This Article's central theme is that Anglo-American criminal law should not attempt to distinguish between justification and excuse in a fully systematic way. I explore three possible bases for drawing the distinction: (1) a distinction between warranted and wrongful conduct; (2) a division between general and individual claims; and (3) a distinction based on the rights of others. I show why none of these bases yields a clear and simple criterion for categorization. The difficulty rests largely on the conceptual fuzziness of the terms ''justification" and "excuse" in ordinary usage and on the uneasy quality of many of the moral judgments that underlie decisions that behavior should not be treated as criminal. Beyond these conceptual difficulties, there are features of the criminal process, notably the general verdict rendered by lay jurors in criminal trials, that would impede implementation in individual cases of any system that distinguishes fully between justification and excuse. Though I sketch some of the broader implications of my comments on justification and excuse, I do not pursue in depth what they signify about the openness of natural language, the appropriate relationship between the criminal law and moral judgment, and the nature of practical moral judgment itself.
Common Law | Criminal Law | Law
The Perplexing Borders of Justification and Excuse,
Colum. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/83