NationStates

Denathor wrote:OOC: The nuances of law are not my forte, so I’m a bit stuck on how exactly to proceed. Here’s what I’ve done so far, any suggestions/criticism would be helpful:

2. Mandates that the act of reasonable defence of oneself shall not be criminalized, shall be accepted, unless disproved, as a legal justification for the use of force, and shall not be subjected to greater evidentiary burdens than other affirmative defences, so long as a preponderance of the evidence supports the claim,

3. Affirms that it is the responsibility of the prosecution to refute the claim of reasonable self-defence by proving beyond a reasonable doubt that the alleged aggressor did not offer any provocation or that more force than could reasonably be believed to be necessary was used in the act of self-defence,

There's already the requirement that self defence shall not be subjected to greater evidentory burdens then other affirmative defenses. Bringing in preponderance of evidence and beyond reasonable doubt just contradicts that.

also I would strike the examples in 4 both of those restrictions would interfere with reasonable self defense to such a degree that they effectively give a court carte blanche to ban an act ex post facto

Permits nations to pass legislation to set restrictions on what actions may be considered reasonable for a defence such that they do not interfere with a person’s ability to commit the basic act of defence, such as forbidding lethal force unless it is clear that the aggressor intends to cause death or forbidding certain types of weapons to be used in the act of reasonable defence.

I refer you back to my orginal post on the topic. Since it seems the issue has snuck back in.

Aclion wrote:Reasonable force isn't really the standard you want to be using anyway. It's an invitation for judicial activism, ablest, and treats acts of desperate self defense as offences to the terms of some kind of vile duel set by the aggressor.

You don't want to give a judge sitting behind a bench the power to second guess whether a women could have overpowered her rapist instead of shooting him, and you definitely don't want to give them the power to tell her she should have just lay down and take it because stopping it wasn't worth taking a life.

OOC: The suggestions have been applied to the draft.

OOC: Alright, I’m back and ready to take another swing at this mess. I’d welcome any suggestions anyone has.

“Ah yes, I remember this one. Clause 3 should have ‘basic act of reasonable self defence’ rather than ‘basic act of self defence’, in order to use your definition.”

About "reasonableness". See George P Fletcher, 'The Right and the Reasonable' (1985) 98 Harv L Rev 949 (available at https://scholarship.law.columbia.edu/fa ... rship/1018). There is a long passage in there discussing reasonableness defences and self-defence.

“Ambassador, in Comfed, causing the death of a person, unless permitted by an official in the Ministry of Love or the killer is undergoing active military service, is a capital crime, regardless of ‘self defence’. Against.”

Comfed wrote:“Ambassador, in Comfed, causing the death of a person, unless permitted by an official in the Ministry of Love or the killer is undergoing active military service, is a capital crime, regardless of ‘self defence’. Against.”

"While the C.D.S.P. has concerns about the need for an affirmative international right to self-defense, this strikes this delegation as a particularly weak argument. One could as easily oppose any proposal on the grounds that one's nation holds a radically opposite policy. This does not itself promote an argument against the proposal, Your Excellency. We admonish the Pro-Kranostavian entity to improve upon their rhetorical foundation."

Imperium Anglorum wrote:About "reasonableness". See George P Fletcher, 'The Right and the Reasonable' (1985) 98 Harv L Rev 949 (available at https://scholarship.law.columbia.edu/fa ... rship/1018). There is a long passage in there discussing reasonableness defences and self-defence.

OOC: An interesting piece, but if you’re trying to make a point by linking that, you’ll have put it in plain text. I'm not exactly sure how you want me to write the draft in the context of that article.

Separatist Peoples wrote:

Comfed wrote:“Ambassador, in Comfed, causing the death of a person, unless permitted by an official in the Ministry of Love or the killer is undergoing active military service, is a capital crime, regardless of ‘self defence’. Against.”

"While the C.D.S.P. has concerns about the need for an affirmative international right to self-defense, this strikes this delegation as a particularly weak argument. One could as easily oppose any proposal on the grounds that one's nation holds a radically opposite policy. This does not itself promote an argument against the proposal, Your Excellency. We admonish the Pro-Kranostavian entity to improve upon their rhetorical foundation."

"Ambassador, perhaps this was not clear, but I was not making an attempt to convince my World Assembly colleagues to vote against this resolution."

OOC: You do realize that my pretitle is for a TNP delegacy transition? Not everything about me is RP-related.

Comfed wrote:

Separatist Peoples wrote:"While the C.D.S.P. has concerns about the need for an affirmative international right to self-defense, this strikes this delegation as a particularly weak argument. One could as easily oppose any proposal on the grounds that one's nation holds a radically opposite policy. This does not itself promote an argument against the proposal, Your Excellency. We admonish the Pro-Kranostavian entity to improve upon their rhetorical foundation."

"Ambassador, perhaps this was not clear, but I was not making an attempt to convince my World Assembly colleagues to vote against this resolution."

"Yes. Poorly. The domestic laws of a nation are in no way convincing argument, ambassador. Anybody with a modicum of rhetorical sense might recognize that you are claiming the state of affairs and not offering a rhetorical opposition. Your argument was bad, ambassador, and should be mocked accordingly. "

OOC: You do realize that my pretitle is for a TNP delegacy transition? Not everything about me is RP-related.

Ooc: well I was trying to lighten the blow by being cute, but in the future I'll just assume you'll miss the joke and disregard.

Bump. Still not sure what IA was trying to tell me, but if there’s no further objections, I’ll see about moving this along.

Eg "suppose that Dan reasonably, but mistakenly, believes that Allan is attacking him... [many jurisdictions permit him to] rely on his mistake to defeat liability for his use of force against the innocent Allan.[] Now, suppose that Dan, still believing that Allan is attacking him, endangers Allan's life. Does the innocent Allan have a defense in response?" George P Fletcher, 'The Right and the Reasonable' (1985) 98 Harv L Rev 949, 972–3.

Imperium Anglorum wrote:Eg "suppose that Dan reasonably, but mistakenly, believes that Allan is attacking him... [many jurisdictions permit him to] rely on his mistake to defeat liability for his use of force against the innocent Allan.[] Now, suppose that Dan, still believing that Allan is attacking him, endangers Allan's life. Does the innocent Allan have a defense in response?" George P Fletcher, 'The Right and the Reasonable' (1985) 98 Harv L Rev 949, 972–3.

Allan in fact does, because the way that the draft reads at present states that Dan's initial use of force against Allan would be unlawful. "Many jurisdictions" may allow him defeat liability, but this version of the draft doesn't, as it only allows self-defence to be used against unlawful physical harm, not threats of harm or whatever Dan mistook for an attack.

It’s tempting to add a clause that would allow Dan to defeat liability for his mistake, but then we could get a hypothetical situation like this, and I wonder how much that would muddy the waters here.

Similarly, "Dan's use of force is wrongful against Allan, and therefore, under section 32(2) of the German criminal code, Allan may use the minimal force necessary to ward off Dan's attack". Fletcher (1985) 973. What is the specific standard of force which you want to adopt in this resolution? What is meant here by "reasonable"? And why is that a good choice?

Denathor wrote:It’s tempting to add a clause that would allow Dan to defeat liability for his mistake, but then we could get a hypothetical situation like this, and I wonder how much that would muddy the waters here.

OOC: Just because Dan would possibly not be liable for his actions does not negate Allan's right to defend himself, I would say; but this is another topic that need not be regulatd in this proposal/resolution.

I’ve considered the concerns, and after doing some real world research on the text of self-defence laws (something I probably should’ve done a lot sooner, to be honest), I’ve very made some additions that I hope make things clearer. In particular, these new clauses:

• Directs the judiciary of member nations, when deciding whether or not the act of defence was reasonable, to consider all relevant factors, including but not limited to:
  
  1. the nature of the threat,
  2. whether there were other means available to respond to the threat,
  3. the person’s role in the initial interaction,
  4. any relationship or interaction between the parties prior to the incident,
  5. the proportionality of the person’s response to the threat,
  6. whether the act committed was in response to an action that the person knew was lawful
• Permits that one who mistakenly but reasonably believes that they are attacked by an aggressor may use this Act to defeat liability for their act of defence, provided the defence meets the standards of reasonability,

Elsie Mortimer Wellesley. We are still concerned that the word 'reasonable' is used too much. When does a person reasonably believe they are being attacked? How do you imagine this large – I think literally infinite – balancing test actually is applied? Does the imposition of a balancing test in this manner impede the delegated creation of bright line rules by national judiciaries in a law that actually substantively reduces the foreknowledge that one would have of their rights under this resolution?

One also has the question of what specific determinations are made. In the republic, self-defence is a permitted exception to liability because it is not an injustice under the lex Aquilia (iniuria). However, limitations exist on that scope. An Augustan law affirmed by the Assembly after the restoration of the republic creates an exception to killing thieves at night, but Ulpian says only if the thief could not be arrested and Gaius adds also that only if he gives hue and cry to the thief's presence. How do you expect determinations would be made as to what is permitted as a defence and what is not?

Another hypothetical from the Digest is whether it is legal to take preventive action. Gaius, for example, says that a person who kills another person who is lying in ambush to rob him shall go free, because people have a right to defend themselves against danger, even though the robbery was prevented by the intended mark's attack. There also is the question of whether a person who throws a stone at an attacker but hits another person by accident is liable. Paulus answers yes. We ought to resolve these kinds of issues before saddling the whole of the Assembly with unworkable or extremely vague provisions.

Denathor wrote:Permits that one who mistakenly but reasonably believes that they are attacked by an aggressor may use this Act to defeat liability for their act of defence, provided the defence meets the standards of reasonability,

'Would this not now take away the wrongfully attacked person's right to defend themselves, since "this Act" was used to defend liability, and this act renders the attack lawful?'

OOC: I would not put self-defence and 'acting under the reasonable impression it was in self-defence' on the same level. Errors like this should not render the attacks themselves lawful, but take away personal responsibility from the attacker (if unavoidable).

OOC where not in quotations.

Imperium Anglorum wrote:Elsie Mortimer Wellesley. We are still concerned that the word 'reasonable' is used too much. When does a person reasonably believe they are being attacked? How do you imagine this large – I think literally infinite – balancing test actually is applied? Does the imposition of a balancing test in this manner impede the delegated creation of bright line rules by national judiciaries in a law that actually substantively reduces the foreknowledge that one would have of their rights under this resolution?

The reason for the vagueness in the draft because so many nations have different standards of what is or isn’t reasonable. I seriously doubt that I would be able to make a single definition of "when is it reasonable?" that everyone here would agree with. I feel that leaving up to the judiciary of nations is the only compromise that works.

How do you expect determinations would be made as to what is permitted as a defence and what is not?

I confess that I don’t. The clause I assume you’re referring to was put in there as an alternative to mandating that someone must attempt avoid a confrontation before engaging in one, which generated heavy opposition from specific delegations. I supposed that I assumed most laws would fall along that example.

Another hypothetical from the Digest is whether it is legal to take preventive action. Gaius, for example, says that a person who kills another person who is lying in ambush to rob him shall go free, because people have a right to defend themselves against danger, even though the robbery was prevented by the intended mark's attack. There also is the question of whether a person who throws a stone at an attacker but hits another person by accident is liable. Paulus answers yes. We ought to resolve these kinds of issues before saddling the whole of the Assembly with unworkable or extremely vague provisions.

Good point. I’ll have to see about doing some rewording.

The New Nordic Union wrote:'Would this not now take away the wrongfully attacked person's right to defend themselves, since "this Act" was used to defend liability, and this act renders the attack lawful?'

"There’s a subtle, perhaps, but not insignificant difference between making something lawful and making it not unlawful. This Act is intended to do the latter in cases of its use."

Denathor wrote:I’ve considered the concerns, and after doing some real world research on the text of self-defence laws (something I probably should’ve done a lot sooner, to be honest), I’ve very made some additions that I hope make things clearer. In particular, these new clauses:

whether there were other means available to respond to the threat,

the proportionality of the person’s response to the threat,

whether the act committed was in response to an action that the person knew was lawful

OOC: Keep at least ^those. Though what does the d. one mean? Is it meant like if the person who initiates the attack, was taunted/goaded/threatened but not actually attacked first, such prior interaction is counted against the one trying to claim self-defence as an excuse for beating the living crap out of their opponent?

Imperium Anglorum wrote:Another hypothetical from the Digest is whether it is legal to take preventive action. Gaius, for example, says that a person who kills another person who is lying in ambush to rob him shall go free, because people have a right to defend themselves against danger, even though the robbery was prevented by the intended mark's attack. There also is the question of whether a person who throws a stone at an attacker but hits another person by accident is liable.

About this hypothetical: when does the act of defence take place? Is it after the robber has revealed himself and identified his intentions, or is it while he is lying in wait? If it’s the former, I might be able to fix this with some work on the definitions. If it’s the latter, is it really self-defence? Sure, it’s suspicious to be be hiding in a bush near a roadway, but does that really pose a threat to someone?

Araraukar wrote:Though what does the d. one mean? Is it meant like if the person who initiates the attack, was taunted/goaded/threatened but not actually attacked first, such prior interaction is counted against the one trying to claim self-defence as an excuse for beating the living crap out of their opponent?

It’s supposed to mean prior the encounter that lead to the use of force. For example, two men who know each other get in an argument and one pulls a knife on the other. Suppose bystanders intervene and no one gets hurt. Later that night, the man who pulled the knife gets drunk and goes to the other's house and knocks on the door, yelling threats at the homeowner, but not actively attempting to gain entry. With the prior knowledge that that man had already physically threatened him, the homeowner shoots the other man through the window.

Without context, shooting a man for uttering threats seems like an overreaction, but considering that the homeowner knew the man could possibly be violent, this act of defence may be at least somewhat justified.

Finally, I’m looking at this clause which has been the subject of some scrutiny:

Reserves the right of member nations to pass legislation to set restrictions on what actions may be considered reasonable for a defence such that they do not interfere with a person’s ability to commit the basic act of reasonable defence.

I can help but wonder if the draft would be better off without this clause. Any thoughts?

Denathor wrote:

Imperium Anglorum wrote:Another hypothetical from the Digest is whether it is legal to take preventive action. Gaius, for example, says that a person who kills another person who is lying in ambush to rob him shall go free, because people have a right to defend themselves against danger, even though the robbery was prevented by the intended mark's attack. There also is the question of whether a person who throws a stone at an attacker but hits another person by accident is liable.

About this hypothetical: when does the act of defence take place? Is it after the robber has revealed himself and identified his intentions, or is it while he is lying in wait? If it’s the former, I might be able to fix this with some work on the definitions. If it’s the latter, is it really self-defence? Sure, it’s suspicious to be be hiding in a bush near a roadway, but does that really pose a threat to someone?

Let's call it the latter. Banditry is a problem in many countries (ancient Rome especially, in the late republic, because of a collapse of law and order, people like Cicero regularly travelled with large retinues to defend against attack). It still is a problem in many places. The alleged bandit is not normally lying in wait to attack a specific person, but lying to attack whomever is coming down the road.

If you play Red Dead Redemption 2, I think of when you see some O'Driscolls on the cliff out there with their repeaters out looking over the road at night. You can see the glint off the barrels in the moonlight. The question here is whether or not a preemptive attack against these (loud voice) O'DRISCOLLS, who are probably bandits, is justified.

Separatist Peoples wrote:

Comfed wrote:"Ambassador, perhaps this was not clear, but I was not making an attempt to convince my World Assembly colleagues to vote against this resolution."

"Yes. Poorly. The domestic laws of a nation are in no way convincing argument, ambassador. Anybody with a modicum of rhetorical sense might recognize that you are claiming the state of affairs and not offering a rhetorical opposition. Your argument was bad, ambassador, and should be mocked accordingly. "

"In this case it is a very convincing argument... in favor of the proposal, as it is a powerful demonstration of why a resolution protecting self defense is needed."

Imperium Anglorum wrote:If you play Red Dead Redemption 2, I think of when you see some O'Driscolls on the cliff out there with their repeaters out looking over the road at night. You can see the glint off the barrels in the moonlight. The question here is whether or not a preemptive attack against these (loud voice) O'DRISCOLLS, who are probably bandits, is justified.

This is an issue that can be addressed by another concept; duty to retreat. In jurisdictions that have duty to retreat you have to go back the way you came and law enforcement to deal with it.

Aclion wrote:

Separatist Peoples wrote:"Yes. Poorly. The domestic laws of a nation are in no way convincing argument, ambassador. Anybody with a modicum of rhetorical sense might recognize that you are claiming the state of affairs and not offering a rhetorical opposition. Your argument was bad, ambassador, and should be mocked accordingly. "

"In this case it is a very convincing argument... in favor of the proposal, as it is a powerful demonstration of why a resolution protecting self defense is needed."

Imperium Anglorum wrote:If you play Red Dead Redemption 2, I think of when you see some O'Driscolls on the cliff out there with their repeaters out looking over the road at night. You can see the glint off the barrels in the moonlight. The question here is whether or not a preemptive attack against these (loud voice) O'DRISCOLLS, who are probably bandits, is justified.

This is an issue that can be addressed by another concept; duty to retreat. In jurisdictions that have duty to retreat you have to go back the way you came and law enforcement to deal with it.

"Ambassador, with your second statement, you've well established why a resolution on self defense is likely unsatisfactory to all sides: any nation without a duty to retreat, such as mine, would absolutely object to the imposition of such a requirement. Nations that wish to avoid unnecessary bloodshed, however justified, would reasonably insist on efforts that exhaust nonviolent options first. Any resolution that would prevent nations such as the Grand Nation of Araraukar from essentially eliminating self defense would likely not pass for being too invasive. Any resolution that would satisfy C.D.S.P. standards would be intolerable to, say, Araraukar.

"Ordinarily there is a simple scenario to address such an impasse: a race to between positions. However, I seriously doubt that there are sufficient supporters of either extreme or of any compromise to succeed. A lack of legislation may be the most likely outcome."

Imperium Anglorum wrote:Let's call it the latter. Banditry is a problem in many countries (ancient Rome especially, in the late republic, because of a collapse of law and order, people like Cicero regularly travelled with large retinues to defend against attack). It still is a problem in many places. The alleged bandit is not normally lying in wait to attack a specific person, but lying to attack whomever is coming down the road.

If you play Red Dead Redemption 2, I think of when you see some O'Driscolls on the cliff out there with their repeaters out looking over the road at night. You can see the glint off the barrels in the moonlight. The question here is whether or not a preemptive attack against these (loud voice) O'DRISCOLLS, who are probably bandits, is justified.

OOC: This is tough. I can see where you’re coming from, but I’m not sure that I can support preemptive attacks in this legislation. The best I think I can do is add to the definition of aggressor:

an "aggressor" as a person who attempts to or threatens to do unlawful physical harm to another person,

And perhaps courts would find that the robber's actions constituted a threat? As I said, this is a tough hypothetical to act on without allowing preemptive self-defence, which is dangerous.

Aclion wrote:This is an issue that can be addressed by another concept; duty to retreat. In jurisdictions that have duty to retreat you have to go back the way you came and law enforcement to deal with it.

IC: "As Ambassador Bell said, I cannot implement this without significant opposition. However, clause 5 is there as a way for nations to implement a duty to retreat if they so desire."

Separatist Peoples wrote:"Ordinarily there is a simple scenario to address such an impasse: a race to between positions. However, I seriously doubt that there are sufficient supporters of either extreme or of any compromise to succeed. A lack of legislation may be the most likely outcome."

Callahan winces slightly.
"I’m sorry you feel that way, ambassador."