The"Discourse"Fragmentation of Cases Involving Justifiable Defense and Its Overcoming
There has been a paradox between the discourse of common sense and the discourse of legal expertise in the adjudication of cases involving justifiable defense,which is a long-standing problem in such cases.The solution to this paradox can be attempted from the formal and substantive levels.At the formal level,rules for allocating the burden of proof can be constructed to address the difficulty of proving justifiable defense facts.Proof of justifiable defense and related behaviors is a layered proof model under the integration standard.First,cases involving justifiable defense should first go through the proof of justifiable defense procedure,around the elements of justifiable defense to carry out the distribution of the burden of proof of the illegality stratum.Second,when the prosecution has disproved more than one element of justifiable defense beyond reasonable doubt,the establishment of justifiable defense is excluded and the procedure of proving related behaviors proceeds.At the substantive level,it can be sought to resolve the differences between professional discourse and public discourse in order to deal with the difficulties in the substantive judgment of justifiable defense.One way to address this is to introduce the"general cognition of the public"into the legal judgment of justifiable defense,and realize the benign interaction between jurisprudence and moral reason.
justifiable defenserelated behaviorsallocation of the burden of prooflayered proof modeljurisprudence and moral reason
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