A unified excuse of preemptive self-protection

Notre Dame Law Review

Volumn 74, Issue 5, 1999, Pages 1475-1505

  Alexander, Larry ^a  

^a UNIVERSITY OF SAN DIEGO   (United States)

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EID: 0033447242     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (91)

1. See, e.g., KENT GREENAWALT, PRIVATE CONSCIENCES AND PUBLIC REASONS (1995); KENT GREENAWALT, RELIGIOUS CONVICTIONS AND POLITICAL CHOICE (1988).
2. See, e.g., KENT GREENAWALT, PRIVATE CONSCIENCES AND PUBLIC REASONS (1995); KENT GREENAWALT, RELIGIOUS CONVICTIONS AND POLITICAL CHOICE (1988).
3. See, e.g., KENT GREENAWALT, FIGHTING WORDS: INDIVIDUALS, COMMUNITIES, AND LIBERTIES OF SPEECH (1995); KENT GREENAWALT, SPEECH, CRIME, AND THE USES OF LANGUAGE (1989).
4. See, e.g., KENT GREENAWALT, FIGHTING WORDS: INDIVIDUALS, COMMUNITIES, AND LIBERTIES OF SPEECH (1995); KENT GREENAWALT, SPEECH, CRIME, AND THE USES OF LANGUAGE (1989).
5. See, e.g., KENT GREENAWALT, CONFLICTS OF LAW AND MORALITY (1987).
6. See, e.g., KENT GREENAWALT, LAW AND OBJECTIVITY (1992); Kent Greenawalt, From the Bottom Up, 82 CORNELL L. REV. 994 (1997).
7. See, e.g., KENT GREENAWALT, LAW AND OBJECTIVITY (1992); Kent Greenawalt, From the Bottom Up, 82 CORNELL L. REV. 994 (1997).
8. See, e.g., Kent Greenawalt, Silence as a Moral and Constitutional Right, 23 WM. & MARY L. REV. 15 (1981) (analyzing the right to remain silent).
9. See Kent Greenawalt, Distinguishing Justifications from Excuses, 49 LAW & CONTEMP. PROBS., Summer 1986, at 89; Kent Greenawalt, The Perplexing Borders of Justification and Excuse, 84 COLUM. L. REV. 1897 (1984) [hereinafter Greenawalt, Perplexing Borders].
10. See Kent Greenawalt, Distinguishing Justifications from Excuses, 49 LAW & CONTEMP. PROBS., Summer 1986, at 89; Kent Greenawalt, The Perplexing Borders of Justification and Excuse, 84 COLUM. L. REV. 1897 (1984) [hereinafter Greenawalt, Perplexing Borders].
11. See Kent Greenawalt, Distinguishing Justifications from Excuses, 49 LAW & CONTEMP. PROBS., Summer 1986, at 89; Kent Greenawalt, The Perplexing Borders of Justification and Excuse, 84 COLUM. L. REV. 1897 (1984) [hereinafter Greenawalt, Perplexing Borders].
12. See People v. Murillo, 587 N.E.2d 1199, 1204 (Ill. App. Ct. 1992); State v. Abbott, 174 A.2d 881, 884 (N.J. 1961); JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW § 18.02 (2d ed. 1995).
13. See Murillo, 587 N.E.2d at 1204; 40 AM. JUR. 2D Homicide § 153 (1968); DRESSLER, supra note 7, § 18.02; WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW § 5.7(b) (2d ed. 1986).
14. See DRESSLER, supra note 7, § 18.03(d) (2).
15. See generally LAFAVE & SCOTT, supra note 8, § 5.8 (b).
16. See Murillo, 587 N.E.2d at 1204; LAFAVE & SCOTT, supra note 8, § 5.7(d).
17. See MODEL PENAL CODE § 3.04(1) (Proposed Official Draft 1962). The Model Penal Code actually qualifies the "immediately necessary" language by restricting the use of defensive force to that "immediately necessary to defend against unlawful force on the present occasion." Id. The referent of "present occasion" - to the necessity of force or, alternatively, to the unlawful attack - is unclear. If it is to the latter, then depending on the meaning of "present occasion," the difference between the Model Penal Code's formulation and that of the common law may not be very significant.
18. There are two interesting variants of this scenario. In one, A has announced his intention to kill whomever is sleeping with his wife. When A goes inside his office, he will find a note from his wife confessing to an affair with B. A also has a loaded gun in his office. B knows both these facts and remains, as before, trapped in his wheelchair, but with a gun he can use effectively only now, as A is entering the office. If the probability of attack remains the same as in the variant in the text, may B shoot A now? The third variant is the same as the second, except that A does not know of his wife's affair with B. A does, however, have a violent nature, and it is quite likely - as likely as in the other variants - that he will form the intent to kill B and act on it once he enters his office and discovers his wife's confession note. May B shoot A as A is entering the office, before A forms a murderous intent? If the probabilities are the same in all three variants, then what distinguishes them is that in the variant in the text, A upon entering his office intends to kill B; in the second variant, A upon entering his office intends to kill whoever is sleeping with his wife; and in the third variant, A upon entering his office has only a murderous disposition, but no murderous intention, toward any cuckolders. One might argue that at least in the first variant, and perhaps in the second, A is actually acting culpably, whereas in the third, A is only likely to act culpably. I have expressed doubts elsewhere about whether incomplete attempts - which is what the first and second variants might be considered (although the second is problematic) - are culpable acts, given that the potential harm remains fully in control of the actor. See Larry Alexander & Kimberly Kessler, Mens Rea and Inchoate Crimes, 87 J. CRIM. L. & CRIMINOLOGY 1138, 1168-74 (1997); see also infra Part IV.A.1.
19. I make a quick stab at answering this question. See infra Part IV.A.4.
20. See Commonwealth v. Emmons, 43 A.2d 568, 569 (Pa. Super. Ct. 1945); MODEL PENAL CODE § 3.06(3) (d) (Proposed Official Draft 1962); 40 AM. JUR. 2D Homicide § 153 (1968).
21. Ironically, as Leo Katz has pointed out to me in private correspondence, one is not required to turn over one's wallet to a mugger who demands "your money or your life," even if one expects a deadly attack to follow and intends to respond with lethal force. In other words, one may assume the mugger will act rightfully and not launch the threatened attack. That permissible assumption then entitles one to use deadly force, ultimately in defense of one's wallet. If one generalizes this permission to stand one's ground (keep one's wallet), the retreat requirement dissolves. See e-mail correspondence from Leo Katz to Larry Alexander (Jan. 3, 1999) (on file with author).
22. See, e.g., State v. Palomarez, 657 P.2d 899 (Ariz. Ct. App. 1982) (holding that retreat is not required).
23. See ARIZ. REV. STAT. ANN. § 13-404 (West 1998); FLA. STAT. ANN. § 776.012 (West 1998). It is interesting to note that Florida's statute appears to require proportionality but not retreat; however, the courts have read a retreat requirement into the statute. See Baker v. State, 506 So. 2d 1056, 1058 (Fla. Dist. Ct. App. 1987).
24. See GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 870-75 (1978); see also EDMUND COKE, THIRD INSTITUTE *55 (1644).
25. Query: If those seeking my apples are rational - though not necessarily culpable (they may believe mistakenly that the apples are theirs) - may I do more than place them in a dangerous place? That is, may I construct a dangerous place, such as digging a moat around my apple trees and filling it with sharks? (Assume I post notice warning of the sharks. Would this be morally required if the apple pickers were always culpable as well as rational?)
26. See MODEL PENAL CODE § 3.06(3) (d) (Proposed Official Draft 1962); cf. DRESSLER, supra note 7, § 20.02(B) (3) (stating that deadly force is never permitted to defend property, but can be transformed by circumstances into a separate right to use deadly force).
27. See supra note 9 and accompanying text.
28. See MODEL PENAL CODE § 3.09(3) (Proposed Official Draft 1962); DRESSLER, supra note 7, § 18.06(c). See generally Jeff McMahan, Self-Defense and the Problem of the Innocent Attacker, 104 ETHICS 252 (1994).
29. See Larry Alexander, Self-Defense, Justification, and Excuse, 22 PHIL. & PUB. AFF. 53 (1993).
30. For arguments focusing on innocent aggressors that expose the weaknesses of two accounts of why self-defense is justified, see Tziporah Kasachkoff, Killing in Self-Defense: An Unquestionable or Problematic Defense?, 17 LAW & PHIL. 509, 518-26 (1998). Kasachkoff assumes self-defense against innocent aggressors is justified; however, she quarrels with standard accounts for why this is so. See id.
31. See LAFAVE & SCOTT, supra note 8, § 5.7(c).
32. See MODEL PENAL CODE § 3.09(2) (Proposed Official Draft 1962).
33. Here I part company with Kent Greenawalt, who sides with the majority opinion. See Greenawalt, Perplexing Borders, supra note 6, at 1903; see also Kent Greenawalt, Justifications, Excuses, and a Model Penal Code for Democratic Societies, 17 CRIM JUST. ETHICS 14, 20-23 (1998). There are some parallels, but also some significant differences, between my position on self-defense in cases of mistake, innocent aggression, etc., and Claire Finkelstein's position.
34. Here I part company with Kent Greenawalt, who sides with the majority opinion. See Greenawalt, Perplexing Borders, supra note 6, at 1903; see also Kent Greenawalt, Justifications, Excuses, and a Model Penal Code for Democratic Societies, 17 CRIM JUST. ETHICS 14, 20-23 (1998). There are some parallels, but also some significant differences, between my position on self-defense in cases of mistake, innocent aggression, etc., and Claire Finkelstein's position.
35. See Claire O. Finkelstein, Self-Defense as a Rational Excuse, 57 U. PITT. L. REV. 621 (1996).
36. See Paul H. Robinson, Criminal Law Defenses: A Systematic Analysis, 82 COLUM. L. REV. 199, 239-40 (1982).
37. See MODEL PENAL CODE §§ 3.04(1), 3.11(1) (Proposed Official Draft 1962). Paul Robinson believes that the Model Penal Code actually backs away from this result by adopting the objective view of justification for cases such as this. See Paul H. Robinson, Competing Theories of Justification: Deeds v. Reasons, in HARM AND CULPABILITY 45-70 (A.P. Simester & A.T.H. Smith eds., 1996) (referring to MODEL PENAL CODE § 3.11 (1), cmt. 159 (1985)). The Model Penal Code does clearly adopt the objective approach insofar as it forbids third party assistance of reasonably mistaken self-defenders, at least when the third party is aware of the mistake. See MODEL PENAL CODE § 3.05(1) (Proposed Official Draft 1962). On the other hand, it permits third parties to resist objectively justified law violators who fail to realize that they are justified. See Robinson, supra note 30, at 59-60. For example, if a third party sees A about to divert a river and flood B's, farm, and the third party knows both that diverting the river will save a town downstream from flooding and that A is unaware of this, the third party may prevent A from diverting the river because A is unaware of the justificatory facts and therefore unjustified under the objective approach of the Model Penal Code. Robinson believes that although the Model Penal Code drafters would not welcome this result, their subjective approach to justification leads to it. See id. Russell Christopher, in a series of articles, has criticized Robinson's objective approach to justification on the ground that it leads to paradoxes. See Russell Christopher, Mistake of Fact in the Objective Theory of Justification: Do Two Rights Make Two Wrongs Make Two Rights . . . ?, 85 J. CRIM. L. & CRIMINOLOGY 295 (1994); Russell Christopher, Self-Defense and Defense of Others, 27 PHIL. & PUB. AFF. 123, 128-30 (1997); Russell Christopher, Unknowing Justification and the Logical Necessity of the Dadson Principle in Self-Defense, 15 OXFORD J. LEG. STUD. 229 (1995); see also Russell Christopher, Self-Defense and Objectivity: A Reply to Judith Jarvis Thomson, 1 BUFF. CRIM. L. REV. 537 (1998). All Christopher has shown, however, is that sometimes morality cannot choose among lives based on either numbers or culpability, and must break justificatory "ties" on some other bases. Moreover, in the examples he uses, the culpable can all be punished as attempters even if they are objectively justified, and only third parties seeking to intervene must worry on which side justification truly lies. See infra notes 31-32 and accompanying text. Perhaps the strongest case for a subjective account of justification is with regard to police conduct. Suppose, for example, police officer P reasonably believes that V, who is fleeing arrest, is armed and dangerous. Current law permits P to use deadly force against V. See, e.g., Model Penal Code § 3.07(2) (b) (Proposed Official Draft 1962). Suppose, however, that in addition, third party T knows Vis hard of hearing (and is not "fleeing"), and is also unarmed. Should The able to use force against Pto prevent P's killing V? On the objective view of justification, P is excused but not justified. On the subjective view, P is justified. The latter view would presumably oppose T's intervention. The objective view at least leaves the matter open.
38. See MODEL PENAL CODE §§ 3.04(1), 3.11(1) (Proposed Official Draft 1962). Paul Robinson believes that the Model Penal Code actually backs away from this result by adopting the objective view of justification for cases such as this. See Paul H. Robinson, Competing Theories of Justification: Deeds v. Reasons, in HARM AND CULPABILITY 45-70 (A.P. Simester & A.T.H. Smith eds., 1996) (referring to MODEL PENAL CODE § 3.11 (1), cmt. 159 (1985)). The Model Penal Code does clearly adopt the objective approach insofar as it forbids third party assistance of reasonably mistaken self-defenders, at least when the third party is aware of the mistake. See MODEL PENAL CODE § 3.05(1) (Proposed Official Draft 1962). On the other hand, it permits third parties to resist objectively justified law violators who fail to realize that they are justified. See Robinson, supra note 30, at 59-60. For example, if a third party sees A about to divert a river and flood B's, farm, and the third party knows both that diverting the river will save a town downstream from flooding and that A is unaware of this, the third party may prevent A from diverting the river because A is unaware of the justificatory facts and therefore unjustified under the objective approach of the Model Penal Code. Robinson believes that although the Model Penal Code drafters would not welcome this result, their subjective approach to justification leads to it. See id. Russell Christopher, in a series of articles, has criticized Robinson's objective approach to justification on the ground that it leads to paradoxes. See Russell Christopher, Mistake of Fact in the Objective Theory of Justification: Do Two Rights Make Two Wrongs Make Two Rights . . . ?, 85 J. CRIM. L. & CRIMINOLOGY 295 (1994); Russell Christopher, Self-Defense and Defense of Others, 27 PHIL. & PUB. AFF. 123, 128-30 (1997); Russell Christopher, Unknowing Justification and the Logical Necessity of the Dadson Principle in Self-Defense, 15 OXFORD J. LEG. STUD. 229 (1995); see also Russell Christopher, Self-Defense and Objectivity: A Reply to Judith Jarvis Thomson, 1 BUFF. CRIM. L. REV. 537 (1998). All Christopher has shown, however, is that sometimes morality cannot choose among lives based on either numbers or culpability, and must break justificatory "ties" on some other bases. Moreover, in the examples he uses, the culpable can all be punished as attempters even if they are objectively justified, and only third parties seeking to intervene must worry on which side justification truly lies. See infra notes 31-32 and accompanying text. Perhaps the strongest case for a subjective account of justification is with regard to police conduct. Suppose, for example, police officer P reasonably believes that V, who is fleeing arrest, is armed and dangerous. Current law permits P to use deadly force against V. See, e.g., Model Penal Code § 3.07(2) (b) (Proposed Official Draft 1962). Suppose, however, that in addition, third party T knows Vis hard of hearing (and is not "fleeing"), and is also unarmed. Should The able to use force against Pto prevent P's killing V? On the objective view of justification, P is excused but not justified. On the subjective view, P is justified. The latter view would presumably oppose T's intervention. The objective view at least leaves the matter open.
39. See MODEL PENAL CODE §§ 3.04(1), 3.11(1) (Proposed Official Draft 1962). Paul Robinson believes that the Model Penal Code actually backs away from this result by adopting the objective view of justification for cases such as this. See Paul H. Robinson, Competing Theories of Justification: Deeds v. Reasons, in HARM AND CULPABILITY 45-70 (A.P. Simester & A.T.H. Smith eds., 1996) (referring to MODEL PENAL CODE § 3.11 (1), cmt. 159 (1985)). The Model Penal Code does clearly adopt the objective approach insofar as it forbids third party assistance of reasonably mistaken self-defenders, at least when the third party is aware of the mistake. See MODEL PENAL CODE § 3.05(1) (Proposed Official Draft 1962). On the other hand, it permits third parties to resist objectively justified law violators who fail to realize that they are justified. See Robinson, supra note 30, at 59-60. For example, if a third party sees A about to divert a river and flood B's, farm, and the third party knows both that diverting the river will save a town downstream from flooding and that A is unaware of this, the third party may prevent A from diverting the river because A is unaware of the justificatory facts and therefore unjustified under the objective approach of the Model Penal Code. Robinson believes that although the Model Penal Code drafters would not welcome this result, their subjective approach to justification leads to it. See id. Russell Christopher, in a series of articles, has criticized Robinson's objective approach to justification on the ground that it leads to paradoxes. See Russell Christopher, Mistake of Fact in the Objective Theory of Justification: Do Two Rights Make Two Wrongs Make Two Rights . . . ?, 85 J. CRIM. L. & CRIMINOLOGY 295 (1994); Russell Christopher, Self-Defense and Defense of Others, 27 PHIL. & PUB. AFF. 123, 128-30 (1997); Russell Christopher, Unknowing Justification and the Logical Necessity of the Dadson Principle in Self-Defense, 15 OXFORD J. LEG. STUD. 229 (1995); see also Russell Christopher, Self-Defense and Objectivity: A Reply to Judith Jarvis Thomson, 1 BUFF. CRIM. L. REV. 537 (1998). All Christopher has shown, however, is that sometimes morality cannot choose among lives based on either numbers or culpability, and must break justificatory "ties" on some other bases. Moreover, in the examples he uses, the culpable can all be punished as attempters even if they are objectively justified, and only third parties seeking to intervene must worry on which side justification truly lies. See infra notes 31-32 and accompanying text. Perhaps the strongest case for a subjective account of justification is with regard to police conduct. Suppose, for example, police officer P reasonably believes that V, who is fleeing arrest, is armed and dangerous. Current law permits P to use deadly force against V. See, e.g., Model Penal Code § 3.07(2) (b) (Proposed Official Draft 1962). Suppose, however, that in addition, third party T knows Vis hard of hearing (and is not "fleeing"), and is also unarmed. Should The able to use force against Pto prevent P's killing V? On the objective view of justification, P is excused but not justified. On the subjective view, P is justified. The latter view would presumably oppose T's intervention. The objective view at least leaves the matter open.
40. See MODEL PENAL CODE §§ 3.04(1), 3.11(1) (Proposed Official Draft 1962). Paul Robinson believes that the Model Penal Code actually backs away from this result by adopting the objective view of justification for cases such as this. See Paul H. Robinson, Competing Theories of Justification: Deeds v. Reasons, in HARM AND CULPABILITY 45-70 (A.P. Simester & A.T.H. Smith eds., 1996) (referring to MODEL PENAL CODE § 3.11 (1), cmt. 159 (1985)). The Model Penal Code does clearly adopt the objective approach insofar as it forbids third party assistance of reasonably mistaken self-defenders, at least when the third party is aware of the mistake. See MODEL PENAL CODE § 3.05(1) (Proposed Official Draft 1962). On the other hand, it permits third parties to resist objectively justified law violators who fail to realize that they are justified. See Robinson, supra note 30, at 59-60. For example, if a third party sees A about to divert a river and flood B's, farm, and the third party knows both that diverting the river will save a town downstream from flooding and that A is unaware of this, the third party may prevent A from diverting the river because A is unaware of the justificatory facts and therefore unjustified under the objective approach of the Model Penal Code. Robinson believes that although the Model Penal Code drafters would not welcome this result, their subjective approach to justification leads to it. See id. Russell Christopher, in a series of articles, has criticized Robinson's objective approach to justification on the ground that it leads to paradoxes. See Russell Christopher, Mistake of Fact in the Objective Theory of Justification: Do Two Rights Make Two Wrongs Make Two Rights . . . ?, 85 J. CRIM. L. & CRIMINOLOGY 295 (1994); Russell Christopher, Self-Defense and Defense of Others, 27 PHIL. & PUB. AFF. 123, 128-30 (1997); Russell Christopher, Unknowing Justification and the Logical Necessity of the Dadson Principle in Self-Defense, 15 OXFORD J. LEG. STUD. 229 (1995); see also Russell Christopher, Self-Defense and Objectivity: A Reply to Judith Jarvis Thomson, 1 BUFF. CRIM. L. REV. 537 (1998). All Christopher has shown, however, is that sometimes morality cannot choose among lives based on either numbers or culpability, and must break justificatory "ties" on some other bases. Moreover, in the examples he uses, the culpable can all be punished as attempters even if they are objectively justified, and only third parties seeking to intervene must worry on which side justification truly lies. See infra notes 31-32 and accompanying text. Perhaps the strongest case for a subjective account of justification is with regard to police conduct. Suppose, for example, police officer P reasonably believes that V, who is fleeing arrest, is armed and dangerous. Current law permits P to use deadly force against V. See, e.g., Model Penal Code § 3.07(2) (b) (Proposed Official Draft 1962). Suppose, however, that in addition, third party T knows Vis hard of hearing (and is not "fleeing"), and is also unarmed. Should The able to use force against Pto prevent P's killing V? On the objective view of justification, P is excused but not justified. On the subjective view, P is justified. The latter view would presumably oppose T's intervention. The objective view at least leaves the matter open.
41. See MODEL PENAL CODE §§ 3.04(1), 3.11(1) (Proposed Official Draft 1962). Paul Robinson believes that the Model Penal Code actually backs away from this result by adopting the objective view of justification for cases such as this. See Paul H. Robinson, Competing Theories of Justification: Deeds v. Reasons, in HARM AND CULPABILITY 45-70 (A.P. Simester & A.T.H. Smith eds., 1996) (referring to MODEL PENAL CODE § 3.11 (1), cmt. 159 (1985)). The Model Penal Code does clearly adopt the objective approach insofar as it forbids third party assistance of reasonably mistaken self-defenders, at least when the third party is aware of the mistake. See MODEL PENAL CODE § 3.05(1) (Proposed Official Draft 1962). On the other hand, it permits third parties to resist objectively justified law violators who fail to realize that they are justified. See Robinson, supra note 30, at 59-60. For example, if a third party sees A about to divert a river and flood B's, farm, and the third party knows both that diverting the river will save a town downstream from flooding and that A is unaware of this, the third party may prevent A from diverting the river because A is unaware of the justificatory facts and therefore unjustified under the objective approach of the Model Penal Code. Robinson believes that although the Model Penal Code drafters would not welcome this result, their subjective approach to justification leads to it. See id. Russell Christopher, in a series of articles, has criticized Robinson's objective approach to justification on the ground that it leads to paradoxes. See Russell Christopher, Mistake of Fact in the Objective Theory of Justification: Do Two Rights Make Two Wrongs Make Two Rights . . . ?, 85 J. CRIM. L. & CRIMINOLOGY 295 (1994); Russell Christopher, Self-Defense and Defense of Others, 27 PHIL. & PUB. AFF. 123, 128-30 (1997); Russell Christopher, Unknowing Justification and the Logical Necessity of the Dadson Principle in Self-Defense, 15 OXFORD J. LEG. STUD. 229 (1995); see also Russell Christopher, Self-Defense and Objectivity: A Reply to Judith Jarvis Thomson, 1 BUFF. CRIM. L. REV. 537 (1998). All Christopher has shown, however, is that sometimes morality cannot choose among lives based on either numbers or culpability, and must break justificatory "ties" on some other bases. Moreover, in the examples he uses, the culpable can all be punished as attempters even if they are objectively justified, and only third parties seeking to intervene must worry on which side justification truly lies. See infra notes 31-32 and accompanying text. Perhaps the strongest case for a subjective account of justification is with regard to police conduct. Suppose, for example, police officer P reasonably believes that V, who is fleeing arrest, is armed and dangerous. Current law permits P to use deadly force against V. See, e.g., Model Penal Code § 3.07(2) (b) (Proposed Official Draft 1962). Suppose, however, that in addition, third party T knows Vis hard of hearing (and is not "fleeing"), and is also unarmed. Should The able to use force against Pto prevent P's killing V? On the objective view of justification, P is excused but not justified. On the subjective view, P is justified. The latter view would presumably oppose T's intervention. The objective view at least leaves the matter open.
42. See Larry Alexander, Crime and Culpability, 5 J. CONTEMP. LEGAL ISSUES 1, 13 (1994).
43. See generally id.
44. Kent Greenawalt would deem the unknowingly justified actor guilty of the completed crime rather than an attempt because he finds no relevant difference between that offender and those who are unjustified. See Greenawalt, supra note 28, at 24. Greenawalt, however, is assuming that attempts should be punished less than completed crimes. Perhaps the strongest argument on behalf of deeming the unknowingly justified offender guilty of the successful crime is not his culpability - an attempter is fully culpable - but is, rather, the fact that justifications are at bottom permissions, not mandates, and that the state of the world in which the permission is exercised is not morally superior to the state of the world in which it is not. See infra note 61.
45. See abo infra note 61.
46. See MODEL PENAL CODE § 2.09(1) (Proposed Official Draft 1962).
47. But see LAFAVE & SCOTT, supra note 8, § 5.3. The position taken by Profs. Wayne LaFave and Austin Scott - that duress is a justification - is criticized by Dressier. See Joshua Dressier, Exegesis of the Law of Duress: Justifying the Excuse and Searching for Its Proper Limits, 62 S. CAL. L. REV. 1331, 1350-53 (1989).
48. See, e.g., Peter Arenella, Character, Choice, and Moral Agency: The Relevance of Character to Our Moral Culpability Judgments, 7 Soc. PHIL. & POL'Y 59, 77-83 (1990).
49. See id.; Michael S. Moore, Choice, Character, and Excuse, 7 Soc. PHIL. & POL'Y 29 (1990).
50. See Stephen J. Morse, Immaturity and Irresponsibility, 88 J. CRIM. L. & CRIMINOLOGY 15, 56-57 (1998).
51. That claim could, of course, be characterized as asserting an "inability" to will in accordance with the results of impartial practical reasoning. That is, the defendant could say that the prospect of sacrificing his own interests, even though warranted by impartial practical reasoning, undermined his capacity to will compliance with the law. I do not see any theoretical advantage to this characterization of the claim. Moreover, I think the characterization is, in fact, misleading.
52. See Lawrence A. Alexander, Justification and Innocent Aggressors, 33 WAYNE L. REV. 1177, 1187 (1987);
53. Claire O. Finkelstein, Duress: A Philosophical Account of the Defense in Law, 37 ARIZ. L. REV. 251, 280-81 (1995).
54. See DRESSLER, supra note 7, § 23.04.
55. See MODEL PENAL CODE § 2.09(1) (Proposed Official Draft 1962).
56. See DRESSLER, supra note 7, § 23.01(B) ("[G]enerally speaking, a person will be acquitted of any offense except murder."); id. § 27.04(A).
57. See DRESSLER, supra note 7, § 23.05.
58. See id. § 23.01 (B).
59. See id. § 23.06.
60. See MODEL PENAL CODE § 2.09(1) (Proposed Official Draft 1962); DRESSLER, supra note 7, § 23.01 (B).
61. Evan Lee has pointed out in private conversation that extending the defense of duress to lawful threats would not only excuse the condemned's killing of the executioner, but would also excuse killing the executioner by close relatives of the condemned. He regards this as a reductio of the extension. Unless, however, when protecting himself or others close to him from a threat of harm, the person of reasonable firmness is supposed to have more ability to resist harming others when the threat is lawful than when it is unlawful, the extension stands on the same footing as the core of the excuse. Keep in mind that in cases of duress, the defendant often will have wrongfully if excusably victimized someone acting lawfully in order to save himself (the defendant) or others with whom he is close. If the lawabidingness of the victims does not bar the defense, it is hard to see why the lawfulness of the threat would do so. Alec Walen believes the unlawfulness limitation on duress can be supported by psychology. He argues that we find it easier to cope with a given problem if we view it as our problem rather than a problem that rightfully belongs to someone else but that has been unjustifiably forced upon us. See e-mail correspondence from Alec Walen to Larry Alexander (Jan. 20, 1999) (on file with author). I am skeptical that this is the case when what is at stake is victimizing an innocent third party.
62. See Judith Jarvis Thomson, The Trolley Problem, 94 YALE L.J. 1395 (1985).
63. See MODEL PENAL CODE § 2.09(1) (Proposed Official Draft 1962); LAFAVE & SCOTT, supra note 8, § 5.3.
64. Would B have a valid self-defense plea under the current formulation of the law? The Model Penal Code is unclear on this point. Section 3.04(1) limits defensive force to cases of threatened "unlawful force," which would appear to exclude the unlawful withholding of life-saving medicine. See MODEL PENAL CODE § 3.11(1) (Proposed Official Draft 1962) (defining "unlawful force"). But § 3.04(2)(b), which deals with the use of deadly force in self-defense, refers more generally to threats of death. See id. § 3.04(2)(b).
65. The one worker on the trolley siding, for example, would not be justified in shooting someone attempting to switch the trolley to save the five, but he could easily be excused under the excuse proposed here; that would mean in turn that the one throwing the switch would be excused under the same excuse in using force against the worker to protect himself, though he would also be justified because of the five lives he is trying to save. Likewise, if the trolley is heading toward the one worker, one would not be justified switching it to head toward the five, but one might be excused for doing so if the solitary worker were one's child.
66. See, e.g., Larry Alexander & Emily Sherwin, The Deceptive Nature of Rules, 142 U. PA. L. REV. 1191 (1994).
67. The personal nature of the justification would still render it excuse-like - that is, unjustified - insofar as third party intervenors are concerned. (They might have to intervene on the side of the two innocent aggressors rather than the one personally justified defender.)
68. At least they may not do so as a matter of justification. If the defendant were, say, a close family member, the third parties might themselves be able to invoke duress to excuse their aiding the defender rather than his attackers.
69. Another matter for speculation along these lines concerns social schemes that appropriate others in order to avoid great losses. Such schemes include conscription for the military. But they might also include mandatory organ pooling. Because they are appropriative, they cannot be justified, at least for libertarian liberals. But as with duress, which often involves appropriation, such schemes might be deemed "excused." Likewise, the surgeon who cuts up a healthy patient for organs to save five dying ones might be "excused" for such an appropriative act if the five patients were, say, his children.
70. See MODEL PENAL CODE § 3.02(1) (Proposed Official Draft 1962).
71. There will be cases when defendants are justified for having chosen the lesser evil but not excused under the excuse I have proposed here. For example, if A threatens to steal five dollars from B unless B stops and talks with A for a few minutes, and B is carrying life-saving medicine that is urgently needed at the hospital, B will be justified in harming A in order to proceed on his way, but he will not be excused: a "person of reasonable firmness" would have given up either five dollars or a few minutes of time rather than harm another.
72. Third party interventions, unless the third parties are themselves under duress, should always be governed by the lesser evils standard. Basically, when the lesser evils justification is present, the defendant is permitted (not mandated) to violate the criminal law for some net social benefit, the calculation of which should take account of the factors mentioned here. One way the factors might be taken into account is through general rules formulated ex ante rather than through case-by-case decisionmaking. Such general rules would, I would think, be sensitive to the factors I discuss. See Alexander, supra note 24, at 65-66.
73. This does not mean that one who is attacked by someone who appears to be a culpable aggressor may not retreat or use less force than would be permitted and thereby cede his rights to the culpable attacker. Even if self-defense against a culpable attacker or culpable attackers is "justified" and not merely excused, it is ordinarily a permission to act, not a mandate. See Finkelstein, supra note 28, at 642. (Things might be different for a third party who sees culpable aggressors attacking her child: she may have a legal duty to defend her child, not merely an excuse for doing so. See id. at 646-47.) The fact that the victim of a culpable attack has a permission rather than a mandate to resist - including, I would argue, a permission not to retreat and to use disproportionate force - raises a further question: if the victim does not care about defending his rights, but does want to kill or harm the aggressor for other reasons (for example, to harvest his organs and save others), may the victim harm the aggressor? And how can third parties aid victims of culpable aggression when they do not know whether the victims would exercise their permissions to resist and resist with disproportionate force? Justifications qua permissions pose these problems of whether the permission may be exercised only for the justifying reasons and whether third parties may employ the permission of the victim.
74. See Alexander & Kessler, supra note 13, at 1170-73.
75. Query: Does my position entail the possibility of a preemptive attack on someone whom we believe (beyond a certain threshold of probability) now intends to attack us, even though we think the risk that he will successfully attack us is barely greater than zero? If he is culpable, and there is some chance, however slight, that he will accomplish his evil intention, how can he have standing to object to our preemptive action?
76. Note the implications for the hypotheticals in note 13. See supra note 13. In the first hypothetical, A intends to kill whoever is sleeping with his wife, but he has not yet discovered that that person is B. Arguably, A is a culpable person if not yet a culpable actor. In the second hypothetical, A has no murderous intent, but B fears he will shortly acquire one. A is neither a culpable actor nor a culpable person at the moment preemptive action is contemplated. Even if A is equally dangerous in both hypotheticals, only in the first could B possibly be justified, as opposed to excused, in acting preemptively.
77. There is some dissent to this proposition that is worth noting. See, e.g., John M. Taurek, Should the Numbers Count?, 6 PHIL. & PUB. APT. 293 (1977); see also ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 33 (1974).
78. There is some dissent to this proposition that is worth noting. See, e.g., John M. Taurek, Should the Numbers Count?, 6 PHIL. & PUB. APT. 293 (1977); see also ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 33 (1974).
79. For responses to Taurek, see 1 F.M. KAMM, MORALTTY, MORTALITY 75-98 (1993); Derek Parfit, Innumerate Ethics, 7 PHIL. & PUB. AFF. 285 (1978).
80. For responses to Taurek, see 1 F.M. KAMM, MORALTTY, MORTALITY 75-98 (1993); Derek Parfit, Innumerate Ethics, 7 PHIL. & PUB. AFF. 285 (1978).
81. Obviously, the notion of culpability in this example is slightly different from that displayed in intending to attack or subject to risk. The workers would be culpable in, for example, placing themselves in the path of danger while understanding the danger, appreciating that their conduct might force a choice between their lives and the lives of others, and lacking a sufficient justification for their conduct.
82. However, one could argue for retaining the requirements of retreat and proportionality because of the uncertainties involved in a preemptive attack based on predicting a free and culpable human choice. See infra Part IV.A.4. For a view that supports the proportionality requirement, even if cases of culpable attack, see PHILLIP MONTAGUE, PUNISHMENT AS SOCIETAL SELF-DEFENSE 45-46 (1995). It should go without saying that if culpability is not a factor, then if the greater number can safely retreat, they must. And of course this means that if they cannot retreat, they are restricted to proportionate force. For in the absence of culpability, it is better that ten victims suffer some harm than that an innocent attacker suffer a greater harm. The general principle of the lesser evils justification is minimizing harm among the nonculpable, and this principle governs both the primary defender and third party defenders.
83. Many would dissent from this proposition to this extent: although C may not coerce A to use his labor or property to rescue B, C can grab A's property (but not his body) and use it himself to rescue B.
84. On this view, Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884), killing for the purpose of life-saving which involved cannibalism, was a case of perhaps excused but surely unjustified appropriation. On the other hand, United States v. Holmes, 26 F. Cas. 360 (C.C.E.D. Pa. 1842) (No. 15,383), which involved throwing overboard lifeboat occupants whose presence risked capsizing the boat, was a pure case of justification (greater numbers) because it involve no appropriation of the victims. Dudley and Stephens, in other words, is like the Surgeon hypothetical, whereas Holmes is like the Trolley hypothetical.
85. Thus, if someone culpably intends to force a game of Russian Roulette on one - with one live round in a six-chambered pistol - and I am certain of his culpable intent, I can preemptively use deadly force against him, even though there is some chance he will not go through with what he presently intends, and even though, if he does, there is only a sixteen percent chance of my being killed. On the other hand, if I know him to be insane and thus nonculpable, although I would probably be excused for killing him in self-defense, I would not be justified. Nor would a third party be justified in killing him to defend me. Note that I am assuming symmetry between the case where there is a high probability of attack but a low probability of the attack's success and the case where the probabilities are reversed.
86. Is the person who estimates the probability of attack to be above the threshold but who turns out to be incorrect (because, say, his victim was not intending to attack him), a justified self-defender or merely an excused one? The answer is important only insofar as a third party comes to the person's assistance in repelling or killing the putative attacker. If the third party assesses the facts the same way as the person he is assisting, then his status will be the same as that person's. If they are mistaken about the putative attacker, they will have a full defense if, had the facts been as they supposed, they would have been justified in acting preemptively against the putative attacker. If either's mistake is culpable, that party would be punished at the level of culpability of the mistake. And if the person who fears attack would only be excused, not justified, in the absence of mistake, then he - but not the third party - can claim an excuse regardless of the mistake. The third party, mistaken or not, cannot avail himself of the excuse. For a different approach, see Benjamin C. Zipursky, Self-Defense, Domination, and the Social Contract, 57 U. PITT. L. REV. 579, 603-04 (1996).
87. See Finkelstein, supra note 28, at 644-46.
88. See supra Part III.A.3.
89. See MODEL PENAL CODE § 2.09 (Proposed Official Draft 1962).
90. See Alexander, supra note 31.
91. See Greenawalt, Perplexing Borders, supra note 6.