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Straw man
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This article is about the logical fallacy. For other uses, see Straw man (disambiguation).
"Man of straw" redirects here. For the novel by Heinrich Mann, see Der Untertan.
A straw man is a common form of argument and is an informal fallacy based on giving the impression of refuting an opponent's argument, while actually refuting an argument that was not presented by that opponent.[1] One who engages in this fallacy is said to be "attacking a straw man."
The typical straw man argument creates the illusion of having completely refuted or defeated an opponent's proposition through the covert replacement of it with a different proposition (i.e., "stand up a straw man") and the subsequent refutation of that false argument ("knock down a straw man") instead of the opponent's proposition.[2][3]
This technique has been used throughout history in polemical debate, particularly in arguments about highly charged emotional issues where a fiery "battle" and the defeat of an "enemy" may be more valued than critical thinking or an understanding of both sides of the issue.
Allegedly, straw man tactics were once known in some parts of the United Kingdom as an Aunt Sally, after a pub game of the same name where patrons threw sticks or battens at a post to knock off a skittle balanced on top.[4][5]
Contents
[hide]
1 Origin
2 Structure
3 Examples
4 Contemporary work
5 Steelmanning
6 See also
7 References
8 External links
Origin[edit]
U.S. President William McKinley has shot a cannon (labeled McKinley's Letter) which has involved a "straw man" and its constructors (Carl Schurz, Oswald Garrison Villard, Richard Olney) in a great explosion. Caption: S M A S H E D !, Harper's Weekly, September 22, 1900
As a fallacy, the identification and name of straw man arguments are of relatively recent date, although Aristotle makes remarks that suggest a similar concern;[6] Douglas Walton identified "the first inclusion of it we can find in a textbook as an informal fallacy" in Stuart Chase's Guides to Straight Thinking from 1956 (p. 40).[6][7] However, Hamblin's classic text Fallacies (1970) neither mentions it as a distinct type, nor even as a historical term.[6][7]
The term's origins are unclear. The usage of the term in rhetoric suggests a human figure made of straw that is easy to knock down or destroy—such as a military training dummy, scarecrow, or effigy.[8] A common folk etymology is that it refers to men who stood outside courthouses with a straw in their shoe to signal their willingness to be a false witness.[9]
Structure[edit]
The straw man fallacy occurs in the following pattern of argument:
Person 1 asserts proposition X.
Person 2 argues against a superficially similar proposition Y, falsely, as if an argument against Y were an argument against X.
This reasoning is a fallacy of relevance: it fails to address the proposition in question by misrepresenting the opposing position.
For example:
Quoting an opponent's words out of context—i.e., choosing quotations that misrepresent the opponent's intentions (see fallacy of quoting out of context).[3]
Presenting someone who defends a position poorly as the defender, then denying that person's arguments—thus giving the appearance that every upholder of that position (and thus the position itself) has been defeated[2]
Oversimplifying an opponent's argument, then attacking this oversimplified version
Examples[edit]
Straw man arguments often arise in public debates such as a (hypothetical) prohibition debate:
A: We should relax the laws on beer.
B: No, any society with unrestricted access to intoxicants loses its work ethic and goes only for immediate gratification.
The original proposal was to relax laws on beer. Person B has misconstrued/misrepresented this proposal by responding to it as if it had been something like "(we should have) unrestricted access to intoxicants." It is a logical fallacy because Person A never advocated allowing said unrestricted access to intoxicants.
In a 1977 appeal of a U.S. bank robbery conviction, a prosecuting attorney said in his closing argument:[10]
I submit to you that if you can't take this evidence and find these defendants guilty on this evidence then we might as well open all the banks and say, "Come on and get the money, boys," because we'll never be able to convict them.
This was a straw man designed to alarm the appeal judges; the chance that the precedent set by one case would literally make it impossible to convict any bank robbers is remote.
An example often given of a straw man is US President Richard Nixon's 1952 "Checkers speech."[11][12] When campaigning for vice president in 1952, Nixon was accused of having illegally appropriated $18,000 in campaign funds for his personal use. In a televised response, he spoke about another gift, a dog he had been given by a supporter:[11][12]
It was a little cocker spaniel dog, in a crate he had sent all the way from Texas, black and white, spotted, and our little girl Tricia, six years old, named it Checkers. And, you know, the kids, like all kids, loved the dog, and I just want to say this right now, that, regardless of what they say about it, we are going to keep it.
This was a straw man response; his critics had never criticized the dog as a gift or suggested he return it. This argument was successful at distracting many people from the funds and portraying his critics as nitpicking and heartless. Nixon received an outpouring of public support and remained on the ticket. He and Eisenhower were elected by a landslide.
Christopher Tindale presents, as an example, the following passage from a draft of a bill (HCR 74) considered by the Louisiana State Legislature in 2001:[7]
Whereas, the writings of Charles Darwin, the father of evolution, promoted the justification of racism, and his books On the Origin of Species and The Descent of Man postulate a hierarchy of superior and inferior races. . . .
Therefore, be it resolved that the legislature of Louisiana does hereby deplore all instances and all ideologies of racism, does hereby reject the core concepts of Darwinist ideology that certain races and classes of humans are inherently superior to others, and does hereby condemn the extent to which these philosophies have been used to justify and approve racist practices.
Tindale comments that "the portrait painted of Darwinian ideology is a caricature, one not borne out by any objective survey of the works cited." The fact that similar misrepresentations of Darwinian thinking have been used to justify and approve racist practices is beside the point: the position that the legislation is attacking and dismissing is a Straw Man. In subsequent debate, this error was recognized, and the eventual bill omitted all mention of Darwin and Darwinist ideology.[7] Darwin himself passionately opposed slavery and worked to intellectually confront the notions of "scientific racism" that were used to justify it.[13]
Contemporary work[edit]
In 2006, Robert Talisse and Scott Aikin expanded the application and use of the straw man fallacy beyond that of previous rhetorical scholars, arguing that the straw man fallacy can take two forms: the original form that misrepresents the opponent's position, which they call the representative form; and a new form they call the selection form.
The selection form focuses on a partial and weaker (and easier to refute) representation of the opponent's position. Then the easier refutation of this weaker position is claimed to refute the opponent's complete position. They point out the similarity of the selection form to the fallacy of hasty generalization, in which the refutation of an opposing position that is weaker than the opponent's is claimed as a refutation of all opposing arguments. Because they have found significantly increased use of the selection form in modern political argumentation, they view its identification as an important new tool for the improvement of public discourse.[14]
Aikin and Casey expanded on this model in 2010, introducing a third form. Referring to the "representative form" as the classic straw man, and the "selection form" as the weak man, a third form is called the hollow man. A hollow man argument is one that is a complete fabrication, where both the viewpoint and the opponent expressing it do not in fact exist, or at the very least the arguer has never encountered them. Such arguments frequently take the form of vague phrasing such as "some say," "someone out there thinks" or similar weasel words, or it might attribute a non-existent argument to a broad movement in general, rather than an individual or organization.[15][16]
A variation on the selection form, or "weak man" argument, that combines with an ad hominem is nut picking, a neologism coined by Kevin Drum.[17] A combination of "nut" (i.e., insane person) and "cherry picking", nut picking refers to intentionally seeking out extremely fringe, non-representative statements or individuals from members of an opposing group and parading these as evidence of that entire group's incompetence or irrationality.[15]
Steelmanning[edit]
The steel man argument (or steelmanning) is the opposite of the straw man argument. The idea is to find the best form of the opponent's argument to test opposing opinions.[18]
You know when someone makes an argument, and you know you can get away with making it seem like they made a much worse one, so you attack the argument for points? That's strawmanning. Lots of us have done it, even though we shouldn't. But what if we went one step beyond just not doing that? What if we went one better? Then we would be steelmanning, the art of addressing the best form of the other person's argument, even if it's not the one they presented.[19]
See also[edit]
Logic portal
Philosophy portal
Aunt Sally
Ad hominem
Devil's advocate
Cherry picking (fallacy)
Cognitive bias
Concern troll
Cratylism
Fallacy of quoting out of context
List of fallacies
Media manipulation
Per fas et nefas
Pooh-pooh
Red herring
Tilting at windmills
References[edit]
Jump up ^ Downes, Stephen. "The Logical Fallacies". Archived from the original on 2016-03-03. Retrieved 2016-02-25.
^ Jump up to: a b Pirie, Madsen (2007). How to Win Every Argument: The Use and Abuse of Logic. UK: Continuum International Publishing Group. pp. 155–157. ISBN 978-0-8264-9894-6.
^ Jump up to: a b "The Straw Man Fallacy". fallacyfiles.org. Retrieved 12 October 2007.
Jump up ^ Dennis V. Lindley (2006). Understanding Uncertainty. John Wiley & Sons. p. 80. ISBN 978-0-470-04383-7. Retrieved 2016-02-25.
Jump up ^ A. W. Sparkes (1991). Talking Philosophy: A Wordbook. Routledge. p. 104. ISBN 978-0-415-04223-9. Retrieved 2016-02-25.
^ Jump up to: a b c Douglas Walton, "The straw man fallacy". In Logic and Argumentation, ed. Johan van Bentham, Frans H. van Eemeren, Rob Grootendorst and Frank Veltman. Amsterdam, Royal Netherlands Academy of Arts and Sciences, North-Holland, 1996. pp. 115-128
^ Jump up to: a b c d Christopher W. Tindale (2007). Fallacies and Argument Appraisal. Cambridge University Press. pp. 19–28. ISBN 978-0-521-84208-2.
Jump up ^ Damer, T. Edward (1995). Attacking Faulty Reasoning: A Practical Guide to Fallacy-Free Arguments. Wadsworth. pp. 157–159.
Jump up ^ Brewer, E. Cobham (1898). "Man of Straw (A)". Dictionary of Phrase and Fable. Retrieved 13 May 2009. CS1 maint: Multiple names: authors list (link)
Jump up ^ Bosanac, Paul (2009). Litigation Logic: A Practical Guide to Effective Argument. American Bar Association. p. 393. ISBN 1616327103.
^ Jump up to: a b Waicukauski, Ronald J.; Paul Mark Sandler; JoAnne A. Epps (2001). The Winning Argument. American Bar Association. pp. 60–61. ISBN 1570739382. Retrieved 2016-02-25.
^ Jump up to: a b Rottenberg, Annette T.; Donna Haisty Winchell (2011). The Structure of Argument. MacMillan. pp. 315–316. ISBN 0312650698. Retrieved 2016-02-25.
Jump up ^ Adrian Desmond and James Moore [2009] 'Darwin's Sacred Cause: How a Hatred of Slavery Shaped Darwin's Views on Human Evolution' Houghton Mifflin Harcourt
Jump up ^ Talisse, Robert; Aikin, Scott (September 2006). "Two Forms of the Straw Man". Argumentation. Kluwer Academic Publishers. 20 (3): 345–352. doi:10.1007/s10503-006-9017-8. ISSN 1572-8374.
^ Jump up to: a b Aikin, Scott; Casey, John (March 2011). "Straw Men, Weak Men, and Hollow Men". Argumentation. Springer Netherlands. 25 (1): 87–105. doi:10.1007/s10503-010-9199-y. ISSN 1572-8374.
Jump up ^ Douglas Walton (26 August 2013). Methods of Argumentation. Cambridge University Press. ISBN 978-1-107-43519-3.
Jump up ^ Kevin Drum (August 11, 2006). "Nutpicking". The Washington Monthly.
Jump up ^ Friedersdorf, Conor (26 June 2017). "The Highest Form of Disagreement". The Atlantic.
Jump up ^ Messinger, Chana (7 December 2012). "Knocking Down a Steel Man: How to Argue Better". The Merely Real (blog).
External links[edit]
Straw Man Arguments: How to Recognize, How to Counter, and When to Use Them Yourself: a discussion of straw man arguments and their usage in debates.
The Straw Man Fallacy at the Fallacy Files
Straw Man, more examples of straw man arguments
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Constitutional law
From Wikipedia, the free encyclopedia
Jump to: navigation, search
The principles from the French Declaration of the Rights of Man and of the Citizen still have constitutional importance
Constitutional law is the body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in federal countries such as India and Canada, the relationship between the central government and state, provincial, or territorial governments.
Not all nation states have codified constitutions, though all such states have a jus commune, or law of the land, that may consist of a variety of imperative and consensual rules. These may include customary law, conventions, statutory law, judge-made law, or international rules and norms. Constitutional law deals with the fundamental principles by which the government exercises its authority. In some instances, these principles grant specific powers to the government, such as the power to tax and spend for the welfare of the population. Other times, constitutional principles act to place limits on what the government can do, such as prohibiting the arrest of an individual without sufficient cause.
In most nations, such as the United States, India, and Singapore, constitutional law is based on the text of a document ratified at the time the nation came into being. Other constitutions, notably that of the United Kingdom,[1][2] rely heavily on unwritten rules known as constitutional conventions; their status within constitutional law varies, and the terms of conventions are in some cases strongly contested.[3]
Contents
[hide]
1 State and legal structure
2 Human rights
3 Legislative procedure
4 Study of constitutional law
5 The rule of law
6 The separation of powers
7 See also
8 References
State and legal structure[edit]
Constitutional laws may often be considered second order rule making or rules about making rules to exercise power. It governs the relationships between the judiciary, the legislature and the executive with the bodies under its authority. One of the key tasks of constitutions within this context is to indicate hierarchies and relationships of power. For example, in a unitary state, the constitution will vest ultimate authority in one central administration and legislature, and judiciary, though there is often a delegation of power or authority to local or municipal authorities. When a constitution establishes a federal state, it will identify the several levels of government coexisting with exclusive or shared areas of jurisdiction over lawmaking, application and enforcement. Some federal states, most notably the United States, have separate and parallel federal and state judiciaries, with each having its own hierarchy of courts with a supreme court for each state. India, on the other hand, has one judiciary divided into district courts, high courts, and the Supreme Court of India.
Human rights[edit]
Main articles: Human rights and International human rights law
Human rights or civil liberties form a crucial part of a country's constitution and uphold the rights of the individual against the state. Most jurisdictions, like the United States and France, have a codified constitution, with a bill of rights. A recent example is the Charter of Fundamental Rights of the European Union which was intended to be included in the Treaty establishing a Constitution for Europe, that failed to be ratified. Perhaps the most important example is the Universal Declaration of Human Rights under the UN Charter. These are intended to ensure basic political, social and economic standards that a nation state, or intergovernmental body is obliged to provide to its citizens but many do include its governments.
Some countries like the United Kingdom have no entrenched document setting out fundamental rights; in those jurisdictions the constitution is composed of statute, case law and convention. A case named Entick v. Carrington[4] is a constitutional principle deriving from the common law. John Entick's house was searched and ransacked by Sherriff Carrington. Carrington argued that a warrant from a Government minister, the Earl of Halifax was valid authority, even though there was no statutory provision or court order for it. The court, led by Lord Camden stated that,
"The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. By the laws of England, every invasion of private property, be it ever so minute, is a trespass... If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment."[5]
The common law and the civil law jurisdictions do not share the same constitutional law underpinnings. Common law nations, such as those in the Commonwealth as well as the United States, derive their legal systems from that of the United Kingdom, and as such place emphasis on judicial precedent,[6][7][8][9] whereby consequential court rulings (especially those by higher courts) are a source of law. Civil law jurisdictions, on the other hand, place less emphasis on judicial review and only the parliament or legislature has the power to effect law. As a result, the structure of the judiciary differs significantly between the two, with common law judiciaries being adversarial and civil law judiciaries being inquisitorial. Common law judicatures consequently separate the judiciary from the prosecution,[10][11][12] thereby establishing the courts as completely independent from both the legislature and law enforcement. Human rights law in these countries is as a result, largely built on legal precedent in the courts' interpretation of constitutional law, whereas that of civil law countries is almost exclusively composed of codified law, constitutional or otherwise.
Legislative procedure[edit]
Main article: Parliamentary procedure
Another main function of constitutions may be to describe the procedure by which parliaments may legislate. For instance, special majorities may be required to alter the constitution. In bicameral legislatures, there may be a process laid out for second or third readings of bills before a new law can enter into force. Alternatively, there may further be requirements for maximum terms that a government can keep power before holding an election.
Study of constitutional law[edit]
The examples and perspective in this article may not represent a worldwide view of the subject. You may improve this article, discuss the issue on the talk page, or create a new article, as appropriate. (December 2010) (Learn how and when to remove this template message)
Constitutional law is a major focus of legal studies and research. For example, most law students in the United States are required to take a class in Constitutional Law during their first year, and several law journals are devoted to the discussion of constitutional issues.
The rule of law[edit]
The doctrine of the rule of law dictates that government must be conducted according to law. This was first established by British legal theorist A. V. Dicey.
Dicey identified three essential elements of the British Constitution which were indicative of the rule of law:
Absolute supremacy of regular law as opposed to the influence of arbitrary power;[13]
Equality before the law;
The Constitution is a result of the ordinary law of the land.
Dicey’s rule of law formula consists of three classic tenets. The first is that the regular law is supreme over arbitrary and discretionary powers. "[N]o man is punishable ... except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land."[14]
The separation of powers[edit]
The Separation of Powers is often regarded as a second limb functioning alongside the Rule of Law to curb the powers of the Government. In many modern nation states, power is divided and vested into three branches of government: The Executive, the Legislature and the Judiciary. The first and the second are harmonised in traditional Westminster forms of government.[15]
See also[edit]
Constitutionalism
Constitution
Constitutional economics
Constitutional rights
Philosophy of law
Public law
Rechtsstaat
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References[edit]
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Jump up ^ Blick, Andrew; Blackburn, Robert (2012), Mapping the Path to Codifying - or not Codifying - the UK's Constitution, Series paper 2. Centre for Political and Constitutional Studies, King’s College London, Parliament UK, retrieved 19 November 2016
Jump up ^ H Barnett, Constitutional and Administrative Law (5th edn Cavendish 2005) 9, "A written constitution is one contained within a single document or a [finite] series of documents, with or without amendments"
Jump up ^ Markwell, Donald (2016). Constitutional Conventions and the Headship of State: Australian Experience. Connor Court. ISBN 9781925501155.
Jump up ^ Entick v. Carrington (1765) 19 Howell's State Trials 1030
Jump up ^ "Entick v. Carrington". 19 Howell’s State Trials 1029 (1765). United States: Constitution Society. Retrieved 2008-11-13.
Jump up ^ Garner, Bryan A. (2001). A Dictionary of Modern Legal Usage (2nd, revised ed.). New York: Oxford University Press. p. 177. In modern usage, common law is contrasted with a number of other terms. First, in denoting the body of judge-made law based on that developed in England… [P]erhaps most commonly within Anglo-American jurisdictions, common law is contrasted with statutory law ...
Jump up ^ Black's Law Dictionary - Common law (10th ed.). 2014. p. 334. 1. The body of law derived from judicial decisions, rather than from statutes or constitutions; CASE LAW [contrast to] STATUTORY LAW.
Jump up ^ Lloyd Duhaime. "Common Law Legal Definition". duhaime.org. Judge-declared law. ...
Jump up ^ Washington Probate, "Estate Planning & Probate Glossary", Washington (State) Probate, s.v. "common", 8 Dec. 2008:, retrieved 7 November 2009."1. A law based on a prior court decision"
Jump up ^ Hale, Sandra Beatriz (July 2004). The Discourse of Court Interpreting: Discourse Practices of the Law, the Witness and the Interpreter. John Benjamins. p. 31. ISBN 978-1-58811-517-1.
Jump up ^ Richards, Edward P.; Katharine C. Rathbun (1999-08-15). Medical Care Law. Jones & Bartlett. p. 6. ISBN 978-0-8342-1603-7.
Jump up ^ Care, Jennifer Corrin (2004-01-12). Civil Procedure and Courts in the South Pacific. Routledge Cavendish. p. 3. ISBN 978-1-85941-719-5.
Jump up ^ A. V. Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 10th ed, 1959) p.202
Jump up ^ A. V. Dicey, Introduction to the Study of the Law of the Constitution (10th ed, 1959) p.188
Jump up ^ W B Gwyn, The Meaning of the Separation of Powers: An Analysis of the doctrine from Its Origin to the Adoption of the United States Constitution, Tulane University (1965).
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Stand-your-ground law
From Wikipedia, the free encyclopedia
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"Stand your ground" redirects here. For other uses, see Stand Your Ground (disambiguation).
A stand-your-ground law (sometimes called "line in the sand" or "no duty to retreat" law) is a justification in a criminal case, whereby defendants can "stand their ground" and use force without retreating, in order to protect and defend themselves or others against threats or perceived threats. An example is where there is no duty to retreat from any place where they have a lawful right to be, and that they may use any level of force if they reasonably believe the threat rises to the level of being an imminent and immediate threat of serious bodily harm and/or death. In Dawkins v. State the court describes "[T]he 'stand your ground' law... provide[s] that a person has a right to expect absolute safety in a place they have a right to be, and may use deadly force to repel an intruder... for a person to be justified in using deadly force, the person must not be 'engaged in unlawful activity".[1]
Justification using stand-your-ground laws may be limited when "[the defendant] was engaged in illegal activities and not entitled to benefit from provisions of the 'stand your ground' law". This may be the case even if the illegal conduct the defendant was engaged in had nothing to do with the threat which instigated his use of deadly force. For instance, as is the case in Dawkins v. State, using an illegally obtained weapon in self defense to avoid being robbed and beaten is not justified by this law.[1]
The castle doctrine is a common law doctrine stating that persons have no duty to retreat in their home, or "castle", and may use reasonable force, including deadly force, to defend their property, person, or another. Outside of the abode, however, a person has a duty to retreat, if possible, before using deadly force. Castle doctrine and "stand-your-ground" laws are acceptable defenses for people who have been charged with criminal homicide.[2]
At common law, self-defense claims are not valid if the defendant could have safely retreated from danger (duty to retreat). The castle doctrine is an exception to this. It gives immunity from liability to individuals who acted in self-defense in the home even if they could have safely retreated from the threat and failed to do so. The duty to retreat is a legal requirement in some jurisdictions that a threatened person cannot stand one's ground and apply lethal force in self-defense, but must retreat to a place of safety instead.[3][better source needed] Deadly force or lethal force is force with the intent of serious bodily injury or death to another person. In most jurisdictions it is only accepted under conditions of extreme necessity and last resort.
Stand-your-ground laws eliminate the retreat requirement at any location the defendant has a legal right to be,[4] though this varies from state to state.
Contents
1 United States
1.1 Laws
1.2 Controversy
1.3 Racial disparity
1.4 Effects on crime
2 Other jurisdictions
2.1 England and Wales
2.2 Czech Republic
2.3 Germany
2.4 Ireland
3 See also
4 References
5 Further reading
United States[edit]
Laws[edit]
Stand your ground law by US jurisdiction
Stand-your-ground law
Stand-your-ground in practice
Stand-your-ground from within one's vehicle
Castle doctrine only; duty to retreat in public
Duty to retreat
The states that have legislatively adopted stand-your-ground laws are Alabama,[5] Alaska,[6] Arizona,[7] Florida,[8] Georgia, Idaho, Indiana, Iowa,[9] Kansas,[10] Kentucky, Louisiana,[7] Michigan,[7] Mississippi, Missouri,[11] Montana,[7] Nevada, New Hampshire,[7] North Carolina,[12] Oklahoma,[7] Pennsylvania,[13] South Carolina, South Dakota, Tennessee,[7] Texas,[14] Utah,[15] West Virginia[7], and Wyoming.[16]
The states that have adopted stand-your-ground in practice,[17] either through case law/precedent, jury instructions or by other means, are California,[18][19] Colorado,[20][21] Illinois, New Mexico, Oregon, Virginia,[22] and Washington.
States that have adopted stand-your-ground, but limit it to only when a person is within their vehicle, are North Dakota, Ohio, and Wisconsin.
The states that have castle doctrine only with the duty to retreat in public are Arkansas, Connecticut, Delaware, Maine, Maryland, Massachusetts, Minnesota, Nebraska, New York, New Jersey, and Rhode Island. This means that people can use deadly force in their home, car, or other form of abode but have to retreat in public.
Controversy[edit]
Stand-your-ground laws are frequently criticized and called "shoot first" laws by critics, including the Brady Campaign to Prevent Gun Violence.[23] In Florida, self-defense claims tripled in the years following enactment.[23][24] The law's critics argue that Florida's law makes it very difficult to prosecute cases against individuals who shoot others and then claim self-defense. The shooter can argue that he felt threatened, and in most cases, the only witness who could have argued otherwise is the deceased.[23] Before passage of the law, Miami police chief John F. Timoney called the law unnecessary and dangerous in that "[w]hether it's trick-or-treaters or kids playing in the yard of someone who doesn't want them there or some drunk guy stumbling into the wrong house, you're encouraging people to possibly use deadly physical force where it shouldn't be used."[25][26] A counter argument is that implementing a duty-to-retreat places the safety of the criminal above a victim's own life.[27]
In Florida, a task force examining the law heard testimony that the law is "confusing".[28] Those testifying to the task force include Buddy Jacobs, a lawyer representing the Florida Prosecuting Attorneys Association. Jacobs recommended the law's repeal, stating that modifying the law would not fix its problems. Florida governor Rick Scott plans his own investigation into the law.[28] In a July 16, 2013 speech in the wake of the jury verdict acquitting George Zimmerman of charges stemming from the shooting death of Trayvon Martin, Attorney General Eric Holder criticized stand-your-ground laws as "senselessly expand[ing] the concept of self-defense and sow[ing] dangerous conflict in our neighborhoods."[29] The defendant, George Zimmerman, claimed he was restrained at the time of the shooting, thus allowing no option for retreat and making 'stand your ground' irrelevant to the case.[30]
Florida's legislature is currently[when?] considering a bill that would allow people to show a gun or fire a warning shot during a confrontation without drawing a lengthy prison sentence.[31] In 2017 there was a bill proposed in Florida's state legislature that would require the prosecution to prove that a defendant's use of self-defense was not valid.[32]
Racial disparity[edit]
In 2012, in response to the Trayvon Martin case, the Tampa Bay Times compiled a report on the application of stand your ground, and also created a database of cases where defendants sought to invoke the law.[33][34][35] Their report found no racial disparity in Florida cases in the way in which defendants claiming self-defense under the law are treated, with white subjects being charged and convicted at the same rate as black subjects, and results of mixed-race cases were similar for both white victims of black attackers and black victims of white attackers.[33][35] Shooters of black attackers overall were more successful at using the law than shooters of white attackers, regardless of the race of the victim claiming self-defense, but analysis showed that black attackers were also more likely to be armed and to be involved in committing a crime, such as burglary, when shot.[33][34][35]
A Texas A&M study found that when whites use the stand-your-ground defense against black attackers they are more successful than when blacks use the defense against white attackers.[36] A paper from The Urban Institute which analysed FBI data found that in stand-your-ground states, the use of the defense by whites in the shooting of a black person is found to be justifiable 17 percent of the time, while the defense when used by blacks in the shooting of a white person is successful 1 percent of the time.[36][37] In non-stand-your-ground states, the shooting of a black person by a white is found justified approximately 9 percent of the time, while the shooting of a white person by a black is found justified approximately 1 percent of the time.[36][37] According to the Urban Institute, in Stand Your Ground states, white-on-black homicides are 354 percent more likely to be ruled justified than white-on-white homicides.[38] The paper's author noted that the data used do not detail the circumstances of the shooting, which could be a source of the disparity. They also noted that the total number of shootings in the FBI dataset of black victims by whites was 25.[39] A 2015 study found that cases with white victims are two times more likely to result in convictions under these laws than cases with black victims.[40]
Effects on crime[edit]
A 2018 RAND Corporation overview of existing research concluded that "there is moderate evidence that stand-your-ground laws may increase homicide rates and limited evidence that the laws increase firearm homicides in particular."[41] Justifiable homicides have been found to have increased by 8 percent in states with stand-your-ground laws.[36] Economist John Lott says that states adopting stand-your-ground/castle doctrine laws reduced murder rates by 9 percent and overall violent crime by 11 percent, and that occurs even after accounting for a range of other factors such as national crime trends, law enforcement variables (arrest, execution, and imprisonment rates), income and poverty measures, demographic changes, and the national average changes in crime rates from year-to-year and average differences across states.[42] One study found that the adoption of stand-your-ground laws caused a statistically significant increase in the raw homicide rate, and had only a very small positive effect on deterrence of crime. The authors of the study were unable to determine what percentage of the increase was justifiable homicide, due to the reporting of homicide to the FBI often lacking notation whether the homicide was justifiable or not.[43][44]
Another analysis of stand-your-ground laws by economists at Georgia State University, using monthly data from the U.S. Vital Statistics, found a significant increase in homicide and injury of whites, especially white males. They also analyzed data from the Health Care Utilization Project, which revealed significantly increased rates of emergency room visits and hospital discharges related to gun injuries in states which enacted these laws.[45]
In a 2007 National District Attorneys Association symposium, numerous concerns were voiced that the law could increase crime. This included criminals using the law as a defense for their crimes, more people carrying guns, and that people would not feel safe if they felt that anyone could use deadly force in a conflict. The report also noted that the misinterpretation of clues could result in use of deadly force when there was, in fact, no danger. The report specifically notes that racial and ethnic minorities could be at greater risk because of negative stereotypes.[46]
Florida's stand-your-ground law went into effect on October 1, 2005. Florida state representative Dennis Baxley, an author of the law, said that the violent crime rate has dropped since the enactment of the law, though he said there may be many reasons for the change. Others have argued that the law may lead to an increase in crime.[47] Violent crime data for 1995 – 2015 has been published by the Florida Department of Law Enforcement.[48]
In 2012, a study was published which found that after the Joe Horn shooting controversy in 2007 publicized Texas' stand-your-ground law, burglaries decreased significantly in Houston, but not in Dallas, over a 20-month period.[49]
A 2013 study in the Journal of Human Resources claims that Stand Your Ground laws in states across the U.S. contribute to 600 additional homicides a year. According to Mark Hoestra, co-author of the study: "We asked what happened to homicide rates in states that passed these laws between 2000 and 2010, compared to other states over the same time period. We found that homicide rates in states with a version of the Stand Your Ground law increased by an average of 8 percent over states without it—which translates to roughly 600 additional homicides per year. These homicides are classified by police as criminal homicides, not as justifiable homicides."[50] Although police officers make up for additional homicides, they are justified. These are not classified as murder because the officers are acting in the line of duty. Police are not required to retreat when acting in the line of duty.[51]
A 2015 study found that the adoption of Oklahoma's stand-your-ground law was associated with a decrease in residential burglaries, but also that the law had "the unintended consequence of increasing the number of non-residential burglaries."[52] In 2016, Mark Gius published a study that found that stand-your-ground laws were not associated with lower crime rates.[53]
A widely reported[54] 2016 study in the Journal of the American Medical Association compared homicide rates in Florida following the passage of its "stand your ground" self-defense law to the rates in four control states, New Jersey, New York, Ohio and Virginia, which have no similar laws. It found that the law was associated with a 24.4% increase in homicide and a 31.6% increase in firearm-related homicide, but no change in rates of suicide or suicide by firearm, between 2005 and 2014. It noted that, "[c]ircumstances unique to Florida may have contributed to our findings, including those that we could not identify," and "[o]ur study examined the effect of the Florida law on homicide and homicide by firearm, not on crime and public safety".[55][56] The study was criticized by gun rights advocate John Lott's Crime Prevention Research Center for studying only one state.[54] Gun enthusiast and attorney Andrew Branca, writing in National Review, criticized the study for not distinguishing between justifiable homicides and murder, and for relying solely on statutory laws while overlooking case law (i.e. Virginia) in determining the data set.[57] The study was praised by Duke University professor Jeffrey Swanson for its use of other states as controls, saying "[t]hey look at comparable trends in states that didn't pass the law and don't see the effect."[58]
Other jurisdictions[edit]
England and Wales[edit]
This section does not cite any sources. Please help improve this section by adding citations to reliable sources. Unsourced material may be challenged and removed. (June 2018) (Learn how and when to remove this template message)
The common law jurisdiction of England and Wales has a stand-your-ground law rooted in the common law defence of using reasonable force in self-defence.
At English common law there is no duty to retreat before a person may use reasonable force against an attacker, nor need a person wait to be attacked before using such force, but one who chooses not to retreat, when retreat would be a safe and easy option, might find it harder to justify his use of force as 'reasonable'.
Any force used must be reasonable in the circumstances as the person honestly perceived them to be, after making allowance for the fact that some degree of excess force might still be reasonable in the heat of the moment.
It was once thought that in 'householder defence' cases, excessive force would be regarded as unreasonable only if "grossly disproportionate", but that view has twice been rejected by the courts. Grossly disproportionate force can never be reasonable, but lesser force might or might not be, depending on the circumstances. In R v Ray (2017) the Lord Chief Justice, giving the judgment of the Court of Appeal, said:
"If there is a threat of confrontation in the street, then the option to retreat may be important in determining whether the use of any force was reasonable. In the case of an intruder in the home, however, the option of retreat is unlikely to arise in many cases and therefore the degree of force used, although otherwise appearing to be disproportionate, might nonetheless be assessed as reasonable."
Czech Republic[edit]
Main article: Gun laws in the Czech Republic § Self defense with firearms
There is no explicit stand-your-ground or castle doctrine provision in the laws of the Czech Republic, however there is also no duty to retreat from an attack.[59] In order for a defense to be judged as legitimate, it may not be "manifestly disproportionate to the manner of the attack".[60]
Germany[edit]
German law allows self-defense against an unlawful attack.[61] If there is no other possibility for defense, it is generally allowed to use even deadly force without a duty to retreat.[62] However, there must not be an extreme imbalance ("extremes Missverhältnis") between the defended right and the chosen method of defense.[63] In particular, in case firearms are used, a warning shot must be given when defending a solely material asset.[64] If the self-defense was excessive, its perpetrator is not to be punished if he exceeded on account of confusion, fear or terror [65].
Ireland[edit]
Under the terms of the Defence and the Dwelling Act, property owners or residents are entitled to defend themselves with force, up to and including lethal force. Any individual who uses force against a trespasser is not guilty of an offense if he or she honestly believes they were there to commit a criminal act and a threat to life. However, there is a further provision which requires that the reaction to the intruder is such that another reasonable person in the same circumstances would likely employ it. This provision acts as a safeguard against grossly disproportionate use of force, while still allowing a person to use force in nearly all circumstances.
The law was introduced in response to DPP v. Padraig Nally.
A person who uses such force as is permitted by section 2 in the circumstances referred to in that section shall not be liable in tort with respect to any injury, loss or damage arising from the use of such force.
The force used is only such as is reasonable in the circumstances as he or she believes them to be—
(i) to protect himself or herself or another person present in the dwelling from injury, assault, detention or death caused by a criminal act,
(ii) to protect his or her property or the property of another person from appropriation, destruction or damage caused by a criminal act, or
(iii) to prevent the commission of a crime or to effect, or assist in effecting, a lawful arrest.
It does not matter whether the person using the force had a safe and practicable opportunity to retreat from the dwelling before using the force concerned.
This law does not apply to force used against a member of An Garda Siochána (Irish Police) or anyone assisting them, or a person lawfully performing a function authorised by or under any enactment.
See also[edit]
Jury nullification
Proxemics, the study of human use of space and the effects that population density has on behavior, communication, and social interaction
Restorative justice
References[edit]
^ Jump up to: a b Dawkins v. State, 252 P.3d 214 (Okla. 2011)
Jump up ^ Randall, Mark; DeBoer, Hendrick (April 24, 2012). "The Castle Doctrine and Stand-Your-Ground Law".
Jump up ^ "Duty to Retreat". Wikipedia.
Jump up ^ Florida Statutes Title XLVI Chapter 776
Jump up ^ Ala. Code 13A-3-23(b): "A person who is justified under subsection (a) in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his ground."
Jump up ^ Eaton, Daysha (2013-06-20). "Parnell Signs Bills, Resolutions Supporting Gun Rights | Alaska Public Media". Alaskapublic.org. Retrieved August 23, 2014.
^ Jump up to: a b c d e f g h Martosko, David (April 1, 2012) "'Stand your ground' laws not just GOP policy, records show" The Daily Caller. Retrieved April 3, 2012.
Jump up ^ "Title XLVI Chapter 776: JUSTIFIABLE USE OF FORCE". The 2013 Florida Statutes. The Florida Legislature. Retrieved April 15, 2014.
Jump up ^ NRA-ILA. "NRA-ILA | Iowa: Governor Branstad Expands the Second Amendment Rights of Gun Owners Across Iowa". NRA-ILA. Retrieved 2017-04-14.
Jump up ^ "States That Have Stand Your Ground Laws". FindLaw. Retrieved 6 October 2014.
Jump up ^ Bott, Kurt Erickson, Celeste. "Missouri Senate overrides bill allowing concealed carry without a permit". Retrieved 2016-09-15.
Jump up ^ N.C.G.S. 14 51.3
Jump up ^ "Pennsylvania's Stand Your Ground Law Mirrors Florida's", Public Source, March 21, 2012
Jump up ^ "Gov. Perry Signs Law Allowing Texans to Protect Themselves", Office of Governor Rick Perry Press Release, March 27, 2007
Jump up ^ 76-2-405 "Force in defense of habitation" Check |url= value (help). Utah criminal Code.
Jump up ^ https://www.nraila.org/articles/20180315/wyoming-stand-your-ground-legislation-becomes-law
Jump up ^ ""Stand Your Ground" Laws | Law Center to Prevent Gun Violence". smartgunlaws.org. Retrieved 2017-01-12.
Jump up ^ Penal Code §§ 197, 198.5, Legislative Counsel, State of California, archived from the original on May 12, 2009, retrieved April 3, 2012
Jump up ^ "CALCRIM No. 505. Justifiable Homicide". CaliforniaJuryInstructions.Net. January 2006. Retrieved April 3, 2012.
Jump up ^ People v. Toler, 9 P.3d 341 (Colo. 2000)
Jump up ^ Cassels v. People, 92 P.3d 951 (Colo. 2004)
Jump up ^ "Virginia Concealed Carry Permit Information". USA Carry. Retrieved September 10, 2013.
^ Jump up to: a b c "Florida 'Stand Your Ground' law could complicate Trayvon Martin teen shooting case". MSNBC. March 20, 2012. Retrieved March 21, 2012.
Jump up ^ "Deaths Nearly Triple Since 'Stand Your Ground' Enacted". CBS Miami. 2011-03-20. Retrieved March 23, 2012.
Jump up ^ Goodnough, Abby. "Florida Expands Right to Use Deadly Force in Self-Defense". The New York Times. nytimes.com. Retrieved March 23, 2012.
Jump up ^ Goodman, Howard. "NRA's Behind-the-Scenes Campaign Encouraged 'Stand Your Ground' Adoption". Florida Center for Investigative Reporting. fcir.org. Retrieved March 23, 2012.
Jump up ^ Carmon, Irin (March 20, 2014). "Can Women Stand Their Ground? Depends On the Target". MSNBC.
^ Jump up to: a b "Trayvon Martin case: Florida task force told 'stand your ground' law confusing". TheGrio. April 6, 2012. Retrieved April 6, 2012.
Jump up ^ Holder, Eric. "Remarks as Prepared for Delivery by Attorney General Eric Holder at the NAACP Annual Convention" (PDF). Retrieved July 16, 2013.
Jump up ^ Jacob Sullum (2013-07-15). "Zimmerman's Prosecutors Did Not Think They Were Trying a 'Stand Your Ground' Case - Hit & Run". Reason.com. Retrieved August 23, 2014.
Jump up ^ Fair, Madison. "Dare defend: standing for stand your ground". Law and Psychology Review. 38. |access-date= requires |url= (help)
Jump up ^ ""Stand Your Ground' Could Get Worse". The New York Times. March 9, 2017.
^ Jump up to: a b c "Florida's stand your ground law". Tampa Bay Times. December 23, 2013. Retrieved July 14, 2014.
^ Jump up to: a b Hundley, Kris; Martin, Susan Taylor; Humburg, Connie (June 1, 2012). "Florida 'stand your ground' law yields some shocking outcomes depending on how law is applied". Tampa Bay Times. Retrieved May 16, 2014.
^ Jump up to: a b c Martin, Susan Taylor; Hundley, Kris; Humburg, Connie (June 2, 2012). "Race plays complex role in Florida's 'stand your ground' law". Tampa Bay Times. Retrieved July 14, 2014.
^ Jump up to: a b c d Jonsson, Patrik (August 6, 2013). "Racial bias and 'stand your ground' laws: what the data show". Christian Science Monitor. Retrieved May 3, 2014.
^ Jump up to: a b Roman, John K. "Race, Justifiable Homicide, and Stand Your Ground Laws: Analysis of FBI Supplementary Homicide Report Data" (PDF). http://www.urban.org/UploadedPDF/412873-stand-your-ground.pdf. The Urban Institute. Retrieved June 29, 2014. External link in |website= (help)
Jump up ^ Flatow, Nicole. "5 Disturbing Facts About The State Of Stand Your Ground". Retrieved 1 December 2014.
Jump up ^ "Is There Racial Bias in "Stand Your Ground" Laws?".
Jump up ^ Ackermann, Nicole; Goodman, Melody S.; Gilbert, Keon; Arroyo-Johnson, Cassandra; Pagano, Marcello (October 2015). "Race, law, and health: Examination of 'Stand Your Ground' and defendant convictions in Florida". Social Science & Medicine. 142: 194–201. doi:10.1016/j.socscimed.2015.08.012.
Jump up ^ "The Science of Gun Policy". Morral, Andrew R., Ramchand, Rajeev, Smart, Rosanna, Gresenz, Carole Roan, Cherney, Samantha, Nicosia, Nancy. 2018.
Jump up ^ Lott, John. More Guns Less Crime. Table 10.14 "Time impact of the Castle Doctrine on violent crime rates"
Jump up ^ Cheng, Cheng; Hoekstra, Mark (2012). "Does Strengthening Self-Defense Law Deter Crime or Escalate Violence? Evidence from Castle Doctrine" (PDF). Retrieved September 19, 2012.
Jump up ^ Palazzolo, Joe (June 11, 2012). "Study Says 'Stand Your Ground' Laws Increase Homicides". Wall Street Journal. Retrieved September 19, 2012.
Jump up ^ McClellan, Chandler; Tekin, Erdal (2017). "Stand Your Ground Laws, Homicides, and Injuries". Journal of Human Resources. 52 (3): 621–653. doi:10.3368/jhr.52.3.0613-5723R2.
Jump up ^ Jansen, Steven; Nugent-Borakove, M. Elaine. "Expansions to the Castle Doctrine: Implications for Policy and Practice" (PDF). National District Attorneys Association. Retrieved June 28, 2013.
Jump up ^ "Crime rates in Florida have dropped since 'stand your ground,' says Dennis Baxley". @politifact. Retrieved 2016-12-06.
Jump up ^ "Florida Department of Law Enforcement - Violent Crime". www.fdle.state.fl.us. Retrieved 2016-12-06.
Jump up ^ Ren, L.; Zhang, Y.; Zhao, J. S. (27 December 2012). "The Deterrent Effect of the Castle Doctrine Law on Burglary in Texas: A Tale of Outcomes in Houston and Dallas". Crime & Delinquency. 61 (8): 1127–1151. doi:10.1177/0011128712466886.
Jump up ^ Coleman, Christina. "Kill At Will: Stand Your Ground Laws Contribute To 600 Additional Homicides A Year (DETAILS)". Retrieved 1 December 2014.
Jump up ^ Roberts, Joshua (Winter 2012). "Deadly Force and the Right of Self-Defense Stand Your Ground Laws". Forensic Examiner – via ProQuest.
Jump up ^ Chamlin, Mitchell B.; Krajewski, Andrea E. (29 December 2015). "Use of Force and Home Safety: An Impact Assessment of Oklahoma's". Deviant Behavior: 1–9. doi:10.1080/01639625.2015.1012027.
Jump up ^ Gius, Mark (September 2016). "The relationship between stand-your-ground laws and crime: A state-level analysis". The Social Science Journal. 53 (3): 329–338. doi:10.1016/j.soscij.2016.01.001.
^ Jump up to: a b "Misleading Journal of the American Medical Association research about Florida's Stand Your Ground Law - Crime Prevention Research Center". Crime Prevention Research Center. 2016-11-28. Retrieved 2017-01-11.
Jump up ^ Humphreys, David K.; Gasparrini, Antonio; Wiebe, Douglas J. "Evaluating the Impact of Florida's "Stand Your Ground" Self-defense Law on Homicide and Suicide by Firearm". JAMA Internal Medicine. doi:10.1001/jamainternmed.2016.6811.
Jump up ^ "A study by the Journal of the American Medical Association suggests stand-your-ground laws result in more fatal shootings". The Economist. Retrieved 2017-01-11.
Jump up ^ Branca, Andrew. "What to Make of the New Study of Florida's 'Stand Your Ground' Law". National Review. Retrieved 2016-11-18.
Jump up ^ Mohney, Gillian (November 14, 2016). "Florida Homicide Rate Increased After Passage of 'Stand Your Ground' Law, Study Finds". ABC News.
Jump up ^ Supreme Court of the Czech Republic (24 October 2001), Decision No. 5 Tz 189/2001 (in Czech), Brno
Jump up ^ Novotný, Oto (2004). Trestní právo hmotné. Praha: ASPI.
Jump up ^ "Notwehrparagraph".
Jump up ^ Heinrich, Bernd (2005). Strafrecht - Allgemeiner Teil I (in German). Stuttgart: Kohlhammer. p. 110. ISBN 3-17-018395-8.
Jump up ^ Heinrich, Bernd (2005). Strafrecht - Allgemeiner Teil I. Stuttgart: Kohlhammer. p. 123. ISBN 3-17-018395-8.
Jump up ^ Heinrich, Bernd (2005). Strafrecht - Allgemeiner Teil I (in German). Stuttgart: Kohlhammer. p. 126. ISBN 3-17-018395-8.
Jump up ^ "Notwehrexzess".
Further reading[edit]
Palmer, Brian (July 16, 2013). "Do Other Countries Have 'Stand Your Ground' Laws? Or do they require you to slowly back away?". Slate. The Slate Group. Retrieved May 26, 2014.
Lithwick, Dahlia (February 25, 2014). "'Stand Your Ground' Nation: America used to value the concept of retreat. Now we just shoot". Slate. The Slate Group. Retrieved May 26, 2014.
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