{"id":1461,"date":"2008-10-23T10:21:54","date_gmt":"2008-10-23T15:21:54","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=1461"},"modified":"2008-10-23T10:21:54","modified_gmt":"2008-10-23T15:21:54","slug":"why-dont-we-punish-people-who-kill-in-self-defense","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2008\/10\/why-dont-we-punish-people-who-kill-in-self-defense\/","title":{"rendered":"Why Don’t We Punish People Who Kill in Self-Defense?"},"content":{"rendered":"

\"\"<\/a>My colleague Janie Kim<\/a> has a fascinating new article<\/a> on SSRN called The Rhetoric of Self-Defense<\/em>. In the article, she explores a surprising difficult problem in criminal law theory: why we don’t punish people who kill in order to save themselves from deadly attacks. I say “surprisingly difficult” because the self-protection defense is a well-established, noncontroversial aspect of criminal law. Compared to, say, the insanity defense, self-protection provokes little deep-seated opposition. Indeed, some purported self-defenders (like Bernhard Goetz, pictured above) have become folk heroes of sorts. Given its intuitive appeal and widespread support, the self-protection defense must rest on a firm theoretical foundation, right?<\/p>\n

It turns out, though, that the dominant strands of criminal law theory have a hard time providing a compelling justification for the defense.<\/p>\n

For instance, under the utilitarian view, self-protection might be recognized as a defense because the social harm produced by the defendant’s action (that is, the death of the initial aggressor) is less than the social harm that would have been caused otherwise (that is, the death of the defendant). But, as Janie points out, this is a hard argument to push very far: we normally regard all lives as being of equal value, and, if we really did want to get into the business of weighing the relative value of two lives, it surely would not be the case that the lives of all aggressors would turn out to be worth less than the lives of all defenders.<\/p>\n

After identifying the weaknesses of conventional explanations for the self-protection defense, Janie suggests that we have been looking in the wrong place: rather than seeking justification for the defense in moral theory, we should look to political theory. This is a profound move that runs counter to the normal way defenses are conceived in criminal law theory. The conventional approach sees defenses as protecting morally right conduct from criminal punishment. Under Janie’s political approach, by contrast, we should start by considering why we have government and criminal law in the first place: to protect ourselves from interpersonal violence. (Here, she draws heavily on the social contract tradition of political theory.) If we understand this to be the purpose of criminal law, then we can see the self-defender as someone whose motives are congruent with the very reason we have criminal law: the prevention of violence. As Janie puts it,<\/p>\n

This account helps to explain why our understanding of self-defense is often more intuitive than deliberate. The rationale behind self-defense is both basic and familiar because it constitutes the foundation of our notion of an organized, civilized society.<\/p><\/blockquote>\n

Put differently, since the whole point of the social contract is to protect ourselves from violence, it would make no sense to have a legal system (which is merely a byproduct of the social contract) that punishes people for their individual efforts to protect themselves from violence.<\/p>\n

Although Janie’s political theory provides a justification for the self-protection defense, it turns out not to be so robust a version of the defense as some might like. The social contract may contemplate self-protection, but it does not countenance private vengeance. Quite the contrary, the social contract aims to bring private vengeance–and the cycles of interpersonal violence that vengeance breeds–to an end. Thus, Janie notes with concern the subtle themes of deserved vengeance that have marked much of the public discourse surrounding, for instance, Bernhard Goetz and Judy Norman (a battered wife who also became something of a folk hero by killing her husband while he was sleeping and then claiming self-defense). Indeed, Janie suggests that a basic flaw with attempts to develop a moral justification for self-defense is that the whole theoretical project tends to characterize the moral value of the defender in elevated terms and the moral value of the aggressor in degraded terms, which plays into the unfortunate rhetorical conflation of self-protection with vengeance.<\/p>\n

Janie’s argument is subtle and complex, but I think she is really onto something here, not only as to self-defense, but as to criminal law theory more generally. I share her discomfort with the tendency of some writers to treat criminal law as nothing more than a branch of applied moral theory. I agree with Janie that moral theory seldom provides clear answers to the really difficult problems in criminal law. Other philosophical traditions can enrich the discussion of these problems, so I am happy to see Janie and a growing number of other criminal law scholars thinking hard and well about the implications of political theory for criminal law.<\/p>\n","protected":false},"excerpt":{"rendered":"

My colleague Janie Kim has a fascinating new article on SSRN called The Rhetoric of Self-Defense. In the article, she explores a surprising difficult problem in criminal law theory: why we don’t punish people who kill in order to save themselves from deadly attacks. I say “surprisingly difficult” because the self-protection defense is a well-established, […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[30,35],"tags":[],"class_list":["post-1461","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-legal-scholarship","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/1461","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=1461"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/1461\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=1461"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=1461"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=1461"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}