The Characters of Excuse
Posted: 29 Feb 2008
Two theories of excuses are currently popular in criminal law theory: the character theory and the capacity theory. In the former the defendant claims that although he performed a wrongful action, it did not properly reflect his character. In the latter, the defendant claims that although he performed a wrongful action he lacked the capacity to do otherwise. In John Gardner's view neither claim is adequate to provide the defendant with an excuse. Excuses, Gardner thinks, are only appropriate where the defendant can claim that he has lived up to the standards reasonably to be expected of a person performing the role that the defendant was performing. The view defended here is that whilst the Gardner style excuse is an excuse, both of the claims that he rejects properly ground excuses in the criminal law as well. Furthermore, they do not exhaust the field of excuses. Excuses are best seen as defences that mop up where an application of the other rules of the criminal law would not adequately serve its principles. No further ordering of excuses is possible.
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