Rule and Exception in Criminal Law
Posted: 20 Apr 2007
The advent of new defensive claims, such as the battered woman's defense and the cultural defense, has led to debates that invoke a variety of important legal and political principles on both sides of the issues. But asking whether we ought to adopt new defenses in the criminal law raises a more fundamental question: why do we ever adopt defenses in the criminal law? Two simple reasons come to mind - (1) defenses may be necessary to our system of criminal law, or (2) defenses may be good for our system of criminal law. In this Article, I consider what such answers mean by exploring the relationship between offenses and defenses.
I begin with an assumption that is implicit in much of criminal law scholarship: that harm-prevention is a central principle animating modern criminal law. Conceptualizing the criminal law according to the harm-prevention principle, I hypothesize that some defenses in fact further harm-prevention, thus making up part of the rules of the criminal law, while other defenses constitute exceptions embodying principles that outweigh society's interest in preventing harm. Recognizing this dynamic between offense and defense facilitates evaluation of new defensive claims by clarifying the legal context for their debates and the interest-balancing that such evaluation entails.
Keywords: criminal law, legal theory, offenses, defenses, self defense, insanity defense, battered woman's defense, cultural defense
Suggested Citation: Suggested Citation