Abstract

http://ssrn.com/abstract=1119406
 


 



Fletcher on Subjective Justification


Peter K. Westen


University of Michigan Law School


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

Abstract:     
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

Accepted Paper Series


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 )
625 South State Street
115 Legal Research Building
Ann Arbor, MI 48109-1215
United States
734-647-9134 (Phone)
734-665-3435 (Fax)

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