An Attitudinal Theory of Excuse

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.