Sub-Optimal Justification and Justificatory Defenses

Criminal Law and Philosophy 4 (1):57-76 (2010)

Authors
Re'em Segev
Hebrew University of Jerusalem
Abstract
Justificatory defenses apply to actions that are generally wrong and illegal—mainly since they harm people—when they are justified—usually since they prevent 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 to actions that do not reflect all pertinent principles optimally due to 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 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 reaction is in place only with regard to actions whose wrongness is above a minimal threshold
Keywords Justification  Optimal justification  Sub-optimal justification  Justificatory defense  Uncertainty  Mistake  Excuse
Categories (categorize this paper)
DOI 10.1007/s11572-009-9086-5
Options
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

Our Archive


Upload a copy of this paper     Check publisher's policy     Papers currently archived: 39,951
Through your library

References found in this work BETA

Law's Empire.R. DWORKIN - 1986 - Harvard University Press.
The Concept of Law.Hla Hart - 1961 - Oxford University Press.

View all 31 references / Add more references

Citations of this work BETA

Should Law Track Morality?Re'em Segev - 2017 - Criminal Justice Ethics 36 (2):205-223.

Add more citations

Similar books and articles

Structural Justification.Robert Audi - 1991 - Journal of Philosophical Research 16:473-492.
Causal Reference and Epistemic Justification.Jane Duran - 1988 - Philosophy of Science 55 (2):272-279.
Perception and Non-Inferential Knowledge of Action.Thor Grünbaum - 2011 - Philosophical Explorations 14 (2):153 - 167.
Why the Generality Problem is Everybody’s Problem.Michael A. Bishop - 2010 - Philosophical Studies 151 (2):285 - 298.
Foundationalism, Transitivity and Confirmation.Timothy McGrew & Lydia McGrew - 2000 - Journal of Philosophical Research 25:47-66.
Ultra-Strong Internalism and the Reliabilist Insight.Dan D. Crawford - 2002 - Journal of Philosophical Research 27:311-328.

Analytics

Added to PP index
2010-09-13

Total views
25 ( #318,793 of 2,235,840 )

Recent downloads (6 months)
5 ( #364,871 of 2,235,840 )

How can I increase my downloads?

Downloads

My notes

Sign in to use this feature