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

UNDERSTANDING THE ROLE VALUES PLAY (AND SHOULD
PLAY) IN SELF-DEFENSE LAW
T. Markus Funk, Ph.D.*
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332
I. THE SCHOLARLY COMMUNITYS SURPRISING NEGLECT OF VALUES AS SELF-
DEFENSE DECISION-GROUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333
II. SETTING THE ANALYTICAL STAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
A. The German Fruit Thief . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342
B. Controversial Contemporary Cases . . . . . . . . . . . . . . . . . . . . 345
III. ADVANCING THE DEBATE THROUGH A MORE VALUE-CENTRIC DIALOGUE
INTRODUCING THE SEVEN DECISION-GROUNDS . . . . . . . . . . . . . . . . . . . 349
A. Value #1: Reducing Overall Societal Violence by Protecting the
State’s Collective Monopoly on Force . . . . . . . . . . . . . . . . . . 350
B. Value #2: Protecting the Attacker’s Individual (Presumptive)
Right to Life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
C. Value #3: Maintaining Equal Standing Between People . . . . . 357
D. Value #4: Protecting the Defender’s Autonomy. . . . . . . . . . . . 366
1. The Personal Domain is Important . . . . . . . . . . . . . . . . . . 367
2. . . . But Autonomy Cannot Be Absolute . . . . . . . . . . . . . . 368
E. Value #5: Ensuring the Primacy of the Legal Process . . . . . . . 369
F. Value #6: Maintaining the Legitimacy of the Legal Order . . . . 371
G. Value #7: Deterring Potential Attackers . . . . . . . . . . . . . . . . . 375
1. General Deterrence and Self-Defense . . . . . . . . . . . . . . . 376
2. Specif‌ic Deterrence and Self-Defense . . . . . . . . . . . . . . . 378
H. Why Protection of the “Legal Order” Is Not Treated as a
Separate Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379
* The Author served as a federal prosecutor in Chicago; Section Chief with the U.S. State Department–Balkans;
law clerk with a federal court of appeals and district court; and lecturer in law at, among other institutions, Oxford
University, Northwestern University, Loyola University, the University of Colorado, and the University of
Chicago. The Author in particular thanks Jonathan Herring for his patience and invaluable insights—and, of course,
for supervising the Oxford University doctoral thesis that forms the basis for the instant Article; Jeremy Horder for
agreeing to be the Author’s f‌irst Thesis Supervisor; and Andrew Ashworth, Andrew von Hirsch, Lucia Zedner, and
Tatjana Ho
¨rnle for serving as the Author’s Thesis Examiners. For their exceptionally helpful comments on various
drafts of the thesis, the Author also wishes to thank Andrew S. Boutros, Dominik Brodowski, Mark Dsouza, Joel
Feinberg, George P. Fletcher, Robert Leider, Daniel Polsby, Paul H. Robinson, Claus Roxin, Boaz Sangero, Robert
Schopp, Karl Sidhu, Eberhard Schmidha¨user, and Suzanne Uniacke. Finally, the Author expresses his gratitude to
Hart Publishing for permitting portions of his forthcoming book VALUING SELF-DEFENCE: THE “ANCIENT RIGHTS
RATIONALE DISENTANGLED to be adapted and previewed here. Per course, any remaining errors are the Author’s
alone. © 2021, T. Markus Funk, Ph.D.
331
I. Why Ensuring the Primacy of the Legal Process and
Maintaining the Legitimacy of the Legal Order Are Not
Coextensive Values . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
IV. THE VALUE-BASED MODEL AND THE FORFEITURE OF RIGHTS . . . . . . . . . 381
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385
INTRODUCTION
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 “hu-
manitarian” construction of the law, providing greater protections even to cul-
pable 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 justi-
f‌ied 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.
1
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 specif‌i-
cally, the perspective developed here is that self-defense scholars, judges, legisla-
tors, 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 dif-
ferences come from, but also leads to unjust outcomes and an erosion of society’s
1. And, as an added benef‌it, the same general approach can be adapted and deployed in other areas of criminal
law, such as duress, necessity, arrest, and f‌leeing felon situations.
332 AMERICAN CRIMINAL LAW REVIEW [Vol. 58:331
faith in the broader justice system because it is viewed as sociologically and psy-
chologically 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 vi-
olence 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 pro-
cess; (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 impor-
tance 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 jus-
tif‌ications for this most basic defense against criminal charges.
As noted, at no time in our history has it been more important for the justice sys-
tem 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 out-
comes,” procedural and distributional fairness, due process, and state power domi-
nates 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.
I. THE SCHOLARLY COMMUNITYS SURPRISING NEGLECT OF VALUES AS SELF-
DEFENSE DECISION-GROUNDS
Despite the countless books, chapters, and articles about the theoretical under-
pinnings of the right to self-defense, scholarship to date has, to a surprising extent,
glossed over the importance of understanding how and why values provide the
underlying rationale for the right. Indeed, to the extent that values as decision-
grounds are discussed at all in mainstream scholarship,
2
they are typically framed
very generally as a broad struggle or clash between the criminal justice system’s
2. Note that the following discussion largely focuses on the scholars who have developed the most
comprehensive theories of self-defense. That said, none of the discussed (and undiscussed) commentators’
treatments consider the full range of values discussed here.
2021] THE ROLE VALUES PLAY IN SELF-DEFENSE LAW 333

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