The Rhetoric of Self-Defense
Berkeley Journal of Criminal Law, Forthcoming
56 Pages Posted: 23 Oct 2008
Date Written: October 22, 2008
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: Suggested Citation