The Continuity of Justification Defenses

Abstract

This Article presents a legal theory of legal justification. It examines the elements of offense definitions and justification defenses--or, more accurately, the conjunctions and disjunctions between these elements--to resolve a longstanding issue in the theory of legal punishment. The unjustified actor who believes she is justified seems to deserve an acquittal, while the justified actor who does not know he is justified seems to deserve conviction. But we face a dilemma: we seem to have to acquit both or convict both. This Article shows a principled way to rule the mistakenly unjustified actor within, and the mistakenly justified actor out of, the class of justified actors, thus matching our legal judgments to our moral judgments concerning these cases.

The route to this conclusion is as important as the conclusion itself. Much of the argument employs tables of elements and the conjunctions and disjunctions between them. These tables are illuminating--surprisingly so for such a simple device. This elements analysis serves to demonstrate some elementary points, such as the existence of a genuine difference between offenses and justification defenses. And it can demonstrate more complex and surprising points, such as the unavailability--on any view of wrongdoing and justification--of attempt liability as a second best solution to the dilemma presented by mistakes in justification.

The Article also uses Aristotelian punishment theory as a complement to elements analysis. The use of virtue ethics is not simply a matter of equating solutions to moral issues with solutions to legal issues. That would not be the legal analysis of a legal problem that is promised here. Instead, the justification defenses are portrayed as the product of the specification of competing ends--a distinctively Aristotelian model of deliberations on ends-- making the case that the justification defenses, even taken as permissions that cancel the prohibition for reasons that conflict with the prohibition, are continuous with criminal offenses.