Justified Harm: The Moral Philosophical Foundation Of Self-defense

The importance of the research on self-defense is obvious for any legal scholar.But most of Chinese academics only develop its rules from a dogmatik perspective,omitting the relevance of moral,political and legal philosophy.Justification of self-defense is important,not only for its own theoretical value,but also for it being a guidance for dogmatik rules.There are mainly three ways to justify self-defense harm.The first one is consequentialism,relying on the comparison of moral value of victim and aggressor.However,this route is often problematic.Right theory,believed as some critics,is the second candidate for us.The problem lies in the concept of right itself.As Jeremy Waldron said that right,as only a symbol of justification or practical reason,plays no roles in moral argument and reflection.The third way is to use modern principle of double effect,which is the best theory to explain defensive right at least for me.The advantage is that it puts culpability in its right place,therefore makes hybrid approach possible.The reflection on the justification of self-defense helps us make complex dogmatik debates clear.First of all,the question of the accessibility of self-defense on non-urgent crimes shows the tension between self-preservation and recognition of law.Also,culpability cannot be the justification of self-defense alone.Defensive harming acts without any intent to defense is not legal self-defense,since protection of legal interest alone cannot be the central gravity of defensive right.Lastly,we cannot exclude the accessibility of self-defense in scuff.Only if the victim has reasonable ground to believe that he or she has no better way to avoid the attack made by the aggressor,we can safely say that the victim is justified to use harming act to prevent the attack.There is no need to retreat at that time.