Excuse: Theory

Claims of excuse and of justification have some features in common. In cases of duress or personal necessity, the actor must be aware of the circumstances excusing his conduct; otherwise, it could hardly be said that the circumstances influenced that conduct. Further, these two excuses apply only if the actor responds to an imminent risk of harm. Again, this requirement finds its warrant in the principle that only circumstances overwhelming the actor's freedom of choice should generate excuses. These same requirements appear in justificatory claims, such as those of self-defense and lesser evils, but in that context they express different rationales for limiting the respective defenses.

Three distinctions between claims of justification and of excuse warrant emphasis. First, claims of justification are universal. They extend to anyone aware of the circumstances that justify the nominal violation of the law. If the threatened victim may justifiably defend himself against unlawful aggression, then others in a position to do so may justifiably intervene on his behalf. This feature of universality follows from the justification's rendering the violation right and proper. Excuses, in contrast, are personal and limited to the specific individual caught in the maelstrom of circumstances. This limitation derives from the required element of involuntariness in excused conduct. Sometimes excuses are defined so as to permit intervention on behalf of "relatives or other people close to the actor" who are threatened with imminent harm (German (Federal Republic) Penal Code § 35). The actor's intervening on behalf of this limited circle of endangered people might well be sufficiently involuntary to warrant excuse. Intervention on behalf of strangers is thought to be freely chosen and therefore not subject to excuse.

Second, claims of justification rest, to varying degrees, on a balancing of interests and the judgment that the justified conduct furthers the greater good (or lesser evil). Excuses do not ostensibly call for a balancing of interests. Inflicting harm far greater than that threatened to the actor might well be excused. Yet, indirectly, an assessment of the relation between the harm done and harm avoided might inform our judgment whether the wrongful conduct is sufficiently involuntary to be excused. Committing perjury to avoid great bodily harm would probably be excused, but committing mayhem on several people to avoid minor personal injuries would probably not be. As the gap between the conflicting interests widens, the assessment of the actor's surrendering to external pressures becomes more stringent. This covert attention to the conflicting interests elucidates the normative basis for finding conduct "involuntary."

Third, claims of justification and of excuse derive from different types of norms in the criminal law. Claims of justification rest on norms, directed to the public at large, that create exceptions to the prohibitions of the criminal law. Excuses are different. Excuses derive from norms directed not to the public, but rather to legal officials, judges, and juries, who assess the accountability of those who unjustifiably violate the law. Excusing a particular violation does not alter the legal prohibition. Recognizing mistake of law as an excuse does not change the law; if the excused, mistaken party were to leave the courthouse and commit the violation again, he would clearly be guilty. Neither does recognizing insanity, involuntary intoxication, duress, or personal necessity alter the prohibition against the acts excused on the basis of these circumstances. If someone relies upon the expectation of an excuse in violating the law (say, his ignorance of the law or his being subject to threats), his very reliance creates a good argument against excusing him for the violation. The expectation of an excuse conflicts with the supposed involuntariness of excused conduct.