메뉴 건너뛰기




Volumn 17, Issue 5-6, 1998, Pages 509-531

Killing in self-defense: An unquestionable or problematic defense?

Author keywords

[No Author keywords available]

Indexed keywords


EID: 0032267185     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.2307/3505187     Document Type: Article
Times cited : (13)

References (31)
  • 2
    • 0042842969 scopus 로고    scopus 로고
    • note
    • But although it is defense of self that must be the intentional focus of killings that count as self-defensive killings, we need the provision that one expects (or knows) that one's action may result in the death of the person against whom one is defending oneself. Otherwise, merely shoving one's attacker out of the way in order to ward off his attack would count as a killing in self-defense if the attacker died unexpectedly as a result of being shoved.
  • 3
    • 0042342069 scopus 로고    scopus 로고
    • note
    • Although the requirement that a homicide may be regarded as one undertaken in self-defense only when one cannot defend oneself in some less drastic way seems a reasonable moral requirement, some courts have ruled otherwise, in accordance with what has become known as a 'no retreat' allowance, a provision that holds that it is not unreasonable, if, say, a burglar enters one's home, to 'stand one's ground' rather than retreat even if one can do so safely. See, for example Idrogo v. People, 818 P.2d 752, 756 (Colo. 1991). The 'no retreat' allowance has also been defended on the grounds that 'Right' should never give way to 'Wrong' and that retreating in the face of intrusion into one's home would have the unfortunate consequence of inappropriately encouraging the aggressor at the expense of the innocent.
  • 4
    • 0041340246 scopus 로고
    • Cambridge and New York: Cambridge University Press
    • See Richard Norman, Ethics, Killing, and War (Cambridge and New York: Cambridge University Press, 1995), p. 125.
    • (1995) Ethics, Killing, and War , pp. 125
    • Norman, R.1
  • 5
    • 0018529070 scopus 로고    scopus 로고
    • with Robert Young, who argues that one is never morally permitted to kill another, no matter what the consequences if those consequences are short of death
    • For an appreciation of some of these shades compare Judith Jarvis Thomson, who argues that one is morally permitted to kill to defend one's limbs (Thomson, op. cit., p. 285) with Robert Young, who argues that one is never morally permitted to kill another, no matter what the consequences if those consequences are short of death. ("What is so Wrong with Killing People?" Philosophy 54 (1979), p. 520.)
    • Ethics, Killing, and War , pp. 285
    • Thomson1
  • 6
    • 0018529070 scopus 로고    scopus 로고
    • What is so Wrong with Killing People?
    • For an appreciation of some of these shades compare Judith Jarvis Thomson, who argues that one is morally permitted to kill to defend one's limbs (Thomson, op. cit., p. 285) with Robert Young, who argues that one is never morally permitted to kill another, no matter what the consequences if those consequences are short of death. ("What is so Wrong with Killing People?" Philosophy 54 (1979), p. 520.)
    • (1979) Philosophy , vol.54 , pp. 520
  • 7
    • 0041340249 scopus 로고    scopus 로고
    • Self Defense
    • A forfeiture account is suggested by, among others: Judith Jarvis Thomson in "Self Defense," op. cit.; Philip Montague in "Self Defense and Choosing Between Lives," Philosophical Studies 40 (1981); and Nancy Davis in "Abortion and Self Defense," Philosophy and Public Affairs 13 (3) (1984).
    • Op. Cit.
    • Thomson, J.J.1
  • 8
    • 0042342064 scopus 로고
    • Self Defense and Choosing between Lives
    • A forfeiture account is suggested by, among others: Judith Jarvis Thomson in "Self Defense," op. cit.; Philip Montague in "Self Defense and Choosing Between Lives," Philosophical Studies 40 (1981); and Nancy Davis in "Abortion and Self Defense," Philosophy and Public Affairs 13 (3) (1984).
    • (1981) Philosophical Studies , vol.40
    • Montague, P.1
  • 9
    • 0021437017 scopus 로고
    • Abortion and Self Defense
    • A forfeiture account is suggested by, among others: Judith Jarvis Thomson in "Self Defense," op. cit.; Philip Montague in "Self Defense and Choosing Between Lives," Philosophical Studies 40 (1981); and Nancy Davis in "Abortion and Self Defense," Philosophy and Public Affairs 13 (3) (1984).
    • (1984) Philosophy and Public Affairs , vol.13 , Issue.3
    • Davis, N.1
  • 11
    • 0041840863 scopus 로고
    • Proportionality and the Problem of the Psychotic Aggressor: A Moral Analysis
    • it is a principle of risk-bearing; that is, it determines the nature and extent of the risk to be borne by the person who threatens hurt or harm and by the likely victim. American jurisdictions have . . . [maintained] that the same aggressor does not have to bear all the costs resulting from his threat of hurt or harm, and that the potential victim is liable for some of them . . . .
    • nd edition), 1961. For a contrary view - that in taking self-defensive measures, one need not adhere to any requirement of proportionality - see George Fletcher, Rethinking Criminal Law (Boston: Little, Brown, 1978), pp. 857-860. It appears to be Fletcher's view that since those who unjustifiably attack others not only attack their victims but also violate the general social order and rule of law, the justification for repelling force lies in protecting the social order as well as the victim. Because of the dual role that defensive force has, the force need not be proportional to what has been done to the victim, for he or she is but part of what has been violated. For a discussion of Fletcher's views, see Robert F. Schopp, "Self- defense," in Jules L. Coleman and Allen Buchanan (eds.), In Harm's Way: Essays in Honor of Joel Feinberg (Cambridge and New York: Cambridge University Press, 1994), pp. 256-259.
    • (1978) Ottawa Law Review , vol.10 , pp. 90-91
    • Blustein, J.1
  • 12
    • 0042842957 scopus 로고
    • Ignorance and Mistake in the Criminal Law
    • references: Keedy
    • nd edition), 1961. For a contrary view - that in taking self-defensive measures, one need not adhere to any requirement of proportionality - see George Fletcher, Rethinking Criminal Law (Boston: Little, Brown, 1978), pp. 857-860. It appears to be Fletcher's view that since those who unjustifiably attack others not only attack their victims but also violate the general social order and rule of law, the justification for repelling force lies in protecting the social order as well as the victim. Because of the dual role that defensive force has, the force need not be proportional to what has been done to the victim, for he or she is but part of what has been violated. For a discussion of Fletcher's views, see Robert F. Schopp, "Self- defense," in Jules L. Coleman and Allen Buchanan (eds.), In Harm's Way: Essays in Honor of Joel Feinberg (Cambridge and New York: Cambridge University Press, 1994), pp. 256-259.
    • (1908) Harvard Law Review , vol.22 , Issue.75 , pp. 81-88
    • Blustein1
  • 13
    • 85087581336 scopus 로고
    • nd edition
    • nd edition), 1961. For a contrary view - that in taking self-defensive measures, one need not adhere to any requirement of proportionality - see George Fletcher, Rethinking Criminal Law (Boston: Little, Brown, 1978), pp. 857-860. It appears to be Fletcher's view that since those who unjustifiably attack others not only attack their victims but also violate the general social order and rule of law, the justification for repelling force lies in protecting the social order as well as the victim. Because of the dual role that defensive force has, the force need not be proportional to what has been done to the victim, for he or she is but part of what has been violated. For a discussion of Fletcher's views, see Robert F. Schopp, "Self- defense," in Jules L. Coleman and Allen Buchanan (eds.), In Harm's Way: Essays in Honor of Joel Feinberg (Cambridge and New York: Cambridge University Press, 1994), pp. 256-259.
    • (1961) Criminal Law: the General Part , vol.208
    • Williams, G.1
  • 14
    • 0004273012 scopus 로고
    • Boston: Little, Brown
    • nd edition), 1961. For a contrary view - that in taking self-defensive measures, one need not adhere to any requirement of proportionality - see George Fletcher, Rethinking Criminal Law (Boston: Little, Brown, 1978), pp. 857-860. It appears to be Fletcher's view that since those who unjustifiably attack others not only attack their victims but also violate the general social order and rule of law, the justification for repelling force lies in protecting the social order as well as the victim. Because of the dual role that defensive force has, the force need not be proportional to what has been done to the victim, for he or she is but part of what has been violated. For a discussion of Fletcher's views, see Robert F. Schopp, "Self- defense," in Jules L. Coleman and Allen Buchanan (eds.), In Harm's Way: Essays in Honor of Joel Feinberg (Cambridge and New York: Cambridge University Press, 1994), pp. 256-259.
    • (1978) Rethinking Criminal Law , pp. 857-860
    • Fletcher, G.1
  • 15
    • 0042842945 scopus 로고
    • Self-defense
    • Jules L. Coleman and Allen Buchanan (eds.), Cambridge and New York: Cambridge University Press
    • nd edition), 1961. For a contrary view - that in taking self-defensive measures, one need not adhere to any requirement of proportionality - see George Fletcher, Rethinking Criminal Law (Boston: Little, Brown, 1978), pp. 857-860. It appears to be Fletcher's view that since those who unjustifiably attack others not only attack their victims but also violate the general social order and rule of law, the justification for repelling force lies in protecting the social order as well as the victim. Because of the dual role that defensive force has, the force need not be proportional to what has been done to the victim, for he or she is but part of what has been violated. For a discussion of Fletcher's views, see Robert F. Schopp, "Self-defense," in Jules L. Coleman and Allen Buchanan (eds.), In Harm's Way: Essays in Honor of Joel Feinberg (Cambridge and New York: Cambridge University Press, 1994), pp. 256-259.
    • (1994) In Harm's Way: Essays in Honor of Joel Feinberg , pp. 256-259
    • Schopp, R.F.1
  • 16
    • 84924103577 scopus 로고
    • Self Defense and the Innocent Attacker
    • Jeff McMahan, "Self Defense and the Innocent Attacker," Ethics (1994), p. 262.
    • (1994) Ethics , pp. 262
    • McMahan, J.1
  • 17
    • 0041840878 scopus 로고    scopus 로고
    • passim, but especially, pp. 198-199
    • Suzanne Uniacke, op. cit., pp. 196-231 passim, but especially, pp. 198-199.
    • Ethics , pp. 196-231
    • Uniacke, S.1
  • 18
    • 0042342061 scopus 로고    scopus 로고
    • note
    • It may be necessary to add that forfeiture of one's right to life on account of one's being an attacker (or threat) is best viewed as a forfeiture that is limited in other ways as well. Rather than hold that an attacker (or threat) has, by his attempted attack (or threat), forfeited his right not to be killed simpliciter, it may be necessary to claim that an attacker (or threat) has, by his attack or threat, forfeited his right not to be killed by his victim or by someone who comes to the aid of his victim. I owe this point to Adi Parush.
  • 19
    • 0041840882 scopus 로고    scopus 로고
    • note
    • Uniacke is not unaware of this difficulty. She cites it as one of the difficulties that Judith Jarvis Thomson identifies as arising from appeal to forfeited rights as part of the justification of self-defense. But, she claims, '[t]he difficulties with forfeiture to which Thomson's discussion draws attention are overcome once we recognize that our possession of the right to life is conditional and . . . once we accept that as individuals we possess the right to life . . . only so far as we are not an unjust immediate threat to others.' Uniacke, op. cit., pp. 198-199. I fail to see how Uniacke's rejoinder does not beg the question.
  • 20
    • 0042842966 scopus 로고    scopus 로고
    • note
    • I do not mean to suggest by referring to these different cases of 'innocent' attackers, that the notion of 'innocence' is unproblematic. The innocence of a four-year-old who is about to shoot at us with a loaded gun is surely different from that of a deranged adult who is trying to kill us. My point is only that if we are permitted to kill either of these attackers in order to save our life, it is implausible to claim that this permission rests, for either of them, on a forfeiture of the right not to be killed. My thanks to Eugene Kelly for helpful discussion on this point.
  • 21
    • 0041340239 scopus 로고    scopus 로고
    • op. cit., p. 283
    • Jeff McMahan, op. cit., p. 283.
    • McMahan, J.1
  • 22
    • 0042842950 scopus 로고
    • The Moral Permissibility of Killing a 'Material Aggressor' in Self Defense
    • This is the argument presented by Susan Levine in "The Moral Permissibility of Killing a 'Material Aggressor' in Self Defense," Philosophical Studies 45 (1984), pp. 69-78.
    • (1984) Philosophical Studies , vol.45 , pp. 69-78
    • Levine, S.1
  • 25
    • 0041340246 scopus 로고
    • Cambridge: Cambridge University Press
    • Richard Norman, Ethics, Killing and War (Cambridge: Cambridge University Press, 1995), p. 122.
    • (1995) Ethics, Killing and War , pp. 122
    • Norman, R.1
  • 26
    • 0042342063 scopus 로고    scopus 로고
    • note
    • An anonymous reviewer has pointed out that there may be the following disanalogy between the case of the lost hat and the case of the lethal attack: 'that [a] nonculpable transgressor is "expected" to recompense is not the same as, e.g., [the] loss sufferer's taking the "compensation" (without consent). In [the] self-defense case . . . the defender will take [the] life of the innocent "attacker" (without consent)', so the killing in self-defense case, unlike the lost-hat case, is not a case of 'willing self-sacrifice.' To be sure, there may be a willingness on the part of the blameless person who causes injury or harm to another to recompense the sufferer for his loss. But if the offer of compensation is not forthcoming, it is not unreasonable to demand that the loss be made good by the person who has caused it, notwithstanding that the person who caused it is not morally responsible for the loss. It is enough that he is causally responsible. Given this, it may not be unreasonable to think that we are not required to undergo losses as severe as the loss of our life rather than shift the burden of that loss to those who, if we do not shift it, will be causally responsible for our death.
  • 27
    • 0042342065 scopus 로고    scopus 로고
    • op. cit., p. 131
    • Richard Norman, op. cit., p. 131.
    • Norman, R.1
  • 28
    • 0042342060 scopus 로고    scopus 로고
    • note
    • Again, I am not suggesting that if our attacker is not morally responsible for attacking us, it makes no difference whether he is a deranged adult or a very young child. Each is 'innocent' in strikingly different ways.
  • 29
    • 0041840866 scopus 로고    scopus 로고
    • It may not be unreasonable to think that to protect herself, it would have been morally permissible for the pianist to have killed her attacking husband rather than let him deliberately mutilate her. But were her husband suffering from some mental illness that made it impossible for him to appreciate what he was doing, or were her young daughter to try to hack off her finger, the moral permission of the pianist to kill her attacker might not be so clear. (John Kleinig suggested this example to me.) No doubt, people will disagree about the extent of the harm that one should permit an innocent attacker to inflict before it becomes morally permissible to kill him (given that killing him is the only way to prevent him from inflicting that harm)
    • Take, for example, the deliberate hacking off of the pianist's finger in the film The Piano. It may not be unreasonable to think that to protect herself, it would have been morally permissible for the pianist to have killed her attacking husband rather than let him deliberately mutilate her. But were her husband suffering from some mental illness that made it impossible for him to appreciate what he was doing, or were her young daughter to try to hack off her finger, the moral permission of the pianist to kill her attacker might not be so clear. (John Kleinig suggested this example to me.) No doubt, people will disagree about the extent of the harm that one should permit an innocent attacker to inflict before it becomes morally permissible to kill him (given that killing him is the only way to prevent him from inflicting that harm). Although I have maintained that one may kill one's innocent attacker to save one's life (or that which is very important to one's life), Adi Parush has suggested to me that there may be cases in which one should allow oneself even to be killed rather than kill one's innocent attacker. He suggests the case of the terminally ill person who has but a few days to live being attacked by an innocent attacker. I am not sure how to respond to this case.
    • The Piano
  • 31
    • 0041340238 scopus 로고    scopus 로고
    • italics added
    • Thomson, op. cit., p. 286, italics added.
    • The Piano , pp. 286
    • Thomson1


* 이 정보는 Elsevier사의 SCOPUS DB에서 KISTI가 분석하여 추출한 것입니다.