The Quarterly Journal of Judicial Law Views

The Quarterly Journal of Judicial Law Views

Basic and legal analysis of the justification or non-justification of killing in defense of property

Authors
zahra saedi
hossein aghaei jannat makan
Abstract
Justifying or not justifying killing in defense of property has always been a challenging issue for jurists Western jurists have studied such killing in the light of the principle of proportionalit. . That is,whether there is a balance and proportionality between defensive action - killing aggressor- and aggressive action - attacking property – or not. based on this principle, some believe that killing in defense of property is disproportionate, while others have suggested theories to justify these killings. In different legal systems, in this regard, criminal law and judicial procedure are sometimes different and sometimes similar. in Iranian law, without this issue being theorized, different views have been expressed. Legislation in this regard has also varied in different periods. In the meantime, Islamic jurisprudence by requiring of gradualing in defensive actions, has provided the best solution. Due to the many ambiguities in the concept of proportionality, the jurisprudential approach of gradualing in defensive actions has been incorporated into the Islamic Penal Code 1392, and the concept of proportionality is no longer mentioned. Thus, these killings are justified by compliance of gradually in defensive actions as well as compliance of the other requirements of Article 156 of the Islamic Penal Code.
Keywords
compliance of gradually
Proportionality
killing for defense of property
double effect theory
authonomy theory
1. A,J Ashworth, "Self-Defence and the Right to Life", The Cambridge Law Journal Vol. 34, No. 2, 1975
2. Dressler, Joshua, “Battered women and sleeping abusers:some reflections”, Ohio state journal of criminal law, vol. 3:457,2006
3. Fletcher,George, "Punishment and Self-Defense", 8 Law & Phil, 1989
4. Fletcher, George, "The right to life", The Monist 63 (2), 1980
5. Fletcher, George, “The Right Deed for the Wrong Reason: A Reply to Mr. Robinson,” vol, 23, 293, Columbia law school, 1976
6. Kadish, Sanford, "Respect for Life and Regard for Rights in the Criminal Law", 64 Cal. L. Rev. 871,1976
7. Kremnitzer, Mordechai, "Proportionality and the Psychotic Aggressor: Another View", 18 Isr. L. Rev. 178, 1983
8. Leverick, Fiona, “Killing in self-defense”, Oxford university press,2006
9. Mangan, Joseph,” An Historical Analysis of the Principle of Double Effect “, Volume: 10 issue: 1,1949
10. Robinson, Paul, “A theory of justification: social harm as a prerequisite for criminal liability”, University of Pennsylvania, Vol. 23/266, UCLA L. Rev. 266, 1975
11. Sangero, Boaz, “Self-Defense in Criminal Law”, Oxford and Portland, Oregon, 2006
12. Sangero, Boaz, “a new defense for self-defense”, Buffalo criminal law, vol 9, No2, 2006
13. Stuart, Green, "Castles and carajackers: proportionality and the use of deadly force in defense of dwelling and vehicles", University of Illinois law review, No 1,1999
14. Uniacke,Suzanne,”Permissible killing: the self-defense justification of homicide”, university of Wollongong, Cambridge university press, 1996