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To approach the theory of justification, one needs first to understand what a justification is. A justification renders a nominal violation of the criminal law lawful and therefore exempt from criminal sanctions. For example, if the force used in self-defense against an aggressor is both necessary and reasonable, injuring the aggressor is justified and therefore lawful. Those who act in justifiable self-defense exercise a privilege and act in conformity with the law.
Claims of justification should be distinguished from two other bases for claiming that conduct is not subject to criminal liability. First, someone might argue that his conduct falls wholly outside the criminal law. Killing a fly violates no prohibition of the criminal law; it therefore requires no justification. Killing a human being, intentionally or negligently, does violate a prohibition and therefore the conduct requires a justification to be lawful. Thus, one must distinguish between conduct that violates no general norm (killing a fly) and conduct that nominally, but justifiably, violates a valid prohibition of the criminal law (killing an aggressor in self-defense). A justification concedes the nominal violation of the prohibitory norm but holds that the violation is right and proper.
A claim of justified violation should also be distinguished from the assertion that prohibited and unjustified conduct is excused by virtue of circumstances personal to the accused. The defense of insanity, for example, does not seek to justify the violation of a norm. Rather, the defense concedes that the violation is unjustified, but seeks to exempt the particular actor from responsibility for the unjustified act. A claim of justification maintains that the act is right; a claim of excuse concedes that the act in the abstract is wrong, but argues that the actor is not personally responsible for having committed the act. Injuring an innocent person is wrong, but if the actor is insane, his condition precludes his being held responsible for the wrongful act.
Thus, the issue of justification appears as the second in a set of three ordered questions bearing on criminal liability: (1) Did the suspect’s act violate a valid norm of the criminal law? (2) Is the violation of the norm unlawful ( justified)? (3) Is the actor personally accountable for the unlawful violation; that is, is the unlawful violation unexcused? A negative answer to any of these three questions terminates the inquiry into liability.
In addition to its function as the second stage in this scheme for analyzing liability, the concept of justification enters into the analysis of several specific legal problems. Western legal systems generally assume, for example, that self-defense is permissible only against unlawful attacks. Because the justified use of force is lawful, selfdefense is unavailable against justified force. A police officer’s use of necessary force to effect a valid arrest is justified; therefore, the person arrested cannot invoke self-defense to justify forcible resistance to the arrest. In contrast, the excused use of force—by an insane assailant, for example—remains unlawful. Self-defense is therefore permissible against an excused aggressor (Model Penal Code §§ 2.04, 2.11 (1)).
Of course, the law could shift its stand on self-defense so that both justified and excused attacks, or perhaps neither, triggered the right to use force in self-defense. So long as the law and our judgments of just liability remain as they are, however, we shall have to attend to the distinction between justified attacks, which undercut the right to respond with defensive force, and excused attacks, which permit self-defense in response.
Theories of complicity that distinguish between perpetrating an offense and merely aiding another’s offense also require attention to the distinction between justification and excuse. Justified conduct no longer qualifies as an offense, but excused conduct might well be though of as an excuse for these purposes. If someone shouts encouragement to an aggressor later to be found insane, is the party shouting encouragement liable for aiding and abetting the offense? If the excused aggression is regarded as no offense at all, then it is difficult to regard the shouting as punishable assistance. How, after all, can one be liable for assisting that which is not a crime? On the other hand, if the assault by the insane actor is regarded as an excused offense, the party aiding the offense could be liable on the basis of his own unexcused aiding of the unlawful assault.
The law of complicity could conceivable be altered so that the party shouting encouragement would be liable as an accomplice regardless of whether the aggression encouraged is excused or justified. Section 2.06(2)(a) of the Model Penal Code seems to effect this alteration by suggesting that an insane perpetrator should be treated as an ‘‘innocent or irresponsible agent’’ in the hands of those aiding and directing him. This section requires, however, that for the party shouting encouragement to be liable, he must ‘‘cause’’ the insane assailant to engage in the assault. For encouragement to qualify as control or causation, the law would have to settle for a diluted conception of causation, which could give rise to problems in other areas. A less troublesome approach would be to treat the concept of offense as dependent solely on the commission of an unlawful (unjustified) act. Thus, the party shouting encouragement would be liable not for causing an innocent person to act, but for aiding in the commission of an offense by the excused aggressor (Model Penal Code § 2.06(3)(a)).
The concept of justification enjoys, therefore, a distinctive place in the structure of criteria bearing on criminal liability. Of course, skepticism remains possible as to whether working out the three dimensions of criminal liability (prohibited act, justification, excuse) aids one’s understanding of criminal liability and contributes to a just resolution of disputed issues. The analysis of self-defense and complicity seems to require attention to the distinction between justification and excuse. Other issues, discussed below, are clarified by the distinction between committing a prohibited act and justifying the prohibited act.
This article considers several theoretical and controversial quandaries that attend the analysis of justificatory claims. First, which issues and defenses in the criminal law are properly regarded as claims of justification? Second, what are the general criteria of justification? Third, what are the respective roles of the legislature and the judiciary in developing claims of justification?
The Scope of Justification
The paradigmatic claims of justified killing, according to Blackstone, are those ‘‘committed for the advancement of public justice’’ and those ‘‘committed for the prevention of any forcible and atrocious crime’’ (p. 179). The first category is illustrated by police officers’ shooting and injuring escaping convicts and suspects; the second by killing in self-defense or in defense of one’s home. In addition to these standard instances, most twentieth-century codes recognize a justification based on the benefit of violating the law exceeding the cost of doing so. Think of an abortion committed to save the life of the mother. Or consider the temporary taking, without permission, of a neighbor’s car as the fastest means of transporting a sick child to the hospital. A justification based on these facts would typically be called ‘‘necessity.’’ Yet, to avoid confusion with necessity treated as an excuse, this article will refer to the justification based on competing costs and benefits as ‘‘lesser evils.’’
One must now compare the issue of consent, which arises notably in cases of larceny, rape, and battery. There are two plausible interpretations of consent in these cases. It has been assumed so far that a victim’s being alive and human is an element of the norm defining homicide. Arguing, for example, that a fetus is not a human being denies that a particular act of killing violates the norm against homicide. It is generally assumed, in contrast, that the absence of self-defense is not an element of the prohibition against killing. As a claim of justification, the assertion of selfdefense concedes the violation of the norm. Now the question with regard to consent is this: Is nonconsent an element of the norms prohibiting rape, larceny, and battery, or is consent a claim of justification? In other words, is the issue of consent analogous to the problem whether the fetus is a human being protected by the law of homicide, or does consent resemble self-defense, an issue that is taken to be extrinsic to the norm prohibiting homicide?
The classification of consent has practical consequences. It might influence the allocation of the burden of persuasion or the burden of raising the issue at trial. It might lead to the imposition of certain requirements for making a valid claim of consent, requirements that are characteristic of either of elements of the prohibitory norm or of justificatory claims. These practical implications are discussed below. For now, we should attempt to resolve the problem of classification by bringing to bear our understanding of the nature of prohibitory norms and claims of justification.
The essential feature of a justification, as opposed to the negation of a prohibitory norm, is that even though the justification applies, we sense that significant harm has occurred. If we do not perceive the fetus at the early stages of gestation as a human being, then abortion is not regarded as a justified killing but rather as an operation of no greater moral significance than other operations. Yet, killing in self-defense leaves one with a sense of regret that a human being has been sacrificed to the defender’s interest in self-preservation. That sense of regret testifies to the violation of the norm implicit in treating the act as justified.
If consent is measured against this standard, we should be hard-pressed to regard most instances of consent as claims of justification. In the case of consent to a medical operation or to sexual intercourse, most of us would not sense the occurrence of harm in the contact with the patient’s or the partner’s body. The consent in these instances does not generate a good reason for causing harm; rather, the consent seems to dissolve the potential harm into a cooperative good. The dissolution of the harm makes it difficult to say that a consensual operation or consensual sexual intercourse constitutes even a nominally prohibited act. The notion of justification does not come into play in these cases, for there is no violation that requires justification.
Yet, there are some instances of forcible intrusion where one might well regard consent as a justification. For example, even if there is no consent to a sadomasochistic beating or to intercourse achieved by force, the prohibition against forcible bodily contact appears to be violated. Consent would seem, at most, to be a justification. If the victim wishes to be beaten or to be taken by force, then a nonpaternalist legal system might well regard the victim’s consent as a good reason for the actor’s using force.
Whether one takes nonconsent to be an element of the prohibition or consent to be a justification depends, finally, on how one perceives the interest protected by the legal system. Is there a general interest in not permitting forcible, nontherapeutic bodily contact? Is this interest violated even in cases of consent? If so, then consent functions at most as a justification for violating the norm protecting this legal interest. Unfortunately, the positive law supplies no answer to this basic question. The way in which the interests underlying the criminal law are perceived depends on a collective judgment of the values basic to society. However society expresses those judgments, its claims of value are open to disagreement and dispute. The classification of consent does not lend itself to clear resolution.
The distinction between claims of justification and claims of excuse proves to be easier to work out than that between justification and elements of the prohibitory norm. Two aspects of self-defense illustrate the distinction. Historically, the common law distinguished between excusable homicide in cases of se defendendo (personal necessity) and justifiable homicide, based on a sixteenth-century statute, 24 Hen. 8, c. 5 (1532). Both se defendendo and the statutory defense were versions of self-defense. Yet, a plea of se defendendo could result at most in an exemption from execution; the successful defendant still suffered forfeiture of his property. In contrast, a successful assertion of the statutory defense resulted in an acquittal, without forfeiture of property.
The common law claim of se defendendo functioned as an excuse rather than a justification. The claim did not presuppose that the homicide victim had initiated the fight. If the fight occurred as a ‘‘chance medley’’ and the defendant then retreated as far as he could and only then killed rather than be killed, the killing would be se defendendo. The claim was grounded in the necessity of the defendant’s saving himself, not in the rightness of the killing. The survivor of the chance medley was not held ‘‘wholly blameless,’’ as Blackstone put it (p. 187), and therefore suffered a forfeiture of property. In contrast, the statutory defense was grounded in a theory of justification: it recognized the right of innocent persons to defend themselves against aggressors.
Within the contours of self-defense as a justification, controversy persists whether putative self-defense qualifies as a justification. Putative self-defense arises if the defender mistakenly believes that he is under attack. He injures or kills the innocent person he regards as the aggressor and then seeks to avoid liability for battery or homicide. Both the common law and American legislation group putative self-defense with actual self-defense. West German law rigorously distinguishes between the two, and this position appears to be the better considered. It is difficult to maintain that the defender’s belief by itself creates a right to injure an innocent person. Even if the belief is reasonable, there appears to be no warrant for regarding the defendant’s act as justified. Justification in cases of self-defense presupposes actual aggression, not merely a belief in aggression. The more plausible view is that the defendant’s reasonable belief that he is being attacked merely excuses his injuring or killing the innocent person. Under the current state of the law, it should be noted, treating the defense as an excuse does not entail forfeiture of property.
The Criteria for Justification
Three general questions run through efforts to understand the criteria of justification. First, is there one rationale or several to explain why the law recognizes lesser evils, self-defense, defense of others, defense of property, and the use of force in law enforcement as justified? Second, what is the point of requiring an ‘‘imminent risk’’ of harm as a condition for justified force? Third, what is the relevance of the actor’s intent in assessing whether his conduct is justified?
Balancing Interests and Moral Qualifications
Those who advocate a unified theory of justification take lesser evils to be the paradigmatic justification. Consistent with this view, the Model Penal Code uses the label ‘‘justification generally’’ to refer to its provision on lesser evils.
Taking lesser evils as the paradigm, one is led to regard other justifications, self-defense in particular, as specific applications of the principle justifying the sacrifice of the lesser interest to save the greater.
The view that self-defense is but an instance of lesser evils encounters an immediate difficulty. Virtually all Western legal systems regard it as permissible to use deadly force to prevent rape, to prevent serious bodily injury, and even, in some cases, to protect property. That is, the doctrine of self-defense permits on to sacrifice the greater interest (the life of the aggressor) in order to protect the lesser interest (property or sexual and bodily integrity). This disparity does not lend itself to ready explanation under the principle commanding sacrifice of the lesser interest.
The context of defensive force is distinguished by the wrongdoing and culpability of the aggressor. These factors lead one to discount the interests of the aggressor. If the aggressor’s interests are sufficiently discounted—if they are, as it were, partially forfeited—one can perceive the interests of the innocent defender as superior. The weight that attaches to the aggressor’s wrongdoing and culpability depends upon how responsible we regard aggressors for their conduct. If the aggressor is viewed as self-actuating and fully responsible, we should be inclined to discount his interest to the point that even minor interests of the defender would permit the use of deadly force, when necessary, to ward off the aggression.
This interpretation of self-defense illustrates the limits of lesser evils as a paradigmatic justification. The moral factors of wrongdoing and culpability tilt the scales against the aggressor. Yet, these moral factors themselves do not enter the scales as interests that can be balanced against other interests.
Similarly, some cases of permissible abortion, such as abortion to protect the physical health of the mother, might be interpreted as instances of lesser evils. Again, the balancing seems to be skewed against one set of interests (those of the fetus) in favor of another (those of the mother). The skewing derives from treating the fetus as a being with a legal status lower than that of the mother; otherwise, one could hardly regard killing the fetus as the lesser evil. Assessing the legal status of the fetus poses a moral question that goes beyond the balancing of interests.
In all these examples, the principle of lesser evils admittedly lies at the core of the inquiry into justification. In some cases, however, moral factors enter the analysis and skew the balancing against the victim of justifiable force.
The Requirement of Imminent Risk
As a second general requirement, the law recognizes claims of lesser evils and self-defense only in cases of emergency. This requirement is expressed in various ways, generally by variations on the phrases ‘‘imminent risk’’ or ‘‘direct and immediate risk’’ as descriptions of the threatened harm justifying the nominal violation of the law. This requirement appears puzzling when it is recognized that the costs and benefits of the defendant’s conduct might be exactly the same even though the conduct does not respond to an imminent risk. If, for example, some judges regard the blowing up of the Alaska pipeline as a lesser cost than the feared danger of the pipeline to the environment, why should a private citizen not be able to take the fate of the pipeline into his own hands? As the Model Penal Code defense of lesser evils is formulated—without an explicit requirement of imminent risk—blowing up the pipeline to protect the greater good might well be justified (§ 3.02(2)).
Yet, allowing individual judgments of costs and benefits to range so freely undermines the authority of the legislature to determine the acceptability of such acts as destroying property. Restricting the defense of lesser evils to cases on imminent risk ensures that the legislative prohibition receives due respect. Similarly, restricting the use of defensive force to instances of imminent danger ensures that self-defense does not function as camouflaged revenge or as preemptive aggression against a latent threat. The requirement of imminent risk highlights the exceptional nature of both lesser evils and defensive force.
Relevance of Intent
As a third distinguishing feature of justificatory claims, most Western legal systems require that the actor know and act on the circumstances that allegedly justify his conduct. For example, a physician may be about to inject air into a patient’s veins in order to kill him. Without knowing of the physician’s deadly purpose, the patient strikes the physician (perhaps he is angry about the anticipated fee). In this situation, the objective fact of the physician’s aggression would, if known by the patient, justify the hostile response. However, since the patient does not know of the aggression, his assault is not justified. The rationale for requiring this knowledge of justifying circumstances is that a justification represents a good reason for violating the prohibitory norm. The actor does not have this reason; he does not, and cannot, act on the reason unless he knows of the relevant justifying circumstances.
There is thus a practical difference between an issue classified as an element of the prohibitory norm and one classified as a claim of justification. The actor must kill a human being in order to violate the prohibition against homicide. If this element is not satisfied, the actor cannot be guilty of homicide. If, for example, the actor intends to kill but shoots someone who is already dead, the actor is not guilty. It does not matter whether he knows that the intended victim is already dead. Although the objective fact of an already-dead victim precludes conviction for homicide, the objective fact of the victim’s aggression does not generate a valid claim of self-defense.
The rationale for this distinction lies in the different roles played by objective circumstances in determining, respectively, whether a norm has been violated and whether the violation is justified. A prohibitory norm is not violated unless all of the objective elements of a violation are present. A predeceased ‘‘victim’’ objectively precludes violation of the norm. A justification, in contrast, does not turn exclusively on objective considerations. As a good reason for violating the norm, a justification requires that the actor be aware of, and act in response to, the objective justifying elements.
To summarize, three themes recur in defining the range of particular justifications. First, moral judgments about the relative worth of conflicting interests skew the balance of interests. Second, a requirement of imminent risk restricts the number of cases in which a claim of defending the superior interest is acceptable. Third, claims of justification should, in principle, consist of both objective justifying circumstances and the actor’s subjective awareness of and reliance on these circumstances. The theory of justification seeks to understand why these elements are thought to be necessary for sound claims of justification.
The Role of The Judiciary in Justification
Western legal systems now concur in the principle that the legislature has exclusive authority to define criminal offenses. Nonetheless, there are two distinct theories for recognizing the authority of courts both to apply the general principle of lesser evils and to develop new grounds of justification. The American theory, as reflected in the Model Penal Code, rests on the judgment that the circumstances of justification are so multifarious that one cannot expect the legislature to anticipate all the cases in advance and to provide a specific rule for each case. The nature of the situation requires a delegation of legislative authority to the courts to work out particular rules for specific situations of conflicting interests. If, however, the legislature chooses to regulate possible claims of justification in a particular area, such as that of abortion, the assertion of legislative authority preempts the implied authority of the courts. Section 3.02(2) of the Model Penal Code expresses this theory by making it a condition of ‘‘justification generally’’ and in particular of lesser evils, that ‘‘a legislative purpose to exclude the justification claimed . . . not otherwise plainly appear.’’
The West German theory of justification is not based on implied legislative authority but rather on the principle that every criminal offense must meet two conditions: the offense must be a violation of a statutory prohibition, and the offense must be ‘‘unlawful.’’ (The term unlawful is understood broadly to mean a violation of general principles of wrongdoing.) Since the 1920s the German courts have assumed that they have final authority to determine whether conduct is unlawful or wrongful in this sense. A justified act is not unlawful (wrongful), and therefore, the judicial authority to interpret principles of wrongdoing generates independent authority to devise grounds of justification as yet unrecognized by the legislature. In 1927 the German Supreme Court advanced this theory in recognizing a general justification of lesser evils (61 Entscheidungen des Reichsgerichts in Strafsachen 242 (1927) (Germany)). The new justification received its first legislative endorsement in the new West German criminal code enacted in 1975. With this new code now in force, some German scholars would argue that the courts no longer have independent authority to develop new claims of justification.
The American theory of ‘‘implied delegation’’ and the German theory of ‘‘wrongfulness as a requirement of every offense’’ have generated claims of justification similar in their details. Although reflecting different conceptions of judicial authority, both approaches recognize the important fact that claims of justification always operate for the benefit of the accused.
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