David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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Criminal Law and Philosophy 3 (2):147-166 (2008)
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 stateâs 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.
|Keywords||Excusing necessity Criminal law Terrorism|
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References found in this work BETA
Aristotle (1941/2001). The Basic Works of Aristotle. Modern Library.
Alan Brudner (1987). A Theory of Necessity. Oxford Journal of Legal Studies 7 (3):339-368.
Alan Brudner (2008). Subjective Fault for Crime: A Reinterpretation. Legal Theory 14 (1):1-38.
Antony Duff (2007). Answering for Crime: Responsibility and Liability in the Criminal Law. Hart Pub..
George P. Fletcher (2007). The Grammar of Criminal Law: American, Comparative, and International. Oxford University Press.
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