Law Commons^™

Fortifying The Self-Defense Justification Of Punishment, Zac Cogley

Zac Cogley

Desert And Avoidability In Self-Defence, François Tanguay-Renaud

François Tanguay-Renaud

Jeff McMahan rejects the relevance of desert to the morality of self-defense. In Killing in War he restates his rejection and adds to his reasons. We argue that the reasons are not decisive and that the rejection calls for further attention, which we provide. Although we end up agreeing with McMahan that the limits of morally acceptable self-defense are not determined by anyone’s deserts, we try to show that deserts may have some subsidiary roles in the morality of self-defense. We suggest that recognizing this might help McMahan to answer some unanswered questions to which his own position gives rise.

Self-Defense And Political Justification, Christopher Kutz

Christopher Kutz

No abstract provided.

So Much Activity, So Little Change: A Reply To The Critics Of Battered Women's Self-Defense, Kit Kinports

Kit Kinports

Prior to 1970, the term "domestic violence" referred to ghetto riots and urban terrorism, not the abuse of women by their intimate partners. Today, of course, domestic violence is a household word. After all, it has now been ten years since the revelation of football star O.J. Simpson's history of battering purportedly sounded "a wake-up call for all of America"; ten years since Congress enacted legislation haled as "a milestone . . .truly a turning point in the national effort to break the cycle" of violence; and twenty years since Farrah Fawcett's portrayal of Francine Hughes in the movie The …

Defending Battered Women's Self-Defense Claims, Kit Kinports

Kit Kinports

This Article contends that many battered women who kill their abusive spouses can legitimately raise the standard self-defense claim. No substantial extension of self-defense doctrine is required to justify the acquittal of battered women on self-defense grounds. Furthermore, no special "battered women defense" is necessary or even desirable in such cases. Part I of this Article summarizes the results of psychological research studying abused women and battering relationships. It further explains the concept of the :battered woman syndrome" which describes the effects of sustained physical and psychological abuse by one's husband. Part II discusses the requirements of a successful self-defense …

Neither Facts Nor Law Support Israel’S Self-Defense Claim Regarding Its 2014 Assault On Gaza, James M. Leas

James M Leas

When the prosecutor of the International Court of Justice announced in January 2015 that she would open “a preliminary examination of the situation in Palestine,” Israeli officials launched “a public diplomacy campaign” to discredit the court. Israeli officials rested their multi-pronged attack on the court on the claim that it acted in self-defense against Hamas rockets. However, neither facts nor law supports the Israeli claim that it was acting to protect its citizens. Contemporaneous reports from authoritative Israeli sources show that Israeli forces launched lethal attacks on the West Bank and Gaza before Hamas launched its first rockets to end …

Constrained Choice: Mothers, The State, And Domestic Violence, Rona Kaufman Kitchen

Rona Kaufman Kitchen

Mothers who are the victims of domestic violence face unique challenges in their quest for safety. The legal response to domestic violence requires that mothers respond to abuse in specific state-sanctioned manners. However, when mothers respond accordingly, such as by reporting abuse and leaving the abusive relationship, their safety and the safety of their children is not guaranteed. Moreover, by responding in state-sanctioned manners, mothers risk a host of negative consequences including increased threat to their immediate and long-term safety, the loss of their children, undesired financial, health, and social consequences, and criminal prosecution. On the other hand, when mothers …

Self-Defense And The Mistaken Racist, Stephen P. Garvey

Stephen P. Garvey

How should the law respond when one person (D) kills another person (V), who is black, because D believes that V is about to kill him, but D would not have so believed if V had been white? Should D be exonerated on grounds of self-defense? Some commentators argue that D's claim of self-defense should be rejected. He should be convicted and punished. I argue, however, that denying D's claim of self-defense would be at odds with the principle that criminal liability and punishment should only be imposed on an actor if he chooses to cause or risk causing a …

The Ban On The Bomb – And Bombing: Iran, The U.S., And The International Law Of Self-Defense, Mary Ellen O'Connell

Mary Ellen O'Connell

Since the March 2003, U.S.-led invasion of Iraq, rumors have persisted of a United States plan to attack Iran. Some U.S. officials are apparently willing to contemplate the use of military force to prevent Iran from developing nuclear weapons. Under international law, however, there is no right without Security Council authorization to use significant military force on the territory of another state to stop nuclear research. Knowing this, alternative arguments are being floated by those sympathetic to the plan to attack Iran. One such argument asserts that the U.S. could attack Iran on the basis of collective self-defense with Iraq …

Evolving Christian Attitudes Towards Personal And National Self-Defense, David B. Kopel

David B Kopel

This Article analyzes the changes in orthodox Christian attitudes towards defensive violence. While the Article begins in the 19th century and ends in the 21st, most of the Article is about the 20th century. The Article focuses on American Catholicism and on the Vatican, although there is some discussion of American Protestantism.

In the nineteenth and early in the twentieth centuries, the traditional Christian concepts of Just War and of the individual's duty to use force to defend himself and his family remained uncontroversial, as they had been for centuries.

Disillusionment over World War I turned many Catholics and Protestants …

Self-Defence In An Age Of Terrorism: Introductory Remarks, Mark A. Drumbl

Mark A. Drumbl

None available.

'Lesser Evils' In The War On Terrorism, Mark A. Drumbl

Mark A. Drumbl

No abstract provided.

Defending Weak States Against The "Unwilling Or Unable" Doctrine Of Self-Defense, Dawood I. Ahmed

Dawood Ahmed

Victim states occasionally use force to target non-state actors that have allegedly attacked the victim state, on the pretext that the host state is “unwilling or unable” (“ineffective”) to act. The international law permissibility of such force is unclear: state responsibility principles do not hold ineffective states liable, the universe of state practice is small and the International Court of Justice and some scholars deny the legality of such force while others disagree. This article is the first dedicated to a critical analysis of the “unwilling or unable” doctrine from both, a law and policy perspective. It argues that, although …

Beyond The George Zimmerman Trial: The Duty To Retreat And Those Who Contribute To Their Own Need To Use Deadly Self-Defense, Alon Lagstein

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Many critics have accused Florida's "Stand Your Ground" law of helping George Zimmerman get away with the murder of Trayvon Martin by allowing him to cause the very confrontation in which he ended Martin's life. This paper explores how American law treats defendants who have contributed to their own need to use deadly self-defense. This paper concludes that the duty to retreat, or lack thereof, is not the deciding factor in whether such defendants are allowed to claim self-defense.

Institutionalizing Exemplary Narratives-Stories As Models For And Movers Of Law.Pdf, Randy D. Gordon

Randy D. Gordon

“Stand Your Ground” Laws And Justice: The Controversy Over Immunity To Criminal Prosecution, Talon R. Hurst

Talon R Hurst

“Stand Your Ground” laws have received a plethora of media attention in 2012, none of which have been in a positive light. These laws providing a person with immunity from criminal prosecution are now being scrutinized for their confusing nature. “Stand Your Ground” laws allow a person to stand his or her ground and meet force with force, including deadly force, when specific requirements are met. These laws intend for law-abiding citizens to protect themselves and others without fear of being criminally prosecuted. However, they often don not provide consistent guidelines to enforce and apply the immunity. Therefore, two persons …

Going Medieval: Targeted Killing, Self-Defense, And The Jus Ad Bellum Regime, Craig Martin

Craig Martin

The U.S. targeted killing policy employs drone-launched missiles to kill suspected terrorists and insurgents in countries in which the U.S. is not clearly involved in an armed conflict. It has justified the program on two bases: that the U.S. is in an armed conflict with Al Qaeda and associated organizations; and that the U.S. can engage in the strikes as an exercise of self-defence. These strikes constitute a use of force against the states in which the targets are located, in jus ad bellum terms, and the claim to the right of self-defence is similarly reliance upon a jus ad …

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.

Operation Geronimo: The Legality Of The Targeted Killing Of Osama Bin Laden, Amanda M. Gibbens

Amanda M. Gibbens

My recent article entitled, Operation Geronimo: The Legality of the Targeted Killing of Osama bin Laden addresses cutting-edge legal issues such as: counter-terrorism, self-defense, state sovereignty, and targeted killing. Due to the contemporary nature of the topic, few authors have published detailed assessments of the legality of the killing of Osama bin Laden. In my writing I analyze Operation Geronimo under both self-defense and law enforcement principles of treaty-based and customary international law. Additionally, I discuss U.S. constitutional law, the Authorization for Use of Military Force, and Executive Order 12,333 prohibiting assassinations.

Preventive Force, Going A Step Further, Harry Borowski Esq

harry borowski

The 9/11 attacks and the 2003 Iraq War have led statesmen and scholars to reconsider their positions with regards to self-defense. Rogue states and terrorist organizations armed with sophisticated weapons present challenges that were unforeseen until now. In order to meet these threats some states have resorted to use anticipatory self-defense among which we can find the hotly debated notions of preemption and prevention.

This article raises the question of whether the notion of preventive force is starting to become an accepted means of anticipatory self-defense against threats originating from rogue states or terrorist organizations. This article claims that we …

Fictitious States, Effective Control, And The Use Of Force, Brian C. Finucane

Brian C Finucane

This Article examines state practice relating to violent non-state actors operating from “fictitious” states. Fictitious states are entities that possess international legal personality but not effective control over their territories and populations. As the Article explains, many of the world’s states are legal fictions. Although the problem is most vividly illustrated by the United States’ recent military strikes in Pakistan, Yemen and Somalia, the problem is far broader. This Article shows that the security threat posed by non-state actors operating from ungoverned territory is not new. Lapses in state control have been common throughout history and violent non-state actors have …

Targeting Anwar Al-Aulaqi: A Case Study In U.S. Drone Strikes And Targeted Killings, Benjamin R. Farley

Benjamin R Farley

Anwar al-Aulaqi is a natural born American citizen of Yemeni descent who was reportedly added to U.S. targeted killing lists in early 2010. The United States argues that al-Aulaqi is a lawful target due either to his role in an ongoing armed conflict between the United States and Al Qaeda or under the auspices of self-defense. In fact, the United States relies on self-defense and armed conflict in general to justify the lawfulness of its targeted killing programs. When applicable, each of these frameworks provides legal authority for a state to use force against an individual. However, neither framework provides …

Fictitious States, Effective Control, And The Use Of Force, Brian C. Finucane

Brian C Finucane

This Article examines state practice relating to violent non-state actors operating from “fictitious” states. Fictitious states are entities that possess international legal personality but not effective control over their territories and populations. As the Article explains, many of the world’s states are legal fictions. Although the problem is most vividly illustrated by the United States’ recent military strikes in Pakistan, Yemen and Somalia, the problem is far broader. This Article shows that the security threat posed by non-state actors operating from ungoverned territory is not new. Lapses in state control have been common throughout history and violent non-state actors have …

Fictitious States, Effective Control, And The Use Of Force, Brian C. Finucane

Brian C Finucane

This Article examines state practice relating to violent non-state actors operating from “fictitious” states. Fictitious states are entities that possess international legal personality but not effective control over their territories and populations. As the Article explains, many of the world’s states are legal fictions. Although the threat is most vividly illustrated by the United States’ recent military strikes in Pakistan, Yemen and Somalia, the problem is far broader. This Article shows that the security threat posed by non-state actors operating from ungoverned territory is not new. Lapses of state control over territory have been common throughout history and violent non-state …

Fictitious States, Effective Control, And The Use Of Force, Brian C. Finucane

Brian C Finucane

This Article examines state practice relating to violent non-state actors operating from “fictitious” states. Fictitious states are entities that possess international legal personality but not effective control over their territories and populations. As the Article explains, many of the world’s states are legal fictions. Although the problem is most vividly illustrated by the United States’ recent military strikes in Pakistan, Yemen and Somalia, the problem is far broader. This Article shows that the security threat posed by non-state actors operating from ungoverned territory is not new. Lapses in state control have been common throughout history and violent non-state actors have …

Making Murder Legal: How Laws Expanding Self-Defense Allow Criminals To "Get Away With Murder", Elizabeth B. Megale

Elizabeth B. Megale

No abstract provided.

Mcdonald V. Chicago, The Fourteenth Amendment, The Right To Bear Arms And The Right Of Self-Defense, Richard L. Aynes

Richard L. Aynes

The Supreme Court of the United States has granted certiorari in the case of McDonald v. City of Chicago to consider this question: "Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses." This case follows and seeks to build upon District of Columbia v. Heller which held that the Second Amendment protects both the right to self-defense and what has been termed an individual right to bear arms. Of course, Heller’s application is limited to the federal government and has no direct …

What's Reasonable?: Self-Defense And Mistake In Criminal And Tort Law, Caroline Forell

Caroline A Forell

In this Article, Professor Forell examines the criminal and tort mistake-as-to-self-defense doctrines. She uses the State v. Peairs criminal and Hattori v. Peairs tort mistaken self-defense cases to illustrate why application of the reasonable person standard to the same set of facts in two areas of law can lead to different outcomes. She also uses these cases to highlight how fundamentally different the perception of what is reasonable can be in different cultures. She then questions whether both criminal and tort law should continue to treat a reasonably mistaken belief that deadly force is necessary as justifiable self-defense. Based on …

Looking For Trouble: Framing And The Dignitary Interest In The Law Of Self-Defense, Margaret Raymond

Margaret Raymond

This article addresses when an actor can be denied a claim of self-defense based on the fact that, at an earlier point in time, she could have avoided the ultimate violent encounter in which she resorted to the use of lethal force. The article analyzes the issue as a problem of “framing,” relying on research from the area of cognitive psychology to point out the critical importance of the framing of an issue to its ultimate resolution. It then identifies a persistent error in the writing of many scholars about this problem. While most commentators assert that the law draws …

The Gaelic Goetz: A Case Of Self-Defense In Ireland, Stacy Caplow

Stacy Caplow

For two years, the name Padraig Nally was a household word in Ireland. Nally killed an intruder on his farm in a rural community by shooting him in the back as he was running away, already injured from a brutal beating. The intruder was a Traveller, a minority group in Ireland that is mistrusted and ostracized. The killing was so far from the paradigmatic self-defense claim that the trial judge refused to instruct the jury on a full justification defense. He was convicted of manslaughter under a doctrine in Ireland called “excessive force.” After the appeals court reversed because this …