The Constitution of Criminal Law: Justifications, Policing and the State's Fiduciary Duties

Criminal Law and Philosophy, Vol. 5, p. 259, 2011

18 Pages Posted: 26 Jan 2012

See all articles by Malcolm Thorburn

Malcolm Thorburn

University of Toronto - Faculty of Law

Date Written: May 1, 2008

Abstract

This article considers the implications of the "German Airliner Case" for criminal law theory. In that case, the German constitutional court struck down as unconstitutional a law empowering state officials to order the shooting down of a hijacked plane on the grounds that the state could not order the killing of innocent civilians. Some have argued that despite this ruling, individual officials should still be entitled to claim a criminal law justification defence if they choose to shoot down a plane in such circumstances. I argue that the nature of justification defences necessarily ties them to the powers of the state to engage in such activity. And therefore if the law empowering officials to order the shooting is unconstitutional then it remains criminal and unjustifiable for an official to take matters into her own hands. Finally, I argue that both the constitutional decision and its criminal law implications are salutary.

Suggested Citation

Thorburn, Malcolm Bruce, The Constitution of Criminal Law: Justifications, Policing and the State's Fiduciary Duties (May 1, 2008). Criminal Law and Philosophy, Vol. 5, p. 259, 2011, Available at SSRN: https://ssrn.com/abstract=1139031

Malcolm Bruce Thorburn (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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