Abstract
Justifications and excuses are defenses that exculpate. They are therefore much more like each other than like such defenses as diplomatic immunity, which does not exculpate. But they exculpate in different ways, and it has proven difficult to agree on just what that difference consists in. In this paper I take a step back from justification and excuse as concepts in criminal law, and look at the concepts as they arise in everyday life. To keep the task manageable, I focus primarily on excuses and excusing activities, distinguishing them from justifications as well as from other close relatives, in particular, forgiving and pardoning. I draw upon J.L. Austin’s classic “A Plea for Excuses,” but expand on his account, suggesting that we offer excuses for reasons besides those he mentions. My hope is that my examination of excuses and excusing activities will help us rethink our views on just how justifications and excuses differ, views which often are worked out without much attention to how these concepts function in everyday life and to the connection between offers of excuses and justifications and the “rules of civility.”
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Notes
That hope reflects a belief that the concepts of justification and excuse should function in law at least roughly the way they do in everyday life. This is not to deny that the moral concepts we employ in everyday life might need to be cleaned up; my idea is not that we should enshrine in criminal law moral concepts (much less, conceptions) as they are accepted and employed in everyday life. Likewise, I am not claiming that whatever excuses in an extra-legal context should also excuse in the criminal law; for one thing, sometimes what excuses in everyday life will get one off, but by defeating the mens rea, rather than by excusing. Nor am I claiming (nor do I think it true) that exculpatory concepts should have the same application or extension in criminal law that they have in other contexts. I am grateful to Antony Duff for prompting me to clarify my view.
For instance the self-defense claims of battered women who kill their batterers when they are asleep or otherwise off guard, and the resistance some of us have to subjective standards as a solution to the problem posed by such cases.
This is not to deny that they are often hard to distinguish, and that many defenses involve elements of both justification and excuse.
See Hudson and Taylor [1971] 2 QB 202. I thank Michelle Madden Dempsey for bringing this case to my attention.
See Baron (2005a). I also believe—though this will not be at issue in this paper—that it is important to preserve the distinction between ‘affirmative’ or ‘true’ defenses (both justifications and excuses), and defenses that negate the mens rea or the actus reus of the offense: see Dressler (2001, pp. 201–202).
Husak (2005, p. 566). I should add that ‘Excuse me’ apparently has a different connotation and a rather different use in Britain than it does in the US. In Britain one would say ‘Sorry,’ or ‘Pardon me’ rather than ‘Excuse me’ in such circumstances as those in Husak’s examples, while ‘Excuse me [please]’ would more typically be used when asking someone for directions or the time, or requesting of someone that he step to one side so that one can rush past (e.g. to catch one’s fleeing toddler, or a train or plane). Indeed, saying ‘Excuse me’ in Britain (in circumstances where in the US it is quite appropriate) can suggest that one thinks the addressee is (slightly) in the wrong, perhaps that she is where she should not be. I thank Jeanine Grenberg and Anthony Rudd for pointing this out to me.
There is a further problem with Husak’s challenge. As Austin warned in ‘A Plea for Excuses,’ ‘it will pay us to take nothing for granted or as obvious about negations and opposites’ (1979, pp. 191–192). Husak assumes that if the coughing is not justified, it must be unjustified; but there is no reason to assume that one word or the other must fit.
I am speaking here of American English.
Antony Duff questions whether this really is a case of offering an excuse despite believing oneself justified, rather than offering a justification in an excusatory way (2006, p. xx). That is a good question, but I believe that the fundamental point I make holds either way: although we believe ourselves justified, we couch our explanation of why we acted as we did as an excuse, or in an excusatory way; we do not present it straightforwardly as a justification.
Not that it always does or even typically does. It does not in a frank or self-probing discussion with a close friend, nor in a situation where you are challenged or accused, and believe you were justified in acting as you did.
Of course one is still vulnerable to a similar challenge if one pleads an excuse: ‘Why couldn’t you just tell her that you had to meet someone and would call her later?’ But pleading, ‘I guess I should have; I just couldn’t see a way to cut in like that’ is usually safer than arguing that it was more important to talk to her.
Although it is not my aim here to defend that thesis, I want to be clear on what it means—more precisely, what it has to mean if it is going to be defensible. One might try spelling it out as follows: one cannot both be justified in doing x and have an excuse for doing x. But that is not quite right. The idea, rather, is that if I act justifiably in doing x, my action is not aptly described as ‘excusable.’ Once we ascertain that it is justifiable, it is not correct to call it excusable. So, why is it a mistake to say that I cannot both be justified in doing x and have an excuse for doing x? Because I can ‘have an excuse’ in the sense that were I not justified in doing x, an excusing condition would apply. E.g., a child might lash out at someone in self-defense, and we might also say (depending on the child’s age) that if it were not justifiable self-defense, nonetheless an excusing condition (‘infancy’) would apply.
Note that my assumption that an action is justified so long as it is permissible affects this sentence and the following one.
Generally, not invariably: see Baron (2005b, pp. 605–609).
Another reason, applying to some, but not all instances of being excused, is that we prefer to be engaged by others in a way that engages our reasons and engages us as rational beings. I thank to Sophia Reibetanz for suggesting this additional reason. I say that this applies only to some instances because not all grounds on which people are excused involve, as Strawson puts it, a suspension of ‘ordinary reactive attitudes.’ See Strawson (1968).
Murphy (1988, p. 20). I do not endorse the implication that when one is excused one is ‘not responsible for what he did,’ unless this means only that one should not be held responsible for what one did. In Getting Even (Murphy, 2003), Murphy clearly takes the view that being excused entails that one was not a fully responsible agent: ‘To regard conduct as excused...is to admit that the conduct was wrong but to claim that the person who engaged in the conduct lacked substantial capacity to conform his conduct to the relevant norms and thus was not a fully responsible agent.’ But clearly this is not true of some excuses, e.g., duress; there is no reason to think that the person who acted under duress was not a fully responsible agent. Whether it is true of any excuses is debatable, but it is evident that it is not true of all. The part of the passage from Murphy’s ‘Forgiveness and Resentment’ quoted above that I do endorse—that we may forgive only what it is initially proper to resent and that if a person has done nothing wrong, there is nothing to resent—Murphy retracts in Getting Even. He writes that he now thinks it ‘a mistake to define forgiveness so narrowly. It is more illuminating...to think of forgiveness as overcoming a variety of negative feelings that one might have toward a wrongdoer—resentment, yes, but also such feelings as anger, hatred, loathing, contempt, indifference, disappointment, or even sadness’ (2003, p. 59). I do not see how overcoming indifference, disappointment, or sadness could amount to forgiveness, although I can see the point of saying that forgiveness requires that one overcome not only one’s resentment but also these other emotions, if one has them (though the criterion is then perhaps too stringent; can’t I forgive yet still feel sad about what happened?). His earlier account was better: unless one overcomes one’s resentment, one does not forgive. Self-forgiveness, of course, is different: it need not involve the overcoming of resentment, and indeed it is hard to see how it could. Perhaps it is reflection on self-forgiveness that leads some to favor a broader account of forgiveness. But we needn’t take that route; an alternative is to acknowledge that self-forgiveness is somewhat different from forgiveness, perhaps better understood as self-acceptance that has been attained through overcoming (e.g.) self-hatred.
See also Strawson (1968, p. 76): ‘To ask to be forgiven is in part to acknowledge that the attitude displayed in our actions was such as might properly be resented and in part to repudiate that attitude for the future (or at least for the immediate future); and to forgive is to accept the repudiation and to forswear the resentment.’ This seems right, with the qualification that one can forgive even if the person one is forgiving has not repudiated his objectionable attitude.
A related concept is pardon. The noun ‘pardon’ functions more like ‘forgiveness’ than like ‘excuse’: a pardon is issued to someone, and issued in a discretionary way. I beg your pardon and I beg your forgiveness, but I do not beg your excuse; I put forward an excuse in my defense but do not put forward a pardon (though I could put forward the fact that I have been pardoned—a different matter altogether).
This thought was inspired by Williams (1981), but is a little different from his suggestion. I am imagining that A might acknowledge that B’s conduct was justified but still feel wronged and have standing to forgive B, and I am supposing that A’s complaint can be justified even though B was justified in acting as he did. Williams’ claim about justification is different: A’s complaints are justified and A ‘may quite properly refuse to accept the agent’s justification which the rest of us may properly accept’ (1981, p. 37).
One might challenge this claim, arguing that the person who bore the brunt of that ‘lesser evil’ could have opted to overlook the fact that the agent caused her so much pain, and in so doing excuse him. I don’t think that would be an instance of excusing. Overlooking misconduct may be a way of excusing (as I suggest in Sect. 8), but I doubt that overlooking the fact that conduct that I recognize as justified imposed great hardship on me can be.
Austin’s remark that ‘I do not exactly evade responsibility when I plead clumsiness’ (1979, p. 181) might be hinting at this point.
‘Damned for All Time,’ lyrics by Tim Rice, from ‘Jesus Christ Superstar,’ October 1970.
No doubt she also wants to let me know of her nephew’s death, but the fact that she brings it up to explain why she has not been in touch with me in quite some time indicates that more than that is going on.
A further complication: it is a feature of our excusing practices that asking to be excused sometimes backfires. Often one’s chances are better if one doesn’t ask.
As noted, in the case of specific exemptions, although one can ask to be excused and may be excused, the person who is excused has not an excuse, but a permission.
I owe this thought to Dennis Klimchuk, though I am not sure whether I have captured his idea, or modified it in a way that he would not endorse.
It might be claimed that ‘Please excuse me’ and ‘I hope you’ll excuse me’ are also requests to be excused. I am reluctant to so classify them; they are polite utterances, and the fact that one could just as easily say (while, e.g., getting up from the dinner table to go to the restroom) ‘I am going to excuse myself’ suggests that such polite utterances are not best understood as requests to be excused.
I thank Antony Duff for pointing this out to me.
See n. 6, supra.
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Acknowledgements
For both their challenging comments and their helpful suggestions, I am grateful to audiences at Tulane University, at a conference on moral psychology at the University of Texas at Austin, at Texas Tech University, the University of Western Ontario, the University of Toronto, a conference at the University of Minnesota honoring Thomas E. Hill, Jr., and the British Academy Conference on Philosophical Analysis and the Criminal Law. Special thanks are due to Jeremy Horder and Antony Duff, who presented comments at the British Academy conference. I would also like to thank Justin M. Brown, Joshua Dressler, Jeffrie Murphy, and Kevin Toh for their helpful comments on an early draft of this paper, and Antony Duff for his suggestions for final revisions.
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Baron, M. Excuses, excuses. Criminal Law, Philosophy 1, 21–39 (2007). https://doi.org/10.1007/s11572-006-9001-2
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DOI: https://doi.org/10.1007/s11572-006-9001-2