"...if you know with certainty that you are about to be attacked, you are justified in trying to get in the first blow. Indeed, the essence of self-defense is striking the first blow against your assailant."

It's entertaining to see an Illinois judge advance this line of reasoning from a presumably "legal" background.

"Threats alone will not justify the use of deadly force in a killing." (Ill. Rev. Stat. 1985, ch. 38, par. 7 -- 1)

"Well your Honor, my client knew he was going to get attacked so he shot Mr. Smith first. It's been established that Mr. Smith said he was going to attack my client, but never tried to do so in any way. So my client, knowing what Mr. Smith said previously and taking him at his word, walked up to Mr. Smith and shot him in self defense."

Good luck.

The sucking up is kind of funny, though. I'm seriously tempted to join in.

Dearest Judge Posner,
I'm a 2L as well (at Harvard) and have had a deep admiration for your judicial opinions, your non-judicial opinions, your chic fashion sense, and your incredibly alluring visage, which it seems, currently graces a photo on my nightstand.

Respectfully,
Arthur Freen

Thanks for not pointing out that I misspelled Becker's name in the post title (it's now corrected). There went any chance I had of making their blogroll!

I suspect you're on shaky ground any time you try to apply US state law to international relationships. One might think there should be some consistency...but that would be too easy.

I dare you to leave your comment on Posner's post! ;-)

As you've pointed out, nations hold themselves to very different standards than the ones to which they hold their citizens. Even within the US, law enforcement officers are allowed to use a higher level of force than civilians in defending themselves. If the US considers itself a self-appointed "global peace keeper" that changes circumstances somewhat. Judge Posner, however, made no such distinctions or qualifications.

From a civilian perspective, Judge Posner's "self defense is striking the first blow" justification wouldn't stand up in court, almost certainly not even in his court in Illinois.

It will be interesting to see if Judge Posner's words ever come back to haunt him. Some clever attorney or defendent might quote Judge Posner's argument back at him during a murder trial.

Interestingly, there is evidence that Iraqi intelligence agents were responsible for the first World Trade Center bombing on February 26, 1993. If true, the US invasion would no longer be an issue of "pre-emptive" defense to a possible threat, but a legitimate response to a previous attack from an enemy nation.

Sadly, the Judge hasn't responded to far more incisive criticisms of his argument. In fact, he hasn't responded to any of the comments left on his blog. It's unlikely he'd respond to mine. I'm tempted to leave it just for the heck of it, though.

Would you give me a free pass on something like that? I think not. Sic 'em...

Welcome to the blogosphere, Judge!

Seems somebody already beat me to it. Feller by the name of "Farid" already called him on just this point. Somebody else mentioned the Iraqi '93 WTC bombing connection as well.