Justification and excuse, wrongdoing and culpability

Notre Dame Law Review

Volumn 74, Issue 5, 1999, Pages 1551-1572

  Hurd, Heidi M ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0033470070     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (57)

1. Kent Greenawalt, The Perplexing Borders of Justification and Excuse, 84 COLUM. L. REV. 1897 (1984).
2. Greenawalt, supra note 1, at 1919.
3. Id. at 1904.
4. For a theory of justification that reaches similar conclusions for similar reasons, see Joshua Dressier, New Thoughts About the Concept of Justification in the Criminal Law: A Critique of Fletcher's Thinking and Rethinking, 32 UCLA L. REV. 61 (1984). While Professor Greenawalt describes as justified all actions we would think of as "warranted," Dressier describes justified actions as those actions that are "tolerable." Both terms intend to capture the ordinary notion that people who act on good reasons cannot be blamed.
5. See Greenawalt, supra note 1, at 1898.
6. George Fletcher, for example, defends this test of justification. In his view, it follows from the truth of the "incompatibility thesis" - "that it is logically impossible for both sides in a conflict to be justified." GEORGE FLETCHER, RETHINKING CRIMINAL LAW 767 (1978); George Fletcher, The Right and the Reasonable, 98 HARV. L. REV. 949, 975 (1985) [hereinafter Fletcher, The Right and the Reasonable]; George Fletcher, Should Intolerable Prison Conditions Generate a Justification or an Excuse for Escape?, 26 UCLA L. REV. 1355, 1360 (1979) [hereinafter Fletcher, Prison Conditions]. According to the incompatibility thesis, if a person is justified in doing act A, then another cannot be justified in preventing A. For an extensive examination of whether our best moral theory might issue incompatible obligations to different actors, see HEIDI M. HURD, MORAL COMBAT (1999).
7. George Fletcher, for example, defends this test of justification. In his view, it follows from the truth of the "incompatibility thesis" - "that it is logically impossible for both sides in a conflict to be justified." GEORGE FLETCHER, RETHINKING CRIMINAL LAW 767 (1978); George Fletcher, The Right and the Reasonable, 98 HARV. L. REV. 949, 975 (1985) [hereinafter Fletcher, The Right and the Reasonable]; George Fletcher, Should Intolerable Prison Conditions Generate a Justification or an Excuse for Escape?, 26 UCLA L. REV. 1355, 1360 (1979) [hereinafter Fletcher, Prison Conditions]. According to the incompatibility thesis, if a person is justified in doing act A, then another cannot be justified in preventing A. For an extensive examination of whether our best moral theory might issue incompatible obligations to different actors, see HEIDI M. HURD, MORAL COMBAT (1999).
8. George Fletcher, for example, defends this test of justification. In his view, it follows from the truth of the "incompatibility thesis" - "that it is logically impossible for both sides in a conflict to be justified." GEORGE FLETCHER, RETHINKING CRIMINAL LAW 767 (1978); George Fletcher, The Right and the Reasonable, 98 HARV. L. REV. 949, 975 (1985) [hereinafter Fletcher, The Right and the Reasonable]; George Fletcher, Should Intolerable Prison Conditions Generate a Justification or an Excuse for Escape?, 26 UCLA L. REV. 1355, 1360 (1979) [hereinafter Fletcher, Prison Conditions]. According to the incompatibility thesis, if a person is justified in doing act A, then another cannot be justified in preventing A. For an extensive examination of whether our best moral theory might issue incompatible obligations to different actors, see HEIDI M. HURD, MORAL COMBAT (1999).
9. George Fletcher, for example, defends this test of justification. In his view, it follows from the truth of the "incompatibility thesis" - "that it is logically impossible for both sides in a conflict to be justified." GEORGE FLETCHER, RETHINKING CRIMINAL LAW 767 (1978); George Fletcher, The Right and the Reasonable, 98 HARV. L. REV. 949, 975 (1985) [hereinafter Fletcher, The Right and the Reasonable]; George Fletcher, Should Intolerable Prison Conditions Generate a Justification or an Excuse for Escape?, 26 UCLA L. REV. 1355, 1360 (1979) [hereinafter Fletcher, Prison Conditions]. According to the incompatibility thesis, if a person is justified in doing act A, then another cannot be justified in preventing A. For an extensive examination of whether our best moral theory might issue incompatible obligations to different actors, see HEIDI M. HURD, MORAL COMBAT (1999).
10. George Fletcher, for example, defends this test of justification. In his view, it follows from the truth of the "incompatibility thesis" - "that it is logically impossible for both sides in a conflict to be justified." GEORGE FLETCHER, RETHINKING CRIMINAL LAW 767 (1978); George Fletcher, The Right and the Reasonable, 98 HARV. L. REV. 949, 975 (1985) [hereinafter Fletcher, The Right and the Reasonable]; George Fletcher, Should Intolerable Prison Conditions Generate a Justification or an Excuse for Escape?, 26 UCLA L. REV. 1355, 1360 (1979) [hereinafter Fletcher, Prison Conditions]. According to the incompatibility thesis, if a person is justified in doing act A, then another cannot be justified in preventing A. For an extensive examination of whether our best moral theory might issue incompatible obligations to different actors, see HEIDI M. HURD, MORAL COMBAT (1999).
11. George Fletcher, for example, defends this test of justification. In his view, it follows from the truth of the "incompatibility thesis" - "that it is logically impossible for both sides in a conflict to be justified." GEORGE FLETCHER, RETHINKING CRIMINAL LAW 767 (1978); George Fletcher, The Right and the Reasonable, 98 HARV. L. REV. 949, 975 (1985) [hereinafter Fletcher, The Right and the Reasonable]; George Fletcher, Should Intolerable Prison Conditions Generate a Justification or an Excuse for Escape?, 26 UCLA L. REV. 1355, 1360 (1979) [hereinafter Fletcher, Prison Conditions]. According to the incompatibility thesis, if a person is justified in doing act A, then another cannot be justified in preventing A. For an extensive examination of whether our best moral theory might issue incompatible obligations to different actors, see HEIDI M. HURD, MORAL COMBAT (1999).
12. For Professor Greenawalt's discussion of this example, see Greenawalt, supra note 1, at 1919. This hypothetical takes its inspiration from the textbook case of People v. Young, 183 N.E.2d 319 (N.Y. 1962).
13. See Greenwalt, supra note 1, at 1920.
14. See id. at 1920. George Fletcher somewhat surprisingly argues that prison escapes are not justified, only excused. See Fletcher, Prison Conditions, supra note 6, at 1359. As he argues, it follows from his incompatibility thesis that since prison guards are justified in preventing escapes, prison inmates must only be excused in escaping. It seems to me that while Fletcher's incompatibility thesis is right, Fletcher cannot sustain this particular conclusion if it is premised simply on Professor Greenawalt's view that, in most cases, prison guards have insufficient evidence of an inmate's intentions to be confident that he will return to custody upon achieving safety. If this were the basis of Fletcher's argument, Fletcher would have to admit that if a guard in fact knew that an inmate was escaping only long enough to save his own life, that guard would be unjustified in stopping him. To sustain his view, Fletcher must think that it is a feature of the role of being a prison guard that a guard is always justified in stopping prison escapes - even escapes by inmates who are in fact seeking only temporary escape to save their lives. But if morality is "role-relative," then Flethcher's incompatibility thesis is in trouble. As the prison case suggests, actors within different roles might well be bound by their unique obligations to confront one another in what I call "moral combat" - to thwart one another's role-justified actions. See HURD, MORAL COMBAT, supra note 6. I discuss the view that morality is role-relative infra at text accompanying note 36.
15. See id. at 1920. George Fletcher somewhat surprisingly argues that prison escapes are not justified, only excused. See Fletcher, Prison Conditions, supra note 6, at 1359. As he argues, it follows from his incompatibility thesis that since prison guards are justified in preventing escapes, prison inmates must only be excused in escaping. It seems to me that while Fletcher's incompatibility thesis is right, Fletcher cannot sustain this particular conclusion if it is premised simply on Professor Greenawalt's view that, in most cases, prison guards have insufficient evidence of an inmate's intentions to be confident that he will return to custody upon achieving safety. If this were the basis of Fletcher's argument, Fletcher would have to admit that if a guard in fact knew that an inmate was escaping only long enough to save his own life, that guard would be unjustified in stopping him. To sustain his view, Fletcher must think that it is a feature of the role of being a prison guard that a guard is always justified in stopping prison escapes - even escapes by inmates who are in fact seeking only temporary escape to save their lives. But if morality is "role-relative," then Flethcher's incompatibility thesis is in trouble. As the prison case suggests, actors within different roles might well be bound by their unique obligations to confront one another in what I call "moral combat" - to thwart one another's role-justified actions. See HURD, MORAL COMBAT, supra note 6. I discuss the view that morality is role-relative infra at text accompanying note 36.
16. Greenawalt, supra note 1, at 1924.
17. See id. at 1922-23.
18. See id. at 1922.
19. See id. at 1923-24.
20. Indeed, he puts this test to use at numerous points in his article. For example, in discussing the response of the man (Young) who reasonably believed that two plain clothes police officers were wrongfully beating a boy, Professor Greenawalt writes: "Young is to be praised, not blamed, for what he did, and members of society would wish that others faced with similar situations requiring instant judgment would act as Young did." Id. at 1919.
21. See id. at 1915.
22. Id. at 1916 (footnote omitted).
23. Id. at 1917 (quoting MODEL PENAL CODE § 2.09 (1) (Proposed Official Draft 1962)).
24. Id. at 1918.
25. Id. at 1927.
26. Id. For similar claims about nonepistemic conceptions of justifications, see Dressier, supra note 4, at 84-85.
27. The theory that I shall defend in this section bears significant resemblance to the theories of the justification/excuse distinction defended by George Fletcher and Paul Robinson. As George Fletcher has maintained, "A justification speaks to the lightness of the act; an excuse, to whether the actor is accountable for a concededly wrongful act." FLETCHER, supra note 6, at 759; see also 2 PAUL ROBINSON, CRIMINAL LAW DEFENSES § 122 (1984); George Fletcher, The Individualization of Excusing Conditions, 47 S. CAL. L. REV. 1269 (1974); Fletcher, Prison Conditions, supra note 6; Fletcher, The Right and the Reasonable, supra note 6; Paul Robinson, Criminal Law Defenses: A Systematic Analysis, 82 COLUM. L. REV. 199 (1982).
28. The theory that I shall defend in this section bears significant resemblance to the theories of the justification/excuse distinction defended by George Fletcher and Paul Robinson. As George Fletcher has maintained, "A justification speaks to the lightness of the act; an excuse, to whether the actor is accountable for a concededly wrongful act." FLETCHER, supra note 6, at 759; see also 2 PAUL ROBINSON, CRIMINAL LAW DEFENSES § 122 (1984); George Fletcher, The Individualization of Excusing Conditions, 47 S. CAL. L. REV. 1269 (1974); Fletcher, Prison Conditions, supra note 6; Fletcher, The Right and the Reasonable, supra note 6; Paul Robinson, Criminal Law Defenses: A Systematic Analysis, 82 COLUM. L. REV. 199 (1982).
29. The theory that I shall defend in this section bears significant resemblance to the theories of the justification/excuse distinction defended by George Fletcher and Paul Robinson. As George Fletcher has maintained, "A justification speaks to the lightness of the act; an excuse, to whether the actor is accountable for a concededly wrongful act." FLETCHER, supra note 6, at 759; see also 2 PAUL ROBINSON, CRIMINAL LAW DEFENSES § 122 (1984); George Fletcher, The Individualization of Excusing Conditions, 47 S. CAL. L. REV. 1269 (1974); Fletcher, Prison Conditions, supra note 6; Fletcher, The Right and the Reasonable, supra note 6; Paul Robinson, Criminal Law Defenses: A Systematic Analysis, 82 COLUM. L. REV. 199 (1982).
30. The theory that I shall defend in this section bears significant resemblance to the theories of the justification/excuse distinction defended by George Fletcher and Paul Robinson. As George Fletcher has maintained, "A justification speaks to the lightness of the act; an excuse, to whether the actor is accountable for a concededly wrongful act." FLETCHER, supra note 6, at 759; see also 2 PAUL ROBINSON, CRIMINAL LAW DEFENSES § 122 (1984); George Fletcher, The Individualization of Excusing Conditions, 47 S. CAL. L. REV. 1269 (1974); Fletcher, Prison Conditions, supra note 6; Fletcher, The Right and the Reasonable, supra note 6; Paul Robinson, Criminal Law Defenses: A Systematic Analysis, 82 COLUM. L. REV. 199 (1982).
31. The theory that I shall defend in this section bears significant resemblance to the theories of the justification/excuse distinction defended by George Fletcher and Paul Robinson. As George Fletcher has maintained, "A justification speaks to the lightness of the act; an excuse, to whether the actor is accountable for a concededly wrongful act." FLETCHER, supra note 6, at 759; see also 2 PAUL ROBINSON, CRIMINAL LAW DEFENSES § 122 (1984); George Fletcher, The Individualization of Excusing Conditions, 47 S. CAL. L. REV. 1269 (1974); Fletcher, Prison Conditions, supra note 6; Fletcher, The Right and the Reasonable, supra note 6; Paul Robinson, Criminal Law Defenses: A Systematic Analysis, 82 COLUM. L. REV. 199 (1982).
32. If our best moral theory is consequentialist, then wrongdoing will consist in failing to maximize the good, however it is defined (e.g., as utility, preference-satisfaction, the cultivation of personal virtue, the protection of rights, etc.). If our best moral theory is deontological, then wrongdoing will consist in violating agent-relative maxims that are intrinsically good and that cannot justifiably be violated in the name of maximizing good consequences.
33. See Heidi M. Hurd, The Deontology of Negligence, 76 B.U. L. REV. 249-72 (1996); Heidi M. Hurd, What in the World in the Wrong?, 5 J. CONTEMP. LEGAL ISSUES 157, 157-216 (1994).
34. See Heidi M. Hurd, The Deontology of Negligence, 76 B.U. L. REV. 249-72 (1996); Heidi M. Hurd, What in the World in the Wrong?, 5 J. CONTEMP. LEGAL ISSUES 157, 157-216 (1994).
35. This is a conceptual claim. It may turn out that one or more of these categories is empty. For example, while it is conceptually possible for persons to culpably commit right actions, it is also possible that, as an empirical matter, they simply never do. In such a case, the third category of culpable right actions would turn out to be empty.
36. I have elsewhere argued that within the category of right action (defined as action that is either obligatory or permitted according to our best moral theory) there are actions of varying moral stripes. There are supererogatory actions (permitted actions that are praiseworthy to perform but not blameworthy to omit, such as throwing oneself on a grenade to save one's buddies), suberogatory actions (permitted actions that are blameworthy to perform but not praiseworthy to omit, such as smoking, or buying a Renoir only to destroy it), and quasi-supererogatory actions (permitted actions that are praiseworthy to perform and blameworthy to omit, such as giving one's kidney to save the life of one's sister). See Heidi M. Hurd, Duties Beyond the Call of Duty, 6 ANN. REV. LAW & ETHICS 1, 1-36 (1988). These further distinctions do not affect our ability to talk in terms of the four categories of action identified above, although they are helpful in replying to a further complaint that Professor Greenawalt and others have had with the justification/ excuse distinction. As Professor Greenawalt rightly argues, there are "permissible acts that are less than ideal." Greenawalt, supra note 1, at 1904; see also Dressier, supra note 4, at 84 (arguing that there are actions that morally sensitive people could find "not right" without considering them "wrong"). These acts, he says, defy categorization as either justified or excused: they are justified in the sense that one has a right to do them, but they are unjustified (and hence, perhaps at best excused) in the sense that one ought not to do them. In my taxonomy, such acts would be considered suberogatory. Professor Greenawalt is right that in complicating our taxonomy of morally significant actions with super-, sub-, and quasi-supererogatory actions, we are forced to make more sophisticated our understanding of what should be thought a morally and legallyjustified action. But there is, in principle and in practice, no problem with doing this and no ability to avoid doing this. We have two choices: Either we can characterize all permitted actions (including suberogatory actions) as justified, making prohibited actions the only actions eligible for excuses, or we can characterize all morally praiseworthy and morally neutral actions as justified, leaving prohibited and suberogatory actions to the excuses. We are not spared this choice by the adoption of an epistemic conception of justification, nor does the adoption of such a theory assist us in making this choice. I therefore take Professor Greenawalt's discussion of permissible acts that are less than ideal to be by the way of his arguments for an epistemic theory of justification.
37. For example, after the New York Court of Appeals held in People v. Young, 183 N.E.2d 319, 319-20 (N.Y. 1962), that "one who goes to the aid of a third person does so at his own peril," the New York legislature enacted N.Y. PENAL LAW § 35.15 (1968) (defense of justification), which reads: "A person may . . . use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person. . . ." Id.
38. It is my view that knowledge of morality is no more required for culpable wrongdoing than knowledge of the law is generally required for legal liability. A person need only intend to kill to be morally blameworthy for murder; he need not know that an intentional killing is murder, nor need he know that murder is morally blameworthy. Most moral theorists - save moral emotivists and subjectivists - would presumably agree. For example, moral conventionalists, who believe that morality is constituted by the dominant beliefs within a community, maintain that inasmuch as individuals within the community can be mistaken about those beliefs, they can be wrong about the morality to which they are subject. For a conventionalist's defense of the view that morality is only meaningful if the persons subject to it can be wrong about it, see Philippa Foot, Moral Relativism, in RELATIVISM COGNITIVE AND MORAL 152, 158-60 (Michael Krausz & Jack W. Meiland eds., 1982).
39. See, e.g., Dressier, supra note 4, at 92-93. In a number of jurisdictions, this position has the law on its side. See WAYNE LAFAVE & AUSTIN SCOTT, HANDBOOK ON CRIMINAL LAW 762-67 (2d ed. 1986) (recounting that at common law, conduct is justified if an actor reasonably mistakes the existence of justifying circumstances); MODEL PENAL CODE § 3.04(1) (Proposed Official Draft 1962) (holding that use of force is justified if an actor merely believes it to be immediately necessary); RESTATEMENT (SECOND) OF TORTS §§ 63-76 (1964) (justifying self-defense and third-party defense when an actor reasonably believes it necessary). But see ROBINSON, supra note 21, at 224, 239.
40. See, e.g., Dressier, supra note 4, at 92-93. In a number of jurisdictions, this position has the law on its side. See WAYNE LAFAVE & AUSTIN SCOTT, HANDBOOK ON CRIMINAL LAW 762-67 (2d ed. 1986) (recounting that at common law, conduct is justified if an actor reasonably mistakes the existence of justifying circumstances); MODEL PENAL CODE § 3.04(1) (Proposed Official Draft 1962) (holding that use of force is justified if an actor merely believes it to be immediately necessary); RESTATEMENT (SECOND) OF TORTS §§ 63-76 (1964) (justifying self-defense and third-party defense when an actor reasonably believes it necessary). But see ROBINSON, supra note 21, at 224, 239.
41. For a defense of the thesis that consent constitutes a mental state (specific intent vis-á-vis another's conduct), not a set of actions, see Heidi M. Hurd, The Moral Magic of Consent, 2 LEGAL THEORY 121, 121-46 (1996). For one counter-punch to this thesis, see Larry Alexander, The Moral Magic of Consent II, 2 LEGAL THEORY 175 (1996).
42. For a defense of the thesis that consent constitutes a mental state (specific intent vis-á-vis another's conduct), not a set of actions, see Heidi M. Hurd, The Moral Magic of Consent, 2 LEGAL THEORY 121, 121-46 (1996). For one counter-punch to this thesis, see Larry Alexander, The Moral Magic of Consent II, 2 LEGAL THEORY 175 (1996).
43. See Greenawalt, supra note 1, at 1916. George Fletcher, who is well known for advancing a nonepistemic conception of justification, oddly enough also embraces this view. See FLETCHER, supra note 6, at 557, 559-60, 564-65; George Fletcher, The Right Deed for the Wrong Reason: A Reply to Mr. Robinson, 23 UCLA L. REV. 293 (1975). Paul Robinson, however, disputes both the normative claim that justifications ought to embody such a subjective requirement and the descriptive claim that the legal doctrines of justification now in fact embody such a requirement. See ROBINSON, supra note 21, § 122; Paul Robinson, A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability, 23 UCLA L. REV. 266 (1975).
44. See Greenawalt, supra note 1, at 1916. George Fletcher, who is well known for advancing a nonepistemic conception of justification, oddly enough also embraces this view. See FLETCHER, supra note 6, at 557, 559-60, 564-65; George Fletcher, The Right Deed for the Wrong Reason: A Reply to Mr. Robinson, 23 UCLA L. REV. 293 (1975). Paul Robinson, however, disputes both the normative claim that justifications ought to embody such a subjective requirement and the descriptive claim that the legal doctrines of justification now in fact embody such a requirement. See ROBINSON, supra note 21, § 122; Paul Robinson, A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability, 23 UCLA L. REV. 266 (1975).
45. As Sanford Kadish and Stephen Schulhofer write: If the theory of self-defense is excuse, that is, that a reasonable person who believes that his life is about to be taken by another can't be expected simply to permit it to happen, then obviously he should not be permitted to claim self-defense because the condition for the excuse, his belief, is not present. But if the theory of self defense is that it is right to do as the defendant did under the circumstances, why should it be thought less right because he was unaware of his right? Wasn't it still a good thing that the aggressor should be stopped from killing an innocent person? And isn't that just what the defendant did? SANFORD H. KADISH & STEPHEN J. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES: CASES AND MATERIALS 842 (6th ed. 1995).
46. See supra text accompanying note 10.
47. Greenawalt, supra note 1, at 1925.
48. Id.
49. See id. at 1920.
50. See HURD, supra note 6.
51. See, e.g., Harrison Ford in THE FUGITIVE (Warner Bros. 1993).
52. Joshua Dressier disputes this truism. He argues: It may be morally right to kill in order to further the interests of one to whom we owe . . . loyalty, but not otherwise. Thus, A could be justified to act violently to repel a threat to one's family since the loyalty imperative would apply. Yet stranger B would not be so justified to kill for A . . . . [I]t is a generalization, and no more, to assert that justifications must be universalized. Dressier, supra note 4, at 98. Of course, what Dressier is missing here is that what it means to generalize a justification is to apply it to all persons who are alike in morally relevant ways. If it is right to defend one's family from culpable aggressors, then everyone who finds his family members in peril from a culpable aggressor has the right to defend them, even if others do not. There is no failure of universalizability in making fine-grained moral distinctions between persons.
53. This formulation of the justification/excuse distinction leaves open the question of what actions our best moral theory permits and prohibits. I have said little here about that question. For example, there are those who doubt whether killing is ever permitted, even under circumstances in which one's life is threatened by a culpable aggressor. See, e.g., Cheyney C. Ryan, Self-Defense, Pacifism, and the Possibility of Killing, 93 ETHICS 508 (1983); Judith Thompson, Self Defense and Rights, in FINDLEY LECTURE 1976 (1977). If such doubts are vindicated by our best moral theory, then self-defense is never justified. Many who believe that morality grants persons a permission to kill when their lives are endangered by culpable aggressors question whether morality embodies a "selfish tipping principle" that permits persons to injure or kill innocent aggressors or to prevent harm to themselves by using innocent others as shields. If morality does contain such a selfish tipping principle, then one does no wrong in trading another's innocent life for one's own, although, as I mentioned earlier, see supra note 25, it may be suberogatory to do so. If morality does not contain such a tipping principle, then one can at most be excused for preferring one's own life to another's innocent life. For discussions that mistakenly construe this issue as an obstacle to delineating justifications from excuses (rather than as simply one of the many difficult issues to be worked out within our best moral theory), see Laidlaw v. Sage, 52 N.E. 679 (N.Y. 1899) (famously construing a wealthy financier's use of a clerk to shield himself from an extortionist's bomb as involuntary); Dressier, supra note 4, at 84-85; Greenawalt, supra note 1, at 1925-26. For thoughtful discussions of whether morality would adopt such a tipping principle, see Jeff McMahan, Self-Defense and the Problem of the Innocent Attacker, 104 ETHICS 252 (1994); Phillip Montague, Self-Defense and Choosing Between Lives, 40 PHIL. STUDIES 207 (1981); Michael Otsuka, Killing the Innocent in Self-Defense, 23 PHIL. & PUB. AFFAIRS 74 (1994).
54. This formulation of the justification/excuse distinction leaves open the question of what actions our best moral theory permits and prohibits. I have said little here about that question. For example, there are those who doubt whether killing is ever permitted, even under circumstances in which one's life is threatened by a culpable aggressor. See, e.g., Cheyney C. Ryan, Self-Defense, Pacifism, and the Possibility of Killing, 93 ETHICS 508 (1983); Judith Thompson, Self Defense and Rights, in FINDLEY LECTURE 1976 (1977). If such doubts are vindicated by our best moral theory, then self-defense is never justified. Many who believe that morality grants persons a permission to kill when their lives are endangered by culpable aggressors question whether morality embodies a "selfish tipping principle" that permits persons to injure or kill innocent aggressors or to prevent harm to themselves by using innocent others as shields. If morality does contain such a selfish tipping principle, then one does no wrong in trading another's innocent life for one's own, although, as I mentioned earlier, see supra note 25, it may be suberogatory to do so. If morality does not contain such a tipping principle, then one can at most be excused for preferring one's own life to another's innocent life. For discussions that mistakenly construe this issue as an obstacle to delineating justifications from excuses (rather than as simply one of the many difficult issues to be worked out within our best moral theory), see Laidlaw v. Sage, 52 N.E. 679 (N.Y. 1899) (famously construing a wealthy financier's use of a clerk to shield himself from an extortionist's bomb as involuntary); Dressier, supra note 4, at 84-85; Greenawalt, supra note 1, at 1925-26. For thoughtful discussions of whether morality would adopt such a tipping principle, see Jeff McMahan, Self-Defense and the Problem of the Innocent Attacker, 104 ETHICS 252 (1994); Phillip Montague, Self-Defense and Choosing Between Lives, 40 PHIL. STUDIES 207 (1981); Michael Otsuka, Killing the Innocent in Self-Defense, 23 PHIL. & PUB. AFFAIRS 74 (1994).
55. This formulation of the justification/excuse distinction leaves open the question of what actions our best moral theory permits and prohibits. I have said little here about that question. For example, there are those who doubt whether killing is ever permitted, even under circumstances in which one's life is threatened by a culpable aggressor. See, e.g., Cheyney C. Ryan, Self-Defense, Pacifism, and the Possibility of Killing, 93 ETHICS 508 (1983); Judith Thompson, Self Defense and Rights, in FINDLEY LECTURE 1976 (1977). If such doubts are vindicated by our best moral theory, then self-defense is never justified. Many who believe that morality grants persons a permission to kill when their lives are endangered by culpable aggressors question whether morality embodies a "selfish tipping principle" that permits persons to injure or kill innocent aggressors or to prevent harm to themselves by using innocent others as shields. If morality does contain such a selfish tipping principle, then one does no wrong in trading another's innocent life for one's own, although, as I mentioned earlier, see supra note 25, it may be suberogatory to do so. If morality does not contain such a tipping principle, then one can at most be excused for preferring one's own life to another's innocent life. For discussions that mistakenly construe this issue as an obstacle to delineating justifications from excuses (rather than as simply one of the many difficult issues to be worked out within our best moral theory), see Laidlaw v. Sage, 52 N.E. 679 (N.Y. 1899) (famously construing a wealthy financier's use of a clerk to shield himself from an extortionist's bomb as involuntary); Dressier, supra note 4, at 84-85; Greenawalt, supra note 1, at 1925-26. For thoughtful discussions of whether morality would adopt such a tipping principle, see Jeff McMahan, Self-Defense and the Problem of the Innocent Attacker, 104 ETHICS 252 (1994); Phillip Montague, Self-Defense and Choosing Between Lives, 40 PHIL. STUDIES 207 (1981); Michael Otsuka, Killing the Innocent in Self-Defense, 23 PHIL. & PUB. AFFAIRS 74 (1994).
56. This formulation of the justification/excuse distinction leaves open the question of what actions our best moral theory permits and prohibits. I have said little here about that question. For example, there are those who doubt whether killing is ever permitted, even under circumstances in which one's life is threatened by a culpable aggressor. See, e.g., Cheyney C. Ryan, Self-Defense, Pacifism, and the Possibility of Killing, 93 ETHICS 508 (1983); Judith Thompson, Self Defense and Rights, in FINDLEY LECTURE 1976 (1977). If such doubts are vindicated by our best moral theory, then self-defense is never justified. Many who believe that morality grants persons a permission to kill when their lives are endangered by culpable aggressors question whether morality embodies a "selfish tipping principle" that permits persons to injure or kill innocent aggressors or to prevent harm to themselves by using innocent others as shields. If morality does contain such a selfish tipping principle, then one does no wrong in trading another's innocent life for one's own, although, as I mentioned earlier, see supra note 25, it may be suberogatory to do so. If morality does not contain such a tipping principle, then one can at most be excused for preferring one's own life to another's innocent life. For discussions that mistakenly construe this issue as an obstacle to delineating justifications from excuses (rather than as simply one of the many difficult issues to be worked out within our best moral theory), see Laidlaw v. Sage, 52 N.E. 679 (N.Y. 1899) (famously construing a wealthy financier's use of a clerk to shield himself from an extortionist's bomb as involuntary); Dressier, supra note 4, at 84-85; Greenawalt, supra note 1, at 1925-26. For thoughtful discussions of whether morality would adopt such a tipping principle, see Jeff McMahan, Self-Defense and the Problem of the Innocent Attacker, 104 ETHICS 252 (1994); Phillip Montague, Self-Defense and Choosing Between Lives, 40 PHIL. STUDIES 207 (1981); Michael Otsuka, Killing the Innocent in Self-Defense, 23 PHIL. & PUB. AFFAIRS 74 (1994).
57. This formulation of the justification/excuse distinction leaves open the question of what actions our best moral theory permits and prohibits. I have said little here about that question. For example, there are those who doubt whether killing is ever permitted, even under circumstances in which one's life is threatened by a culpable aggressor. See, e.g., Cheyney C. Ryan, Self-Defense, Pacifism, and the Possibility of Killing, 93 ETHICS 508 (1983); Judith Thompson, Self Defense and Rights, in FINDLEY LECTURE 1976 (1977). If such doubts are vindicated by our best moral theory, then self-defense is never justified. Many who believe that morality grants persons a permission to kill when their lives are endangered by culpable aggressors question whether morality embodies a "selfish tipping principle" that permits persons to injure or kill innocent aggressors or to prevent harm to themselves by using innocent others as shields. If morality does contain such a selfish tipping principle, then one does no wrong in trading another's innocent life for one's own, although, as I mentioned earlier, see supra note 25, it may be suberogatory to do so. If morality does not contain such a tipping principle, then one can at most be excused for preferring one's own life to another's innocent life. For discussions that mistakenly construe this issue as an obstacle to delineating justifications from excuses (rather than as simply one of the many difficult issues to be worked out within our best moral theory), see Laidlaw v. Sage, 52 N.E. 679 (N.Y. 1899) (famously construing a wealthy financier's use of a clerk to shield himself from an extortionist's bomb as involuntary); Dressier, supra note 4, at 84-85; Greenawalt, supra note 1, at 1925-26. For thoughtful discussions of whether morality would adopt such a tipping principle, see Jeff McMahan, Self-Defense and the Problem of the Innocent Attacker, 104 ETHICS 252 (1994); Phillip Montague, Self-Defense and Choosing Between Lives, 40 PHIL. STUDIES 207 (1981); Michael Otsuka, Killing the Innocent in Self-Defense, 23 PHIL. & PUB. AFFAIRS 74 (1994).