Fletcher on Subjective Justification

Peter K. Westen

University of Michigan Law School

ESSAYS ON CRIMINAL LAW, Russell Christopher, ed., Oxford University Press

George Fletcher has transformed Anglo-American criminal-law theory by introducing continental distinctions between justification and excuse. Fletcher himself takes the two-part position that (1) in order to be justified, an actor not only must act under circumstances that negate the harms and evils the statute at hand seeks to prevent, all things considered, he must act for those very reasons, and (2) in order to be excused, an actor who commits a crime of intent in the mistaken belief that his conduct is necessary to prevent such a harm or evil must possess a mistaken belief that "reasonable." Fletcher admits that his two-part position is contrary to what he calls the "unity" view, viz., that defenses of justification are the mere converse or negation of prima facie harms that statutes seeks to prevent. In order to rebut the unity view, Fletcher argues that there are "fundamental" normative differences between elements of offenses and defenses of justification, including differences regarding legality, vagueness, and notice. In this essay, I question these supposed differences and, hence, question Fletcher's defense of his two-part position.

Keywords: justification, excuse, elements, defenses

Not Available For Download

Date posted: April 12, 2008  

Suggested Citation

Westen, Peter K., Fletcher on Subjective Justification. ESSAYS ON CRIMINAL LAW, Russell Christopher, ed., Oxford University Press. Available at SSRN: http://ssrn.com/abstract=1119406

Contact Information

Peter K. Westen (Contact Author)
University of Michigan Law School ( email )
3178 South Hall
701 South State Street
Ann Arbor, MI 48109-3091
United States
505 577-2855 (Phone)
505 992-6885 (Fax)

Feedback to SSRN

Paper statistics
Abstract Views: 543

© 2016 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollobot1 in 0.265 seconds