Copyright (c) 1994 Northwestern School of Law
Journal of Criminal Law & Criminology
CRIMINAL LAW: MISTAKE OF FACT IN THE OBJECTIVE THEORY OF JUSTIFICATION: DO TWO RIGHTS MAKE TWO WRONGS MAKE TWO RIGHTS ... ?
85 J. Crim. L. & Criminology 295
RUSSELL L. CHRISTOPHER *
"The most difficult problems in criminal theory are generated by dissonance between reality and belief, between the objective facts and the actor's subjective impression of the facts." 1 One particularly thorny instantiation of this difficulty is whether the use of defensive force by actors who reasonably, but mistakenly, believe that they are being attacked should be justified or only excused. 2 There are two main approaches to this problem of mistaken justification. The first approach is the common law or Anglo-American approach, 3 which views the justificatory circumstances from the subjective perceptions of the actor: force is eligible for justification if an actor believes it is necessary or justified (subjective theory of justification). 4 The second approach is the civil law or Continental approach which regards the justificatory circumstances from an objective viewpoint external from the actor: force is eligible for justification if it actually is necessary (objective theory of justification). 5 There are two principal versions of the Continental approach. Professor Paul Robinson champions a purely objective theory of justification, in which an actor's subjective perceptions and mental state are irrelevant. 6 Professor George Fletcher suggests a hybrid theory requiring both the actual necessity of an actor's force and an actor's subjective belief in the necessity of that force. 7 The subjective theory would justify an actor's mistaken use of force; either version of the objective theory would only excuse it.
Fletcher, lauded for resurrecting the justification-excuse distinction in modern criminal law, 8 contends that "ZY ...
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