Sunday, June 26, 2011

From Cooley on Torts -- The Right to Self-Defense

"Self-defense, or defense of one standing to the party in the relation of husband or wife, parent or child, guardian or ward, master or servant, is also a legal right, but must be carefully restricted to the necessity.  Defense of property may also be made under the like restriction."


"Self-protection.—An attempt to commit a battery may always be resisted by the person assaulted, but under this restriction : that he must not employ a degree of force not called for in self-defense ; he must not inflict serious injury unnecessarily in repelling an attack which threatens him with slight injury, nor take life unless life or limb is in danger, nor even then if by retreating he can safely avoid it."

Cooley was not from the Founding era, either, but like Odgers and Kent, his commentary on the common law (or in Kent's case, American law) is important as evidence of the existence and importance of the right to self-defense.

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