Justification: Theory

The paradigmatic claims of justified killing, according to Blackstone, are those "committed for the advancement of public justice" and those "committed for the prevention of any forcible and atrocious crime" (p. 179). The first category is illustrated by police officers' shooting and injuring escaping convicts and suspects; the second by killing in self-defense or in defense of one's home. In addition to these standard instances, most twentieth-century codes recognize a justification based on the benefit of violating the law exceeding the cost of doing so. Think of an abortion committed to save the life of the mother. Or consider the temporary taking, without permission, of a neighbor's car as the fastest means of transporting a sick child to the hospital. A justification based on these facts would typically be called "necessity." Yet, to avoid confusion with necessity treated as an excuse, this article will refer to the justification based on competing costs and benefits as "lesser evils."

One must now compare the issue of consent, which arises notably in cases of larceny, rape, and battery. There are two plausible interpretations of consent in these cases. It has been assumed so far that a victim's being alive and human is an element of the norm defining homicide. Arguing, for example, that a fetus is not a human being denies that a particular act of killing violates the norm against homicide. It is generally assumed, in contrast, that the absence of self-defense is not an element of the prohibition against killing. As a claim of justification, the assertion of self-defense concedes the violation of the norm. Now the question with regard to consent is this: Is nonconsent an element of the norms prohibiting rape, larceny, and battery, or is consent a claim of justification? In other words, is the issue of consent analogous to the problem whether the fetus is a human being protected by the law of homicide, or does consent resemble self-defense, an issue that is taken to be extrinsic to the norm prohibiting homicide?

The classification of consent has practical consequences. It might influence the allocation of the burden of persuasion or the burden of raising the issue at trial. It might lead to the imposition of certain requirements for making a valid claim of consent, requirements that are characteristic of either of elements of the prohibitory norm or of justificatory claims. These practical implications are discussed below. For now, we should attempt to resolve the problem of classification by bringing to bear our understanding of the nature of prohibitory norms and claims of justification.

The essential feature of a justification, as opposed to the negation of a prohibitory norm, is that even though the justification applies, we sense that significant harm has occurred. If we do not perceive the fetus at the early stages of gestation as a human being, then abortion is not regarded as a justified killing but rather as an operation of no greater moral significance than other operations. Yet, killing in self-defense leaves one with a sense of regret that a human being has been sacrificed to the defender's interest in self-preservation. That sense of regret testifies to the violation of the norm implicit in treating the act as justified.

If consent is measured against this standard, we should be hard-pressed to regard most instances of consent as claims of justification. In the case of consent to a medical operation or to sexual intercourse, most of us would not sense the occurrence of harm in the contact with the patient's or the partner's body. The consent in these instances does not generate a good reason for causing harm; rather, the consent seems to dissolve the potential harm into a cooperative good. The dissolution of the harm makes it difficult to say that a consensual operation or consensual sexual intercourse constitutes even a nominally prohibited act. The notion of justification does not come into play in these cases, for there is no violation that requires justification.

Yet, there are some instances of forcible intrusion where one might well regard consent as a justification. For example, even if there is no consent to a sadomasochistic beating or to intercourse achieved by force, the prohibition against forcible bodily contact appears to be violated. Consent would seem, at most, to be a justification. If the victim wishes to be beaten or to be taken by force, then a nonpaternalist legal system might well regard the victim's consent as a good reason for the actor's using force.

Whether one takes nonconsent to be an element of the prohibition or consent to be a justification depends, finally, on how one perceives the interest protected by the legal system. Is there a general interest in not permitting forcible, nontherapeutic bodily contact? Is this interest violated even in cases of consent? If so, then consent functions at most as a justification for violating the norm protecting this legal interest. Unfortunately, the positive law supplies no answer to this basic question. The way in which the interests underlying the criminal law are perceived depends on a collective judgment of the values basic to society. However society expresses those judgments, its claims of value are open to disagreement and dispute. The classification of consent does not lend itself to clear resolution.

The distinction between claims of justification and claims of excuse proves to be easier to work out than that between justification and elements of the prohibitory norm. Two aspects of self-defense illustrate the distinction. Historically, the common law distinguished between excusable homicide in cases of se defendendo (personal necessity) and justifiable homicide, based on a sixteenth-century statute, 24 Hen. 8, c. 5 (1532). Both se defendendo and the statutory defense were versions of self-defense. Yet, a plea of se defendendo could result at most in an exemption from execution; the successful defendant still suffered forfeiture of his property. In contrast, a successful assertion of the statutory defense resulted in an acquittal, without forfeiture of property.

The common law claim of se defendendo functioned as an excuse rather than a justification. The claim did not presuppose that the homicide victim had initiated the fight. If the fight occurred as a "chance medley" and the defendant then retreated as far as he could and only then killed rather than be killed, the killing would be se defendendo. The claim was grounded in the necessity of the defendant's saving himself, not in the rightness of the killing. The survivor of the chance medley was not held "wholly blameless," as Blackstone put it (p. 187), and therefore suffered a forfeiture of property. In contrast, the statutory defense was grounded in a theory of justification: it recognized the right of innocent persons to defend themselves against aggressors.

Within the contours of self-defense as a justification, controversy persists whether putative self-defense qualifies as a justification. Putative self-defense arises if the defender mistakenly believes that he is under attack. He injures or kills the innocent person he regards as the aggressor and then seeks to avoid liability for battery or homicide. Both the common law and American legislation group putative self-defense with actual self-defense. West German law rigorously distinguishes between the two, and this position appears to be the better considered. It is difficult to maintain that the defender's belief by itself creates a right to injure an innocent person. Even if the belief is reasonable, there appears to be no warrant for regarding the defendant's act as justified. Justification in cases of self-defense presupposes actual aggression, not merely a belief in aggression. The more plausible view is that the defendant's reasonable belief that he is being attacked merely excuses his injuring or killing the innocent person. Under the current state of the law, it should be noted, treating the defense as an excuse does not entail forfeiture of property.