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Between Reason and Reality: A Values-Based Reconstruction of the English and Chinese laws of self-defence

Introduction

The law of self-defence sits at the intersection of morality, public policy, and practical human experience. Even as it protects individuals who act to safeguard themselves or others, it should also guard against the abuse of force. Across jurisdictions, this balance is struck in different ways, reflecting both legal tradition and cultural values. This essay undertakes a comparative analysis of the English and Chinese law of self-defence and, drawing on Markus Funk’s value-centric framework, and proposes three reforms to make the law of self-defence more coherent, fair, and practical.

First, self-defence in English law should not apply to defendants who have made unreasonable mistakes of fact, and only to those who have made honest and reasonable mistakes. The reasonableness of a defendant’s belief should be dispositive as to whether they might rely on self-defence, and not simply evidence of whether their belief was honestly held.

Chinese law, on the other hand, should extend a complete defence to those who make reasonable mistakes in self-defence, and not only those who happened to be correct that they were being attacked.

Lastly, English self-defence should abandon its all-or-nothing approach on the question of proportionality. It should borrow from the Chinese concept of ‘excessive defence’ to allow a partial defence to defendants who defend themselves with excessive force in the reasonable belief that they are being attacked.

Section 1 will provide an overview of the English and Chinese law of self-defence. Section 2 will analyse Funk’s value-based model and evaluate both English and Chinese law against it. Section 3 will then make the case that self-defence in English law should be restricted to those who are reasonably mistaken. To allow a complete defence of honest belief, even where unreasonable, is inconsistent with doctrine and misaligned with important values that self-defence purports to protect. It excuses dangerous actors who fail to show proper regard or caution towards others, and undermines collective interests in violence reduction. An objective standard of reasonableness would restore coherence with related doctrines such as duress, better reflect moral culpability, and preserve the balance between protecting the autonomy of the defender and the legitimacy of the law.

Section 4 then dissects certain fallacies in the Chinese law of self-defence, most notably, its tendency to evaluate the defendant’s decision-making on a post-facto, and quasi-sage basis. Judicial conservatism towards self-defence has rendered it a ‘zombie provision’.1 This section will discuss how Chinese law has been heavily influenced by Confucianism, and propose that defendants who have made reasonable mistakes should be allowed to plead a full defence, as is the case in English law.

Finally, in Section 5, the essay will draw on Funk’s distinction of external-internal justification, his value metrics, and Herring’s ‘Universal Vulnerability Theory’ to justify why the requirement of reasonableness is so normatively significant.

I – An overview of the law of mistaken self-defence in the UK and China

In England and Wales, the law of self-defence consists of two limbs. Under the first limb, the defendant must have subjectively believed in the existence of an unlawful threat, ignoring any effects of self-induced intoxication or insanity. The second limb requires that the degree of force used be objectively reasonable. As to the first limb, Williams (Gladstone) clarified that ‘even if the jury came to the conclusion that the mistake was an unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled to rely upon it’.2 Section 76(3) of the Criminal Justice and Immigration Act 2008 reiterated that there is no need to show that the defendant’s belief must be reasonable.3

The Chinese law of self-defence is set out in Article 20 of the Criminal Law of the People’s Republic of China in 1997, which stipulates:

‘Any act taken to stop the unlawful infringement in order to protect the interests of the state and the public, or the personal, property and other rights of himself or others from the ongoing unlawful infringement, which causes damage to the unlawful infringer, belongs to justifiable defense and shall not bear criminal responsibility. If justifiable defense obviously exceeds the necessary limit and causes major damage, criminal responsibility shall be borne, but it shall be mitigated.’4

Therefore, to successfully plead self-defence, an unlawful infringement must be ongoing; the defence must be against the unlawful infringer himself; the defensive behaviour should not exceed the necessary limit and cause undue damage; and the party claiming the defence must have intended to act in defence. Unlike the first limb of English defence that allows defendants to rely on an honest but unreasonable belief, defendants in Chinese law will be barred from self-defence if their perception of a threat was mistaken, or if they mistakenly believed a threat was ongoing when it had in fact ended or had been neutralised.

In other words, as far as mistaken self-defence is concerned, English and Chinese law occupy opposite poles: English law allows the defendant to rely on any honest belief in a threat, while Chinese law is strictly objective and does not defer to even reasonably held beliefs that are mistaken.

II – The merits of Funk’s value-centric framework

The juristic basis of self-defence is important because it determines the limits of the defence. To that extent, this essay will argue that Funk’s value-based approach should be preferred to Leverick’s right-based model, or Schopp’s act-based justifications. Funk recharacterises the debate on self-defence as a weighing exercise between competing but equally valid normative values, and therefore offers ‘a more transparent and rational discussion’.5

The crucial difference between Funk’s value-based approach and that of competing theories is its pluralistic framework. Leverick’s right-based model to self-defence views the attacker’s right to life as a ‘fundamental value’ that no consideration, such as deterrence or human dignity, can outweigh,6 while Schopp’s act-based justification places a ‘near-singular’ emphasis on the protection of the defender’s autonomy, arguing that ‘the victim’s sovereignty and standing takes priority over the concrete interest in the culpable aggressor’s life’.7 Both are built on a single value, albeit at opposite ends of the spectrum. Leverick considers the‘right to life’ as the ‘be-all and need-all’ explanation for self-defence, when it is in truth merely a starting point.8 Because of this, Leverick is forced to treat rape as ‘equivalent as a deprivation of life itself’ to defend why lethal defensive force,9 even though not strictly proportional to a non-life-endangering threat, should be justified.10 At the other end, Schopp argues that using deadly force to avert a non-deadly threat can be justified, since the aggressor has transgressed another’s ‘sphere of personal sovereignty’, and can be met with a defence that injures their own ‘protected domain’s moral character’.11

Funk, however, involves a multitude of values in his model: protecting the state’s monopoly on force (value #1); protecting the individual attacker’s (presumptive) right to life (value #2); maintaining the equal standing between people (value #3); protecting the defender’s autonomy (value #4); ensuring the primacy of the legal process (value #5); maintaining the legitimacy of the legal order (value #6); and deterring attackers (value #7). These abstract interests are to be ‘placed on scales’.12 These seven values can be grouped in various ways to enable different value-metric assessments. For instance, value #1, #5, #6 and #7 reflect broader societal interests, while values #2, #3 #4 protect personal or individual interests. The seven values provide a framework against which the legitimacy of self-preferential force can be evaluated coherently but flexibly.13

Comparative criminal law, in particular, benefits from the value-centric analysis that Funk advocates for. It examines the precise justifications for self-defence that cut across jurisdictions, reduces ‘hidden normativity’ and enhances ‘transparency of decision-making’, while acknowledging that these justifications might be weighted differently based on cultural norms and jurisprudential influences.14 Only through Funk’s moral framework can we unravel the values at work in the law of self-defence, and start to explain the differences between the English and Chinese positions.

Funk’s position is that a defender must be ‘both externally and internally justified’ to positively assert the right to self-defence.15 He must be objectively acting to defend himself against a genuine threat, the force he employed must be objectively reasonable or proportionate against the threat, and that he must be acting with the knowledge of, and intention to, defend himself against said threat. Each condition is justified by specific values. The requirement of a genuine, ongoing threat vindicates value #1 (collective reduction of violence), value #5 (primacy of the legal process), and value #6 (legitimacy of the legal order): society will only authorise private force where it is necessary to avert real harm, minimising needless escalation. The demand that force be objectively reasonable or proportionate safeguards Value #1 again, but also signals that Value #2 (the attacker’s life and bodily integrity) is not expendable once the danger has passed. Finally, the knowledge-and-intention requirement centres Value #4 (protection of defender autonomy) and Value #3 (equal standing), recognising that the moral force of self-defence lies partly in the defender’s agency and their right to repel wrongful attack as an equal participant in the moral community.

This essay will focus on mistaken self-defence because it is a flashpoint between Funk’s various values, and reveals the latent assumptions of the subjectivist English, and objectivist Chinese approach to self-defence. Mistakes involve both internal and external justifications, and force the law to choose how to balance Funk’s value. Ultimately, in arguing for a reasonableness requirement in self-defence, this essay accepts the disorienting effect of a perceived threat, but maintains that the law should not exculpate individuals who exercise force at the expense of social order.

III – Difficulties with the English law of mistaken self-defence

As outlined above, English law does not discriminate between reasonable and unreasonable mistakes in self-defence. The defendant is entitled to plead self-defence if he genuinely believes in an imminent, unlawful infringement. But the law’s approach to insanity already reveals that this basic principle is problematic. It also does not reflect the values that self-defence should uphold, on Funk’s account.

In Oye, the Court of Appeal drew a line where self-defence was based on insane or delusional beliefs, and where it was based on other honestly held beliefs. It warned that to excuse dangerously deluded actors might undermine the collective interest in violence reduction. It added that, if insane beliefs could be invoked in self-defence, ‘the more insanely deluded a person may be in using violence in purported self-defence, the more likely that an entire acquittal may result’. The public would be ‘exposed to possible further violence from an individual with a propensity for suffering insane delusions without intervening preventive remedies’.16 In other words, the court was clearly conscious that grounding self-defence on unreasonable, albeit honestly held, beliefs, may gravely disregard Value #1 (collective reduction of violence) and Value #2 (protecting the purported attacker’s autonomy), while magnifying Value #3 (equal standing) and Value #4 (protection of the defender’s autonomy).

When the accused acts on an unreasonable belief in an imminent attack, he displays a lack of respect or concern for the life or bodily integrity of another.17 For instance, the law cannot possibly condone violence on another when the defender has not been sufficiently alert, or where he might have associated certain features of the ‘attacker’ such as race, gender or religious attire with an imminent threat. This could, for example, a racist who shoots a racial minority to rely on self-defence, if he has interpreted his request for money as a lethal threat, based on the honest but unreasonable belief that the racial minority is violent.18

It is also difficult to reconcile the law’s approach to self-defence with how it treats duress. A defendant who pleads duress must show that he reasonably believed himself to be subject to a threat of death or grievous bodily harm. Self-defence was previously subject to a similar reasonableness requirement. In the 1879 case of Weston, it was ruled that self-defence applied only if the defendant used deadly force ‘against serious violence or the reasonable dread of it’.19 This was followed in Rose,20 where the court explained that the self-defence was available because when the defendant shot his father, he had ‘honestly believed, and had reasonable grounds for the belief, that his mother’s life was in imminent peril, and that the fatal shot which he fired was absolutely necessary for the preservation of her life’. The principle that a mistake as to the justifying circumstances had to be reasonable was well-established, until Williams (Gladstone) and subsequently the Criminal Justice and Immigration Act 2008.

It might be argued that a subjective approach avoids injustice, and mirrors a wider trend towards subjectivity in the criminal law. This was what motivated the House of Lords to overrule Caldwell in Re G and restore the subjective Cunningham test for recklessness. The fact that a risk was obvious or foreseeable to a reasonable person did not amount to recklessness if the defendant had not actually foreseen the risk.21 But it is important to note that Parker survives Re G. 22 In Parker, it was ruled that recklessness was established where the defendant had ‘closed his mind to the obvious’ and had smashed a telephone in a fit of rage. Jeremy Horder likewise distinguishes between physical incapacity or disability that prevents one from foreseeing an otherwise obvious fact, which should be exculpatory, and lack of imagination, ignorance, stupidity and inadvertence, which should not.23 A defendant should still be culpable if they could foresee the risk, but chose not to due to indifferent callousness.

In the same vein, a reasonableness requirement should be adopted for the first limb of self-defence. As Fletcher has pointed out, to allow unreasonable mistaken belief in self-defence is to ‘sanction thoughtless, negligent over-reaction’ when in fact, ‘the lack of restraint, the indulgence, the failure to discipline one’s reactions … are all grounds for blaming the person who claims his wrongdoing is excused’.24

Funk has likewise argued that self-defence requires both internal and external justifications. Without a true objective threat, the external justification, and hence Value #1 (collective reduction of violence), Value #5 (primacy of the legal process) and Value #6 (legitimacy of the legal order) fall away. But internal justification might still be present, as would be Value #4 (protecting the defender’s autonomy) and Value #7 (deterring attackers), that must be reconciled with Value #2 (protecting the attacker’s right to life) and Value #3 (maintaining the equal standing between people).25

IV – Difficulties with the Chinese law of mistaken self-defence

A successful plea of self-defence is so rare in Chinese criminal law that scholars have called the provision ‘dormant’. A study of 100 randomly selected cases where self-defence was pleaded, from 34 provincial-level divisions, found that in 98 instances, self-defence was denied.26 Chen Xingliang, a leading Chinese criminal law scholar, has observed that judges might not sufficiently consider the accused’s circumstances or whether it might have been to respond to the perceived threat. Courts tend to focus narrowly on outcomes, such as death or serious injury, while overlooking context, including escalation of tension or prior provocations.27 The defence has been interpreted on the basis that ‘people should always remain rational’.28 Unlike English law which evaluates the proportionality of defendants’ use of force from the perspective of the perceived threat, rather than objective events, Chinese law is highly rational and compares the defendant to a calm, collected individual capable of judging the existence and degree of danger with almost pinpoint accuracy. The strict emphasis on objectivity as to the existence of the threat also spills over to the assessment of proportionality. In many cases, the complete defence has been substituted for the partial defence of excessive defence. Arguably, if Chinese law allows defendants to rely on reasonable, albeit mistaken, beliefs in the existence of a threat, it would better reflect the plurality of values relevant to self-defence.

The narrowness of self-defence is best exemplified by the 2016 case of Yu Huan.29 The defendant, Yu Huan had borrowed money at high interest rates but was unable to repay the debt. The lender gathered 11 others and one Du to demand repayment of the debt. They confined Yu Huan and his mother to an enclosed space for six hours, confiscated their mobile phones, and repeatedly insulted them. Out of desperation, Yu Huan picked up the fruit knife on the table and warned Du and others not to approach. This was not heeded. Yu Huan stabbed Du in the abdomen in the ensuing struggle, killing Du and injuring three others.

The court at second instance conceded that the illegal detention of Yu Huan and his mother, alongside the degrading insults and physical assaults like pushing, slapping, and choking, constituted an ongoing infringement for the purpose of the defence. However, the threat was not as grave as he perceived it to be, so his response was excessive, and Yu Huan was sentenced to five years’ imprisonment. Du might have been unarmed, but the court arguably failed to fully consider how Yu Huan was being accosted by at least eleven others and how his mother was being treated in a dehumanising manner, that both had been detained for six hours, and were beaten and demeaned. Taken together, these could have amounted to a grave and imminent threat that a reasonable person in Yu Huan’s position might have perceived as genuinely threatening. One can only speculate how the English courts might have decided such a case. But Yu Huan had made a reasonable mistake as to the intention of Du and his companions to hurt him, and felt truly threatened by the cumulative effect of the intimidation, humiliation and detention.

Liang Genlin of Peking University has proposed that when applying the law on self-defence, Chinese courts tend to fall prey to the four fallacies: ‘sage standard theory’, ‘hindsight judgment theory’, ‘results-only theory’ and ‘equal armed theory’.30 The ‘sage standard theory’ demands that the defender must make an objective, calm, rational and precisely proportionate response to unlawful infringement, as if they have conducted a cost-benefit analysis and calculated to the exact degree the response they ought to employ against the threat. The ‘hindsight judgment theory’ retrospectively attributes the knowledge gained after the event to the defender and evaluates their action based on an ex post facto standard, such as the subsequent finding of fact that Du was not intending to harm Yu Huan and his mother, but simply sought to frighten them. The ‘equal armed theory’ penalises the defender when equipped with a weapon against an unarmed defender, while the ‘results-only theory’ is informed by whether the offender was killed or severely injured by the defender.

Funk’s value-based model reveals the normative ideals behind the Chinese approach. In Chinese law, the principle of equal standing (Value #3), the attacker’s autonomy (Value #2) and the defender’s autonomy (Value #4) are accorded limited weight while the state’s monopoly on force (Value #1), the primacy of the legal process (Value #5), the legitimacy of the legal order (Value #6), and deterring attackers (Value #7) are more prominent.31

The concept of a ‘gentleman’, or junzi, captures the virtues that one aspired to have in imperial Chinese society. The junzi, or Confucian moral gentleman, copes with disputes through rang, ‘conciliation’, and ren, ‘forbearance’. And on a macro level, Chinese legal culture is centred on he, ‘harmony’, or a society without litigation where gentlemen rise above disputes and antagonism. On a Confucian view, he relegates the law to a secondary mechanism in protecting social order, since rites of propriety equip one with the motivation to act as a junzi, rather than the artificial penal force of the state.32 As the Confucian Analects explain:

‘If the people be led by laws, and uniformity sought to be given them by punishment, they will try to avoid punishment but have no sense of shame. If they be led by virtue, and uniformity sought to be given them by the rules of propriety, they will have the sense of shame, and moreover will become good’. (The Analects, II:3).33

Neither will a virtuous junzi be ruled by extreme emotions such as fear or anxiety, or prioritise individual interests. Instead, he acts with virtue and seeks true harmony with society. Funk’s value-based model provides a lens to make these embedded values explicit. By balancing competing factors, the model clarifies why Chinese courts operate stringently and take a different path from the English.

V – The middle way of reasonable mistakes

This essay proposes that neither self-defence for honest and unreasonable mistakes, nor self-defence that excludes reasonable mistakes, is satisfactory. The most normatively desirable solution is a reasonableness requirement.

As Antony Duff argues, when the defender makes a mistake, his use of force is not a ‘freely chosen action-plan manifesting [their] moral character’.34 To Duff, it is circular to argue that harm is intrinsically ‘harmful’, and then to assign blame to the human action that caused it. For example, rape is evil not because of ‘the consequentialist idea of an occurrence’, but because it attacks the victim’s protected interests, driven by the intention with which the wrongdoer acts.35 A murderous attack is not the same kind of wrong as a killing reasonably believed to be in self-defence.36

But as exhaustively argued above, Duff’s view does not consider the impact of unbridled, but mistaken, force on social stability and legal order. It is submitted that Jonathan Herring offers a path forward and implicitly justifies a reasonableness requirement. Herring has proposed a ‘universal and beneficial theory of vulnerability’.37 To Herring, we are all vulnerable, as ‘individuals are anchored at each end of their lives by dependency and the absence of capacity’.38 Humans are inherently ‘susceptible to wounding and to suffering’,39 and are ‘mutable and porous’.40 We are defined by our relationships with others either out of necessity for physical survival or emotional connection.41

So to portray individuals as atomistic, self-sustaining and self-interested is a fiction. Both Schopp and Leverick trade on this fiction: they assume that either defender or attacker is totally autonomous, and fail to recognise how autonomy is not a fixed capacity, but rather a relational concept influenced by threat, fear, social position, and personal history.

The vulnerability of all humans means that all defensive decisions are made under conditions of partial information and temporal pressure, especially in situations where we believe we are subjected to unlawful infringement.42 The fight-or-flight response, a deeply embedded evolutionary mechanism, exemplifies how our reactions to perceived aggression are rapid, affect-driven, and inherently fallible.

It follows that the ‘reasonable’ person should be reimagined as a vulnerable moral agent whose decisions under threat are shaped by biological, social, and cultural constraints. If so, then both English and Chinese self-defence law might allow reasonable mistakes without abandoning their distinct moral traditions. The result is a law of self-defence that balances collective interests in restraint and harmony with individual autonomy and equal standing, because it recognises the shared vulnerability of defender and attacker.

VI – Conclusion

This essay has shown that neither the English nor Chinese approach to mistaken self-defence fully reconciles moral principle with human reality. English law, by excusing all honest mistakes, privileges autonomy at the expense of restraint and risks legitimising negligent violence. Chinese law, by contrast, subordinates moral agency to social order, demanding an unrealistic, quasi-sage standard of rational composure from the endangered. Each, in its own way, distorts the equilibrium between autonomy, dignity, and collective security.

Funk’s value-based model reveals that the legitimacy of defensive force rests not on a single principle; it is situated within a matrix of seven interlocking values. The proposed middle way introduces a reasonableness threshold to mistaken self-defence. It aligns culpability with the epistemic limits of human judgment while preserving respect for life and the integrity of legal order.

Reimagining the ‘reasonable person’ as a vulnerable, relational moral agent honours the Confucian virtues of restraint and harmony while preserving the Anglo-American commitment to personal autonomy and equal moral standing. It transforms self-defence from a doctrinal battleground into a site of moral dialogue between legal cultures.

Thus, a value-based, reasonableness-centred reconstruction unites reason with reality. The moral justification for use of defensive force lies not in the triumph of either individualism or collectivism, but in an aspiration toward humane legality - one that treats both defender and aggressor as participants in a shared, relational moral community.

Notes

  1. (规范刑法) (Normative Criminal Law) (3rd edn, China Renmin University Press 2013) 149; see also Chen Xingliang (陈兴良), ‘Zhengdang Fangwei Ruhe Caineng Bimian Chengwei Jiangshi Tiaokuan – Yi Yu Huan Guyi Shanghai An Yishen Panjue Weili De Xingfa Jiaoyi Fenxi’ (正当防卫如何才能避免沦为僵尸条款——以于欢故意伤害案一审判决为例的刑法教义分析) (‘How Can Justifiable Defense Avoid Becoming a Zombie Clause – A Doctrinal Analysis of Criminal Law Based on the First-Instance Verdict of Yu Huan Intentional Injury Case’) (2017) 32(5) Faxuejia (法学家) (Jurist) 89. ↑

  2. R v Williams (Gladstone) [1987] 3 All ER 411 (CA); see also Beckford v The Queen [1988] AC 130, 133; Criminal Justice and Immigration Act, s 76(7). ↑

  3. Markus Dirk Dubber Funk, Rethinking Self-Defence: The ‘Ancient Right’s’ Rationale Disentangled (Hart Publishing 2009) 18-19. ↑

  4. Zhonghua Renmin Gongheguo Xingfa (中华人民共和国刑法) (Criminal Law of the People’s Republic of China, adopted 1 July 1979, revised 14 March 1997, as amended by the Eleventh Amendment 26 December 2020), art 20. ↑

  5. Funk (n 5) 18-19; see also M Fenster, ‘The Opacity of Transparency’ (2006) 91 Iowa Law Review 885, 894–902; J Rawls, Justice as Fairness: A Restatement (Harvard University Press 2001) 781. ↑

  6. Fiona Leverick, Killing in Self-Defence (OUP 2006) viii. ↑

  7. Richard F Schopp, Justification Defenses and Just Convictions (CUP 1998) 9. ↑

  8. Boaz Sangero, ‘In Defense of Self-Defence in Criminal Law and on Killing in Self-Defence – A Reply to Fiona Leverick’ (2010) 44 Crim L Bull 3, 23. ↑

  9. Leverick (n 8) 143-158. ↑

  10. Ibid 157-158. ↑

  11. Ibid 77. ↑

  12. Boaz Sangero, Self-Defence in Criminal Law (Hart Publishing 2006) 90 –106; see also Boaz Sangero, ‘A New Defense for Self-Defense’ (2006) 9 Buffalo Criminal Law Review 475. ↑

  13. Ibid. ↑

  14. Ibid 74. ↑

  15. Funk (n 5) 98. ↑

  16. R v Oye [2013] EWCA Crim 1725. ↑

  17. F Leverick, Killing in Self-Defence (2006) 165-168. ↑

  18. People v Goetz, 497 NE 2d 41 (1986), discussed in G P Fletcher, A Crime of Self-Defense: Bernard Goetz and the Law on Trial (1988). For further examples, see C K Y Lee, ‘Race and self-defence: towards a normative conception of reasonableness’ (1996) 81 Minnesota Law Review 367. ↑

  19. R v Weston [1879] 14 Cox CC 346, 35. ↑

  20. R v Rose [1884] 15 Cox CC 540, 541. ↑

  21. Metropolitan Police Commissioner v Caldwell [1982] AC 341; R v Cunningham [1957] 2 QB 396. ↑

  22. R v Parker (1977) 63 Cr App R 211. ↑

  23. Jeremy Horder, ‘Intention in criminal law: a rejoinder’ (1995) 58 MLR 678; F Stark, ‘It’s only words: on meaning and mens rea’ (2003) 72 CLJ 155; C Crosby, ‘Recklessness – the continuing search for a definition’ (2008) 72 JCL 313; D Kibel, ‘Inadvertent recklessness in criminal law’ (2004) 120 LQR 548. ↑

  24. G P Fletcher, “The psychotic aggressor: a generation later” (1993) 27 Israel Law Review 227, 241. ↑

  25. GP Fletcher, ‘The Right and the Reasonable’ (1985) 98 Harvard Law Review 949, 975; Joshua Dressler, ‘New Thoughts About the Concept of Justification in the Criminal Law: A Critique of Fletcher’s Thinking and Rethinking’ (1984) 32 UCLA Law Review 61, 86–88. ↑

  26. Wei Shen, ‘Does China Have Biased Judicial Moralism in Justifiable Self-Defence Trials? – Empirical Investigation and Philosophical Underpinnings’ https://ssrn.com/abstract=4147484 or http://dx.doi.org/10.2139/ssrn.4147484 accessed 9 September 2025. ↑

  27. Chen Xingliang (陈兴良), Guifan Xingfa (规范刑法) (Normative Criminal Law) (3rd edn, China Renmin University Press 2013) 149; see also Chen Xingliang (陈兴良), ‘Zhengdang Fangwei Ruhe Caineng Bimian Chengwei Jiangshi Tiaokuan – Yi Yu Huan Guyi Shanghai An Yishen Panjue Weili De Xingfa Jiaoyi Fenxi’ (正当防卫如何才能避免沦为僵尸条款——以于欢故意伤害案一审判决为例的刑法教义分析) (‘How Can Justifiable Defense Avoid Becoming a Zombie Clause – A Doctrinal Analysis of Criminal Law Based on the First-Instance Verdict of Yu Huan Intentional Injury Case’) (2017) 32(5) Faxuejia (法学家) (Jurist) 89. ↑

  28. BBC News 中文, ‘Kunshan Fanshaan Jiaodian: Zai Zhongguo Rending Zhengdang Fangwei You Duonan’ (昆山“反杀案”焦点：在中国认定“正当防卫”有多难’) (13 September 2018) https://www.bbc.com/zhongwen/simp/chinese-news-45365148 accessed 7 October 2025. ↑

  29. Shandongsheng Liaocheng Shi Zhongji Renmin Fayuan (山东省聊城市中级人民法院), Lü 15 Xingchu Zi No 33 Xing Shi Fu Dai Minshi Panjue (鲁15刑初字第33号刑事附带民事判决) (2016) (Lu 15 Xing Chu No 33 criminal incidental civil judgment of Liaocheng Intermediate People’s Court of Shandong Province (2016)) ↑

  30. Liang Genlin (梁根林), ‘Fangwei Guodang Bufa Panduan De Lichang, Biaozhun Yu Luoji’ (防卫过当不法判断的立场、标准与逻辑) (‘Position, Standard and Logic of Unlawful Judgment of Excessive Defense’) (2019) 64(2) Faxue Yanjiu (法学研究) (Law Journal) 14; see also Gao Mingxuan (高铭暄), ‘Zhengdang Fangwei Yu Guodang Fangwei De Jiexian’ (正当防卫与过当防卫的界限) (‘The Boundary between Justifiable Defense and Excessive Defense’) (2020) 65(1) Huashi Xuebao (Shehui Kexue Ban) (华师学报(社会科学版)) (Journal of South China Normal University (Social Science Edition)) 157. ↑

  31. Philip CC Huang, Chinese Civil Justice, Past and Present (Rowman and Littlefield 2010). The existence of an office for restricting violence with the duty to subdue violence and turmoil among the ordinary people in Western Zhou and a decree that confiscated all privately owned weapons in Qin Dynasty are two examples. See Charles Sanft, ‘Bow Control in Han China: Yuqiu Shouwang on Self-Defense’ (2008) 42 J Asian History 146. ↑

  32. Norman P Ho, ‘Legal Realism and Chinese Law: Are Confucian Legal Realists, Too?’ (2020) 13 Tsinghua China L Rev 127, 134–35; see also Geoffrey MacCormack, The Spirit of Traditional Chinese Law (University of Georgia Press 1996) 11. ↑

  33. Lunyu (论语) (The Analects of Confucius), tr James Legge, ‘II.3’ http://wengu.tartarie.com/wg/wengu.php?no=335&l=Lunyu accessed 9 September 2025. ↑

  34. Robin Antony Duff, Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law (Blackwell 1990) 112. ↑

  35. Ibid. ↑

  36. Jeremy Horder, ‘Redrawing the Boundaries of Self-Defence’ (1995) 58 Modern Law Review 433. ↑

  37. Jonathan Herring, Law and the Relational Self (Cambridge University Press 2019) 25. ↑

  38. Martha Albertson Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’ (2008) 20 Yale Journal of Law & Feminism 1. ↑

  39. Wendy Rogers, Catriona Mackenzie and Susan Dodds, ‘Why Bioethics Needs a Theory of Vulnerability’ (2012) 5 International Journal of Feminist Approaches to Bioethics 11, 12. ↑

  40. Herring (n 45) 32. ↑

  41. Kenneth J. Gergen, Relational Being (Oxford University Press 2009); Kelly McLaughlin, Surviving Identity: Vulnerability and the Psychology of Recognition (Routledge 2012). ↑

  42. Catriona Mackenzie, Wendy Rogers and Susan Dodds, ‘Introduction: What Is Vulnerability, and Why Does It Matter for Moral Theory’ in Catriona Mackenzie, Wendy Rogers and Susan Dodds (eds), Vulnerability (Oxford University Press 2014) 1. ↑

Cite this article

Emily Yu, ‘Between Reason and Reality: A Values-Based Reconstruction of the English and Chinese laws of self-defence’ (2026) 1 OULPR 43