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Rethinking Self-Defence T Markus Funk (Perkins Coie, USA University of Colorado, USA)

Rethinking Self-Defence By T Markus Funk (Perkins Coie, USA University of Colorado, USA)

Rethinking Self-Defence by T Markus Funk (Perkins Coie, USA University of Colorado, USA)

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Rethinking Self-Defence Summary

Rethinking Self-Defence: The 'Ancient Right's' Rationale Disentangled by T Markus Funk (Perkins Coie, USA University of Colorado, USA)

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 defences deeper rationale. It tackles core issues such as the relative importance of the States claimed monopoly on force, procedural justice and the need to shore up the justice systems legitimacy and creditworthiness, everyones 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.

Rethinking Self-Defence Reviews

Dr Funk in exemplary fashion examines a central question of modern political life. The result is a book that offers the most detailed comparativist study on the subject yet published. * Daniel Polsby, Dean Emeritus, Antonin Scalia School of Law, George Mason University *
Through his innovative and sensible value-based approach, Dr Funk offers and important fresh take on self-defenses key practical and theoretical issues. * Hon Bernice B Donald, US Court of Appeals for the Sixth Circuit *
[E]in groer Wurf (a major coup) in the area of self-defence theory and analysis [offering] 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, Germany *
This thorough and enlightening analysis will stand as the most comprehensive review of self-defense law to come forth in decades. [A] fascinating read for legal scholars and criminal law practitioners alike. * Hon Virginia M Kendall, US District Court for the ND of Illinois and former Assistant US Attorney *
Dr Funk's robust and fresh approach provides a powerful analytical framework to analyse 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 *
An engaging analysis that is recommended reading for anyone with an interest in criminal law defences. * Mark Dsouza, Deputy Director, Centre for Criminal Law, University College London *
Dr Funk's book offers convincing answers to many of the issues regarding self-defence's most challenging practical and theoretical questions. I find it thought-provoking and highly recommend it. * Boaz Sangero, Professor of Law, The College of Law and Business and The Sapir Academic College School of Law, Israel *
The book provides 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, The Ohio State University *
Funks truly exceptional book is a timely contribution to a searing national debate on the first of all civil rights. * William Hogan, US Department of Justice *

About T Markus Funk (Perkins Coie, USA University of Colorado, USA)

T Markus Funk is the Firmwide Chair of Perkins Coies White Collar & Investigations Practice.

Table of Contents

1. Setting the Stage 2. Developing the Value-Based Model of Self-Defence I. Early Observers of the Ancient Right of Self-Defence II. An Introduction to Th inking of Values as Decision-Grounds III. The Orthodox View: Two Principles in Tension (Autonomy of the Defender v Autonomy of the Attacker) IV. Advancing the Debate Th rough a More Value-Centric Dialogue An Introduction to (and Preliminary Defence of) Seven Proposed Value-Based Decision-Grounds A. Value #1: Reducing Overall Societal Violence by Protecting the States Collective Monopoly on Force B. Value #2: Protecting the Attackers Individual (Presumptive) Right to Life C. Value #3: Maintaining the Equal Standing between People D. Value #4: Protecting the Defenders Autonomy E. Value #5: Ensuring the Primacy of the Legal Process F. Value #6: Maintaining the Legitimacy of the Legal Order G. Value #7: Deterring (Potential) Attackers V. The Challenging Act of Balancing the Competing Values A. The Value-Based Model and the Forfeiture of Rights B. Considering Alternative Value-Accommodation Methods 3. The Scholarly Communitys Surprising Neglect of Values as Self-Defence Decision-Grounds I. Protecting the States Monopoly on Force (and the Primacy of the Legal Process) II. Respect for the Attackers Right to Life III. Protecting Equal Standing Among People IV. Protecting the Defenders Autonomy V. Ensuring the Primacy of the Legal Process VI. Maintaining the Legitimacy of the Legal Order VII. Deterrence VIII. Self-Defence Scholarships Treatment of Values as Decision-Grounds 4. The Value-Based Models Answer to Common Theoretical (Hard Case) Questions I. Is Self-Defence a Justification or Excuse (or Neither)? And Why the Answer Matters A. Aggressors v Passive Threats v Innocent Bystanders The Importance of Accurate Labelling B. Mistakes: External, Internal, and Legal Justification C. Unreasonable Mistakes of Fact II. When Is Defensive Force Necessary? A. Distinguishing Self-Defence from Necessity and Duress B. The Relationship between Necessity and Imminence C. Retreat and Avoiding Conflict III. Proportionality of Defensive Force A. Rejecting Strict Proportionality and Addressing Excessive Force B. Deadly Force in Defence of Property C. Responding to Trivial Threats IV. Necessity, Proportionality, Mistakes, and the European Convention on Human Rights A. The Current Status of Positive Obligations Imposed by Article 2 B. Article 2 in the Self-Defence Context: Defensive Force Must Be Absolutely Necessary C. Article 2 in the Self-Defence Context: Strict Proportionality Required D. Article 2 and Deadly Force in Defence of Property E. Article 2 and Mistakes V. Application of the Value-Based Model to Other Challenging Cases A. Innocent Attackers The Standard Case B. Special Rules for Attacks on the Police? 5. Examining German Laws Treatment of Self-Defence from a Value-Centric Perspective I. Putting Germanys Self-Defence Law in Context II. An Introduction to Self-Defence in Germany A. The Theoretical Foundations of Self-Defence in Germany B. Understanding the Arrival and Impact of Socio-Ethical Limitations on Defensive Force III. Subjective or Objective Standard as to Justificatory Circumstances? A. Mistakes of Fact B. Unknowingly Justified Defenders IV. The Attack A. What Interests Can Be Defended? B. Need the Attackers Conduct Be Criminal? C. Special Rules for Attacks on the Police? D. Can Passive Conduct Constitute an Attack? E. Imminence F. A New Definition of Attack? V. Defensive Conduct A. Necessity B. Proportionality and Excessive Force C. Duty to Retreat and Avoid Conflict D. Intentionally Provoked Attacks and Other Blameworthy Conduct on the Part of Defenders VI. Evaluating Germanys Self-Defence Law from a Value-Centric Perspective 6. Examining the US Laws Treatment of Self-Defence from a Value-Centric Perspective I. Putting US Self-Defence Law in Context II. Subjective or Objective Standard as to the Justificatory Circumstances A. Mistakes of Fact B. Unknowingly Justified Defenders III. The Attack A. What Interests Can Be Defended? B. Need the Attackers Conduct Be Criminal? C. Special Rules for Attacks on the Police? D. Can Passive Conduct Constitute an Attack? E. Imminence F. Necessity G. Proportionality and Excessive Force H. Duty to Retreat I. Duty to Avoid Conflict J. Intentionally Provoked Attacks and Other Blameworthy Conduct on the Part of the Defender IV. Evaluating US Self-Defence Law from a Value-Centric Perspective 7. Examining the English Laws Treatment of Self-Defence from a Value-Centric Perspective I. Putting Englands Law of Self-Defence in Context II. Subjective or Objective Standard as to the Justificatory Circumstances? A. Mistakes of Fact B. Unknowingly Justified Defenders III. The Attack A. What Can Be Defended? B. Need the Attackers Conduct Be Criminal? C. Special Rules for Attacks by the Police? D. Can Passive Conduct Constitute an Attack? E. Imminence IV. Defensive Conduct A. Necessity B. Proportionality and Excessive Force C. Duty to Retreat and Avoid Conflict D. Intentionally Provoked Attacks and Other Blameworthy Conduct on the Part of the Defender V. Evaluating Englands Self-Defence Law from a Value-Centric Perspective 8. Parting Observations

Additional information

NLS9781509945634
9781509945634
1509945636
Rethinking Self-Defence: The 'Ancient Right's' Rationale Disentangled by T Markus Funk (Perkins Coie, USA University of Colorado, USA)
T Markus Funk (Perkins Coie, USA University of Colorado, USA)
New
Paperback
Bloomsbury Publishing PLC
2022-07-28
264
N/A
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