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Punishment and Freedom$
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Alan Brudner

Print publication date: 2009

Print ISBN-13: 9780199207251

Published to Oxford Scholarship Online: September 2009

DOI: 10.1093/acprof:oso/9780199207251.001.0001

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Excuse

Excuse

Chapter:
(p.233) 7 Excuse
Source:
Punishment and Freedom
Author(s):

Alan Brudner

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199207251.003.0008

This chapter proposes a theory of excuse that, without blending it into exculpation, avoids the condonation of crime. The question it takes up is: given that neither compulsion by circumstances nor by human threats removes the legal reason for punishing, how can its exonerating force be rendered compatible with the state's general duty to punish the guilty? The chapter criticizes various proposals for reconciling excuse with the duty to punish the guilty, including the moral involuntariness theory, the concession to frailty theory, the conformity to moral expectation theory, and the suspension of law's threat theory. It then proposes a solution: moral blamelessness exonerates because it simulates the conditions for legal exculpation. Just as the exculpated actor acknowledges the legal norm of mutual respect for agents, so does the excused actor acknowledge the public reason of the self-sufficient political community of which the legal norm is a part. The chapter argues that this theory would excuse the altruistic no less than the self-preferring murderer. It also offers a unifying explanation for the excusing force of entrapment, due diligence, and officially-induced error. Finally, it explains partial excuses as moral analogues of partial exculpations.

Keywords:   excuse, necessity, duress, entrapment, due diligence, provocation, diminished responsibility

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