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Principles and Values in Criminal Law and Criminal JusticeEssays in Honour of Andrew Ashworth$
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Lucia Zedner and Julian V. Roberts

Print publication date: 2012

Print ISBN-13: 9780199696796

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780199696796.001.0001

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On Justifications and Excuses

On Justifications and Excuses

Chapter:
(p.95) 7 On Justifications and Excuses
Source:
Principles and Values in Criminal Law and Criminal Justice
Author(s):

Andrew Simester

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199696796.003.0007

This chapter addresses the differences between justifications and excuses, their respective characters and basic structures. It argues that justifications and ‘rationale-based’ excuses such as duress are fundamentally similar, and that their differences have relatively few implications for the criminal law. It is often claimed that justifications are ‘about the act’ and excuses ‘about the actor’: but they are about both — and equally so. Both rationale-based excuses and justifications are personal, and impersonal, alike to the actor. While their differences track a categorical moral distinction about the normative status of an agent's conduct, the main driver of that difference is whether the agent's rationale for acting was, or was not, what Raz calls an ‘excluded’ reason. If not excluded, a justification may well lie. Even if excluded, it may ground an excuse. So there are key differences in how, morally speaking, the defendant's rationale is relevant to her exculpation. But that same rationale leads in either case to blameless acquittal. The starting point is the same. The end point is the same. There are some idiosyncratic stop signs, but basically the difference is the routes. It is argued that there is no fundamental difference of output in the criminal law, at least for individual defendants. Rather, from the perspective of the law, the main differential consequence regards actions by the state. State action may be justifiable, but it is inexcusable.

Keywords:   justification, rationale-based excuses, criminal law, state action

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