Justifying the Distinction between Justifications and Power (Justifications vs. Power)

5 Journal of Criminal Law and Philosophy, 293-313 (2011)

21 Pages Posted: 20 Jan 2016

See all articles by Miriam Gur-Arye

Miriam Gur-Arye

Hebrew University of Jerusalem - Faculty of Law

Date Written: January 1, 2010

Abstract

The paper suggests that there are two different ways in which a legal system restricts an individual’s rights. It can either grant a power that revokes the legal protection of the right or it can acknowledge the infringement of a legal right and yet justify such an infringement by means of a criminal law justification. The distinction proposed by the paper has both expressive and practical implications and is useful in solving dilemmas arising in emergencies when constitutional constraints make it impossible to grant the power to revoke legal protection of a basic right. In some of these situations a criminal law justification might support infringement of such a right. This claim is demonstrated by analyzing the ruling of the German Constitutional Court concerning the shooting down of a hijacked airplane in circumstances similar to those of September 11.

Keywords: Criminal law, Power, Justifications, Shooting down of a hijacked airplane

Suggested Citation

Gur Arye, Miriam, Justifying the Distinction between Justifications and Power (Justifications vs. Power) (January 1, 2010). 5 Journal of Criminal Law and Philosophy, 293-313 (2011) , Available at SSRN: https://ssrn.com/abstract=2718168

Miriam Gur Arye (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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