Jump to ContentJump to Main Navigation
Action and Value in Criminal Law$
Users without a subscription are not able to see the full content.

Stephen Shute, John Gardner, and Jeremy Horder

Print publication date: 1993

Print ISBN-13: 9780198258063

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198258063.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 20 August 2019

The Nature of Justification

The Nature of Justification

Chapter:
(p.175) The Nature of Justification
Source:
Action and Value in Criminal Law
Author(s):

GEORGE P. FLETCHER

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198258063.003.0008

The claim that justificatory elements are like positive elements of the offence — except that the former require the absence rather than the presence of a factual element — has an enduring attraction. It comes in two basic forms — a conceptual and a ‘positivist’ variation. This chapter argues against both of these variations in favour of a so-called ideal theory of justification. The ideal theory of justification holds that despite the nominal realization of the elements of the offence, the conduct is not really wrong, not a violation of the jus or the Law in the ideal sense of Recht, droit, diritto, derecho, and the analogous forms in other languages. A justified act conforms to the Right or the Law in a sense deeper than that captured in a legislative definition of an offence. A statutory definition should be understood as an approximation, by rule, of a principled understanding of wrongful conduct. It states the normal case of wrongdoing, but fails to account accurately for wrongdoing in the extraordinary cases that arise under conflict and under the pressure of circumstances. To deal with these extraordinary situations, we must appeal to claims of justification, such as self-defence and necessity. Under ordinary circumstances, taking the property of another without consent should be treated as theft. Under circumstances of necessity, this conventional definition breaks down; it must yield to an understanding, based on principle, that in an emergency, taking property as the lesser evil is not wrongful behaviour.

Keywords:   justification, ideal theory, statutory declaration, justified act, offence

Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs , and if you can't find the answer there, please contact us .