Justification: Theory

Three general questions run through efforts to understand the criteria of justification. First, is there one rationale or several to explain why the law recognizes lesser evils, self-defense, defense of others, defense of property, and the use of force in law enforcement as justified? Second, what is the point of requiring an "imminent risk" of harm as a condition for justified force? Third, what is the relevance of the actor's intent in assessing whether his conduct is justified?

Balancing interests and moral qualifications. Those who advocate a unified theory of justification take lesser evils to be the paradigmatic justification. Consistent with this view, the Model Penal Code uses the label "justification generally" to refer to its provision on lesser evils. Taking lesser evils as the paradigm, one is led to regard other justifications, self-defense in particular, as specific applications of the principle justifying the sacrifice of the lesser interest to save the greater.

The view that self-defense is but an instance of lesser evils encounters an immediate difficulty. Virtually all Western legal systems regard it as permissible to use deadly force to prevent rape, to prevent serious bodily injury, and even, in some cases, to protect property. That is, the doctrine of self-defense permits on to sacrifice the greater interest (the life of the aggressor) in order to protect the lesser interest (property or sexual and bodily integrity). This disparity does not lend itself to ready explanation under the principle commanding sacrifice of the lesser interest.

The context of defensive force is distinguished by the wrongdoing and culpability of the aggressor. These factors lead one to discount the interests of the aggressor. If the aggressor's interests are sufficiently discounted—if they are, as it were, partially forfeited—one can perceive the interests of the innocent defender as superior. The weight that attaches to the aggressor's wrongdoing and culpability depends upon how responsible we regard aggressors for their conduct. If the aggressor is viewed as self-actuating and fully responsible, we should be inclined to discount his interest to the point that even minor interests of the defender would permit the use of deadly force, when necessary, to ward off the aggression.

This interpretation of self-defense illustrates the limits of lesser evils as a paradigmatic justification. The moral factors of wrongdoing and culpability tilt the scales against the aggressor. Yet, these moral factors themselves do not enter the scales as interests that can be balanced against other interests.

Similarly, some cases of permissible abortion, such as abortion to protect the physical health of the mother, might be interpreted as instances of lesser evils. Again, the balancing seems to be skewed against one set of interests (those of the fetus) in favor of another (those of the mother). The skewing derives from treating the fetus as a being with a legal status lower than that of the mother; otherwise, one could hardly regard killing the fetus as the lesser evil. Assessing the legal status of the fetus poses a moral question that goes beyond the balancing of interests.

In all these examples, the principle of lesser evils admittedly lies at the core of the inquiry into justification. In some cases, however, moral factors enter the analysis and skew the balancing against the victim of justifiable force.

The requirement of imminent risk. As a second general requirement, the law recognizes claims of lesser evils and self-defense only in cases of emergency. This requirement is expressed in various ways, generally by variations on the phrases "imminent risk" or "direct and immediate risk" as descriptions of the threatened harm justifying the nominal violation of the law. This requirement appears puzzling when it is recognized that the costs and benefits of the defendant's conduct might be exactly the same even though the conduct does not respond to an imminent risk. If, for example, some judges regard the blowing up of the Alaska pipeline as a lesser cost than the feared danger of the pipeline to the environment, why should a private citizen not be able to take the fate of the pipeline into his own hands? As the Model Penal Code defense of lesser evils is formulated—without an explicit requirement of imminent risk—blowing up the pipeline to protect the greater good might well be justified (§ 3.02(2)).

Yet, allowing individual judgments of costs and benefits to range so freely undermines the authority of the legislature to determine the acceptability of such acts as destroying property. Restricting the defense of lesser evils to cases on imminent risk ensures that the legislative prohibition receives due respect. Similarly, restricting the use of defensive force to instances of imminent danger ensures that self-defense does not function as camouflaged revenge or as preemptive aggression against a latent threat. The requirement of imminent risk highlights the exceptional nature of both lesser evils and defensive force.

Relevance of intent. As a third distinguishing feature of justificatory claims, most Western legal systems require that the actor know and act on the circumstances that allegedly justify his conduct. For example, a physician may be about to inject air into a patient's veins in order to kill him. Without knowing of the physician's deadly purpose, the patient strikes the physician (perhaps he is angry about the anticipated fee). In this situation, the objective fact of the physician's aggression would, if known by the patient, justify the hostile response. However, since the patient does not know of the aggression, his assault is not justified. The rationale for requiring this knowledge of justifying circumstances is that a justification represents a good reason for violating the prohibitory norm. The actor does not have this reason; he does not, and cannot, act on the reason unless he knows of the relevant justifying circumstances.

There is thus a practical difference between an issue classified as an element of the prohibitory norm and one classified as a claim of justification. The actor must kill a human being in order to violate the prohibition against homicide. If this element is not satisfied, the actor cannot be guilty of homicide. If, for example, the actor intends to kill but shoots someone who is already dead, the actor is not guilty. It does not matter whether he knows that the intended victim is already dead. Although the objective fact of an already-dead victim precludes conviction for homicide, the objective fact of the victim's aggression does not generate a valid claim of self-defense.

The rationale for this distinction lies in the different roles played by objective circumstances in determining, respectively, whether a norm has been violated and whether the violation is justified. A prohibitory norm is not violated unless all of the objective elements of a violation are present. A predeceased "victim" objectively precludes violation of the norm. A justification, in contrast, does not turn exclusively on objective considerations. As a good reason for violating the norm, a justification requires that the actor be aware of, and act in response to, the objective justifying elements.

To summarize, three themes recur in defining the range of particular justifications. First, moral judgments about the relative worth of conflicting interests skew the balance of interests. Second, a requirement of imminent risk restricts the number of cases in which a claim of defending the superior interest is acceptable. Third, claims of justification should, in principle, consist of both objective justifying circumstances and the actor's subjective awareness of and reliance on these circumstances. The theory of justification seeks to understand why these elements are thought to be necessary for sound claims of justification.