Rethinking Self-Defence: The 'Ancient Right's' Rationale Disentangled

Self-defence – the ‘ancient right’ – has never been more relevant than in the present era of widespread calls for criminal justice reform. The book substantially advances the patinaed discussion by introducing for the first time a comprehensive value-centric approach to thinking about the defence’s deeper rationale. It tackles core issues such as the relative importance of the State’s claimed monopoly on force, procedural justice and the need to shore up the justice system’s legitimacy and creditworthiness, everyone’s presumptive ‘right to life,’ and the importance of ensuring equal standing between citizens. And, in so doing, the book breaks ground by addressing public perceptions of ‘just’ and ‘right’ outcomes, as well as the emphasis legal systems place (and should place) on State power.

Table of Contents:
1. Setting the Stage 2. Developing the ‘Value-Based Model’ of Self-Defence I. Early Observers of the ‘Ancient Right’ of Self-Defence II. An Introduction to Th inking of Values as Decision-Grounds III. The Orthodox View: ‘Two Principles in Tension’ (Autonomy of the Defender v Autonomy of the Attacker) IV. Advancing the Debate Th rough a More Value-Centric Dialogue – An Introduction to (and Preliminary Defence of) Seven Proposed Value-Based Decision-Grounds A. Value #1: Reducing Overall Societal Violence by Protecting the State’s Collective ‘Monopoly on Force’ B. Value #2: Protecting the Attacker’s Individual (Presumptive) Right to Life C. Value #3: Maintaining the Equal Standing between People D. Value #4: Protecting the Defender’s Autonomy E. Value #5: Ensuring the Primacy of the Legal Process F. Value #6: Maintaining the Legitimacy of the Legal Order G. Value #7: Deterring (Potential) Attackers V. The Challenging Act of Balancing the Competing Values A. The Value-Based Model and the ‘Forfeiture’ of Rights B. Considering Alternative Value-Accommodation Methods 3. The Scholarly Community’s Surprising Neglect of Values as Self-Defence Decision-Grounds I. Protecting the State’s Monopoly on Force (and the Primacy of the Legal Process) II. Respect for the Attacker’s ‘Right to Life’ III. Protecting Equal Standing Among People IV. Protecting the Defender’s Autonomy V. Ensuring the Primacy of the Legal Process VI. Maintaining the Legitimacy of the Legal Order VII. Deterrence VIII. Self-Defence Scholarship’s Treatment of Values as Decision-Grounds 4. The Value-Based Model’s Answer to Common Theoretical (‘Hard Case’) Questions I. Is Self-Defence a Justification or Excuse (or Neither)? … And Why the Answer Matters A. Aggressors v Passive Threats v Innocent Bystanders – The Importance of Accurate Labelling B. Mistakes: External, Internal, and Legal Justification C. ‘Unreasonable’ Mistakes of Fact II. When Is Defensive Force ‘Necessary’? A. Distinguishing Self-Defence from Necessity and Duress B. The Relationship between Necessity and Imminence C. Retreat and Avoiding Conflict III. Proportionality of Defensive Force A. Rejecting Strict Proportionality and Addressing Excessive Force B. Deadly Force in Defence of Property C. Responding to ‘Trivial’ Threats IV. Necessity, Proportionality, Mistakes, and the European Convention on Human Rights A. The Current Status of Positive Obligations Imposed by Article 2 B. Article 2 in the Self-Defence Context: Defensive Force Must Be ‘Absolutely Necessary’ C. Article 2 in the Self-Defence Context: ‘Strict Proportionality’ Required D. Article 2 and Deadly Force in Defence of Property E. Article 2 and Mistakes V. Application of the Value-Based Model to Other Challenging Cases A. Innocent Attackers – The ‘Standard’ Case B. Special Rules for ‘Attacks’ on the Police? 5. Examining German Law’s Treatment of Self-Defence from a Value-Centric Perspective I. Putting Germany’s Self-Defence Law in Context II. An Introduction to Self-Defence in Germany A. The Theoretical Foundations of Self-Defence in Germany B. Understanding the Arrival and Impact of ‘Socio-Ethical’ Limitations on Defensive Force III. Subjective or Objective Standard as to Justificatory Circumstances? A. Mistakes of Fact B. Unknowingly Justified Defenders IV. The Attack A. What Interests Can Be Defended? B. Need the Attacker’s Conduct Be Criminal? C. Special Rules for ‘Attacks’ on the Police? D. Can Passive Conduct Constitute an ‘Attack’? E. Imminence F. A New Definition of ‘Attack’? V. Defensive Conduct A. Necessity B. Proportionality and Excessive Force C. Duty to Retreat and Avoid Conflict D. Intentionally Provoked Attacks and Other Blameworthy Conduct on the Part of Defenders VI. Evaluating Germany’s Self-Defence Law from a Value-Centric Perspective 6. Examining the US Law’s Treatment of Self-Defence from a Value-Centric Perspective I. Putting US Self-Defence Law in Context II. Subjective or Objective Standard as to the Justificatory Circumstances A. Mistakes of Fact B. Unknowingly Justified Defenders III. The Attack A. What Interests Can Be Defended? B. Need the Attacker’s Conduct Be Criminal? C. Special Rules for Attacks on the Police? D. Can Passive Conduct Constitute an ‘Attack’? E. Imminence F. Necessity G. Proportionality and Excessive Force H. Duty to Retreat I. Duty to Avoid Conflict J. Intentionally Provoked Attacks and Other Blameworthy Conduct on the Part of the Defender IV. Evaluating US Self-Defence Law from a Value-Centric Perspective 7. Examining the English Law’s Treatment of Self-Defence from a Value-Centric Perspective I. Putting England’s Law of Self-Defence in Context II. Subjective or Objective Standard as to the Justificatory Circumstances? A. Mistakes of Fact B. Unknowingly Justified Defenders III. The Attack A. What Can Be Defended? B. Need the Attacker’s Conduct Be Criminal? C. Special Rules for ‘Attacks’ by the Police? D. Can Passive Conduct Constitute an ‘Attack’? E. Imminence IV. Defensive Conduct A. Necessity B. Proportionality and Excessive Force C. Duty to Retreat and Avoid Conflict D. Intentionally Provoked Attacks and Other Blameworthy Conduct on the Part of the Defender V. Evaluating England’s Self-Defence Law from a Value-Centric Perspective 8. Parting Observations

About the Author :
T Markus Funk is the Firmwide Chair of Perkins Coie’s White Collar & Investigations Practice.

Review :
Dr Funk in exemplary fashion examines a central question of modern political life. The result is a book that offers the most detailed comparativist study on the subject yet published. Through his innovative and sensible ‘value-based’ approach, Dr Funk offers and important fresh take on self-defense’s key practical and theoretical issues. ‘[E]in großer Wurf’ (a ‘major coup’) in the area of self-defence theory and analysis [offering] the first perfectly accurate and comprehensive English summary of the history of, and nuanced debate over, the past and present self-defence law in Germany. This thorough and enlightening analysis will stand as the most comprehensive review of self-defense law to come forth in decades. … [A] fascinating read for legal scholars and criminal law practitioners alike. Dr Funk's robust and fresh approach provides a powerful analytical framework to analyse this core right that has so dominated contemporary scholarly and political debates … I highly recommend this book. An engaging analysis that is recommended reading for anyone with an interest in criminal law defences. Dr Funk's book … offers convincing answers to many of the issues regarding self-defence's most challenging practical and theoretical questions. I find it thought-provoking and highly recommend it. The book provides a thoughtful, deep, and nuanced way for the reader to think about the deadly-force controversies we face in the 21st Century. Funk’s truly exceptional book is a timely contribution to a searing national debate on the first of all civil rights.