Relevant bibliographies by topics / Self-defense (Law) Justification (Law) Necessity (Law)

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  1. Journal articles
  2. Dissertations / Theses
  3. Books
  4. Book chapters

Academic literature on the topic 'Self-defense (Law) Justification (Law) Necessity (Law)'

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Published: 4 June 2021
Last updated: 14 February 2022

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Journal articles on the topic "Self-defense (Law) Justification (Law) Necessity (Law)"

1

Bernsmann, Klaus. "Private Self-Defence and Necessity in German Penal Law and in the Penal Law Proposal — Some Remarks." Israel Law Review 30, no. 1-2 (1996): 171–87. http://dx.doi.org/10.1017/s002122370001503x.

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Self-defence and necessity are central institutions of the General Part of German Penal Law. Numerous problems of considerable practical and theoretical relevance are connected with them. How to deal with “self-defence” and “necessity” is also an indicator of liberality or, on the other hand, of the minimum solidarity and public spirit which a State can concede to its citizens or demand of them. In German criminal theory, “self-defence” and “necessity” are closely connected with the release of the distinction between justification and excuse and all conclusions derived thereof.Instead of elaborating on fundamental or purely theoretical problems concerning self-defence and necessity, an illustration of the contents of the German provisions of self-defence and necessity from a more technical, but nevertheless practical, point of view will be discussed. In the course of the discussion, some differences between the Israeli Draft law and the German law will be pointed out, and some problems which are unsolved in German law and may possibly confront Israeli law in the future will be brought to your attention.
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Coca-Vila, Ivó. "Conflicting Duties in Criminal Law." New Criminal Law Review 22, no. 1 (2019): 34–72. http://dx.doi.org/10.1525/nclr.2019.22.1.34.

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Despite the great interest aroused among Anglo-American criminal law scholars by the justification of necessity, the conflict of duties as a separate defense sui generis has gone largely unnoticed until now. The aim of this paper is to fill the gap by providing a critical review of the concept and foundation for a conflict of duties as defense in the continental criminal law. Regarding the former, this legal institution is defined as a conflict between grounds of obligation that cannot be cumulatively fulfilled. Their deontic nature (prohibited or required) is thus irrelevant. With regard to the second issue, the argument is made that the solution of the collision involves a judgment set out to hierarchically arrange the colliding reasons from a formal point of view that is respectful with the principles of autonomy and solidarity. Therefore, the obligor must only fulfill the strongest ground of obligation—the only duty that can be legitimized in the particular situation—or, when before a conflict between equivalent grounds of obligation, they must comply with the disjunctive or alternative duty—aid one or the other—which the legal system imposes on them.
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Góómez, Daniel Varona. "Duress and the Antcolony's Ethic: Reflections on the Foundations of the Defense and its Limits." New Criminal Law Review 11, no. 4 (2008): 615–44. http://dx.doi.org/10.1525/nclr.2008.11.4.615.

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Duress is probably the most controversial defense in criminal law theory. Neither its foundation nor its nature as a justification or mere excuse nor its limits achieves any consensus among criminal law academics. In this paper a foundation of the duress defense is presented that considers that its importance lies in the fact that it allows us to appeal to considerations of justice and fairness that can explain the decision to forgo punishment in circumstances when the conduct performed by the actor cannot be considered socially beneficial or correct according to an objective (impartial) assessment of the act. The proposed account of the defense will also help us understand why duress represents instances of excuse rather than of justification. Finally, a brief discussion of the differences between the necessity and duress defenses will be provided, as well as an analysis of the proper limits of the duress defense.
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Davis, Michael. "Between Peace and War: The Moral Justification of State-Sanctioned Killing of Another State’s Civilian Officials." International Criminal Law Review 14, no. 4-5 (July 31, 2014): 789–812. http://dx.doi.org/10.1163/15718123-01405004.

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The subject of this article is not (primarily) state-sanctioned assassination of high officials but of lower officials, such as scientists or engineers working for Iran's nuclear program. The following seem to be the main arguments that might be offered as moral justification of such killing of another state's civilian officials: policing, execution, war, self-defense, defense of the innocent, necessity, fairness, retribution, reasons of state, best option, and mutual consent. From a survey of these arguments, we may conclude that no state-sanctioned killing of civilian officials of another state can be justified under international law as it is or, at least, as it should be—except when, however imprudently, two or more states enter a convention specifically allowing such killings among the parties. Insofar as this conclusion differs from international law today, international law should change.
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Ginszt, Katarzyna, and Jakub Ginszt. "THE CONCEPT OF SELF-DEFENSE IN AMERICAN AND POLISH LEGAL SYSTEMS – A COMPARATIVE ANALYSIS." Review of European and Comparative Law 29, no. 2 (June 15, 2017): 85–104. http://dx.doi.org/10.31743/recl.4269.

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The article is devoted to the issue of self-defense in Polish and American law . Currently, there are attempts to widen the scope of necessary self-protection in Polish legislation and to implement provisions which allow for using greater degree of force by a person attacked at home . The justification of the draft refers to the American law which is more developed in the context of the defense of habitation . Thus, the article provides an analysis of existing legal solutions in American criminal law concerning e .g . the legal definition of self-defense, the use of deadly force, the duty to retreat, the castle doctrine and the provisions which expand this doctrine in comparison with the parallel legal solutions existing in Poland .
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Dennis, Ian. "Instrumental Protection, Human Right or Functional Necessity? Reassessing the Privilege Against Self-Incrimination." Cambridge Law Journal 54, no. 2 (July 1995): 342–76. http://dx.doi.org/10.1017/s0008197300083690.

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THE privilege against self-incrimination has always attracted controversy. Legal historians continue to disagree over its origins,1 and its justification has been keenly debated ever since Bentham's famous attack on it as a misguided concession to the guilty.2 This debate has recently entered a new and critical phase as the result of diametrically opposed developments by, on the one hand, the courts and legislature in England and, on the other, by the institutions of the European Convention of Human Rights.
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Grudecki, Michał. "Bezpośredniość zamachu oraz współmierność sposobu obrony – granice obrony koniecznej w najnowszym orzecznictwie Sądu Najwyższego i sądów apelacyjnych." Problemy Prawa Karnego 27, no. 1 (December 10, 2017): 89–101. http://dx.doi.org/10.31261/ppk.2017.01.03.

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The following article aims at discussing the attributes of the directness of attack and the commensurateness of the means of necessary self-defense, which constitute the most significant, but also the most controversial, prerequisites for the justification of necessary self-defense. The author conducts his study on the basis of selected case law of appeal courts and the Supreme court, dating back four years. In this way, the article allows to delineate the limits of necessary self-defense, as well as present particular cases of exceeding the limits of necessary self-defense.
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Haque, Adil Ahmad. "Protecting and Respecting Civilians." New Criminal Law Review 14, no. 4 (2011): 519–75. http://dx.doi.org/10.1525/nclr.2011.14.4.519.

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There is a gap between the international humanitarian law of Geneva and the international criminal law of Rome, a gap between the law we have and the law we need if we are to “ensure respect for and protection of the civilian population” caught in the midst of armed conflict. The Rome Statute of the International Criminal Court fails to fully enforce four core principles of humanitarian law designed to protect civilians: distinction, discrimination, necessity, and proportionality. As a result, it is possible for a combatant with a culpable mental state, without justification or excuse, and in violation of humanitarian law, to kill civilians, yet escape criminal liability under the Rome Statute. The Rome Statute also ignores or misapplies three fundamental criminal law distinctions: between conduct offenses and result offenses, between material elements and mental elements, as well as between offenses and defenses. These distinctions are not empty formalisms but rather are the means by which any system of criminal law gives expression to its underlying moral values. The purpose of this article is to expose these defects and propose a way to overcome them. Drawing on contemporary criminal law theory, it offers a new approach to war crimes against civilians, one that better protects and respects the value of civilian life. This article proposes a redefined offense of Willful Killing that fully incorporates the principles of distinction and discrimination as well as a new affirmative defense that fully incorporates the principles of necessity and proportionality. Only by adopting such an approach can international criminal law provide civilians the legal protection and moral recognition they deserve. The recent adoption of an operative definition of the crime of aggression during a Review Conference in June 2010 suggests that further reform of the Rome Statute is achievable.
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Zuckerman, Adrian A. S. "Coercion and the Judicial Ascertainment of Truth." Israel Law Review 23, no. 2-3 (1989): 357–74. http://dx.doi.org/10.1017/s0021223700016770.

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The Commission of Inquiry into the Methods of Investigation of the General Security Service regarding Hostile Terrorist Activity dealt with the investigation methods which were practiced by the General Security Service (GSS) and which impinged on the rights of suspects.Suspects under interrogation have a number of rights: the right not to be physically or mentally injured or otherwise mistreated, the privilege against self-incrimination and a number of ancillary procedural rights, such as the right to consult a lawyer. The Commission concluded that the interests of combatting terrorism justify the suspension of these rights in whole or in part. It thought that the privilege against self-incrimination need not be accorded to terrorist suspects and, furthermore, that psychological and physical forms of pressure may be exerted on suspects in order to overcome their resistance to interrogation. The Commission accepted that a civilised criminal procedure has to reflect minimal standards of respect for the integrity of individuals. However, it found justification for the departure from normal procedures in an analogy to the doctrines of necessity and self-defence.
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Miller, Richard B. "Justifications of the Iraq War Examined." Ethics & International Affairs 22, no. 1 (2008): 43–67. http://dx.doi.org/10.1111/j.1747-7093.2008.00129.x.

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This article examines three arguments according to which the Iraq war has been justified: preemptive or preventive self-defense, law enforcement, and humanitarian rescue. It concludes that for empirical and moral reasons, the Iraq war lacks a just cause. In the course of making that judgment, the article explores moral and practical implications of a preventive war policy. It also examines efforts to invoke one justification—rescue—retrospectively to justify the war. The article claims that such ex post justifications confuse the meaning of intention and, wittingly or unwittingly, allow leaders to authorize a resort to force in bad faith. Retrospective justifications also fail to understand that different burdens are attached to ad bellum rationales. That claim is premised on the idea that self-defensive wars join duty and interest in ways that wars of rescue do not. To assume that arguments can shift from self-defense to rescue, without recognizing that these entail different kinds of sacrifice, is to discount the respect due to those whose sacrifice is required. If altruistic policies are expected to be carried out by soldiers, stronger reasons than self-defensive purposes are necessary to justify the risks, reasons that avoid the allegation of leading in bad faith.
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Dissertations / Theses on the topic "Self-defense (Law) Justification (Law) Necessity (Law)"

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Luongo, Norberto E. 1962. ""Shooting-down laws" : a quest for their validity." Thesis, McGill University, 2008. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=111616.

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After the terrorist attacks that took place on September 11, 2001, on American soil, a plethora of norms that enable military forces to shoot-down hijacked civil aircraft have been passed in several countries. Although these laws, decrees and executive orders are grounded on security reasons and they are allegedly aimed to protect people and vital interests on ground, this assertion does not emasculate the main difficulty they face in legal terms, which is the existence of an international provision that forbids the use of force against civilian aircraft. This thesis contains a detailed list of such domestic norms and conducts an analysis of their validity from the perspective of Article 3bis of the Chicago Convention and the right of self-defense granted to states by the Charter of the United Nations.
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van, 't Hooft Joseph. "The Development and Evolution for the Justification of the Use of Lethal Force in Legislation." Kent State University Honors College / OhioLINK, 2019. http://rave.ohiolink.edu/etdc/view?acc_num=ksuhonors1556887597743281.

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Theodor, Pavel. "Právní problematika sebeobrany - nutná obrana, krajní nouze." Master's thesis, 2020. http://www.nusl.cz/ntk/nusl-434329.

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Title Legal Issues of Self-Defense - Necessary Defense, Extreme Emergency. Objectives The aim of this work is to analyze the legal issues of self-defense. Explanation of the terms necessary defense and extreme emergency. Point out problems in interpretations. Point out the issue of self-defense of IZS members. Drawing conclusions. Methods The method used in the creation of this thesis is to analyze the widest range of literature that deals with the issue and the Criminal Code. Further description of findings and conclusion. Results Explaining the terms necessary defense and extreme emergency and clarifying the issue of self-defense. Key words Law, self-defense, necessary defense, issues, extreme emergency.
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Hofmanová, Štěpánka. "Nutná obrana - srovnání české právní úpravy s Modelovým trestním zákoníkem USA a common law." Master's thesis, 2017. http://www.nusl.cz/ntk/nusl-368788.

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This thesis aims to define the differences between the concept of self-defense under the criminal law of the Czech Republic and the United States of America, to assess their practical implications and propose possible recommendations de lege ferenda for the Czech legislation. Within the United States, the thesis further distinguishes between the concept of self-defense under the common law and the so-called Model Criminal Code, which together with the common law represents one of the most important sources of US criminal law. The thesis first compares the differences between the Continental and Anglo-American legal system, from which the respective national legal systems derive. Next part of the thesis further characterizes the Czech and American legal system, especially with regard to the status of criminal law and the role of jurisprudence within it. Particular attention is paid to the division of US legal system into federal and state, and the related issues of the organization of the judiciary and the system of precedents between various judicial bodies. This part then further introduces the aforementioned Model Criminal Code, which presents a compilation of the views of high-profile experts in the field of criminal law regarding the ideal form of criminal substantive law in the United States....
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Books on the topic "Self-defense (Law) Justification (Law) Necessity (Law)"

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Orekhov, V. V. Neobkhodimai︠a︡ oborona i inye obstoi︠a︡telʹstva, iskli︠u︡chai︠u︡shchie prestupnostʹ dei︠a︡nii︠a︡. Sankt-Peterburg: I︠U︡ridicheskiĭ T︠S︡entr Press, 2003.

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Pleshakov, A. M. Institut kraĭneĭ neobkhodimosti v rossiĭskom ugolovnom prave. Moskva: I︠U︡rlitinform, 2006.

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Risimović, Radosav. Nužna odbrana u krivičnom pravu. Beograd: Kriminalističko-policijska akademija, 2012.

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Archibasova, L. A. Ugolovno-pravovoĭ mekhanizm zashchity lit︠s︡a, prichinivshego vred okhrani︠a︡emym zakonom pravam i interesam: Monografii︠a︡. Moskva: VNII MVD Rossii, 2011.

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Parkhomenko, S. V. Dei︠a︡nii︠a︡, prestupnostʹ kotorykh iskli︠u︡chaetsi︠a︡ v silu sot︠s︡ialʹnoĭ poleznosti i neobkhodimosti. Sankt-Peterburg: I︠U︡ridicheskiĭ t︠s︡entr Press, 2004.

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Galdós, Julio Armaza. Legítima defensa, error de comprensión y otros aspectos negativos del delito. Arequipa: Editorial Adrus, 2004.

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Zuev, V. L. Neobkhodimai͡a︡ oborona i kraĭni͡a︡i͡a︡ neobkhodimostʹ: Voprosy kvalifikat͡s︡ii i sudebno-sledstvennoĭ praktiki. Moskva: Izd-vo "Krosna-Leks", 1996.

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Baranova, E. A. Neobkhodimai︠a︡ oborona. Moskva: I︠U︡rlitinform, 2007.

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Sitnikova, A. I. Iskli︠u︡chitelʹnye obstoi︠a︡telʹstva v ugolovnom prave: Doktrinalʹnye modeli i zakonodatelʹnye konstrukt︠s︡ii. Moskva: Infotropic media, 2011.

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Nammūr, Ḥabīb Fāris. Ḥālat al-ḍarūrah wa-al-difāʻ al-mashrūʻ fī al-qānūn al-madanī =: Etat de nécessité et légitime défense en droit civil. [Beirut]: Ḥ.F. Nammūr, 1989.

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Book chapters on the topic "Self-defense (Law) Justification (Law) Necessity (Law)"

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Finkel, Norman J., and W. Gerrod Parrott. "Where Self-Defense's Justification Blurs into Excuse: A Defensible Theory, with Fitting Verdicts, for Mistaken Self-Defense." In Emotions and culpability: How the law is at odds with psychology, jurors, and itself., 201–24. Washington: American Psychological Association, 2006. http://dx.doi.org/10.1037/11475-011.

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Corn, Geoffrey S. "The Essential Link between Proportionality and Necessity in the Exercise of Self-Defense." In Necessity and Proportionality in International Peace and Security Law, 79–112. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780197537374.003.0004.

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The lawful use of force in the exercise of individual or collective self-defense by states requires compliance with the universally recognized elements of necessity and proportionality. Both of these elements frame the justification of resorting to self-help action. These two elements of self-defense, while often treated as distinct requirements, may be better understood as integrated into the assessment of overall strategic justification, with proportionality defining whether the scope and duration of military action in self-defense is genuinely necessary to protect against the unlawful threat. Thus, there is logic in conceptualizing proportionality not as distinct from the necessity requirement but as an integral component of that requirement. Linking proportionality assessments to the necessity of acting in self-defense leads to a rational link between the threat requiring self-defense action and the strategic scope and duration of operations to protect against that unlawful threat. This will contribute to careful tailoring of self-defense military operations to the overall nature of that threat. Of equal importance, this strategic-oriented focus will ideally offset the temptation to judge jus ad bellum proportionality by applying jus in bello principles. If nothing else, greater emphasis on the important differences between these two variants of the international legal proportionality requirement will enhance the impact on each of these variants on the success and legitimacy of self-defense operations.
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Simester, A. P. "Unpacking Justifications." In Fundamentals of Criminal Law, 440–68. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780198853145.003.0018.

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This chapter examines justifications. The common law knows a range of rationale-based defences according to which otherwise pro tanto wrongs may become permitted. By articulating justificatory defences like self-defence and necessity, the legal system adds the interstitial nuance that its prohibitions require. Unlike most other justifications, however, lesser-evils necessity is unconfined by reference to specific contexts, such as protecting oneself from attack or executing an arrest. Its field of application is amorphous and open-ended. The chapter then considers why necessity differs from those other, ‘primary’, justifications. It develops two theses: wrong-dependence and justification-dependence. In wrong-dependence, whether a person’s offence is justified depends on the type of (pro tanto) wrong that offence is. In justification-dependence, whether a person’s offence is wrong (simpliciter) depends on the type of justification that the person has. The chapter argues that cases of lesser-evils necessity are special, in that they are cases of a justified wrong. By contrast, primary justifications such as self-defence do not involve a wrong but only a pro tanto one. The importance of urgency requirements in rationale-based defences is also discussed.
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Mignot-Mahdavi, Rebecca. "Drones Programs, the Individualization of War, and the Ad Bellum Principle of Proportionality." In Necessity and Proportionality in International Peace and Security Law, 131–68. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780197537374.003.0006.

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This chapter describes how drone programs facilitate the individualization of war and intensify the pressures put on the right of self-defense. Rather than using force in self-defense against an (imminent) act, some states active in the transnational war on terror use force in self-defense against individuals based on their personal characteristics. This strategy leads to authorizing action against individuals who are not presently perpetrating, nor even clearly preparing to engage in, threatening acts. The chapter argues that these changes are not merely the result of how states decide to use force in the context of counterterrorism but also are impacted by what technology allows them to do. As such, drones facilitate and arguably intensify these phenomena of individualization and dematerialization of the use of force. Focusing on one of the justifications for this practice, namely, the right of self-defense, the chapter argues that the framework articulated by some states active in the transnational war on terror, while still highly contested on some points, offers a framework for the continuous anticipation of armed attacks by individuals who show signs of continuing armed activity. The chapter shows that under pressure by state practice and rhetoric, some limitations on using force that were initially interpreted restrictively are currently interpreted extensively. More importantly, the chapter argues that even if some limitations remain, the concessions to the extensive interpretation appear to have a direct cascade effect on the remaining conditions precisely because these limitations are interconnected. It is ultimately shown that this cascade effect is epitomized by the principle of proportionality which is not only extended but transformed to adapt to the individualization of war.
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Shieh, Sanford. "The Nature of Logic." In Necessity Lost, 192–230. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780199228645.003.0006.

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How does Frege conceive of logic, if not in modal terms? For Frege, logic is a system of truths that divides into primitive truths, which are axioms or basic laws, and logical truths justified by primitive logical truths. Frege appears to hold that what makes a thought a primitive logical truth is that it provides its own justification. However, Frege appears also to give arguments for the basic laws of Frege’s systems of logic. I argue that these arguments cannot be understood as non-question-begging demonstrations that the basic laws are self-justifying. Knowledge of self-justification results from the exercise of a perception-like capacity, and Frege’s “arguments” are intended to provide his readers with the occasion to exercise this capacity with respect to the thoughts expressed by his basic logical laws.
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Kritsiotis, Dino. "Sequences of Military Necessity for the Jus in Bello." In Necessity and Proportionality in International Peace and Security Law, 247–84. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780197537374.003.0009.

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This chapter considers several discrete snapshots or “sequences” in the life of military necessity—as it has come to be understood within the laws of the jus in bello. Commencing with its relationship with self-preservation under the laws of war and peace, the chapter proceeds to examine the idea of “necessity” of self-defense within the laws of the jus ad bellum; it then turns to “military necessity” as invoked in the Lieber Code, the 1907 Hague Regulations, Additional Protocol I of 1977 and the 1954 Hague Convention, the ICRC Study on Customary International Humanitarian Law as well as the advisory jurisprudence of the International Court of Justice. Consideration is given, too, to “necessity” as it features within the law of State responsibility, in order to more fully understand the function, status and standing of “military necessity” more generally within the jus in bello.
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van den Herik, Larissa. "Article 51’s Reporting Requirement as a Space for Legal Argument and Factfulness." In Necessity and Proportionality in International Peace and Security Law, 221–44. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780197537374.003.0008.

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Uncertainties continue to exist as regards the function, contents, and application of the proportionality principle in the context of the right to self-defense. Similarly, it has been suggested that the principle of necessity gains new meaning in the context of non-state actor self-defense as it provides the basis for an unwilling/unable test, but this test remains disputed. While appreciating the wealth of scholarly writings on these ad bellum principles, this chapter aims to reflect on how states can be pulled into the conversation more clearly with a view to clarifying the law. It explores how more space can be created for legal argument and factfulness in use of force discourse by states. Specifically, the chapter seeks to enhance necessity and proportionality discourse through the strengthening of U.N. Security Council reporting structures. Building on ideas to “proceduralize Article 51,” the chapter suggests the development of reporting requirements for any use of force on the basis of a duty to explain. It also proposes a more comprehensive architectural rethinking of the institutional environment in which adherence to and application of the necessity and proportionality principles are tested and contested.
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Ormerod, David, and Karl Laird. "23. General defences." In Smith, Hogan, & Ormerod's Text, Cases, & Materials on Criminal Law. Oxford University Press, 2017. http://dx.doi.org/10.1093/he/9780198788713.003.0023.

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This chapter focuses on defences. The following controversies are examined: whether the fact of childhood constitutes a defence; the extent to which duress can negate criminal liability; whether necessity ought to be a defence; whether recent legislative developments have rendered self-defence unduly complex; and the distinction between justifications and excuses and whether these classifications have any practical import.
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Ormerod, David, and Karl Laird. "22. General defences." In Smith, Hogan, & Ormerod's Text, Cases, & Materials on Criminal Law, 633–706. Oxford University Press, 2020. http://dx.doi.org/10.1093/he/9780198831945.003.0022.

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This chapter focuses on defences. The following controversies are examined: whether the fact of childhood constitutes a defence; the extent to which duress can negate criminal liability; whether necessity ought to be a defence; whether recent legislative developments have rendered self-defence unduly complex; and the distinction between justifications and excuses and whether these classifications have any practical import.
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Child, John, and David Ormerod. "14. General defences." In Smith, Hogan, & Ormerod's Essentials of Criminal Law. Oxford University Press, 2017. http://dx.doi.org/10.1093/he/9780198788683.003.0014.

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This chapter deals with general complete defences that the accused can use to avoid liability. The focus is on defences that can apply (with one exception) to offences throughout the criminal law and will result in the accused’s acquittal. Five kinds of general complete defences are examined: insanity (as a defence), duress by threats, duress by circumstances, the public and private defence (also known as self-defence), and necessity. The chapter first considers the categorical division between excuses and justifications, before explaining the elements of each of the defences in turn. It then outlines potential options for legal reform concerning individual defences and concludes by discussing the application of the general defences to problem facts. Relevant cases are highlighted throughout the chapter, with brief summaries of the main facts and judgments.
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