Justification: Theory

Western legal systems now concur in the principle that the legislature has exclusive authority to define criminal offenses. Nonetheless, there are two distinct theories for recognizing the authority of courts both to apply the general principle of lesser evils and to develop new grounds of justification. The American theory, as reflected in the Model Penal Code, rests on the judgment that the circumstances of justification are so multifarious that one cannot expect the legislature to anticipate all the cases in advance and to provide a specific rule for each case. The nature of the situation requires a delegation of legislative authority to the courts to work out particular rules for specific situations of conflicting interests. If, however, the legislature chooses to regulate possible claims of justification in a particular area, such as that of abortion, the assertion of legislative authority preempts the implied authority of the courts. Section 3.02(2) of the Model Penal Code expresses this theory by making it a condition of "justification generally" and in particular of lesser evils, that "a legislative purpose to exclude the justification claimed . . . not otherwise plainly appear."

The West German theory of justification is not based on implied legislative authority but rather on the principle that every criminal offense must meet two conditions: the offense must be a violation of a statutory prohibition, and the offense must be "unlawful." (The term unlawful is understood broadly to mean a violation of general principles of wrongdoing.) Since the 1920s the German courts have assumed that they have final authority to determine whether conduct is unlawful or wrongful in this sense. A justified act is not unlawful (wrongful), and therefore, the judicial authority to interpret principles of wrongdoing generates independent authority to devise grounds of justification as yet unrecognized by the legislature. In 1927 the German Supreme Court advanced this theory in recognizing a general justification of lesser evils (61 Entscheidungen des Reichsgerichts in Strafsachen 242 (1927) (Germany)). The new justification received its first legislative endorsement in the new West German criminal code enacted in 1975. With this new code now in force, some German scholars would argue that the courts no longer have independent authority to develop new claims of justification.

The American theory of "implied delegation" and the German theory of "wrongfulness as a requirement of every offense" have generated claims of justification similar in their details. Although reflecting different conceptions of judicial authority, both approaches recognize the important fact that claims of justification always operate for the benefit of the accused.