A New Defense for Self-Defense
Buffalo Criminal Law Review, Vol. 9, p. 475, 2006
58 Pages Posted: 31 Jul 2010 Last revised: 12 Sep 2010
Date Written: July 31, 2010
Private defense, like self-defense, has been virtually undisputed both in the past and present and even taken for granted, and perhaps particularly for this reason, sufficient attention has not always been given to the rationale underlying private defense. As a result, the legal arrangements set for private defense in the different legal systems are deficient, inconsistent, and, at times, replete with internal contradictions. This Article seeks to propose a sound rationale for the concept of private defense. It begins by attempting to clearly and precisely delineate the scope of the defense and weed out cases that are occasionally (and, I maintain, mistakenly) included in the framework of its scope by means of two general and imperative distinctions: between justification and excuse and between the definitive components of offenses and those of defenses. With regard to the first distinction, I consider the validity of its application and its possible implications for private defense. Since the validity of the second distinction is undisputed as an empiric fact (at least formally) in all modern penal codes, the question raised is whether there is a significant difference between the definition of offenses and the definition of defenses. The answer to this question is relevant to a number of issues, and of particular relevance to private defense are its implications for the application of the principle of legality and with regard to the mental element that should be required of the actor in such situations. Next I embark on a discussion of the various theories competing for predominance as elucidations of private defense. These theories and this discussion then serve as the background and foundation for the construction of the article's proposed rationale for private defense. The novelty of this rationale is in its integrative approach, melding a number of the proposed justifications for self-defense, rather than taking the traditional path of espousing one, all-excluding rationale.
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