Original Paper

Criminal Law and Philosophy

, Volume 5, Issue 3, pp 259-276

First online:

The Constitution of Criminal Law: Justifications, Policing and the State’s Fiduciary Duties

  • Malcolm ThorburnAffiliated withFaculty of Law, Queen’s University Email author 

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This paper, originally written for a conference on criminal law in times of emergency, considers the implications of the ‘German Airliner case’ for criminal law theory. In that case, the German constitutional court struck down as unconstitutional a law empowering state officials to order the shooting down of a hijacked plane on the grounds that the state could not order the killing of innocent civilians. Some have argued that despite this ruling, individual officials should still be entitled to claim a criminal law justification defence. I argue that the nature of justification defences necessarily ties them to the powers of the state to engage in such activity. I also argue that both the constitutional decision and its criminal law implications are salutary.


Criminal law Justification defences Constitutionalism Germany Emergency powers Police powers Terrorism Lesser evils