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The Structure of Criminal Law

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Abstract

According to a common view, criminal law should be structured in a way that allocates the conditions of criminal liability to different types of legal rules, given the content of the condition and the nature of the rule. This view classifies some conditions as elements of offenses and others as (part of) justificatory defenses or of excusatory defenses. While this view is attractive, I argue that it should be rejected, since it is incompatible with two plausible propositions about legal rules. The first is that foundational reasons are not concerned with the structure of the law as such. The second is that legal rules should be constructed in a way that reflects (the balance of) all the applicable reasons and not just some of them.

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Notes

  1. Most adherents of the Structure View support the former option but some argue for the latter. For discussions of this question, see, for example, Glanville Williams, “Offences and Defenses”, Legal Studies 2 (1982): 233–256; John Gardner, “Fletcher on Offences and Defenses”, Tulsa Law Review 39 (2004): 817–828, at 819–820; Michelle Madden Dempsey & Jonathan Herring, “Why Sexual Penetration Requires Justification”, Oxford Journal of Legal Studies 27 (2007): 467–491; Jesse Wall, "Sexual Offences and General Reasons Not to Have Sex", Oxford Journal of Legal Studies 35 (2015): 777-798; Kate Greasley, “Sex, Reasons, Pro Tanto Wrongdoing, and the Structure of Rape Liability”, Criminal Law & Philosophy 15 (2021): 159–179.

  2. See, for example, Kent Greenwalt, “The Perplexing Borders of Justification and Excuse”, Columbia Law Review 84 (Greenwalt, 1984): 1897–1927, at 1913–1915; Peter Westen & James Mangiafico, “The Criminal Defense of Duress: A Justification, Not an Excuse—And Why it Matters”, Buffalo Criminal Law Review 6 (2003): 833–950; Peter Westen, “Does Duress Justify or Excuse? The Significance of Larry Alexander’s Ambivalence”, in Heidi M. Hurd (ed.), Moral Puzzles and Legal Perplexities: Essays on the Influence of Larry Alexander (Oxford: Oxford University Press, 2018), pp. 76–97.

  3. See, for example, V. F. Nourse, “Reconceptualizing Criminal Law Defenses”, University of Pennsylvania Law Review 151 (2003): 1691–1746, at 1717; Susan D. Rozelle, “Controlling Passion: Adultery and the Provocation Defense”, Rutgers Law Journal 37 (2005): 197–234, at 233; Cynthia Lee, “The Trans Panic Defense Revisited”, American Criminal Law Review 57 (2020): 1411–1498, at 1434–1436.

  4. I consider various arguments for the Structure View in Sects. 2 and 3.

  5. See in this regard the papers on “Criminal Law Exceptionalism” in Criminal Law & Philosophy 23 (2023). I have argued that the criminal law is not special with regard to its goals. See Re’em Segev, “Is the Criminal Law (So) Special? Comments on Douglas Husak’s Theory of Criminalization”, Jerusalem Review of Legal Studies 1 (2010): 3–20.

  6. George P. Fletcher, “The Right and the Reasonable”, Harvard Law Review 98 (1985): 949–982, at 951.

  7. It may not even be an excuse for such a belief, especially for those whose job is to consider the theory of criminal law in a rational manner.

  8. Compare Miriam Gur-Arye, “Should a Criminal Code Distinguish Between Justification and Excuse?”, Canadian Journal of Law & Jurisprudence 5 (1992): 215–235, at 220–221 (“there is, I believe, no logical reason for such discrimination. Once we concede that it might be unfair to impose criminal liability on someone who did not resist the pressure to save his life or bodily integrity, why should it matter what the source of the danger was?”).

    For an influential example that combines both of these ways of arranging criminal law defenses, see Model Penal Code (1962), sections 2–3.

  9. I elaborate regarding the last factor in Re’em Segev, “Justification under Uncertainty”, Law & Philosophy 31 (2012): 523–563.

  10. For a different argument against the suggestion that the law should distinguish between justifications and excuses, see Gur-Arye, “Should a Criminal Code Distinguish between Justification and Excuse?”, 229–231.

  11. I consider this proposition further in Re’em Segev, “Should Law Track Morality?”, Criminal Justice Ethics 36 (2017): 205–223.

  12. Almost every example is controversial in this respect, inter alia, in light of the controversies regarding the factors that are relevant to the moral status of actions and of agents, for instance. See, for example, Paul H. Robinson, Structure and Function in Criminal Law (Oxford: Oxford University Press, 1997), pp. 88–92 (“objective” conditions and excuse defenses), 100–124 (“subjective” condition and justifications defenses).

  13. I consider these claims further in Re’em Segev, “Moral Innocence and The Criminal Law: Non-Mala Actions and Non-Culpable Agents”, Cambridge Law Journal 79 (2020): 549–577, at 552, 558, 562, 573–574. For more examples, see Sect. 2.

  14. The way in which I have defined the Structure View is compatible with both of these options.

  15. Victor Tadros, Criminal Responsibility (Oxford: Oxford University Press, 2007), p. 104.

  16. Tadros, Criminal Responsibility, at 105.

  17. One example is based on the distinction between “conduct rules” and “decision rules” (see Meir Dan-Cohen, “Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law”, Harvard Law Review 97 (1984): 625–677). It holds that the function of the rule—whether it is a “rule of conduct” or a “principle of adjudication”—should affect the criminal code in which it should be placed: Robinson, Structure and Function in Criminal Law, pp. 8, 185. However, Robinson’s arguments for this construction—relating to “clarity, understanding, and effectiveness” (Robinson, Structure and Function in Criminal Law, p. 8)—do not seem to be based on the claim that the structure of the law is important in itself.

    Another possible version of the Structure View may be that all the conditions of criminal liability reflect one type of concern—for example, about culpability—and accordingly should be included within one type of legal rule. For a suggestion in this spirit, see Larry Alexander & Kimberly Ferzan, Crime & Culpability: A Theory of Criminal Law (Cambridge: Cambridge University Press, 2009), pp. 11–12, 91–92.

  18. For other categories that may but do not necessarily reflect the Structure View, see, for example, R. A. Duff, Answering for Crime: Responsibility and Liability in The Criminal Law (Oxford and Portland, Oregon: Hart Publishing, 2007), pp. 271–284 (“warrants”); Douglas Husak, “Beyond the Justification/Excuse Dichotomy”, in Rowan Cruft, Matthew H. Kramer, & Mark R. Reiff (eds.), Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff (Oxford: Oxford University Press, 2021), pp. 141–155, at 151–152 (“exemptions”); Andrew P. Simester, Fundamentals of Criminal Law: Responsibility, Culpability, and Wrongdoing (Oxford: Oxford University Press, 2021), pp. 422–424 (“irresponsibility defenses”); Miriam Gur-Arye, “Justifying the Distinction Between Justifications and Power (Justification vs. Power)”, Criminal Law & Philosophy 5 (2011): 293–313 (“powers”; Gur-Arye argues that there is no pro tanto legal right that is infringed by a power as opposed to a justification defense, but she defines these notions in accordance with the answer to the question of whether there is such a legal right).

  19. One example is the question of whether justifications should be objective, namely, concerned with the morally significant facts, or subjective, that is, concerned with the (justified) beliefs of the agents regarding these facts. I discuss this question (without assuming the Structure View) in Segev, “Justifications under Uncertainty”.

  20. Williams, “Offences and Defenses”, at 256.

  21. Mitchell N. Berman, “Justification and Excuse, Law and Morality”, Duke Law Journal 53 (2003): 1–77, at 11. Berman assumes that salient discussions of the distinction between justifications and excuses are about positive law rather than the question of what the law should be. It seems to me that many of the relevant discussions are concerned, at least additionally, with the latter question, partly because I think that Berman is clearly right that positive law is often incompatible with every account of the distinction.

  22. A related suggestion refers to actions that there is a reason not to perform.

  23. For discussion of this suggestion and related ones (such as that justificatory defenses do not exclude remainder or regret), see, for example, George P. Fletcher, Rethinking Criminal Law (Boston: Little, Brown, 1978), pp. 567–568; Kenneth Campbell, “Offence and Defence”, in I. H. Dennis (ed.), Criminal Law and Justice: Essays from the W.G. Hart Workshop (London: Sweet & Maxwell, 1987), pp. 73–87, at 79; Gardner, “Fletcher on Offences and Defenses”, at 820, 825; John Gardner, Offences And Defenses: Selected Essays In The Philosophy Of Criminal Law (United States: Oxford University Press, 2007), p. 96; Duff, Answering For Crime, at 218; Marcia Baron, “Excuses, Excuses”, Criminal Law & Philosophy 1 (2007): 21–39; Greasley, “Sex, Reasons, Pro Tanto Wrongdoing, and the Structure of Rape Liability”, at 168; Simester, Fundamentals of Criminal Law, at 29–30; R. A. Duff, “‘De Minimis’ and the Structure of The Criminal Law”, Law and Philosophy 42 (2023): 57–86, 65–66 (but see also pp. 78–85 for the suggestion that some offenses may be justified even if they refer to actions that are prima facie wrong); Miriam Gur-Arye, “Various Kinds of Cultural Defence in the Criminal Law”, forthcoming.

  24. This is sometimes the case, I believe, both when relevant defenses exempt such actions and when they do not.

  25. I explain this concern in Re’em Segev, “Reasons for and against Criminalization: Discussion of The Realm of Criminal Law”, Jerusalem Review of Legal Studies 18 (2018): 16–37, at 21–28.

  26. Prominent versions of the view that criminal law should apply only to actions that are wrong (“legal moralism”) are indeed concerned with overall wrongness. See, see, for example, H. L. A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (New York and Oxford: Oxford University Press, 1968), p. 9; Joel Feinberg, The Moral Limits of the Criminal Law Volume 1: Harm to Others (New York: Oxford University Press, 1984), p. 11; Michael S. Moore, Placing Blame: A General Theory of the Criminal Law (Oxford: Oxford University Press, 1997), pp. 33, 72–73; Michael S. Moore, “Placing Blame: A General Theory of the Criminal Law”, San Diego Law Review 54 (2017): 441–464, at 443, 445; Heidi M. Hurd, Moral Combat: The Dilemma of Legal Perspectivalism (Cambridge: Cambridge University Press, 1999); Gerald Dworkin, “Devlin Was Right: Law and the Enforcement of Morality Symposium: Reconstructing Liberalism”, William & Mary Law Review 40 (1999): 927–946, at 927–928; Douglas Husak, Overcriminalization: The Limits of the Criminal Law (Oxford: Oxford University Press, 2008), pp. 65–66, 135–136; John Gardner, “What is Tort Law For? Part 1. The Place of Corrective Justice”, Law & Philosophy 30 (2011): 1–50, at 7; Andrew P. Simester and Andreas von Hirsch, Crimes, Harms, and Wrongs: On the Principles of Criminalisation (Oxford and Portland, Oregon: Hart Publishing, 2011), pp. 23, 29; Richard J. Arneson, “The Enforcement of Morals Revisited”, Criminal Law & Philosophy 7 (2013): 435–454, at 441; R. A. Duff, “Towards a Modest Legal Moralism”, Criminal Law & Philosophy 8 (2014): 217–235, at 218–221; R. A. Duff, The Realm of Criminal Law (Croydon: Oxford University Press, 2018), p. 76; Christopher Heath Wellman, Rights Forfeiture and Punishment (New York: Oxford University Press, 2017), p. 6; James Edwards, “An Instrumental Legal Moralism”, in John Gardner, Leslie Green, & Brian Leiter (eds.), Oxford Studies in Philosophy of Law Volume 3 (New York: Oxford University Press, 2018), p. 156.

  27. See Alexander & Ferzan, Crime & Culpability, pp. 91–92.

  28. I consider additional examples and defend the claims that such offenses refer to actions that are not (even pro tanto) wrong and are nevertheless sometimes justified in more detail in another paper. See Segev, “Moral Innocence and the Criminal Law”, pp. 552, 558, 562, 573–574.

  29. Compare Peter Westen, “Offences and Defences Again”, Oxford Journal of Legal Studies 28 (2008): 563–584, at 573. Another example is that of offenses that proscribe harming people. According to one view, there is no reason against actions that harm people who deserve to be harmed in the relevant way, for example, actions that harm culpable aggressors in (necessary and proportional) self-defense. Of course, the view that there is no reason against actions that harm people who deserve to be harmed is controversial. But it does not seem that the structure of the criminal law should depend on the answer to the question of whether this view is correct.

  30. Tadros suggests also some alternative formulations of what the target of offenses should be, such as “public wrongs”.

  31. Tadros, Criminal Responsibility, at 102, 111.

  32. Tadros, Criminal Responsibility, at 111.

  33. Duff, Answering For Crime, at 18, 283; Duff, “‘De Minimis’ and the Structure of The Criminal Law”, at 65–66.

  34. Compare Westen, “Offences and Defences Again”; Luis Duarte d’Almeida, “‘O Call Me Not to Justify the Wrong’: Criminal Answerability and the Offence/Defence Distinction”, Criminal Law & Philosophy 6 (2012): 227–246, at 240 (who criticizes Duff in this regard although he thinks that the value of the process is not merely instrumental).

  35. Duff, “‘De Minimis’ and the Structure of The Criminal Law”, at 65–66.

  36. See Gardner, “Fletcher on Offences and Defenses”, at 825; Duff, Answering For Crime, at 283 (justification defenses should require certain beliefs or intentions).

  37. For a recent discussion, see Daniele Bruno, “Being Fully Excused for Wrongdoing”, Pacific Philosophical Quarterly (2022): 1–24.

  38. See Sect. 1.

  39. See Westen, “Offences and Defences Again”, at 582.

  40. See, Miriam Gur-Arye, “Criminal Law Defences Divides”, Jerusalem Review of Legal Studies 23 (2021): 167–183, at 177; Mark Dsouza, “False Beliefs and Consent to Sex”, The Modern Law Review 85 (2022): 1191–1217, at 1192–1193 (Later, Dsouza makes the different claim that “policy considerations” should be considered with regard to justifications but only by legislatures, whereas such considerations may be considered also by judges with respect to excuses. This claim seems to me puzzling for the same reason as the one that I consider in the main text).

  41. Mitchell N. Berman & Ian P. Farrell, “Provocation Manslaughter as Partial Justification and Partial Excuse”, William & Mary Law Review 52 (2011): 1027–1110.

  42. Discussions in the context of the criminal law often refer to “culpable actions” (see, for example, Alexander & Ferzan, Crime & Culpability, at 191–193). This term is, however, misleading in that culpability pertains to agents rather than actions.

  43. I discuss this question in more detail in Segev, “Moral Innocence and the Criminal Law”. The claim, mentioned above, that excuses may be subject to “policy considerations” appears to be in line with my reply to the objection that the reason not to punish innocent agents is not necessarily decisive.

  44. See Sect. 1.

  45. See, for example, MPC, s. 3.02.

  46. For a critical discussion, see Miriam Gur-Arye, “Should the Criminal Law Distinguish between Necessity as a Justification and Necessity as an Excuse”, Law Quarterly Review 102 (1986): 71–89; Gur-Arye, “Should a Criminal Code Distinguish between Justification and Excuse?”.

  47. Claims of this type are sometimes made also with respect to the distinction between offenses and defenses. See, for example, the claim that while a mistaken belief regarding the elements of an offense bars criminal liability, a mistake regarding the conditions of a defense must be reasonable in order to exclude liability (Simester, Fundamentals of Criminal Law, at 485–489).

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Acknowledgments

This paper is part of a special issue on the work of Professor Miriam Gur-Arye. I first encountered the ideas explored in this paper in classes taught by Miri, and I am grateful for her support throughout the years. Miri, as well as Alon Harel and Shachar Eldar, provided helpful comments on this paper. My research assistants, Naomi Shapiro and Yinon Zaidel, provided valuable help.

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  1. Ivan C. Rand Chair in Criminal Law, Faculty of Law, The Hebrew University of Jerusalem, Jerusalem, Israel

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Segev, R. The Structure of Criminal Law. Criminal Law, Philosophy (2023). https://doi.org/10.1007/s11572-023-09693-5

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