Criminal Law Defences Divides

15 Pages Posted: 7 Apr 2021 Last revised: 17 Jun 2021

See all articles by Miriam Gur-Arye

Miriam Gur-Arye

Hebrew University of Jerusalem - Faculty of Law

Date Written: October 25, 2020

Abstract

[Focused on criminal law defences classified as either justification or excuse, this comment provides a different divide within each category, from that argued for by Andrew Simester in the last three chapters of Fundamentals of Criminal Law: Responsibility, Culpability, and Wrongdoing.

The criminal law ought not to distinguish between two types of justifications: self-defence and necessity (as suggested by Simester). The criminal law should rather distinguish between justifications (both self-defence and necessity) on the one hand, that belong to the internal structure of crime, and the exercise of legal power, on the other, which carves an exception to the external boundaries of the prohibition and falls outside the scope of criminalization.

Criminal law excuses, which deny culpability in its normative sense, apply when it would be unfair to expect that the defendant avoids committing the criminal wrongdoing. The fairness of these expectations is sensitive to policy considerations. Such considerations might lead to distinct standards of mistake for various putative justifications. The mistake in cases of putative self-defence, resulting in killing the innocent (believed to be an aggressor) should be subject to reasonableness; the mistake in cases of putative necessity resulting in sacrificing property in vain (believed to be needed to save a life in imminent danger) does not have to be subject to reasonableness. Legal systems that wish to encouraging third parties to intervene rather than stand by when they see what they believe to be an imminent danger to human life, might give up the reasonableness standard with regard to third parties

Keywords: criminal law defences, justification and excuse, legal power, putative jusitifcaitons

Suggested Citation

Gur Arye, Miriam, Criminal Law Defences Divides (October 25, 2020). Hebrew University of Jerusalem Legal Research Paper 21-17, Available at SSRN: https://ssrn.com/abstract=3818121

Miriam Gur Arye (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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