Academic

Grabczynska & Ferzan on Leverick on Self-Defence

By Lawrence Solum

Arlette Grabczynska and Kimberly Kessler Ferzan (DLA Piper and Rutgers, The State University of New Jersey - School of Law - Camden) have posted Justifying 'Killing in Self-Defence' (Journal of Criminal Law and Criminology, Vol. 99, No. 1, 2009) on SSRN. Here is the abstract:

This is a review essay of Fiona Leverick?s Killing in Self-Defence (OUP 2006). Our review focuses on Leverick?s central forfeiture claim, and her theory?s applicability outside the context of killing to prevent killings. Part I sets the stage by discussing the quest for the holy grail: the justification for self-defense. Part II summarizes Leverick?s argument and argues that there are two significant flaws with her forfeiture argument. First, Leverick?s conditional forfeiture argument appears ad hoc. She simply constructs the right to self-defense around her intuitions without setting forth a principled argument for doing so. Second, Leverick cannot explain why innocent aggressors and threats (her own defined test cases) forfeit their rights. Part III discusses the limits of Leverick?s exploration - the use of deadly force for self-defense - noting both that Leverick?s treatment of defensive force by battered women is inconsistent with her treatment of killing to prevent rape and that Leverick?s reliance on the right to life as foundational limits her ability to explain why one may use non-deadly force against a non-deadly aggressor. We conclude that Leverick?s theory is not successful. She attempts to justify the killing of those whom she should not - innocent aggressors and passive threats - and she fails to present a theory capable of including those whom she must - non-deadly defenders. Leverick?s theories of forfeiture and the right to life ultimately do not justify self-defense.

Recommended.

Full post as published by Legal Theory Blog on May 25, 2009 (boomark / email).