Abstract
This paper, originally written for a conference on criminal law in times of emergency, considers the implications of the ‘German Airliner case’ for criminal law theory. In that case, the German constitutional court struck down as unconstitutional a law empowering state officials to order the shooting down of a hijacked plane on the grounds that the state could not order the killing of innocent civilians. Some have argued that despite this ruling, individual officials should still be entitled to claim a criminal law justification defence. I argue that the nature of justification defences necessarily ties them to the powers of the state to engage in such activity. I also argue that both the constitutional decision and its criminal law implications are salutary.
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Notes
There was some controversy in the case about whether the law applied to situations where innocent passengers would be onboard when the order was given to shoot down the plane. The court found that this sort of situation was (a) covered by the law; and (b) brought it in violation of the right to dignity and the right to life. If the statute had excluded this possibility, it would still have been struck down on federalism grounds, but it appears that it would not have violated the guarantees of life and dignity. See ¶ 140 of the judgment: “§ 14 Abs. 3 LuftSiG ist dagegen mit Art. 2 Abs. 2 Satz 1 in Verbindung mit Art. 1 Abs. 1 GG insoweit vereinbar, als sich die unmittelbare Einwirkung mit Waffengewalt gegen ein unbemanntes Luftfahrzeug oder ausschließlich gegen Personen richtet, die das Luftfahrzeug als Tatwaffe gegen das Leben von Menschen auf der Erde einsetzen wollen.”
Of course, as a matter of jurisdiction, the German Basic Law is only concerned with the rights of those who are within the jurisdiction of the German state and not all human beings.
Guaranteed by § 2(2) of the Basic Law: “Jeder hat das Recht auf Leben und körperliche Unversehrtheit. Die Freiheit der Person ist unverletzlich. In diese Rechte darf nur auf Grund eines Gesetzes eingegriffen werden.”
Guaranteed by § 1(1) of the Basic Law: “Die Würde des Menschen ist unantastbar. Sie zu achten und schützen ist Verpflichtung aller staatlichen Gewalt.”
Strictly speaking, violations of § 1(1) right to dignity are not even open to justification, for this right is absolute. Although the § 2(2) right to life is subject to justified infringement by statute, the court found that this was not made out in this case. The law was also struck down on federalism grounds. The law purported to give the federal government the power to use military means to assist the states in their police functions. Although it is permissible for the federal government to use the military to assist the states, it is limited in the means it may do when assisting to police means, not military ones. The use of military force against a plane in such circumstances is ultra vires the federal government and therefore unconstitutional.
Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (Walter Wheeler Cook ed., 1919).
On this point, I follow Andrew Halpin, The Concept of a Legal Power, 16 Oxford J. Legal Stud. 129 (1996).
The person Holmes called “bad man who cares only for the material consequences” (Oliver Wendell Holmes. The Path of the Law in Collected Legal Papers (New York: Peter Smith, 1952) at 171) of his conduct will be a good deal more interested in what the criminal law has to say on this matter than on the judgment of a constitutional court about the legal effectiveness of the powers of the minister to render a certain form of conduct permissible.
Minister of Defense Franz Josef Jung stated that he would order a plane shot down regardless of the Court’s ruling. The military response to this comment was not altogether clear: Frankfurter Allgemeine http://www.faz.net/s/Rub594835B672714A1DB1A121534F010EE1/Doc~EB92A92E841834C4080EED56B289783B3~ATpl~Ecommon~Scontent.html (last accessed 20 April 2008).
I use this expression loosely in the context of the United States. The Model Penal Code is not, of course, a real statute. Nevertheless, it is the closest that we have to a national position on criminal law matters in the United States.
Model Penal Code and Commentaries, Part I, Vol. 3 (Philadelphia: American Law Institute, 1985) §3.02 at p. 15. Indeed, some American commentators go even further. Wayne LaFave, Criminal Law, 4th ed. (St. Paul, MN: West, 2003) at 526 argues as follows: “If A is confronted with a choice between (1) intentionally killing B and thus saving the population of a city and (2) letting nature run its course, thus saving B but destroying the city, he ought to be criminally liable for murder if the city population if he does nothing.”
Volker Krey, German Criminal Law: General Part, Vol. I (Stuttgart: Kohlhammer, 2003) at 83 (emphasis in the original). He cites Claus Roxin’s treatise on German criminal law as his source for this claim: Claus Roxin, Strafrecht: Allegemeiner Teil, vol. 1-3 (Munich: C.H. Beck 2005).
It is worth noting the nuanced way that an earlier generation of German courts dealt with a similar sort of necessity defense to a charge of murder. George Fletcher points out that in 1949, when a number of doctors were charged with the murder of some of their patients, they raised a sort of defense of lesser evils. They believed (presumably on reasonable grounds) that if they did not kill some of their patients, loyal members of the Nazi party would kill far more of them. When faced with this lesser evils argument the German criminal courts “remained unpersuaded that this argument had undercut the physicians’ culpability for intentional homicide.” Nevertheless, Fletcher notes (in Rethinking Criminal Law at 853) that “[t]he court was willing… to recognize a special exemption from punishment that was extrinsic to the actor’s moral guilt.” The case he cites is the Judgment of 5 March 1949, I Entscheidungen des Obersten Gerichtshofes für die Britische Zone 321.
1884 14 QBD 273 (CCR). The precise holding in this case is not altogether apparent from the court’s reasons but this seems to have been how subsequent courts interpreted the case.
Re: A (Children) [2001] Fam 147.
A.P. Simester & G. R. Sullivan, Criminal Law: Theory and Doctrine 3rd ed. (Oxford: Hart Publishing, 2007) at 720 suggest that this narrower reading of this case would be appropriate.
Paul Robinson, A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability 23 UCLA L. Rev. 266, 266 (1975).
This instrumentalist account of criminal law is perhaps most strongly in evidence in the Model Penal Code’s statement of the “aims of criminal law” in § 1.02.
George Fletcher, Rethinking Criminal Law is the most-cited book on criminal law (indeed, it is the only book on criminal law to make the Fred Shapiro’s list of “fifty most-cited legal books”) primarily for this reason. Although his discussion of other issues has also generated debate (particularly his discussion of the two patterns of liability), it is cited primarily for his discussion of justification and excuse (which makes up only a small part of the text itself). Fred R. Shapiro, The Most-Cited Legal Books Published Since 1978, 29 J. Legal Stud. 397 (2000).
Laurence A. Alexander, Justification and Innocent Aggressors, 33 Wayne L. Rev. 1177, 1177 (1987).
Alafair S. Burke, Rational Actors, Self-Defense, and Duress: Making Sense, Not Syndromes, Out of the Battered Woman, 81 N.C.L. Rev. 211, 242–243 (2002).
Paul H. Robinson, Criminal Law Defenses 100 (1984). But see John Gardner, Justifications and Reasons in Offences and Defences (Oxford: Oxford University Press, 2008) at 97: “It may indeed be a matter of bitter regret or disappointment that, thanks to the reasons which justified ones action, one nevertheless acted against the prima facie reasons for avoiding that action. It may even be a matter of regret or disappointment to the criminal law. The law certainly need not welcome it. But by granting a defence the law concedes that any regret or disappointment must be tolerated, and that no liability can attach to the person who by her prima facie wrongful actions occasioned it.”
John Gardner, Fletcher on Offences and Defences in Offences and Defences (New York: Oxford University Press, 2008).
I borrow this talk of reasons for and against from John Gardner, “Justifications and Reasons.”
There is a tension in this view, of course, between the claim that justified conduct is “morally correct” or “the preferred option” and the claim that the reasons against justified conduct remain and have force but are balanced out by countervailing reasons in favor of permitting the conduct. Many American commentators endorse the first; John Gardner most clearly endorses the second. Fletcher has endorsed each position at different times.
Mitchell N. Berman, Justifications and Excuses: Law and Morality, 53 Duke L.J. 1, 17 (2003).
Paul H. Robinson, Criminal Law Defenses: A Systematic Analysis 82 Colum. L. Rev. 199, 239–40 (1982); George P. Fletcher, The Right and the Reasonable 98 Harv. L. Rev. 949, 972.
R.A. Duff, Answering for Crime (Oxford: Hart Publishing, 2007) at 176. See also Antony Duff, Lindsay Farmer, Sandra Marshall and Victor Tadros, The Trial on Trial, Volume Three: Towards a Normative Theory of the Criminal Trial (Oxford: Hart Publishing, 2007), at 142: “[T]he core of the trial is to be found not in that role as a prelude to and legitimation of the punishment that the convicted defendant then receives, but in its role as calling citizens who are accused of such public wrongdoing to answer that accusation, as determining the justice of that accusation, and as calling the defendant who has committed the crime to answer for it.” See also, John Gardner, In Defence of Defenses at 82: “so far as criminal lawyers are concerned, the acquisition of a moral duty to offer some justification for what one did is itself a normative consequence of doing it. […] It makes it the wrongdoer’s job to offer up what justification she can, as a responsible agent who answer for her own wrongs.”
I follow Russell Christopher in using this moniker, Mistake of Fact in the Objective Theory of Justifications: Do Two Rights Make Two Wrong Make Two Rights…? 85 J. Crim. L. & Criminology 295, 299 n. 20.
George Fletcher, Rethinking Criminal Law at 767.
Krey, vol. II, § 225 at p. 17. (emphasis in original).
R.A. Duff, (Answering for Crime at 267) suggests that “the errors [the incompatibility thesis] involves have been thoroughly exposed by others…” In support of this claim he cites the following critiques: Kent Greenawalt, The Perplexing Borders of Justification and Excuse 84 Colum. L. Rev. 1897, 1918–27 (1984); Joshua Dressler, New Thoughts About the Concept of Justification in Criminal Law: A Critique of Fletcher’s Thinking and Rethinking 32 UCLA L. Rev. 61, 87–98 (1984); Douglas N. Husak, Justifications and the Criminal Liability of Accessories 80 J. of Crim. & Criminology 491 (1989); Douglas N. Husak, Conflicts of Justifications 18 L. & Phil. 41 (1999); Mitchell N. Berman, Justifications and Excuses: Law and Morality, 53 Duke L.J. 1, 62–64 (2003).
Numerous examples spring to mind: the disagreement between American and European approaches to freedom of expression is one example; their disagreement on the demands of what the French call “laïcité” and the Americans call the “separation between church and state” is another.
Joshua Dressler, New Thoughts About the Concept of Justification in Criminal Law: A Critique of Fletcher’s Thinking and Rethinking 32 UCLA L. Rev. 61 (1984) at 88. This example has little purchase with German criminal law scholars who would treat this case as a classic case of excuse, not justification. See Krey §232 at p. 23. This is also Immanuel Kant’s example of conduct that cannot be justified but ought still not to be punished. See Immanuel Kant, The Metaphysics of Morals tr. Mary Gregor (Cambridge: Cambridge University Press, 1996) at 28 [Ak. 6: 235–6].
George Fletcher, Rethinking Criminal Law at 975 (emphasis added).
Douglas N. Husak, Conflicts of Justifications 18 Law and Philosophy 41, 46 (1999).
George Fletcher acknowledges (Rethinking Criminal Law at 773) that there has historically been a division on this point. He suggests that “there is an intriguing diversity of sentiment about which category of justificatory claims, the governmental or the private, should be taken as paradigmatic of the theory of justification as a whole. In the history of the common law, the notion of justified homicide was always closely associated with governmental conduct. […] In contrast to Blackstone’s finding the core cases of justification in governmental action, the modern European view takes the claims of private justification to be paradigmatic…” In what follows, I shall suggest that the German interest in the justification of self-defense and lesser evils does not mean that “private” claims to justification are taken as paradigmatic by German criminal law. Rather, this simply reflects the fact that such defenses will necessarily be set out in a less fine-grained way than those that apply to government action (and they will be set out in the criminal code, rather than in a separate statute regulating state action).
But the German academic commentary makes clear that the disproportionate attention given to necessity and self-defense among justification defenses in the German treatises need not represent a commitment to the view that “private justificatory claims” are taken as paradigmatic. Volker Krey points out (§ 217 at p. 11) as follows: “[T]he clarification whether grounds of legal justification intervene is typically carried out pursuant to the valuations of the whole legal system (of all fields of law). Grounds of justification as legal permission are no specific subject of criminal law. Rather, only a few such legal permissions are laid down in the German Criminal Code (StGB), e.g. self-defence (§ 32 StGB) necessity/emergency as legal justification (§ 34 StGB) In contrast, most grounds of legal justification are laid down in private law and particularly in public law, inter alia: Defensivnotstand, § 228 BGB; Aggressivnotstand, § 904 BGB; Selbsthilfe, §§ 229, 230 BGB; Right to arrest criminal offenders (§ 127 StPO)…”
Even according to this account, there is the conceptual possibility of a conflict of justification claims. This is because the notion of “no conflict” is a regulative ideal to which the state’s decision-makers should aspire. But it is still possible that they might come into conflict through differences in their reasonable interpretations of what would be the appropriate state-sanctioned response to the situation. As we shall see, the state’s bureaucratic hierarchy is another mechanism that the criminal law uses to minimize the possibility even of reasonable disagreement on these matters.
I set out the basic argument of the following section—that justification defenses in the common law world arise through ex ante permissions rather than ex post moral judgments—in greater detail in another paper: Malcolm Thorburn, Justifications, Powers, and Authority 117 Yale L. J. 1070 (2008).
As Volker Krey points out (§ 217, p. 11), most justification defenses do not arise within criminal codes, but come from “the whole legal system.” Unfortunately, the absence of such justification defenses from the text of criminal codes has led some criminal law theorists to ignore them and to focus exclusively on those that arise in the statutory language of criminal codes.
Of course, one can disagree about what counts as a “crucial” feature. I hope that it will become clear in what follows why I have identified these three features.
Paul Robinson has spent the past 30 years arguing for the reform of justification defenses in order to do away with precisely this feature. (Indeed, the example of the stolen bag with a bomb in it arises from the actual Israeli criminal case of Motti Ashkenazi. See Paul H. Robinson, The Bomb Thief and the Theory of Justification Defenses, 8 Crim. L.F. 387 (1997)). Even Robinson acknowledges that this is a well-settled feature of justification defenses as they exist in Anglo-American doctrine.
This is a point that not only Robinson but also Fletcher and Gardner and the other proponents of the “justifications and reasons” camp argue is mistaken. Nevertheless, they all recognize that this, too, is a settled feature of justification defenses in Anglo-American doctrine.
For example, the parent cannot consent to surgery on her child for the sake of profit (say, by selling a child’s kidney) if she does not deem it to be in the best interests of the child.
George Fletcher, Rethinking Criminal Law at 773.
Of course, it is not only the common law that assumes this close connection between state action and the legitimate use of force. The most famous statement of this connection is Max Weber, The Profession and Vocation of Politics in Political Writings ed. Peter Lassman & Ronald Speirs (Cambridge: Cambridge University Press, 1994) at 310–11: “The state is that human community that lays claim to the monopoly of legitimate physical violence within a certain territory…” (emphasis in original).
The parallel between public administrative agencies and private fiduciaries is drawn most fully in Evan J. Criddle, Fiduciary Foundations of Administrative Law, 54 UCLA L. Rev. 117 (2006).
Recall that some justifications arise from the exercise of irreducibly private authority (such as the authority of parents over their children or private fiduciaries generally over their charges).
Meir Dan-Cohen’s famous image of acoustic separation between state officials and private citizens is perhaps the most memorable sketch of this perspective. Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625 (1984).
Although some writers such as R. A. Duff, (Answering for Crime at 176) talk of individuals being “called to answer to our fellow citizens in a criminal court…” rather than to the state. Nevertheless, I believe that Duff’s account is committed to the same claim of “disengagement” as the standard state-centered view. Our fellow citizens would tend to judge our conduct at arm’s length in the same way as the “disengaged” state. But this is not the way that the common law seems to operate. Instead, it seems to recognize that insofar as an actor is justified in using force in self-defense, to make an arrest, etc., in does it in the name of all of us.
To some extent, this distinction is mirrored in the terms “law and police”: the law is the set of rules that govern the conduct of individuals; “police” is the area of lawless discretion that is state conduct. See: Markus D. Dubber, The Police Power: Patriarchy and the Foundations of American Government (New York: Columbia University Press, 2005).
One of the most prominent examples of the assumption that the criminal law is a means to the achievement of the state’s purposes, constrained by the constitution and perhaps some political theory commitments is Herbert Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968), at 163. There, he distinguishes between two models of the criminal process: the “crime control” model which is nothing but a means to achieving the state’s policy ends and the “due process” model which takes into consideration the many “formidable impediments to carrying the accused any further among in the process.”
One particularly powerful statement of the felt need to justify the state’s power in criminal law is to be found in John Gardner, Punishment: In Proportion and in Perspective in Fundamentals of Sentencing Theory ed. Andrew Ashworth & Martin Wasik (Oxford: Oxford University Press, 1998) at 32: “The criminal law (even when its responses are non-punitive) habitually wreaks such havoc in people’s lives, and its punitive side is such an extraordinary abomination, that it patently needs all the justificatory help it can get.”
Jerome Michael and Mortimer J. Adler, Crime Law and Social Science 342–43 (1933).
That is, one can only act in the name of the state insofar as one’s conduct is justified. (Of course, it is possible to be acting permissibly in one’s own private capacity.) The point here is that acting in the state’s name is incompatible with claiming an excuse. For, as Hans Kelsen pointed out, the state is totally constituted by law. That is, insofar as one is claiming to be acting in the name of the state, one must also be claiming to acting in a way that is legally permissible. Hans Kelsen, Introduction to the Problems of Legal Theory tr. Stanley Paulson & Bonnie Litshewski-Paulson (Oxford: Oxford University Press, 1992) pp. 97–106. David Dyzenhaus points out that “when a political entity acts outside the law, its acts can no longer be attributed to the state and so they have no authority. Dicey, on my understanding, subscribes to the same thesis, and differs from Kelsen only in that he clearly takes the claim that the state is constituted by law to mean that the law constitutes the state and its authority includes the principles of the rule of law, which has the result that a political entity acts as a state when and only when its acts comply with the rule of law.” David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge: Cambridge University Press, 2006) at 199.
I am not the first to point this out. See Markus D. Dubber, Criminal Police in the Rechtsstaat in Police and the Liberal State (Stanford, CA: Stanford University Press, 2008) (92–109) at 95.
There is an important asymmetry to the claim, however. Although the claim of justification is made in the state’s name, it is the individual who commits a wrong should he fail to establish such a justification. To paraphrase an old saying: “Act justifiedly and the state acts with you, act wrongly and you act alone.” (Of course, the state might still be vicariously liable for an official’s conduct even though her conduct could not be attributed to the state in the strict way required for justification defenses.) Thanks to Victor Tadros for pointing out this distinction.
Victoria Nourse, Reconceptualizing Criminal Law Defenses 151 U. Pa. L Rev. 1691, 1698. (emphasis in the original).
A.V. Dicey, The Law of the Constitution 8th ed. (Indianapolis: Liberty Fund, 1982) at 115.
The pressing need to create a state is expressed most powerfully by Immanuel Kant, Metaphysics of Morals 33, § 44, at 124 [Ak. 312] (Mary Gregor trans., Cambridge University Press 1991) (1797): “the first thing that [a people] has to resolve upon is the principle that it must leave the state of nature, in which each follows his own judgment, unite itself with all others (with which it cannot avoid interacting), subject itself to a public lawful external coercion, and so enter into a condition in which what is to be recognized as belonging to it is determined by law…”
I take the expression “small emergencies” from the title of Kim Lane Scheppele, Small Emergencies 40 Georgia L. Rev. 835 (2006).
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Thorburn, M. The Constitution of Criminal Law: Justifications, Policing and the State’s Fiduciary Duties. Criminal Law, Philosophy 5, 259–276 (2011). https://doi.org/10.1007/s11572-011-9118-9
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DOI: https://doi.org/10.1007/s11572-011-9118-9