The Subjective Component of Self-Defence in Polish Criminal Law: Between Dogmatics, Axiology, and Social Intuitions

Abstract

This article examines the subjective component of self-defence (obrona konieczna) as regulated in Article 25 §1 of the Polish Criminal Code, with a focus on its interpretation in case law and legal doctrine. Despite its longstanding presence in Polish criminal law, this issue has not been subject to systematic and in-depth analysis, even though judicial practice reveals considerable divergence. Three main interpretative approaches are identified: maximalist, requiring both awareness of an attack and the will to protect a legal interest; moderate, limiting the subjective element to the intention to repel the attack; and minimalist, which reduces it to mere awareness of the unlawful and imminent assault. The analysis demonstrates that while maximalist and moderate views dominate in case law and doctrine, the terminology employed is often inconsistent, with “will to defend” and “intention to repel” used interchangeably. Furthermore, drawing on insights from experimental philosophy the article highlights the axiological underpinnings of these disputes. It argues that societal acceptance of self-defence does not depend on the presence of morally praiseworthy motives, but rather on the awareness of danger and effective defensive action. Finally, the study suggests the need for clarification of the subjective component, both in interpretation and de lege ferenda.