Justification: Theory - Introduction, The Scope Of Justification, The Criteria For Justification, The Role Of The Judiciary
GEORGE F. FLETCHER
See also EXCUSE: THEORY; GUILT.
GEORGE F. FLETCHER
See also EXCUSE: THEORY; GUILT.
To approach the theory of justification, one needs first to understand what a justification is. A justification renders a nominal violation of the criminal law lawful and therefore exempt from criminal sanctions. For example, if the force used in self-defense against an aggressor is both necessary and reasonable, injuring the aggressor is justified and therefore lawful. Those who act in justifiabl…
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 o…
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…
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 c…
American Law Institute. Model Penal Code and Commentaries (Official Draft and Commentaries). Philadephia: ALI, 1985. ——. "Justifications and Excuses: A Brief Review of the Concepts and the Literature." Wayne Law Review 33, no. 4 (1987): 1155–1175. ——. Rethinking Criminal Law. Boston: Little, Brown, 1978. ——. "The Right and the R…
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