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Copyright (c) 1986 Northwestern School of Law
Journal of Criminal Law & Criminology

ARTICLE: Criminal Law: Reconstructing The Criminal Defenses: The Significance of Justification

Summer, 1986

77 J. Crim. L. & Criminology 277


Thomas Morawetz *


The intersection between morality and law is nowhere more evident than in the criminal defenses. The general notion underlying the criminal defenses is captured by the claim, "Yes, I have committed harm but there are decisive reasons why I should not be held to blame or punished for my action." 1 The harm involved is the kind of harm anticipated by the criminal law (taking life, doing injury, depriving one of property) and the defensive reasons are ones recognized by law. At the same time criminal defenses represent moral judgments. Each category of criminal defense mirrors and amplifies what is arguably a criterion for moral blamelessness 2 and every species of moral exculpation seems to demand legal recognition. 3

The familiar categories of defenses 4 -- self defense, duress, necessity, mistake, privilege, 5 intoxication -- are heterogeneous. The situations and sources of human action are varied and complex and there is no a priori reason to think that the bases of moral exculpation sort themselves into simple categories. At the same time, not just the law, but also human understanding, demands categorization, however Procrustean the result. The criminal defenses, with relatively little deformation, seem to sort themselves out into two groups, justifications and excuses. Privilege and self-defense are examples of justifications. The policeman, empowered to place suspects under arrest, may use minimal force and thus inflict harm but he does not thereby commit an assault. Rather, he is justified in using minimal force. Analogously, one may ...
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