30 Pages Posted: 17 Mar 2008
This article is a contribution to a symposium honoring Sandy Kadish. This article seeks to explore whether and to what extent our understanding of self-defense depends upon a citizen's relationship with the state. Part II begins by setting forth Professor Kadish's claim that self-defense is "a right to resist aggression" that is held by a citizen against the state. After contending that such an account is insufficient to justify self-defense, the remainder of the article seeks to explore the relationship between the state and self-defense. Part III argues that self-defense is a pre-political moral right, as opposed to a political right that is constructed by the social contract. Recognizing that even if self-defense is a moral right it will eventually intersect with the state, Part IV examines this intersection, discussing how different theories of the state may yield different self-defense rules and how the state's failure to recognize self-defense may undermine its legitimacy. Part V discusses the relationship between the state and self-defense at the levels of constitutional right and criminal law rule. From this examination I ultimately conclude that a project that seeks to understand self-defense from a purely moral dimension is not only completely defensible but also most likely to yield answers to the fundamental disagreements about self-defense's justification, but a project that seeks to understand our criminal law's adoption of any particular self-defense doctrine must be cognizant of the multiple layers of moral, political, and jurisprudential theory that make the law what it is.
Keywords: criminal law, self-defense
Suggested Citation: Suggested Citation
Ferzan, Kimberly Kessler, Self-Defense and the State. Ohio State Journal of Criminal Law, Vol. 5, No. 2, 2008. Available at SSRN: https://ssrn.com/abstract=1106474