The Gist of Excuses
University of Oxford - Faculty of Law
Buffalo Criminal Law Review, Vol. 2, No. 1 (1997).
This paper considers and rejects two familar views about excuses in criminal law. According to the first, the gist of an excuse is that the wrongful action did not manifest the wrongdoer's character. According to the second, the gist of an excuse is that the wrongful action was one which the wrongdoer had no capacity to avoid. The paper argues that the first view is right to connect excuses with character, but alights on the wrong connection. The truth is that an action is excused if, in the dimension of character, the wrongdoer lived up to our expectations. The issue then becomes one of identifying the relevant expectations. The paper defends the view that our expectations of people, in the domain of character, cannot, for excusatory purposes, be capped according to those people's capacities. The argument has both conceptual and moral aspects. On the one hand, it is suggested that the idea of a capacity to meet higher standards of character than one already meets is unintelligible. On the other hand, it is argued that relativising excuses to capacities, to the extent that such relativisation does make sense, cannot but compromise the self-respect of those who claim those excuses.
Accepted Paper Series
Date posted: October 1, 1997
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