75 Pages Posted: 22 Aug 2012
Date Written: 2001
The law of self-defense has rarely produced as much academic or popular heat as it has in the past two decades. Widely publicized trials, such as the Goetz and Menendez cases, have generated deep-seated fears of a law unmoored from principle. Those fears have generated a standard public critique--that the criminal law has become too soft and subjective, too wedded to syndrome science and prone to weak-kneed affection for defendants. The criminal law has lost its "objectivity," so the argument goes. The poster child, and even the alleged cause of this development, is the battered woman.
In this article, the author presents evidence that much of this public debate is misdirected: the charge of subjectivity and abuse, if not a deception, is a diversion. The problem with the law of self-defense is neither new nor limited to the battered woman; it is as old and as persistent as the law's search for an objective meaning for necessity. Based on a survey of twenty years of self-defense cases, the author sought to "test" claims of objectivity by focusing on what purports to be one of the most objective of self-defense rules: the requirement that the threat must have been "imminent" for the defendant's response to have been permissible. Time is not something legal scholars generally study. The author chose to study imminence, however, because it seems the quintessential definition of "objectivity," the hard case. Perhaps more importantly, there is no more controversial element in the law of self-defense. As George Fletcher has put it: "The central debate in the theory of self-defense for the last decade has been whether we should maintain a strict requirement of imminence."
Part I of this article explains the legal issues of imminence and the law of self-defense as well as the construction of the legal debate as a question of subjectivity. Part II presents the results of the author’s survey and its method. Part III argues that the so-called objectivity of contemporary doctrine is belied by its content; that doctrine we call "objective" leaves open many questions and risks the embrace of contradictions. This Part traces these failures to a basic theoretical disagreement about the meaning of necessity in the law of self-defense. Part IV argues that "subjectivity" cannot resolve these questions. It argues that even the apparently most subjective aspects of self-defense law -- such as battered woman syndrome -- may rest on objective legal propositions. Finally, Part V questions whether a discourse of objectivity and subjectivity really helps us understand the criminal law, in self-defense or the many other places it may be found. The author argues that if there is a problem with the law of criminal defenses today, it is not with syndromes or subjectivity, but with a criminal law that purports to be neutral and precise but remains full of contested meanings.
Keywords: self-defense, imminence, battered women, family law, criminal law, criminal defense
JEL Classification: K14, K10, K19
Suggested Citation: Suggested Citation
Nourse, Victoria, Self-Defense and Subjectivity (2001). University of Chicago Law Review, Vol. 68, 1235-1308, 2001; Georgetown Public Law Research Paper No. 12-103. Available at SSRN: https://ssrn.com/abstract=2114561