Sunday, 8 February 2015

What does the law say?

Have I ever mentioned on this blog that I am an attorney here in South Africa?

Well- if not- now you know. What I am going to discuss here is a subject touched on in a conversation with a Shotokan black belt last year. It is about the extent to which martial arts technique is allowed by law.

I have not studied the law of other countries, but if Roman Law is one of the sources of the law in your country the principles I discuss herein will most likely apply in your country as well. I'd love to hear from lawyers in other parts of the world regarding their views.

Now- I am not going to give you a lengthy article quoting statutes and cases. That- I'll leave for my colleagues in the legal fraternity if they ask nicely enough while I am in a good mood. What I do aim to accomplish, however, is to give the martial artist the proper frame of mind with which to function within the law.

Well- here are the principles:

1. We are not to fight to punish:

It may seem unfair, but mankind has decided long ago that taking the law into our own hands does not promote justice or stability. Punishment is the job of our courts and correctional services. So- if you attack anybody just to get revenge- whatever the reason- you are guilty of an offence punishable by law. That means- that if someone has already harmed you or anyone close to you or has already damaged or destroyed your property- attacking him/ her will make you guilty of a criminal offence.

2. We fight to protect

The big difference between protecting and punishing is that in the first instance you are fighting to prevent harm from being done. In our law the requirement is that actual harm must be imminent and just believing that harm is on its way is not enough. Judge Masipa seems to have given us some slack with that in her decision of the Pistorius case, but I would not push our luck just yet. 

In the second instance the harm has already been done. Any attack on your part shall in this case not be excused, but the harm shall be taken into account as a mitigating factor when the court considers sentence. 

The harm itself does not necessarily have to be aimed at yourself. It may be aimed at another person or property for you to want to leap into action.

You may also protect anything but your ego. To be safe you can stick to responding to words with words and to actions with actions. It might not keep you out of trouble, but it will keep you on the right side of the law. 

So- you fight to prevent harm being done- not to avenge!

3. We do not start fights, but be may finish them

Responding to a challenge or attacking a person to shut him up is not going to be excused by the court.

So- insults and taunting should not induce you to attack someone. It won't be excused. Laypersons may think you are chicken, but the courts will know you are innocent.

4. Don't count on the police to help you, but assume they will be there to do their job when you are the aggressor.

Sad fact is that a lot of these uniformed thugs would rather harm you- or even kill you- than protect you. 

  Phoning them will most likely not help when you are faced with attackers. Accept that it is up to you to get you and your loved ones out of the situation as best as you can and do so in such a way that you have no regrets. 

A last note- whenever violent incidents are reported it is standard procedure to investigate all parties involved. Even if you really are innocent you may still be a suspect. That is nothing to worry about. Just cooperate. Anyone can get charged, but only those proven guilty in a court of law are convicted.

The fact that I ended up writing an article like this shows that I am starting to show signs of writer's block! Hopefully I'll have something better to write about next weekend. 

Train hard!  

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