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

Necessity, deterrence, and standing

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EID: 67349200755     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325202083040h     Document Type: Article
Times cited : (6)

References (29)
  • 1
    • 0004220928 scopus 로고
    • 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.
    • 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.
    • (1948) THE PRINCIPLES OF MORALS AND LEGISLATION 170
    • Bentham, J.1
  • 2
    • 85022399553 scopus 로고
    • 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.
    • 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).
    • (1987) George Fletcher glosses Kant this way , vol.1191 , pp. 1194-1195
  • 4
    • 84919580437 scopus 로고
    • 15 Q.B.D. 273, at
    • R. v. Dudley and Stephens (1884), 15 Q.B.D. 273, at 288.
    • (1884) Stephens , pp. 288
    • Dudley, R.v.1
  • 5
    • 85022371071 scopus 로고    scopus 로고
    • 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).
    • 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).
    • Questions possibly raised by Kant's own example of a sailor who wrests another off a plank that can only support one
  • 6
    • 85022360875 scopus 로고
    • Sept. 11 1884, 1. Russell identified himself only as “A Seafarer.” A. Brian Simpson identified A Seafarer as Russell in CANNIBALISM AND THECOMMON LAW
    • 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).
    • (1984) London DAILY TELEGRAPH , pp. 87
  • 7
    • 85022386215 scopus 로고
    • see, e.g., U.S. v. Holmes, 26 Fed. Cas. 390 (Penn. Cir. Ct., ) and Perka, London DAILY TELEGRAPH note
    • 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.
    • (1941) Along with Dudley v. Stephens , pp. 3
  • 9
    • 85022348653 scopus 로고
    • 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., ). 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.
    • 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.
    • (1968) Possibly Hobbes would as well
  • 11
    • 85022446485 scopus 로고    scopus 로고
    • (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
    • 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.
    • The rest are cases in which it is groundless , pp. 175-177
  • 18
    • 61049203350 scopus 로고    scopus 로고
    • 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.
    • 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).
    • (1997) This point might seem to extend to at least some duties owed to others, but the question is complex , pp. 29
  • 20
    • 85022448504 scopus 로고
    • 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.
    • 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).
    • (1986) This contrast is echoed in contemporary legal theory in the contrasting interpretations of property rules and liability rules offered, respectively , pp. 1335
  • 25
    • 85022394105 scopus 로고    scopus 로고
    • 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.
    • 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).
    • (1999) 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 , vol.41 , pp. 52-56
  • 26
    • 85022444780 scopus 로고
    • 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.
    • 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).
    • (1993) The character and choice theories of excuse, respectively , pp. 345
  • 27
    • 85022369295 scopus 로고
    • 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. 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.
    • 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.
    • (1992) The character and choice theories of excuse, respectively. note 31 at 1899
    • Greenawalt1


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