I.

Introduction

Definition of Self Defense

Self-defense means that a person protects himself or a third party from bodily harm inflicted by

another person so long as the defender has reason to believe that he or the third party is in

serious danger It is a legal concept that permits the use of reasonable force to caution.

Self-defense gives a person the moral to protect himself from damage in certain situations. This

is often used as a defense by people accused of, Assault, Battery or Homicide.

Self-defense, in criminal law, the justification for doing serious harm to another person because

it was done to protect oneself. Generally, the killer is in imminent danger of loss of life or

serious bodily harm at the hands of the perpetrator and reasonably believes it is necessary to

kill the perpetrator to avert the danger.

Historical Background of Self Defense

The origin of self-defense in Anglo-America is believed to stem from the pollination by the

Normans, subsequent to the Norman Conquest of England in 1066, of the Anglo-Saxon

conception of the sanctity of life with more nuanced Continental ideas. Previously, any killing,

even in self-defense, was culpable. Once the accused was found liable, regardless of

blameworthiness, the remedy was either monetary compensation to, or personal vengeance

wrought by, the victim's family. Over time, the personal injury nature of a homicide became a

public crime against the king, a breach of the king's peace. Private vengeance and reparations

gave way to public punishment and forfeiture of the accused's land and possessions to the

crown.
Gradually, English jurists began to wrestle with the issue of the relevance of the circumstances

of a killing. The promulgation of the Statute of Gloucester in 1278 allowed defendants who killed

by accident or in self-defense to apply to the king for a pardon. By the beginning of the

fourteenth century, justifiable homicide preserving the king's peace—the execution of a felon

sentenced to death or one resisting capture—was distinguished from excusable homicide or se

defendendo, for example, in self-defense. In 1532, King Henry VIII's parliament enacted a

statute that eliminated the forfeiture of property. In 1769, Blackstone explained that justifiable

homicide could only be killings required by law that promoted the social good. Personal killings

in self-defense could only be excused because they could not be absolutely free from guilt. In

excusable homicide, the accused had to retreat to "the wall" before killing (except if he was in

his "castle") but in justifiable homicide the accused need not retreat and could even pursue the

felon.

Self Defense as defined by Philippine Penal Law

Self-defense of chastity – to be entitled to complete self-defense of chastity, there must be  an

attempt to rape, mere imminence thereof will suffice. Defense of property – an attack on the

property must be coupled with an attack on the person of the owner, or of one entrusted with

the care of such property.

Revised Penal Code necessarily implies a deliberate and positive overt act of the accused to

prevent or repel an unlawful aggression of another with the use of reasonable means. The

accused has freedom of action. He is aware of the consequences of his deliberate acts. The

defense is based on necessity which is the supreme and irresistible master of men of all human

affairs, and of the law. From necessity, and limited by it, proceeds the right of self-defense. The

right begins when necessity does, and ends where it ends. Although the accused, in fact,
injures or kills the victim, however, his act is in accordance with law so much so that the

accused is deemed not to have transgressed the law and is free from both criminal and civil

liabilities. On the other hand, the basis of exempting circumstances under Article 12 of the

Revised Penal Code is the complete absence of intelligence, freedom of action, or intent, or the

absence of negligence on the part of the accused. The basis of the exemption in Article 12,

paragraph 4 of the Revised Penal Code is lack of negligence and intent. The accused does not

commit either an intentional or culpable felony. The accused commits a crime but there is no

criminal liability because of the complete absence of any of the conditions which constitute free

will or voluntariness of the act. An accident is a fortuitous circumstance, event or happening; an

event happening wholly or partly through human agency, an event which under the

circumstances is unusual or unexpected by the person to whom it happens.

Self Defense as defined by Foreign Jurisdictions

Self-defense in international law refers to the inherent right of a State to use of force in

response to an armed attack. Self-defense is one of the exceptions to the prohibition against

use of force under article 2(4) of the UN Charter and customary international law. However,

whether the armed attack that gives rise to self-defense should originate from another state (as

opposed to an armed group) and whether the attack should actually materialize to lawfully

invoke self-defense are ongoing conundrums for scholars.

The concept of self-defense and defense of others is also used in criminal law as a defense to

justify a necessary and proportionate use of force against an unlawful attack. Such conduct by

civilians does not constitute direct participation in hostilities.

recognized by nations under international law. It is a general principle because it can be found

in the natural law conceptions of the world’s major religious, philosophical, and cultural

traditions and is consequently also a universally shared feature of the world’s major legal

systems. The basic tenets of the right to personal self-defense are the same everywhere. The

right to personal self-defense can already be discerned in a number of areas of international

law, including international humanitarian law, international criminal law, the law of the sea, the

law of diplomatic relations.

This chapter proposes that the right to personal self-defense in international law is not a human

right, but an individual right sui generis, since it distinguishes itself from human rights in its

social and political functions. The right to self-defense is a genuinely pre-societal right that

evolved in the absence of the state. It survived the formation of the state because no state will

ever have enough power to perfectly protect individuals. Conversely, human rights evolved in

response to the overbearing presence of the state and serve primarily to ensure that states do

not accumulate too much power. State practice also does not regard the right to personal self-

defense as a human right. Nevertheless, the right still affects international human rights law on

several levels.

II. STATEMENT OF THE PROBLEM

Self defense become complicated when it contravenes the act of human rights. What if the

victim of a violent crime is found to have provoke the attack? Did he violate the act of human

rights? Is there right to defend oneself against a volent attacker? This could show how

overwhelming the rule is. It could be on your side and then the next it won’t.
III. REVIEW RELATED LITERATURE

This part contains a review of related literature that was used for the

argumentative research paper. The related literature varies from provisions

of laws to case laws to some researches to some news articles published by

authors in the Philippines and other countries.

Self defense under Philippine Law

In Philippines, self-defense in as “justifiable when the actor believes that such force is

immediately necessary for the purpose of protecting himself against the use of unlawful force by

such other person on the present occasion.

Art. 11. Justifying circumstances. — The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following circumstances

concur;

First. Unlawful aggression.

Second. Reasonable necessity of the means employed to prevent or repel it.

Third. Lack of sufficient provocation on the part of the person defending himself.

2. Anyone who acts in defense of the person or rights of his spouse, ascendants, descendants,

or legitimate, natural or adopted brothers or sisters, or his relatives by affinity in the same

degrees and those consanguinity within the fourth civil degree, provided that the first and

second requisites prescribed in the next preceding circumstance are present, and the further
requisite, in case the provocation was given by the person attacked, that the one making

defense had no part therein.

3. Anyone who acts in defense of the person or rights of a stranger, provided that the first and

second requisites mentioned in the first circumstance of this Art. are present and that the

person defending be not induced by revenge, resentment, or other evil motive.

Please note that this includes defense of person or rights. It may also refer to defense of

chastity wherein a woman is justified in hitting a man who placed his hand on a woman’s upper

thigh. There may also be defense of property or home such that a person is within his legal

right to protect himself from trespassers to his property.

Self defense under Foreign Law

Self defence instruction is defined as “preparation to minimize the possibility of assault; it is

training

to learn and use a small group of simple effective physical actions if no other alternative is

available.

Learning self defence is primarily the process of learning how to avoid becoming a victim

(Cummings

1992:183-184). Advocates of self defence for women believe that the development of particular

physical and mental skills will strengthen women’s physical capacities, support women’s

independence, increase women’s mobility and, ultimately, move women from a

culturallyconditioned passivity to being non-passive, powerful individuals (Cummings

1992:184).
Self defence programmes for school-age-girls can be delivered in different ways – as part of a

physical health or sports programme, as part of the health curriculum in schools (e.g. Kidpower

programmes), through martial arts courses, or within a feminist or empowering model, often as

part

of a broader health or respectful relationships programme.

The review did not identify any evaluations of programmes delivered through physical education

or martial arts classes. However, two articles by professionals working in the physical education

sector (Heyden, Anger, Jackson and Ellner 1999; Givler 2005) urge the inclusion of a self

defence training unit as part of a school physical education programme. One cites the

psychological, academic and health benefits of doing this:

Introducing a self defence unit as part of a school physical education program is a

wonderful way to address a number of psychosocial issues that prevail among teenagers

today. Practicing these physical, mental and emotional skills in a non-competitive

atmosphere, where self-improvement and empowerment are inherently a part of the

learning process, makes self defense a wonderful option for helping students meet the

definition of a physically educated person [Givler 2005:25].

IV. DISCUSSION

In exceptional circumstances, the right to personal self-defense also sharpens the human rights

of individuals and peoples, allowing them to forcibly resist certain type of human rights

violations committed by or on behalf of the state. According to the prevailing view, forcible
denials of the right to self-determination may be met with organized armed resistance as a

measure of last report. However, state practice does not recognize a right to militarily organized

armed resistance even against genocide or other mass atrocities involving grave individual

human rights violation. This is regrettable since such a right could be narrowly and reasonably

framed using the criteria established by the right to personal self-defense.

A defendant may still claim self-defense if they were the first person to initiate contact. For

example, Margot and Maurice get into an argument. Margot throws a book at Maurice’s head.

Maurice lifts his fist as he approaches Margot. Thinking that she is certain to be punched if she

does not act, Margot punches first. Margot would be able to assert self-defense because a

reasonable person would think that physical harm was imminent, and she used reasonable

force to prevent the harm. Note that Maurice was not acting in self-defense. The threat had

ceased after Margot threw the book. He was instead acting in retaliation. This is one of what a

self-defense can be.

In the Philippines, Margot is not the one who can gain self defense, because the fight was

triggered of what Margot did. It only called as self defense when a person initiated an action

that could imminent a person’s life.

V. CONCLUSION