Self-Defence in Criminal Law (Introduction)
Self-Defence in Criminal Law, 2006, ISBN: 978-1-84113-607-3
29 Pages Posted: 27 Jul 2018
Date Written: July 3, 2018
This book combines a careful philosophical discussion of the rationale justifying self-defence together with detailed discussions of the range of statutory self-defence requirements, as well as discussions of numerous other relevant issues (ie, putative self-defence, excessive self-defence, earlier guilt, battered women). The book argues that before formulating definitions for each aspect of self-defence (necessity, proportionality, retreat, immediacy, mental element, etc.) it is imperative to determine the proper rationale for self-defence and, only then, to derive the appropriate solutions. The first part of the book therefore contains an in-depth discussion of the rationale for self-defence: why society does not just excuse the actor from criminal liability, but rather justifies his act. The author critically analyses theories that have been proposed up to the present (including the culpability of the aggressor; the autonomy of the attacked person; protection of the social-legal order; balancing interests and choice of the lesser evil; etc.), points out the weaknesses of each theory and then proposes a new theory that explains the rationale behind the justification of self-defence. The new rationale proposed is that for the full justification of self-defence, a balance of interests must be struck that takes into account the expected physical injury to the attacked person (in the absence of defensive action) vis-a-vis the expected physical injury to the aggressor (as a result of defensive action), as well as all of the relevant abstract factors, which are threefold: the autonomy of the attacked person, the culpability of the aggressor and the social-legal order. The author demonstrates how ignoring one or more of these factors leads to erroneous results. In the chapters following the book shows that the proposed rationale can be applied to develop convincing solutions for the various questions raised.
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