Abstract
The set of problems we encountered in the context of the debates on the juvenile court and judicial decision-making arise again in a distinct form in the discussion of the place of excuses in the criminal law. An excuse operates such that an individual may be deemed to have committed a given offence but the circumstances in which this act took place make it inappropriate that a criminal sanction be applied. Clearly then an excuse is an exception to a legal enactment. Our concern has been to analyse the extent to which the criminal law is rule governed and this issue necessarily applies when we consider the question of excuses.
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Notes
J. Bentham, Introduction to the Principles of Morals and Legislation, ch. XIII section n para. 10 (Athlone Press, 1970) p. 161 (emphasis in the original), Bentham’s argument here is a special deterrence argument, the deterrent being aimed at the actual law-breaker. As we shall see, Hart’s argument is a general deterrent argument, the deterrent is aimed at the potential lawbreaker.
H. L. A. Hart, Punishment and Responsibility (OUP, 1968) p. 43; emphasis in the original.
Hart, op. cit., p. 21, on ‘strict liability’, ‘In criminal law strict or absolute liability for having done something or having allowed it to happen, independently of intention, recklessness or negligence.’ D. Walker, The Oxford Companion to Law (OUP, 1980) p. 1193.
Ibid., p. 46; (emphasis in the original), on this point cf. also Hart, The Concept of Law (OUP, 1961) p. 39.
G. Fletcher, Rethinking Criminal Law (Little, Brown, 1978) p. 811.
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© 1983 Antony Cutler and David Nye
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Cutler, A., Nye, D. (1983). On Excuses and Excusing. In: Justice and Predictability. Palgrave Macmillan, London. https://doi.org/10.1007/978-1-349-05987-4_3
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DOI: https://doi.org/10.1007/978-1-349-05987-4_3
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