Questions of value: an evaluative study of self-defense theory and practice in Germany, England, and the United States

Self-defense is a topic about which scholars, legislators, judges, and laymen alike have strongly held—and often strongly divergent—opinions. While some favor ‘tough-on-crime’ approaches according broader leeway to defenders, others advocate for a more empathetic, ‘humanitarian’ construction of the law. By way of illustration of such polarities of perspective, consider the 20th century German case allowing a farmer to shoot a youthful fruit thief in the back because the ‘right need never yield to the wrong.’ Many contemporary commentators, in contrast, reject deadly force to defend property, considering it justified only when death is threatened. Despite what will be argued is the inherently value-laden nature of such choices, debates surrounding self-defense have in the main more narrowly focused on the ‘technical’ legal aspects of the exercise of self-preferential force. This thesis tests the hypothesis that values, including protection of the attacker and defender, general and specific deterrence, maintenance of equal standing, and ensuring the primacy of the legal process, provide the rationale for self-defense and should, therefore, be treated as decision-grounds for determining when self-preferential force should be authorized. The hypothesis relatedly posits that such a value-centric approach to self-defense law will improve the transparency and quality of decision-making. To test this hypothesis, the thesis develops the ‘value-based model’ of self-defense that seeks to offer a plausible (though not the only) value-centric approach. Following a thematic literature review, the thesis uses the value-centric perspective to address certain central theoretical questions underlying self-defense doctrine. Finally, the thesis deploys the value-based model as a template against which to compare the self-defense laws of Germany, the U.S., and England. The thesis ultimately confirms the hypothesis that a broader consideration of the values implicated in self-defense will improve the transparency and quality of decision-making, and, correspondingly, reduces the impact of hidden normativity.