THE DOCTRINE OF SELF DEFENSE IN CRIMINAL LAW: AN ANALYSIS (original) (raw)
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A Study on the Current Theories of the Philosophy and Principles of Self-Defense
Estação Científica (UNIFAP)
The self-defense entity is a legal phenomenon which is included in most countries' constitution in order to protect the people right when exposed to a current or potential danger or offense. The philosophy of acceptance of the self-defense is based on the theories of natural rights, social contract, the two-right conflict, and spiritual obligation. The self-defense has been justified based on several principles such as less harmful results, the possibility of blaming the offender, offending and attacking the defender's right to live, the offender's responsibility, the defender's right for removal and denial of threat. The legal systems each complying with the social and cultural conditions and status, beliefs, the traditions, and etc. try to develop the conditions of realization of self-defense in their constitution, however there are common areas and differences between the legal systems and determination of them plays an important role in justifying this entity. This criminal entity is among the justifiable factors of crime that in case of inclusion of its conditions, the defender will bear no criminal and civil responsibility. Keywords: Self-defense. The justified factors of crime. The proportionality of defense. The necessity of defense. Legal system.
2006
This book combines a careful philosophical discussion of the rationale justifying self-defence together with detailed discussions of the range of statutory selfdefence requirements, as well as discussions of numerous other relevant issues (ie, putative self-defence, excessive self-defence, earlier guilt, battered women). The book argues that before formulating definitions for each aspect of self-defence (necessity, proportionality, retreat, immediacy, mental element, etc.) it is imperative to determine the proper rationale for self-defence and, only then, to derive the appropriate solutions. The first part of the book therefore contains an in-depth discussion of the rationale for self-defence: why society does not just excuse the actor from criminal liability, but rather justifies his act. The author critically analyses theories that have been proposed up to the present (including the culpability of the aggressor; the autonomy of the attacked person; protection of the sociallegal order; balancing interests and choice of the lesser evil; etc.), points out the weaknesses of each theory and then proposes a new theory that explains the rationale behind the justification of self-defence. The new rationale proposed is that for the full justification of self-defence, a balance of interests must be struck that takes into account the expected physical injury to the attacked person (in the absence of defensive action) visa -vis the expected physical injury to the aggressor (as a result of defensive action), as well as all of the relevant abstract factors, which are threefold: the autonomy of the attacked person, the culpability of the aggressor and the social-legal order. The author demonstrates how ignoring one or more of these factors leads to erroneous results. In the chapters following the book shows that the proposed rationale can be applied to develop convincing solutions for the various questions raised.
The American criminal law review
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 a...
A Practical Account of Self-Defence (Law and Philosophy)
I argue that any successful account of permissible self- defence must be action-guiding, or practical. It must be able to inform people’s deliberation about what they are permitted to do when faced with an apparent threat to their lives. I argue that this forces us to accept that a person can be permitted to use self-defence against Apparent Threats: characters whom a person reasonably, but mistakenly, believes threaten her life. I defend a hybrid account of self-defence that prioritises an agent’s subjective perspective. I argue that it is sufficient to render the use of defence permissible if an agent reasonably believes that (a) she is morally innocent, and (b) if she does not kill this person, then they will kill her. I argue that the correct account of self-defence must distinguish between whether an agent is permitted to inflict harm, and whether the target is liable to bear that harm.
The Concept of Self-Defense in American and Polish Legal Systems – a Comparative Analysis
Review of European and Comparative Law
The article is devoted to the issue of self-defense in Polish and American law . Currently, there are attempts to widen the scope of necessary self-protection in Polish legislation and to implement provisions which allow for using greater degree of force by a person attacked at home . The justification of the draft refers to the American law which is more developed in the context of the defense of habitation . Thus, the article provides an analysis of existing legal solutions in American criminal law concerning e .g . the legal definition of self-defense, the use of deadly force, the duty to retreat, the castle doctrine and the provisions which expand this doctrine in comparison with the parallel legal solutions existing in Poland .
use of force in self defense.docx
This work is done keeping in view the Drone Attacks in Pakistan by US led Military from Afghanistan, discussing the vires of such use of force against non state functions in a membee state
A New Defense for Self-Defense
Buffalo Criminal Law Review, 2006
Private defense, like self-defense, has been virtually undisputed both in the past and present and even taken for granted, and perhaps particularly for this reason, sufficient attention has not always been given to the rationale underlying private defense. As a result, the legal arrangements set for private defense in the different legal systems are deficient, inconsistent, and, at times, replete with internal contradictions.