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Excusing Necessity and Terror: What Criminal Law Can Teach Constitutional Law

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Abstract

This essay proposes a theory of excuse that, without blending it into exculpation, avoids the condonation of crime. The question it takes up is: given that neither compulsion by circumstances nor by human threats removes the legal reason for punishing, how can its exonerating force be rendered compatible with the state’s general duty to punish the guilty? The chapter criticizes various proposals for reconciling excuse with the duty to punish the guilty, including the moral involuntariness theory, the concession to frailty theory, and the conformity to moral expectation theory. It then proposes a solution: moral blamelessness exonerates because it simulates the conditions for legal exculpation. Just as the exculpated actor acknowledges the legal norm of mutual respect for agents, so does the excused actor acknowledge the public reason of the self-sufficient political community of which the legal norm is a part. The author argues that this theory would excuse the altruistic no less than the self-preferring murderer.

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Notes

  1. Bundesverfassungsgerict (BverfG), 1 BvR 357/05 vom 15.2.2006.

  2. Ibid., para. 124.

  3. Ibid., paras. 119–121.

  4. Ibid., para. 132.

  5. Ibid., para. 141.

  6. Ford v. Quebec, [1988] 2 SCR 712.

  7. BverfG, 1 BvR 357/05, para. 130.

  8. Hart and Fletcher lump them together under their respective theories of “excuse”; see Hart (1968, p. 152); Fletcher (1978, pp. 799–802; 2007, pp. 309–312). Gardner too treats the completely excused as non-culpable; for him, the only non-justificatory exculpating conditions making excuse unnecessary are those negating responsible agency ; see Gardner (2007, pp. 110–113, 131–132, 177–183). Antony Duff too sees excuses as exculpatory; see Duff (2007, pp. 284–296).

  9. For clarity: by exoneration I mean a discharge from the burden of punishment. Thus, both exculpatory and completely excusatory conditions exonerate.

  10. R. v. Dudley and Stephens (1884), 14 QBD 273.

  11. Hence the antipathy of many writers and courts to the defence. See Stephen (1883), II, p. 108; R. v. Howe [1987] AC 417 (denying that duress is a defence to murder.) The Canadian Criminal Code defence of duress is inapplicable to a wide range of offences; see s. 17.

  12. Hart (1968, pp. 181–183).

  13. Thomson (1985, p. 1395). See also Foot (2002, p. 23).

  14. Hörnle characterizes the duty as a “weak duty of general solidarity…towards fellow human beings in distress…” See (2007, p. 582, 594). Put that way, the duty could hardly (as she sees) justify killing other human beings in distress.

  15. Brudner (2008, p. 1, 7–16).

  16. See Hart (1968, pp. 18–21).

  17. Fletcher (1978, pp. 802–807); Gardner (2007, pp. 121–139).

  18. For example, Perka v. The Queen [1984] 2 SCR 232. Kant’s theory of necessity is sui generis and inadequate for reasons peculiar to it; I criticize it in Brudner (1987, p. 339).

  19. pp. 802–807.

  20. Supra note 18, at 249, per Dickson, J. See also R. v. Ruzic [2001] 1 SCR 687, which extended this reasoning to the defence of duress.

  21. See Shaffer (1998).

  22. An ironic result for Fletcher, given his efforts to keep separate the elements of offence and defence; see Fletcher (1978, pp. 552–555).

  23. Brudner (1987, p. 339, 347).

  24. No doubt, the legally insane person acted heteronomously, but this is not why he is exculpated. He is exculpated because, given his mistaken beliefs, no right-denial can be imputed to his choice.

  25. Though the Supreme Court of Canada has done so; see R. v. Ruzic, supra note 20.

  26. S. 2.09.

  27. Supra note 18, at 248. See also R. v. Baker and Wilkins [1997] Crim. L.R. 497 at 497–498. This is also the gist of Tatting’s judgment in Fuller (1949, p. 616, 626).

  28. Kadish (1987, p. 257, 273).

  29. or “common run of humankind” as Kadish says, ibid., p. 266.

  30. Dressler (1989, p. 1331, 1369).

  31. Aristotle (1941, 1132a).

  32. Thus Gardner writes; “The gist of an excuse…is precisely that the person with the excuse lived up to our expectations…Did she manifest as much relience, or loyalty, or thoroughness, or presence of mind as a person in her situation could properly be asked to show?…The character standards which are relevant…are not the standards of our own characters, nor even the standards of most people’s characters, but rather the standards to which our characters should, minimally, conform.” Gardner (2007, p. 124). Other adherents are: Horder (2004, p. 104); Kadish (1987, p. 257).

  33. Gardner (2007, pp. 91–120).

  34. Gardner (2007, pp. 108–113).

  35. Ibid., p. 272.

  36. Gardner (2007, pp. 155–172).

  37. See Brudner (2008, pp. 17–26).

  38. Aquinas (1947), 2-2, Q. 64, A. 7. Cf. Horder (2004, p. 60).

  39. See Klimchuk (2002, p. 339). However, if he foreseeably put himself into a position (for example, by joining a criminal gang) where he might be coerced into crime, then he is morally blameworthy for his subsequent act under necessity or duress and so loses the excuse. He is then culpable for his intentional act, not simply for his negligence.

  40. Aristotle (1941, 1132a).

  41. Ibid., 1110a.

  42. Observe that this principle will not excuse the surgeon who kills one person in order to distribute his organs to several others, because it is unbecoming a human being to assume the role of lord over life and death by redistributing natural threats according to his free discretion. In the airliner case, the pilot does not decide who will live and who will die independently of natural fate’s decree. The passengers’ deaths are imminent, and he defends many lives against a threat of which the passengers are part rather than freely choosing the beneficiaries of someone’s death. In Thomson’s version of the trolley problem, the detached switchman redirects a malign fate from many to one just as the surgeon does; his action too is an assumption of the power of life and death over the universe unbefitting a finite human being. In the plummeting airplane case (and in the original trolley problem), fate has already decreed that either these many or these few should die; and so here the choice of the lesser evil is virtuous because operating within the limits of natural fate rather than presuming to redistribute its impact.

  43. Aristotle (1941, 1140a).

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Cases

  • Luftsicherheitsgesetz Case, BverfG, 1 BvR 357/05 vom 15.2.2006.

  • R. v. Dudley and Stephens, (1884), 14 Q.B.D. 273.

  • R. v. Howe, [1987] A.C. 417.

  • Perka v. The Queen, [1984] 2 S.C.R. 232.

  • R. v. Ruzic, [2001] 1 S.C.R. 687.

  • R. v. Baker and Wilkins, [1997] Crim. L. R. 497.

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I thank the participants for their helpful comments.

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  1. Faculty of Law, University of Toronto, Toronto, Canada

    Alan Brudner

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Brudner, A. Excusing Necessity and Terror: What Criminal Law Can Teach Constitutional Law. Criminal Law, Philosophy 3, 147–166 (2009). https://doi.org/10.1007/s11572-008-9068-z

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