Apr 15, 2025
Necessity Defense and Legal Self-help in Norwegian Criminal Law: When is it Permissible to Take the Law into One's Own Hands?
In a society governed by the rule of law, the starting point is that conflicts should be resolved through the legal system, not by individuals taking matters into their own hands. Nevertheless, Norwegian criminal law recognizes that in certain situations it must be permissible to protect oneself or one's rights without first going through the courts. This is particularly true in cases of self-defense and in some instances of self-help. This article explains the boundaries for lawful self-defense and self-help in Norwegian law, and highlights the differences between these two forms of private law enforcement.
Self-defense – a right to defend against unlawful attacks
What is self-defense?
Self-defense is a form of private law enforcement that gives the person being attacked the right to defend themselves, even though the act of defense would, in isolation, be punishable. This principle is enshrined in Penal Code § 48, which states that no one can be punished for an act committed in self-defense.
It is important to understand that an act of self-defense is not only immune from punishment but is entirely lawful. This is demonstrated by the fact that it:
Does not incur liability for damages
Cannot be countered with self-defense from the attacker
Is protected under Damage Compensation Act § 1-4 as referring to harm "lawfully inflicted to prevent imminent danger"
Self-defense is preventive, not restorative
A central limitation of self-defense is that it pertains to preventive law enforcement, not restorative. This means self-defense can only be exercised to prevent an ongoing or imminent attack, not to restore a previously disturbed state.
Examples:
It is self-defense to prevent a theft by stopping the thief from taking the item
It is not self-defense to reclaim a stolen item from the thief after the theft has been completed (although under certain circumstances it may be lawful self-help)
It is not self-defense to demolish a building erected in violation of a negative easement
What legal interests can be defended with self-defense?
The right of self-defense applies to the defense of all types of legal interests:
Person (life, health, physical integrity)
Property and other pecuniary interests
Honor and reputation
Possession (both lawful and actual)
Public interests
It is also worth noting that the right to self-defense applies both when the attack affects oneself and when it affects a third party. One has the same right to defend others as to defend oneself.
What qualifies as an "attack" in the context of self-defense?
For there to be a right to self-defense, there must be an "attack" in the legal sense. This typically requires an active infringement of interests.
Some important clarifications:
A mere omission is generally not considered an attack that justifies self-defense
In special cases, omissions may qualify, e.g., when a person refuses to open a door for someone they've locked in, or when a mother refuses to feed her child
In disputes over the exercise of control over real estate, there can often be doubt about what constitutes an "attack"
Pure breaches of order are generally not considered attacks that justify self-defense
Preventive self-defense – self-defense against future attacks
While Danish and Swedish penal laws require the attack to be commenced or imminent, the 1902 Penal Code does not have such a requirement. This means that in Norwegian law, there may be an opportunity for so-called preventive self-defense—defense measures against an attack that is not immediately imminent.
This has been particularly relevant in cases of long-term abuse. In two well-known cases from the 1980s, individuals who had killed long-term abusers (respectively a wife who killed her husband and a son who killed his father) were acquitted by the jury.
The crucial factor is whether the action does not exceed what is "necessary" to prevent the attack, something that will typically vary depending on whether the attack is more or less imminent.
The requirement that the attack must be unlawful
A condition for the right to self-defense is that the attack is unlawful. It is not required, however, that it be punishable.
Whether an act is unlawful depends on private and public law rules. As a rule of thumb, any attack on a legally protected interest can be considered unlawful, unless there is a specific reason that makes it lawful, for example:
Necessity
Public authority actions
Lawful self-help
The illegality is assessed objectively. This means that:
Even if the attacker is in good faith, it does not exclude the right to self-defense
Nor does it exclude the right to self-defense if the attacker is criminally insane
Regarding attacks by animals, it has traditionally been considered that this does not justify self-defense unless the animal is used as a tool by a human. This is because the law's rules are written for humans, not animals, and an animal cannot act unlawfully. Recent case law, however, has opened up for the analogy of self-defense rules in certain situations involving animal attacks.
How far can one go in self-defense?
Limitations in self-defense actions
A self-defense action must not go beyond what is "necessary" to prevent the attack. This applies both in intensity and duration.
The penal law does not require strict proportionality between the attack and the defense. The determining factor is the ethical judgment of the self-defense action, where among other things the following factors play a role:
The danger of the attack
The culpability of the attacker
The attacked legal interest
The defense action is justified by law provided it does not exceed what presented itself as necessary for the prevention, and that "in consideration of the danger of the attack, the fault of the attacker, or the attacked legal interest it must not be deemed unconditionally improper to inflict such harm as intended by the action".
Opportunity to flee
A debated question is the significance of a flight opportunity. Here, two questions must be kept separate:
Can the defense action be said to be necessary when the attacked can flee?
The answer is yes. "Flight is the opposite of defense, and one is not obliged to cowardice," as Augdahl put it.
How far can the attacked go in defense when there is an opportunity to flee?
Here, a concrete assessment must be made based on whether it was "unconditionally improper" to choose defense over flight.
Subjective conditions of the defender
The law provides the attacked a broad margin of safety by making a self-defense action only punishable when it is "unconditionally improper". This takes into account that people may have different perceptions of how far it is reasonable to go in asserting their rights.
Regarding the motive of the defense action, there has been discussion about whether the intent to avert the attack must be the actor's purpose, or if other motives can also be accepted. If self-defense is viewed as private law enforcement, the action must be considered lawful even if the motive is not commendable—for example, if one intervenes against an attack on a third party because the attacker is an old enemy.
Self-defense against public service actions
The right to self-defense under § 48 in principle also applies to unlawful actions by public authority, but this creates particular problems.
Judicial decisions
A judicial decision must—unless it is so flawed it can be considered a nullity—be respected as long as it is not overturned or changed. The person affected by the decision cannot resist enforcement on the grounds that the decision is incorrect.
Administrative service actions
For administrative service actions the issue is more complicated. It may involve an action taken independently of a judicial decision (e.g., an arrest or search), or an error made during the execution of a judicial decree.
Practice shows that self-defense against public service actions can only be recognized to a very limited extent. Any mistake by the police, whether in fact or law, does not justify self-defense unless the arrest appears to be a clear abuse.
Exceeding self-defense
Under § 48, fourth paragraph, a person who has exceeded the limits of self-defense is exempt from punishment "if the excess occurred solely due to an emotion or distress caused by the attack". The nature of the emotion is irrelevant—it can be anger as well as fear.
It also does not matter if the attacked was aware that they went too far. The crucial factor is that the excess is due to the emotion or distress, not other motives such as revenge.
The provision gives the attacked an additional margin in addition to what they receive by the law's use of the term "unconditionally improper". It implies exemption from punishment, but does not make the action lawful. This means the action can be met with self-defense from the original attacker, and can provide grounds for liability for damages.
Self-help – when can one assert one's rights on their own?
What is self-help?
Self-help occurs when a rights-holder asserts their rights on their own instead of through judicial decision and enforcement. Examples can be:
The owner retrieves their item from the thief or from a third party who bought the item from the thief
The landlord, who unsuccessfully attempted to get a legally evicted tenant to move, puts the furniture on the street and changes the locks
The boundary between self-help and self-defense can in some cases be fluid. It is considered self-defense if the owner catches the thief in the act and takes the item from them on the spot, since the "attack" is not considered over until the thief has removed the item from the scene.
Legal and illegal self-help
The starting point is that self-help is not lawful. In a rule-of-law society, parties should not enforce their rights by their own power, but go through judicial decision and enforcement.
Nevertheless, not all self-help is illegal. The question is "whether it can be reasonably required that the person who considers their rights violated is referred to seeking enforcement through public authorities' assistance, or whether without disrupting societal life and without risk of consequences in this regard, they can be allowed to enforce their right on their own".
A significant distinction is between:
Self-help that establishes a new order
Self-help that restores a previously disrupted state
Self-help that establishes a new order
Self-help that establishes a new order is generally not recognized. Even if there is a clear violation, the aggrieved party must go to court and possibly help themselves with a temporary injunction.
Exceptions can apply:
In a real emergency under § 47
With prior consent to self-help
When the law expressly provides for self-help
Self-help that restores a previously disrupted state
The issue is more difficult when it concerns restoring a previous state that has been changed against the will of the entitled party.
The first condition is that the acting party has the material right on their side. When there is a deliberate breach of rights by the other side, there is little hesitation in accepting the self-help as justified. Direct use of force may also be allowed in such cases.
Even if a made change has not been done in bad faith, restoration that can be achieved without violence against persons and without significant damage, for example by removing an obstacle, should be acceptable. The more the other party's conduct resembles a coup changing the existing state, the stronger the reason to allow self-initiated restoration.
Illegality and punishability
If a self-help is unlawful, it does not necessarily mean that it is punishable. It depends on whether there is a criminal law provision that targets the action.
Even if self-help is not approved as lawful, it may in some cases be exempt from punishment because the relevant criminal provision only protects the materially entitled party. This depends on the interpretation of the specific criminal provision:
Penal Code §§ 392 and 395 protect possession, and therefore also apply to someone who has the material right on their side but uses unlawful self-help
Penal Code §§ 393, 396, and 397, according to case law, only protect the materially entitled party, and therefore do not apply to a person asserting their rights, even if done through unlawful self-help
Regarding provisions on vandalism (§§ 291 and 391), it is more uncertain how the situation should be judged
Conclusion
Self-defense and lawful self-help represent two important exceptions to the principle that law enforcement should be carried out through the public legal system. While self-defense is about averting unlawful attacks, self-help is about restoring or enforcing one's rights independently.
The right of self-defense occupies a central place in criminal law and provides relatively wide access to defense, limited by the requirement that the defense action must not exceed what is necessary and must not be "unconditionally improper".
Self-help is generally not allowed but may under certain circumstances be accepted, especially regarding restoring an unlawful change of a previous state. The Norwegian Penal Code has no general provision on self-help, and the boundaries for lawful self-help must therefore be found in case law and legal theory.
Both in self-defense and self-help, considerations of proportionality and necessity must be taken into account, but the legal order recognizes that there are situations in which private law enforcement is necessary to protect legitimate interests.
