More and more intelligent Americans have finally opened their eyes to the facts, and come to realize that George Zimmerman was not a racist, and that race played no role in his defensive shooting of Trayvon Martin. In an attempt to save face, many are now blaming Florida’s gun laws, claiming that so-called “Stand Your Ground” (SYG) laws need to be “re-examined” or repealed. In the interest of justice, let’s “examine,” and where possible, compare to Jewish law.
First and foremost, we need to define what we mean by a “stand your ground” (SYG) law. What we are really talking about is whether or not a person has a duty to attempt a reasonable retreat before using deadly force in self-defense of an objectively reasonable perception of imminent death or great bodily harm. This is sometimes called a “duty to retreat.” It will be helpful to understand the history and development of the “duty to retreat” in order to have an informed and thoughtful opinion.
In the old English common law (from which much of US law was derived), a person was required to retreat “to the wall,” so to speak, before using deadly force to defend himself. That English common law developed in the feudal days when men settled drunken disputes in taverns with swords. The idea was that if a man pulled a sword on you, you were required to, if possible, retreat until your back was “to the wall” before you killed him. The hope was that perhaps the man who drew his sword would have second thoughts, or be so drunk that he couldn’t advance on you without stumbling over, and perhaps a life would be saved this way. It was also thought that perhaps a retreat would eliminate fights and deaths where there is some initial misunderstanding or mistake as to whether one is actually being attacked or not. It was thought that a defender under actual attack wouldn’t be giving up too much by initially retreating, sword play being what it was.
Over time, the common law duty to retreat proved to have many problems. In many US states the concept that a person should be required to retreat from an attack within their own home by a burglar is considered morally repugnant. The idea is that a person’s home is their castle, a quasi-sacred place where a person should always feel safe and free to move about. When another human being violates that sacred social norm by breaking and entering, in most states the law is that within the home, a person has no duty to retreat before using deadly force to defend themselves from deadly force. This is often called the “Castle Doctrine,” and in some states it is extended not just to a residential home, but a person’s place of business and sometimes their vehicle. Everything I have read suggests that the Castle Doctrine comports with Jewish law. In his 2004 treatise, The Torah and Self Defense, David Kopel cites Maimonides:
The great Jewish legal scholar Maimonides (Rabbi Moshe Ben Maimon, a/k/a “Rambam” (1153-1204)) takes a more expansive view of self-defense than does Rashi. Maimonides agrees with all the earlier scholars that the rationale for killing the burglar is the presumption of danger. Specifically, the rationale is explained as “[the burglar]was thought to enter with an intention to murder someone.”
The fourteen-volume Mishneh Torah (“Repetition of the Torah”) by Maimonides elaborated on the law regarding self-defense against burglars:
7. When a person breaks into [a home] —whether at night or during the day—license is granted to kill him. If either the homeowner or another person kills him, they are not liable.
The majority of US states adopt some sort of laws that can fairly be called a Castle Doctrine, but vary by state to state. Some states do not require that burglar actually attack you in your home before you can kill him, some do. But generally speaking, in many states you are not required to hide and cower in your bedroom or bathroom, rather, you may confront the burglar if you feel that is the best strategy under the circumstances and not be second-guessed later by law enforcement or a jury.
Thus, what a SYG law does, in practice, is extend the Castle Doctrine to the public square. To many people, having no duty to retreat and cower within your own home is intuitive and morally fair. Extending that doctrine to the grocery store is another question, where the Castle Doctrine is based on there being something sacred about the privacy and serenity of a person’s home. The thinking is that although a person may police their home as they please, society ought to be able to impose restrictions on a person’s self-defense in the public square.
The critical issue though is not whether a person should, morally or otherwise, first attempt retreat when faced with a seemingly deadly attack. The question, supposing the law does impose a duty to retreat, is how do we determine after the fact whether or not the attempt at retreat was sufficient?