The “ancient right” of self-defense is among the handful of criminal law areas that has received substantial academic (and increasingly public) attention, and deservedly so, given the foundational role it plays in criminal justice systems the world over. The current debate about over-policing, violence, and self-defense has vividly brought to the forefront the challenges inherent in setting boundaries between the state’s claimed “monopoly on force” and the individual’s right to deploy self-preferential violence against an attacker. But, as this Article points out, by continuing to overlook the role values and value judgments play in guiding “just” self-defense outcomes, the bedrock analysis providing the starting point for this debate has been undermined. Put another way, the debate has, in a sense, lacked moral and analytical coherence.
In the wake of George Floyd’s brutal killing, drawing the boundaries of appropriate self-preferential force has assumed a central role as society considers how the criminal justice system actually operates and where reform is most needed. This Article seeks to advance that debate by proposing a new, value-centric method of addressing the toughest self-defense questions that have bedeviled commentators for hundreds of years and across all legal systems. For example, is self-defense best viewed as a justification or an excuse? Should a person mistaken about the facts be authorized to use self-defense? What is the relationship between “necessary” defensive force and “imminent threats”? When should a person be required to retreat from a conflict (or avoid it altogether)? How should the law treat morally innocent threats? And should deadly force ever be authorized to defend mere property?
A tremendous amount of scholarly ink has been spilled on the various technical and instrumental aspects of self-defense, and one cannot really question the inescapable centrality of value judgments inherent in any adjudication of a self-defense scenario. Yet, curiously, there has been little scrutiny given to the core questions of how, when, and why values should influence self-defense outcomes. Rather, values and the related normative judgments have largely operated in the background and, thus, in the shadows.
The approach developed here is tethered to the recognition that justice systems, when confronted with self-defense claims, must always balance various competing interests (and values). These interests include ensuring procedural justice and the need to shore up the justice system’s legitimacy and creditworthiness; the need to allow a defender to use defensive force for protection; the role of equal standing between citizens; everyone’s presumptive “right to life”; the presumptive primacy of the legal process; general and specific deterrence; and the state’s historical claim to a monopoly on force. To date, the scholarly discussion, legislative debate, and judicial decisionmaking have largely failed to engage with this broader array of competing values in any comprehsnive manner, focusing instead on technical and instrumental interests or, to the extent discussed at all, on only one or two narrow values (specifically, the rights of the defender versus the rights of the attacker). As a result, justice systems, and those working within them and impacted by them, from the outset have been limited in their abilities to persuasively, transparently, and fairly address crucial public perceptions of what amounts to “just” and “right” self-defense outcomes as well as the emphasis the legal system places (and should place) on state power.
Some prominent self-defense scholars, for example, narrowly focus on one outcome- determinative value when they contend that human life is inviolate except in extreme situations involving fully culpable attackers threatening to kill their victim. The result is a proposed regime that is at odds with all known selfdefense laws and would refuse a defender the right to use deadly force to prevent violent rape and all other forms of culpably inflicted serious bodily injury short of death. The other side of the continuum is occupied by commentators who support “stand-your-ground” and “castle doctrine” laws grounded almost exclusively on protecting the autonomy of the individual defender at any price. Supporters of such uncompromising views argue with equal passion for their respective positions when assessing prominent examples, such as George Zimmerman’s claimed right to self-defense in his deadly encounter with Trayvon Martin; Texas retiree Joe Horn’s shotgun killing of two men he suspected of burglarizing his neighbor’s home; and Travis McMichael’s taking of Ahmaud Arbery’s life while purportedly trying to effect a “citizen’s arrest” for a claimed trespass on a Georgia construction site. The position taken here is that all such hard-edged approaches—whether described as “pro-defender” or “pro-attacker”— are fundamentally flawed because they for no good reason elevate one or two narrow values to the exclusion of all others.
As these in-the-public-consciousness examples demonstrate, the absence of a truly value-centric self-defense dialogue has resulted in a weak methodology for meaningfully tackling a critical criminal justice issue in a manner that is transparent, democratic, and sustainable. In the face of the various recent— and often tragic—high-profile incidents such as these referenced above, thoughtful people within and outside the halls of academia have had occasion to pause and think more profoundly about self-defense’s underlying rationale. The present undertaking is designed to fortify this effort.
This Article’s admittedly ambitious aim, then, is to dust off the existing approaches (some of which have been dominating the narrative for centuries), hold them to the contemporary light, and suggest that there is a better way of conceiving the doctrine of self-defense, specifically, and the limits on state power, more generally. Closely examining people’s blend of deeply personal views on a range of competing values allows us to understand why the same set of facts may be applauded as justified self-defense in one legal culture or region of the country, while derided as criminal (or even barbaric) in another. This open discussion about the central role value judgments play in assessing selfdefense claims, in turn, encourages more democratic and transparent legislative and judicial decisions and commentary.
Put another way, this Article argues that finding solutions to today’s fraught criminal justice reform debates requires, as a starting point, a common language of values. Such a process promises to yield outcomes with staying power because they will have been reached not on the basis of hidden normativity and false dichotomies, but rather through an all-things-considered analysis of values, and the relative weighting of these values, deemed relevant in each challenging self-defense case where rights and interests lock horns.
T. Markus Funk Ph.D.,
Cracking Self-Defense’s Intractable “Difficult Cases”,
100 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol100/iss1/2