What US Law Reformers Can Learn from Germany's Value-Explicit Approach to Self-Defense [South Carolina Law Review]

Abstract

The exercise of self-preferential force to fend off an actual or perceived threat finds itself at the center of today’s simmering criminal justice reform debate, particularly in the wake of the carefully watched (and oft-misunderstood) Rittenhouse and McMichael/Arbery cases. Never before has where - and how - to draw the boundary between governmental power and individual rights received so much attention. Unfortunately, the scholarship on this core criminal law topic has largely atrophied. We seem to be making little progress when it comes to gaining a better understanding of when, how, and why the state should authorize defensive force against another.

Sometimes a look beyond our own borders is needed to kick-start reform-minded thinking. Whether in the context of police use of force, battered intimate partner cases, or other defense of person or property situations, no group of scholars has given the critical value-judgments anchoring this “ancient civil right” more attention than those in Germany’s legal academy. But despite a scholarly output on these topics that is unsurpassed in terms of both analytical depth and sheer volume, surprisingly little is known in the English-speaking world about Germany’s unique approach to this controversial topic.

What makes this myopia particularly unfortunate is that, while legal commentators in the United States and elsewhere focus almost exclusively on the criminal law’s outcome-driven “technical” aspects and rules, generations of German scholars have rooted out the complexities involved. They for decades have uniquely engaged in deep discussions over the bedrock values at play when a justice system authorizes one citizen to kill another in self-defense. This article argues that U.S. scholars, policy-makers, judges, and criminal law practitioners interested in meaningful criminal justice reform have much to gain by understanding Germany’s transparent, value-driven approach.

The goal here, then, is both descriptive and proscriptive. It will provide the first fully comprehensive English-language analysis (and critique) of Germany’s storied self-defense law. But more than that, it put on firmer footing the means of analyzing self-defense’s critical value-judgments that are all but ignored in the English-language literature.

This is among the most important times in recent history for our justice system to shore up its moral credibility. By following (and, in fact, improving on) the German model’s unique focus on the values grounding self-defense, rather than remaining fixated simply on rules and outcomes, we position ourselves to significantly reduce the corrosive role played by hidden normativity and buried baselines. This, in turn, will advance the type of transparent and democratic decision-making necessary if we are to succeed in finally making thoughtful choices among available self-defense options.

Keywords: self-defense, notwehr, criminal, values, normativity