The Research On The Legitimacy Of Self-defence

Law is only one of the basic wisdom and ways for human to solve disputes,and human self-defense is just one of those ancient ways which are outside the law.When we go beyond the doctrinal interpretation of the clauses of justifiable defense in statutes,it may be helpful to re-understand and construct the justifiable defense system by deep exploring the legitimacy of self-defense.The self-defense discussed in this study is not a justifiable defense in the sense of the legal institutions.The concept of self-defense is often used in the Anglo-American legal theory as a synonym for private defense.The reason why this study uses this concept instead of the concept of justifiable defence is that,in the understanding and interpretation of this study,the act of self-defence contains but does not equate to the act of justifiable defence,In other words,the former is the superordinate concept of the latter.When the self-defense is limited by law,that is,when the cutting of the legal institutions,it becomes a justifiable defence.Namely,the act of self-defense in this study is a concept in the sense of natural law,while the act of justifiable defence is a concept in the sense of established legal institutions.In essence,the act of self-defense is human instinctive behavior,which belongs to the act of private relief.Moreover,there is a tension between the spirit of the autonomy represented by self-defense and the spirit of the rule by law.Therefore,to a certain extent,the act of self-defense is difficult to be completely framed by the spirit of modern rule by law.But even so,its core values need to be taken seriously by the rule of law.Because,for the act of self-defense,its fundamental value lies in order,its direct value lies in efficiency,its core value lies in justice,and its ultimate value lies in freedom.From this point of view,it is necessary to prove the legitimacy of the act of self-defense for the rational design of the legal institutions of self-defense.Then,how can we justify the act of self-defense ?The theory of social contract may be a path that is illuminating to us.In the theory of social contract,for the relationship between individuals and the state,it actually contains three key time nodes,that is,in the natural state,individual naturally have the right to self-defense,in the state of the state,the right of self-defence is transferred to the state,and in the special space-time situation in which the state fails to protect individual security,as if the natural state recurs,the right of self-defense is thus preserved and exercised.From the perspective of the theory of social contract,the act of self-defense can also be divided into three levels or stages:The act of self-defense,by virtue of human selfish nature,was the only option when danger struck;On the basis of consensual transfer,the act of self-defence shall,in most cases,give way to remedy by public force;For security reasons,the right of self-defence must be preserved at special times.This coincides with the theoretical framework of social contract theory.Then,how will the justification of self-defense cause us to rethink or even remodel the existing legal theory and established legal institutions? That is,once the legitimacy of self-defense is justified,it will be helpful to clarify theoretically whether the connotation of the institution of justifiable defense is a justification or a excuse,and this deep understanding will enlighten us to the re-recognition and re-understanding of the legal theory and legal institutions regarding justifiable defense.At a time when the component of justifiable defense,especially it's limit,become a hot issue and are being pondered and discussed repeatedly,a deeper analysis of the nature of self-defense may provide us with inspiration,at least,or a novel perspective of observation.Perhaps the further significance lies in the fact that such thinking can remind us to extend our vision from the existing legal theories and the established legal institutions to some extrajudicial space and extrajudicial factors which are outside the statutes.Outside the city of the law,the flowers are dense and the eyes are bright,perhaps with great scenery,as far as our eyes can reach.