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24 Law & Phil. 711 (2005)
Justifying Self-Defense

handle is hein.journals/lwphil24 and id is 711 raw text is: Law and Philosophy (2005) 24: 711-749 © Springer 2005 DOI 10.1007/s10982-005-0833-z KIMBERLY KESSLER FERZAN* JUSTIFYING SELF-DEFENSE Assume that a culpable aggressor, Greta, decides to play Russian roulette with an unwilling participant, Harry. She has loaded a chamber, spun the revolver, and now she points the gun at Harry. Harry faces a decision. He can either pull out the gun he has and shoot Greta, or he can wait and hope that the bullet is not in the fateful chamber. Faced with a one-in-six chance that he will soon be dead, Harry kills Greta. As it turns out, the bullet was not in the decisive chamber. How should we characterize Harry's action? Was it wrong? Right? Justified? Excused? Mistaken? In this case, Harry has taken what we might characterize as a justifiable risk, but he has simultaneously killed someone needlessly. What do law and morality have to say about his conduct?' Harry's conduct is an instance of self-defense. While self-defense is classically viewed as a justification, the grounds for deeming a given act justified are subject to significant debate. Theorists roughly * I am grateful for the comments of the participants in the conference, Justifications and Excuses: Legal and Philosophical Perspectives, sponsored by the Rutgers - Camden School of Law Institute for Law and Philosophy. Special thanks to my conference commentators, Jeff McMahan and Paul Robinson, for their probing critiques, and to Tony Dillof, John Oberdiek, Dennis Patterson, and Ken Simons for their extensive feedback. 1 Mitch Berman has recently argued that legal and moral justification are not linked by conceptual or logical entailment, but rather, that a theorist must give good reason, in the form of substantive moral argument, for legal justi- fications to mirror moral justifications. Berman, Mitchell N., 'Justification and Excuse, Law and Morality', Duke Law Journal 53 (2003): pp. 1-77. He claims that the distinction between justification and excuse for purposes of taxonimizing criminal defenses is only this: A justified action is not criminal, whereas an excused defendant has committed a crime but is not punishable. Id. at 1. While I no doubt gloss over the law/morality distinction more than Berman would have me do, I believe that there are strong prima facie reasons for law to mirror morality. Indeed, it is only after we understand the moral contours of self-defense that we can decide if law should depart from morality.

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