Law Commons^™

Reimagining Criminal Justice: In Defense Of Self-Defense, Jude Diebold

Reimagining Criminal Justice

Since the Louisville, Kentucky police killed Breonna Taylor in the middle of the night in her own apartment, the United States has seen an uptick in protests against racially motivated police violence. However, the officers responsible for her death have not been criminally charged, in part because her boyfriend, unaware that police were entering the apartment in the middle of the night, shot one of the officer’s in the leg, “justifying” the next six rounds that were shot by the police and ultimately killed an innocent woman during the botched police raid.

As if this was not outrageous enough, in …

The Need To Attend To Probabilities—For Purposes Of Self-Defense And Other Preemptive Actions, Larry Alexander

San Diego Law Review

I was not certain I was going to write something for this symposium. After all, I had written a lot on the topic of self-defense, so what was there left to say that I had not said before? I have concluded, however, after reading a new generation of literature on self-defense, that most who write on the topic neglect its perhaps most important aspect, namely, that it is a preemptive action. As a preemptive action, self-defense perforce takes place before the attack to which it is a response occurs. This preemptive aspect of self-defense brings with it a nest of …

The Nature Of Self-Defense, Samuel C. Rickless

San Diego Law Review

What is self-defense? Most theorists of self-defense are mainly interested in explaining why and when we are morally justified in defending ourselves from a threat posed by another. The moral questions here are important, not just because self-defense represents an interesting moral conundrum, but because morality, at least in this case, is, or should be, a reliable guide to the law. So theorists of self-defense often start with paradigm cases—the culpable aggressor, the justified aggressor, the innocent aggressor, the innocent threat, and so on—and try to explain moral intuitions about them with the help of moral theory, whether Hohfeldian, utilitarian, …

Defense And Desert: When Reasons Don’T Share, Kimberly Kessler Ferzan

San Diego Law Review

Assume Culpable Aggressor threatens Innocent Victim with a knife. Victim is stronger than Culpable Aggressor and is able to defend herself by punching Culpable Aggressor in the face, causing him to stumble back and drop the knife. Not only was this action necessary, but also Victim believed it to be so to save her life.

I take it that this is an uncontroversial case of self-defense. My question is whether this is also a case of punishment. Uwe Steinhoff suggests that it might be. Indeed, he states that “nothing hinders an act from being both punitive and defensive. In fact, …

Steinhoff And Self-Defense, Michael S. Moore

San Diego Law Review

I shall first describe what moral combat would be if it existed, separate it into distinct species, and say why it is so undesirable that one should be brought to acknowledge its existence only reluctantly and as a last resort. I will then detail two ways in which rights to do things—often called “action rights” or “active rights”—such as the right to defend oneself, are integrated into standard deontic logic: (1) Hohfeld’s way and (2) the older but still popular Kantian alternative that Hurd and I recently defended. The first of these is compatible with—indeed, inviting of—moral combat, whereas the …

The Vindication Of Good Over Evil: “Futile” Self-Defense, Douglas Husak

San Diego Law Review

The burgeoning self-defense literature, like that in most areas of moral and legal philosophy, typically begins with and seeks to rationalize our intuitions. I submit that the intuitive judgment of virtually all respondents, at least initially, is that IV is permitted to exercise her right of self-defense, however futile, and scratch WA. This intuition, I believe, is incredibly powerful and robust; I certainly have it myself. Yet quite a few philosophers and legal theorists contend IV is not permitted to employ futile self-defense against WA. Presumably, they believe IV must passively accept her fate without injuring WA. Why hold this …

Self-Defense And Culpability: Fault Forfeits First, Richard J. Arneson

San Diego Law Review

Under what conditions is it morally permissible to kill someone in order to save your own life—or the life of another who is threatened? There seem to be clear cases. Threatened by an assailant who is trying to kill you for no good reason, you may use lethal force if necessary to save yourself from death or serious injury from the assailant’s attack. Threatened with death in the form of an onrushing runaway truck, you may not save yourself by using a bystander or imposing on a bystander in a way that inflicts severe harm on her. In a justly …

Self-Defense, Necessity, And The Duty To Compensate, In Law And Morality, Kenneth W. Simons

San Diego Law Review

What is the proper scope of the right to self-defense in law and morality? How does this right compare to the privilege of necessity? Professor Uwe Steinhoff’s manuscript offers a distinctive and wide-ranging perspective on the controversial questions these privileges raise. This essay engages with a number of his arguments, particularly focusing on legal and moral duties of compensation.

First, this essay examines how Anglo-American tort law would likely address the defender’s liability in a variety of scenarios, including disproportionate, excessive, and unnecessary force; unreasonable and reasonable mistakes; and use of force against innocent aggressors. It next considers whether private …

Replies, Uwe Steinhoff

San Diego Law Review

Many philosophers who write on self-defense tend to ignore the self-defense discussions offered by legal scholars, and accordingly they often ignore the law or pay insufficient attention to it. In my experience, this attitude stems from a misperception of legal scholarship as some kind of positivistic interpretation of legal documents and as positive law being irrelevant for deciding what the morally right answer to the issues raised by self-defense are. I find this attitude deplorable because legal scholarship, especially in the field of criminal law, is more often than not straightforward moral philosophy; and criminal law especially gives expression to …

When Should Force Directed Against A Police Officer Be Justified Under The Maine Criminal Code? - Toward A Coherent Theory Of Law Enforcement Under The Code's Justification Provision, F. Todd Lowell

Maine Law Review

In State v. Clisham, the Law Court unanimously found that section 104(1) of the Maine Criminal Code operated to justify the use of non-deadly force by a private citizen seeking to prevent an illegal search of his house by police officers. This Comment will focus on the justification provisions of the Maine Criminal Code as they relate to law enforcement practices and will examine how the Law Court's most recent decision interpreting one of the provisions affects that relationship. This Comment will argue that the policy underlying the justification provisions mandates that the justification defense be denied to persons responding …

State V. Thurston: An Examination Of Assualt, Self-Defense, And Trespass In Relation To Domestic Violence, Megan E. Magoon

Maine Law Review

Darrell Thurston and Suzanne Harmon were romantically involved on an intermittent basis for five years and had one child together. As a result of an altercation that took place at Harmon’s home in Sullivan, Maine, on September 27, 2007, between Thurston and Harmon, Thurston was charged with assault, criminal mischief, and obstructing report of crime or injury. The testimony during the trial illuminated the major factual differences between Thurston’s and Harmon’s accounts of the night the incident took place. Thurston requested a self defense jury instruction based on his version of what had happened, which the trial court ultimately denied. …

Why Is Torture Different And How Different Is It?, Sherry F. Colb

Sherry Colb

Almost every serious commentator to address the moral and legal question of torture has taken for granted the proposition that the infliction of torture is a sufficiently grave evil to require a distinctly demanding moral scrutiny, one that categorically sets torture apart from other terrible things (including killing) that human beings do to one another. To borrow from the Supreme Court's death penalty jurisprudence, most people agree that torture is "different. " Under the Eighth Amendment, the fact that death is different does not rule out its application; it simply alters the relevant procedural and substantive standards. By contrast, many …

Race And The Doctrine Of Self Defense: The Role Of Race In Determining The Proper Use Of Force To Protect Oneself, Richard Klein

Richard Daniel Klein

No abstract provided.

Of Trayvon Martin, George Zimmerman, And Legal Expressivism: Why Massachusetts Should Stand Its Ground On "Stand Your Ground", Louis N. Schulze Jr.

Faculty Publications

This essay suggests that the expressive impact of Stand Your Ground laws alters the shared norms governing our collective understanding of the moral limits of “self-defense.” The essay argues that the theory of Legal Expressivism can explain the widespread misunderstanding of the limits of self-defense, as demonstrated by the institutional and popular reactions to the killing of Trayvon Martin by George Zimmerman. To support this thesis, the piece briefly explains Stand Your Ground statutes and legal expressivism. It then details the nature of the expressive function of these statutes and asserts that Massachusetts, which recently considered the adoption of such …

Advantaging Aggressors: Justice & Deterrence In International Law, Paul H. Robinson, Adil Ahmad Haque

All Faculty Scholarship

Current international law imposes limitations on the use of force to defend against unlawful aggression that improperly advantage unlawful aggressors and disadvantage their victims. The Article gives examples of such rules, governing a variety of situations, showing how clearly unjust they can be. No domestic criminal law system would tolerate their use.

There are good practical reasons why international law should care that its rules are perceived as unjust. Given the lack of an effective international law enforcement mechanism, compliance depends to a large degree upon the moral authority with which international law speaks. Compliance is less likely when its …

Race And The Doctrine Of Self Defense: The Role Of Race In Determining The Proper Use Of Force To Protect Oneself, Richard Klein

Scholarly Works

No abstract provided.

Why Is Torture Different And How Different Is It?, Sherry F. Colb

Cornell Law Faculty Publications

Almost every serious commentator to address the moral and legal question of torture has taken for granted the proposition that the infliction of torture is a sufficiently grave evil to require a distinctly demanding moral scrutiny, one that categorically sets torture apart from other terrible things (including killing) that human beings do to one another. To borrow from the Supreme Court's death penalty jurisprudence, most people agree that torture is "different. "

Under the Eighth Amendment, the fact that death is different does not rule out its application; it simply alters the relevant procedural and substantive standards. By contrast, many …

Rule And Exception In Criminal Law (Or, Are Criminal Defenses Necessary?), Janine Young Kim

Janine Kim

Intimate Homicide: Gender And Crime Control, 1880-1920, Carolyn B. Ramsey

Publications

The received wisdom, among feminists and others, is that historically the criminal justice system tolerated male violence against women. This article dramatically revises feminist understanding of the legal history of public responses to intimate homicide by showing that, in both the eastern and the western United States, men accused of killing their intimates often received stern punishment, including the death penalty, whereas women charged with similar crimes were treated leniently. Although no formal "battered woman's defense" existed in the late 1800s and early 1900s, courts and juries implicitly recognized one--and even extended it to abandoned women who killed their unfaithful …

Equality, Objectivity, And Neutrality, Alafair S. Burke

Michigan Law Review

When is homicide reasonable? That familiar, yet unanswered question continues to intrigue both courts and criminal law scholars, in large part because any response must first address the question, "reasonable to whom?" The standard story about why that threshold question is both difficult and interesting usually involves a juxtaposition of "objective" and "subjective" standards for judging claims of reasonableness. On the one hand, the story goes, is a "subjective" standard of reasonableness under which jurors evaluate the reasonableness of a criminal defendant's beliefs and actions by comparing them to those of a hypothetical reasonable person sharing all of the individual …

Self-Defense In Kentucky: A Need For Clarification Or Revision, Robert G. Lawson, William S. Cooper

Law Faculty Scholarly Articles

Recent prosecutions have pushed Kentucky’s concept of self-defense beyond the limits of tolerance for complexity and confusion. There is little doubt that there exists a critical need to clarify or to revise the Kentucky law of self-defense. A demonstration of this need and a description of its nature are the principal objectives of this article. To accomplish these objectives, it is necessary to provide some information about the recent history of homicide and self-defense in Kentucky and to describe some important recent interpretations of this law by the Supreme Court of Kentucky.

Societal Concepts Of Criminal Liability For Homicide In Medieval England, Thomas A. Green

Articles

THE early history of English criminal law lies hidden behind the laconic formulas of the rolls and law books. The rules of the law, as expounded by the judges, have been the subject of many studies; but their practical application in the courts, where the jury of the community was the final and unbridled arbiter, remains a mystery: in short, we know little of the social mores regarding crime and crimi- nals. This study represents an attempt to delineate one major aspect of these societal attitudes. Its thesis is that from late Anglo-Saxon times to the end of the middle …

Criminal Law--Self-Defense--Justification Needed For Use Of Deadly Force, Edward Perry Johnson

West Virginia Law Review

No abstract provided.