CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, April 9, 2021

Funk on Values in Self-Defense Law

T. Markus Funk (University of Colorado School of Law) has posted Understanding the Role Values Play (and Should Play) in Self-Defense Law (American Criminal Law Review, Vol. 58, 2021 - on SSRN. Here is the abstract:
Self-defense is a right so fundamental that the scholarly literature regularly refers to it as “the ancient right” or “the first civil right.” But despite the right’s bedrock status in criminal law, legislators, academics, and every-day citizens alike all have strongly held— and, in fact, often strongly divergent—opinions about when it is legally (and morally) appropriate to exercise self-preferential force. Some favor “tough-on-crime” approaches, according broader leeway to those defending themselves against attacks. Others advocate for a more “humanitarian” construction of the law, providing greater protections even to culpable attackers who threaten their victims with serious injury.

There have been many high-profile opportunities, ranging from the Ahmaud Arbery, Bernhard Goetz, Breonna Taylor/Kenneth Walker, and Trayvon Martin cases to the proliferation of “stand-your-ground” laws and efforts to address tragic battered intimate partner situations, to explore self-defense’s deeper rationale. Regrettably, self-defense analysis has nevertheless largely atrophied. What has been lacking, and what this Article will provide, is a common analytical language and framework from which to discuss cases involving the use of purportedly justified defensive force.

Tackling a topic that has bedeviled the law since before the carving of Hammurabi’s Code is inherently ambitious. That said, the goal here is nothing less than to materially advance the patinaed and important self-defense debate. And essential to the objective of achieving a better understanding of self-defense law is the development of a comprehensive, value-based dialogue that applies to self-defense.

In Part I, we will discuss the challenge with the current legal vernacular and its near-exclusive focus on technical and instrumental legal arguments. More specifically, the perspective developed here is that self-defense scholars, judges, legislators, and other decision-makers and thought-leaders routinely (and, indeed, almost always) overlook the central, common-sense role bedrock value judgments play in how we assess self-defense claims. So, what we predictably are left with are undemocratic legislative and judicial decisions necessarily reached on the basis of hidden normativity and false dichotomies. This, it will be argued, not only prevents us from gaining a more profound and transparent understanding of where these differences come from, but also leads to unjust outcomes and an erosion of society’s faith in the broader justice system because it is viewed as sociologically and psychologically uncreditworthy.

As examined in Parts II and III, how we in practice—whether consciously or subconsciously—weigh these competing interests leads to very different real-world outcomes. The same fact pattern will be lauded as justified self-defense in one legal culture, while derided as criminal, or even barbaric, in another.

The values proposed in Part III as offering a (although not necessarily the only) viable explanation for self-defense’s rationale are: (1) reducing overall societal violence by protecting the state’s collective monopoly on force; (2) protecting the attacker’s individual right to life; (3) maintaining equal standing between people; (4) protecting the defender’s autonomy; (5) ensuring the primacy of the legal process; (6) maintaining the legitimacy of the legal order; and (7) deterring potential attackers. The systematic, value-centric framework proposed here is designed to offer critical insights into the public’s perception of what is a “right” or “just” outcome. But more importantly, it allows us to see more clearly the relative importance a given legal system places on the defender and the attacker’s respective rights to autonomy and non-interference. In the context of today’s widespread calls for criminal law reform and well-defined limits on state power, such transparency is particularly critical.

I explain in Part IV that, as we begin to develop a more plausible understanding of what actually drives the right to self-defense, we promote a long-overdue, explicit discussion about the core values a society can—and should—accept as justifications for this most basic defense against criminal charges.

As noted, at no time in our history has it been more important for the justice system to persuasively explain why it is doing what it is doing, thereby shoring up the public’s trust and support. As the searing, challenging debate about “just outcomes,” procedural and distributional fairness, due process, and state power dominates the public discourse, it is high time that we better understand the rationale underpinning one of our justice system’s—and, indeed, one of humanity’s—most fundamental rights.

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