University of Pennsylvania Carey Law School Penn Law: Legal Scholarship Repository Faculty Scholarship at Penn Law 2003 Justification and Excuse, Law and Morality Mitchell N. Berman University of Pennsylvania Carey Law School Follow this and additional works at: https://scholarship.law.upenn.edu/faculty_scholarship Part of the Criminal Law Commons, Criminal Procedure Commons, Criminology and Criminal Justice Commons, Ethics and Political Philosophy Commons, Jurisprudence Commons, Legal History Commons, Legal Theory Commons, and the Philosophy of Mind Commons Repository Citation Berman, Mitchell N., "Justification and Excuse, Law and Morality" (2003). Faculty Scholarship at Penn Law. 1476. https://scholarship.law.upenn.edu/faculty_scholarship/1476 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact [email protected]. Duke Law Journal VOLUME 53 OCTOBER 2003 NUMBER 1 JUSTIFICATION AND EXCUSE, LAW AND MORALITY MITCHELLN. BERMANt ABSTRACT Anglo-American theorists of the criminal law have concentrated on-one is tempted to say "obsessed over"-the distinction between justification and excuse for a good quarter-century and the scholarly attention has purchased unusually widespread agreement. Justification defenses are said to apply when the actor's conduct was not morally wrongful; excuse defenses lie when the actor did engage in wrongful conduct but is not morally blameworthy. A near- consensus thus achieved, theorists have turned to subordinate matters, joining issue most notably on the question of whether justifications are "subjective"-turning upon the actor's reasons for acting-or "objective"-involving only facts independent of the actor's beliefs and motives. This Article seeks to demonstrate that the prevailing understanding is wrong. Drawing on the well-known distinction between conduct Copyright O 2003 by Mitchell N. Berman. t Bernard J. Ward Centennial Professor in Law, The University of Texas at Austin; Visiting Professor of Law, The University of Chicago (Winter and Spring 2003). Earlier versions of this paper were presented at the Stanford/Yale Junior Faculty Forum and at the Oxford/UT Legal Theory Workshop. I am grateful to participants at these events, and to Larry Alexander, Russell Christopher, Joshua Dressier, George Fletcher, Kent Greenawalt, Douglas Laycock, Ariel Porat, and Eric Posner for reactions and suggestions. I especially wish to thank Jules Coleman, Stephen Perry, and Peter Westen for particularly helpful and detailed comments, and John Elia for excellent research assistance. This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:28:18 PM All use subject to JSTOR Terms and Conditions 2 DUKE LAW JOURNAL [Vol. 53:1 rules and decision rules, it argues that the distinction between justification and excuse, for purposes of a criminal law taxonomy, is only this: A justified action is not criminal, whereas an excused defendant has committed a criminal act but is not punishable. To readers only marginally acquainted with the relevant literature, this claim may seem far from extravagant, for occasional statements to the same effect can be found in the case law and commentary. In fact, however, theorists have not appreciated just how this articulation of the distinction differs from the orthodox one, nor what consequences follow. This Article attempts to remedy that defect. One lesson of a systematic investigation into these competing formulations is that the long-running debate over whether justifications, properly understood, are "subjective" or "objective" is misconceived. This is a debate over policy broadly conceived, not (as it so often purports to be) a matter of conceptual analysis. More generally, this Article's examination of justification and excuse constitutes a case study in the complex relationship between legal and moral reasoning, and highlights the importance of distinguishing arguments that advance substantive value judgments from those that purport to analyze our conceptual apparatus. It may be that conceptual analysis is no less contestable or value-laden than is substantive normative argument (though perhaps it is). In any event, they are not the very same enterprise and a first step to clear thinking-in the criminal law and elsewhere-is to keep them distinct. TABLE OF CONTENTS Introduction 3 ............................................................................................................. I. Moral Theory and the Substantive Equivalence Thesis...........................6 A. The Standard Account 7 ........................................................................ B. The Standard Account Rebutted .......................................................11 1. Not All MorallyJustified Conduct Is CriminallyJustified ...11 2. Not All CriminallyJustified Conduct Is MorallyJustified.... 13 17 3. Summ ary ....................................................................................... II. MoralTheory and the StructuralEquivalence Thesis............................18 A. The RevisedAccount Introduced ......................................................18 B. The RevisedAccount Situated............................................................20 C. IdentifyingPermissions ......................................................................29 1. Of Formand Substance ................................................................ 29 2. ConductRules, Decision Rules, and Acoustic Separation...32 37 3. Summ ary ....................................................................................... This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:28:18 PM All use subject to JSTOR Terms and Conditions 2003] JUSTIFICATION AND EXCUSE 3 III. The Subjective/ObjectiveDebate .............................................................38 A . Mistaken Justification............................................................................39 1. Arguments from Logic ...........................................................40 2. On the Nature of Norms .............................................................48 B. Unknowing Justification...................................................................58 IV. Further Implications.................................................................................62 A . Third 62 Parties.......................................................................................... B. Classifyingthe Defenses ...................................................................64 1. Some CautionaryNotes..........................................................65 2. Duress and Provocation .............................................................69 Conclusion......... ................................................................................................... 76 INTRODUCTION Scholarship,like all human artifacts,has its fashions. In the field of Anglo-American criminallaw theory perhaps no subject has been more in vogue the past twenty-oddyears than the distinctionbetween justificationand excuse. Most responsiblefor this upsurgein scholarly interest are Professors George Fletcher and Paul Robinson, who debated the subject in 1975,' and who have written repeatedly on the topic ever since. But Fletcher and Robinson are now in crowded company.Indeed, the full list of contributorsto the topic reads like a Who's Who of contemporarycriminal law theorists on both sides of the Atlantic.2 This outpouring of scholarly attention has appeared to pay dividends, as the distinction between justification and excuse has become one of the rare subjectson which scholarshave reached wide agreement, essentially echoing Fletcher's view that "[a] justification negates an assertionof wrongfulconduct. An excuse negates a charge that the particular defendant is personally to blame for the wrongful 1. Compare Paul H. Robinson, A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability, 23 UCLA L. REV. 266 (1975) (defending a purely objective theory of justification), with George Fletcher, The Right Deed for the Wrong Reason: A Reply to Mr. Robinson, 23 UCLA L. REV. 293 (1975) (arguing that full justifications must be both subjective and objective). Fletcher in particular is widely credited for having put the justification/excuse distinction on the contemporary scholarly agenda. See Joshua Dressier, Justifications and Excuses: A Brief Overview of the Concepts in the Literature, 33 WAYNE L. REV. 1155, 1159 & n.13 (1987) (citing authorities). 2. The list of Anglo-American scholars who have written on the subject includes (though is hardly limited to) Larry Alexander, Joshua Dressier, John Gardner, Kent Greenawalt, Jeremy Horder, Heidi Hurd, Douglas Husak, Sanford Kadish, Michael Moore, J.C. Smith, and Jeremy Waldron. Relevant works are cited infra passim. This Article does not explore continental approaches to the justification/excuse distinction. This content downloaded from 130.91.146.35 on Wed, 8 Oct 2014 19:28:18 PM All use subject to JSTOR Terms and Conditions 4 DUKE LAW JOURNAL [Vol. 53:1 conduct."3 In fact, at a recent meeting of the Criminal Law Section of the American Association of Law Schools, Joshua Dressler cited theorists' resolution of the justification/excuse problem as the leading illustration of the successes that criminal law theory has achieved over the past couple of decades.4