Abstract
In this paper, I address the theory of excuse, or more precisely, exculpatory excuse, and the question of what it is that justifies the category of excuse. I address different potential grounds for the law of excuse, which are often run together in ways that confound rather than clarify, focusing on the role of blamelessness and unfairness of expectations in the theory of excuse.
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Notes
See Paul Robinson, “Excuses,” in Structure and Function in Criminal Law (Oxford University Press, 1997), 71–77; A. P. Simester, Fundamentals of Criminal Law (Oxford University Press, 2021), 400; Sanford H. Kadish, “Excusing Crime,” California Law Review 75 (1987): 258. The paper sets aside utilitarian theories of excuse, which do not, at base, offer different accounts of exculpatory and non-exculpatory defenses.
This is not to suggest that social policy cannot be grounded in moral concerns. See note 36 below.
J. L. Austin, “A Plea for Excuses,” Proceedings of the Aristotelian Society 57 (1956): 1–30; Kent Greenawalt, “The Perplexing Borders of Justification and Excuse,” Columbia Law Review 84 (1984): 1897–927; Miriam Gur-Arye, “Should a Criminal Code Distinguish between Justification and Excuse?,” Canadian Journal Of Law And Jurisprudence 5 (1992): 215; Marcia Baron, “Justifications and Excuses,” Ohio State Journal of Criminal Law 2 (2005): 387–406.
John Gardner, “The Gist of Excuses,” in Offences and Defences, ed. John Gardner (Oxford University Press, 2007); Simester, Fundamentals of Criminal Law; James Edwards, “Theories of Criminal Law,” The Stanford Encyclopedia of Philosophy, 2021, https://plato.stanford.edu/archives/fall2021/entries/criminal-law/.
E.g. David O. Brink and Dana K. Nelkin, “Fairness and the Architecture of Responsibility,” in Oxford Studies in Agency and Responsibility Volume 1 (Oxford University Press, 2013), 291; Douglas Husak, “On the Supposed Priority of Justification to Excuse,” Law and Philosophy 24 (2005): 557–94; Michael S. Moore, Placing Blame: A Theory of the Criminal Law (Oxford University Press, 1997).
I here take issue, not with the view that different excuses are justified on different grounds, but with the tendency to run different justifying ideas together in offering an account of excuses (or some excuses) without explicating how these fit together. For views that question the possibility of a unitary account of excuse see e.g. Jeremy Horder, “Criminal Culpability: The Possibility of a General Theory,” Law and Philosophy 12 (1993): 194; Andrew Ashworth, Principles of Criminal Law (Clarendon Press, 1992), 224; Victor Tadros, “The Characters of Excuse,” Oxford Journal of Legal Studies 21 (2001): 498. But see Robinson (on the “elegant systematicity” of the field), as well as Westen (“The mother lode of criminal responsibility scholarship is a unitary theory of criminal excuses”): Paul H. Robinson, “A System of Excuses,” Texas Tech Law Review 42 (2009): 259–72; Peter Westen, “An Attitudinal Theory of Excuse,” Law and Philosophy 25 (2006): 294.
Or more precisely, the unfairness of the expectation that the agent avoid wrongdoing or unlawful behavior. Though there is an important difference between these formulations, for the purposes of this paper, I use these interchangeably.
George Mousourakis, “Harm, Culpability and Criminal Liability,” Law and Forensic Science 15 (2018): 45–59. (Highlighting not in the original here or below).
Sanford H. Kadish, “Excusing Crime,” California Law Review 75 (1987): 257, 261.
Ibid., 279.
Stephen J. Morse, “Excusing and the New Excuse Defenses,” Crime and Justice 23 (1998): 329–406.
Robinson, “A System of Excuses.” While one might suggest that Robinson here refers only to legal blamelessness, this would render some of his arguments in the article vacuous, while in other work on excuse he has clearly explicated that he refers in this context to moral blamelessness. See e.g. Paul Robinson, “Codifying Criminal Law: Do Modern Codes Have It Right?,” Canterbury Law Review 5 (1993): 312–20; Paul H. Robinson and Michael T. Cahill, Law without Justice (Oxford University Press, 2005), 109.
Khalid Ghanayim, “Excused Necessity,” Canadian Criminal Law Review 11 (2006): 53–96.
For notable exceptions, see e.g. Brink and Nelkin, “Fairness and the Architecture of Responsibility”; Gardner, “The Gist of Excuses.”.
See e.g. R v. Howe and Bannister (1987) A.C. 417, 432.
Strafgesetzbuch—StGB §35. See George P. Fletcher, The Grammar of the Criminal Law (Oxford University Press, 2007), at § 8.4.1–2 (discussing the German concept zumutbarkeit—what can fairly be expected).
I use these terms interchangeably here, though arguably blameworthiness focuses on the appropriateness of or one’s liability to retributive responses, whereas culpability refers to the moral status that renders such responses fitting or appropriate.
The negative retributive constraint is generally articulated in terms of a restriction on punishment, though one might clarify that the imposition of criminal liability (associated with censure even in the absence of hard treatment) is similarly subject to a blameworthiness constraint.
George P. Fletcher, “Rights and Excuses,” Criminal Justice Ethics 3 (1984): 26. One might question whether Fletcher is not talking about a constructed, legal notion of blameworthiness, rather than about criminal liability being limited to cases in which the agent is morally blameworthy. This, however, is clarified by Fletcher himself: “… I have argued that the issue of excusing is equivalent to the inquiry whether the accused is morally culpable for violating the law.” George P. Fletcher, “The Individualization of Excusing Conditions,” Southern California Law Review 47 (1974): 1271.
Joshua Dressler, “Foreword—Justifications and Excuses,” Wayne Law Review 33 (1987 1986): 1163.
Ibid., 1166.
Joshua Dressler, “Reflections on Excusing Wrongdoers,” Rutgers Law Journal 19 (1988): 692, 699. See also, Joshua Dressler, “Exegesis of the Law of Duress,” in Criminal Law (Routledge, 2000), 273–328.
The answer to these questions may be binary or scalar.
Theories of criminal responsibility grounded in ‘choice’ and ‘character’ as well as e.g. ‘agency’ and ‘capacity’ are also adopted by those who do not rely on moral culpability for the construction of criminal culpability. See e.g. H. L. A. Hart, Punishment and Responsibility (Clarendon Press, 1968). Hart defends a choice theory on grounds of social utility and a conception of law as a choosing system (intended to defend doctrines of criminal culpability in a way that circumvents questions of moral culpability, given contemporary concerns about determinism and its implications for moral responsibility skepticism). Here I refer to those who defend these theories in conjunction with their relation to moral culpability which, on their view, is relevant to legal culpability.
For another central proponent of the choice theory, see Michael Moore, “Choice, Character and Excuse,” in Crime, Culpability and Remedy, ed. E. F. Paul et al. (Basil Blackwell, 1990) 29, 57. See also Moore, Placing Blame, chap. 13.
Fletcher defends other proposals as well: In some writings he suggests that excuses are in order where those sitting in judgment would have acted the same way under the circumstances. This is a further familiar justifying narrative that is found throughout the literature. There is reason to believe that Fletcher means here that excuses are in order on grounds of something like hypocrisy or defective standing to blame, rather than in virtue of blamelessness. But Fletcher is not entirely clear about this. He also references equality as relevant to excusing in this context. (Perhaps one thing to note here is precisely that he too runs these different notions together without adequately distinguishing between the role these play in excusing). In any event, he seems to primarily subscribe to the blameworthiness-as-constraint theory of excuse, filling it in with a character theory of desert.
Simester, Fundamentals of Criminal Law; Westen, “An Attitudinal Theory of Excuse.” See also R. A. Duff, “Choice, Character, and Criminal Liability,” Law and Philosophy 12 (1993): 345–83.
But see Horder on this being unfortunate. Jeremy Horder, Excusing Crime (Oxford University Press, 2007). See further Nicola Lacey, In Search of Criminal Responsibility (Oxford University Press, 2016).
Their view appears to be related to the underlying motivation for choice theory, though they resist this reduction of their proposal to a theory of choice. Brink and Nelkin, “Fairness and the Architecture of Responsibility.” They associate this account of moral responsibility with fairness, as will be explained below.
They mean here to synthesize the Hartian fair choice approach to criminal responsibility and the reasons-responsive wing of the compatibilist approaches to responsibility. See David O. Brink, “Partial Responsibility and Excuse,” in Moral Puzzles and Legal Perplexities, ed. Heidi M. Hurd (Cambridge University Press, 2018), 42–43.
See Kadish, “Excusing Crime,” 270–71.
These are of course not the only roles that blameworthiness might play in a theory of excuse. One might, for example, distinguish between blamelessness as a positive reason in favor of excusing, as discussed here, and blamelessness as a necessary condition that cancels a constraint against excusing rather than affording positive reason in favor of excusing. See Horder, Excusing Crime. If one takes lacking standing to blame as (independent) grounds of excuse, however, this conception becomes less attractive. I do not here discuss the view that defective standing to blame might also justify excuse.
Kadish, “Excusing Crime,” 257.
See Miriam Gur-Arye, “Criminal Law Defences Divides,” Jerusalem Review of Legal Studies 23 (2021): 177.
Cf. John Gardner, “What Is Tort Law For?” Law and Philosophy 30, (2011): 1–50.
This is not to suggest that social policy cannot be grounded in moral concerns. The efficiency of punishment may, e.g., be owed to victims, to the community and even to offenders. But their consideration indicates a move towards instrumentalist balancing.
Assuming these are enshrined, one might turn to constitutional principles, e.g. of dignity or equality, to ground a claim that an excuse should be legally granted, not merely as a theoretical matter but as a consequence of the constitutional or human rights commitments of the legal system itself.
M’Naghten 10 Cl. & F. 200, 8 Eng. Rep. 718 (1843).
Unless one takes the view that the content of law in this context is fully determined independent of socially determined commitments, there is at least some flexibility here, while there will be no such flexibility with respect to moral culpability (at least on a realist conception of moral responsibility).
Sanford H. Kadish, Stephen J. Schulhofer, Monrad G. Paulsen, Criminal Law and its Processes, 6th ed (Little, Brown, 1983), 204.
The reference here is not to mistakes that negate the mens rea of the offense, but to cases where the mens rea elements have been met, though a mistake may nonetheless undermine culpability (e.g. in certain cases of non-culpable mistake of law, or (reasonable) mistake with respect to the conditions of a justification).
While logically one could suggest that these can act as independent sufficient conditions for excuse, this is not a plausible reading of many of the views that run the two together, which presume that blamelessness and unfairness non-coincidentally coincide with one another.
Brink and Nelkin, “Fairness and the Architecture of Responsibility”; David O. Brink, Fair Opportunity and Responsibility (Oxford University Press, 2021), 77.
Given that the more commonly endorsed justificatory relation seems to run in the other direction: where blameworthiness and fairness are linked, it is the former that is often taken to (partly) ground the latter. There are also further worries about circularity involved in the proposed account, as well as worries about whether a theory of fairness is in fact provided.
See e.g. T. M. Scanlon, Moral Dimensions (Harvard University Press, 2009); Angela M. Smith, “Control, Responsibility, and Moral Assessment,” Philosophical Studies 138 (2008).
On the distinction between being and holding responsible, see R. Jay Wallace, Responsibility and the Moral Sentiments (Harvard University Press, 1994). This opens the possibility that the blameworthiness constraint is a product of the fairness constraint.
But see Morse, “Excusing and the New Excuse Defenses.”
Notice here that this solution may appeal to fairness at a different level than is often the case in excuse theory, averting to the unfairness of punishment, rather than the unfairness of expectations that the agent comply with law or avoid wrongdoing.
Michael S. Moore, “Prima Facie Moral Culpability,” Boston University Law Review 76 (1996): 14–15; George P. Fletcher, “Fairness and Utility in Tort Theory,” Harvard Law Review 85 (1972): 537–73.
That is, unless they bite the bullet of endorsing unfairness.
Miriam Gur-Arye, “On John Gardner’s Justifications and Excuses,” Jerusalem Review of Legal Studies 4 (2012): 92. For an argument to the contrary see Simester, Fundamentals of Criminal Law, 17.4.1.
Gur-Arye might be interpreted here as relying on a conception of fairness as a negative reason against excusing—i.e. if the expectation of compliance is not unfair, the law oughtn’t grant an (exculpatory) excuse. This is as opposed to a conception of fairness as a positive reason to excuse, which she also endorses.
This is not to say accounts of fairness developed in other contexts cannot be usefully appealed to here. But it is to say that there has been little importation of developed conceptions of fairness (or independent development thereof), leaving the grounding of fairness-based excuse, at best, underspecified.
Fairness might also be used in a different way, to refer to the ‘community’s sense of fairness’ and the goal of ensuring that the law of excuse conforms to such sentiments. This is to put forth an empirical conception of fairness. See e.g. Guido Calabresi, The Cost of Accidents (Yale University Press, 1970), 291–308 (on the relevance of empirical fairness to tort law).
Erin I. Kelly, The Limits of Blame (Harvard University Press, 2018). Her focus is on excuse as involving mitigation of blameworthiness rather than on blamelessness; her conception is scalar.
Cf. Morse, “Excusing and the New Excuse Defenses,” 341.
Cf. William J. Stuntz, “Self-Incrimination and Excuse,” Columbia Law Review 88 (1988): 1245–47. This idea, that we—or alternatively, the judges, the punisher, the ordinary person, etc.—would have acted as the defendant acted, is often repeated, though it is left unclear why exactly this militates in favor of excuse and how this relates to the question of blameworthiness. (Thus I do not address making this point alone as providing a theory of fairness in this context, if not accompanied by further explanation.) It is not clear, for example, why expectation under these circumstances is unfair if the expectation is equally applied to everyone, rather than e.g. callous or hypocritical, pointing rather to a defect of standing that interferes with the propriety of punishment in such cases. If there is unfairness here, it seems to inhere in the fact that though we would have similarly acted had we been placed in the situation the wrongdoer was placed in, most will not be placed under the burdens the wrongdoer was placed under, and so will neither be blameworthy nor liable to blame or punishment. This is the thought developed by Kelly, which essentially understands excuse as a mechanism for mitigating the impact of circumstantial luck. (For a different view of the role this supposition plays in accounting for excuse (that does not rely on blameworthiness) see Gardner, “The Gist of Excuses,” suggesting that in such cases one has met a softened standard of behavior that is acceptable from the perspective of law. Gur Arye has rejected this view on grounds that the excused actor, as opposed to the justified actor, has not met any normatively defensible standard of behavior. See Gur-Arye, “On Gardner’s Justifications and Excuses.”).
Kelly accepts that if one is responsible for the relevant hardship this can block mitigation.
See e.g., George P. Fletcher, “Justice and Fairness in the Protection of Crime Victims,” Lewis & Clark Law Review 9 (2005): 548.
It warrants repeating that Kelly does not mean for this to serve as a basis for legal excuse, which, like criminal responsibility, ought on her view to be divorced from moral blameworthiness. I use her development of moral excuse only to point to a direction in which fairness in this context might be further developed. She thus does not take this to be sufficient, or at all relevant, to legal excuse, though she does defend its relevance for moral excuse.
Jeremy Horder has suggested that these relevant considerations fall into the category of consequentialist reasons for and against recognizing an excuse that all aim at either (1) preserving the integrity of law, or (2) promoting the common good. Horder, Excusing Crime, Ch. 1. (Note that Horder here is not offering a theory of fairness but enumerating considerations relevant to excuse. He is among those who do not take there to be a unifying theory of excuse.).
One central way in which this works is by understanding fairness of expectations in terms of reasonable expectations. Here reasonableness becomes the mechanism through which policy considerations are incorporated into conceptions of fairness (which is also the case where theories of excuse are articulated directly in terms of reasonableness, without the appeal to fairness, though I cannot map all the articulations here). But this need not be the mechanism through which such considerations are incorporated. Even without reference to reasonableness—a notion that is more transparent about its inclusion of consequentialist balancing—fairness often takes on this guise (See Fletcher on reasonableness embodying a paradigm of straightforward balancing of costs and benefits, which is as opposed to notions such as fairness, which purportedly embody commitments to non-instrumentalist values. Fletcher, “Fairness and Utility in Tort Theory.”).
This phenomenon, of fairness effectively being used as a placeholder for what are primarily ad hoc intuitions that do not avert to substantive theory, is a notorious problem in other contexts as well. See e.g., Louis Kaplow and Steven Shavell, Fairness versus Welfare (Harvard University Press, 2002), 45–46 (on similar problems with the appeal to fairness in theories of tort).
But notice that awarding pride of place to social policy considerations, as in a fairness-as-reason view that takes social policy considerations to be extrinsic to fairness, is different from taking fairness to be partially constituted by social policy considerations. Perhaps this is not the articulation of choice since the whole point of excuse law (assuming a non-utilitarian view) is to avoid some measure of excessive punishment, and so to end up endorsing unfair though socially beneficial expectations is to go against the grain of the whole point of granting excuses in law to begin with. But see Stuntz, “Self-Incrimination and Excuse,” 1247 (defending a fairness-as-reason view, with considerations of social costs as potential trumps).
This has been the aim of Kantian, legal retributivist, theories of excuse, which I have not addressed in this paper. I thank Shai Lavi for raising this point.
Acknowledgements
Many thanks to Liat Dasht for excellent research assistance and to the participants of the Criminal Law Theory Conference on the work of Miri Gur-Arye. Special thanks to Miri for inspiring my interest in criminal law and more recently in the question of excuse, and for contributing much clarity to a field riddled with confusion. I am also deeply grateful to Miri for years of supportive pedagogy, for our many conversations, for her thoughtful comments on my work and for being both a mentor and an always constructive critic.
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Dahan Katz, L. On What Underlies Excuse. Criminal Law, Philosophy (2023). https://doi.org/10.1007/s11572-023-09678-4
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DOI: https://doi.org/10.1007/s11572-023-09678-4