Abstract
Justificatory defenses apply to actions that are generally wrong and illegal—mainly since they harm people—when they are (exceptionally) justified—usually since they prevent (more serious) harm to others. A strict conception of justification limits justificatory defenses to actions that reflect all pertinent principles in the optimal manner. A more relaxed conception of justification applies (also) to actions that do not reflect all pertinent principles optimally due to (unjustified) mistake but are not too far from this optimum. In the paper, I consider whether justificatory defenses should reflect the strict conception of justification or a more relaxed conception of justification. This question is important since often the relevant actions are not strictly justified, while the alternative of an excuse is frequently irrelevant or does not provide an appropriate solution. Reflection on this question raises the following dilemma: On the one hand, the strict interpretation seems too harsh, especially with regard to legal (particularly criminal) liability. On the other hand, it is difficult to explain the basis for a more relaxed conception of justification. I conclude, first, that justification—and accordingly wrongfulness—is a matter of degree and that the strictly justified action is merely the peak of a continuum, and, second, that a practical (negative) reaction is in place only with regard to actions whose wrongness is above a minimal threshold.
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Notes
See Sidgwick (1907, p. 221), Donagan (1977, pp. 30, 37, 55, 112, 136–137, 149–150), Brandt (1979, pp. 7, 200–201), Bennett (1995, pp. 46–49), Kagan (1998, pp. 90–91), Shaw (1999, p. 134), Austin (1994, p. 3–6), Hart (1961, pp. 168–169, 174–175), Hart (1968, pp. 1, 6–10, 13–14), Fletcher (1978, pp. 454–459, 491–492, 575–579, 759–769, 774, 798, 810–813), Fletcher (1998, pp. 77–85), Robinson (1984, vol. I, pp. 83, 86–89, 91, 100–101 and vol. II, pp. 2–7, 222–228), Greenawalt (1984, pp. 1904–1905), Greenawalt (1986, pp. 89–108), Husak (2005, pp. 557–594).
Unlike moral defenses, legal defenses should reflect not only first-order, substantive considerations, but also second-order, institutional considerations.
Obviously, the concept of justification is out of place with regard to actions that are far from the optimal point of justification.
For a review, see Dressler (1984, pp. 68, 70–74).
For example, for this reason it does not seem significant that the more common term is “lesser evil” rather than “least evil”.
One difference concerns the method of discovering each kind of truth, which is essentially consensual regarding physical facts—observation of the physical world with the natural senses—and controversial regarding morality. According to one claim, there is in fact no controversy regarding morality either since all rely on more or less the same methodology, namely, a combination of judgments (intuitions) regarding general principles and specific cases. See Kagan (1998, p. 16). This claim seems to me exaggerated: even if all combine judgments of both kinds, there are significance differences regarding the weight assigned to each kind of judgment and sometimes there is an almost exclusive reliance on judgments concerning either general principles or specific cases.
The more important is the decision, the more important it is to implement the relevant principle accurately, for example, it is more important to make an accurate decision in a matter of life or death than in a case in which only property is at stake.
See Segev (2006a, pp. 41–53). An objection to this account is that it entails an absurd implication of conflicting justifications. See Fletcher (1979). However, the possibility of conflicting justifications seems to me plausible when different agents act rationally based on different information and neither should obtain more information.
In this respect, the term “reasonable” (mistakes), which is often used to describe a similar category of mistakes, is misleading with respect to this conception, since it indicates a more lenient, and accordingly wider, category.
More accurately, there is only one category of duty when moral considerations are applicable. There is another category—of permission—but only when moral considerations do not apply and therefore morality is indifferent.
For this question, see Alexander (2005, pp. 611–643), Husak (2005, p. 572), Fletcher (1979, pp. 1359–1360). Fletcher objects to a category of permission within justificatory defenses since it entails a possibility of contrary justifications, which he finds implausible. As noted above, I believe that this possibility is sometimes plausible.
See Scheffler (1982, pp. 5–10, 20–26, 42, 56–62, 77–79, 125–127).
See Dressler (1984, pp. 84–87).
This question is mentioned briefly by Greenawalt (1984, pp. 1909–1910).
Compare Cohen (2003).
Compare Statman (2006).
The opposite is also true, namely, the equality condition might be the sole justification for an action, for example, regarding a choice between several (innocent) persons whose interests are of the same importance. The claim that a justificatory defense is inapplicable in such a case is, I believe, mistaken. For this claim, see American Law Institute, Model penal code and commentaries: Proposed official draft (Philadelphia 1985), Sect. 3.02(1)(a), Comment, pp. 15–16.
See Wasik (1982).
Regarding legal liability, see Husak (1998, p. 173).
A second group (crew members and one passenger) boarded another lifeboat and a third group (of passengers) drowned with the ship. I ignore these groups in the analysis in the text.
And indeed around half of the passengers—sixteen persons—were thrown overboard. The next day, the persons that remained on the lifeboat were saved. See Koch (2002, chap. 1); United States v. Holmes [1 Wall. Jr. 1] 26 Fed. Cas. 360–369 (1842) (Case No. 15, 383).
For this distinction see, for example, McMahan (1993).
This is important since the longer the sacrifice is delayed, the better are the chances of the candidates for sacrifice that it would not be needed because all would be saved.
The Holmes case is special in the sense that the people whose sacrifice is contemplated are also those threatened by the danger that the sacrifice is aimed at preventing. This is not always the case, as the example of the hijacked plane below demonstrates. However, this difference is less significant than it seems at first sight. Eventually, in both cases, there is some probability that some people will die if nothing is done (it is not certain that the people on the lifeboat in the Holmes case will die if no one is sacrificed), and some probability that the death of some would prevent the death of others.
The Federal Constitutional Court of Germany decided that a law that grants a power to shoot down such a plane is unconstitutional, but it is unclear whether this reflects a first-order judgment that such an action is necessarily wrong or a second-order judgment concerning the danger of mistake. See Judgment of the federal constitutional court of Germany [Hijacked plane] (2006); Bohlander (2006); Lepsius (2006); Ladiges (2007).
A further example is the justification of interrogational torture in order to reveal information that might prevent an act of terror that might result in the death of many. Assume that this is justified if the probability that torture is the only way to prevent this danger and the probability that the person who is tortured is responsible in the relevant sense are above a certain threshold. In order to establish these conditions, one must have evidence regarding, inter alia, the danger that an act of terror would take place and kill many people if nothing is done, the information that the suspect has, whether torture is a necessary and a sufficient means of extracting the information, the required degree of torture, the effectiveness of the information in preventing the contemplated act of terror compared to other available means and the responsibility of the suspect for the danger. Again, the gathering and the analysis of the relevant information is very complicated. Indeed, it seems unlikely that in real-life versions of this case there would be enough information to establish the required probability. See Kremnitzer and Segev (2000, pp. 550–551).
This objection raises the question whether the combination of a justification and an excuse with respect to the same action is plausible. Obviously, the answer depends on the content of the proper conceptions of justification and excuse. The main doubt is that justification assumes, and excuse denies, a minimal degree of responsibility. However, even if this is the case, the relevant minimal degrees are not necessarily the same and therefore coexistence is still possible. For a favorable view regarding coexistence see Husak (2005, pp. 574–576). For a negative view see Dressler (1982, pp. 438–439). I do not explore this question further in this paper.
For the common assumption that excuses apply only or mainly when agents protect themselves or people close to them, mainly close family members, see, for example, Robinson (1984, vol. II, pp. 360–361).
One view rejects the possibility of excusing public officials altogether. See Gur-Arye (2004, p. 188).
Here I assume that justification and excuse can apply simultaneously.
An exception concerns the possibility of information gaps.
Again, except with regard to the possibility of information gaps.
A third implication that is typically attributed to the distinction between justifications and excuses—concerning responsibility for the existence of the conflict—is mistaken, I think. See Segev (Unpublished).
According to one claim, regardless or even in spite of the theoretical importance of the distinction between justification and excuse, it should not be incorporated into legal rules, inter alia, since the content of the concepts justification and excuse and accordingly the distinction between them are controversial and because the distinction does not have (necessary) practical implications (particularly the secondary implications that are typically attributed to the distinction). See Greenawalt (1984, pp. 1904–1911, 1919–1927; 1986, pp. 93–98), Gur-Arye (1986, 1992). This claim seems to me misguided. The distinction between these concepts—regarding their constitutive conditions and their secondary implications—generates pro-tanto considerations concerning the content of legal rules and it seems unlikely that they would never be decisive.
Compare Husak (1998, p. 178).
This seems generally true although it is more obvious with regard to principles that are based on consequential considerations.
This is not obvious, as noted above.
For a similar distinction, between “blameworthiness” (“praiseworthiness”) “and “blame-related reactions” (“praise-related reactions”), see Enoch and Marmor (2007, pp. 412–413).
This suggestion might seem especially plausible if one assumes a very stringent (almost absolute) deontological restriction on actively harming people, as opposed to allowing harm, or on intentionally harming people, as opposed to foreseeing harm, with respect to actions that actively cause harm or performed with the intention to harm. However, this is just because this view implies that such actions are almost always very wrongful—far from the point of optimal justification.
See Husak (1998, pp. 170, 172–173). Note that Husak uses the term “complete justification” not in the sense of a fully—strictly—justified action but in the sense of a full exemption from criminal liability. I assume that a similar interpretation should apply to his statement that “some quantum of wrongness can be present—and frequently is present—in a completely justified act”. Literally—that is, as referring to moral justification—this claim seems strange, since it is natural to identify “complete justification” with strict justification—but it is reasonable if it refers to a legal defense that is based on the concept of justification.
In other places, Husak writes that there is a complete defense of justification whenever the wrongness of an action is outweighed, as opposed to just reduced. See Husak (1998, pp. 185, 189). This remark might be understood to imply another view, namely, that full justificatory defenses apply only to actions that are strictly justified—since only then the wrongness of the actions is “outweighed”. However, the more plausible interpretation is that this remark does not reflect a different view.
For this distinction, see Dan-Cohen (1984).
Reference s
Alexander, L. (2005). Lesser evil: A closer look at the paradigmatic justification. Law and Philosophy, 24, 611–643.
Alexander, L. (2008). Scalar properties, binary judgments. Journal of Applied Philosophy, 25, 85–104.
Austin, J. L. (1994). A plea for excuses. In M. L. Corrado (Ed.), Justification and excuse in the criminal law (pp. 3–30). New York: Garland.
Bennett, J. (1995). The act itself. Oxford: Clarendon Press.
Bohlander, M. (2006). In extremis—hijacked airplanes, ‘collateral damage’ and the limits of criminal law. Criminal Law Review, 579–592.
Brandt, R. B. (1979). A theory of the good and the right. Oxford: Clarendon Press.
Cohen, G. A. (2003). Facts and principles. Philosophy and Public Affairs, 31, 211–245.
Dan-Cohen, M. (1984). Decision rules and conduct rules: On acoustic separation in criminal law. Harvard Law Review, 97, 625–677.
Donagan, A. (1977). The theory of morality. Chicago: University of Chicago Press.
Dressler, J. (1982). Rethinking heat of passion: A defense in search of a rationale. Journal of Criminal Law and Criminology, 73, 421–470.
Dressler, J. (1984). New thoughts about the concept of justification in the criminal law: A critique of Fletcher’s thinking and rethinking. UCLA Law Review, 32, 61–99.
Dressler, J. (2000). Does one mens Rea fit all? Thoughts on Alexander’s unified conception of criminal culpability. California Law Review, 88, 955–964.
Dworkin, R. (1977). Constitutional cases. In R. Dworkin (Ed.), Taking rights seriously (pp. 131–149). Cambridge, MA: Harvard University Press.
Dworkin, R. (1986). Law’s empire. Cambridge, MA: Harvard University Press.
Enoch, D., & Marmor, A. (2007). The case against moral luck. Law and Philosophy, 26, 405–436.
Fletcher, G. P. (1978). Rethinking criminal law. Boston: Little, Brown.
Fletcher, G. P. (1979). Should intolerable prison conditions generate a justification or an excuse for escape? UCLA Law Review, 26, 1355–1369.
Fletcher, G. P. (1998). Basic concepts of criminal law. New York: Oxford University Press.
Greenawalt, K. (1984). The perplexing borders of justification and excuse. Columbia Law Review, 84, 1897–1927.
Greenawalt, K. (1986). Distinguishing justifications from excuses. Law and Contemporary Problems, 49, 89–108.
Guerrero, A. A. (2007). Don’t know, don’t kill: Moral ignorance, culpability, and caution. Philosophical Studies, 136, 59–97.
Gur-Arye, M. (1986). Should the criminal law distinguish between necessity as a justification and necessity as an excuse? Law Quarterly Review, 102, 71–89.
Gur-Arye, M. (1992). Should a criminal code distinguish between justification and excuse? Canadian Journal of Law and Jurisprudence, 5, 215–235.
Gur-Arye, M. (2004). Can the war against terror justify the use of force in interrogations? Reflections in light of the Israeli experience. In S. Levinson (Ed.), Torture: A collection (pp. 183–198). Oxford: Oxford University Press.
Hart, H. L. A. (1961). The concept of law. Oxford: Clarendon Press.
Hart, H. L. A. (1968). Prolegomenon to the principles of punishment. In H. L. A. Hart (Ed.), Punishment and responsibility: Essays in the philosophy of law (pp. 1–28). New York: Oxford University Press.
Husak, D. N. (1998). Partial defenses. Canadian Journal of Law and Jurisprudence, 11, 167–192.
Husak, D. (2005). On the supposed priority of justification to excuse. Law and Philosophy, 24, 557–594.
Kagan, S. (1998). Normative ethics. Boulder, Colorado: Westview.
Koch, T. (2002). Scarce goods: Justice, fairness, and organ transplantation. Westport, Connecticut: Praeger.
Kremnitzer, M., & Segev, R. (2000). The legality of interrogational torture: A question of proper authorization or a substantive moral issue? Israel Law Review, 34, 509–559.
Ladiges, M. (2007). Comment–Oliver Lepsius’s human dignity and the downing of aircraft: The German federal constitutional court strikes down a prominent anti-terrorism provision in the new air-transport security act. German Law Journal, 8, 307–310.
Lepsius, O. (2006). Human dignity and the downing of aircraft: The German federal constitutional court strikes down a prominent anti-terrorism provision in the new air-transport security act. German Law Journal, 7, 771–776.
McMahan, J. (1993). Killing, letting die, and withdrawing aid. Ethics, 103, 250–279.
Rawls, J. (1999). A theory of justice. Cambridge, MA: Harvard University Press.
Raz, J. (2003). Numbers, with and without contractualism. Ratio, 16, 346–367.
Robinson, P. H. (1984). Criminal law defenses. MN: West.
Rosen, G. (2003). Culpability and ignorance. Proceedings of the Aristotelian Society, 103, 61–84.
Scheffler, S. (1982). The rejection of consequentialism: A philosophical investigation of the considerations underlying rival moral conceptions. Oxford: Clarendon Press.
Segev, R. (2005). Well-being and fairness in the distribution of scarce health resources. Journal of Medicine and Philosophy, 30, 231–260.
Segev, R. (2006a). Justification, rationality and mistake: Mistake of law is no excuse? It might be a justification! Law and Philosophy, 25, 31–79.
Segev, R. (2006b). Well-being and fairness. Philosophical Studies, 131, 369–391.
Segev, R. (2009). Second-order equality and levelling down. Australasian Journal of Philosophy, 87, 425–443.
Segev, R. Hierarchical consequentialism. Utilitas (Forthcoming).
Shaw, W. H. (1999). Contemporary ethics: Taking account of utilitarianism. Malden, MA: Blackwell.
Sidgwick, H. (1907). The methods of ethics (7th ed.). London: Macmillan.
Smart, J. J. C. (1973). An outline of a system of utilitarian ethics. In J. J. C. Smart & B. Williams (Eds.), Utilitarianism: For and against. Cambridge: Cambridge University Press.
Statman, D. (2006). Supreme emergencies revisited. Ethics, 117, 58–79.
Uniacke, S. (1994). Permissible killing: The self-defense justification of homicide. Cambridge: Cambridge University Press.
Wasik, M. (1982). Partial excuses in the criminal law. Modern Law Review, 45, 516–533.
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Segev, R. Sub-Optimal Justification and Justificatory Defenses. Criminal Law, Philosophy 4, 57–76 (2010). https://doi.org/10.1007/s11572-009-9086-5
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DOI: https://doi.org/10.1007/s11572-009-9086-5