The purpose of this essay is to examine ethical, societal and legal issues regarding use of force options as related to Waboku ryu jujitsu. In this report, the use of force will be considered in two forms. First, when is force necessary and appropriate. Second, once the use of force is determined to what extent will it be applied.
Certainly, the idea of “staying out” of a violent situation or ignoring a violent action upon someone will most likely prove to be the legally safest option, however, it is an ethical failure. As Waboku ryu students we should strive to cultivate the ideas of bushido. One major role of the warrior “is to uphold peace and implement justice with force if necessary” (Binder, 1997). A stated purpose of Waboku jujitsu is to prevent victimization in all forms and to aid victims of ongoing violence. As I believe in the tenets of Waboku jujitsu, the option of ignoring a victimizing act becomes a non-option. Societal pressures may be exerted on a person interceding on the behalf of a victim or potential victim due to what many consider to be an uncomfortable situation. Many people may wish to simply ignore the situation in order to make themselves feel less vulnerable and they may insist that you overlook the situation as well. In this instance an assertive and confident spirit is necessary in order to rise above peer pressure and uphold the code in which one believes. Nitobe (1979) quotes Confucius as stating, “perceiving what is right and not doing it, argues a lack of courage…courage is doing what is right”. In order to maintain integrity we must show this level of courage whether it is physical in nature or a non-physical act.
In the same sense that one must be strong in spirit to stand up for what they believe, they must also maintain self-control so as not to misuse the tools of the marital artist. Little distinction is made between the person who attacks unprovoked and one who provokes a person then uses defense as a justification for their action (Westbrook and Ratti, 1970). A martial artist should never initiate an attack upon an innocent person. In the same sense a martial artist should not fight unless no other choice exists. Funokoshi Gichin, whom many consider the founder of modern karate, states that karate has no first strike (Stevens, 1995). Martial arts should be used in response to a threat or in prevention of harm only when an assailant will not respond to reason. Legally, martial artists are regarded by many courts as “deadly fighters” with capabilities “that are far beyond the fighting feats of mortal men” (Brown, 1998). For this reason martial artists must be extremely careful not to misuse the physical tools they may posses, and when called upon to use physical tools they must not be used in excess. The legal system has a preconceived image of the martial artist much of which is formed from television and movies, hence as a martial artist one is likely to be held to a higher standard with regard to the privilege of self defense.
Brown (1998) explains some of the requirements for the privilege of self defense: 1) The Requirement of “Apprehension”, 2) Duty to Warn, 3) Duty to Retreat, 4) Do not use Excessive Force. The privilege of self-defense is triggered only where a person is reasonably apprehensive of serious bodily harm or death. The author notes that apprehension is not the same as fear. One does not have to fear that the intended contact will succeed, they only need to reasonably believe that the act may result in imminent contact unless they can intervene or flee. As a potentially apprehensive situation arises a person may have the duty to warn an assailant of the person’s intention to defend themselves. However, this is true only when there is reason to believe that this warning will deter the attack and allow the person to defend if it becomes necessary. In the case of the martial artist a verbal warning regarding their physical skills may have a positive or negative effect. A potential assailant may be deterred by the fact that you have experience in the martial and choose not to pursue further action. As stated by Sun Tzu in The Art of War, What discourages opponents from coming is the prospect of harm. To another assailant this verbal warning and the potential skills which one may posses are relatively meaningless, and may, in fact result in a threatening response. In addition to the possible duty to warn, there exists a duty to retreat. The duty to retreat and attempt to avoid conflict depends upon the magnitude or type of force one uses to repel the attack. Actually, there is no duty to retreat when non-lethal force is applied by a person claiming self-defense privilege. This may be significant to a martial artist depending upon the type of technique and level of force employed. For example, a controlling technique logically requires less need for retreat then a damaging or potentially life ending technique. In an assault and battery situation the law allows a defendant stand his or her ground and as stated by Brown (1998) to "use force short of that likely to cause serious physical injury." In addition, by law a defendant is not required to retreat even if they know with absolute certainty that the threatend bodily harm could be avoided by retreating (Brown, 1998). However, a duty to retreat may be present if one intends to use deadly force. The court system is split on this issue but two exceptions to the duty to retreat in deadly force situations are accepted. The first, is that there is not obligation to retreat when an assault takes place on the defendents premises and the second is when the defendant can no longer retreat safely (Brown, 1998). Regarding the issue of excessive force in defense, the defender may apply only the degree of force a “reasonable” person would deem appropriate to repel an attack under the circumstances. No more force is allowed than what is necessary; this is known as “reasonable force”. The court system uses a wide variety of criteria to determine if the amount of force is reasonable. These considerations range from the amount of force used in the event to the relative age, size and strength of the defender and assailant (Brown, 1998, Ayoob, 1980). A notable condition regarding the right to respond to deadly force is seen if a person attacking with deadly force is incapable of accomplishing their purpose, in this case one does not have the privilege to use deadly force in self-defense. It should also be noted that Brown makes note that the courts do not equate being a martial artist with deadly force. As such, the use of deadly force against someone you believe to be a trained fighter is not reasonable.
While examining some of the legal aspects of self-defense the question of the marital artist as a weapon is one worth some consideration. Brown (1998) explains Wisconsin’s law regarding weapons as “Dangerous weapon means any firearm, whether loaded or unloaded, any device designed as a weapon capable of producing death or great bodily harm, any electrical weapon, as defined in 941.295(4); or any other device or instrumentality in which, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm…(939.22)”. From this statute and statutes of other states it is clear that martial arts weapons, in which many advanced martial artists train, are considered weapons under the law and must be handled with care. What is not as clear is whether or not the martial artist is considered a weapon. In deciding whether or not a martial artist is a weapon the courts have historically considered five elements (Brown, 1998): 1) the nature of injuries received, 2) force used, 3) whether repeated blows were struck, 4) manner and style of attack and 5) whether the blows and kicks were administered to a vital area of the body. Based on these criteria common sense dictates that techniques which do not strike or produce damage to the assailant are legally advantageous. Ethically, the minimum amount of necessary force to stop an assailants behavior should not be exceeded. As stated in the Waboku Ryu Jujitsu code of ethics: do not confront when resolution is possible.
Martial artists should not fight readily, they should fight when no
other option is present. However, the martial artist should be completely
willing and committed to helping a potential victim or defending themselves
with force if necessary. Once the decision to fight or intercede
is made, no greater amount of force than necessary to stop the threat should
be used. Action should be taken to stop or prevent the violent act
not to injure the assailant or to prove victory. A martial artist
who possesses technical skills, which can result in serious physical harm
should continually be in control of those skills. This ability should
not be misused nor should it be used out of control. If a martial
artist injures an assailant it should be because no other choice existed
at that time and under those circumstances. Not only is excessive
use of force unethical, it is seen in poor light among members of our society,
and is certainly not tolerated in our legal system. As a martial
artist one must be willing to promote justice in order to form a more peaceful
world. If confrontation or force is required during this pursuit,
it should be used only where necessary and to only the degree necessary.
References:
Ayoob, M. In the Gravest Extreme, (Massad
F. and Dorothy A. Ayoob Publishing, 1980)
Binder, B. “The Martial Artist in Society: (Re)Discovering Bushido,” (W.R. Associates, 1997).
Brown, C. The Law and Martial Arts, (Santa Clarita, California, Ohara Publications, 1998)
Nitobe, I. Bushido: The Warrior Code, (Santa Clarita, California, Ohara Publications, 1979)
Stevens, J. Three Budo Masters, (Tokyo, Kodansha Press, 1995)
Sun Tzu The Art of War, (James Clavell (translator), New York, New York, 1983).
Westbrook, A. and Ratti, O. Aikido and the Dynamic Sphere, (Rutland, Vermont, Charles E. Tuttle Company, 1970)