Sub-Optimal Justification and Justificatory Defenses

Criminal Law and Philosophy. Vol. 4, No. 1, pp. 57-76, 2010

20 Pages Posted: 2 Feb 2013

See all articles by Re'em Segev

Re'em Segev

Hebrew University of Jerusalem – Faculty of Law

Date Written: February 1, 2008

Abstract

Justificatory defenses apply to actions that are generally wrong and illegal — mainly since they harm people — when they are (exceptionally) justified — usually since they prevent (more serious) harm to others. A strict conception of justification limits justificatory defenses to actions that reflect all pertinent principles in the optimal manner. A more relaxed conception of justification applies (also) to actions that do not reflect all pertinent principles optimally due to (unjustified) mistake but are not too far from this optimum. In the paper, I consider whether justificatory defenses should reflect the strict conception of justification or a more relaxed conception of justification. This question is important since often the relevant actions are not strictly justified, while the alternative of an excuse is frequently irrelevant or does not provide an appropriate solution. Reflection on this question raises the following dilemma: On the one hand, the strict interpretation seems too harsh, especially with regard to legal (particularly criminal) liability. On the other hand, it is difficult to explain the basis for a more relaxed conception of justification. I conclude, first, that justification — and accordingly wrongfulness — is a matter of degree and that the strictly justified action is merely the peak of a continuum, and, second, that a practical (negative) reaction is in place only with regard to actions whose wrongness is above a minimal threshold.

Keywords: Justification, Optimal, Sub-Optimal, Defense, Mistake, Excuse

JEL Classification: K00, K10, K14

Suggested Citation

Segev, Re'em, Sub-Optimal Justification and Justificatory Defenses (February 1, 2008). Criminal Law and Philosophy. Vol. 4, No. 1, pp. 57-76, 2010. Available at SSRN: https://ssrn.com/abstract=2210469

Re'em Segev (Contact Author)

Hebrew University of Jerusalem – Faculty of Law ( email )

Mount Scopus
Jerusalem, 91905
Israel

HOME PAGE: http://en.law.huji.ac.il/people/reem-segev

Register to save articles to
your library

Register

Paper statistics

Downloads
76
Abstract Views
321
rank
317,044
PlumX Metrics