Not Available For Download

Fletcher on Subjective Justification

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

Posted: 12 Apr 2008  

Peter K. Westen

University of Michigan Law School


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

Suggested Citation

Westen, Peter K., Fletcher on Subjective Justification. ESSAYS ON CRIMINAL LAW, Russell Christopher, ed., Oxford University Press. Available at SSRN:

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)

Paper statistics

Abstract Views