Kimberly Kessler Ferzan
University of Virginia, School of Law
Law and Philosophy, Vol. 24, pp. 711-749, 2005
In this Article, I claim that justified self-defense is best understood as having both objective and subjective aspects. Part I argues against the fully objective view, demonstrating that objectivists about justification often take contradictory positions on justification and justifiable risks. I claim that we can unravel this paradox if we recognize that in some instances, law and morality both recognize the relevance of epistemic viewpoints for the rightness of action. Questions of distribution are one such instance, and I maintain that self-defense is grounded in distributive justice. In Part II, I contend that self-defense is not wholly subjective, however. The subjectivist position justifies too much, by denying that conduct may be reasonable but wrong and by creating an asymmetry between offenses and defenses. Cutting through this contradiction, I claim that self-defense's triggering conditions are defined objectively, while the limitations on self-defense's use are assessed subjectively. This, too, I claim, is in keeping with self-defense's distributive nature. Part III patrols the borderline of the triggering condition/limitation distinction. I define the objective triggering-conditions as culpability-based, and locate the appropriate epistemic vantage point in the self-defender. Finally, I claim that the subjective requirement is fully subjective: that the defender has the right to act so long as he believes there is any probability of attack, and that an inquiry into the reasonableness of the defender's belief is not required.
Number of Pages in PDF File: 39
Keywords: Criminal law, self-defense, justification
Date posted: March 13, 2006