A Defensible Defense?: Reexamining Castle Doctrine Statutes
Harvard Law School
October 28, 2011
Harvard Journal on Legislation, Vol. 47, No. 2, p. 523, 2010
Recent years have seen a proliferation of so-called “castle doctrine” statutes – laws that provide home dwellers with more expansive self-defense protections if they resort to lethal force in confrontations with intruders. The passage of such laws and subsequent uses of the defense have captured the public imagination, prompting significant media attention, as well as skeptical and critical scholarship from the legal academic community.
Considering the current prevalence of castle laws and the often polarized nature of the debate concerning their application, this Article argues that it is important to excavate the doctrine from the culture wars rhetoric in which it has been mired. This Article contends that the current discourse has become too firmly rooted in the overly reductive, potentially fallacious dichotomy of American political partisanship. It aims to link the castle doctrine’s moral and philosophical underpinnings to those of more broadly accepted self-defense doctrines, to examine the potentially harmful and unexpected consequences of its elimination, and to challenge its cultural framing in current politically-tinged legislative debates and ideological mappings. By rooting the discussion of these laws in a broader framework of over-criminalization and systemic inequality, the Article ultimately argues that eliminating the castle defense might actually harm as opposed to help socially and politically marginalized groups.
Please note that the copyright in the Harvard Journal on Legislation is held by the President and Fellows of Harvard College.
Number of Pages in PDF File: 32
Keywords: Castle Doctrine, Self-Defense, Criminal Law, Criminalization, Cultural Discourse, Legal History, Race, Victims' Rights, Stand Your Ground
JEL Classification: K14Accepted Paper Series
Date posted: October 30, 2011 ; Last revised: July 7, 2013
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