Unwitting Justification

31 Pages Posted: 14 Nov 2018 Last revised: 9 Jan 2019

See all articles by Peter K. Westen

Peter K. Westen

University of Michigan Law School

Date Written: October 22, 2018


An assailant is on the verge of shooting a hated rival, Jones, when Jones, oblivious to the attack, decides in that instant to kill his assailant, thereby becoming what commentators call an “unknowing self-defender” or “unwittingly justified actor.” Under the terms of the Model Penal Code Jones is at the very least guilty of an impossibility attempt because he satisfies all the elements of attempted murder under the Code. The question that has divided commentators since George Fletcher and Paul Robinson’s debate it in the 1970s is whether Jones is also guilty of the completed crime of murder and whether the latter is the more appropriate charge. Anthony Duff, for one, has said that the debate seems “irresoluble.” The debate is, indeed, irresoluble but only so long as commentators ignore the issue on which the answer necessarily turns, namely, why resulting harms matter in criminal law -- that is, why criminal law distinguishes in name and penalty between impossibility attempts and complete crimes. Commentators differ regarding why resulting harm matters. I examine what I regard as the most promising account, one that originates with Plato. Based on Plato’s account, I argue that most, of not all, acts of unwitting justification should be punished as impossibility attempts rather than as completed crimes.

Keywords: justification, self-defense, impossibility attempts

Suggested Citation

Westen, Peter K., Unwitting Justification (October 22, 2018). San Diego Law Review, Vol. 55, No. 2 (2018): 419-448, U of Michigan Public Law Research Paper No. 625, Available at SSRN: https://ssrn.com/abstract=3271129

Peter K. Westen (Contact Author)

University of Michigan Law School ( email )

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