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In Defence of Self-Defence. Exploring the boundaries of justification within modern civil dogmatics

In Defence of Self-Defence. Exploring the boundaries of justification within modern civil dogmatics

Profile image of António Barroso RodriguesAntónio Barroso Rodrigues

2024, CIDP SSRN no. 01/2024

Self-defence is an inescapable figure of contemporary legal systems of liability. It appears to be one of the most important traditional mechanisms of private Justice, although unwanted by the state monopoly of legal coercion. This subjects it to a role of justification and to increasing limitations. The present study assesses the merit of these limits in the civil domain, denying it the anachronistic status to which it is (allegedly) relegated. The approach is based on the two main vectors of the figure, namely aggression, on which it depends, and the admissible defence.

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CIDP RESEARCH PAPER N.º 01/2024 JANUARY 2024 IN DEFENCE OF SELF-DEFENCE EM DEFESA DA LEGÍTIMA DEFESA António Barroso Rodrigues FACULTY OF LAW OF THE UNIVERSITY OF LISBON WWW.CIDP.PT Electronic copy available at: https://ssrn.com/abstract=4692636 In Defence of Self-Defence* Exploring the boundaries of justification within modern civil dogmatics ___________ ANTÓNIO BARROSO RODRIGUES** SUMMARY1: § 1. Private autonomy in conflict with the State’s protective authority: seeking the foundations for restricting private means of justice; § 2. Legal framework of selfdefence; 2.1. The increasingly residual role of private justice; 2.2. Legal recognition of self-defence: contemporary model and alternative approaches; 2.2.1. The Portuguese scenario: legislative fragmentation and constitutional issues in firearms and ammunition regulations; 2.2.2. Comparative analysis: navigating between dualism and criminal dominance in the Romano-Germanic legal tradition; 2.2.3. International Law overview; 2.3. The admissibility thresholds for self-defence: a detailed exploration of aggression, * In this work, we honour Professor José de Oliveira Ascensão, a revered figure in academia and law. His profound influence has shaped countless students and researchers, us included, over many years. To recall and celebrate the wisdom of this esteemed professor is our most heartfelt tribute to him, in the very journal of the Faculty of Law of the University of Lisbon that he, and we, have been a part of. This study, originally written in Portuguese, has been translated to English, with careful adjustments made to enhance clarity and linguistic precision. Our exploration of this subject is a direct response to the stimulating challenge set forth by Professor George P. Fletcher during his insightful address on May 24, 2022, at the University of Lisbon Law School. This conference, a gathering orchestrated by the Institute of Legal-Political Sciences of the University of Lisbon Law School, offered us a remarkable opportunity to engage with Fletcher's thought-provoking invitation to scrutinize the concept of proportionality within the framework of self-defence. We extend our sincere appreciation to Professor Andreas Piekenbrock for his warm hospitality at the Faculty of Law, University of Heidelberg, which significantly contributed to our preparatory work. Likewise, our gratitude is extended to Professor José Ferreira Gomes at our Faculty of Law in Lisbon for his invaluable contributions and insights, laying the groundwork for our research. ** Guest Assistant at the Faculty of Law of the University of Lisbon. PhD candidate in Juridical Sciences. Researcher at the Private Law Research Centre in Lisbon. Attorney at law. Email: antoniorodrigues@fd.ulisboa.pt 1 Key abbreviations and legal maxims used: A. – Author; ac./acs. – judgment/judgments; anot. – annotation; AT – Allgemeine Teil (General Part); art./arts. – article/articles; BGB – Bürgerliches Gesetzbuch (German Civil Code); BGH – Bundesgerichtshof (Federal Court of Justice of Germany); BMJ – Boletim do Ministério da Justiça (Portuguese Ministry of Justice Bulletin); BT – Besonderer Teil (Special Part); CCit – Italian Civil Code; CCse – Código Civil de Seabra (1867 Portuguese Civil Code); Cfr. – compare, refer to; coord. – coordination; CP – Código Penal (Portuguese Penal Code); CPC – Código de Processo Civil (Portuguese Code of Civil Procedure); CRP – Constituição da República Portuguesa (Constitution of the Portuguese Republic); DCFR — Draft Common Frame of Refrrenee; ed. – edition; et al. — et alia; FS Festschrift für – commemorative writings/honoring; i. e. –that is; HKK-BGB - Historischkritischer Kommentar zum BGB; JZ — JuristenZeitung, MüKoBGB – Münchener Kommentar zum Bürgerlichen Gesetzbuch (Munich Commentary on the BGB); n. – note; n./no.– number; NJW – Neue Juristische Wochenschrift (New Legal Weekly); org. – organization; Mn. — Margin note; OLG — Oberlandesgericht (German Higher Regional Court); org. — organized by; OWiG — Gesetz uber Ordnungswidrigkeiten; PETL — Principles of European Tort Law; p./pp. – page/pages; RDC – Revista de Direito Civil (Civil Law Review); RGSt — Reichsgericht in Strafsachen; RJAM — Regime Jurídico das Armas e das Munições (Legal Portuguese Regime of Firearms and Ammunition); ROA — Revista da Ordem dos Advogados (Journal of the Portuguese Bar Association); SR — Schriften zum Strafrecht; ss./ff — and the following; StGB — Strafgesetzbuch (German Criminal Code); STJ – Supremo Tribunal de Justiça (Portuguese Supreme Court of Justice); v.g. – verbi gratia (for example); and Vol. – volume. Electronic copy available at: https://ssrn.com/abstract=4692636 In Defence of Self-Defence defence, and the critical role of proportionality; 2.3.1. Aggression; 2.3.2. Defence; 2.4. Subjective and objective disturbances in defensive dynamics: error and excess; 2.5. The effect of self-defence: justification; § 3. Bridging civil and criminal liability systems and the enduring antinomy debate; a brief overview; § 4. Concluding remarks: in defence of self-defence. * § 1. Private autonomy in conflict with the State's protective authority: seeking the foundations for restricting private means of justice Self-defence, or private defence, is a mandate of natural order. It's inconceivable that at any stage of societal evolution it could be deemed unnecessary. Regardless of how advanced public protection mechanisms become, this form of private justice will invariably need to be expressed. If someone is attacked in a remote area, it's unimaginable that they should be forbidden from responding to their assailant, under the notion that only the State is permitted to use force to uphold the law. J. Oliveira Ascensão, O Direito. Introdução e Teoria Geral I. The ongoing evolution of legal and cultural norms within modern legal frameworks is progressively geared towards perpetually reinforcing the State's role in the protection and safeguarding of private citizens. As OLIVEIRA ASCENSÃO points out, the explicit objective is to grant the State a monopolistic control over coercive mechanisms 2. In this context, an individual who has been wronged by another’s actions – be it through a failure to fulfil an obligation where they are the creditor, or through the violation of an absolute right (personal or property-based) – is expected to turn to the established public avenues to vindicate their rights. This approach also holds true when an individual merely seeks to actively exercise a right (for instance, a right to a specific performance, rather than seeking compensation for damages suffered). Currently, these mechanisms are exclusively within the State's purview, executed under judicial authority. Within this framework, the realm of private justice is gradually yielding to public justice, a distinction that arises solely from the identity of the administering entities. This shift marks a profound ideological change, providing a cornerstone response to a fundamentally pivotal 2 OLIVEIRA ASCENSÃO, O Direito. Introdução e Teoria Geral, 13th ed., Almedina: Coimbra, 2017, p. 91. Magister dixit. In the purely private legal domain, this too is the role of the State; in this respect, see CLAUS-WILHELM CANARIS, Direitos Fundamentais e Direito Privado (translated by Ingo Wolfgang Sarlet/Paulo Mota Pinto), Almedina: Coimbra, 2003, page 58. However, this does not mean – as ANTUNES VARELA/J. MIGUEL BEZERRA/ SAMPAIO E NORA clarify (Manual de Processo Civil, 2nd ed., Coimbra Editora: Coimbra, 1985, pp. 4-5) – that the State should replace individuals in promoting this protection. On the contrary, it is generally up to the individual to take the initiative and request the appropriate measures. Electronic copy available at: https://ssrn.com/abstract=4692636 22 § 1. Private autonomy in conflict with the State's protective authority question that demands attention: who is ultimately responsible for ensuring the protection of citizens?3 The answer to this question provides an appropriate opportunity to deepen our reflection. The rejection of a purely liberal proposal, at the level of principles and values — which would burden the individual alone — inevitably demands State intervention. This intervention, however, is not arbitrary. On the contrary, it should be legally materialized by the legislator, through what PAWLOWSKI termed as specially regulated procedures (besonders geregelte Verfahren)4. And it is positive that this is the case, as it avoids pure judicialism and it circumvents the pitfalls of overreliance on judicial discretion. Addressing the central inquiry: in our legal framework, it is the State — regardless of how it is defined — that has historically played the role of dispensing justice through the courts. We must recall that the courts are sovereign bodies tasked with administering justice (according to Article 202/1 of the Portuguese Constitution). This role aligns with the State's function in the social contract, historically tasked with responding to external threats to the community and its social fabric. The extension of this competence to internal 3 We focus only on the contrast between private and public orders of justice, considering the role of the State, which operates on an external plane and in a position of superiority relative to the individual level, pertaining to each citizen. However, it's possible to consider other reference points, such as the international order. In this realm, above the States, despite various attempts in this direction, there is no entity that substitutes or could substitute for the protection of a particular country against aggression from another (at least in the sense that excludes the legitimacy of the first country's defensive actions). Thus, there is a lack of a supra-international legal order. Therefore, it's not surprising that forms of private justice still prevail on this international plane; a conclusion shared by OLIVEIRA ASCENSÃO, in O Direito. Introdução e Teoria Geral, page 96 (footnote 116). Moreover, for this reason, CASTRO MENDES suggests that public international law is in a “somewhat primitive stage” concerning dispute resolution, as stated in (Introdução ao Estudo do Direito, 3rd ed., Pedro Ferreira: Lisbon, page 62). 4 HANS-MARTIN PAWLOWSKI, in Allgemeiner Teildes BGB. Grundlehren des burgerlichen Rechts, 5th ed., C.F.Muller: Heidelberg, 1998, § 6, II, Mn. 934, p. 419, emphasizes the importance of adequately formulating the legal rules governing various procedures. Yet, the legislative emphasis in this area (take, for instance, the civil domain's focus on the importance of declarative and executive processes, whose reforms outpace those of the substantive legal framework in both frequency and depth) has led to an oversight of the enduring mechanisms of private justice. The growing prominence of alternative dispute resolution methods, juxtaposed against judicial courts, echoes this oversight, revealing a bias towards a State-centric public justice monopoly, Notably, the enduring relevance and numerous merits of arbitration stand as testament to this. Arbitration, it must be recognized, is not merely an act of self-help: involving third-party arbitrators and predicated on the initial agreement of the involved parties, it transcends such a simplistic characterization, while still retaining the contentious and private essence of the disputes it resolves. If the primary impetus for assigning public competence lies mainly in organizing procedural defense, then MANUEL DE ANDRADE'S perspective represents a significant departure from the conventional narrative. The esteemed Professor challenges the notion of a need for a force surpassing private capabilities, advocating instead for the fundamental «legitimacy of using physical coercion to enforce legal directives, directed at those who breach or threaten to breach them», without dismissing private justice avenues (as detailed in Lições de Processo civil, Org. T. Moreno, Sousa Séco, P. Augusto Junqueiro, Casa do Castelo: Coimbra, 1945, p. 303). Hence, the entrenched bias favouring public justice systems over private ones is a misconception in need of rectification. For a deeper exploration of this viewpoint, refer to GERMANO MARQUES DA SILVA’S work, Tutela dos Direitos na Acção Direta, ROA, Year 33, 1973, pp. 5-81 (11). Electronic copy available at: https://ssrn.com/abstract=4692636 3 In Defence of Self-Defence threats, originating within the community, was swift and expected. Thus, there are no doubts about the significance of this solution, nor about its historical challenge, even in liberal legal systems; consider, for instance, the continental systems of the RomanoGermanic family and the countries of Common Law, albeit to varying degrees, of course. Therein lies a crucial historical lesson that warrants recognition and careful consideration. II. Indeed, one of the most controversial aspects of this entire framework has been determining the State's role in restricting private justice, as it is integrated into the broader concept of private autonomy itself 5. It is well established that the State should intervene in this realm. Yet, the notion that the State could, leveraging its full social mandate, completely negate individual legal protection based on a paternalistic or condescending rationale is fundamentally flawed and something we vehemently oppose. Summum ius, summa iniuria. Such notion (or ideal) is at odds with reality: in the human world, instances of violence and injustice will persist, often beyond the State's capacity for immediate or direct response. It is in these situations that private justice proves indispensable. The crux of the matter, having recognized this limitation, lies in determining the ideal degree of such State intervention. However, determining this balance is challenging, as it hinges on fluctuating and unpredictable factors6. In truth, a social conception in this context implies, among other factors, the increasing restriction of private means to react against injustice. It advocates for delegating the resolution of interests to a third party, embodying a notion of heteronomy in conflict resolution, as suggested by GALVÃO TELLES7. Two primary arguments typically support this shift. Firstly, the State possesses a comprehensive array of repressive, coercive, and sanctioning tools against behaviours that transgress the legal order. This capability, according to this viewpoint, is readily applicable to offenses against purely individual 5 For an insightful dissection of the private justice concept, examining its multifaceted nature as subsidiary/independent and preventive/repressive, as well as defensive/active, consult GERMANO MARQUES DA SILVA, Tutela dos Direito, pp. 9-28. 6 CARNEIRO DA FRADA offers an exemplary illustration of this idea. He describes the interplay between private autonomy and justice as complex and fluid, yet «perennial – “eternal” – shifting with the “eras” and varying across the “locales” of the system» (Autonomia privada e justiça contratual. Duas questões, nos 50 anos do Código Civil, Forjar o Direito, 2nd ed., Almedina: Coimbra, 2019, p. 14). 7 Introdução ao Estudo do Direito, Vol. I, 11th ed., Coimbra Editora: Coimbra, 2001, pp. 319-321. Echoing these thoughts, PEDRO ROMANO MARTINEZ delves into the concept of heterotutelage in his Introdução ao Estudo do Direito, Imprensa FDUL: Lisbon, 2021, p. 88. Electronic copy available at: https://ssrn.com/abstract=4692636 44 § 1. Private autonomy in conflict with the State's protective authority interests, allowing the State to exert its standard legal coercion (Rechtszwang)8. Secondly, individual methods of private justice or, more broadly, self-help mechanisms (mecanimos de autotutela)9, including the classic case of self-defence, are seen as fostering legal uncertainty and complicating court scrutiny (a necessary process, as we will later discuss)10. This is partly because these means are intrinsically varied, shaped by individual circumstances and inherently unorganized. Consequently, their conjectural nature makes it challenging for a judge to retrospectively determine whether the defender’s actions were abusive. Additionally, self-judgment is inherently flawed due to the bias of one judging their own cause, leading to potential errors in assessing danger and responding appropriately11. The legitimacy of such actions is subjectively evaluated based on the defender’s personal value system, which varies widely among individuals. Compounding this issue is the common occurrence of perception errors in both evaluating the threat and determining the appropriate response, often leading to mistakes and excesses in the defence. Both arguments mentioned, although significant, do not seem decisive. Let's revisit, for a moment, the legislator's role. When an individual feels threatened by the illicit actions of another – for simplicity, let's consider another individual – and reacts defensively, the assessment of this defensive conduct according to legal parameters necessitates the prior establishment of these very limits. This is as self-evident as it is complex. On the other hand, we know that once these limits are exceeded, it's no longer possible to justify the agent's actions. If these limits are, 8 We should also consider H. L. HART's firm stance that punitive harmful acts are not legitimate unless they stem from an authority constituted by the legal system (Punishment and Responsibility: Essays in the Philosophy of Law, 2nd ed., Oxford University Press: Oxford, 2008, p. 4). For a direct reference to this argument, consult OLIVEIRA ASCENSÃO, O Direito, p. 89. 9 As we'll explore, both legitimate defence and the state of necessity encompass actions in defence of others. In such scenarios, it's not self-help but heterotutelage that comes into play. This perspective underpins our scepticism regarding this concept. Similarly, PESSOA JORGE, Ensaio sobre os pressupostos da responsabilidade civil, Almedina: Coimbra, 1999, p. 211, nota 182, echoes these sentiments. A particularly intriguing debate, especially in criminal law, revolves around whether defending a third party who does not desire protection can still be justified. This discussion necessitates considering the bounds of permissible consent, given the shared foundational principles. The conversation further extends to the axiological limits on the disposition of interests, including self-inflicted harm. A key question arises: Is there legitimate defence when the aggressor and the injured party are the same? For an in-depth analysis, refer to our Concurso de responsabilidade civil, Almedina: Coimbra, 2023, pp. 325-326, footnote 936. 10 Reflecting on these themes, JOHN LOCKE cautioned against the risks of bias, misapplication of coercion, and the ineffectiveness of legal mechanisms (Two Treatises of Government, Vol. V, York University: London, 1823, p. 123 ff). 11 GALVÃO TELLES also warned of scenarios where the «[j]udge is the aggrieved party, clouded by their passion» (Introdução ao Estudo do Direito, II, 10th ed., Coimbra Editora, Coimbra, 2010, p. 34). Similarly, OLIVEIRA ASCENSÃO insightfully observed that «individuals tend to exaggerate the harms they endure and downplay those they inflict» (O Direito. Introdução e Teoria Geral, 91). Electronic copy available at: https://ssrn.com/abstract=4692636 5 In Defence of Self-Defence from the start, excessive, the allowance of self-defence would be a mere fiction, an illusion; this would create a harmful space through which iniquity could seep. Regardless, once certain limit(s) are established, their violation implies that the defence ceases to be (or rather, never was) legitimate. In such cases, the agent is responsible for the damages caused to the respective aggressor, in general terms, which initially implies the emergence of a compensation obligation, for which the defender (the defendant) becomes liable12. 12 In the upcoming discussion, we'll address another equally pertinent topic. Initially, it's not immediately apparent whether the legitimacy of defence can be considered on a gradient scale, that is, whether it extends beyond the mere dichotomy of legitimate/illegitimate, or admits a nuanced, dual classification. We see no barrier to an affirmative response to this query. The ontological breakdown of the agent's actions and those originating from the initial aggressor does not preclude such a conclusion. In fact, it seems to necessitate it. It's entirely feasible that in a certain case, within a singular responsibility scenario and referring to the same behaviour, there might coexist a justified plan alongside an unjustified one, perhaps due to excess. For instance, in a violent robbery attempt, if the agent uses pepper spray on the assailant's face (legally licensed to use such equipment), their action stands justified, thereby placing all resultant harm on the sufferer – consider the hospital expenses for eye treatment or the inherent pain and suffering, which will not be compensated by the defender. However, if the defender, having neutralized the assailant with the said pepper spray, subsequently and repeatedly attacks, causing a broken leg, this additional injury no longer finds justification. Here, we can identify in the same responsibility situation, concerning a single overall action, a justified defensive act and another, vengeful and unjustified one. The Portuguese Criminal Law appears to offer a different resolution, where excess in the means used renders the act unlawful in its entirety (Article 33.°/1 CP). Expressing reservations about this concept of the divisibility of defensive conduct, see PESSOA JORGE, Ensaio, p. 244 ff. Another consideration, concerning the scope of this concept, pertains to the feasibility of legitimate defence in the realm of contract law. Its predominance in tort law is unchallenged. However, its application to the realm of contract law appears more complex. Here, two scenarios emerge: either it justifies noncompliance itself, or it justifies a defensive response to non-compliance. Let’s examine each situation. Firstly, there is no impediment to legitimate defence justifying strict non-compliance. PESSOA JORGE strongly supports this view, citing the example of a bailee defending against an attack by the bailor through the destruction of a crystal item, the subject of their contract (Ensaio, p. 230). The case of a bank teller, threatened by a robber and handing over third-party goods, poses a more complex scenario. Here, the author rules out the relevance of legitimate defence (a stance we concur with: the harm, via the handover of the goods, is directed against a third party, not the aggressor), but also rejects the state of necessity (contrary to our view), arguing that the obligation to preserve the item does not, in obligatione, encompass other actions (idem, p. 232). In a related context (regarding the effects of limiting or excluding liability clauses), PINTO MONTEIRO doesn’t hesitate to extend the pertinent effect to the prevailing liability model (Cláusulas Limitativas e de Exclusão de Responsabilidade Civil, Almedina: Coimbra, 2020, maxime, p. 398, 435-437). Secondly, the question arises whether a creditor can defensively react against a non-compliant debtor: they can, provided the responsibility situation has the characteristics of aggression (as in MENEZES CORDEIRO's example, where the debtor intends to destroy a non-fungible item owed to the creditor; in this case, the accipiens may act in legitimate defence). However, this does not align with the typical situation of non-compliance attributable to the debtor. Simply refusing to comply does not justify legitimate defence, as it does not constitute an aggression. In conclusion, we advocate for the application of legitimate defence in the contractual realm. Supporting this view in both scenarios, we can also invoke the systematic argument: the inclusion of these rules (Articles 336 to 340 of the Portuguese Civil Code) in the Portuguese Civil Code's general part, applicable to all forms of civil liability (both tortious and contractual). This systematic aspect is significant, emphasized by the debates during the drafting of the German Civil Code, where it was proposed to include this rule in the obligations law section due to its tort relevance (in this context, see HAFERKAMP commentary on § 277 BGB, HKK-BGB, Mohr Siebeck: Tubingen, 2003, p. 1059). On the intricate and somewhat reverse issue of applying specific justificatory causes from the obligatory approach to the corresponding concurrent modality (such as the exception of non-fulfilment and the right of retention, as outlined in Articles 428 and following, and 754 and following of the Portuguese Civil Code), Electronic copy available at: https://ssrn.com/abstract=4692636 66 § 1. Private autonomy in conflict with the State's protective authority In precision, the legislator has delineated (and rightly so) in a prior, constitutive manner – according to the degree of precision inherent in the legislative technique chosen and (it should be noted) also in line with the value framework assumed (which varies among systems and over time for each) – the permissible conduct in this context. However, the legislator did not settle for purely abstract judgments. Clearly, the circumstantial nature of the factual base in relation to the normative prediction of the devised rules forced the use of imprecise, not univocal concepts, delimited only by the theological framework of the interests considered. Therefore, the hermeneutic task is not easy, and arguably, the legal subsumption allows overcoming the difficulty preemptively avoided by the legislator at the regulatory level: the application of the norm requires filling in the general indeterminate concepts, particularly in their normative prediction, and for this, the synergistic contribution of praxis should not be overlooked13. III. Let us, however, return to examining the inherent conceptions. Indeed, we understand that the delimitation of permissible conduct invariably leads to the restriction of the individual's freedom and the admissibility of justified mechanisms to react against injustice. To delimit is, in every sense, to apply limits, to set boundaries. In this context, this necessarily demarcates the general freedom of action of the individual. For many – proponents of a liberal-oriented formulation – the admissibility of a large-scale macrorestriction of private means of justice is, however, problematic. In this regard, it is assumed – and we concur – that it is utterly utopian to envision a State capable of immediate reaction to every injustice (including its own). In this ontological and certainly legal impossibility to prevent all injustices lies the foundation for the admissibility of private means of justice. However, as we have seen, this implies that the assessment of the limits of this action is primarily delegated to the individual sphere, persisting within the necessarily circumstantial contours that characterize it This – it must be said – is subject (and has always been subject) to abuses, particularly due to the excessive use of force, but also due to its deficiency (due to the individual's lack of capacity), generally caused by an imbalance in means, and, finally, to the perfidy in the abusively pursued end by certain agents. In the face of such criticisms, it is timely to reply that the State's there are no barriers to embracing this proposition; for further exploration, refer to our work Concurso, p. 310 ff. 13 The enduring and classical caution on this matter was articulated by LARENZ, in his seminal work Entwicklungstendenzen der heutigen Zivilrechtsdogmatik, JZ, Year 17, n. 4, on February 16, 1962, pp. 105110 (106). Electronic copy available at: https://ssrn.com/abstract=4692636 7 In Defence of Self-Defence substitutive action in this context suffers from similar ailments, perhaps worse, given the distinct plane occupied by the subjects: first, the danger of the free-will of unorganized state means (by excess in defence); second, the excessive restriction of individuals' actions (unjustifiably limiting their means of self-help); and third - and certainly more frequently observed - the simple absence of assistance to individuals. It is a settled point that contemporary views predominantly favour social conceptions regarding private means of justice. As a result, these have increasingly acquired a subsidiary character in relation to collective, legally organized procedures14. This understanding leads to the common determination that various mechanisms of private justice (including legitimate defence), which still persist, depend, among other aspects, on the agent who acts (or is prepared to act) under their auspices not being able to resort to state means. Thus, the space for individual freedom is seen in a negative light, confirming a prior occurrence - at a difficult to pinpoint moment – of a total attribution of non-reserved competence in favour of the collective. However, this represents a logical contradiction, as it implies a restriction of individual freedom, i.e., of the very interest that justified the initial attribution of competence to the State15. Nonetheless, today, the State occupies the forefront, the first line of defence in protecting citizens against all threats16. In these terms, when the State fails to properly fulfil its role of safeguarding its citizens – and this is recognizably prone to happen especially in times of crisis17 – denying individuals the means of private justice (or unreasonably compressing these means) is, in itself, unjust, as it is seriously contrary to the very interests that presided over the attribution of such competence to the State. The inevitable conclusion drawn from this reasoning — a point likely to garner widespread agreement — is that if the State fails to protect its citizens from both external and internal threats, it consequently loses the 14 OLIVEIRA ASCENSÃO, O Direito, p. 94. PESSOA JORGE regards these mechanisms as genuinely exceptional. (Ensaio, p. 210). MIGUEL TEIXEIRA DA SOUSA offers an insightful synthesis of these concepts, blending subsidiarity with an exceptional character in Sobre a Teoria do Processo Declarativo, Coimbra Editora: Coimbra, 1980, p. 62. 15 ARMIN ENGLÄNDER, Grund und Grenzen der Nothilfe, Mohr Siebeck: Tubingen, 2008, p. 160. Taken to the extreme, this leads to the painful denial of the basic legal situation due to the overriding public interest: it is stated (on our part, without agreement) that the subjective right depends on its recognition by objective law, its external limit (expressly, ANA PRATA, A tutela constitucional da autonomia privada, Almedina: Coimbra, 2017, p. 19). 16 FRANK EBERT, Grundlagen des Selbstverteidigungsrechts, Carl Heymanns: Cologne, 2017, pp. 1-2. 17 According to MENEZES CORDEIRO, the abandonment of citizens to their fate can be, ultimately, an unwanted characteristic and partly inherent in the “normal” functioning of the Modern State; in annotation to article 337 of the Portuguese Civil Code, Código Civil Comentado, I — Parte Geral, Almedina: Coimbra, 2020, p. 957, and respective footnote 16. Electronic copy available at: https://ssrn.com/abstract=4692636 88 § 1. Private autonomy in conflict with the State's protective authority legitimacy to prohibit their recourse to self-defence. § 2. Legal framework of self-defence It is a principle of modern law that no one is allowed to resort to force to achieve or secure their own right, except in cases and within limits declared by law. J. Oliveira Ascensão, O Direito. Introdução e Teoria Geral 2.1. The increasingly residual role of private justice I. The growing reinforcement of the State's role has compressed private forms of reaction to unlawfulness. However, it cannot be said that private means of justice always depend on an unlawful act. An example of this is the state of necessity, in which one constitutively appeals only to the broad concept of danger. It is not necessary for this danger to be associated with an illicit conduct. Consider the case of an individual appropriating their neighbour’s vehicle, forcibly starting it, to escape flames consuming their property. The fire, at least when of natural origin, is not an outright aggression; such use of the vehicle, even if it results in damage, is justified by necessity. Perhaps it is more appropriate to suggest that at the foundation of all these forms of private justice lies some form of unjust event. Unjust, because in balancing the interests at play, the legislator recognized that an individual (whether the actor or a third party involved) should not have to endure the unjustice (whether it's mere injury or actual damage) and, in this context, it is justified to project a certain harmful effect into the legal sphere of another, acting out of necessity, in self-defence, or directly against the source of the aggression (therefore, by direct action). All forms of private justice initially share this aspect (of projecting effects onto a third party), differing, of course, in the specific contours of how they achieve this. Firstly, let's consider the source of the injury or danger and the party that suffers the injury, albeit justified. In the state of necessity, there is a duality to consider: the source of the danger does not coincide with the legal sphere that bears the justified action. We encounter similar versatility in direct action regarding the cause that governs it. In the case of self-defence, however, as it pertains to the legal spheres involved, the action is unidirectional: the justified action by the agent is directed towards the source of danger, necessarily an unlawful aggression. Nonetheless, it is important to note that both Electronic copy available at: https://ssrn.com/abstract=4692636 9 In Defence of Self-Defence in acting in self-defence and out of necessity, the protection of third parties (besides the agent and the one responsible for the danger, of course) is admitted. his prerogative does not extend to direct action. A second aspect – no less significant – shared by all means of private justice is that they all depend on a subjective evaluation, a judgment of balance carried out by the agent who acts under their protection. In this respect, they differ from the concept of the injured party's consent (Article 340 of the Portuguese Civil Code). In this latter case, in a straightforward application, there exists, preemptively and preventively, a justified agreement to the subsequent injurious conduct. This entirely avoids, or especially moderates, that circumstantial judgment of balancing the frameworks of justification by those who act under its protection. II. The Portuguese legal system does not recognize private means of justice as a true and complete alternative to public justice. Instead, concerning the potential civil liability of those who act, the system intervenes on occasion, either excluding or, in some cases, mitigating the latent obligation to indemnify in all its splendour. In this context, private justice is a concession of public power, an exception to the general regime of liability. It is a tolerated and fundamentally undesirable exception, nothing more. In an ideal social legal system (it is argued), the State would exclusively undertake the task of protecting individuals. This is a central aspect that reiterates the (still purported) monopoly of public justice. In this framework, some interpret the basis of self-defence as a kind of preemption of state justice18. As if self-defence served as a discount on the punishment associated with a certain regime. This idea might seem absurd at first glance, especially given the lack of a punitive goal in both civil (primarily compensatory) and criminal law, but it conceals a pertinent proposal, in our view: if the purpose of each institution (self-defence and the protection of rights) were identical (e.g., punitive), there should be some equivalence in the means (for instance, it would be hard to justify the death of an aggressor for mere theft if this penalty is not associated with the crime or misdemeanour; and it is not, among us). Since these concepts diverge teleologically (note: self-defence aims at removing 18 For a perspective on this matter, refer to R. NOZICK, Anarchy, State and Utopia, Basic Books: Michigan, 1974, pp. 62-64. This viewpoint has been elaborated and challenged by GEORGE P. FLETCHER, whose insights are indispensable; see Punishment and Self-Defense, Law and Philosophy, Vol. 8, n. 2, Aug. 1989, pp. 201-215. FLETCHER's approach, notably, takes a fundamentally different stance. He asserts, «[e]ven legal systems that have abolished the death penalty permit the use of deadly force in the defence of vital interests. While proportionality in punishment requires that the sentence fit the crime, clearly more is permitted in self-defence» (A Crime of Self-Defence. Bernhard Goetz and the Law on Trial, The University of Chicago Press: Chicago, 1988, p. 29). Electronic copy available at: https://ssrn.com/abstract=4692636 1010 § 2. Legal framework of self-defence danger, compensation primarily at reimbursing losses), there is no reason to invoke any common or shared limit in this context. Even less so, is there a logic of equivalent harm, of expiating the illicit act, as proposed by FOULCAUT, through replicating the same on the body of the aggressor. On the contrary, there is an interplay between the purpose of maintaining legal order and, fundamentally, protecting the legal goods harmed by the aggression 19. Today, the Portuguese legal system includes, within the context of private means of justice as special tort provisions20, direct action (Article 336 of the Portuguese Civil Code), self-defence (Article 337 of the Portuguese Civil Code), and the state of necessity (Article 339 of the Portuguese Civil Code). In the broader context of self-help mechanisms, we can also consider the consent of the injured party (Article 340 of the Portuguese Civil Code)21, as previously discussed. These provisions follow a long cultural tradition. We know that the concept was familiar in Roman times: in JUSTINIAN'S Digest, it was stated that it is lawful to repel violence with violence (vim vi repellere licet22). Later, the Christian message of peace moderated this understanding: Christ's teachings are hardly reconcilable with this solution (e.g., [l]ove your enemies, do good to those who hate you; Luke 6:27; or, in the Sermon on the Mount, [i]f anyone slaps you on the right 19 The proposal, which is endorsed, is that of FIGUEIREDO DIAS. His thought is reflected in the synthesis of STRATENWERTH, cited by the esteemed Professor: the aim is the preservation of the Law in the person of the aggrieved (Direito Penal, Parte Geral, Tomo I, 3rd ed., Gestlegal: Coimbra, 2020, pp. 474-475). 20 Generally, the following are pointed out, this time as general causes of justification: (i) the regular exercise of a right, as well as (ii) the fulfilment of a duty (qui iure suo utitur nemini facit iniuriam). However, upon reaching this point, there are also divergences regarding the organization of all these aspects. The very framing of some precepts is dubious in this context: for example, according to DIAS MARQUES, the possibility for a property owner to remove roots and plants encroaching on their land is also a case of private self-defense (Introdução ao Estudo do Direito, 4th ed., Lisbon, 1972, pp. 147-148). Finally, it is appropriate to mention the special causes of justification in the obligatory domain, namely the exception of non-compliance (Articles 428 and subsequent of the Civil Code), the right of retention (Articles 754 and subsequent of the Civil Code), the refusal to return the title and mention of compliance (Article 788/3 of the Civil Code), the refusal to grant a discharge (Article 787 of the Civil Code), and the lack of security for reasons related to the person of the creditor (Article 841/1 of the Civil Code); all of them encompassed within the exercise of a right or a faculty, as well as, on the other hand, the fulfilment of a superior duty. Finally, it is important to highlight the communicative effect of the causes of justification in a situation of liability where both the considered modalities (tortious and contractual; cf., supra, footnote 12) concur. We have already had the opportunity to comment on these aspects; see our O Concurso, pp. 268-269, footnotes 748 e 749, pp. 309-311. 21 OLIVEIRA ASCENSÃO also points out, within the framework of self-help means, the right of retention. According to the late Professor, this implies a personal judgment at the time of its application, although later subject to judicial review (O Direito, p. 89). 22 D. 43, 16, 1, 27, ULPIAN. Vim vi repellere licere Cassius scribit idque ius natura comparatur: apparet autem, inquit, ex eo arma armis repellere licere. With other references, see G. LONGO, Sulla legittima difesa e sullo stato di necessità in diritto romano, Sein und Werden im Recht, FG Ulrich von Lubtow, Dunker & Humblot: Berlin, 1970, p. 321 ff., and also the annotation by ANTÓNIO MENEZES CORDEIRO to Article 337 of the Portuguese Civil Code (Código Civil comentado, I, p. 957) and in Tratado de Direito Civil, V, 3rd ed., Almedina: Coimbra, 2017, p. 452 ff. Electronic copy available at: https://ssrn.com/abstract=4692636 11 In Defence of Self-Defence cheek, turn to them the other cheek also; Matthew 5:39)23. Nonetheless, the concept endured, and its influence greatly exceeded the purely civil realm. St. THOMAS AQUINAS, for instance, indicated it as a necessary and permitted effect when the victim's intention is solely to ensure their safety24. It was even historically used to justify the right of resistance against the forces of public power. It has been (and still is, in our view) elevated to the status of a natural right of peoples25. In the time of Protestantism, LUTHER, inspired by GREGOR BRUCK — who, it should be recalled, invoked self-defence against rulers or magistrates acting in abuse of power — used it to limit political obedience26. Therefore, it should not be surprising that we have elevated it to a constitutional norm, both in the preceding Constitution of 1933 (Article 8/19: «[the right to] repel by force a private aggression, when it is not possible to resort to public authority»), and in the current one: the Portuguese Constitution states that «[a]ll have the right to [...] repel by force any aggression, when it is not possible to resort to public authority» (Article 21 of the Portuguese Constitution). 2.2. Legal recognition of self-defence: contemporary model and alternative approaches27 2.2.1. The Portuguese scenario: legislative fragmentation and constitutional issues in firearms and ammunition regulations I. Despite the indirect relevance of other provisions, the purely civil regime of selfdefence is derived from the current Article 337 of the 1966 Portuguese Civil Code28, in 23 In a meticulous analysis, HAFERKAMP comments on § 277 BGB (HKK-BGB, p. 1059 ff.). The Old Testament maintained a traditional line (see, for example, Genesis 9:6, and Exodus 22:1). This notion, in its original form, was later reshaped: taking to the extreme, not resisting an attempted murder could be viewed as suicide, the gravest sin. On this idea, quoting WACKE, see REINHARD ZIMMERMANN, The Law of Obligations. Roman Foundations of the Civilian Tradition, Juta & Co, Ltd: Cape city, Wetton, Jonesburg, 1990, p. 1000, footnote 18. 24 Summa Theologiae, II-II, Question 64, Article 7. 25 KRISTIAN KÜHL, Die Notrechte im Naturrecht des 19. Jahrhunderts. Insbesondere zur Notwehr im jungeren Naturrecht, Naturrecht im 19. Jahrhundert (org. Klippel), Goldbach, 1997, pp. 313-347. In our context, see OLIVEIRA ASCENSÃO, O Direito, p. 94. The influence of HUGO GROTIUS and the challenge of his teachings cannot be overlooked (extensively, among us, see the annotation by ANTÓNIO MENEZES CORDEIRO to article 337 of the Portuguese Civil Code, Código Civil comentado, I, p. 958). 26 See QUENTIN SKINNER, The Foundation of Modern Political Thought, Vol. 2, Cambridge University Press: Cambridge, 1978, pp. 199-204. 27 Regarding this, besides the already cited bibliography, see ANA PRATA in annotation to article 337 of the Portuguese Civil Code, Código Civil anotado, coord. Ana Prata, Almedina: Coimbra, 2017, pp. 413414. 28 The initial proposal by VAZ SERRA was altered in the first Ministerial Revision of the Portuguese Civil Code of 1966 (Código Civil, Livro I, Parte Geral. 1.a Revisão Ministerial, Ministério da Justiça, Lisbon, 1961, p. 137), in the respective article 301. The current wording corresponds essentially to the changes introduced in the context of the second Ministerial Revision (Código Civil, Livro I, Parte Geral. 2.a Revisão Ministerial, July 1965, p. 133), in the respective article 336. Therefore, in the Civil Code project Electronic copy available at: https://ssrn.com/abstract=4692636 1212 § 2. Legal framework of self-defence conjunction with the regime regarding errors about the assumptions of self-defence, as outlined in the subsequent article. Article 337 Self-Defence 1. An act intended to repel any current and unlawful aggression against the person or property of the agent or a third party is considered justified, provided it is not possible to do so by normal means and the harm caused by the act is not manifestly greater than what could result from the aggression. 2. The act is also considered justified, even if there is an excess of self-defence, if the excess is due to non-culpable disturbance or fear on the part of the agent. Article 338 Error Concerning the Assumptions of Direct Action or Self-Defence If the right holder acts under the mistaken assumption that the conditions justifying direct action or self-defence are present, they are obligated to compensate for the harm caused, unless the error is excusable. II. The concurrent regime is the criminal one, outlined in three distinct articles: the first is dedicated to self-defence itself (Article 32 of the Portuguese Criminal Code), the second to the excess of self-defence (Article 33 CP); the third, finally, corresponds to the error provision in the civil domain (Article 338 of the Portuguese Civil Code): in a specific wording, it refers to «a state of affairs which, if it existed, would exclude the unlawfulness of the act or the guilt of the agent» (Article 16/2 CP). Article 32 Self-defence An act constitutes self-defence when carried out as a necessary means to repel a current and unlawful aggression against legally protected interests of the agent or a third party. Article 33 Excess of self-defence 1. If there is an excess in the means employed in self-defence, the act is unlawful but the penalty may be especially mitigated. subsequently developed (in 1966), the wording given by that amendment was maintained (see Projecto de Código Civil, Ministério da Justiça, Lisbon, 1966, p. 98). As for the version definitively published, only formal corrections are detected, mainly the change in the reference to the damage caused by the act, now in the singular. Going even further back, the current wording finds (some) correspondence with the «right of defense» provided in our civil code of 1867 (see the provisions of articles 367, 2354 to 2355 CCse) and, especially, with the provisions of the respective articles 486, 2367 to 2370. Electronic copy available at: https://ssrn.com/abstract=4692636 13 In Defence of Self-Defence 2. The agent is not punished if the excess results from non-culpable disturbance, fear, or fright. Article 16 Error about the circumstances of the fact 1. An error regarding factual or legal elements of a type of crime, or about prohibitions whose knowledge is reasonably indispensable for the agent to be aware of the unlawfulness of the act, excludes intent. 2. The stipulation in the preceding paragraph covers an error about a state of affairs which, if it existed, would exclude the unlawfulness of the act or the guilt of the agent. 3. The punishability of negligence remains, as per general terms. III. We also note the Portuguese legislator's concern in densely regulating the regime of one potential object of defence and a special source of danger: firearms. This area accounts for a significant portion of our jurisprudential activity. The established regime for the use of these instruments applies to any situation of self-defence, whether in the civil or criminal domain. It is debatable, at the level of principles and values, the appropriateness of the proposed solution, particularly the prohibition against aiming at lethal zones of the human body when there is an expressly acknowledged «imminent danger of death» to the user (Article 42/1, a) of the Portuguese legal regime of weapons and ammunition). In our opinion, the use of a firearm does not, and should not, entail any value inversion of the institute: if the only way for an individual to avoid their own death or that of another is to use the weapon, targeting lethal areas (i. e., vital, such as the chest or head) of the aggressor, there is no illegality. It is neither a crime nor a misdemeanour; any other interpretation would be marred by manifest unconstitutionality29. 29 In a detailed examination of firearms-related penal laws, particularly those concerning usage outside legally prescribed conditions as delineated in Article 42 of the RJAM, a distinct emphasis is placed on a selected category of weapons (including classes B, B1, C, and D, with class C notably comprising common carbines and hunting shotguns) which are predominantly classified as criminal offenses (per Article 86.1, c) of the RJAM). Concurrently, there exists a parallel legal framework addressing the improper use of other weapon categories (spanning classes E, F, and G, and encompassing, for instance, the use of defence aerosols), wherein violations are comparatively downgraded to misdemeanors (Article 97.1 of the RJAM). Hence, it logically follows that the commission of a misdemeanor, as outlined in the aforementioned context, should be similarly negated. The pivotal issue arises when juxtaposing this specific penal regime with the foundational principles of self-defence enshrined in the Penal Code. The seemingly specialized relationship between these two realms is apt for crafting a nuanced interpretation of such scenarios involving firearm use in self-defence, particularly concerning the conditions justifying such actions. Nevertheless, the resultant discord within the legal system becomes glaringly apparent, rendering this discrepancy untenable. Specifically, the scenario where one is criminally penalized for self-defence – the only feasible option, albeit in contravention of stipulations in this regime (Article 42.1, a) of the RJAM) – flagrantly contravenes the constitutional right to resistance (Article 21 of the CRP), thereby manifesting its Electronic copy available at: https://ssrn.com/abstract=4692636 1414 § 2. Legal framework of self-defence The same considerations apply to other legal requirements (e.g., the warning shot; consider, in the context we referred to earlier, a defender having only one round of ammunition). Moreover, when faced with the same dilemma, the legislator did not impose similar restrictions on the use of firearms by security forces30. In fact, in the critical situation described, there is no distinction between a private individual and a police officer. The fundamental value problem does not change depending on the defender's status, particularly their uniform; indeed, if such a criterion were to be considered, it should lead to the opposite conclusion, namely, that higher standards should apply to the conduct of security forces, given their greater proficiency in handling firearms. This should be explicitly stated in the Portuguese legal text in question, but it is not. Furthermore, there is no justification – at least in the realm of civil liability – for the acknowledged bias regarding the object in question: as we will see, in the context of the necessity of defence, this means may prove to be the least harmful to the aggressor. The example given by PESSOA JORGE perfectly illustrates this concept, which we quote: «Thus, although a firearm is more dangerous than a stick, if the victim is an expert marksman, the use of the former may be imposed on them as a less offensive means, as they can limit themselves to slightly wounding the aggressor»31. unconstitutional nature. This perspective was rightly upheld by the STJ, which affirmed the legitimacy of self-defence in instances where an individual, armed with a firearm, responds to an aggressor wielding a knife (October 10, 1996; BMJ 460, 1996, 359-368). This stance challenges the excessively restrictive judicial interpretation prevalent in such contexts, particularly in cases of alleged excessive self-defence. This critical viewpoint is further explored in various cases compiled by MENEZES CORDEIRO (see annotations to Article 337, Código Civil comentado, I, p. 966; where the noted Professor advocates for a more flexible legal interpretation, suggesting that, under extreme circumstances, aiming a weapon at vital body parts could be permissible (ibid); Additionally, RUI ATAÍDE, in his work on the Law of Obligations (Vol. I, Gestlegal, Coimbra, 2022, p. 374), proposes the consideration of excusable conduct under the clause of unavoidability. Furthermore, the unconstitutionality of the aforementioned legal provision, when interpreted in this manner, has been a topic of significant discourse among esteemed legal scholars, as evidenced by the contributions of FIGUEIREDO DIAS, Direito Penal, I, p. 508; TAIPA DE CARVALHO, Direito Penal, 3rd ed., 2016, p. 399 (see also the 2nd edition of his word, published by Coimbra Editora, Coimbra, 2008, pp. 397-398); PAULO PINTO DE ALBUQUERQUE annotations to Article 32 of the CP, Comentário ao Código Penal, 3rd ed., Universidade Católica Editora: Lisbon, 2015, p. 242; and FERNANDO CONDE MONTEIRO, Algumas considerações sobre a legítima defesa a partir da Constituição da República Portuguesa, Studies Dedicated to Professor Doctor Nuno José Espinosa Gomes da Silva, Universidade Católica Editora: Lisbon, Vol. I, 2013, pp. 327-346 (342-344). 30 The legal stipulations within Article 3.2 of Decree-Law No. 457/99, as of November 5th, exhibit a notable deficiency. This legislation, specifically in its current form, is critiqued for its limited scope in the use of firearms for defence. Notably, it restricts the legitimate use of firearms exclusively to the protection of human life and physical integrity, conspicuously omitting scenarios involving the defence of sexual freedom. This omission has not gone unnoticed and has, in fact, been met with considerable censure. The core of the criticism hinges on the alleged unconstitutionality of such a restrictive interpretation. In response to this perceived legal shortfall, several jurists have championed a more equitable and corrective reading of the law. For a comprehensive analysis and in-depth critique of this issue, one may refer to the authoritative work of FIGUEIREDO DIAS, Direito Penal, I, pp. 505-506 and footnotes 79, 80). 31 Ensaio, p. 243, footnote 219. Electronic copy available at: https://ssrn.com/abstract=4692636 15 In Defence of Self-Defence Additionally, it is worth noting (and certainly criticizing) the legislator's indifference to the hermeneutic cost involved in the legislative dispersal of the matter: such norms should be explicitly codified and, in this respect, subjected to proper and undoubtedly more rigorous scrutiny by all legal practitioners. Let's recall the pertinent regulation: Article 42 RJAM Use of Firearms 1. The use of a firearm is considered exceptional in the following circumstances: a) As a last resort for defence, to cease or repel a current and unlawful aggression against oneself or others, when there is an imminent danger of death or serious physical harm, and when such defence cannot be assured by state authority agents. The shot must be preceded by a verbal warning or a warning shot, and under no circumstances should it aim for a lethal area of the human body; b) As a last resort for defence, to cease or repel a current and unlawful aggression against one’s own or another’s property, and when such defence cannot be assured by state authority agents, the shots must be warning shots only. 2. [...] 2.2.2. Comparative analysis: navigating between dualism and criminal dominance in the Romano-Germanic legal tradition IV. Portugal aligns with legal systems that currently distinguish civil and criminal models of justification through separate provisions in their respective Civil and Penal Codes. For instance, in civil law, we see the concept of Notwehr in German law (§ 227 BGB) and legittima difesa in Italian law (Article 2044 CCit)32. [German Civil Code; Burgerliches Gesetzbuch] § 227 Self-defence33 32 For a comprehensive understanding of the Common European Law of Torts, one should delve into the seminal work by VON BAR, Gemeineuropäisches Deliktsrecht, Vol. II, C.H.Beck: Munich, 1999. This volume presents a thorough exploration of tort law across Europe. Additionally, in the context of the Italian legal system, the recent scholarly contribution by CORRADO CHESSA, La legitima difesa novellata nelprisma della responsabilità civile, Rivista di Diritto Civile, Year 66, n. 6, Nov-Dec 2020, pp. 12891318. 33 The term Notwehr in German law is a fusion of Not (necessity) and Wehr (defence), translating to necessary defence. This is distinct from the more commonly understood concept of self-defence which aligns more closely with Selbstverteidigung (own defence) in German. Intriguingly, this specific term does not feature in the legal text of § 227 of the BGB nor in its criminal law counterpart, § 32 of the StGB (German Criminal Code), despite the identical phrasing in both statutes. This nuanced differentiation in Electronic copy available at: https://ssrn.com/abstract=4692636 1616 § 2. Legal framework of self-defence (1) An act required for self-defence is not unlawful. (2) Self-defence is the defence required to ward off a present unlawful assault on oneself or another. [Italian Civil Code; Codice Civile] Article 2044 Legitimate defence The person who causes harm in legitimate defence of themselves or another is not liable. In the cases mentioned in Article 52, paragraphs two, three, and four, of the Penal Code, the liability of the person who committed the act is excluded. In the case mentioned in Article 55, paragraph two, of the Penal Code, compensation is owed to the injured party, the extent of which is left to the fair judgment of the court, considering the severity, the manner of execution, and the causal contribution of the conduct of the injured party. V. In other legal systems, such as those of France and Spain, there has not been an explicit individualization of this justification in civil law, at least not through express provision. The existing provisions are confined to the Penal branch. Let's examine the French case first: légitime défense is outlined in Articles 122-5 and 6 of the French Penal Code. Here, the praetorian principle of the unity of civil and penal fautes, as well as the authority of civil res judicata over criminal matters, obviated the need for such a norm in the Civil Code34. Spain also hesitated to enshrine the regime of legítima defensa in its Civil Code, which still remains silent on the matter today. The existing criminal provision is found in Article 20.4 of the Spanish Penal Code. However, this gap has not prevented the importation of penal contributions, proposed by DÍEZ-PICAZO35, among others. Yet, in terms of civil liability requirements, the very individualization of the unlawfulness criterion, separate from the harmful result produced (or damage), is controversial in the terminology, however, is not mirrored in the Swiss and Austrian legal frameworks, where the respective criminal codes (§§ 15 and 16 of the Swiss StGB and § 3 of the Austrian StGB) exclusively address the concept in a criminal context. 34 HAJER ROUIDI, Une notion pénale à l’épreuve de la responsabilité civile: les faits justificatifs, Revue de science criminelle et de droit pénal comparé 2016/1, n. 1, pp. 17-36 (18). ROUIDI’S analysis demonstrates that the theoretical underpinnings of justifying facts in criminal law can indeed be adapted to civil law, albeit with distinct nuances and considerations. This conceptual crossover is further delved into by JEAN BERGERET in his seminal thesis, La notion de fait justificatif en matière de responsabilité pénale et son introduction en matière de responsabilité civile délictuelle et contractuelle (1946). Similarly, see JEAN CARBONNIER, Droit Civil, Vol. II, Quadrige/Puf: Paris, 2004, p. 2312. For a more contemporary perspective, see PHILIPPE MALAURIE/LAURENTAYNÈS/STOFFEL-MUNCK, Droit des Obligations, 11th ed., LGDJ: Paris, 2020, pp. 74-75. 35 Fundamentos del Derecho Civil Patrimonial, Vol. V. La responsabilidade civil extracontractual, Civitas/Thomson Reuters: Madrid, 2011, p. 303. Electronic copy available at: https://ssrn.com/abstract=4692636 17 In Defence of Self-Defence Spanish model36. Nonetheless, this has not impeded the advancement of proposals for incorporating this justification in negating unlawfulness (antijuridicidad) of the behaviour. It should be noted, however, that the understanding – which still enjoys widespread doctrinal support today – rejects the relevance of this justification: it is argued that unlawfulness is sufficient with the disvalue of the result (the damage) and there is a refusal to frame it in relation to the agent's conduct37. 2.2.3. International Law overview VI. International instruments enshrine self-defence as a fundamental tool for the protection of rights. At the European level, the European Convention on Human Rights specifies that it is not a violation of the right to life «when death results from the use of force made absolutely necessary, (a) [t]o ensure the defence of any person against illegal violence» (Article 2/2, a). The Tilburg-Vienna Group also anticipated this concept, providing a basis for justification: self-defence is expressly provided for in the Principles of European Tort Law (Article 7:101 PETL)38. Additionally, in this context, the concept of self-defence, termed as defence is acknowledged in the Draft Common Frame of Reference (Article VI-5:202 DCFR)39. 2.3. The admissibility thresholds for self-defence: a detailed exploration of aggression, defence, and the critical role of proportionality 36 In the realm of civil liability, the prevailing legal doctrine and jurisprudence reflect a consensus on the lack of autonomy. This perspective is extensively explored in the exemplary work of MARTÍN GARCÍARIPOLL MONTIJANO, La antijuridicidad como requisito de la responsabilidad civil, Anuario de derecho civil, Vol. 66, n. 04, 2013, pp. 1504-1604 (1523-1532). 37 For an in-depth analysis, one can refer to the doctoral thesis by A. FERNANDO PANTALEÓN, Del concepto de dano: hacia una teoría general del derecho de danos, Universidad Autónoma de Madrid. Departamento de Derecho Civil: Madrid, 1981, p. 1994 ff. Further elaboration on these themes can be found in MARTÍN GARCÍA-RIPOLL MONTIJANO, La antijuridicidad p. 1527 (footnote 82). 38 The task of establishing a coherent European Private Law poses significant challenges, particularly concerning the formulation of a General Part within this legal framework. ANTÓNIO PINTO MONTEIRO'S work, A Parte Geral do Código, a Teoria Geral do Direito Civil e o Direito Privado Europeu, Comemorações dos 35 anos do Código Civil e dos 25 anos da reforma de 1977, Vol. II, Coimbra Editora: Coimbra, 2006, pp. 57-76, 72-75, offers valuable insights into these complexities. 39 Lastly, for a nuanced understanding of the unique contours of the responsibility model within this legal paradigm, DÁRIO MOURA VICENTE’s Direito Comparado, Vol. II. Obrigações, Almedina: Coimbra, 2019, pp. 666-673, serves as an essential resource in this field. Electronic copy available at: https://ssrn.com/abstract=4692636 1818 § 2. Legal framework of self-defence I. Self-defense (Notwehr, défense légitime, legittima difesa, legítima defesa) represents a means of justifying conduct that diverges from the law, in its absence40. It fundamentally relies on another act, originating from a third party and necessarily preceding41, qualified as an aggression. For this reason, its assessment always involves the consideration of the conduct of two subjects (the aggressor and the defender). This leads to a balancing of interests between the one initially offended (or threatened) by the initial aggression and another as a result of the defence, in which one will ultimately prevail: if it's in favour of the defender, it is said that they acted in self-defence or that their conduct is justified42. According to the Portuguese legal framework, it is evident that self-defence is prohibited, only allowed under specific legal permissions. As characterized by FRANK EBERT, private justice mechanisms, self-defence included, ought to be considered as absolute exceptions (absolute Ausnahmen) to the State's monopoly on violence43. Thus, if there were any doubts about this principled stance, it is determined in the first article of 40 In the Portuguese legal discourse, see ADRIANO VAZ SERRA, Causas Justificativas do Facto Danoso, BMJ 85, 1959, pp. 5-699 (maxime, 45-69 e 111); PIRES DE LIMA/ANTUNES VARELA, Noções Fundamentais de Direito Civil, Vol. I, 4th ed., Coimbra Editora: Coimbra, 1957, p. 27; ALMEIDA COSTA, Direito das Obrigações, 12th ed., Almedina: Coimbra, 2009, pp. 570-572, Noções Fundamentais do Direito Civil, 7th ed., Almedina: Coimbra, 2018, pp. 93-94; PIRES DE LIMA and ANTUNES VARELA’s commentary of articles 337 and 338 of the Portuguese Civil Code, Código Civil anotado (with the colaboration of Henrique Mesquita), Vol. I., 4th ed., Coimbra Editora: Coimbra, 2011, 302-303; ANA PRATA Varela’s commentary of articles 337 and 338, Código Civil anotado, Coord. Ana Prata, Almedina: Coimbra, 2017, pp. 413-414; MARIA DA GRAÇA TRIGO’s commentary of articles 337, Comentário ao Código Civil, Parte Geral, Coord. Luís Carvalho Fernandes, Universidade Católica Editora: Lisbon, 2014, pp. 798-799; JORGE RIBEIRO DE FARIA, Direito das Obrigações, 2nd ed., Vol. I, Almedina: Coimbra, 2020, p 432-433; PESSOA JORGE, Lições de Direito das Obrigações, Lisbon, 1975-1976, p. 546, Ensaio, pp. 226-251; ANTÓNIO MENEZES CORDEIRO’s commentary of articles 337 and 338 of the Portuguese Civil Code, Código Civil comentado, I — Parte Geral, Almedina: Coimbra, 2020, pp. 957-968, Tratado de Direito Civil, V, 3rd ed., Almedina: Coimbra, 2017, p. 452 ff; MAFALDA MIRANDA BARBOSA, Lições de Responsabilidade Civil, Princípia: Cascais, 2017, pp. 208-211; and EDUARDO SANTOS JÚNIOR, Direito das Obrigações I. Sinopse explicativa e ilustrativa, 3rd ed., AAFDL: Lisbon, 2014, pp. 311-313. Reflecting on the period governed by the previous Civil Code, the writings of GUILHERME MOREIRA, Instituições do Direito Civil Português. Vol. I. Parte Geral, Imprensa da Universidade de Coimbra: Coimbra, 1907, pp. 639-643, CUNHA GONÇALVES, Tratado de Direito Civil, Vol. III, Coimbra Editora: Coimbra, 1930, p. 575, provide historical context and foundational perspectives. Additionally, PALMA CARLOS' annotations to the 1949 Civil Procedure Code offer valuable insights into the procedural aspects of these legal principles (see the commentary of article 2 CPC 1949, Código de Processo Civil Anotado, Procural: Lisbon, 1942, pp. 55-56). 41 In the complex arena of legal practice, as highlighted by HIRSCH, distinguishing between the aggressor and defender, especially in ambiguous situations like brawls, presents a significant challenge. Yet, the accuracy in this determination is crucial for the effective application of legal principles (BGB Allgemeiner Teil, 9th ed., Nomos: Baden-Baden, 2016, §52, Mn. 1207, p. 419). 42 GROTHE elevates this discernment to a fundamental principle, aptly named the «principle of predominant interest» (Prinzip des uberwiegenden Interesses). He emphasizes that the law must not succumb to injustice (Das Recht brauch dem Unrecht nicht zu weichen). This perspective is elaborated in his annotation to § 227, in MiiKoBGB, Vol. I, 8th ed., C.H.Beck: Munich, 2018, pp. 2474-2475. This iconic phrase, originally articulated by ALBERT FRIEDRICH BERNER in his Lehrbuch des deutschen Strafrechts, 5th ed., Leipzig, 1871, reimp. by ND Goldbach, 1997, p. 144, draws its philosophical roots from HEGEL, a connection astutely observed by FIGUEIREDO DIAS (Direito Penal, I, p. 473, footnote 1). 43 Grundlagen des Selbstverteidigungsrechts, pp. 1-2. Electronic copy available at: https://ssrn.com/abstract=4692636 19 In Defence of Self-Defence the Portuguese Civil Procedure Code: «[n]o one is allowed to resort to force to achieve or secure their own right, except in cases and within limits declared by law»44. II. All contemporary legal systems impose limitations on self-defence, a phenomenon that is historically established. Indeed, within the Romano-Germanic legal family, the justifications for self-defence were already articulated in Roman sources, particularly in terms of cause, time, and manner (circa causam, circa tempus, and circa modum). Upon closer examination, another somewhat problematic aspect emerges. While self-defence is generally viewed unfavourably by legal systems, being a necessary exception, there are times when it is mandated. Specifically, in cases involving only the protection of individual interests (even if third-party interests are indirectly involved), there is no obligation to defend oneself. This is clear. However, in situations where there is a duty to protect the interests of others, self-defence may become compulsory (consider the parental duty to protect their children from external threats). In such cases, selfdefence is absorbed by a different axiological order without losing its essence: often, a duty of care arises, with civil and criminal relevance, compelling the agent to act; this duty valuably absolves the purpose of such compulsory self-defence. III. Across various legal frameworks – which are so extensive as to defy a strict conceptual condensation – several criteria for the legitimacy of defence are identified, upon which the desired justificatory effect depends45: 44 The phrasing in the 1961 Civil Procedure Code (CPC) aligns with its 1939 predecessor, reflecting the principles set forth in ALBERTO DOS REIS's proposals: «the law prohibits individuals from taking justice into their own hands, except within legally specified boundaries». The procedural doctrine's approach to extrajudicial dispute resolution is of paramount importance, as discussed in detail by LEBRE DE FREITAS and ISABEL ALEXANDRE in their commentary on Article 2 CPC, Código de Processo Civil Anotado, Vol. I, 4th ed., Almedina, Coimbra, 2018, p. 24. This leads to a longstanding debate about whether defenders must seek judicial affirmation of their actions. The notion that private justice must still undergo public scrutiny is critical, as argued by PIRES DE LIMA and ANTUNES VARELA in their notes on direct action's legality (Código Civil Anotado, I, p. 301). Subsequent scholars, like GERMANO MARQUES DA SILVA in Tutela dos Direitos, p. 23, propose a more nuanced approach: legal recourse should be sought only when conflicts remain unresolved or responses are inadequate (also, see ABRANTES GERALDES, Temas da Reforma do Processo Civil, III, 2nd ed., Almedina: Coimbra, 2000, pp. 25-26). From our vantage point, any party involved in a dispute should be able to seek judicial redress if they deem it necessary. For instance, a defender might perceive overlooked damages, or an aggressor might consider the defence excessively and unjustifiably severe. However, imposing a blanket obligation for such judicial scrutiny, as suggested in some proposals, seems excessively burdensome and is, therefore, a notion we find untenable. 45 Criminal law scholars often draw a nuanced distinction between external presuppositions and internal requirements of legitimate defence as a justificatory cause. This approach is notably echoed in MARIA DA GRAÇA TRIGO’s commentary on Article 337 of the Portuguese Civil Code (Comentário ao Código Civil, Electronic copy available at: https://ssrn.com/abstract=4692636 2020 § 2. Legal framework of self-defence § 1. Regarding the aggression, upon which it is contingent, and specifically concerning: a) The object of the injury; b) The source from which it originates; c) Other characteristics of the aggression, particularly its imminence and unlawfulness. § 2. Regarding the defence itself, purportedly justified, in terms of: d) The necessity of the defence; and e) The absence of manifest disproportionality. 2.3.1. Aggression The first general limitation often noted in self-defence concerns the preceding action upon which it depends. Self-defence is not a phenomenon that emerges as an individually significant event. Instead, it is always associated with another action (the aggression) upon which it depends46. In our legal system, therefore, an action is justified only in response to another that qualifies as an aggression (circa causam), whether against the agent or a third party, or against the person themselves or their property47. a) The object of injury V. It is not necessary to be facing physical aggression: the law is satisfied with an offense against the interests protected by the legal order (Rechtsordnung), of which the defender (or a third party) is the actual holder48. This can vary in its level of abstraction. In fact, its Parte Geral, pp. 798-799). In the German legal framework, as explored in GROTHE'S major commentaries, a critical distinction is made between the situation of legitimate defence (Notwehrlage) and the act of legitimate defence (Notwehrhandlung); particularly noted in the annotation to § 227, in MiiKoBGB, p. 2474. This dualistic perspective addresses key concerns associated with these categorical propositions. 46 OLIVEIRA ASCENSÃO proposes an intriguing view, positing that the right of resistance is essentially a form of legitimate defence. This stance is grounded in the premise of inherent iniquity, validating noncompliance with actions that infringe upon one's rights, freedoms, and guarantees as delineated in Article 20 CRP (O Direito, p. 95). 47 DEUTSCH/AHRENS extend this concept further suggesting that legitimate defence could even be exercised in favour of the State, especially when private interests are under attack (Deliktsrecht, p. 44). 48 This expansive interpretation of legitimate defence might be surprising, particularly within Common Law systems. For instance, GEORGE P. FLETCHER (Rethinking Criminal Law, p. 862) critically discusses a 1963 Bavarian case where legitimate defence was invoked against the abusive use of someone else's parking space. Such a scenario, though potentially startling to some legal systems, aligns well with the justification Electronic copy available at: https://ssrn.com/abstract=4692636 21 In Defence of Self-Defence object should be extended to encompass direct aggressions against diffuse interests (e.g., against ecological or environmental damage49). Moreover, broadening the scope, when disconnected from the ontological nature of the aggression, also allows for the inclusion of negative aggressions, or those by omission, even though they are infrequently observed (for example, if a parent refuses to provide medication to their minor child, neglecting this duty of care, a third party may, by their own force, compel them to do so, in the interests of the child50). Also possibly justified is the violation of duties of care in traffic (deveres no tráfego). Let's examine in what terms. RUI ATAÍDE'S stance, which we follow here, demands that the prohibited behavior have a connection with the aforementioned duties of care. This is evident from the illustrative examples provided by the esteemed Professor, demonstrating the suitability of this approach. Consider, for instance, a theft occurring in a warehouse. In such a scenario, it is justifiable for the aggrieved party (a merchant) to pursue and apprehend the assailant. This is clear. However, another hypothesis, proposed by the author, merits consideration: if the thief independently slips on a wet floor, does this constitute a justifiable breach of traffic duty due to insufficient hazard management?51 Here, the author posits two critical distinctions: firstly, the injured party (now the aggressor) must fall within the ambit of the protection of the duty of care beneficiaries (as is the case), and secondly, they must have significantly contributed to the hazard's escalation (which, in this case, they did not). Consequently, the injury resulting from the fall lacks justification. In contrast, consider the author's alternative examples: «if a thief stealthily enters a shopping mall at night to steal» or «an individual who climbs over a garden wall to retrieve a ball and sustains injuries from glass shards in an area not publicly accessible.». In both instances, the unauthorized individual (not solely by virtue of this status) is not entitled to any compensatory claims. model prevalent in civil law jurisdictions, which broadly encompass various behaviours, including such misuse of property, under general clauses of tortious unlawfulness. 49 See MENEZES CORDEIRO’s commentary on Article 337 of the Portuguese Civil Code, Código Civil comentado, I, p. 962. ANA PERESTRELO DE OLIVEIRA, in her scholarly work, articulates the possibility of circumventing the unlawfulness of conduct by applying a system of strict liability. This perspective, highlighted in Causalidade e Imputação na Responsabilidade Civil Ambiental, Almedina, Coimbra, 2007, p. 15 and footnote 7) underscores the role of penal and Public Law norms in precluding the need for legal protection against pure environmental damages. Figueiredo Dias, verges from the German predominant views by advocating for the safeguarding of supra-individual legal goods, as detailed in Direito Penal, I, pp. 479-481. 50 This approach triggers an extensive doctrinal debate within criminal law, a discourse enriched by contrasting views from scholars like PESSOA JORGE, Ensaio, p. 232 and VAZ SERRA, Causas Justificativas do Facto Danoso, p. 49. See, algo, FIGUEIREDO DIAS, Direito Penal, I, p. 479. 51 Responsabilidade Civil por Violação de Deveres no Tráfego, Almedina: Coimbra, 2015, pp. 690-693. The author challenges the necessity of classifying illicit actions as supra-legal causes that exclude unlawfulness, particularly in the context of duty of care violations (idem, p. 691). This analysis posits that mere non-compliance with the law does not automatically justify defensive conduct that breaches such duties, emphasizing the need for a more intricate dogmatic framework. Recently, the author has acknowledged the legitimacy of self-defence in instances of aggression that do not involve a breach of duty of care (Direito das Obrigações, I, p. 375). Electronic copy available at: https://ssrn.com/abstract=4692636 2222 § 2. Legal framework of self-defence VI. On the other hand, initially, the self-defence does not extend to the protection of other interests not safeguarded by a «right», as per norms of protection (Article 483/1, second part, of the Portuguese Civil Code). This occurs primarily for three reasons: first, due to the systematic placement of the self-defence provision within the subtitle dedicated to the «exercise and protection of rights»; second, in the following provision, reinforcing this notion, there is an explicit mention of the «right holder» (Article 338 of the Portuguese Civil Code); third, and most importantly, protection norms do not acknowledge a subjective right for the holder. Recognizing their relevance in this context would justify defensive conduct over interests on which the agent cannot previously act, significantly expanding the range of individuals who possess the quality of a defender52. From our perspective, it is feasible to frame this form of unlawfulness as an aggression, provided that the legal good targeted by the protection norms aligns with that of the defence53. In other cases, regardless of the presence of illegality, there is no aggression. In assessing the phenomenological aspects, the question arises as to whether a mere threat can be considered an act of aggression significant enough to justify a threatened party's defensive response54. The crux of this issue lies in determining whether the threat possesses any potential for harm. Our viewpoint suggests that a threat lacking in damage potential, thus unable to establish the agent's liability, should not be deemed as an aggression and does not need justification as a defensive measure (for instance, when an agent uses such a threat in self-defence against an aggression)55. It becomes more complex to classify a behaviour as aggressive when it abstractly lacks the capability to harm the defender, or when the target of the aggression does not align with the victim’s interest. In the former case, reference to criminal law's doctrine on impossible attempts is relevant, where the means of the alleged “aggression” are completely ineffective in causing harm (such as when an aggressor threatens with an unloaded gun)56. In the latter scenario, there is no realistic potential to 52 ADELAIDE MENEZES LEITÃO astutely pinpoints a critical issue in the legal discourse concerning the notion of unlawfulness, debating whether it should be interpreted narrowly or more expansively, as discussed in Normas de Protecção e Danos Puramente Patrimoniais, Almedina, Coimbra, p. 662. The unitary concept is restrictive and fails to include diverse legal scenarios beyond the mere violation of duty. FIGUEIREDO DIAS advocates for a broader interpretation of unlawfulness that transcends beyond mere violations of penal norms, as elaborated in Direito Penal, I, 485. Both the arguments mentioned in text are supported by PESSOA JORGE, Ensaio, p. 203 (footnote 204). 53 See MENEZES CORDEIRO’s annotations to Article 337 of the Portuguese Civil Code, Código Civil comentado, I, p. 961. 54 Contrarily, OLIVEIRA ASCENSÃO expressly challenges the applicability of this broadened concept in the context of legal interpretation (O Direito, p. 94). 55 PESSOA JORGE, brings a nuanced view to this discussion, particularly highlighting the legal significance of threats as a criminal offense, Ensaio, p. 213. 56 In the realm of criminal law, an important consideration for excluding punishability is the manifest inadequacy of the means employed by the agent or the nonexistence of an essential object required for the crime's consummation (23/3 CP). Electronic copy available at: https://ssrn.com/abstract=4692636 23 In Defence of Self-Defence harm the protected personal or property interests, often due to the misalignment of the aggression's target (like in instances where a thief demands a wallet from a homeless person who has none, or when someone fires at a corpse). If the defender is cognizant of the aggressor's inability to inflict harm, their claim to a defensive response is untenable. However, the real challenge lies in discerning the actual object of the purported injury. In such cases, the ambiguity in pinpointing the injury's target might lead to the invocation of the mistake doctrine, potentially tempered by its defensibility under Article 338 of the Portuguese Civil Code, or the concept of excess, contingent on the case specifics and the presence of a pertinent aggression prompting the defensive action. VII. The pivotal aspect of this entire issue, concerning the object of the injury – often overlooked – is that, despite popular belief, there is no direct correlation between the unjustness or illegality of the action and the contravention of law inherent in the aggression (which justifies defensive behaviour)57. In PAULO MOTA PINTO'S scenario, where a motorist, in full compliance with traffic regulations, is on the verge of inadvertently hitting two pedestrians, the driver, though not legally at fault, undoubtedly prompts a justified defensive response to avert this incident. This response, whether framed as self-defence or a necessity58, is universally acknowledged as legitimate. Herein lies a nuanced complexity: the motorist's action embodies a form of aggression against the law (a looming threat; a simple contravention of law), yet it does not constitute a clearcut legal transgression (unjustness or illegality) in terms of his conduct. We need not delve deeper than this. Whether there is still a functional unity of illegality to be maintained, despite playing different roles (here, one regarding tolerance limits), is a question that goes beyond the scope of this research. b) The source from which the aggression originates 57 RUI ATAÍDE, in Responsabilidade Civil, p. 1120, and more recently in Direito das Obrigações, I, 376. One should address the complexity of legitimate defence in legal practice. We suggest that merely focusing on the theory of result disvalue, as opposed to conduct disvalue, fails to adequately capture the nuanced depth of this legal concept. This approach is too narrow, particularly because it centres on objective disvalue, whereas the essence of legitimate defence primarily concerns itself with harm or damage. 58 The intricacies of legitimate defence are further exemplified in PAULO MOTA PINTO’S work (Interesse contratual negativo e interesse contratual positivo, Coimbra Editora: Coimbra, 2009, footnote 1451). This example, widely referenced in German Law (e.g., by MANSEL’s commentary of § 227, Jauernig BGB Kommentar, 18th ed., C.H.Beck: Munich, 2021, Mn. 5; also BACKMAN’S commentary of § 227 BGB, em jurisPK-BGB, Vol. I, AT, 6th ed., Juris, 2005, Mn. 13, p. 1576); RUI ATAÍDE also invoked this example in Direito das Obrigações, I, 376 (footnote 342). FIGUEIREDO DIAS offers a contrasting perspective. He contends that an imminent risk of harm to legal interests, within a conduct tolerated by law (or "within the framework of permitted risk"), does not inherently justify an action in legitimate defence (Direito Penal, I, p. 487; he leaves room for possible justification through necessity). This debate extends beyond German legal circles, as seen in FAHSE's cautious approach (see his commentary of § 227 BGB, Soergel BGB Kommentar, 13th ed., Kohlhammer: Stuttgart, 2017, Mn.16-17, p. 832-833). Electronic copy available at: https://ssrn.com/abstract=4692636 2424 § 2. Legal framework of self-defence VIII. A key principle in understanding aggression is that it must invariably originate from a human agent, even if this involves the manipulation of other entities like animals or natural forces59. This requirement underscores that the conduct in question must be deliberate to attribute responsibility to the aggressor, whether an individual or a group60. This principle is exemplified in MENEZES LEITÃO'S reference to a person inadvertently damaging a porcelain vase during a cardiac episode - such actions fall outside the realm of legitimate defense61. Hazards stemming solely from animals or natural forces, such as a rabid dog breaking loose or a vehicle inadvertently rolling down a hill, don't fall under self-defence but rather necessitate actions borne out of immediate necessity. The underlying rationale is that these actions aren't inherently illegal or morally wrong. The qualification of an action as human belongs to the domain of human agency, which can also involve or account for other forces in the context of human conduct (as addressed in risk norms, Article 502 of the Portuguese Civil Code). Moreover, the concept of aggression does not extend to animals or natural forces; that is, there's no direct violation of any presumed rights of these entities. However, if an animal owned by someone is involved, the action may infringe upon the owner's rights, shifting the focus from the animal to its owner. c) Other characteristics of the aggression, particularly its imminence and unlawfulness 59 See PESSOA JORGE, Ensaio, p. 238 (footnote 211); ANA PRATA annotation to Article 337 of the Portuguese Civil Code (Código Civil anotado, p. 413). MARIA DA GRAÇA TRIGO critically examines the TRP's judgment from November 5, 1986, in her commentary on Article 337 of the Portuguese Civil Code (Comentário ao Código Civil, Parte Geral, p. 799). The legal justification for defensive actions extends to the use of guard animals and automated defence systems. This interpretation is supported by MENEZES CORDEIRO, in his annotation to article 337 of the Portuguese Civil Code, Código Civil comentado, I, p. 961. FIGUEIREDO DIAS raises a crucial point regarding the risks associated with the unnecessary or disproportionate use of defensive means, as discussed in Direito Penal, I, p. 492. 60 In cases involving legal entities, legitimate defence should be targeted against their organs, as noted by DEPPENKEMPER in his annotation to § 227 BGB, PWW BGB-Kommentar, 15th ed., Luchterhand, 2020, Mn. 3, p. 331. 61 Direito das Obrigações, Vol. I. Introdução. Da Constituição das Obrigações, 16th ed., Almedina: Coimbra, 2022, p. 296. See, also MENEZES CORDEIRO’s annotation to article 337 of the Portuguese Civil Code, Código Civil comentado, I, p. 960 (the esteemed Professor discusses the complex scenarios of legitimate defence, such as against a drunken aggressor, where the aggressor's fault may be diminished but still present, 488/1 of the Portuguese Civil Code). In situations like physical coercion, the defender is justified in using legitimate defence against the coercer, while actions by the coerced may fall under necessity (339/1 of the Portuguese Civil Code). Electronic copy available at: https://ssrn.com/abstract=4692636 25 In Defence of Self-Defence IX. [imminence] In discussing aggression's features, a critical but often overlooked aspect is its immediacy (gegenwartig). This means the aggression must be ongoing or imminent, linking directly to the harm being averted (circa tempus) and the availability of legal remedies. If the aggression is speculative or future, the defensive action shifts to a preemptive, thus illegitimate, sphere. An exception exists for imminent threats, where defence is rightfully justified62. Determining the threshold of this imminence is not straightforward and demands specific criteria63. We believe this falls on a spectrum of certainty, ranging from mere possibility to assured occurrence. The first two stages – mere possibility and weak probability – might not sufficiently constitute imminent aggression. However, the likelihood of injury (perigo de lesão) must also be considered to avoid the contradiction of requiring absolute certainty for lawful self-defence but not for actions out of necessity.64 A significant probability, once established, should suffice as a basis for defensive action. Even in cases where aggression seems certain, evaluating the situation's spatiotemporal dynamics is essential. In FISCHER'S example, an individual standing a hundred meters away, albeit armed with a club in his hand, does not pose an immediate threat,65 nor do the three guests, in the scenario by LENCKNER/PERRON, who conspire over dinner to rob the inn they are lodged in66. The crux of the matter is that the certainty of aggression does not make it imminent. This emphasizes the need for a careful, context-specific evaluation of aggression, which is often complicated and subject to misinterpretation, particularly by those more inclined to fear. Understanding the defender's mindset is vital, as it influences both the accuracy of their assessment and the proportionality of their 62 The nuances of legitimate defence in civil law become particularly evident when delving into the major commentaries on the Civil Code. Colorandi causa, see ANA PRATA in her annotation to Article 337 of the Portuguese Civil Code (Código Civil anotado, p. 414). See, also MARIA DA GRAÇA TRIGO’s annotation to article 337 of the Portuguese Civil Code (Comentário ao Código Civil, Parte Geral, p. 799) rightly emphasizes the need for defence against an “actual danger of aggression”, aligning with the traditional understanding of legitimate defence. Conversely, PIRES DE LIMA and ANTUNES VARELA, appear to adopt a differing stance in their annotations to the same article 337 of the Portuguese Civil Code, Código Civil anotado, I, p. 302, potentially signalling a divergence in legal interpretations. 63 FIGUEIREDO DIAS critiques the application of penal dogmatics, particularly concerning attempts and execution acts, to civil law (Direito Penal, I, p. 482). This position seems to contrast with that of ROMANO MARTINEZ (Introdução, p. 91, nota 92). 64 The civil law perspective, as highlighted by PESSOA JORGE (Ensaio, p. 234), and drawing from CAVALEIRO DE FERREIRA'S teachings, further enriches this discussion. 65 Strafgesetzbuch, 61th ed., C.H.Beck: Munich (2014), § 32, Mn. 17. 66 In annotation to § 32 StGB (see SCHÖNKE/SCHRÖDER, Strafgesetzbuch, 26th ed., C.H.Beck: Munich, 2001, Mn. 17); the example is also referenced by FIGUEIREDO DIAS, Direito Penal, I, p. 482. Electronic copy available at: https://ssrn.com/abstract=4692636 2626 § 2. Legal framework of self-defence response. Determining the precise moment when aggression becomes imminent, while always mindful of the specific circumstances, is critical. This evaluation aims to exclude the rationale for preemptive self-defense. As PESSOA JORGE aptly put it, the concept of immediacy is fundamentally a normative construct67. In addition to dismissing preemptive self-defence, the principle of immediacy also rules out retaliatory or vengeful self-defence. Once an injury has occurred, the injured party's recourse lies within the realm of conventional legal means, barring exceptional circumstances that warrant direct action68. It's important to recognize that while the immediacy of aggression precludes certain forms of defence, it does not negate the right to defend against ongoing, yet incomplete, acts of aggression. These situations, characterized by their persistent or prolonged nature, demand a nuanced understanding (for instance, a victim retaliating against their captor after an extended period for the purpose of escape). The key question here is: How long can we consider aggression to be current in such scenarios? A sensible approach, as synthesized by RUI ATAÍDE, would be to assess up to which point the defence can effectively terminate the ongoing aggression69. This conceptual framework subtly introduces a preventive aspect to the notion of self-defence. This facet arises from its role in safeguarding against new harms caused by protracted aggression and potential future damages linked to the imminent threat70. X. [unlawfulness] In determining the legality of an act of aggression, it is imperative that 67 Ensaio, p. 233. PESSOA JORGE highlights the importance of immediacy in the context of a state of necessity, focusing on the need to address “actual danger of damage” as stipulated in 339.1 of the Portuguese Civil Code. This immediacy criterion is crucial in evaluating the legitimacy of the defensive response. 68 Brazilian law, particularly under Article 1210, § 1 of the Brazilian Civil Code, underscores the allowance for a possessor, disturbed or dispossessed, to restore possession by their own force, provided it is done promptly. This norm further emphasizes the limitation of defence actions to what is strictly necessary for maintaining or restoring possession. OLIVEIRA ASCENSÃO interprets this as authorizing a response to an already completed violation, as discussed in O Direito (page 92, footnote 108). his principle echoes the approach of the Civil Code of 1867 (Article 486 CCse) and has been the subject of critical analysis by legal scholars such as GUILHERME MOREIRA (Instituições do Direito Civil Português. Vol. I, p. 641) and JOSÉ DIAS FERREIRA (in the Author’s annotation to CCse, Codigo Civil Annotado. Vol. I. Imprensa Nacional: Lisbon, 1870, pp. 33-34) for its potential for broad interpretation. 69 Responsabilidade Civil, p. 690, the inadequacy of the criterion of consummation in criminal law is discussed. FIGUEIREDO DIAS, exemplifies this with the case of kidnapping, where the consummation of the crime doesn’t necessarily align with the prolonged nature of the aggression (Direito Penal, I, p. 484). 70 ROXIN advocates for a general preventive purpose (general-präventive Zweck) behind the legal institute (Strafrecht AT, Vol. I, 5th ed., C.H.Beck: Munich, 2020, § 15, 2, p. 767), a view shared by PESSOA JORGE (Ensaio, p. 211). Electronic copy available at: https://ssrn.com/abstract=4692636 27 In Defence of Self-Defence the action is fundamentally unlawful, unjust, or illicit (in line with Article 337/1 of the Portuguese Civil Code, in fine). This is mirrored in criminal law, where aggression must be illegal (Article 32 of the Portuguese Criminal Code). This criterion decisively rules out the possibility of legitimate defence against an action that is itself a form of legitimate defence, essentially preventing a recursive justification. The aggression under scrutiny must aim to harm the defender’s person or property, covering a wide range of protected legal interests like life, physical integrity, freedom, honour, and property. Furthermore, the aggression must bear a minimum threshold of significance71. It does not, however, need to be the result of a culpable act. The responding party is not required to delve into the aggressor’s mindset, as this does not influence the legitimacy of the necessary response to the perceived danger. The process of establishing civil liability differentiates between objective legal disvalue (illegality) and subjective disvalue (fault). For example, according to the Portuguese Law, while children under seven years are presumed incapable of fault, this does not absolve the act’s legal disvalue (Article 488/2 of the Portuguese Civil Code). The assessment of a possessor’s good or bad faith is distinct from evaluating the infringement upon another’s rights (Article 1260/2 of the Portuguese Civil Code). Furthermore, the frameworks for presumptive delitual fault (Articles 491, 492/1, and 493/1 and 2 of the Portuguese Civil Code) and exculpation reasons underscore the need to distinguish these concepts72, recognizing the unlawfulness of a potential offender’s actions independently of establishing fault. XI. As such, the principle of self-defence is applicable even against individuals who cannot be held legally responsible, whether due to permanent conditions or temporary states (such as minors, adults under guardianship, or intoxicated individuals who lack culpability in the relevant situation). Similarly, self-defence is permissible against agents who act without fault due to specific circumstances (like those under mistake or coercion), albeit with the caveat that the defender's response must be appropriately tailored to these 71 The legal framework generally does not recognize the defence of trivial matters (bloße Bagatelle), particularly when the injury or risk thereof fails to meet a basic threshold of harm. FRANK EBERT, Grundlagen des Selbstverteidigungsrechts, p. 15, elaborates on this principle, emphasizing the need for a certain degree of seriousness in the harm or threat to justify a defence. A notable case highlighted by DEUTSCH/AHRENS illustrates this point vividly (LG Berlin, NJW 1978, 2243). In this instance, it was deemed unjustifiable to attack a smoker in a non-smoking zone as a form of legitimate defence (Deliktsrecht, 6th ed., Vhalen: Munich, 2014, p. 44). In Portuguese jurisprudence, the interpretation of this requirement has been subject to debate. The Coimbra Court of Appeal, in its judgment of September 17, 2013, ruled that an offense to honour, such as beard-pulling, did not justify a response under legitimate defence. This decision, critiqued by MENEZES CORDEIRO (see his annotation to article 337 of the Portuguese Civil Code, Código Civil comentado, I, p. 960), reflects the complexities involved in determining what constitutes sufficient harm or threat to warrant a defensive action. 72 See our Concurso pp. 316-319. Electronic copy available at: https://ssrn.com/abstract=4692636 2828 § 2. Legal framework of self-defence nuances73. The necessity for such tailored defence is also apparent in scenarios involving overlapping familial obligations, such as those between spouses or parents and children (as per Articles 1672 and 1874 of the Portuguese Civil Code)74. While these relationships do not preclude defensive actions (considering their unique position within responsibility models), the knowledge of the aggressor’s potential threat and the unique dynamics of the defensive response demand careful consideration75. This acknowledgment underscores the complexity of applying self-defence in contexts laden with personal and relational intricacies. 2.3.2. Defence XII. The second boundary in the realm of self-defence relates to the defender's reaction to the aggression (echoing the third tenet of Roman Law, circa modum). The legislator stops short of defining defence explicitly, though it can pragmatically be categorized into two types: a passive, protective defence (Schutzwehr) and an active defence, which actively confronts the aggressor (Trutzwehr), involving a counterattack by the defender. The key distinction lies in the presence or absence of injury to another’s interests, specifically the aggressors. The law, in justifying the defender’s actions, particularly emphasizes active defence, which entails harming the interests from which the aggression emanated. This focus makes sense as passive defence, by its nature, does not constitute a legal wrong requiring justification. 73 Furthermore, GEORGE P. FLETCHER, in Punishment and Self-Defense (page 209, note 20) and Rethinking Criminal Law (1978, pages 866-888), explores the possibility of legitimate defence serving as an excuse beyond the scenarios of error and excess. In the Portuguese legal discourse, PESSOA JORGE notably challenges the legitimacy of defending against unimputable individuals (Ensaio, p. 235). The Professor argues that the aggressor's action must contain an element of culpability for the defence to be considered legitimate. This interpretation clarifies certain dilemmas, such as the inadmissibility of legitimate defence in cases of provoked aggression, where the provocateur does not act with culpability. However, it also raises further complexities that merit deeper analysis. 74 A defender is typically expected to be cognizant of various factors that influence the gravity of the threat and the appropriateness of defensive measures. This understanding encompasses the ability to assess the aggression's danger and choose the least harmful means of defence. Yet, even when maintaining this duty of care, an aggressor may sometimes be regarded as an ordinary third party, such as in scenarios involving estranged spouses or absent parents. These instances, however, do not form the core of our discussion, which instead focuses on situations demanding a more cautious defensive approach. This principle appears self-evident in social interactions, but the intricacies lie in understanding how special legally relevant ties of solidarity, a concept articulated by FIGUEIREDO DIAS (Direito Penal, I, p. 503) might necessitate a fundamental shift in the dogmatic framing of legitimate defence. 75 These considerations are further elaborated in our article A tutela indemnizatória no contexto familiar, Revista da Faculdade de Direito da Universidade de Lisboa, Year LXII, 2022, n. 2, pp. 93-128 (maxime 127-128). Electronic copy available at: https://ssrn.com/abstract=4692636 29 In Defence of Self-Defence However, this action must itself constitute an aggression, though ultimately justifiable. PEDRO MÚRIAS’ proposed terminology for this mechanism is noteworthy: offensive coercion, aimed at forcefully but justifiably altering a third party's behaviour, primarily to halt or prevent their aggression76. Central to both approaches is balancing the interests of the defender and the aggressor, both in choosing necessary means (a static moment) and in their application (a dynamic moment, which must not be disproportionate). Should either of these interrelated criteria fail, the defence is deemed excessive and, barring instances of nonculpable panic or fear by the agent, illegitimate. The underpinnings of this concept blend ethical-social and intrinsic legal considerations, including the prohibition against right abuse, constitutional limits on excess, and the mandates of natural law. Each of these elements warrants a closer look. d) The necessity of the defence XIII. The principle that defence must be necessary (erforderlich) is twofold. Firstly, it dictates that normal protective measures are impractical or unavailable77. Secondly, the chosen method of defence must be inherently reasonable for the given situation. It is this latter aspect we shall explore further. The assessment of this necessity is influenced by the nature and gravity of the initiating aggression. The goal is to ensure a minimal but adequate match between the defender's reaction and the requirement to either prevent the imminent threat or halt the ongoing aggression. The traditional notion of “parity of arms” (paritas armorum) has been supplanted. The necessity of the chosen response is now gauged by the harm inflicted or potentially inflicted, not by the aggressor's specific means. This shift has practical ramifications. For instance, a physically weaker or older defender may justifiably employ more severe defensive measures than a physically capable or 76 PEDRO MÚRIAS, Coacção em sentido amplo, published in the Liber Amicorum of José de Sousa e Brito" to commemorate his 70th anniversary, offers an extensive analysis of coercion within a broad legal and philosophical context, Almedina: Coimbra, 2009, pp. 681-722 (especially page 692 and footnote 25). 77 PESSOA JORGE in his legal discourse, acknowledges the use of state-controlled coercive organs, such as security forces, as a form of defensive action. This viewpoint aligns with that of MARIA DA GRAÇA TRIGO, as indicated in her annotation to Article 337 of the Portuguese Civil Code (Comentário ao Código Civil, Parte Geral, p. 799). However, this interpretation raises questions about the nature of defence in the context of self-help and private justice. Specifically, the reliance on state mechanisms, such as law enforcement agencies, introduces an external element that challenges traditional notions of self-defence. This approach suggests a departure from the usual understanding of self-help, which typically involves individuals taking actions on their own behalf, rather than resorting to state interventions. Electronic copy available at: https://ssrn.com/abstract=4692636 3030 § 2. Legal framework of self-defence experienced person facing the same level of threat. Challenges often emerge in determining the appropriateness of the means to the intended goal, such as weighing a less harmful option against one that might more effectively cease the aggression. This judgment hinges on the immediate circumstances, including the defender's understanding of the available options and their potential outcomes78. In cases of legitimate doubt over the choice of means, especially when considering the proportionality of interests involved, any means deemed necessary, including the more severe, is justified. The agent should not risk the uncertainty of the effectiveness of their defence in favour of the aggressor's interests79. Thus, the responsibility for the risk of ineffective defence falls on the aggressor, legitimizing the defender's use of more severe means80. However, if the defender has several equally suitable means available to avert the injury, they should not choose the most harmful one, especially if it entails greater harm to the aggressor. The scope of legitimate defence is not absolute, and choosing a more harmful alternative when less harmful ones are available constitutes, in itself, a new injury. Two pivotal areas within the necessity requirement have been sources of significant debate. One involves the acceptability of using violent means of defence when there is a possibility of fleeing or evading the aggressor. The other concerns the determination of criteria for selecting specific defensive means over others. Let’s address each of these issues separately. 78 In legal defences, the non-culpable ignorance of less harmful defence methods, or an increase in damage caused by unforeseen events or force majeure, is a risk that falls on the aggressor. This principle is affirmed by PESSOA JORGE, Ensaio, pp. 247-248, footnote 221, emphasizing that such defences are still considered legitimate even under these circumstances. 79 PESSOA JORGE further notes that the necessity of defence typically centres on the aggressor's interests, as it is their legal sphere that is impacted by the defensive actions (Ensaio, p. 242). However, he suggests that the defender should not be compelled to choose less harmful actions at the expense of a third party's interests (ibidem, page 261). This view asserts that the evaluation of interest is crucial in determining the necessity of action but does not necessarily justify the defensive conduct. The interests of a third party or the defender take precedence over those of the aggressor, confirming the diminished protection afforded to the aggressor's interests. The decision on whether to act out of necessity or legitimate defence also involves considering the risks borne by the aggressor. These include the defender's non-culpable ignorance of less harmful means, the fortuitous aggravation of damage caused by the defence, and the defender's absence of responsibility for excess or error if a cause of excuse is verified. Thus, it is argued that the defender, when in doubt about the defence’s efficacy and the severity of the injury caused, should opt for the most effective and least harmful means. However, whether the most effective yet more harmful means should be prioritized over a less effective and less harmful one is subject to debate. The deciding factor, in this case, is who bears the risk of injury. The conclusion reached is that this risk should be borne by the aggressor, justifying the defender's use of more harmful but effective means. 80 RUI ATAÍDE reinforces this perspective, arguing that the evaluation of defensive conduct must consider the specific characteristics of the person acting in defence. These individual attributes significantly influence the expected behaviour in such situations, thereby shaping the legal assessment of legitimate defense (Direito das Obrigações, I, p. 372). Electronic copy available at: https://ssrn.com/abstract=4692636 31 In Defence of Self-Defence Firstly, the Portuguese Supreme Court of Justice (STJ) has determined that it’s unreasonable to expect a “humiliating flight” from a defender, except in cases involving an unaccountable aggressor 81 . This stance is well-founded. Such an expectation to flee or hide, reminiscent of earlier stages in the conceptualization of legitimate defence, was intertwined with moral considerations. It was a time when defence was excused due to the agent’s “lack of will,” with the inability to flee further proving this lack of choice82. However, as legal reasoning evolved towards a balance of interests and shifted from exculpating to justifying the act’s illegality, this outdated and dishonourable expectation was abandoned. É Therefore, the adequacy of a defence is primarily assessed against this modern standard. Insisting on flight can, depending on the circumstances, infringe upon other interests, such as the defender's honour or self-respect – as well as according to MENEZES CORDEIRO the right to stay83. Moreover, it could potentially worsen the defender’s options for protection (for instance, if retreating to an isolated area where no help is available). In these instances, the obligation to flee is rightfully rejected. However, this does not mean that inaction84 or a simple retreat, particularly when dealing with unaccountable aggressors (like minors or legally incapacitated adults), isn’t a suitable response. The same principle of restraint in defensive means should apply in cases of (negligent) provocation of legitimate defence85, depending on the case's specifics and the evaluation of the situation ex ante, without compelling the defender to forfeit their dignity in response to the illegal act. The discussion in German legal circles also revolves around whether the defender should seek third-party assistance, prioritizing it over their own means, especially when such help is a milder defensive option. This topic remains contentious. RENÉ SENGBUSCH draws a crucial distinction between private assistance (like that from family or friends), which is not mandatory, and assistance from “sovereign” helpers (hoheitlich; particularly public security forces). Given the State’s monopoly, this could imply, under the first facet of necessity (i.e., the impossibility of resorting to normal 81 The judicial decision from July 19, 2006, accessible at www.dgsi.pt, engages deeply with the complexities of legitimate defence. This case brings to the fore JEHRING'S forceful opposition, as articulated in Der Kampf um’s Recht (Propylaen, 1872, p. 149), to the notion that avoiding confrontation with injustice (described as cowardly flight) could be mandated as a legal obligation in self-defence contexts. This perspective is echoed by VAZ SERRA (Causas Justificativas do Facto Danoso, p. 64) and PESSOA JORGE (Ensaio, p. 240), who uphold the principle of active defence over passive avoidance. FIGUEIREDO DIAS advocates for preserving the institute's role in general prevention, arguing against yielding to the law of the strongest (Direito Penal, I, 491). 82 GEORGE P. FLETCHER, Rethinking Criminal Law, pp. 856-857. 83 Annotation to the article 337 of the Portuguese Civil Code, Código Civil comentado, I, p. 960 (footnote 27). 84 In the realm of civil law, complexities arise in defining the threshold for tolerating intolerable behaviour, particularly in family contexts involving minors. PAULO MOTA PINTO'S research, particularly in PAULO MOTA PINTO (Nota sobre o “imperativo de tolerância” e seus limites, Direitos de Personalidade e Direitos Fundamentais. Estudos, Gestlegal: Coimbra, 2018, pp. 185-222; maxime 213-215) provides an unparalleled analysis of the boundaries of tolerance and the rights to self-defence and self-preservation. The German Federal Court of Justice (BGH), in its February 12, 2003, decision (NJW 2003, 1955), discusses the nuanced application of legitimate defence in cases involving minors, suggesting a more restrained approach. 85 This perspective is supported by DAMM'S commentary on § 227 BGB, Reihe Alternativkommentare BGB, Vol. I, Luchterhand, 1987, Mn. 24, p. 901. Intentional provocation (Absichtsprovokation) typically negates the legitimacy of defensive actions. See, infra, 2.5, II. Electronic copy available at: https://ssrn.com/abstract=4692636 3232 § 2. Legal framework of self-defence protective measures), a duty to seek specific assistance 86. Lastly, regarding the necessity of the means, it’s often asserted that the agent should choose the least harmful means available to the aggressor. The other options are therefore unnecessary. As MARIA GRAÇA TRIGO points out, the criterion is not the type of the defensive mean, but the likely outcome of its use87. However, it’s important to note that this requirement should not conflict with the defender’s confidence in the effectiveness of the chosen means to prevent or stop the aggression. Nor should the chosen means be deemed unnecessary if it was the only one available. The balancing of interests is clear: between the uncertainty of a less harmful means and the assurance that a more severe one will immediately and definitively end the threat, the agent may legitimately choose the latter 88. However, there are legal limitations, particularly regarding the use of firearms in Portugal, which the legislator has deemed a last resort. A crucial point to consider in selecting the necessary means of defence is that this decision is far from a mere abstract choice. It involves not only picking an appropriate tool but also considering its typical use. This usage itself can be dissected further: for instance, employing a firearm might mean shooting the aggressor, firing a warning shot, or just brandishing the weapon, whether aimed or not. Moreover, if there's a misapplication of the defensive means, initially deemed necessary, the next step is to assess the impact on the interests involved. In such scenarios, it might be determined that the defence has become excessive, particularly if the means were deployed in a clearly disproportionate way. This aspect of self-defence is critical and merits deeper examination in the context of balancing the necessity and proportionality of defensive actions. e) Absence of manifest disproportionality XIV. A crucial aspect in our legal system is the absence of any legal stipulation for a (purported) requirement of proportionality. This stance mirrors practices in similar legal systems, like Germany, where there is a clear rejection of a proportionality requirement 86 RENÉ SENGBUSCH'S work (Die Subsidiaritãt der Notwehr. Zum Verhãltnis von eigenhãndiger Verteidigung und der Abwehr eines Angriffs durch staatliche oder private Helfer, SR, Vol. 194, Duncker & Humblot: Berlin, 2008) contributes to this discourse by examining the interplay between personal defense and the involvement of state or private assistance. 87 MARIA DA GRAÇA TRIGO annotation to the article 337 of the Portuguese Civil Code (Comentário ao Código Civil, Parte Geral, p. 799). 88 The German Federal Court of Justice has made notable decisions in this area. Specifically, the BGH rulings from 1991 (NJW 1991, 503) and 2008 (NJW 2008, 571) stand out as key examples of judicial interpretation and application of the principles of legitimate defence. Electronic copy available at: https://ssrn.com/abstract=4692636 33 In Defence of Self-Defence (Verhältnismäßigkeit) in the realm of necessary defense (Notwehr; § 227 BGB)89. Historically, this position has deep roots. For instance, in the initial ministerial revision of Portugal's Civil Code in 1961, it was suggested that damages resulting from an act of defence should not be «excessively greater than the aggression aimed to be prevented». This phrasing, however, was omitted in the subsequent 1965 revision and was notably replaced by the term manifestly, indicating a significant shift in interpretation. Earlier, nineteenth-century legislation mandated that defence should not surpass «just defence limits». (2367 CCse). Guilherme Moreira, a legal scholar of that era, advocated for the use of a «rational means» of defence90. However, there was no explicit emphasis on proportionality. Additionally, in Criminal Law, the erstwhile mention of a proportionality requirement in defence was rendered obsolete with the 1982 Penal Code. Therefore, historically and within our legal framework, the argument doesn't support a different understanding of proportionality in defence. There is, undoubtedly, an effort to avoid a drastic imbalance between the severity of unjust aggression and the consequences of the defensive response. Legislators emphasize that there shouldn’t be a clear disproportion between the damage caused by the defensive act and that caused (or would be caused) by the aggression. s this criterion, which bans manifest disproportionality, the same as requiring proportionality in the act? The answer is a resounding no. As explained by PIRES DE LIMA and ANTUNES VARELA, the first allows for certain disparities, whereas the latter permits none91. Implementing this criterion means moving beyond a mere comparison of interests between the defender and the aggressor. The concept of proportionality, which we reject, inherently implies such a comparison, akin to choosing between lesser evils92; For example, if a fruit thief only threatens a landowner's property, it wouldn't justify the landowner physically harming the thief. This simple comparison fails to consider a vital factor: the aggressor's interests are compromised by their own illegal act. The defender’s personal risk cannot be gauged by the aggressor’s interests. To do so would perpetuate fundamental unfairness, essentially imposing a duty to acquiesce to the illegal act under some guise of proportionality. Instead, the existing criterion suggests that a defender may 89 Further, the BGH ruling from 1991 (NJW 1991, 503) is particularly significant in jurisprudence, setting a precedent and influencing subsequent legal interpretations. 90 See GUILHERME MOREIRA, Instituições do Direito Civil Português, Vol. I, p. 642. 91 See the annotation to article 337 of the Portuguese Civil Code by PIRES DE LIMA e ANTUNES VARELA, Código Civil anotado, I, p. 302. ALMEIDA COSTA (Direito das Obrigações, p. 572) and MIGUEL NOGUEIRA DE BRITO (Introdução ao Estudo do Direito, 2nd ed., AAFDL: Lisbon, 2021, p. 478), align with this view. This approach was originally proposed by VAZ SERRA in the draft of the Portuguese Civil Code (Causas Justificativas, pp. 110-111), but was not preserved in either the first or second Ministerial Review, as we have observed. CONCEIÇÃO VALDÁGUA, in an exemplary discourse on the etymological significance of these concepts, reaches a similar conclusion (Aspetos da legítima defesa no Código Penal e no Código Civil, Separata da Revista da Faculdade de Direito, AAFDL: Lisbon, 1990, pp. 11-13); see also, TERESA QUINTELA DE BRITO, O direito de necessidade e a legítima defesa no código civil e no código penal: uma perspectiva de unidade da justificação, Lex: Lisbon, 1994. 92 Such comparisons are fundamentally talionic, positing an equivalence of harms – a notion articulated by Oliveira Ascensão in O Direito, p. 90 – and are, therefore, fundamentally flawed. Electronic copy available at: https://ssrn.com/abstract=4692636 3434 § 2. Legal framework of self-defence physically restrain a fruit thief, impacting a non-material legal interest, as long as the means used are not excessive relative to the aggression’s threat. This is the key limitation and the essential balance sought to avoid manifest disproportionality. PESSOA JORGE, in his interpretation, which we follow, astutely notes that legitimate defence is viable «only if the harm inflicted is less than, equal to, or greater (but not manifestly greater) than the pursued interest»93. The specifics of this metric remain somewhat ambiguous, yet they certainly have a place in our legal understanding. A key area of discussion is whether it’s permissible to sacrifice the personal assets of an aggressor for the protection of the defender’s property. The legal framework doesn't outright reject this notion94. This consideration becomes more complex when comparing similar assets, whether personal for both the aggressor and defender (even if to varying degrees, like a woman defending herself against an assailant) or material (such as eliminating a dangerous animal on one’s property). The differentiation in the gravity of each case, though subtle, is significant. For instance, using physical force to remove an intruder from one's home is generally acceptable, but it's clearly excessive, as highlighted by FRANK EBERT, to shoot a neighbour’s child for taking fruit from a tree. While both scenarios involve defending property, the ethical and legal distance between them is vast. In legal traditions of the Romano-Germanic family, what were once liberal approaches have progressively evolved to weigh the aggressor’s interests more heavily. Historical cases illustrate this Shift: the 1920 German Supreme Court decision (known as Kirschbaumfall) o Supremo Tribunal Alemão (Reichsgericht) permitting the shooting of a fleeing cherry thief95; and the 1949 Stuttgart Higher Regional Court’s ruling, which declared shooting penny thieves as a gross violation of natural 93 Ensaio, p. 216. The prevailing doctrinal trend echoes these sentiments. As expounded earlier, notable contributions include ANA PRATA's discerning annotation to Article 337 of the Portuguese Civil Code (Código Civil anotado, p. 414), particularly focusing on the inherent challenges in accurately evaluating the threatened values, whether personal or property, in distinct circumstances. In contrast, MARIA DA GRAÇA TRIGO, in her commentary on Article 337 of the Portuguese Civil Code (Comentário ao Código Civil, Parte Geral, p. 799), articulates a counterpoint, rejecting the notion of sacrificing personal goods for the safeguarding of property. A conceivable alternative approach would be for legislators to specify, in a non-exhaustive list, particular scenarios for consideration. This approach mirrors the strategy employed in the Chinese Penal Code, where, as per Article 20, Section 4, actions against offenses such as theft, murder, robbery, rape, kidnapping, or any other violent crime that gravely endangers personal safety, are permissible to the extent of causing injury or death to the aggressor. Nonetheless, this framework does not resolve the axiological complexities inherent in addressing cases not specifically enumerated, namely, in identifying a unifying principle applicable to various unforeseen but equally pertinent situations. Furthermore, from a criminal policy perspective, this model, as adopted in China, has encountered issues. In September 2020, a joint directive from the Supreme People's Court, the People's Procuratorate, and the Ministry of Public Security of China was released, offering a guiding perspective on the lawful enactment of the self-defence mechanism, aiming to systematize its application. 95 Refer also to the decision dated 20-Sep-1920 (I, 384/20); RGSt 55, 82. 94 Electronic copy available at: https://ssrn.com/abstract=4692636 35 In Defence of Self-Defence law96. Yet, a critical aspect frequently overlooked is the absence of a proportionality requirement in the existing legal system. Both in civil and criminal liability contexts, a contrasting approach that seeks to differentiate between types of assets involved in a conflict (whether they are material or personal) is not tenable97. Our stance is that the purpose of the defence crucially influences the normative assessment of the absence of manifest disproportionality. The focus should not be on the interests harmed by the defensive action (thus not addressing its illegality), but on the outcomes of that action (namely, the harm caused and averted). Consequently, the 96 See the OLG Stuttgart ruling dated 21 April 1948, 1 Ss 30/48, as detailed in HAFERKAMP'S annotation to § 277 BGB in HKK-BGB, p. 1062 ff. 97 A particularly notable and influential interpretation, with certain adjustments, is offered by FERNANDA PALMA; her profound insights are elaborated in A justificação por legítima defesa como problema de delimitação de direitos, I, AAFDL: Lisbon, 1990, maxime p. 243 ff. Palma argues for the essential distinction between two categories of legal goods, based on whether they represent human dignity. She contends that an assault on the latter category could never justify a defence that impairs goods of the former, advocating for a principle of 'qualitative proportionality' in defence measures. With due deference, while this approach is commendable in its intent, it presents practical challenges, particularly in civil law. By inherently ranking the legal goods at stake, it simplifies the evaluation of responsibility in situations of aggression and defence, focusing narrowly on the affected interests. It's important to note that defensive actions are not limited to specific legal goods or groups thereof, and fundamentally, they do not aim to protect the aggressor's interests. Their primary goal is to negate the illegality of the act, irrespective of the resultant damage. Furthermore, imposing such a restriction risks making the guard against excessive selfdefence the norm, severely limiting legitimate defensive actions. This was never the intention. More critically, this perspective neglects the distinction between objective devaluation and actual harm—a distinction prevalent in civil law, and equally pertinent in criminal law. Consider scenarios where harm to personal (or non-material) legal goods leads to purely material damages (for instance, an aggressor incurring hospital expenses due to physical confrontation) or the reverse (such as the destruction of an item with sentimental value causing significant emotional distress to the defender). It's crucial to discern whether the affected set of goods pertains to the injury, or the material loss incurred. It would be highly problematic if, for instance, someone facing an intruder in their home at night, with their young children present, had to first determine the intruder's motives to justify ejecting them, as if the legitimacy of their defence hinged on whether it would harm a qualitatively higher good of the aggressor, particularly in scenarios where the aggressor's intention might be to steal items of minor value. This approach effectively erects an (apparent) “Berlin Wall” between the proposed categories of legal goods. Additionally, the criticisms levied by FIGUEIREDO DIAS, particularly his objection to the undue parity assigned to the positions of the aggressor and defender, remain compelling and unresolved (Direito Penal, I, p. 476). In the sphere of criminal law, perspectives that lean towards more measured outcomes, in our assessment, are epitomized by the works of TAIPA DE CARVALHO and TERESA QUINTELA DE BRITO. Their intellectual frameworks fundamentally discard the notion of categorizing the legal goods at stake from the onset (A legítima defesa. Da fundamentação teorético-normativa e preventivo-geral e especial à redefinição dogmática, Coimbra Editora: Coimbra, 1994; O direito de necessidade e a legítima defesa..., Lex: Lisbon, 1994, respectively). A comprehensive understanding of this viewpoint was earlier articulated by CAVALEIRO DE FERREIRA (Direito Penal Português, I, Verbo: Viseu, 1982, pp. 326-327) and is echoed in the recent work of FIGUEIREDO DIAS (Direito Penal, I, pp. 474 e ss.). Electronic copy available at: https://ssrn.com/abstract=4692636 3636 § 2. Legal framework of self-defence damage inflicted becomes the central point of reference98. XV. At the heart of legitimate defence lies a critical balancing of interests between the defender and the aggressor, necessitating a tangible application. This process occurs abstractly, using the incurred damages as a reference point. However, this approach isn’t the only one utilized. In various legal systems, additional factors are considered, modifying the evaluative frameworks of such judgments. These include considerations related to the aggressor's identity or the spatial-temporal context of the incident. For instance, the value judgment differs if an assault occurs in a public space during the day versus within one’s home at night. This consideration should transcend just the exoneration circumstances (like excess and error) and impact the overall assessment of the conduct's objective disvalue. In Common Law jurisdictions, the doctrine of necessity stands at the forefront of the legal framework governing legitimate defence. This doctrine is frequently augmented by principles of reasonableness and proportionality, offering a more nuanced approach to assessing defensive actions99. This nuanced approach, however, doesn't inherently favour the aggressor. Instead, it introduces a balance through additional doctrines and considerations, ensuring that the defender's actions are scrutinized for their appropriateness and necessity in each unique situation. One of the most striking examples of these additional doctrines is the castle doctrine. Rooted in the principle that one's home is their sanctuary (or castle), this doctrine traditionally allowed for extreme defensive measures, including lethal force, to protect one's domicile from intrusion or aggression. This principle initially established that a person should not be disturbed or threatened within the sanctity of their home, justifying even the most severe responses to perceived threats. However, the 'castle doctrine' underwent a significant expansion with the introduction of stand your ground laws, first enacted in Florida in 2005 and subsequently adopted by numerous other States. These laws marked a pivotal shift in the understanding of legitimate defence by extending the right to use deadly force beyond the confines of one's home. Under stand your ground, a person is permitted to use lethal force in defence not only within their home but also in any other place where they have a legal right to be and witness an aggression (personal, against their life or physical integrity, or of a third party) or property (a “forcible felony” at least). Sir EDWARD COKE’s maxim that «no man shall give way to a thief, etc., neither shall he forfeit anything», spread across the United States. However, 98 In this regard, MAFALDA MIRANDA BARBOSA centres her analysis on the contrast between the «damage inflicted and that which is sought to be prevented» (Lições, p. 211). This approach aligns with the principles under the preceding Civil Code (Article 2370 CCSe), which referred to “present damage” and “imminent damage”. Notably, there was a time when the discourse revolved around the existence of selfdefence solely for property-related reasons, a concept that is now widely accepted. This focal point of “damage caused versus damage averted” is similarly applicable in contexts of acting out of necessity (Article 339/1 of the Portuguese Civil Code; concerning “manifestly superior damage”). 99 GEORGE P. FLETCHER (in Rethinking Criminal Law, page 859, note 15), with references, discusses nuanced views on this topic. Electronic copy available at: https://ssrn.com/abstract=4692636 37 In Defence of Self-Defence these laws have sparked considerable debate and controversy. Critics argue that they can lead to unjust outcomes and potentially escalate violent confrontations100. Proponents, on the other hand, see them as vital for ensuring individuals' rights to protect themselves and their families. Romano-Germanic family countries hesitate to explicitly enshrine these factors. In a similar vein, in France, an act is presumed to be in legitimate defence if it is «to repel at night the entry by breaking and entering, violence, or cunning into an inhabited place» (Article 122.6, 1 of the French Penal Code). 2.4. Subjective and objective disturbances in defensive dynamics: error and excess I. Navigating the complexities of legitimate defence, the defender often faces considerable challenges in precisely evaluating the nature of the aggression they are confronting. Identifying whether the aggression targets their personal safety or property, and understanding its full scope, is fraught with uncertainty. The intent and severity of the aggression are, in most cases, ambiguous and can evolve dynamically (similarly, the aggressor's intentions may shift – for example, a burglar surprised by the homeowner might defensively react against them, even if such a response was not initially intended, or the defensive actions might inadvertently intensify the aggression). This situation does not translate to redefining the assessment of responsibility based on the agent's character, their indecisiveness, or inability to predict outcomes – a notion of “agent's civil responsibility” 101 in this context is fundamentally flawed and should be outright dismissed. Instead, it's the defender's state of mind that becomes a 100 The United States maintains its position at the forefront of liberal interpretations regarding justifications for actions. Tied intricately to its Constitutional framework and historical ethos, self-defence, stands as a pivotal response to unlawful acts. However, even within this liberal dominion, American jurisprudence acknowledges forces gravitating towards an eased justification of conduct: the individualistic, liberal stance, rooted in the philosophies of LOCKE and KANT, as FLETCHER notes in A Crime of Self-Defence (page 33), contrasts with the social theory. This divergence is vividly illustrated in the renowned case of People vs. Ceballes (1974), where self-defense was denied to an individual protecting property from burglary on vacation, encapsulating the principle that «[k]illing or use of deadly force to prevent a felony is justified only if the offense is a forcible and atrocious crime». Tracing back to the early liberal view, now predominant, we encounter WILLIAM BLACKSTONE's emphasis on reason: the conduct of a 'reasonable man' in the face of personal or property threats was invariably justified. This stance, BLACKSTONE posited, was aligned with a fundamental law of nature, impervious to societal law's influence. Yet, this reliance on personal judgment, devoid of contextual consideration (i.e., the manner of action), inadvertently births an inherent justification for actions by those deemed 'reasonable', a stance potentially fraught with injustice. FLETCHER articulates this concern: «[a]cting reasonably does not require being right. A reasonable person can be wrong» (A Crime of SelfDefence, page 41). 101 This leads us to another intricate debate: the significance of a state of mind that is discordant yet justified under the circumstances. Several scholars assert that legitimate defence necessitates not only the fulfilment of listed objective criteria but also the presence of an intent aligned with such justification. Our perspective on this intricate issue has been delineated earlier in the text. Electronic copy available at: https://ssrn.com/abstract=4692636 3838 § 2. Legal framework of self-defence pivotal factor, playing an instrumental role in either excluding or attenuating their responsibility. The legislative approach in this domain is notably sophisticated. Essentially, it boils down to two scenarios: either (i) the agent is entirely oblivious to the criteria of legitimate defence, both in terms of its existence and its scope, or (ii) the agent is aware of these criteria, but their response exceeds the necessary bounds, either in the means deployed or in terms of the offended interest. In the first scenario (i), we encounter a situation of error, relating to either the presence or the type of aggression, typically fact-based102. In such instances, the defence is termed “putative”, implying a defence based on mistaken belief or perception. Take, for instance, an agent who mistakenly believes they are the target of an attack and responds to what they perceive as an imminent threat. From the standpoint of assessing the conduct's disvalue, their reaction mirrors that of an agent facing a real threat, except for the crucial distinction that the perceived aggression is non-existent. This mental state, ostensibly supported by the law, necessitates a recalibration in the legal response, moving beyond simply denying the presence of a justifiable cause. The agent’s belief in the existence of objective elements calls for acknowledgment within the framework governing discrepancies between reality and perception: hence, the relevance of the error regime. However, it's crucial to understand that not all errors carry equal weight in this context. The onus is on the agent to demonstrate that their error was not intentional and that their response aligns with the general objective standards of legitimate defence. As highlighted by MARIA FERNANDA PALMA, it would be inappropriate for an agent acting under a misapprehension to receive more favourable treatment than one who is not, especially concerning the justifiability of their actions 103. In essence, actions taken under a misperception must still adhere to the principles of necessity and avoid manifest disproportionality to the erroneously perceived threat. If the agent's conduct, even in an imagined scenario of error, would not be justifiable, then their error should not absolve them of responsibility. If the defender's error is deemed excusable, they are not held civilly accountable for the resulting damages (that is, they are not required to provide compensation), as their actions are justified under Article 338 of the Portuguese Civil Code In the scenario where the defence is excessive (ii), the agent did not accurately assess the repercussions of their defensive actions. The excess relates solely to the response, as the agent is aware of the prerequisites on which their action depends. 102 The possibility of a legal error in this domain, although less common, is recognized. For a detailed perspective, consult ANA PRATA'S annotation to Article 337 of the Portuguese Civil Code (Código Civil anotado, p. 415). 103 MARIA FERNANDA PALMA delves into the complexities of the error's relevance within the context of justifying causes for illegality (Direito Penal. Teoria Geral da Infração, 5th ed., § 12, pp. 413-420). Electronic copy available at: https://ssrn.com/abstract=4692636 39 In Defence of Self-Defence However, when the response exceeds the bounds of reasonableness – either because the means chosen were unnecessary or due to the manifest disproportion between the harm inflicted and the interest protected104 –, an excess occurs. If this excess stems from a non-culpable disturbance or error, the act is still deemed justifiable (337/2 of the Portuguese Civil Code). It's important to emphasize that this exemption from liability hinges on two key conditions: the action must conform to the principles of legitimate defence, and the excess must be excusable. Meeting these criteria, or these dual requirements, means that the excess negates culpability (though not the illegality of the act105) in the defender's actions (Article 337/2 of the Portuguese Civil Code). The law specifies the conditions under which excess is excusable: it must arise from a non-culpable disturbance or fear experienced by the agent. The evaluation of this is based on the general standards of fault assessment, guided by the concept of the good family father (bonus pater familias; Article 487/2 of the Portuguese Civil Code – a standard recently redefined in France as reasonableness (raisonnable)106/107. This rationale is fitting, as excess in defence does not exist in a vacuum. It stems from a fundamental injustice – the initial aggression – and consequently, the aggressor is inevitably exposed to any excess that results from the defender’s non-culpable disturbance108. In essence, the perceptual challenges faced by a defender only hold significance within specific parameters: they are relevant as errors in understanding the nature of the aggression and as indicators of a lack of culpability in cases of excessive defence. These elements can indeed intersect. For example, a defender might erroneously believe that an aggressor intends physical harm, 104 See, PESSOA JORGE, Ensaio, p. 245. While the defender bears the responsibility of substantiating the fundamental elements of self-defence (as per Article 342/2 of the Portuguese Civil Code), the onus of proving any excess in the defence rests with the aggressor. This principle finds parallel application in German law, as elucidated by FUCHS in his commentary on § 227 BGB, NomosKommentar BGB, AT, Vol. I, 4th ed., Nomos: Baden-Baden, 2021 Mn. 29, p. 1790. 105 The prevailing interpretation, however, is not without its dissenters. Some contend that excessive action also negates the illegality of the act. In alignment with the view expressed in text, within our legal community, are the insights of MARIA DA GRAÇA TRIGO (annotation to Article 337 of the Portuguese Civil Code, Comentário ao Código Civil, Parte Geral, p. 799) and ANA PRATA (annotation to Article 337 of the Portuguese Civil Code, Código Civil anotado, p. 413). 106 This amendment to the Civil Code was enacted through Article 26 of Law No. 2014-873, dated August 4th. 107 See ANA PRATA’s annotation to Article 337 of the Portuguese Civil Code (Código Civil anotado, p. 414). 108 It's important to note that this interpretation is not universally accepted. Section 231 of the German Civil Code (BGB) posits that the absence of fault, specifically negligence, in a direct action (Selbsthilfe) does not preclude the obligation to provide compensation. Electronic copy available at: https://ssrn.com/abstract=4692636 4040 § 2. Legal framework of self-defence when the aggressor’s actual objective is the defender’s property. This misinterpretation constitutes an error. Concurrently, the defender might respond more forcefully than necessary. This scenario presents a combination of error and excess, calling for the application of Articles 338 and 337/2 of the Portuguese Civil Code. II. As these situations relate to the subjective disvalue (or fault) of the defensive act, the actions remain unlawful in both cases109. Consequently, the initially aggressive party, now the defender, is entitled to engage in legitimate defence against the mistaken or excessive defence. The legal framework specifically addresses such abusive conduct, rendering the appeal to the concept of right abuse as an external limit to legitimate defence inappropriate. This is particularly the case in actions of necessity, where the agent is always responsible for lawful acts, as per Article 339/2 of the Portuguese Civil Code, regardless of whether the action was made in error110. PESSOA JORGE’S unique framework, which he depicted graphically, merges the interests of the defender with those affected by the defensive measures to pinpoint cases of excessive defence111. His analysis leads to the notion that there can be a form of legitimate excess in defence, particularly when the defender’s interests are of a higher order than those of the aggressor, but the means employed are more injurious. This proposition, however, raises some doubts, primarily because the principles of necessity (which dictate the selection of the least harmful means) and the absence of disproportionality (in terms of interests involved) are, in our understanding, requirements that should be met concurrently112. Moreover, with due respect to JORGE’s model, it seems to overlook several critical aspects: (i) the parity in the interests being pursued by both the defence and the aggression, (ii) the need for an absence of disproportionality, which implies a genuine inferiority of interests and penalizes any scenario where the defender's interests significantly outweigh those of the aggressor, 109 For a more comprehensive understanding, refer to the annotations by PIRES DE LIMA and ANTUNES VARELA on Articles 337 and 338 of the Portuguese Civil Code (Código Civil anotado, I, pp. 303-304). 110 In contrast, the German legal framework adopts a different stance. Due to the lack of a statutory provision safeguarding actions of excess (analogous to the Article 337/2 of the Portuguese Civil Code), such actions are deemed abusive in German law, thereby negating the exonerative effect typically associated with the doctrine (as outlined in §§ 242, 227, (1) of the BGB). Helmut Köhler's extensive analysis provides in-depth insights into this (BGB Allgemeiner Teil, 29th ed., C.H.Beck: Munich, 2021 and in BGB AT. Ein Studienbuch, 45th ed., C.H.Beck: Munich, 2021, p. 271). 111 Ensaio, p. 245 (with further explanation on the subsequent page). 112 At this point, four distinct scenarios emerge: firstly, employing the least harmful means proportionately justifies the defence. On the contrary, it is deemed unjustified if the most harmful means are used in a manifestly disproportionate manner. Two possibilities remain. As previously noted, using the least harmful means disproportionately categorizes the defence as excessive – this is the case when the criterion of manifest disproportionality is not met. It's necessary to consider the situation where unnecessary means are used, but the harm caused is not manifestly disproportionate. In such instances, the defence would also fall under the excess regime: employing unnecessarily chosen means (for instance, pointing a firearm at a minor publicly insulting the defender) is still considered unlawful, even if it does not result in manifestly disproportionate harm. In these cases, there might be – though less likely in the given example – grounds for exculpation due to non-culpable disturbance or fear on the part of the agent (Article 337/2 of the Portuguese Civil Code). Electronic copy available at: https://ssrn.com/abstract=4692636 41 In Defence of Self-Defence and (iii) the complexity surrounding the reasonable doubt over the defensive efficacy of the chosen method, which must be evaluated ex ante, or at the moment the agent takes action113. 2.5. The effect of self-defence: justification I. Let us now transition to evaluating the legal consequences associated with the normative stipulation of the civil provision (Article 337.1 of the Portuguese Civil Code). This appears straightforward: an action legitimized under this doctrine does not impose responsibility on the actor. In other words (specifically those used by our legislator), the act of the defender is considered justified. Nothing more, nothing less. However, we can differentiate two levels, corresponding to (i) the effects and (ii) the object of justification. [i. effects of justification]. In short, describing what this nebulous term “justification” entails is arduous. AHRENS/SPICKHOFF exemplify it in a particularly intriguing phrase, as the refutation of a provisionally assumed unlawfulness (die Widerlegung einer vorlãufig angenommenen Rechtswidrigkeit)114. In the prevailing construction, this means, with reference to the prerequisites of civil liability – according to the traditional five-part division (act, unlawfulness, fault, causal link, and damage) – that it constitutes a cause for the exclusion of unlawfulness115. In summary, given the cumulative and predicative nature of these prerequisites116, this agent will not bear civil liability (principally, under the terms of Article 483.1 of the Portuguese Civil Code); however, this does not prevent another subject from bearing responsibility in their stead, particularly under objective terms (without fault) or due to a voluntary obligation. The effect of justification is, initially, limited to the exclusion of unlawfulness, although the legal norm from which this effect derives does not expressly determine it. It is a consequence of the regime's construction, situated, prima facie, in the 113 This view is explicitly supported by MENEZES CORDEIRO (annotation to Article 337 of the Portuguese Civil Code, Código Civil Comentado, I, p. 964). 114 Deliktsrecht, C.H.Beck: Munich, 2022, § 7, Mn. 34, p. 93 115 Historically, the classical paradigm of self-defence was framed under the Lex Aquilia. In this context, the iniuria (or wrongfulness) required for establishing a delict was negated, exemplified by scenarios such as one where a person kills a slave who ambushes them with intent to rob (as referenced in D. 9, 2, 4 pr.). For further insights into this perspective, ANA PRATA’s annotation to Article 337 of the Portuguese Civil Code (Código Civil anotado, p. 413). An important distinction to highlight is that, unlike in Criminal Law (Article 31/2, a) CP, under the heading «[e]xclusion of illegality»), civil law does not explicitly refer to the specific effect that the relevant norm is intended to achieve. 116 This notion is in stark contrast to the fluidity of the requirements for responsibility, a concept that we find ourselves at odds with (as discussed in our work Concurso, p. 236, footnote 658). Electronic copy available at: https://ssrn.com/abstract=4692636 4242 § 2. Legal framework of self-defence element of the objective disvalue of the conduct. In this respect, the justification of defense parallels the constitutive element of aggression: we noted that the latter need not be culpable, in the context of the responsibility of the unimputables or provoked aggression. Moreover, justification also implies – although this is less clear from the legal text – that the aggressor will see the protection of their interests diminished. II. From the defender's viewpoint, justification might also - an aspect often overlooked merely serve as a basis for exculpation. This arises in instances of excusable error or excess; however, it's contentious whether this still constitutes legitimate defence in the full sense, or merely an absence of liability (since, as observed, the act remains unlawful). This secondary level of justification is not the legislator's intention. We will delve into this aspect with more detail subsequently. At this juncture, two elements within the legitimate defence framework corroborate the aforementioned: it accounts for both the excess due to non-culpable disturbance or fear (refer to article 337/2 of the Portuguese Civil Code, concluding part) and the establishment of a putative legitimate defence due to an excusable error (article 338 of the Portuguese Civil Code, concluding part)117. n both scenarios, the legislator regards the defender's act as justified, attributable to the absence of fault. Understandably so. The resolution here, whether it pertains to excess or error concerning the prerequisites of this concept, hinges on a disruption in either the will's formation or the understanding of the typical situation, inherently related to the subjective disvalue of the conduct, namely, the fault. Nonetheless, a crucial provision is notably absent here. Is it imperative for the defender to act solely with the intent of defence, embodying an animus defendendi? Put differently, what transpires when an agent, unaware of being objectively shielded by legitimate defence, takes action? Can their assault, despite this lack of awareness, be deemed legitimate defence? One plausible response, drawing from criminal law paradigms, is the absence of objective disvalue in the agent's conduct, contrasted by a subjective disvalue rooted in intent. The agent, therefore, ought to face penalties aligning with the scenario most akin to their situation: akin to an attempted offense. Yet, this notion finds no parallel in civil law. Within the structured, sequential framework of civil liability requisites, the disvalue in the agent's conduct (thus subjective) invariably hinges on a preceding objective disvalue, typically unlawfulness. Lacking a civil transgression, regardless of the potential criminal 117 On the other hand, PESSOA JORGE presents a contrasting viewpoint, advocating that the regime for justifying excess acts serves to exclude the illegality of the defence. However, he expresses reservations about this approach and explicitly opts not to engage in a corrective interpretation of the law (Ensaio, p. 248 e ss.). Electronic copy available at: https://ssrn.com/abstract=4692636 43 In Defence of Self-Defence significance of the act, the incidental defender bears no obligation to indemnify for damages incurred. It is a fundamental principle of our responsibility model that liability isn't solely contingent on the critique of the agent's character. Objective and subjective assessments must be jointly considered. Furthermore, when an agent recognizes the prerequisites of legitimate defence, foundational to their justified conduct, their act's legality isn't negated, even if driven by motives beyond self-defence (such as animosity, envy, jealousy, hatred, or a vendetta against the aggressor)118. Therefore, the uncertainty around whether the scenario of responsibility justifies their action turns, under these circumstances, to the defender's advantage, not the aggressor's. Another scenario, not explicitly addressed in the legal text, pertains to provoked legitimate defence. This requires two vital conceptual distinctions. Firstly, it is essential to differentiate between mere provocation (such as verbal instigation or simply challenging behaviour) and outright aggression (like insults or minor acts of violence). The latter warrants defensive actions, as observed, while the former remains a matter of debate, not inherently qualifying as aggression. Concerning provocation, one must further discern between mere negligence in provoking aggression (like a non-serious taunt, unknown to the defender) and a more severe form of grave fault (notably intentional) aimed explicitly at eliciting aggression to justify a legitimate defensive response. In this severe scenario, the “defender” manipulates the doctrine to strike first. EDUARDO CORREIA, addressing this hypothesis in its intentional form, referred to it as premeditated provocation, leading to the preclusion of legitimate defensive actions 119 . This distinction seems somewhat contrived: aggression is central to the illicit nature of the conduct. This implies that fault is not a prerequisite for such unlawful action. The significance of such provocation, which nullifies the animus defendendi, is situated elsewhere: while the aggression remains illicit, the culpability of the injured 118 FRANK EBERT delves into this topic (in Grundlagen des Selbstverteidigungsrechts, p. 19). PESSOA JORGE, in our legal sphere, supports the outlined solution (Ensaio, p. 160). He contends that the principles apply similarly in the realm of obligations, arguing that a debtor who is unaware of an obligation does not commit an illicit act if they can invoke a justifying cause (ibidem). The issue, it appears, acquires an artificial complexity. The primary objective of defence, understandably, should be to cease the aggression, as Medicus poignantly observes (Allgemeiner Teil des BGB, 10th ed., C.F. Muller: Heidelberg et al., 2010, p. 71). However, attributing an aggressive intent to this defensive impulse is often unwarranted in such contexts. A purely mechanistic expectation of tolerance in the face of defence is unrealistic. Even with the animus defendendi, especially in cases of violent defence, there coexists an inherently questionable state of mind. Yet, this does not strip the defence of its legitimacy. Regarding excess in self-defence, ALMEIDA COSTA proposes, if we interpret him correctly, to adopt penal doctrines into civil law, particularly concerning the distinction between asthenic and sthenic excess. In cases of sthenic excess, where the motive is malicious, the justification loses its standing, and the penalty (in Criminal Law) becomes merely a mitigated (Direito das Obrigações, p. 571, footnote 1). In civil law, MENEZES CORDEIRO offers a vital distinction: between intensive excess, where the agent goes beyond “what would be reasonably necessary for their defence”, and extensive excess, where “the agent prolongs the action after neutralizing the aggression” (in his annotation to Article 337 of the Portuguese Civil Code, Código Civil comentado, I, p. 966). This subject is equally contentious in Common Law jurisdictions. GEORGE P. FLETCHER encapsulates this debate in A Crime of Self-Defence (page 212): «[m]odern legal thought is torn by the question whether harmful consequences should aggravate an action of wicked intentions». 119 Direito Criminal, II, Almedina: Coimbra, 1971, p. 41. MENEZES CORDEIRO, while discussing this topic, refrains from differentiating between the instances of provocation highlighted in the text. Instead, he situates the discussion firmly within the realms of good faith, encompassing both trust protection and the supremacy of underlying materiality. He asserts the unlikelihood of self-defence in such scenarios (as per his annotation to Article 337 of the Portuguese Civil Code, Código Civil comentado, I, p. 965). Electronic copy available at: https://ssrn.com/abstract=4692636 4444 § 2. Legal framework of self-defence (here, the defender) might negate the agent's liability (per Article 570 of the Portuguese Civil Code)120. If the provocation is not inherently unlawful (an act of aggression, as noted), agents cannot lawfully retaliate against such provocation. Hence, it can be asserted that the effect of legitimate defense is the justification of the agent's conduct, absolving them of liability. Whether the legislator achieves this by negating unlawfulness in a straightforward manner, or by dismissing fault in instances of excess or error, warrants further examination. In essence, justification encompasses, for lack of a better term, all of these elements, given the ultimate effect produced121. However, we should always prioritize precision in language and, by extension, in our conceptual understanding: we choose to refer to the justification of either unlawfulness or fault, depending on the circumstances122. [ii. The object of justification] Justification, in general, pertains to the defensive action undertaken by the individual concerned. This defensive act may inherently possess its complexity: it is not always a singular event; being multiple, they also do not uniformly share the same nature or intensity. It can be grounded in diverse means, may conclude at a specific juncture or persist over a period. Ontologically, it embodies the same dogmatic complexity as the act, a fundamental element of any liability scenario. Most crucially, 120 DEUTSCH/AHRENS advocate for excluding the aggressor's fault, focusing solely on their intentional and known conduct. This perspective, however, struggles to address the subjective disvalue, that is, the actual fault (Deliktsrecht, p. 44). A more compelling approach, as proposed by WAGNER, is to calibrate the necessary means of defence, introducing a duty of restraint (refer to the annotation to § 227, ErmanBGB, I, 15th ed., Otto Schmidt: Cologne, 2017, Mn 15, p. 674), applicable even in cases of mere fault. The predominant doctrinal inclination in Germany advocates for the restriction of self-defence rights (por todos, v. LOOS, Zur Einschränkung des Notwehrrechts wegen Provokation, FS Erwin Deutsch, 70th Anniversary, 1999, p. 241; and seen in the BGH's 1993 decision; BGHSt 39, 374). MARIA DE LURDES PEREIRA proposes a conceptual symmetry in Direito da Responsabilidade Civil. A obrigação de indemnizar, Imprensa FDUL: Lisbon, 2022, p. 540. between holding the injurer accountable and the (self)responsibility of the injured. In cases of mere provocation, aggression is absent. If aggression is present, it triggers the agent’s liability, but this concept of (self)responsibility isn’t overwhelmed by the agent’s own liability. There's no double penalization here since the fault of the injured party mitigates the responsibility for the agent's suffered damages, while their responsibility is directed towards the harm experienced by the other party. 121 This complexity has given rise to alternative conceptual proposals, notably the concept of liberatory causes of responsibility, as discussed by PESSOA JORGE (Ensaio, p. 110) and originally coined by CAVALEIRO DE FERREIRA. 122 A critical distinction emerges between the causes for the exclusion of illegality and those for fault: the latter encompasses self-defence against the relevant act, unlike the former. Additionally, there exist various other causes — be they legal or conventional — that exclude damages, causality, or, more significantly, total responsibility, but only after all dependent prerequisites have been established (for example, considering the fault of the injured party significant to the outcome, as per Article 570/1 of the Portuguese Civil Code). These factors too serve as justifications or exemptions from responsibility in a broader sense. However, their legal classification, including the associated effects, presents a markedly diverse landscape. This differentiation is acutely recognized and expounded upon by DEUTSCH/AHRENS, Deliktsrecht, p. 44. Electronic copy available at: https://ssrn.com/abstract=4692636 45 In Defence of Self-Defence defence should not be perceived or construed as merely the opposite of aggression. To do so would be a simplistic, misguided viewpoint. It becomes more intricate to determine whether the object of justification, or more aptly that of defense, assumes the character of a physical act or a legal one. In our preceding discourse, we have consistently treated it as the former, a stance corroborated by all the examples cited. This reflects our stance: defensive actions are inherently ontological, not legal in nature. Examples often referenced as legal nature defences – like credit offsetting, enforcing a contract of promise, or exercising contract annulment123 – represent simple exercises of rights (whether potestative or not), falling within the realm of obligations, where integrating legitimate defence necessitates caution124. An alternative view, if pushed to its logical extreme, would challenge, via this justification paradigm, the very bounds of the personal nature of credit, leading to the untenable position of coercing debtor compliance (contrary to the maxim: nemo ad factum cogi potest)125. § 3. Bridging civil and criminal liability systems and the enduring antinomy debate; a brief overview In reality, there is no way to solve the eternal problem of who guards the guard. The State has taken for itself, practically, the monopoly of coercion: no sanction can be imposed on it by force. J. Oliveira Ascensão, O Direito. Introdução e Teoria Geral I. A question was posed at one juncture, deliberately provocative in nature: what distinguishes killing a fly from killing a human in legitimate defence? A comprehensive legal response is required, one that transcends, to the extent possible, ethical-moral considerations. The distinction is significant. Firstly, from a criminal standpoint, an act with excluded unlawfulness still qualifies as typical; similarly, by extension, mutatis 123 The examples referenced can be traced back to the insightful lectures of PESSOA JORGE (Ensaio, p. 213 e and footnote 184). 124 Refer to the earlier footnote 12 for additional context. 125 However, PESSOA JORGE takes a contrary stance in his Ensaio, p. 214. With respect, the example he cites to bolster his argument appears rather questionable. Consider the scenario he presents: a worker, under the threat of a weapon from their employer, is compelled to work to prevent a factory explosion (ibid, note 185). In such a situation, the worker isn't fulfilling an obligation but is instead coerced into action. For a deeper exploration of the reach of this principle, one may consult our article A sanção pecuniária compulsória no âmbito do anteprojeto do código de atividade bancária, Revista de Direito Financeiro e dos Mercados de Capitais, Vol. III, 2021, n. 10, pp. 13-43 (18-19). Electronic copy available at: https://ssrn.com/abstract=4692636 4646 § 3. Bridging civil and criminal liability systems and the enduring antinomy debate mutandis, in civil liability, such an act retains factual significance in terms of civil liability (predominantly tortious, but not exclusively; think of objective liability, of third parties, or for lawful acts), although it might not be illicit. Regarding the outcome, both scenarios converge on the absence of subjective responsibility of the agent, whether civil or criminal. Let's delve deeper into the criminal implications of this concept. II. Legitimate defence has assumed a particularly notable position in Criminal Law, arguably surpassing its significance in Civil Law. This prominence is underpinned by a distinct dogmatic tradition, with explicit inclusion in the Criminal Codes of most legal systems (for instance, refer to articles 31 and 32 of the Portuguese Criminal Code). This level of recognition is not mirrored in Civil Law, as observed (consider the examples from Spain or France). It is an open secret that in our jurisdiction, the richest evolution of this concept is found within the realms of criminal law doctrine and jurisprudence. Furthermore, numerous scholars in the civil sphere choose to align with the criminal law's dogmatic approach126, whether by assimilating its key findings or by nearly wholly adopting its conceptual frameworks. This perspective is not regarded as necessary or advisable. It is redundant because civil law's dogmatic frameworks possess inherent dignity and clear independence, distinguishing them from any notion of conceptual overlay associated with such blindly unifying approaches127; it's inadvisable, as it implies, even indirectly, an equivalence in the premises and outcomes of the concept, based on vastly different legal standards. For instance — and this is a pivotal point — there is no absolute parity in the realm of unlawfulness (both criminal and civil), contrary to what ENNECCERUS/NIPPERDEY propose, a view still widely accepted. The concept of unlawfulness maintains its distinct domains across various legal branches, although some overlapping areas do exist. The quintessential example of exclusively civil unlawfulness, where one takes possession of another's property without theft, aptly demonstrates this128. Consider an act deemed illicit in both legal spheres: it is entirely plausible for an action to be justified in civil terms but not criminally, or the reverse. The benchmark for evaluating the disvalue of the defender's action (whether its outcome or the action itself), or even the aggression, 126 For insights into the nuances of legal interpretations, refer to MENEZES CORDEIRO's annotation to Article 337 of the Portuguese Civil Code (Código Civil comentado, I, p. 960) and MARIA DA GRAÇA TRIGO’s detailed commentary on the same article (Comentário ao Código Civil, Parte Geral, pp. 798-799). 127 The concept of the unity of the legal order (Einheit der Rechtsordnungs), faces substantial critique. For an in-depth analysis, GROTHE's comparison of § 227 BGB, § 32 StGB, and § 15 OWiG in the annotation to § 227 (MiiKoBGB, Vol. I, 8th ed., C.H.Beck: Munich, 2018, p. 2475) is enlightening, as is JOHANN BRAUN's discourse on Subjektive Rechfertigungselemente im Zivilrecht?, NJW 1998, pp. 941-944. 128 For additional examples and perspectives, one can delve into MANUEL DE ANDRADE's work (Teoria Geral da Relação Jurídica, I, Almedina: Coimbra, 1983, p. 128, footnote 1). See, also PESSOA JORGE, Ensaio, p. 158, 227, footnote 196. For a broader exploration of these concepts our Concurso, pp. 52-53 (and footnote 56) offers further insights. Electronic copy available at: https://ssrn.com/abstract=4692636 47 In Defence of Self-Defence varies across these domains. Notably, criminal typicity includes subjective elements for determining unlawfulness, unlike in civil law, except when establishing the causality that grounds liability (haftungsbegrundende Kausalitãt)129. Reflecting on the rightful view of Criminal Law as a last resort measure (that of ultima ratio), several authors have hastily drawn two conclusions: first, that civil unlawfulness has a wider scope than its criminal counterpart; second, as a result, civil unlawfulness necessarily encompasses criminal unlawfulness. They surmise, in essence, that the absence of civil unlawfulness equates to a lack of criminal unlawfulness130. However, this reasoning, supposedly more logical by default, is flawed. Instances where criminal unlawfulness persists without a parallel civil unlawful act are not rare: this is particularly true for crimes of mere activity (increasingly common), where their uncritical overlap with the second form of tortious unlawfulness (as protection norms; Article 483/1 of the Portuguese Civil Code, second part) is rejected. In the realm of legitimate defence, the earlier deduction that civil unlawfulness leads the way remains pertinent. Yet, the need for a subjective element in criminal typicity makes its scope more confined131. III. In this arena, the normative interplay between the criminal law provision for legitimate defence (Article 32 of the Portuguese Criminal Code) and its older civil counterpart (Article 337/1 of the Civil of the Portuguese Civil Code) has been a subject of extensive debate. The crux of the discussion centres on a purported normative conflict, an antinomy, between these two statutes. Consequently, one proposed resolution to this dilemma suggests that the more recent criminal statute effectively nullifies the civil one132. To encapsulate, the argument hinges on the unwanted ramifications stemming from the asymmetry between these two legal frameworks: honing in on a key issue, it is contended — a point 129 REPGEM provides a notable explanation regarding the differentiation between criminal and civil illegality. In criminal law, illegality necessarily encompasses the assessment of negligence or intent as elements of the offense. This contrasts with civil law, where determining illegality is more straightforward, focusing exclusively on the evaluation of the agent's conduct. This perspective is elaborated in the annotation to § 227, Staudinger BGB Kommentar, AT 5, Sellier de Gruyter: Berlin, 2014, pp. 958-959. 130 MARIA DA GRAÇA TRIGO, in her annotation to Article 337 of the Portuguese Civil Code (Comentário ao Código Civil, page 800), elucidates this point: «[i]n general, if the exclusion of civil illicit also excludes criminal illegality, the reverse is not a necessary consequence». This perspective is echoed in her collaboration with ANA TAVEIRA DA FONSECA in the annotation to the subsequent Article 338 (Comentário ao Código Civil, p. 801). 131 GROTHE offers further insights in the annotation to § 227 in MuKoBGB, Vol. 1, 8th ed., C.H.Beck: Munich, 2018, p. 2475. ADELAIDE MENEZES LEITÃO critically remarks on the inappropriateness of conflating criminal concepts of illegality with the civil delict regime, especially when a narrow definition of legal disvalue centred on human conduct is not adopted (Normas de Protecção e Danos Puramente Patrimoniais, p. 667). 132 CONCEIÇÃO VALDÁGUA, a pioneer in this line of thought, discusses this in Aspetos da legítima defesa, pp. 43-45. In the civil law sphere, this viewpoint is supported by MENEZES CORDEIRO (see the Professor’s annotation to article 337 of the Portuguese Civil Code, Código Civil comentado, I, p. 964), RUI ATAÍDE (Direito das Obrigações, I, p. 373) and MIGUEL NOGUEIRA DE BRITO (Introdução, p. 480). In criminal law, similar views are held by FIGUEIREDO DIAS, Direito Penal, I, pp. 513-514 and TAIPA DE CARVALHO, A legítima defesa, p. 57. Electronic copy available at: https://ssrn.com/abstract=4692636 4848 § 3. Bridging civil and criminal liability systems and the enduring antinomy debate with which we concur — that the criminal statute does not expressly mandate the proportionality of defence, unlike its civil counterpart (where it's urged that the defence should not be overtly disproportionate, as previously discussed133). This inference is drawn from directly contrasting the verbiage of the criminal provision (Article 32 of the Criminal Code) against the civil directive. This disparity potentially allows for identical actions (for example, agent B's defensive response to A's initial aggression) to be deemed illicit under civil law but permissible in criminal law. Extending this scenario, A's subsequent harmful reaction to B's defence might be considered lawful in civil terms but unlawful in criminal law (as legitimate defence is not applicable against another legitimate defence), leading to a continuous cycle of conflicting legal interpretations across civil and criminal domains, thus fostering a foundational asymmetrical valuation. IV. Succumbing to the unpredictable elements offers no resolution to the issue at hand. Likewise, forcibly aligning with the criminal approach, partially overturning the Civil Code's provision, is far from satisfactory134. In our view, the frameworks are distinct, though interconnected. The divergence extends beyond just the disagreement over the absence of disproportionality in defence. Partially revoking the civil statute (Article 337.°/1 CC) would only partly address the dilemma, leaving us with two separate constructs of legitimate defence. The issue similarly arises with initial aggression, a topic not as thoroughly examined in legal scholarship. An act may hold criminal significance but not civil (or the reverse), indicating a disconnection in the illegality of aggression and pre-empting the subsequent clash of civil and criminal justifications. Thus, the approach of revoking the civil law norm proves inadequate. Our stance is that responsibilities must be assessed on different levels. This is our primary conclusion. Furthermore, within this realm of justification, there should be a nuanced and reasoned approach to the concept of unified illegality: as criminal unlawfulness influences civil law (due to the secondary relevance of the criminal norm for civil unlawfulness, especially in the violation of protective norms, per Article 483.°/1 of the Portuguese Civil Code, second part), criminal justification might extend to the civil sphere. Take, for instance, a defence that is excessively civil but criminally 133 Other points of divergence exist, particularly concerning the necessity of resorting to normal means of defense (Article 337/1 CC). However, as CONCEIÇÃO VALDÁGUA notes these differences are generally seen as relative rather than absolute (Aspetos da legítima defesa, pp. 6-7). 134 CAVALEIRO DE FERREIRA explicitly rejected the idea that a criminal norm could be overridden by a civil one. His analysis primarily focused on the endurance of Article 46 from the 1886 Portuguese Penal Code (Direito Penal Português, I, p. 328). The complexity intensified with the introduction of Decree-Law No. 184/72 on May 31, which amended Article 46, raising questions about whether this amendment could be considered a successor to its Civil Code equivalent. Despite these developments, CAVALEIRO DE FERREIRA later supported the continued applicability of these principles in the 1982 Penal Code (Lições de Direito Penal, I, Verbo: Viseu, 1987, p. 101); maintaining that the criminal standards of self-defence take precedence over those in civil law. Electronic copy available at: https://ssrn.com/abstract=4692636 49 In Defence of Self-Defence proportionate135; in such a case, the aggressor (or a third party acting on their behalf) could not resort to civil defence without risking primary criminal unlawfulness. Essentially, if the defence of the same legal interest is concerned – a pivotal factor – it would be a profound axiological contradiction to permit a civil defence in response to the initial aggression while denying the criminal aspect; worse yet, to deem a lawful civil defence as criminal unlawfulness, which is patently untenable136. Therefore, concerning the protection of identical legal interests, there is a spillover effect from criminal justification, creating a negative unity of unlawfulness: a defence justified in criminal terms should also be considered justified in civil law. This leads us to a compelling argument: if an action with criminal relevance (typically more severe) is justified, then its civil justification should be acknowledged as well. This perspective, we believe, unlocks the resolution to the relentless cycle of legitimate defence seen in the aforementioned scenario, where successive and conflicting justifications of defence and illegality arise. At present, our analysis cannot extend beyond this point. § 4. Concluding remarks: In Defence of Self-Defence This conclusion bears considerable weight because, within the context of legitimate defence, the aggressor’s position is inherently compromised by the unlawful character of their aggression. This scenario permits the use of measures against the aggressor that would not ordinarily be acceptable, and it allows for the sacrifice of assets or rights to a degree not typically permissible in necessity. J. Oliveira Ascensão, Ilícito pessoal e responsabilidade civil I. In modern legal systems, models of legitimate defence are bounded by strict limitations, focusing not only on the nature of the aggression but more critically on the scope of allowable defence. This latter constraint, especially during the implementation of justification, poses significant challenges. As FIGUEIREDO DIAS has aptly pointed out, The converse scenario — where a defence is inadmissible under criminal law but acceptable in civil law — seems less probable. CONCEIÇÃO VALDÁGUA's critique of CAVALEIRO DE FERREIRA's stance, particularly on the unity of responsibilities, does not fully resolve the issue. The blurred distinction between the unity of illegality and that of responsibility is significant. For instance, an attempted crime, while not resulting in civil liability due to the absence of harm, does not preclude the recognition of an illicit act, or specifically, one that constitutes significant aggression in the civil sphere. 136 This framework allows the penal regime, more favourable to the defender, to justify a civil illicit as well. Echoing this sentiment, GERMANO MARQUES DA SILVA asserts: «[i]f the defense is legitimate, constituting, therefore, the exercise of a right, it cannot constitute a civil illicit» (Direito Penal Português. Teoria do Crime, Universidade Católica Editora: Lisbon, 2012, p. 194). 135 Electronic copy available at: https://ssrn.com/abstract=4692636 5050 § 4. Concluding remarks: In Defence of Self-Defence there’s been a gradual but steady erosion of the doctrine of legitimate defence137. These constraints stem from the perceived monopoly of public justice, which grudgingly acknowledges the remnants of private justice. However, this supposed monopoly on legal coercion does not stand on its own merits and should not override the value of the individual and their intrinsic dignity. Therefore, it faces a dual limitation. As BECCARIA suggests, the assignment of such a role to serve solely the public good seems like a chimera, baffling to the layperson138. Further complicating this scenario, legal analysts require a high level of adaptability when examining legitimate defence, particularly when stepping outside the conventional parameters of Criminal Law. Despite different provisions for legitimate defence in Civil and Penal Law, as seen in contrast to systems like Germany’s, the nuances of private law and its specific framework – even with areas of overlap – caution against the indiscriminate borrowing from other legal sectors. In the civil context, it is essential to acknowledge the limits of defence necessity and the absence of overt disproportionality in the harm inflicted. Crucially, however, there is no established criterion of proportionality, a concept that remains elusive and difficult to rationalize, particularly regarding its practical implications. II. This narrative isn’t intended to glorify legitimate defence or to elevate the violence it inherently involves (bella matribus detestata). Rather, we consider it, echoing SAINT AUGUSTINE, as a regrettable necessity. Despite this, legitimate defence holds a distinctive and largely untapped dogmatic richness. Addressing the enduring and significant challenges within this area doesn't seem best served by solely leaning on conceptual precedents. A more effective approach might involve integrating practical insights, thus shifting the perspective on the issue – a process akin to “crossing the river by feeling the stones”. Gone is the outdated belief that private means of justice are relics of societies in rudimentary stages of evolution. While it’s undeniable that private justice can lead to abuses, a comprehensive evaluation leads us to a fundamental conclusion: that private justice, such as self-defence, when executed correctly, constitutes a valid form of justice. *** 137 138 FIGUEIREDO DIAS, Direito Penal, I, p. 474 ff. CESARE BECCARIA, Dos delitos e das penas, 5th ed., Fundação Calouste Gulbenkian: Lisbon, 2017, p. 65. Electronic copy available at: https://ssrn.com/abstract=4692636 51

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