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Copyright (c) 2005 Virginia Law Review Association
Virginia Law Review

ESSAY: JUSTIFYING THE RIGHT TO SELF-DEFENSE: A THEORY OF FORCED CONSEQUENCES

June, 2005

91 Va. L. Rev. 999

Author

Shlomit Wallerstein*

Excerpt



ALTHOUGH the right to self-defense is recognized in all jurisdictions, it has proven difficult to justify. This difficulty arises from the existence of three classes of aggressors who provoke the right to self-defense - intentional aggressors, non-culpable aggressors, and non-agent aggressors - and is further complicated by the treatment of a fourth class, innocent bystanders. A comprehensive justification of the right to self-defense must explain why someone defending against each category of aggressors, including innocent bystanders, is entitled to prefer his own life over that of the aggressor; otherwise, it must identify a pertinent difference between those instances in which the right applies and those in which it does not.

Over the last three decades three main lines of argument have been advanced to justify the right to self-defense. First, the "lesser harmful results" theory argues that allowing a defender to kill his aggressor is, on balance, the lesser harmful outcome, because the aggressor alone is responsible for the situation and hence the weight of his interests ought to be diminished. Second, according to the "forced choice" argument, self-defense is explained as a mixture of a justification and an excuse. It can be considered an excuse because the defender lacks real choice, and so his act is not fully voluntary. As a justification, the forced choice theory builds on the civil-law principle of fault-based selection. The aggressor, as the one who forces the defender to choose between his own life and ...
 
 
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