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The Contrived Defense and Deterrent Threat Doctrines: A Reply to Professors Finkelstein & Katz

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Abstract

What is the relationship between the permissibility/impermissibility of the part and the permissibility/impermissibility of the whole? Does the moral or legal status of a constituent part of an actor’s course of conduct govern the status of the actor’s whole course of conduct or, conversely, does the moral and legal status of the actor’s whole course of conduct govern the status of the constituent parts? This broader issue is examined in the more specific contexts of the contrived defense and deterrent threat doctrines. The latter doctrine concerns whether a prima facie impermissible act of carrying out a threatened action may be rendered permissible if embedded within an overall permissible course of action including the issuance of a deterrent threat that fails to induce compliance. The contrived defense doctrine addresses the permissibility of an actor who contrives or culpably causes the conditions of her own defense. This essay considers the claim—advanced by Claire Finkelstein and Leo Katz—that the contrived defense and deterrent threat doctrines are sufficiently related such that the preferable approach to each doctrine informs and supports the preferable approach to the other. In each, the permissible/impermissible status of the whole governs the status of the part. Regarding contrived defenses, the impermissibility of the actor’s whole course of conduct renders the otherwise permissible constituent part relating to the defense also impermissible. And regarding deterrent threats, the permissibility of the actor’s whole course of conduct renders the otherwise impermissible constituent parts also permissible. This essay challenges the claimed linkage between the contrived defense and deterrent threat doctrines by proposing hypothetical situations in which the claimed parallel doctrines collapse into each other. As a result, the application of the preferred approaches to each doctrine generates a contradiction.

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Notes

  1. To illustrate the application of the doctrine, compare two actors who each commit a crime while substantially intoxicated. Ian innocently becomes substantially intoxicated and commits an offense. Carl contrives to become substantially intoxicated so that, while in that state, he will commit an offense against his hated enemy but satisfy a defense and not be held liable. Perhaps Ian and Carl may equally satisfy the requirements for a defense based on lack of mens rea or responsibility due to each actor’s substantial intoxication. However, under the contrived defense doctrine only Carl might nonetheless be held liable. His contriving to satisfy the conditions of a defense allows him to be held liable despite otherwise satisfying the requirements of a defense. Even if both actors are equally denied a defense based on lack of mens rea or responsibility, Carl is surely, in some sense, comparatively more culpable and deserving of criminal liability.

  2. See, e.g., Kavka (1987).

  3. Finkelstein and Katz (2008, pg. 479) (variously describing the doctrines as “[t]wo facets of one problem” and as “mirror images of one another”).

  4. For an argument that the permissible/impermissible status of the whole does not invariably govern the status of the part in the context of punishment, see Christopher (2005) (arguing that the principle of the status of the whole governing the status of the part only applies under consequentialist but not retributive theories of punishment). .

  5. Finkelstein & Katz explain Hruschka’s account of the contrived defenses issue as follows:

    [F]undamentally Hruschka’s approach has us evaluate the defendant’s conduct in its totality, and then assess the individual components of that course of action accordingly. Hruschka has us look at the course of conduct as a whole, and if we find that we disapprove, to recognize a secondary duty [in addition to the primary duty not to violate statutory norms] not to create situations that would require the defendant to perform the illegal, but ostensibly justified or excused, action.

    Finkelstein and Katz (2008, p. 504). For Hruschka’s own explanation of his approach, see id. at 480 n.2 (citing Hruschka (1983)).

  6. Finkelstein and Katz (2008, pg. 500) (noting that the “problem of contrived defenses and that of deterrent threats are mirror images of one another”). .

  7. Alternatively, the scenario could be the opposite. A issues the threat with the intent that it will deter and the awareness that it will likely provoke B.

  8. The act of killing is prima facie impermissible either because it is carrying out an impermissible threatened action or because it is a contrived defense.

  9. I am indebted to Claire Finkelstein for raising this point.

  10. E.g., Robinson (1985, 3 and 8) (comparing jurisdictions which bar a defense whenever an actor “contributes in any way, even without fault to causing” the conditions of a defense with jurisdictions which “bar a defense whenever the actor is at fault, i.e., at least negligent, in bringing about the conditions of his defense”).

  11. Finkelstein and Katz (2008, 480 n.30) (noting that “[a] related problem is raised by defendants who are aware, but do not contrive, the conditions of their own defense”). Finkelstein and Katz explain that the difference between those that contrive the conditions of their own defense versus those who are merely aware that their conduct is causing the conditions of their own defense “will not be important for our purposes, so we will treat such cases together.” Id.

  12. One particular approach to the contriving defense issue is not undermined by the above contradiction. Paul Robinson’s approach does not incorporate the principle that the permissible/impermissible status of the whole governs the status of the parts. See Robinson (1985, p. 50). Unlike other approaches to the contrived defense doctrine, Robinson grants the defense to the contriving actor while nonetheless holding the actor liable. Thus, the impermissible overall plan of conduct of the defense contriver does not govern the status of all of the individual parts.

References

  • Christopher, R. L. (2005). Time and Punishment. Ohio State Law Journal, 66, 269–314.

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  • Finkelstein, C., & Katz, L. (2008). Contrived Defenses and Deterrent Threats: Two Facets of One Problem. Ohio State Journal of Criminal Law, 5, 479–504.

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  • Hruschka, J. (1983). Strafrecht Nach Logisch-Analytischer Methode.

  • Kavka, G. S. (1987). Moral Paradoxes of Nuclear Deterrence.

  • Robinson, P. H. (1985). Causing the Conditions of One’s Own Defense: A Study in the Limits of Theory in Criminal Law Doctrine. Virginia Law Review, 71, 1–63.

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Acknowledgments

Thanks to Kathryn Christopher for her criticisms of earlier drafts of this essay.

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Correspondence to Russell L. Christopher.

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Christopher, R.L. The Contrived Defense and Deterrent Threat Doctrines: A Reply to Professors Finkelstein & Katz. Criminal Law, Philosophy 7, 629–636 (2013). https://doi.org/10.1007/s11572-013-9211-3

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