About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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
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.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most