Abstract
Criminal prohibitions typically forbid harming people. Justificatory defenses, such as lesser evil, justifying necessity and justifying self-defense, provide exceptions to such prohibitions if certain conditions are met. One common condition is that the agent is not responsible for the conflict. The questions whether justificatory defenses should include such a condition, and if so what should be its content, are controversial. I argue that responsibility for a conflict counts against protecting the responsible person at the expense of a non-responsible or a less-responsible person, but that this consideration is not necessarily decisive but rather might be outweighed by another consideration, for example, in favor of preventing the more serious harm. I conclude that responsibility for the conditions of justificatory defenses raises a unique question whose proper resolution should be based on the interaction of several general considerations.
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Notes
In these cases, the agent protects herself, namely she is also the protected person.
For similar versions of this renowned example, see, for example, Joel Feinberg, “Voluntary Euthanasia and the Inalienable Right to Life”, Philosophy & Public Affairs 7 (1978): 93–123, p. 102; J. C. Smith, Justification and Excuse in the Criminal Law (London: Stevens, 1989), pp. 50–52.
I refine this formulation in some ways in Sect. 3.
For this claim, see Larry Alexander, “Causing the Conditions of One’s Defense: A Theoretical Non-Problem”, Criminal Law & Philosophy 7 (2013): 623–628.
For this view, see Kimberley Kessler Ferzan, “Provocateurs”, Criminal Law & Philosophy 7 (2013): 597–622, pp. 597, 599.
I consider the Israeli Law in this regard in another paper: “Justificatory Defenses and Distributive Responsibility”, Haifa University Interdisciplinary Law Review 6 (2012): 649–676 (Hebrew).
Justificatory defenses might be general, namely apply to every (or almost every) offense, such as the defenses of lesser evil, necessity and self-defense. Or they might be specific, namely apply only to a certain kind of offenses, for instance, property offences, such as a defense of damaging property in order to save life.
A victim might be responsible for a conflict in other ways (in addition to an attack). The legal classification of such a situation is typically unclear. It seems clear, however, that the law of justificatory defenses focuses only on responsibility for the pertinent conflict.
Alexander, “Causing the Conditions of One’s Defense”, pp. 623–628.
I assume, as does Alexander, that actual, as opposed to expected, consequences do not matter in themselves in terms of justification (or culpability).
Alexander, “Causing the Conditions of One’s Defense”, p. 623. Contrast with the claim that the justification of a later act might affect the justification of a pervious one: Kimberley Kessler Ferzan, “Provocateurs”, pp. 597, 621.
The justification of a previous action might be relevant to that of a later action also if the reasons for the previous action are related to—involve a plan regarding—the later action.
I do not think, however, that the effect of a previous action on a later action is best considered in terms of “liability” and “forfeiture of rights”. For these ideas, see Ferzan, “Provocateurs”, p. 600.
Alexander, “Causing the Conditions of One’s Defense”, pp. 623–624. I return to this point in Sect. 4.
Indeed, Alexander agrees that we should consider the relative culpability of the persons involved in a conflict in order to determine what is the just resolution of the conflict. He acknowledges that the fact that a person creates a risk of harm and her reasons for doing so might affect what is right for her to do in response to the risk. See Alexander, “Causing the Conditions of One’s Defense”, pp. 626–627.
Considering responsibility might also have instrumental value, mainly in discouraging wrongful behavior. See generally, Judith Jarvis Thomson, The Realm of Rights (Cambridge: Harvard University Press, 1990), pp. 183–184, and regarding legal defenses, Larry Alexander, “Lesser Evil: A Closer Look at the Paradigmatic Justification”, Law & Philosophy 24 (2005): 611–643, pp. 621–623.
See Paul H. Robinson, “Causing the Conditions of One’s Own Defense: A Case Study of the Limits of Theory in Criminal Law Doctrine”, Virginia Law Review 71 (1985): 1–63, pp. 27–29; Miriam Gur-Arye, “Should a Criminal Code Distinguish Between Justification and Excuse?” Canadian Journal of Law & Jurisprudence 5 (1992): 215–235, p. 224.
See Shelly Kagan, The Geometry of Desert (Oxford: Oxford University Press, 2012).
See Phillip Montague, “Self-Defense and Choosing between Lives”, Philosophical Studies 40 (1981): 207–219; George Draper, “Fairness and Self-Defense”, Social Theory & Practice 19 (1993): 72–92; Jeff McMahan, “Self-Defense and the Problem of the Innocent Attacker”, Ethics 104 (1994): 252–290, pp. 259–263; Re'em Segev, “Hierarchical Consequentialism”, Utilitas 22 (2010): 309–330, p. 313; Victor Tadros, The Ends of Harm—The Moral Foundations of Criminal Law (Oxford: Oxford University Press, 2011), pp. 52–58, 180–181.
The answer to the question of which actions are wrongful might be complicated or controversial due to uncertainty or controversy regarding abstract moral principles or facts that are pertinent according to such principles (including, for example, alternative ways of confronting a danger). Yet this is the question that needs to be answered, inter alia, regarding actions that provoke others to respond in force, while planning a counter-response. For such cases, see Alexander, “Causing the Conditions of One’s Defense”, pp. 625–628; Ferzan, “Provocateurs”, pp. 619–621.
The source of last two terms and definitions is Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 34–35.
In the context of justificatory defenses, see George P. Fletcher, “Proportionality and the Psychotic Aggressor: A Vignette of Comparative Criminal Theory”, Israel Law Review 8 (1973): 367–390; Judith Jarvis Thomson, “Self-Defense”, Philosophy & Public Affairs 20 (1991): 283–292, pp. 298–310; Frances Myrna Kamm, “The Insanity Defense, Innocent Threats, and Limited Alternatives”, Criminal Justice Ethics 6 (1987): 61–76; Suzanne Uniacke, Permissible Killing: The Self-Defense Justification of Homicide (Cambridge: Cambridge University Press, 1994), chs. 5–6.
Clearly, the responsibility consideration should not apply to actions that are morally obligatory and their aim is to protect another person, such as the actions of a good samaritan or a fire fighter. It might apply to supererogatory actions done in order to promote the well-being of another, especially in the framework of the distributive version of the responsibility consideration.
The agent might also be the victim if she harms herself.
For the same reason, the responsibility of the person who makes the threat, in cases of duress, whose interests are not at stake, is insignificant with regard to the resolution of the conflict among others.
Compare Leo Katz, Bad Acts and Guilty Minds: Conundrums of the Criminal Law (Chicago: University of Chicago Press, 1987), p. 42.
For this claim, see Robinson, “Causing the Conditions of One’s Own Defense”, p. 28.
Robinson, “Causing the Conditions of One’s Own Defense”, pp. 27–29.
I assume here that the more serious harm for the more responsible person is supported by the responsibility consideration, specifically that it meets the proportionality aspect that this consideration presumably includes.
For example, in provocation cases, the more responsible person is often the one who first resorts to force rather than the one who initiates the conflict by non-violent provocation. Compare Robinson, “Causing the Conditions of One’s Own Defense”, p. 5 n. 14. However, it is possible that the more responsible person would be the non-violent provocateur. See David Wasserman, “Justifying Self-Defense”, Philosophy & Public Affairs 16 (1987): 356–378, p. 367.
Compare Richard A. Epstein, “Decentralized Responses to Good Fortune and Bad Luck”, Theoretical Inquiries in Law 9 (2008): 309–341, pp. 328–329.
Such a principle might also be derived from a requirement of proportionality that is part of the responsibility consideration itself.
American Law Institute, MPC and Commentaries: Proposed Official Draft (Philadelphia, 1985) (Hereinafter: MPC), § 3.02(1)(a).
MPC § 3.02(2), § 2.09(2).
MPC § 3.04(1).
MPC § 3.05(1).
MPC § 3.06.
MPC § 3.04(2)(b)(i) & § 3.05(1)(a)-(b).
This analysis should be subject to the following qualification. My discussion has focused on the moral justification of individual actions. The conclusions of this discussion are relevant to the law, specifically to justificatory criminal defenses, assuming that there is a consideration against punishing persons for actions that are morally justified. However, the law should sometimes take account of additional considerations. Therefore, the law should not necessarily reflect the conclusions regarding the justification of individual actions.
See Sect. 3.
The doubt concerns the implications in this respect of the requirements that the agent “would be justified under § 3.04 in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect” and that “under the circumstances as the actor believes them to be, the person whom he seeks to protect would be justified in using such protective force”.
This example is based on CA 399/91 Blumenkratz v. The State of Israel, PD 45(3), pp. 17–18 (1991).
See Sect. 3.
See Sect. 3.
A different kind of option is mitigation of punishment when the (standard) conditions of a defense are met only partly. See Robinson, “Causing the Conditions of One’s Own Defense”, p. 14.
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Segev, R. Responsibility and Justificatory Defenses. Criminal Law, Philosophy 11, 97–110 (2017). https://doi.org/10.1007/s11572-014-9361-y
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DOI: https://doi.org/10.1007/s11572-014-9361-y