Volume 58

Understanding the Role Values Play (and Should Play) in Self-Defense Law

by T. Markus Funk

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.

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