Justifying 'Killing in Self-Defence'

20 Pages Posted: 22 May 2009

Date Written: May 19, 2009


This is a review essay of Fiona Leverick’s Killing in Self-Defence (OUP 2006). Our review focuses on Leverick’s central forfeiture claim, and her theory’s applicability outside the context of killing to prevent killings. Part I sets the stage by discussing the quest for the holy grail: the justification for self-defense. Part II summarizes Leverick’s argument and argues that there are two significant flaws with her forfeiture argument. First, Leverick’s conditional forfeiture argument appears ad hoc. She simply constructs the right to self-defense around her intuitions without setting forth a principled argument for doing so. Second, Leverick cannot explain why innocent aggressors and threats (her own defined test cases) forfeit their rights. Part III discusses the limits of Leverick’s exploration - the use of deadly force for self-defense - noting both that Leverick’s treatment of defensive force by battered women is inconsistent with her treatment of killing to prevent rape and that Leverick’s reliance on the right to life as foundational limits her ability to explain why one may use non-deadly force against a non-deadly aggressor. We conclude that Leverick’s theory is not successful. She attempts to justify the killing of those whom she should not - innocent aggressors and passive threats - and she fails to present a theory capable of including those whom she must - non-deadly defenders. Leverick’s theories of forfeiture and the right to life ultimately do not justify self-defense.

Keywords: self-defense, criminal law

Suggested Citation

Grabczynska, Arlette and Ferzan, Kimberly Kessler, Justifying 'Killing in Self-Defence' (May 19, 2009). Journal of Criminal Law and Criminology, Vol. 99, No. 1, 2009. Available at SSRN: https://ssrn.com/abstract=1406987

Arlette Grabczynska

DLA Piper ( email )

401 B Street
San Diego, CA 92101
United States

Kimberly Kessler Ferzan (Contact Author)

University of Virginia, School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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