2007SSRN Electronic JournalOpen access

Proportionality and the Aggressor's Culpability in Self-Defense

Khalid Ghanayim, Mordechai Kremnitzer

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Abstract

This article address two subjects that have been treated at length by Professor fletcher. The first is whether justified self-defense demands only the aggressor's anti-social conduct (and act that threatens harm to the victim's protected interest, with any mental element), or whether it also requires the aggressor's culpability. The between or not justified self-defense requires proportionality between the harm prevented and the harm inflicted, in the sense that the prevention of harm cannot be achieved by causing harm that is completely disproportionate.

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What this paper is about

This article address two subjects that have been treated at length by Professor fletcher. The first is whether justified self-defense demands only the aggressor's anti-social conduct (and act that threatens harm to the victim's protected interest, with any mental element), or whether it also requires the aggressor's culpability. The between or not justified self-defense requires proportionality between the harm prevented and the harm inflicted, in the sense that the prevention of harm cannot be achieved by causing harm that is completely disproportionate.

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Available abstract

This article address two subjects that have been treated at length by Professor fletcher. The first is whether justified self-defense demands only the aggressor's anti-social conduct (and act that threatens harm to the victim's protected interest, with any mental element), or whether it also requires the aggressor's culpability. The between or not justified self-defense requires proportionality between the harm prevented and the harm inflicted, in the sense that the prevention of harm cannot be achieved by causing harm that is completely disproportionate.

Key concepts: Culpability, Harm, Proportionality (law), Self defense, Element (criminal law), Law and economics, Psychology, Law

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