Self-Defence in Criminal Law
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1 Academic Center of Law and Business, Israel From the SelectedWorks of Prof. Boaz Sangero 2006 Self-Defence in Criminal Law Boaz Sangero Available at:
2 (A) Sangero Prelims 4/7/06 13:39 Page xiii CONTENTS Author s Note Acknowledgements vii ix INTRODUCTION 1 1 THE RATIONALE OF PRIVATE DEFENCE The Distinction between Justification and Excuse The Distinction between an Offence and a Defence The Rationale of Private Defence from a Historical Perspective Private Defence as an Excuse Private Defence as a Justification General; and the right to life The Aggressor s Culpability as the Crucial Factor The Test-Case of the Innocent Aggressor The Autonomy of the Attacked Person as the Crucial Factor Protection of the Social-Legal Order (In Addition to Protection of the Legitimate Interest of the Person Attacked) Balancing Interests and Choice of the Lesser Evil The Right of the Person Attacked Against the State to Resist Aggression Additional Approaches General Punishment of the Aggressor The Duty of the Attacked Person Towards Society Random Chance The Attack as a Sufficient Factor Personal and Limited Justification The Consent of the Aggressor Moral Specification and Factual Specification Theories of Justification (In General) and the Object Theory (In Particular) The Proposed Rationale General Cases that Should not be Included within the Justification of Private Defence The Proposed Rationale 93 xiii
3 (A) Sangero Prelims 4/7/06 13:39 Page xiv 2 PRIVATE DEFENCE: A COMPARATIVE ANALYSIS General Private Defence in English and American Law The English Law The American Law THE ELEMENTS OF PRIVATE DEFENCE General The Scope of Application of the Defence Which Values may be Justifiably Defended? The Source of Danger and the Character of the Attack General The Scope of the Attack Resistance to Illegal Arrest The Consent of the Victim Holding Property by Force with a Bona Fide Claim of Right An Attack by Omission The Severity of Danger General The Probability of the Occurrence of Danger The Necessity Requirement General Considerations in the Evaluation of Necessity and Secondary Requirements Derived from Necessity The Suitable Rule The Immediacy Requirement General The Content of the Immediacy Requirement Resistance to the Immediacy Requirement The Issue of Human Traps The Proportionality Requirement General The Content of the Proportionality Requirement The Nature and Significance of the Proportionality Requirement in Anglo-American Law Deadly Defensive Force A Threat by the Attacked Person to Use Force Mutual Influences between Defensive Force and Punishment? The Duty to Retreat General 192 xiv
4 (A) Sangero Prelims 4/7/06 13:39 Page xv A Theoretical Examination in Light of the Rationale of Private Defence The Duty to Retreat in Anglo-American Law Special Cases Attacks in the Dwelling Attacked Person is a Law Enforcement Officer Agressor who is Not Responsible Circumstances of Self-Defence Caused by Own Fault Defence of Another Person Proposals for Reform The Suitable Arrangement for the Issue of Retreat (In Light of the Rationale of Private Defence in General and The Principle of Proportionality in Particular) Duties in Addition to the Duty to Retreat The Mental Element General The Requisite Mental Element in Light of the Distinctions between Justification and Excuse, and between the Definition of the Offence and Justification The Requisite Mental Element in Light of the Rationale for Private Defence The Mental Element as Reflected in Comparative Law The Content of the Requirement for a Mental Element: Awareness versus Purpose An Impossible Attempt? INTERNAL DISTINCTIONS IN PRIVATE DEFENCE General (and Self-Defence) Defence of Another Person General The Defence of Another Person and the Classification of Private Defence as a Justification The Defence of another Person and the Rationale of Private Defence Defence of Another Person in Anglo-American Law Summary A Duty to Rescue Defence of Property General Repossession of Property Defence of Another Person s Property Defence of the Dwelling 266 xv
5 (A) Sangero Prelims 4/7/06 13:39 Page xvi General Definition of The Dwelling Resistance to Dispossession of the Dwelling and Repossession of the Dwelling after Dispossession Putative Defence of the Dwelling Conclusions ADDITIONAL ISSUES IN PRIVATE DEFENCE General External Issues General Issues Special Issues Putative Private Defence General The Mistaken Inclusion of Putative Private Defence within Actual Defence The Reasonability Requirement A Mistake that Stems from a State of Intoxication A Mistake of Law Unreasonable Mistakes Full Criminal Responsibility? Deviation from the Conditions of Private Defence General The Australian Case Law The English Case Law The American Case Law Existing and Proposed Legislation The Proposed Arrangement Situation of Private Defence Caused by the Actor Bearing Guilt General Examination in Light of the Rationale for Private Defence Solutions that do not Solve the Problem The Case of the The Grand Scheme Arrangements in Different Legal Systems The Israeli Case Law The Actio Libera in Causa Doctrine Establishment of a Specific Offence as an Alternative Arrangement? The Defensive Action of Battered Women General The Conditions of Private Defence and the Issue of the Battered Woman 342 xvi
6 (A) Sangero Prelims 4/7/06 13:39 Page xvii Expert Testimony Regarding The Battered Woman Syndrome The Rationale of Private Defence and the Issue of the Battered Woman The Suitable Solution for the Issue of the Battered Woman 350 EPILOGUE: THE PROPOSED LAW 355 Bibliography 361 Index 369 xvii
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