Redrawing the Boundaries of Self‐Defence
| Date | 01 May 1995 |
| DOI | http://doi.org/10.1111/j.1468-2230.1995.tb02022.x |
| Published date | 01 May 1995 |
| Author | Jeremy Horder |
REVIEW ARTICLE
Redrawing the Boundaries of Self-Defence
Jeremy Horder”
Suzanne Uniacke,
Permissible Killing: The Self-Defence Justification for
Homicide,
Cambridge: Cambridge University Press,
1994,
ix
+
244
pp, hb
f35.00.
It would be no exaggeration to suggest that this original and rigorously argued
book will prove to be the most significant contribution yet to jurisprudential
thinking about the theoretical foundations of, and limits to, valid pleas of self-
defence. Uniacke’s specific focus is the self-defence justification for homicide, but
much of her argument is of general theoretical importance and applicability. Her
book is, moreover, of considerable topical importance. As the Law Commission
published its final proposals for codification of the law relating to self-defence,’
debate continued over whether, and if
so
in what circumstances, self-defence was
an appropriate plea for women who had killed their violent abusers by taking the
opportunity to strike whilst the latter were off-guard.2 Uniacke frequently uses
legal doctrine as a source of reference and examples, and subjects the proposals for
law reform in the Law Commission’s Draft Criminal Code to detailed ~ritique.~
So,
what has a philosophical analysis of self-defence to offer to lawyers and
legislators who are determined to enact a clear, comprehensive and (above all) just
law of self-defence?
To
answer this question we must turn to an examination of
Uniacke’s thesis.
1
Distinguishing justification from excuse
For Uniacke, the permissibility of self-defence ‘is
grounded
in the fact that the act
is one of resisting, repelling or warding off an unjust immediate threat’ (p
177).4
Her strategy is not, however, to start with this definition and then consider in turn
each of its features. Instead, she builds up an understanding of the nature and limits
of
permissible self-defence by examining questions most commonly thought to
bear on such an understanding. Amongst the questions central to her analysis are
the following: Is permissible self-defensive action justified
or
merely excused?
What is the relationship between self-defence and necessity? What is the relevance
*Worcester College, Oxford.
1
2
3
Law Corn
No
2
18,
Legislating the Criminal Code: Offences Against the Person
and
General Principles
(
1993).
See, in this regard, McColgan,
‘In
Defence of Battered Women Who Kill’ (1993) 13 OJLS
508.
Law Corn
No
177
(1989), Clause
44.
For
Uniacke’s discussion of this Report, see the references to it
in the index under ‘English Law Commission.’ The book was published prior
to
the Law
Commission’s final proposals for reform of self-defence (see Law Corn 218, discussed at
n
22
infra),
although it is those
final
proposals that
I
will scrutinise
in
the light of her analysis. Hereinafter,
references to her book will be by page number in parentheses.
4
Her emphasis. The point of the emphasis is to make it clear that whether self-defence is
in
fact
permissible depends,
inter alia,
on
whether the force used was necessary and proportionate (p
157).
See further Waldron,
‘A
Right to do Wrong?’ (1981) 92
Ethics
21-39.
0
The Modern Law Review Limited
1995
(MLR
58:3,
May). Published by Blackwell Publishers,
108
Cowley Road, Oxford
OX4 1JF
and
238
Main
Street,
Cambridge, MA
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USA.
43
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