Lots of people are bandying “common law” around in regards to self-defense, especially suggesting that Florida’s laws are a departure from common law. Anyone who is suggesting this is ignorant of what the common law on self-defense really was. First, a brief history of what common law is. Common law is essentially judge made law, or customary law, that is built up by precedent over time. For many years, much of the laws of England were done this way. The Romans brought us the idea of civil law, where everything is written down by statute. Self-defense traditionally was a common law justification for certain crimes such as murder, manslaughter, and assault. These justifications were, for a long time, not codified in most states. Codification didn’t generally begin until fairly recently, and some states, such as Virginia, still use common law self-defense. So what was common law self-defense? To understand that, we go back to the authority on the common law, which is William Blackstone, who wrote Commentaries on the Laws of England. But to summarize:
- Under common law, it was legal to use deadly force against a person who was committing a felony. Not only was it legal, it was considered a civic duty to do so.
- It was legal to use deadly force against anyone breaking into a house at night. It was not considered acceptable to do this during the day, unless robbery was a motive.
- Duty to retreat only applied, under common law, to someone who was defending himself against an assault in an “affray” or “brawl,” and with the exception that there was no duty to retreat “in sudden and violent cases; when certain and immediate suffering would be the consequence of waiting for the assistance of the law.”
As the common law evolved in the United States, Americans never had a particularly liking for the duty to retreat, and it worked its way out of the common law in many states, including New York, who included no such requirement from common law when they codified their self-defense statutes. Many states, when they codified their self-defense statutes, ignored common law and essentially created this duty even when presented with someone committing a felony. Pennsylvania, for instance, does not allow for deadly force to prevent commission of a felony. That was dropped during codification. But the idea that the common law created a duty to retreat in all circumstances is just plain false. Many of the “stand your ground” or “castle doctrine” laws more closely match common law practices than do statutes of states that require retreat even when faced with a felonious attack.
One can see that even with the recent Zimmerman case, that whether a duty to retreat would apply under common law would hinge on whether “certain and immediate suffering would be the consequence of waiting for the assistance of the law,” rather than some absolute duty, as some have made it out to be. Also worth noting that in Blackstone’s time, law enforcement was considered a duty of every citizen, and people were more civically minded back then. With the advent of professional policing in the 19th century, individual citizens have become more removed from looking out for the safety and well-being of their own communities.
George Zimmerman, a lone, self-appointed neighborhood watch captain, would not have been in the tradition of Blackstone’s time. But neither would a neighborhood full of people who hear someone screaming for help, and don’t bother to act until a shot is fired.
19 Responses to “What Was Common Law Self-Defense?”
- What Was The Common Law On Self Defense? | Extrano's Alley, a gun blog - [...] Sebastian at Shall Not Be Questioned has a good discussion of common law self defense. [...]