THE SYSTEMATIC LOCATION OF SELF-DEFENSE ACCORDING TO THE PERSPECTIVE OF RADICAL FUNCTIONALISM: CRITICAL ANALYSIS OF THE OBJECTIONS FORMULATED BY OMAR PALERMO TO THE APPROACH OF GÜNTHER JAKOBS

Abstract

In radical functionalism, Günther Jakobs presents self-defense as a cause of justification, considering that defensive action is typical but not unlawful. Omar Palermo, taking his reasoning, criticizes him and affirms that he must have concluded that it is a cause of atypicality. This work exposes the two positions and the motives that guarantee that the defensive action creates a typical risk and that your injury should not be objectively attributable to the scope of the aggressor-victim. Illegitimate aggression and defensive action must be legally assessed in their respective fields of competence. In this sense, although the omission of the duty of rescue by the aggressor is true, it ceases to be guarantor in the face of the defensive reaction
and opens the way to the duty of tolerance.