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Rethinking Self-Defence

The 'Ancient Right's' Rationale Disentangled

By: T Markus Funk
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Published: 10-12-2020
Format: EPUB eBook (?)
Edition: 1st
Extent: 256
ISBN: 9781509934188
Imprint: Hart Publishing
RRP: £72.00
Online price : £57.60
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About Rethinking Self-Defence

Self-defence – the 'ancient right' – has never been more relevant than in the present era of widespread calls for criminal justice reform. The book substantially advances the patinaed discussion by introducing for the first time a comprehensive value-centric approach to thinking about the defence's deeper rationale. It tackles core issues such as the relative importance of the State's claimed monopoly on force, procedural justice and the need to shore up the justice system's legitimacy and creditworthiness, everyone's presumptive 'right to life,' and the importance of ensuring equal standing between citizens. And, in so doing, the book breaks ground by addressing public perceptions of 'just' and 'right' outcomes, as well as the emphasis legal systems place (and should place) on State power.

Table Of Contents

Interim Table of Contents

1. introduction
2. developing the 'value-based model' of self-defence
3. Suggestions for how to approach conceptualizing and ordering the competing values as potential decision-grounds
4. The value-based model of self-defence and the 'forfeiture' of rights
5. Surveying and evaluating key competing theoretical conceptions of self-defence
6. Forced choice conception of self-defence
7. Value-based deeper dive #1: is self-defence a justification or excuse
8. Value-based deeper dive #2: when is defensive force 'necessary'?
9. Value-based deeper dive #3: proportionality of defensive force
10. Application of the value-based model to other 'hard cases'
11. Examining the subject jurisdictions' treatment of self-defence from a value-centric perspective
12. Parting reflections


“In this thoughtful and engaging monograph on self-defence, Dr Funk revisits well-trodden ground in criminal law theory, and brings to the foreground the often overlooked value judgments that permeate judicial decision-making. This change of perspective – putting values front and centre in the analysis – helps shed light on the behind-the-scenes analyses that shape doctrinal rules, and allows Dr Funk to identify, and narrow, areas of dispute. As interesting for its methodological insights as for its substantive claims, this book makes a valuable contribution to the field, and is recommended reading for anyone with an interest in criminal law defences.” –  Mark Dsouza, Deputy Director, University College London Centre for Criminal Law

“T Markus Funk's illuminative Rethinking Self-Defence takes an innovative, sensible, and value-based approach to self-defence law [offering] unique and timely insights. During a time when criminal justice reform is being debated in the US and around the world, Funk's fresh take on key issues such as procedural justice and the need to shore up the justice system's legitimacy and creditworthiness, the relative importance of the State's claimed monopoly on force, the importance of ensuring equal standing between citizens, and everyone's presumptive 'right to life' not only shines a light on public perceptions of 'just' and 'right' outcomes, but also takes a closer look at the emphasis legal systems in the US, England, Germany, and elsewhere place on State power and its limits.” –  Hon Bernice B Donald, US Court of Appeals for the Sixth Circuit

“Funk's book introduces an integrative seven-values-rationale for self-defence, and, in so doing, offers convincing answers to many of the issues regarding self-defence's most challenging practical and theoretical questions. I find the book though-provoking and highly recommend it.” –  Boaz Sangero, Full Professor of Law, The College of Law and Business and The Sapir Academic College School of Law, Israel

“Today's debates around criminal justice reform have brought to the forefront the question of when it is justifiable to kill another human being. What if a woman kills her abusive and violent husband while he is asleep? What if I kill an innocent person I honestly but wrongly believed was about to kill me? Is it justifiable to kill a child who innocently threatens my life with a loaded weapon? Should the police be given special rights to kill not available to the rest of us? Funk examines these and other difficult issues through a novel 'value-centric' lens, suggesting seven factors that the law should consider in answering the vital question of when the law should permit a person to take the life of another. He then uniquely applies these factors to explain and critique the self-defense law that has developed in the United States, England, and Germany. This book offers a thoughtful, deep, and nuanced way for the reader to think about the deadly-force controversies we face in the 21st Century.” –  Joshua Dressler, Distinguished University Professor and the Frank R Strong Chair in Law Emeritus, The Ohio State University

“Dr Funk provides much more than a new and compelling theory about self-defence. What he offers, indeed, is “ein großer Wurf” (a “major coup”) in the area of self-defence theory and analysis ... [A]nd as a significant added benefit, Dr Funk's book contains the first perfectly accurate and comprehensive English summary of the history of, and nuanced debate over, the past and present self-defence law in Germany.” –  Volker Erb, Professor of Law, Johannes Gutenberg-University Mainz

“All legal systems permit a threatened person's ad hoc use of deadly force. But the stated grounds for this privilege are hotly disputed; whether, in particular cases, the privilege properly arises, in short, has often been a bitterly divisive question … Funk in exemplary fashion examines this central questions of modern political life – and, more specifically, takes a fresh look at the nature and scope of the privilege – by taking us back to first principles. The result is a book that offers the most detailed comparativist study on the subject yet published.” –  Daniel Polsby, Dean, George Mason University School of Law

“One of the most challenging issues in modern criminal law is the use of the self-defense privilege. Dr Funk brings us back to explore the roots of the privilege in a successful effort to understand its intricacies and the ways in which it has been used in law and politics here and abroad. This thorough and enlightening analysis is the most comprehensive review of criminal defense law to come forth in decades, and a fascinating read for legal scholars and criminal law practitioners alike.” –  Virginia M Kendall, US District Judge and former federal prosecutor

“A core function of government is to suppress private violence ... In Rethinking Self-Defense, Dr Funk comprehensively identifies seven critical values implicated by an individual's use of private violence in self-defense. By looking at both individual rights and the role of the state, these values, and Dr Funk's robust and fresh analytical approach, provide a powerful analytical framework to analyze this core right that has so dominated contemporary scholarly and political debates ... I highly recommend this book.” –  Robert Leider, Assistant Professor, Antonin Scalia School of Law, George Mason University

“This book is a timely contribution to a searing national debate on the first of all civil rights. Policy makers should pay close attention to the values-based analysis set forth in this clearly-written and important analysis by Dr Funk, an experienced lawyer, former federal prosecutor, and scholar.” –  William Hogan, Assistant US Attorney, Chicago

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