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Excuses, moral and legal: a comment on Marcia Baron’s ‘excuses, excuses’

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Notes

  1. Baron (2006, n. 1) (future bare references in the text will be to this article).

  2. A question on which Baron herself has thrown useful light: see Baron (2005).

  3. Or ‘bad, wrong, inept, unwelcome, or in some other of the numerous possible ways untoward’; Austin (1961, p. 124), quoted by Baron in section 6.

  4. As we will see in section 3, matters are different in the criminal law: criminal excuses presuppose a criminal wrong.

  5. This is not the place for a detailed explanation or defence of the distinction between offences and defences; but see generally Fletcher (1978, pp. 552–579, 683–758), Campbell (1987), Gardner (2004) and Tadros (2005, pp. 103–115). For some classic scepticism about the distinction, see Williams (1982).

  6. For more on the conception of responsibility on which I rely here, and on the distinction between responsibility and liability, see Duff (2003, 2005). Note that this implies that, as I suggested in section 2, insanity should be seen not as an excuse but as an exemption.

  7. See, e.g. Misuse of Drugs Act 1971, sections 5(2), 28(2); Food Safety Act 1990, sections 8(1), 21(1); Terrorism Act 2000, section 57.

  8. See, e.g. Prevention of Corruption Act 1916, section 2; Sexual Offences Act 2003, section 75.

  9. Given the sheer number of offences for which criminal responsibility in, for instance, English law is now strict, it could be misleading to say that criminal responsibility is typically non-strict; but it is typically non-strict for those kinds of malum in se crimes that are still—for better or worse—salient in public conception and theoretical discussion.

References

  • Austin, J. L. (1961). A plea for excuses. In J. L. Austin (Ed.), Philosophical papers (p. 123). Oxford: Oxford University Press.

  • Baron, M. (2005). Justifications and excuses. Ohio State Journal of Criminal Law, 2, 387.

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  • Baron, M. (2006). Excuses, excuses. Criminal Law and Philosophy, (This issue), DOI 10.1007/s11572-006-9001-2.

  • Campbell, K. (1987). Offence and defence. In I. Dennis (Ed.), Criminal law and justice (p. 73). London: Sweet & Maxwell.

  • Duff, R. A. (2003). “I might be guilty, but you can’t try me”: Estoppel and other bars to trial. Ohio State Journal of Criminal Law, 1, 245.

  • Duff, R. A. (2005). Answering for crime. Proceedings of the Aristotelian Society, 106, 85.

  • Fletcher, G. P. (1978). Rethinking criminal law. Boston: Little, Brown.

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  • Gardner, J. (1998). The gist of excuses. Buffalo Criminal Law Review, 1, 575.

  • Gardner, J. (2004). Fletcher on offences and defences. Tulsa Law Review, 39, 817.

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  • Tadros, V. (2005). Criminal responsibility. Oxford: Oxford University Press.

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  • Williams, G. (1982). Offences and defences. Legal Studies, 2, 233.

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  1. Department of Philosophy, University of Stirling, Stirling, FK9 4LA, UK

    R. A. Duff

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Duff, R.A. Excuses, moral and legal: a comment on Marcia Baron’s ‘excuses, excuses’. Criminal Law, Philosophy 1, 49–55 (2007). https://doi.org/10.1007/s11572-006-9003-0

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