Should a Criminal Code Distinguish Between Justification and Excuse?

Gur-Arye, Miriam

doi:10.1017/s0841820900001399

Cited by 24 publications

(3 citation statements)

References 7 publications

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“…For a rejection of Berman's criticism in favor of the view that the moral categories of justification and excuse should be reflected in the law presumably regardless of instrumental considerations (namely the Tracking View), see Dressler 2009: 247-248. 35 See Greenawalt 1984Greenawalt : 1918Greenawalt -1927Gur-Arye 1986;Gur-Arye 1992;Smith 1989: 19-28.…”

Section: The Tracking Viewmentioning

confidence: 99%

Should Law track Morality?

Segev¹

2017

Criminal Justice Ethics

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Does the moral status of an action provide in itself a non-instrumental, pro-tanto reason for a corresponding legal status -a reason that applies regardless of whether the law promotes a value that is independent of the law, such as preventing wrongdoing or promoting distributive or retributive justice? While the relation between morality and law is a familiar topic, this specific question is typically not considered explicitly. Yet it seems to be controversial and each of the contrasting answers to this question has some appeal. The article highlights and considers this question. it concludes that the answer is negative: there is no necessary relation between morality and law in this respect. Rather, there is a reason in favor of incorporating morality into the law only when this incorporation promotes a moral value that is independent of the law.

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Section: The Tracking Viewmentioning

confidence: 99%

Should Law track Morality?

Segev¹

2017

Criminal Justice Ethics

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“…1904Greenawalt ( -1911Greenawalt ( , 1919Greenawalt ( -19271986, pp. 93-98), Gur-Arye (1986, 1992. This claim seems to me misguided.…”

Section: The Dilemmamentioning

confidence: 99%

Sub-Optimal Justification and Justificatory Defenses

Segev

2009

Criminal Law, Philosophy

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Justificatory defenses apply to actions that are generally wrong and illegalmainly since they harm people-when they are (exceptionally) justified-usually since they prevent (more serious) harm to others. A strict conception of justification limits justificatory defenses to actions that reflect all pertinent principles in the optimal manner. A more relaxed conception of justification applies (also) to actions that do not reflect all pertinent principles optimally due to (unjustified) mistake but are not too far from this optimum. In the paper, I consider whether justificatory defenses should reflect the strict conception of justification or a more relaxed conception of justification. This question is important since often the relevant actions are not strictly justified, while the alternative of an excuse is frequently irrelevant or does not provide an appropriate solution. Reflection on this question raises the following dilemma: On the one hand, the strict interpretation seems too harsh, especially with regard to legal (particularly criminal) liability. On the other hand, it is difficult to explain the basis for a more relaxed conception of justification. I conclude, first, that justification-and accordingly wrongfulness-is a matter of degree and that the strictly justified action is merely the peak of a continuum, and, second, that a practical (negative) reaction is in place only with regard to actions whose wrongness is above a minimal threshold.

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“…Moreover, when society looks at the bottom line of conviction or acquittal, it makes no difference whether the conduct was justified and socially acceptable, or antisocial but legally excused. 29 Although no criminal penalty is imposed upon an excused actor, i.e., the actor is completely acquitted of punishment, such an acquittal does not play the same role or bear the same significance as being exonerated due to the justification of the conduct. The criminal law fulfils an educational role that is also expressed in the distinctions that it makes among different kinds of acquittal.…”

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confidence: 99%

Excused Necessity in Western Legal Philosophy

Ghanayim¹

2006

Can. J. Law Jurisprud.

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Should a person in a life-threatening situation have a defence when he saves his life by causing death to a person who was not involved in creating the life-threatening situation? Viz., does the perpetrator have an excused necessity defence that negates imposing the punishment? This issue - excused necessity defence - has fascinated the legal world since antiquity and has been described as one of the most complicated issues in criminal law. The well-known case is the “plank of Carneades” or “two men and the plank”. Two men, A and B, are shipwrecked on the high seas; as their strength ebbs and they are about to drown, they see a wooden plank that is just large enough to support only one of them. A reaches the plank first and grabs it, but B, faced with the prospect of certain death, pushes A off the plank, resulting in the death of A by drowning. B then grabs the plank and manages to save his own life. Should B have a defence if he is prosecuted for pushing A off the plank in these circumstances?

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Should a Criminal Code Distinguish Between Justification and Excuse?

Cited by 24 publications

References 7 publications

Should Law track Morality?

Should Law track Morality?

Sub-Optimal Justification and Justificatory Defenses

Excused Necessity in Western Legal Philosophy

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