Necessity, deterrence, and standing

Legal Theory

Volumn 8, Issue 3, 2002, Pages 339-358

  Klimchuk, Dennis ^a  

^a UNIVERSITY OF WESTERN ONTARIO   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 67349200755     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325202083040h     Document Type: Article

References (29)

1. Jeremy Bentham, THE PRINCIPLES OF MORALS AND LEGISLATION 170 (1948). I will hereafter insert references to this work in the text, following the abbreviation “PML.” Immanuel Kant, METAPHYSICS OFMORALS 28 [6:235] (Gregor ed., 1996). I will hereafter insert references to this work in the text, following the abbreviation “MdS,” to the Prussian Academy pagination. Kant makes the same claim in On the common saying: That may be correct in theory, but it is of no use in practice, PRACTICAL PHILOSOPHY 299n [8:300n] (Gregor ed., 1996). I will work only with the former, as it is later and more developed.
2. George Fletcher glosses Kant this way. Fletcher, RETHINKING CRIMINAL LAW 819 (1978). Michael D. Bayles represents this as the standard reading of both. Bayles, Reconceptualizing Necessity and Duress, 33 WAYNE L. REV. 1191, 1194-1195 (1987).
3. Though Jean-Christopher Merle seems to attribute something like this view to Kant. See Jean-ChristopherMerle, A Kantian Critique of Kant's Theory of Punishment, 19 L. & PHIL. 311, 320.
4. R. v. Dudley and Stephens (1884), 15 Q.B.D. 273, at 288.
5. Questions possibly raised by Kant's own example of a sailor who wrests another off a plank that can only support one. I take this substitution to be a friendly amendment to Kant's argument; Kant describes the view against which he is arguing to be that the law confers “an authorization to take the life of another who is doing nothing to harmme, when I am in danger of losing my own life” (MdS 235).
6. London DAILY TELEGRAPH, Sept. 11 1884, 1. Russell identified himself only as “A Seafarer.” A. Brian Simpson identified A Seafarer as Russell in CANNIBALISM AND THECOMMON LAW 87 (1984).
7. Along with Dudley v. Stephens, see, e.g., U.S. v. Holmes, 26 Fed. Cas. 390 (Penn. Cir. Ct., 1941) and Perka, London DAILY TELEGRAPH note 3.
8. See, e.g., R. v. Steane [1947] 1 K.B. 997 (K.B.) and Director of Public Prosecutions v. Lynch [1985] A.C. 653 (H.L.).
9. Possibly Hobbes would as well. He defines the Right of Nature as “the Liberty each man hath, to use his own power, as he will himselfe, for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing anything, which in his own Judgement, and Reason, hee shall conceive to be the aptest means thereunto.” Hobbes, LEVIATHAN 189 (Macpherson ed., 1968). Thus the Right of Nature is a right to take whatever means necessary to preserve oneself. That isn't the same as allowing that anything goes. On the other hand, for Hobbes “wrongdoing” and indeed “injury” have no meaning outside an enforced convention.
10. John Locke, SECOND TREATISE OF GOVERNMENT 9-13 (Macpherson ed., 1980).
11. The rest are cases in which it is groundless (e.g., where the putative victim has consented), or unprofitable (e.g., when public sympathy with the offender is great), or needless (e.g., when alternative means, such as education, will more effectively put an end to the practice in question). PML 171-172, 175-177.
12. The other case is “threatened mischief; where it is such as appears likely to be brought about through the intentional and conscious agency of man” (PML 175).
13. H.L.A. Hart, PUNISHMENT AND RESPONSIBILITY 18-20, 40-43 (1968).
14. I qualify the point because as Jeffrie Murphy points out, the Doctrine of Right account of punishment is not the account we would have predicted from Kant's earlier writings. Jeffrie Murphy, Does Kant Have a Theory of Punishment? 87 COL. L. REV. 509 (1987).
15. B. Sharon Byrd, Kant's Theory of Punishment: Deterrence in its Threat, Retribution in its Execution, 8 L. & PHIL. 151 (1989).
16. As Leslie Mulholland suggests in KANT'S SYSTEM OF RIGHTS 194 (1990).
17. Immanuel Kant, GROUNDWORK OF THEMETAPHYSICS OFMORALS 12 [4: 399] (Gregor trans., 1996).
18. This point might seem to extend to at least some duties owed to others, but the question is complex. An obvious example is the duty to tell the truth: While some broken promises will be actionable under the law of contract, many others are presumably beyond the state's legitimate interest. But this is a duty to act in a certain way and so one for which external compulsion seems possible, in the first sense. However, in the Doctrine of Virtue, the duty to tell the truth in extralegal circumstances turns out to be a duty to oneself (MdS 429-431). Similarly, while at times Kant speaks as though duties of respect owed to others require only that one act in a certain way (MdS 463), there are reasons to think that one's motives matter here, and so that it is not possible in the first sense for respect to be externally compelled. On this question, see Marcia Baron, Love and Respect in the Doctrine of Virtue, 36 (Supp.) So. J. PHIL. 29 (1997).
19. Locke, This point might seem to extend to at least some duties owed to others, but the question is complex. note 11 at 9-10.
20. This contrast is echoed in contemporary legal theory in the contrasting interpretations of property rules and liability rules offered, respectively, by Guido Calabresi and A. Douglas Melamed in Property Rules, Liability Rules and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972) and Jules Coleman and Jody Kraus in Rethinking the Theory of Legal Rights, 95 YALE L.J. 1335 (1986).
21. He characterizes the other putative counterexample to his account, the right of equity, no less obscurely as admitting of “right without coercion” (MdS 234).
22. Arthur Ripstein, EQUALITY, RESPONSIBILITY, AND THE LAW 166 (1999).
23. James Fitzjames Stephen, AHISTORY OF THE CRIMINAL LAW OF ENGLAND VOL. II 107 (1883).
24. John Locke, A LETTER CONCERNING TOLERATION 20 (1990).
25. In my view, justifications hold that the defendant's actions were (merely) permissible because the criminal law is a system of prohibitions and, as such, cannot expresses anything more robust than permissibility. It follows that, as Kent Greenawalt points out, on certain moral standards, some legally justified actions might merit only an excuse. Kent Greenawalt, The Perplexing Borders of Justification and Excuse, 84 COLUM. L. REV. 1897 (1984) 1904-1907. This is not a weakness of the criminal law. Instead it reflects the fact that it rightly does not enforce ideals. Some theorists argue, however, that justified actions are not merely permissible but positively good and rightful. See, e.g., Paul H. Robinson, A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability, 23 U.C.L.A. L. REV. 266, 274 (1975), and George Fletcher, Should Intolerable Prison Conditions Generate a Justification or an Excuse for Escape?, 26 U.C.L.A. L. REV. 1355, 1358-1360 (1979). See, in response to Fletcher on this point, Joshua Dressler, New Thoughts About the Concept of Justifications in Criminal Law: A Critique of Fletcher's Thinking and Rethinking, 32 U.C.L.A. L. REV. 61, 81-87 (1984), and in support of the classification of justified actions as permissible generally, Douglas N. Husak, Conflicts of Justifications, 18 L. & PHIL. 41, 52-56 (1999).
26. The character and choice theories of excuse, respectively. See Michael S. Moore, Choice, Character, and Excuse 7 SOC. PHIL.&POL. 59 (1990), and R.A. Duff, Choice, Character, and Criminal Liability, 12 L.& PHIL. 345 (1993).
27. Greenawalt, The character and choice theories of excuse, respectively. note 31 at 1899. The priority thesis is close to the received view among criminal law theorists. See also, e.g., Paul H. Robinson, Criminal Law Defences: A Systematic Analysis, 82 COLUM. L. REV. 199, 203, 221 (1982), George Fletcher, The Right and the Reasonable, 95 HARV. L. REV. 949, 958-962 (1985), and Gardner, The character and choice theories of excuse, respectively. note 32 at 119. The lone (as far as I know) dissenting voice is Douglas Husak, The Serial View of Criminal Law Defenses, 3 CRIM. L.F. 369 (1992). Husak argues, convincingly in my view, that most of arguments in favor of the priority thesis fail. Here I rely on one he makes in its favor, and another he does not consider.
28. At a glance, one might think Blackstone defends another ground when he argues that: “[t]here is one species of homicide se defendendo, where the party slain is equally innocent as he who occasions his death: and yet this homicide is also excusable from the great universal principle of self-preservation, which prompts every man to save his own life preferably to that of another, where one of them must inevitably perish.” William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, VOLUME 4: OF PUBLIC WRONGS 186 (1769). But “principle” here bears its older sense of origin or cause, rather than justifying rule (note that it “prompts”). It goes without saying, I take it, that the law does not recognize a right to self-preservation simpliciter.
29. At a glance, one might think Blackstone defends another ground when he argues that: “[t]here is one species of homicide se defendendo, where the party slain is equally innocent as he who occasions his death: and yet this homicide is also excusable from the great universal principle of self-preservation, which prompts every man to save his own life preferably to that of another, where one of them must inevitably perish. note 10 at 189.