Justification and Excuse, Law and Morality

Posted: 5 Feb 2004

See all articles by Mitchell N. Berman

Mitchell N. Berman

University of Pennsylvania Law School


For nearly a quarter of a century, the distinction between justification and excuse has proven almost an obsession among Anglo-American theorists of the criminal law. And the attention has appeared to pay dividends, as it has become one of the rare subjects on which such scholars have reached wide agreement: Justification defenses are said to apply when the actor's conduct was not morally wrongful; excuse defenses lie when the actor did engage in wrongful conduct but is not morally blameworthy. Consensus thus achieved, theorists have turned to subordinate questions, joining issue most notably on the question of whether justifications are "subjective" - turning upon the actor's reasons for acting - or "objective" - involving only facts independent of the actor's beliefs and motives.

This article seeks to demonstrate that the prevailing consensus is wrong. Drawing on the well-known distinction between conduct rules and decision rules, it argues further that the distinction between justification and excuse in the criminal law is only this: A justified action is not criminal, whereas an excused defendant has committed a criminal act but is not punishable. To readers only marginally acquainted with the relevant literature, this claim may seem far from extravagant, for occasional statements to the same effect can be found in the case law and commentary. In fact, however, theorists have not appreciated just how this formulation of the distinction differs from the orthodox one, nor what consequences follow. This article attempts to remedy that defect. One lesson of a systematic investigation of these competing views, for instance, is that the long-running debate over whether justifications, properly understood, are "subjective" or "objective" is misconceived. This is a debate over policy, I argue, not - as it so often purports to be - a matter of conceptual analysis. More generally, this exploration into justification and excuse constitutes a case study in the complex relationship between legal and moral reasoning, and highlights the importance of distinguishing arguments that advance substantive value judgments from those that purport to analyze our conceptual apparatus. It may be that the latter enterprise is no less contestable or value-laden than the former (though perhaps it is). In any event, they are not the very same enterprise and a first step to clear thinking - in the criminal law and elsewhere - is to keep them distinct.

Keywords: justification, excuse, criminal theory, duress, provocation

Suggested Citation

Berman, Mitchell N., Justification and Excuse, Law and Morality. U of Texas Law, Public Law Research Paper No. 60. Available at SSRN: https://ssrn.com/abstract=493963

Mitchell N. Berman (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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