The Bomb Thief and the Theory of Justification Defenses

Abstract

Earlier this year, an addict named Ashkenazi spotted an unattended backpack on a busy beach north of Tel Aviv, Israel. He seized the opportunity and stole the bag, taking it to a nearby abandoned house to examine his loot. What he found in the bag was a terrorist's bomb. He notified police who disarmed the bomb. Ashkenazi's conduct saved many lives, but he did not realize it at the time. Should he be criminally liable for his theft?

This article explores the theoretical dispute raised by the case: competing views on the theory of justification. A subjective, or reasons, theory looks to the actor's intent and would deny a justification defense in this case, leaving Ashkenazi liable for the theft. An objective, or deeds, theory looks to whether the actor's conduct in fact avoids a greater harm. It would give a lesser evils defense for such a theft, although the unknowingly justified actor would remain liable for attempted theft (if the jurisdiction punishes impossible attempts). Israeli law takes the objective deeds view; most (but not all) U.S. states take the subjective reasons view.

Keywords: justification, criminal law

JEL Classification: k14