Richard wrote

> I question whether it is proper to treat the use of force in a situation

> of reasonably mistaken self-defense as a right.

The relevant right is the right we all have to bodily safety. The liberty

to use force which would otherwise be a battery is a privilege created by

the conflict between the rights of the defendant and the plaintiff.

I agree that in Vincent the defendant's actions were justified, and not

merely excused, so long as they paid for the damage. Vincent was not a

conflict of rights case, the privilege was generated by necessity. It

isn't analogous to self defence as the action of the defendant was not

taken in order to prevent any violation of any right he had. The position

of the plaintiff in Vincent was weaker and it is perfectly consistent to

require him to pay compensation, but not the person acting as they

reasonably believe in self defence.

The law could be , as you suggest, that if I am mistaken in thinking I am

being attacked that I must pay for the harm I cause in defending myself. A

perfectly reasonable position to adopt. Just not the law, on either side

of the Atlantic.

I think there is a conflict of rights in cases of self defence, even if

the defendant is mistaken as to whether he is being attacked. The issue is

what we are allowed to do to protect our own bodily safety. That interest

in our own safety creates a privilege to behave in a way which when I am

not trying to safeguard it the law does not allow. There is all the

difference in the world between having sexual intercourse with someone,

mistakenly thinking they consent, and punching someone on the nose because

you think they are trying to kill you. Only in the latter case are you

intending to safeguard yourself. It is wholly unsafe to go from the

proposition (i) liability for trespass to the person is strict and a

reasonable mistake does not excuse; to the proposition (ii) where the

defendant honestly reasonably and honestly acts in self defence, if he is

not actually being attacked he should be liable. The standard of liability

of the tort is not necessarily determinative of when the defence can be

invoked.

Put another way, I think the law as it is is readily defensible.

Rob

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Robert Stevens

Professor of Commercial Law

University College London