Defending Imminence: From Battered Women to Iraq

Abstract

The war against Iraq and nonconfrontational killings by battered women are two recent examples of a more general theoretical problem. The underlying question is when may a defender act in self-defense. While some nineteenth century common law cases vested the rights in the defender, arguing that it was unfair to force her to live in fear, contemporary domestic and international law cast the balance decidedly on the side of the aggressor, by forcing the defender to wait until the aggressor's attack is imminent. The Bush Administration and the battered woman simply ask whether the pendulum swung too far in the aggressor's favor. Why wait for imminence, if the defender needs to act earlier?

In response to the plight of battered women, many criminal law scholars advocate jettisoning the imminence requirement. They contend that imminence's role is simply to establish necessity. It thus follows that in those situations where imminence proves to be a poor proxy for necessity, the need to act trumps the imminence requirement. Exporting such reasoning to international law yields the conclusion that America's war against Iraq could also be justified by a showing of sufficient need.

This Article claims that the significance of the imminence requirement is independent of the needs of the defender. Self-defense is not merely self preferential acting. Rather, self-defense is best understood as a limited right to respond to aggression. Imminence serves as the actus reus for aggression, separating those threats that we may properly defend against from mere inchoate and potential threats. Thus, when one seeks to pull at the thread of imminence, the fabric of self-defense itself unravels.

Keywords: criminal law, international law, self-defense, imminence, Bush preemption doctrine