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Any Which Way But Loose: Interpretive Strategies and Attitudes Toward Violence in the Evolution of the Anglo-American 'Retreat Rule'

30 Pages Posted: 26 Jul 2013  

Garrett Epps

University of Baltimore School of Law

Date Written: Winter 1992


This note elaborates upon this difference of opinion as it relates to the issue of retreat and self-defense. Of the two perspectives, I am more in agreement with Professor Horowitz. The law could profitably use finer distinctions, and the line between justification and excuse would be far more useful if it were clearer. To explore the issues raised by the question of retreat, this note will examine the evolution of the "retreat rule," from its origins in the medieval common law of England through contemporary applications of it and its twin in the decisions of American courts. For the sake of focus, the inquiry will center purely on the issue of the duty to retreat. Equally important questions -- such as the possibility of an exception to the duty when a person is attacked in his or her dwelling, and the extremely controversial "co-tenant" exception to this "castle doctrine" -- will of necessity be slighted in the present inquiry.

Part II will discuss the historical roots of the retreat rule as formulated in the common law of England. Part III will show how the rule was modified in the United States during the nineteenth century, drawing on leading cases to illustrate the roots of the American rule of "no retreat." Part IV will particularize the interpretive strategies American courts have evolved in their application of the new American jurisprudence, then illustrate these strategies by analyzing selected cases in three court systems: the United States Supreme Court, which adopted the "no retreat" rule in 1895 but has been ambivalent in its subsequent applications of the rule; Alabama, which adopted the retreat rule from the common law in 1847 and has remained officially faithful to it ever since, elaborating upon its meaning in an unusually rich jurisprudence; and Illinois, which in 1902 followed the lead of the Supreme Court in adopting the American rule of "no retreat" and has consistently been counted as a "no retreat" jurisdiction ever since. The conclusion will tentatively suggest specific reforms to contemporary jurisprudence of retreat and self-defense.

Keywords: retreat rule, violence, legal interpretation, legal history, "no retreat" rule, criminal law, Supreme Court, state law, law of England, justifiable homicide, self-defense, common-law doctrine of homicide

JEL Classification: K14, K19, K49

Suggested Citation

Epps, Garrett, Any Which Way But Loose: Interpretive Strategies and Attitudes Toward Violence in the Evolution of the Anglo-American 'Retreat Rule' (Winter 1992). Law and Contemporary Problems, Vol. 55, No. 1, Winter 1992, pp. 303-331. Available at SSRN: or

Garrett Epps (Contact Author)

University of Baltimore School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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