Academic

Ferzan on Self-Defense & the State

By Lawrence Solum

Kimberly Kessler Ferzan (Rutgers-Camden) has posted Self-Defense and the State (Ohio State Journal of Criminal Law, Vol. 5, No. 2, 2008) on SSRN. Here is the abstract:

This article is a contribution to a symposium honoring Sandy Kadish. This article seeks to explore whether and to what extent our understanding of self-defense depends upon a citizen's relationship with the state. Part II begins by setting forth Professor Kadish's claim that self-defense is "a right to resist aggression" that is held by a citizen against the state. After contending that such an account is insufficient to justify self-defense, the remainder of the article seeks to explore the relationship between the state and self-defense. Part III argues that self-defense is a pre-political moral right, as opposed to a political right that is constructed by the social contract. Recognizing that even if self-defense is a moral right it will eventually intersect with the state, Part IV examines this intersection, discussing how different theories of the state may yield different self-defense rules and how the state's failure to recognize self-defense may undermine its legitimacy. Part V discusses the relationship between the state and self-defense at the levels of constitutional right and criminal law rule. From this examination I ultimately conclude that a project that seeks to understand self-defense from a purely moral dimension is not only completely defensible but also most likely to yield answers to the fundamental disagreements about self-defense's justification, but a project that seeks to understand our criminal law's adoption of any particular self-defense doctrine must be cognizant of the multiple layers of moral, political, and jurisprudential theory that make the law what it is.

Very interesting!  Highly recommended.

Full post as published by Legal Theory Blog on April 15, 2008 (boomark / email).