Lesser Evils and Justification: A Less Close Look

29 Pages Posted: 30 Dec 2005

See all articles by Mitchell N. Berman

Mitchell N. Berman

University of Pennsylvania Law School


This contribution to a symposium issue on justification and excuse in the criminal law comments on an article by Larry Alexander. That article raises a host of important and challenging questions about that paradigmatic justification known both as the "lesser evils" defense and as the defense of necessity. Most centrally, it identifies three conceptions of the justificatory class of defenses: (1) that a justification simply reflects a permission - extended for whatever reason - to do what the criminal law otherwise forbids; (2) that a justification applies to conduct that realizes a lesser evil, or avoids a greater evil, than would have occurred had the defendant complied with the law; and (3) that a defense is a justification if and only if the conduct to which it applies may be aided by a third party. Although the first view - the "permission" conception - will likely strike many readers as common wisdom, Alexander's own ruminations about the proper shape of the necessity defense are actually premised on the second and third conceptions. This essay defends the permission conception of justifications against its competitors and teases out implications of this conception for the way that the necessity defense should accommodate defendants' actual beliefs and motivations.

Keywords: justification, excuse, necessity

Suggested Citation

Berman, Mitchell N., Lesser Evils and Justification: A Less Close Look. Law and Philosophy, Vol. 24, p. 681, 2005; U of Texas Law, Public Law Research Paper No. 84. Available at SSRN: https://ssrn.com/abstract=872904

Mitchell N. Berman (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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