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An Attitudinal Theory of Excuse

87 Pages Posted: 31 May 2006  

Peter K. Westen

University of Michigan Law School

Abstract

The mother lode of criminal law scholarship is a unitary theory of excuses, that is, a normative account as to why a person who engages in conduct that a criminal statute prohibits ought nevertheless not be blamed for it.

After defining excuse against commentators who argue that it cannot be defined as a coherent and distinct normative concept, and after criticizing competing theories of excuse, I advance a theory of excuse that inheres in what states invariably declare to be true of defendants when states convict defendants of criminal offenses - namely, a declaration, whether explicit or implicit, that the defendants were motivated by disparaging attitudes toward what the criminal statutes at hand declare to be the legitimate interests of persons.

I argue that the feature that renders persons normatively blameless - and, typically, legally blameless, too - for engaging in conduct that criminal statutes prohibit is any state of mind or absence of state of mind that negates such an attitude. A person is normatively blameless if, despite engaging in conduct that a statute prohibits, he was either motivated by proper respect for interests that the statute seeks to protect or not motivated by improper respect.

Suggested Citation

Westen, Peter K., An Attitudinal Theory of Excuse. Law and Philosophy, Vol. 25, pp. 289-375, 2006. Available at SSRN: https://ssrn.com/abstract=905133

Peter Westen (Contact Author)

University of Michigan Law School ( email )

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