Distinguishing Justifications From Excuses

Ann swings her arm and injures Ben. She faces moral condemnation and legal liability unless she can offer an explanation that absolves her of full blame. She might make a claim of justification that, despite initial appearances, her action was desirable or proper, or she might make a claim of excuse that she does not bear full responsibility for injuring Ben. If Ann is fully justified, she will not be subject to blame or to classification as a weak or defective person. If Ann is excused, she may be regarded as wholly or partly free of blame, but she will have demonstrated weakness or some defect. Because the moral evaluation of a justified actor differs from the moral evaluation of an excused actor, deciding whether Ann is justified or excused is an important moral question. In the legal context, a defendant who successfully establishes the legal Analogue of a moral justification or excuse is typically relieved of liability. Because of the injury to Ben, it is likely that Ann will be prosecuted for assault, which is defined as purposely, knowingly, or recklessly causing bodily injury to another. Nevertheless, Ann may offer an exonerating explanation that precludes satisfaction of the basic elements of the crime or that, conceding the presence of the basic elements, precludes liability on other grounds. In modern American criminal law the terms justification and excuse only refer to the second kind of explanation – that is, they concede the presence of the basic elements but deny liability on independent grounds. If Ann acknowledges that she intentionally hit Ben but did so to prevent him from detonating a bomb, she offers a justification; if she says that she decided to hit him because she was insane, she offers an excuse. There are other explanations that exonerate an actor from liability because they preclude satisfaction of the basic elements of a crime. These explanations are similar to justifications or excuses but are not labelled as such by the law. If Ann says she had to take the risk that her swinging arm would injure Ben in order to protect Carol from David\u27s deadly attack, she effectively denies that her actions were reckless, since recklessness involves the conscious disregard of a substantial and unjustifiable risk. If Ann says she was flailing her arms for dramatic effect, unaware that Ben was standing close by, she denies the minimal culpability requirement of conscious risk-taking. In admitting clumsiness, Ann removes her actions from the ambit of assault. As J.L. Austin noted in A Plea for Excuses, [when] I have broken your dish... maybe the best defense that I can find will be clumsiness. The second half of this article notes that many exonerating explanations that look like justifications and excuses concern the basic elements of offenses and explains why this fact bears strongly on the expectations one should have from the legal system in distinguishing justifications from excuses more narrowly understood

Free Speech in the United States and Canada

A comparison of freedom of speech in the US and Canada is presented. Supreme Court decisions on this issue in both countries are discussed. Both countries believe that free speech is central to liberal democracy

The Cultural Defense: Reflections in Light of the Model Penal Code and the Religious Freedom Restoration Act

I wrote this essay after participating in a 2006 workshop on Criminal Law and Cultural Diversity, which discussed, among other subjects, the wisdom of providing a cultural defense. Uncertain just how far such a defense might expand on defenses already available, I undertook to explore that topic. The phrase a cultural defense suggests an either/or choice that any legal system might make. That matters are much more complex than this is part of the burden of this essay. A cultural defense in its most general sense refers to a wide range of ways in which evidence about a defendant\u27s cultural upbringing or practices could influence legal judgment about his guilt or responsibility. So understood, the phrase could refer not only to a general, separate defense labeled a cultural defense, but also claims about culture that either are relevant under standard defenses in the criminal law, such as duress and provocation, or could be relevant were those traditional defenses expanded in some way

Moral and Religious Convictions as Categories for Special Treatment: The Exemption Strategy

My topic differs from the usual inquiries about morality and law, such as how far law should embody morality, whether legal interpretation (always or sometimes) includes moral judgment, and whether an immoral law really counts as law. Concentrating on exemptions from ordinary legal requirements, I am interested in instances when the law might make especially relevant the moral judgments of individual actors. I am particularly interested in whether the law should ever treat moral judgments based on religious conviction differently from moral judgments that lack such a basis. A striking example for both questions is conscientious objection to military service. In the history of our country, objectors to military service have received exemptions from conscription; even in our present volunteer army, those who develop a conscientious objection to participation in any war are relieved from military duty they would otherwise have to perform as a consequence of their initial commitment to service. The law as it is now written requires that an objection be based on religious training and belief. The Supreme Court has interpreted the law to include all genuine conscientious objectors

Nature of Rules and the Meaning of Meaning

This essay addresses two problems in legal theory. What is the nature of rules, especially legal rules? What is the meaning of a legal rule? My main concern is the relation between these two questions. I inquire whether a sensible view of how rules work commits one to any particular approach to meaning. For this inquiry, I focus on Frederick Schauer\u27s illuminating treatment of rules in Playing by the Rules, which he says is linked to a particular view of meaning. I assert that the linkage is much less tight than he supposes, and that competing theories about meaning are compatible with his analysis. If I am right, someone\u27s disagreement with Schauer over meaning should not produce rejection of his major points. However, approaches to meaning do have considerable practical significance for the law. Examining how views of meaning fit legal practice, I reject Schauer\u27s strong literalism

Vietnam Amnesty – Problems of Justice and Line-Drawing

The troublesome issue of pardon for crimes connected with the Vietnam War raises some of the most complex and difficult questions in the philosophy of law. What are the purposes of criminal punishment? Under what conditions is violation of obligations imposed by law morally justified? When, and on what conditions, is it proper to excuse those who have violated the law for conscientious reasons? How much should decisions whether to pardon turn on what offenders deserve and how much should they turn on what will be socially acceptable and promote future social harmony? How far should the desirability of dispositions carefully tailored to individual circumstances give way to the desirability of lines of exclusion and inclusion that are clear and easily administrable? Any program on amnesty must explicitly or implicitly reflect concrete answers to those questions. This essay is an attempt to work out sensible answers to specific problems about amnesty in light of what seem to me to be sensible answers to these broader questions. The essay is an exercise in applied jurisprudence rather than speculative jurisprudence; it does not defend positions on these broader questions against possible attack; rather it starts with views I take to be fairly widely shared and develops their implications for different classes of offenders for whom pardons have been urged. In developing these implications, I assert a number of propositions about complicated facts and resolutions of conflicts in value. Thoughtful readers, even those who accept my positions on broader theoretical issues, may well disagree with some of my judgments on these narrower matters, and that may affect their conclusions about the proper scope of amnesty. I doubt, in fact, if any reader will endorse all of my judgments; but I hope by highlighting what considerations are important both to promote a more general understanding of the extraordinary complexity of relevant issues and to contribute to a resolution of outstanding practical questions about amnesty

Punishment

Although punishment has been a crucial feature of every legal system, widespread disagreement exists over the moral principles that can justify its imposition. One fundamental question is why (and whether) the social institution of punishment is warranted. A second question concerns the necessary conditions for punishment in particular cases. A third relates to the degree of severity that is appropriate for particular offenses and offenders. Debates about punishment are important in their own right, but they also raise more general problems about the proper standards for evaluating social practices. The main part of this theoretical overview of the subject of legal punishment concentrates on these issues of justification. That discussion is preceded by an analysis of the concept of punishment and is followed by a brief account of how theories for justifying punishment can relate to decisions about the substantive criminal law and criminal procedures