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November 10, 2008

Deep thoughts about self-defense

Though NOT required or even suggested reading, students really interested in self defense issues might be intrigued (and likely confused) by this new paper by a law & psychology professor titled, "An Attack on Self-Defense."  Here is the paper's abstract:

Debate about the distinction between justification and excuse in criminal law theory has been lively during the last thirty years. Questions as to the nature and structure of various affirmative defenses continue to be raised, and the doctrine of self-defense has been at the center of much discussion.  Three main articulations have been advanced: a purely objective theory, a purely subjective theory, and an objective/subjective hybrid.  In the present Article, I support a hybrid model and propose a three-requirement framework that delineates the criteria that must be met to satisfy self-defense as a legitimate justification.  Because this three-requirement framework raises the floor of justification, it rejects numerous types of defense-related conduct that may qualify as justifiable by other theories.  I believe that although these related forms of conduct are not necessarily justifiable, they may be excusable.  As such, I outline and discuss a six-tier hierarchy by which self-defense and defense-related instances of reactive violence may be classified according to the degree (complete or partial) to which they are justifiable or excusable. In these ways, I address and attempt to resolve several critical questions about the nature of self-defense that have remained open in the literature.

November 10, 2008 | Permalink

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Comments

I was talking to a friend from my undergrad days about justification/excuse and also about murder/manslaughter. Eventually I was referred to a hilarious Penny Arcade comic.

So in honor of Veterans' Day: http://penny-arcade.com/comic/2008/10/24/

Posted by: Aman | Nov 11, 2008 1:52:12 PM

After looking at that paper, it seems interesting that only some jurisdictions require that the actor not have been the initial aggressor in an altercation leading to a killing. It seems to me quite strange that this additional rule is not universal.

I suppose the opposing side wants to protect those who, although they might have begun altercations, ended up having to kill to defend themselves.

Nevertheless, I still think that the instigator of an altercation is the "least cost avoider" (can I even use that term here?) and because they kicked off a deadly situation which led to them killing the victim, they were certainly far more at fault than the victim, post hoc. That kind of argument makes sense to me a priori. On the other hand, the non-law student in me distrusts rules and situations that disallow a jury to easily "feel" an altercation for themselves. I don't know how to explain it, but maybe after reading the Thomas-Flowers murder case, I feel less assured by the judicial system's use of byzantine rules and checklists (at least, they must seem that way to juries) that must be met before any humane thought can be given to a given case.

Posted by: Aman | Nov 11, 2008 9:57:26 PM

I think self defense is an essential part for a human, specially for girls. I feel glad to read this discussion here. keep it up.

Posted by: Asset Search | Apr 22, 2010 11:22:10 PM

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