The Rhetoric of Self-Defense

Berkeley Journal of Criminal Law, Forthcoming

Marquette Law School Legal Studies Paper No. 08-25

56 Pages Posted: 23 Oct 2008

See all articles by Janine Young Kim

Janine Young Kim

Chapman University, The Dale E. Fowler School of Law

Date Written: October 22, 2008

Abstract

The rhetoric of self-defense is a powerful instrument in the hands of legal actors to shape our understanding of justified violence in society. This rhetoric is based not in the legal definition of self-defense but rather in the paradigmatic situation of deadly response to deadly attack, which offers useful guidance in interpreting the law's required elements. However, the paradigm also tends to embrace claims of morality and right that threaten to expand self-defense beyond recognition to consider inappropriate values such as vengeance and punishment.

In this Article, the author argues that self-defense should be viewed not only as a moral but also as a core political concept - one that inspires the formation of civil society and the state under social contract theory. According to this view, self-defense and the criminal law share a common aim: to prevent harm and preserve life for peaceable coexistence. This common aim, which is more particularly expressed through political theory rather than moral philosophy, forms the substantive justification for self-defense in the criminal law.

Keywords: self-defense, rhetoric, criminal law

JEL Classification: K14, K4, K42

Suggested Citation

Kim, Janine Young, The Rhetoric of Self-Defense (October 22, 2008). Berkeley Journal of Criminal Law, Forthcoming; Marquette Law School Legal Studies Paper No. 08-25. Available at SSRN: https://ssrn.com/abstract=1288142

Janine Young Kim (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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