Kaminsky, (1955) 9 P.D. 54.
Nos. 1-2, 19961
DURESS, SELF-DEFENSE AND NECESSITY
and on the occasion in question. The Court rejected the prosecutor's
claim that the killer should have retreated to his home on the broad
ground that the law contains no such requirement. 19 But, it should be
noted, the killing occurred immediately adjacent to his dwelling and, in
any event, his tent dwelling could not really have afforded him any
additional protection.
In the second case, the defender initiated an affray by demanding
that the employee of an establishment deliver to him an object he
claimed was his. The employee asserted his lack of authority to do so
and suggested that the customer await the proprietor's return. Instead,
the customer took the object and began to leave the premises. When the
employee tried to restrain him and to retrieve the object by force, the
customer resisted and caused him injury. The Court rejected the
customer's claim of self-defense on the ground that he should have
withdrawn from the affray and retreated rather than have responded
with force.20 The Court's decision appears clearly based on the
unreasonableness of the customer's behavior in this instance. Although
the employee may have been wrong in using force to retrieve the object,
the customer should have yielded rather than defend with force, since
he had wrongfully taken the object in the first place, rather than await
the owner's return as the employee had proposed.
I tend to doubt whether court decisions under the new law will be any
different from those described.
As already indicated, private defense is allowed under the new law
in order to repel "an unlawful assault". There is no clear answer in the
law to the question when is an assault unlawful. Is an assault by a child
or by an insane person unlawful, so that one may defend against it
pursuant to the provisions of private defense as set forth in section 22?
Or is this a case of danger that stems from circumstances, .so that
prevention of the harm is governed by section 22A, necessity? The
distinction is especially important under the 1992 amendment, because
the Knesset saw fit to disallow the defense of necessity if the act causes
the death of any person. I shall have more to say about this limitation
later on, but at this point, suffice it to say that the denial of the defense
of necessity to the killing of a person renders it all the more important
to ascertain precisely where the law draws the line between self-defense
and necessity.
19
20
Ashwal v. Attorney General, (1952) 6 P.D. 1116.
Kaminsky, supra n. 18.
ISRAEL LAW REVIEW
[Is.L.R. Vol. 30
Given the past failure of Israeli law to develop the distinction between
justification and excuse, together with its failure to develop any clear
conception of what constitutes "illegality" in the criminal law, it will
come as no surprise to learn that the matter remains unclear. The
Israeli writers have asserted different positions concerning the question
raised above, whether an assault by a child or by an insane person is
unlawful but excused, so that it may be defended against as a matter
of self-defense, or is a danger emanating from circumstances, and is
therefore covered by the defense of necessity, with its limitations.2 The
case law contributes nothing further toward clarification of the issue.
Both self-defense and necessity contain an additional qualification,
or limitation of the defense, denying the defense if the actor caused the
assault or the endangering circumstances by his own improper act. In
neither case is the term "improper act" defined. But it would appear to
refer to an act that, while not itself criminal, carries with it a substantial
risk that harm will ensue and that the actor will have to commit an
offense in order to protect the endangered interest. The denial of a claim
of self-defense because of the defender's prior "improper act", also requires
that the actor was aware that matters may develop as they did. One
who causes the danger unwittingly does not lose his freedom to act in
self-defence. But in the case of necessity, the law expressly states that
it makes no difference whether the actor knew, or a reasonable person
in his situation could have known, that he might so act. It is not
immediately clear what is the reason for this difference between the two
defenses and why the defense of necessity is treated so narrowly.
The legislature appears to have given no special thought to the
question how this provision, which restricts the scope of self-defense
because of the actor's improper act, interacts with the extension of the
defense to the protection of third persons. For example, suppose A's
improper act causes B to commit an unlawful assault upon C. May A
act against B to repel the assault and protect C? By a literal reading
of the statute, if A assaults C in order to repel C's assault upon B, A's
claim of private defense will be rejected, because it was A's original
improper act that caused B to assault C. Arguably, it makes sense to
deny A the right to use force in order to protect himself from an assault
21
See, e.g., Enker, supra n. 3; S.Z. Feller, Elements of CriminalLaw, vol. 2 (1987) para.
494, pp. 393-94; Fletcher, "Proportionality and the Psychotic Aggressor: A Vignette
in Comparative Criminal Theory", (1973) 8 Is. L.R. 367; Kremnitzer, "Proportionality
and the Psychotic Aggressor: Another View", (1983)18 Is. L.R. 178.
Nos. 1-2, 19961
DURESS, SELF-DEFENSE AND NECESSITY
caused by his own improper act, since his need for self protection stems
from his own misconduct. But why should A's improper act deprive C
of A's protection?
Consider also the following case. Suppose, A's improper act causes
C to assault A. A may not assault C in his own defense because A's
improper act caused the C's assault upon him. But, ironically, under a
literal reading of the law, B may come to A's defense, since B did not
do any improper act, even though the assault upon A is the result of A's
own improper act.
These results, which derive from a literal reading of the statute, may
be based upon a conceptual confusion that understands the issue in
terms of the actor's "right" to intervene in order to prevent the harm.
If it is the actor's right that is at issue, then it makes some sense to say
that he loses his right when he is to blame for the danger, even though
the exercise of his "right" to intervene may actually save someone else
from injury.
In the past, when the defense was narrowly limited to the protection
of the actor himself and of other persons closely related to him, it could
readily be conceptualized as a "right" to self-defense. But the extension
of the defense to encompass the protection of all persons changes its
basic nature, so that it is no longer appropriate to conceive of it as a
"right". On the other hand, Israeli law would have great difficulty to
conceive of these defenses as expressing duties since, following the
common law tradition, the legal duty to come to the aid of third persons
is extremely limited in scope.
Perhaps, then, it is best to conceive of self-defense as creating a
liberty or a power to act in order to prevent unlawful injury even though
such an act would otherwise be a crime. But that still does not resolve
the question whether the actor's prior misconduct should cause him to
lose this liberty when his act would prevent injury to a third person. It
appears to me that it would make sense to resolve this question by
asking who is supposed to be the beneficiary of the power. The limitation
on the defense because of prior misconduct should apply at most only
when the beneficiary of the defense and the person whose misconduct
caused the assault are one and the same. It has been suggested in the
literature that the courts would do well to interpret these provisions in
light of basic values of fairness and justice, rather than according to
their literal import.
With respect to situations of necessity caused by the actor's own
improper conduct, the 1992 law introduced by Amendment No. 37
200
ISRAEL LAW REVIEW
[Is.L.R. Vol. 30
makes the distinction suggested above. A person whose "improper act"
caused the situation of necessity may not commit a crime in order to
prevent injury to himself. But he may do so to prevent injury to others.
We have already quoted the key elements of the 1992 provision
defining the scope of the defense of necessity. Clearly, it differs from
self-defense in that it is not limited to an act directed against an
unlawful assaulter. Therefore, the provisions of the 1992 law require
that the act done to prevent the threatened injury be immediately
necessary and not be disproportionate to the injury sought to prevented,
in addition to requiring that it be reasonable. The law contains no
further provisions that elaborate upon the meaning of these terms.
In this context, it is important to note, once again, that no attempt
has been made to distinguish between justifications and excuses, either
conceptually or operatively, or to clarify the law's understanding of
these concepts. The law retains the casuistic distinctions between
duress and necessity that prevailed under the earlier law of the British
Mandate, without change, except for the separate treatment of selfdefense. No attempt has been made to contribute any new insights on
the level of legal theory and principle. Accordingly, the courts still lack
any clear guidance on questions such as the role to be played by excusing
necessity in Israeli law and, assuming that it is included in the general
provisions dealing with necessity, how the requirement of proportionality
fits into this concept. The academic literature expresses a range of views
in this regard that are not always reconcilable. But the issues are more
theoretical than practical since they do not appear to arise before the
courts.
For example: Section 22A allows the defense of necessity when the
defendant acted to prevent serious danger of injury to life, freedom, body
and property. The inclusion of "property" in this list poses no problem
in the case ofjustifying necessity. Although property is a lesser interest
than the others mentioned, the requirement of proportionality will
assure that the defense will be recognized in such a case only with
respect to an act that causes a still lesser injury. But excusing necessity
is based on the severe pressure in which the defendant acted, which
makes it unfair and unnecessary to punish him in the circumstances.
It may fairly be questioned whether the danger of injury to property
exerts such extreme pressure as should excuse the actor.
Another question that arises is how this unitary treatment of the two
types of necessity affects the expansion of necessity to encompass the
prevention of injury to all persons. Again, this extension does not raise
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DURESS, SELF-DEFENSE AND NECESSITY
any problems in the case of justifying necessity. When the otherwise
criminal act is justified, because it prevents harm to a significantly
superior interest, it makes good sense to allow the act regardless of
whose interest is protected. Justification is an external objective matter,
independent of persons.
But, again, excusing necessity is based on the extreme pressures
brought to bear on the actor. The relationship between the actor and
the person who was in danger will often be relevant in assessing the
nature of the pressure under which he acted and its force, which in turn
affect the judgment whether he should be excused.
It may well be that these problems will find their ultimate solutions
in the law's requirement that the act be reasonable in the circumstances. 22
But this places a great burden on this condition, which applies to all
three defenses - self-defense, justifying necessity and excusing necessity
- equally. It appears that the new law has caused very little change
in this respect. Once again, as in the old law, a single unitary term must
be interpreted differently, applying different criteria, in each of three
separate situations.
As already mentioned, an important limitation on the scope of the
defense of necessity is that it does not apply "if the act caused the death
of a person". This limitation was added to the law at the last moment
before its enactment. Its sponsor intended to reflect the principle of
Jewish law that one may not take one person's life in order to save that
of another, except in the case of self-defense. This is not the place to
examine the question how accurately this provision reflects Jewish law,
other than to say that it oversimplifies the issues considerably. Our
focus is rather on the consequences of this provision for the secular
Israeli law.
We already noted that as a result of this provision, in the case of a
killing, it becomes very important to determine whether the act is
governed by the provisions of self-defense (section 22A) or of necessity
(section 22B). But, as we have seen, Israeli law has never developed the
underlying theoretical constructs that would enable it to define clearly
the differences between these two defenses. Furthermore, since section
22A does not distinguish between necessity that excuses and justifying
necessity, the denial of the defense of necessity when death results
applies equally to both types of necessity. There are reasons that would
support allowing excusing necessity as a defense to murder even if
22
Section 22B.
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[Is.L.R. Val. 30
justifying necessity is not allowed. It might be countered that the denial
of excusing necessity as a defense to murder is consistent with our law's
denial of the defense of duress in the case of murder. But it might also
be argued with equal force that the legislature should have taken the
opportunity to reexamine the law concerning duress. Furthermore, the
exception in the case of necessity is much broader than in duress. The
former excepts any act which causes death; the latter excepts murder
only.
One may also question whether such a limitation was really necessary.
For most situations, the requirement of proportionality would have
sufficed.to deny the defense of necessity to one who kills another. Only
in very few and very rare circumstances might it be argued that killing
a person was not disproportionate to the harm prevented. If such a rare
case does arise, it would seem that necessity should be a defense, even
23
though the act causes death.
Finally, it should also be noted that this limitation on the defense of
necessity applies whenever the act causes the death of a person, without
regard to the actor's mens rea. Thus, one who commits an offense in
order to save someone else's life, or the lives of several people, and
succeeds in his endeavor, but in the course of so doing he accidentally
causes someone's death, will be denied the defense of necessity, even if
he was not negligent in causing the other person's death. He will be
innocent of homicide in all degrees, because he caused the death without
negligence, but he will be guilty of any offense against property he may
have committed in the course of saving these lives, because his act
caused one person's death. 24 In this respect, too, this limitation on the
defense of necessity is stricter than the exception in the case of duress,
which by its terms applies to murder alone. The limitation overshoots
its mark by far and is an example of legal "overkill".
23
24
One such case arose recently in the United States. Twins were born joined together
at the chest with one heart. There was no chance that both could survive. Surgery.
enabled the physical separation of the twins and reconstruction of the heart so that
one might be saved. The other died immediately after the surgery was performed.
No one has suggested that the surgeon who performed the operation, or the parents
who permitted it, might be guilty of murder. Indeed, such surgery has been permitted
according to Jewish law as well.
A court might be able to overcome this problem by holding that the term "cause"
implies fault or blame in this context. But, for reasons I shall not go into here, this
is at best a partial solution to the problem.
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An important innovation introduced by the 1992 law is its provision
allowing the court sentencing discretion, notwithstanding some other
provision of law that fixes a minimum sentence for the crime committed.
Section 22C of the Penal Law provides that if a person commits a crime
that carries a mandatory penalty, in circumstances of self-defense or
necessity, but he does not have the benefit of these defenses because he
has not complied with all of their conditions, the court may impose a
sentence that is less than the mandatory sentence otherwise required
by the law. The principal importance of this provision is in the case of
murder, which ordinarily carries the mandatory penalty of imprisonment
for life.
In the first place it should be noted that this provision allowing
leniency in sentencing does not apply to cases of duress. The reason for
this result is that the legislature acted in a piecemeal manner, to amend
the law governing self-defense and necessity but not the law governing
duress. The result, then, is that the mandatory provisions continue to
apply in the latter case. Duress is not a defense to murder, neither
complete nor partial by way of amelioration of the offense to reduce it
to manslaughter, and the court must apply the mandatory penalty of life
in prison. Once again, the piecemeal nature of the 1992 amendment has
created an inconsistency in the law governing these situations.
The drafting of these provisions allowing for sentencing leniency is
also somewhat less than artful. Two examples will suffice. In the case
of self-defense, section 22C(1) releases the court from the constraints of
a mandatory punishment if the actor acted according to the conditions
set forth in section 22 but exceeded the limitations of reasonableness.
We have already seen that the provisions of self-defense contain no
express requirement of immediacy, but that such a condition may be
inferred from either of two sources: the requirement that the defender's
act "repel" an unlawful assault, contained in section 22, and the
requirement of reasonableness, contained in section 22B. It would
appear, then, that if one who kills another is denied the defense of selfdefense for failure to meet the requirement of immediacy, the question
whether the court must sentence him to life imprisonment or may
impose a lesser sentence will depend upon whether the court finds the
source of the requirement of immediacy in section 22 itself or in section
22B. Suffice it to say that this is most unsatisfactory.
A similar incongruity arises with respect to necessity. Section 22C(2)
permits sentencing leniency if the actor acts according to the conditions
set forth in section 22A but fails to comply with the conditions of
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[Is.L.R. Vol. 30
necessity because the injury he caused was disproportionate to that
which he sought to prevent or because his act was unreasonable. But,
suppose the actor acts according to the conditions of necessity but is
denied the defense because he caused the death of a person? This is a
third condition on the defense of necessity, but it is nowhere mentioned
in section 22C(2). Undoubtedly, this is because the limitation concerning
causing death was added to the law at the very last moment of legislative
action, at which time no attempt was made to integrate it into the other
provisions of the law. Perhaps the courts will interpret the law to say
that causing death is but a specific statutorily fixed case of
disproportionality or of unreasonableness or, indeed, of both together.
D. The ProposedNew Law
By way of general description, it might be said that the proposed new
law cleans up much of the mess of irrationalities and inconsistencies
that existed up to now, but it does not contribute any further clarification
on the level of legal theory in relation to the distinction between the
different defenses under consideration. The proposed law ignores the
matter of possible distinctions between excuses and justifications, both
within the statutory provisions themselves and as underlying concepts
on which they are premised. The price paid for this avoidance of the
theoretical issues is the extreme generality of the proposals which give
the courts absolutely no guidance concerning their application to concrete
cases.
The proposed new law continues the existing pattern which
distinguishes casuistically between the three defenses of self-defense,
duress and necessity. Self-defense differs from the latter two in that it
concerns an act done to repel an unlawful assault.2 5 Duress deals with
submission to a demand made under threat of harm.2 6 Necessity involves
an act undertaken in order to prevent injury threatened by
circumstances.27 All three provide a defense when the actor acts to
25 Section 46.
26 Section 48.
27 Section 47.
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DURESS, SELF-DEFENSE AND NECESSITY
205
protect himself as well as when he acts to protect another person. All
2s
three require that the act be reasonable in the circumstances.
None of the proposed defenses requires that the act be proportionate
to the harm sought to be prevented. Presumably, the question whether
to impose such a requirement at all, and any differential application of
this requirement in the different settings, is a matter for the courts to
29
decide within the confines of the requirement that the act be reasonable.
As in the past, the proposed new law is silent concerning the distinction
between excuses and justifications. Presumably, once again, the question
whether to recognize such a distinction at all is left to the courts to
decide. If they ascribe any significance to the distinction, they will have
to differentiate the requirement of reasonableness here as well.
No offense is specifically excepted from any of these defenses. In
other words, they all apply to murder, just as to any other offense,
subject only to the requirement that the act be reasonable in the
circumstances. All in all, the courts are free to hold that any particular
act, including a killing, was warranted in the circumstances, that it was
not justified but may be excused, or that it was both unjustified and
unexcused because it was unreasonable in the circumstances. But there
is nothing in the law to suggest that they should adopt these distinctions
and, if they do, how they should apply them.
The Knesset subcommittee that has devoted much of the past year
to close examination of the proposed new law recently approved this
scheme.
It should be noted that both the original proposal and the subcommittee
decision were made after consideration and rejection of an alternative
proposal which would have given more specific and detailed substance
to the meaning of reasonableness in the different settings of each
defense. The alternative proposal also defined more precisely the meaning
of proportionality and its significance in the different settings. It did not
expressly distinguish between justifications and excuses. Rather, the
distinction provided the rationale that lay behind the detailed provisions.
The rejection of this alternative proposal and the adoption of the less
precisely defined scheme expresses a preference in Israeli legislation for
broad delegation of power to the courts, although in the instant case it
might reasonably be thought that it would have been better to set forth
some standards to guide the courts' exercise of judgment.
28
29
Section 52.
The point is made in the explanatory comments to section 52.
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E. Postscript
Subsequent to the presentation of this paper at the Conference in
December 1993, the Knesset enacted Amendment No. 39 to the Penal
Law, replacing the Law's General Part along the lines of the Bill
described in Part D above. The provisions dealing with self-defense,
necessity and duress, as finally enacted, do not differ substantially from
30
those described in part D of this paper.
The most significant change in the new law is that there is no longer
an exception for murder in the defense of duress. Such an exception
prevailed in the Criminal Code Ordinance, based on the English common
law. It should be added that section 34J of the Law, dealing with selfdefense, and section 34K, necessity, expressly require that the acts
permitted be "immediately necessary" and that the harm prevented be
"tangible". It is believed that these requirements should restrict the
defense of necessity to situations of sudden emergency.
30
Herewith is an unofficial translation of the new Code provisions dealing with the
three defenses.
"Self-Defense
34J. A person shall not be criminally liable for an act that was immediately necessary
in order to repel an unlawful assault involving a tangible danger of injury to his life,
his freedom, his body or his property, or that of another; provided, however, that a
person does not act in self-defense if he brought about the attack by his own improper
behavior, foreseeing that matters might so develop.
Necessity
34K. A person shall not be criminally liable for an act that was immediately necessary
to save his life, his freedom, his body or his property, or that of another, from a
tangible danger of severe injury that derives from a given set of circumstances at the
time of the act, and he had no other way but to do it.
Duress
34L. A person shall not be criminally liable for an act that he was commanded to do
under threat involving a tangible danger of severe injury to his life, his freedom, his
body or his property, or that of another, in consequence of which he was coerced to
do the act.
Placing Oneself in the Situation by an Improper Act
34M. (a) The provisions of sections ... 34J and 34K do not apply if the actor was aware,
or an ordinary person in his situation could have been aware in the circumstances,
before the creation of the condition in which he did his act, that he might do it in such
condition, and he placed himself in that condition by his improper and controlled
behavior; provided that the act done in the conditions set forth in sections 34K and
34L did not concern the saving of a third person's interest.
Exceeding the Reasonable
34P. The provisions of sections 34J, 34K and 34L do not apply if the act was not
reasonable in the circumstances for the purpose of preventing the injury."