Collection of British Essays, Andrew Simester, A.T.H. Smith, eds., Oxford Univ. Press, 1996
27 Pages Posted: 14 Jan 2003
In an article 20 years ago (A Theory of Justification: Societal Harm as a Prerequisite to Criminal Liability), Robinson argued that justification defenses are best conceptualized and formulated objectively, as focusing on the nature of the actor's deeds. (George Fletcher wrote a critical response, The Right Deed for the Wrong Reason: A Reply to Mr. Robinson). In the two decades since, many if not most writers on the subject have disagreed with Robinson's position. And nearly all formulations of justification defenses in current American criminal codes use subjective formulations, which focus instead on the actor's reasons for acting. They give a justification defense if and only if, at the time of the conduct, the actor believes the conduct is justified. In this article, Robinson reaffirms his support for an objective formulation of justification and offers his first response to critics and defense of his original claim. His claim has two practical implications for liability. First, Robinson argues that a mistaken belief that one's conduct is justified ought to result in an excuse defense, not the justification defense that the subjective formulation would give. The article explains the important implications of that distinction. Second, Robinson argues that the unknowingly justified actor ought to retain a justification defense; the subjective formulation would take the defense away. (If the jurisdiction punishes impossible attempts--where an offense has occurred only in the actor's mind, only from the actor's mistaken view of the circumstances -- then the unknowingly justified actor would be liable for such an impossible attempt.)Robinson argues that the objective view is superior for several reasons: first, it generates liability results that are more just and that better match our collective intuitions of what is just. Second, even if the competing theories generated identical liability results, the objective deeds conceptualisation is superior because it lays bare the distinctions that are relevant to determining liability in these cases, while the subjective reasons theory obscures those distinctions. Finally, the deeds theory of justification improves the criminal law's rule-articulation function. That is, it allows the law to better communicate to the public the conduct rules that it commands they follow.
Keywords: justification, punishment
JEL Classification: k14
Suggested Citation: Suggested Citation
Robinson, Paul H., Competing Theories of Justification: Deeds Versus Reasons. Collection of British Essays, Andrew Simester, A.T.H. Smith, eds., Oxford Univ. Press, 1996. Available at SSRN: https://ssrn.com/abstract=10142 or http://dx.doi.org/10.2139/ssrn.10142