Legitimate Defense - How Does Law Protect You?

This post reorients mainstream conceptions of self-defense. We'll defend a broader doctrine of legitimate defense that, in limited circumstances, justifies unilateral intervention. Read on to learn more.
Legitimate Defense - How Does Law Protect You?

Last update: 27 February, 2021

Legitimate defense refers to the use of force to repel an attack or imminent threat of attack directed against oneself or others or a legally protected interest. Many individuals believe that they have the legal right to protect themselves. 

However, there are times when legitimate self-defense laws don’t apply. If a person uses self-defense in an instance when this defense doesn’t apply, they’ll face criminal charges.

Self-defense, in criminal law, is justification for inflicting serious harm on another person as means of protection due to harm. In general, killing isn’t a criminal act. Only when the killer reasonably believes that they’re in imminent danger of losing their life from an assailant or suffering injury.

Image of hands in jail.

Legitimate defense basics

The law always recognizes the right of a person to protect themselves from harm under certain circumstances. This is true, even if that conduct may otherwise subject that person to criminal culpability. Thanks to self-defense, one has the right to prevent harm to oneself by using a sufficient level of counteracting force. 

Self-defense can be used as a defense in violent crimes under state or federal law. Additionally, this may be a defense in some civil cases. Bear in mind that legitimate defense rules and processes vary by jurisdiction. 

Every state has a different set of laws when it comes to legitimate self-defense. Some of these differences apply when the court allows it. Another difference between states is how much force the court permits the victim without entering into criminal culpability.

Self-defense in international law refers to the inherent right of a State to use force in response to an armed attack. Self-defense is one of the exceptions to the prohibition against the use of force under an article of the UN Charter and customary international law. 

Nevertheless, whether the armed attack rising to self-defense originates from another state, opposing to an armed group. Also, whether the attack actually materializes to lawfully invoke self-defense are ongoing conundrums for scholars.  

Criminal law also uses the concept of legitimate defense to justify a necessary and proportionate use of force against an unlawful attack. Such conduct by civilians doesn’t constitute direct participation in hostilities.

Legitimate defense laws

Self-defense laws dictate what’s considered justifiable force and what isn’t. They dictate when self-defense can be used as a defense to a crime or civil claim. The laws protect the individuals asserting them, and those who are the recipients of what’s claimed as self-defense. 

For the law to protect the person executing legitimate defense, the following principles must apply:

  • Imminent threat of harm. For this defense to apply, there should be a threat of harm that’s immediate in nature.
  • Reasonable fear of harm. For this defense to apply, there should be a reasonably perceived threat of harm.
  • Proportional response. For this defense to apply, the degree of deadly force should match the level of the perceived threat.
  • Imperfect self-defense: For this defense to apply, a person must show they were in genuine fear of physical pain, though it may not be reasonable to an objective person.
  • Duty to retreat. For this defense to apply, the person must show that they first tried to retreat or escape from the violence. 
  • Castle doctrine. For this defense to apply, a person must show they were in their own “castle” or home when the attack took place. 

Key takeaways

Today, we studied the general principles governing the structure of self-defense in domestic legal systems, and in the international arena. In fact, there are six essential elements of the doctrine of legitimate defense. These fall into two categories, three bearings on the nature of the attack, and three on the requirements of permissible defense. 

In order for courts to justify legitimate defense, the attack must be overt, unlawful, and imminent. The defense must be necessary, proportional, and knowing, or intentional in response to the attack. Check out these key takeaways from the post:

  • Self-defense bases on justification allowing a defendant to use physical force to protect themselves from injury or death.
  • Deadly force is any force that can produce death. An individual doesn’t have to die for the force to be deemed deadly.
  • There are four elements to self-defense. An unprovoked attack, threatening imminent injury or death, and a reasonable degree of force, used responding to fear of injury or death.
  • There are two exceptions to the unprovoked attack rule. A person’s use of excessive force in response to an initial attack, and the defendant leaving the initial attack.

As you can see, it isn’t simple to successfully claim legitimate defense. Not only must you prove you were confronted with an unprovoked attack, but you must also prove an imminent threat. Don’t let this overwhelm you. A criminal defense lawyer may help you, making the process easier.

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  • Ley Orgánica 10/1995, de 23 de noviembre, del Código Penal, https://www.boe.es/buscar/act.php?id=BOE-A-1995-25444
  • Martínez Escamilla, M., Martín Lorenzo, M., Valle Mariscal de Gante, M., Derecho Penal, Introducción Teoría jurídica del delito, Universidad Complutense de Madrid, Madrid 2012.