Polemical comments on the formal aspect of the justification of necessary (self) defence

Abstract

This polemic contributes to the discussion on the formal aspect of the justification of necessary (self) defence and on how the justification should be located in the normative  structures of criminal law. The author, using the dogmatic-legal method with particular emphasis on the derivative concept of legal interpretation as an integrated concept, argues that the regulations on the justification of necessary (self) defence function as a modifier of the scope of the sanctioning norm. This approach to the issue of the normative placement of the justification leads the author to the  conclusion that it is an expression given, by the norm-maker, to the concept of strong permission, which is an operator in deontic logic. This present study rejects the thesis that the provision on the justification of necessary (self) defence constitutes the modifier of the scope of application of the prohibition of the norm. This means that conduct performed in justification conditions meets the criteria of a prohibited act under penalty, and this entails that it is conduct capable of transgressing the sanctioned norms of criminal law. The occurrence of this situation prevents the sanctioning norm from being actualized. A different approach leads to a situation in which normative content is redundant in the legal text and is also inconsistent with the prohibition of synonymous interpretation.