9

Beyond the Justication/Excuse Dichotomy

Douglas Husak

Every philosopher of criminal law is well acquainted with the approach that
characterizes an enormous amount of contemporary scholarship. Penal theorists
frequently begin by describing a particular example (or a type of example) in which
a defendant engages in conduct that breaches a criminal statute of uncontested
validity. In the circumstances in which the offence is committed, the defendant has
a claim that seemingly entitles him to complete exculpation (or perhaps to mitiga-
tion of his sentence). The theorist then asks (what I will call) the fundamental
question: Is the defendants claim best conceptualized as a justication or as an
excuse? The theorist then proceeds to explain why the reply is important for a
variety of substantive purposes. For example, would third parties be permitted to
assist the defendant, or would they be entitled to resist him? Could this plea
possibly conict with that of another person? Depending on how he proposes to
understand the nature and signicance of the distinction between justication and
excuse, these latter issues are said to be resolved by the answer to the fundamental
question.
Essays that exemplify the above approach are too numerous to mention. But
much of the voluminous literature on battered women is illustrative (Symposium
1996). Suppose we begin with the intuition that women are permitted to kill their
partners when they are subjected to a lifetime of serious abuse and have exhausted
all reasonable means of escape. We should not understand them to allege that their
predicament has impaired their capacities to behave according to law. This inter-
pretation of their situation is grossly unsympathetic and insulting. From this
starting point, the battered womens syndrome is better construed as a justication
than as an excuse. If we want only to allow killings under the most extreme
circumstances, however, we may have little option but to conceptualize this plea
as an excuse (Dressler 2006).
Of course, the actual thought processes of a theorist may move in the opposite
directionfrom the general to the particular. Paul Robinson, for example, argues
that all justications have a common rationale; they serve to render acts permissible
by outweighing the harm given statutes are designed to prevent. Therefore, the
parameters of self-defence must be intelligible within a consequentialist framework.
If a defendant really is justied in killing her aggressor, the value of the life of the
victim must somehow be discounted relative to that of the agent who is attacked

Beyond the Justification/Excuse Dichotomy. Douglas Husak.

Oxford University Press 2011. Published 2011 by Oxford University Press.
142 Responsibility
(Robinson 1982). Robinsons view becomes especially problematic if dozens of
culpable aggressors threaten one innocent defendant. Can the value of a single
innocent life really outweigh that of hundreds of culpable aggressors? In any event,
Robinson insists that we should be willing to categorize an exculpatory claim as a
justication only if we are prepared to accept this implication.
Regardless of where the thought processes of a given theorist begin, the unartic-
ulated assumption that almost certainly underlies the foregoing structure of argu-
ment is that justication and excuse exhaust the terrain of substantive defences.1
Henceforth I will call this the exhaustive assumption. According to the exhaustive
assumption, if a defendant who commits an offence deserves to be acquitted, and is
entitled to it as a matter of justice, his defence must be either a justication or an
excuse. Although the exhaustive assumption rarely is defended explicitly, the basis
of its plausibility is relatively clear. After all, if a given defendant has engaged in
presumptive wrongdoing by committing an offence and thus requires a defence in
order to be acquitted, there are only so many ways he might successfully exculpate
himself. Presumably, all exculpatory considerations either show that agents are not
blameworthy or that the acts they perform are not wrongful all-things-considered.
What other types of considerations could possibly exist? If action is construed
broadly, to include the results of behaviour and the circumstances in which it is
performed, and agency is understood to encompass any characteristic of the defen-
dant that is relevant to his desert, nothing seems to remain that could provide the
basis of a defence. The contrast between agents and acts, of course, just is the
foundation of the distinction between excuse and justication. Perhaps such
thoughts help to explain why some commentators go so far as to dene excuse
as the absence of justication. Peter Westen, for example, writes: Excuse, as
I dene it, is a category that encompasses all exculpatory defences that do not
consist of either absence of actus reus or justication (Westen 2006: 307).
Since actus reus is part of an offence, the only possible types of defence, according to
Westen, are justication and excuse.
Elsewhere I have challenged such characterizations in the context of inquiring
whether justication and excuse are serially related and stand in a logical priority
(Husak 2005). I argued that neither defence should be dened to preclude the
availability of the other. Conceptual grounds should not be invoked to conclude
that a defendant cannot be both justied and excused for the same conduct
simultaneously. Clearly, the logical priority thesis is not equivalent to the exhaus-
tive assumption: Excuse could be dened to preclude the possibility of a justica-
tion even though additional defence types should be countenanced. But these two
positions are closely connected in the minds of commentators, and many of the
arguments for or against one thesis can be adapted to support or oppose the other.
We should be just as reluctant to invoke conceptual grounds to conclude that no

1
By a substantive defence, I mean a defence that bears on the desert of the offender, a defence he is
entitled to as a matter of justice and right. All commentators recognize a number of defences that are
not based on desert but promote a public policy objective. Henceforth I should be understood to refer
to a defence as a substantive defence.
 Beyond the Justication/Excuse Dichotomy 143

defence categories other than justication and excuse can exist. In any event, my
subsequent remarks will focus solely on the exclusivity thesis.
No sensible criminal theorist should reject the justication/excuse distinction or
deny that it has been utilized for many important purposes. Conventional wisdom
about this topic succeeds often enough to sustain the research project constructed
upon it. But I have long suspected that penal philosophers tend to place too much
weight on the justication/excuse edice. Commentators typically choose examples
to illustrate the dichotomy at its best. These examples, however, are not chosen at
random; we should not assume that other defences denominated as justication or
excuse must conform to the generalizations that apply to whatever example is
selected. Among other problems, it is not always easy to contrast properties of
agents from properties of the acts they perform. Difculties in drawing the actor/act
dichotomy are acute when behaviour involves an expressive dimension. Suppose,
for example, that my sister and I spend long hours at the hospital while our mother
is dying. My sisters presence is due entirely to her love and gratitude for our
mother, while my attentiveness is caused by my fear of disinheritance if my true
feelings were revealed by my absence. Clearly, morality would differentiate between
my sister and me. But do we perform different acts, or do we differ as agents who
perform identical act-types? I see no good reason to insist that the obvious moral
difference between us must be located in one place instead of the other: my sister
and I may differ in the acts we perform, in our character as agents, or in some
combination of both. The contrast between justication and excuse will be prob-
lematic to the extent that we are unable to distinguish morally relevant considera-
tions that bear on agents from those that pertain to their actions.
Among the most impressive of the many insights in R. A. Duff s masterful
Answering for Crime is his awareness of the strain imposed on criminal theory by the
exhaustive assumption that all defences must be accommodated within the justi-
cation/excuse framework. Duff recognizes that if we are to understand the range of
defences and their different logical structures, we need more distinctions than
[justication and excuse] (Duff 2007: 265). In what follows, I will begin by briey
describing his argument that our defence categories should include (what he calls)
warrants in addition to justications and excuses. This new category is needed to
analyse the status of putative justication. A defendant has a putative justication
when she acts on the basis of propositions she reasonably but mistakenly believes to
be true. Had these propositions been correct, they would justify her action. The
reasoning of the putatively justied actor is impeccable; no one can fault her
behaviour in light of the facts available to her.
Consider Duff s example of the putatively justied agent: Diane visits the house
of her friend and elderly neighbour Bill, who fails to answer his doorbell. Diane
peers inside a window and sees Bill lying on the oor. She cannot attract his
attention by banging on the door, and infers that he must have suffered a heart
attack. She believes an ambulance is needed immediately, and knows that the
nearest phone is inside Bills home. Diane breaks into the house to place the call,
damaging a valuable window. Fortunately, in fact, Bill is merely asleep with his
hearing aid disconnected, and requires no assistance whatever. In this scenario, all
144 Responsibility
respondents would concur that Diane does not deserve to be convicted and thus has
a defence for committing the offence of criminal damage. Had her reasonable
beliefs about Bill been true, she would have been justied in breaching the statute.
But what kind of defence does Diane possess when she is mistaken about the
propositions that would justify her conduct? After all, Diane turns out to have
caused a net harm, that is, a harm that is not actually outweighed all-things-
considered.
Legions of criminal law theorists have approached the issue of putative justica-
tion by asking the fundamental question I posed above (Robinson, Ferzan, and
Garvey 2009). They disagree, however, about how it should be answered. Is
Dianethe putatively justied actorjustied or excused for committing the
crime of criminal damage? This question, of course, invokes the exhaustive
assumption. Duff s contribution to this topic is original. He resists posing the
fundamental question and responds that theorists on both sides of the controversy
are engaged in a futile, procrustean attempt to force all defences into [the categories
of justication and excuse] (Duff 2007: 265). He contends that we require a richer
classicatory schema to adequately conceptualize Dianes defence (Duff 2007:
273). He borrows the needed classicatory schema from epistemology, which
involves a structure analogous to that which applies to beliefs (Duff 2007: 270).
Epistemologists have long recognized that beliefs may be false even though they are
justieda possibility that applies perfectly to Diane. In such a scenario, we
understand the ambiguity in trying to determine whether she should have believed
and acted as she did. Since we should aspire to hold beliefs that are true, Diane
should not have believed that Bill needed emergency assistance, and thus should
not have broken his window. But since rational agents can only be guided by
justication rather than by truth, Diane should have inferred that Bill needed help.
She should not regret her reasoning process, which was awless. Anyone would
hope that agents placed in a similar epistemic position would reason and behave
similarly.
Thus it is misleading to say without qualication either that Diane is justied or
that she is not justied, but merely excused. Her situation differs crucially from a
paradigm case of justicationa case in which her beliefs are correct and Bill really
requires emergency assistance. In such a case, the harm of criminal damage is clearly
outweighed and the offence is justied by necessity. But her situation also differs
crucially from a paradigm case of excusea case in which, although she is blameless
for acting wrongfully, we hope that she would act differently and better if faced
again by a similar situation (Duff 2007: 274). Since labelling Dianes conduct
either justied or excused distorts and conceals important features of her predica-
ment, Duff concludes that a new defence categorythe category of the war-
rantedis needed. Diane is warranted because her reasoning process is perfect,
even though it led her to form a false belief. More precisely, conduct is warranted if
the agent acts on a reasonable belief that there are sufcient, undefeated reasons
(Duff 2007: 2756). Warrants cannot be squeezed into traditional defence cate-
gories; they bear a resemblance to both justications and excuses, but differ
crucially from each.
 Beyond the Justication/Excuse Dichotomy 145

According to Duff, the traditional justication/excuse dichotomy is similarly

inadequate to allow us to conceptualize cases of unknown justicationsituations
that involve the converse of putative justication.2 Duff s example of unknown
justication involves Don, who maliciously breaks the window of Janes house in
order to settle an old grievance against her. Unbeknownst to Don, however, poison
gas is leaking in the house, and Jane would have died from suffocation had the
broken window not allowed fresh air to enter. If Don had known the facts and
broken the window in order to save Janes life, all respondents agree that his offence
of criminal damage would have been justied. But theorists disagree about whether
he has a defence for his crime in light of the fact that he does not act for, and is
unaware of, the facts that would have provided the basis of his justication. In such
scenarios, we cannot express everything that is morally relevant while operating
within traditional defence categories. Clearly, a third party who knows the truth
about the poisonous gas would be permitted to assist Don to break the window.
But it hardly follows that Don must also be justied in committing criminal
damage.
I recount Duff s approach to these topics because I believe he is right to move
beyond the justication/excuse dichotomy. We should not be forced to decide
whether persons who are putatively or unknowingly justied are either justied or
excused, and then make the further supposition that their defence functions like a
paradigm case of justication or excuse. This strategy is a recipe for fallacy and
confusion. In their details, the situations of the putatively and unknowingly
justied agents are unique, unlike any other in criminal law theory. Analyses of
these topics that make the exhaustive assumption in response to the fundamental
question are bound to distort and mislead.
Once we agree to account for the putatively justied agent by expanding our list
of defence types, why restrict our nal count to three? How many distinct kinds of
defence should we countenance? The answer to this question, of course, depends
largely on the substantive outcomes we want to reach. We need a set of distinctions
sufciently rich to enable us to express our intuitive judgements about the several
hypothetical cases commentators have posed. Less obviously, our answer also
depends on what we should treat as a type. What some commentators regard as
distinctions within the categories of justication and excuse might just as well be
conceptualized as new defence kinds. We could invent any number of classicatory
schemes to assimilate distinct pleas into common categories. The possibilities for
innovation seem almost endless once we realize that not all substantive defences
need be pigeon-holed into the justication/excuse dichotomy. New alternatives
come to our attention if we appreciate the poverty in the menu of options we had
been offered. Some defences that reect on the desert of the defendant are exactly

2
Although I believe that Duff is correct to step outside traditional defence categories to resolve this
issue, I am less convinced by the solution he proposes. He believes that commentators who would grant
Don a justication are best construed as proposing to redraw the boundaries between offences and
defences, redening the crime of criminal damage to require that damage be caused unjustiably.
146 Responsibility
like neither justication nor excuse. They may resemble one defence type more than
the other, but differ in important respects from both.
Why have theorists been so reluctant to supplement the available defence
categories? No single answer can be given. But I suspect that one reason penal
theorists have explored this possibility so infrequently is because they tend to
assume that the available types of defence have a similar structure and function in
morality and law, and that moral philosophers concur in making the exhaustive
assumption. J. L. Austin, the philosopher who inspired much of the subsequent
commentary on justication and excuse written by criminal theorists, apparently
did not entertain the possibility that other defence types might exist (Austin 1956
1957). Vera Bergelson, for example, asks: Why should it matter whether a defence
is dened as a justication or excuse as long as it frees the defendant from
punishment? (Bergelson 2009: 307). She replies: The most basic answer is that
the nature of exculpation matters because criminal law closely follows societal moral
judgments (Bergelson 2009: 307). For the most part, I believe her answer is
correct; I fully concur with Duff s claim that each defence category should
function in legal thought in at least roughly the way that it functions in extra-legal
moral thought (Duff 2007: 266, emphasis added). Still, as Duff is all too aware, the
parallels are imperfect. Even if moral philosophers have been slow to recognize the
diversity in defence categories, the many general similarities between the structure
of moral and legal systems should not blind us to their important differences.
Several of these differences indicate the desirability of moving beyond the justica-
tion/excuse dichotomy.
Systems of criminal justice exhibit features that have no close analogue in the
moral domain, some of which complicate efforts to base the former on the latter.
Among the most prominent such feature is that the content of criminal offences has
a canonical formulation. Morality recognizes nothing comparable to a legislature to
dene the elements of particular crimes. In the domain of moral thought, the
content of wrongs is frequently contested. Persons who are persuaded that a token
of behaviour is morally permissible all-things-considered often have the option to
describe a prohibitory norm so that the action in question does not infringe it. If no
infringement occurs, no defence for the conduct is needed. Penal statutes, by
contrast, are authoritatively drafted by legislatures. These legislators place an
upper limit on the degree of complexity they are willing to tolerate. If we are
convinced that a token of behaviour should not be punished, we generally lack the
option of contending that it falls outside the parameters of a criminal offence. We
typically have no recourse but to locate the basis of exculpation in a defence.
Many examples of this phenomenon might be given. Suppose the legislature
enacts an assault statute to proscribe a touching. Imagine that Smith recognizes his
friend Jones on a noisy subway, and lightly taps the latters shoulder. No one
contends that Smith should be punished for his behaviour. But why not? Presum-
ably the sensible exercise of police and prosecutorial discretion spares courts from
the need to answer this question in the real world. But what defence would be
available to Smith if a zealous prosecutor brought charges? From a moral perspec-
tive, we are likely to answer that Smith has done nothing wrongfulnot even
 Beyond the Justication/Excuse Dichotomy 147

presumptively. Thus he requires nothing analogous to a moral defence for his

conduct. From the perspective of the criminal law, however, this answer is unavail-
able. Unquestionably, Smith did commit the offence of assault as so dened, and
thus needs a defence if his conduct should not be subject to liability. Imagine that
we approach this example by posing our fundamental question and invoking the
exhaustive assumption. Is Smiths conduct justied? If not, it must be excused. Let
us alter the example by supposing that Jones did not welcome and would not have
consented to Smiths touching. Or suppose that Smith mistook the person whose
shoulder he touched for that of his friend Jones. Or suppose that Smith was unsure
of the identity of the person he touched, and lightly tapped him on the shoulder to
invite him to turn around. Suppose his guess is correct, or suppose it is incorrect.
Do any of these alterations in the original example change our answer to the
fundamental question? To my mind, the entire exercise is misguided, serving to
illustrate how the solution in the moral arena differs from that in the criminal law.
In the moral realm, our answer to some or all of these questions is that no defence is
needed because Smith did nothing wrongful. Thus the further question about the
nature of his defence does not arise.
In this example we are unable to offer the solution we are likely to prefer in the
moral domain because the statute in question is overinclusive. The assault statute
literally proscribes behaviour that we do not regard as presumptively wrongful from
a moral point of view. It is tempting to believe that overinclusive statutes necessarily
involve sloppy draftsmanship. They should not have been enacted, and should be
repealed if they exist. Frequently this allegation is true; it is difcult to justify the
punishment of persons who breach overinclusive penal statutes (Husak 1998b).
Still, overinclusive legislation serves important objectives we neglect at our peril
(Buell 2008). Moreover, legality demands that criminal prohibitions must be given
a canonical description, and it is not easy to redraft an assault statute so that any or
all of the examples I have described fall outside of it. In any event, even if many or
all overinclusive penal statutes can and should be replaced by laws that are more
narrowly tailored, the unfortunate reality is that such laws are ubiquitous in systems
of criminal justice. In light of this fact, can we possibly argue on Smiths behalf that
the statute in question should not have been enacted in the rst place? This defence,
even if a judge could be persuaded to accept it, appears to be neither a justication
nor an excuse.3 Of course, a judge should not accept it; Smiths complaint is more
appropriately addressed to legislatures than to courts. Needless to say, these
separation of powers considerations have no analogue in moral theory.
We need not focus on overinclusive statutes to appreciate how differences
between penal and moral proscriptions complicate efforts to draw the same distinc-
tion between justication and excuse in the two domains. The content of the
wrongs in each sphere may differ fundamentally as well. Mens rea, of course, is
required for virtually all penal statutes; strict liability in the criminal law is widely
disfavoured. Many philosophers, however, believe that moral prohibitions differ in

3
Robinson would call this plea an offence modication, but is ambivalent about whether it is an
instance of what he calls a true defence.
148 Responsibility
this respect. According to John Gardner, for example, the ordinary or basic kind of
wrongdoing typically is strict. In other words, the content of moral norms rarely
includes reference to the culpability of the agent (Gardner 2001). Duff concurs in
this controversial position (Duff 2007: 75). We commit moral wrongs when we
kill, injure, take what does not belong to us, or upset people, regardless of whether
we cause these results culpably. If the content of penal proscriptions and immoral
behaviours differs in this way, the contrast between justication and excuse will
diverge substantially in the two domains. A defendant who takes the umbrella of
another while reasonably believing it to be his own has not committed the crime of
theft. He is acquitted not because he possesses a defence, but because he has not
committed an offence in the rst place. By contrast, if moral norms are strict, this
person has engaged in moral wrongdoing. If he is exempted from blameas surely
he ishis mistake must provide a defence for his conduct. The exculpatory
consideration that negates wrongdoing in one domain concedes but excuses it in
the other. Thus the parallels between law and morality are not as close as one might
have supposed. It is misguided to think that the similarities between these two
domains somehow lend support to the exhaustive assumption. I confess to uncer-
tainty about why this assumption is so pervasive.
Once we begin to supplement the traditional defence categories of justication
and excuse and no longer attempt to shoehorn given pleas into one place or the
other, there is no reason to stop with the warranted. Elsewhere I have argued that
the criminal law might recognize (what I have called) quasi-justications (and
perhaps even quasi-excuses) (Husak 2010). This category may be needed to account
for the exculpatory force of the de minimis plea. Suppose we are persuaded that a
defendant does not deserve to be punished for his rst offence of stealing a single
piece of bubble gum from a store. Since his conduct unquestionably satises all of
the elements of a theft statute, he needs a defence to be exculpated. How should we
conceptualize his defence? Again, we may be misled by an uncritical reliance on the
supposed parallels between moral philosophy and criminal theory. In the moral
domain, conduct generally is regarded as justied when it is permissible, that is,
when it is not wrongful all-things-considered. Suppose we say, however, that a
person is justied in criminal law not only when his conduct is not wrongful, but
also when his conduct is not wrongful enoughin other words, not sufciently
wrongfulto merit criminal condemnation. According to this train of thought, the
de minimis plea need not cancel, negate, or override the presumptive wrongfulness
of a criminal offence altogether. Instead, the plea need only preclude a sufcient
degree of the conducts presumptive wrongfulness to render the defendant unde-
serving of punishment. After all, a penal conviction is and ought to be stigmatizing.
Labelling a person as a criminal conveys not only the message that he acted
wrongfully, but also that his wrongful act rises (or sinks) to a level of seriousness
that makes the application of that label appropriate.
If I am correct, a principle of fair labelling governs not only particular crimes, but
also applies to the criminal category as a whole. The criminal law is and ought to be
different from other devices to convey censure (Husak 2008). In the moral domain,
innitesimal amounts of wrongdoing and blame are cognizable. But a principle of
 Beyond the Justication/Excuse Dichotomy 149

retributive justice should allow the punishment only of persons whose conduct is
wrongful enough to merit the powerful stigma of a criminal conviction. Criminal
blame is not simply a judgement of censure. It is a judgement that is publicly and
formally expressed, and used for countless practical purposes that disadvantage
those to whom it is applied. A given offence must be relatively serious if a
conviction should automatically trigger a wide variety of collateral consequences.
As long as we want a criminal record to retain its expressive meaning and real-world
signicance, we should not impose penal liability on a trivial breach.
Again, these thoughts about penal liability reect a subtle difference from the
way defence categories function in morality. In cases of de minimis, the defendants
conduct, although unquestionably wrongful and blameworthy, is not wrongful or
blameworthy enough to merit punishment. The plea I have described, if we decide
to accept it, is not exactly a justication or an excuse. I call this plea a quasi-
justication to indicate that it more closely resembles that category of defence that
renders conduct all-things-considered permissible than that category of defence
that shows defendants to be blameless. But I have no objection to devising an altogether
different name to depict the exculpatory signicance of de minimis. The important
point is that we should not conclude that a defence lacks a desert base because of
the difculties of classifying it within the justication/excuse dichotomy.4 This conclu-
sion, of course, simply begs the question in favour of the exhaustive assumption.
A different reason to conclude that conduct need not be fully justied to qualify
for a defence from penal liability has recently been defended by Reem Segev
(2010). He points out that defendants rarely behave optimally in cases in which
they cause less evil than would result from conforming to the law. Consider, for
example, a defendant who exposes other motorists to elevated levels of risk by
speeding to rush a severely injured infant to an emergency room. His behaviour
seems to involve a textbook illustration of justication. Suppose, however, that this
defendant could have taken a slightly more direct path to the hospital, decreasing
the quantum of risk he imposes. He is unaware, however, of the shorter route.
Justications ordinarily are dened to require that the defendants act is necessary to
avoid the greater evil.5 Robinson defends this view explicitly (Robinson 1982).
This requirement typically is construed to entail that no better alternative exists
than the choice the defendant makes. In the case I have described, however, the
amount of risk the defendant imposes is not literally necessary to achieve his
laudable goaldespite the fact that he has no option preferable to exceeding the
speed limit. In situations in which defendants behave just a bit sub-optimally,
should we really pronounce their conduct to be unjustied, and therefore merely
excused? Or should we subdivide their conduct into smaller components and say
that some aspects of their act are justied while others are not? As a matter of

4
The formidable problems of classication may lead some commentators to conclude that the de
minimis plea cannot be a substantive defence, but only has a public policy rationale, preventing the
inefcient allocation of criminal justice resources.
5
The Model Penal Codes requirement of actual necessity to justify presumptively criminal
conduct results from the complex interplay between }}3.02 and 3.09.
150 Responsibility
positive law, one would think that a complete justication should be extended in at
least some cases in which the lesser but not the least evil is chosen. To mark the
defence that is granted in this kind of case, we might distinguish strict from relaxed
conceptions of justication (Segev 2010). Alternatively, we could hold that the
latter is an entirely new kind of defence, applying when the defendants conduct is
almost necessary. Segev describes several fascinating permutations of such cases. At
some point, of course, defendants create less evil than would result from conform-
ing to the statute, but the alternative they choose is so inferior to the best option
that we should not allow a defence at all. Commentators who have noticed this
problemsuch as Alexander and Ferzanindicate that they raise the topic not in
order to resolve it here but to ag it as worthy of further consideration (Alexander
and Ferzan with Morse 2009: 107). As far as I can see, no formula governs the
elusive threshold at which behaviour is sufciently sub-optimal to cease to merit
exculpation.
Yet another possibility that might occur to us if we stop trying to shoehorn
diverse defences into two existing categories is that given pleas may share char-
acteristics of both justication and excuse. Paul Robinson describes as accurate his
assumption that a single defence should have a single classication within the
elaborate framework he constructs (Robinson 1982: 240). Although one defence
label (such as entrapment) might refer to multiple defences, Robinson concludes
that the willingness to describe two different defences by the same name signi-
cantly increases the potential for misunderstanding and confusion (Robinson
1982: 240). I see no reason, however, why particular defences must be individuated
by their rationales or categorizations. Many possible schemes to individuate def-
ences are worthy of consideration. After all, given laws might be overdetermined in
the sense that a multiplicity of distinct rationales sufce to justify or explain them.
No one would conclude that a mandatory seat-belt statute must be more than a
single offence, for example, simply because both paternalistic and non-paternalistic
arguments can be marshalled in its behalf. The same is true of defences. If we allow
that one and the same plea may be supported by a number of distinct rationales, we
can entertain the possibility that a particular defence may best be understood as
combining aspects of both justication and excuse. The long-standing debate
among commentators about the nature of duress might be resolved by conceding
that this single exculpatory plea involves properties of the actor as well as properties
of the act he performs. Perhaps we should invent new labels to categorize these
possible types of defence; they are neither pure justications nor pure excuses.
Recently, Mitch Berman and Ian Farrell have proposed an account of the
imperfect defence of provocation that conceptualizes it as both a partial justication
and a partial excuse (Berman and Farrell, forthcoming). Although previous com-
mentators have noticed that the plea of provocation involves features of each type of
defence, they seemed to regard the hybrid nature of this plea as evidence of
confusion that stands in need of rectication. As Berman and Farrell cogently
argue, however, the assumption that these types of defence cannot be combined is
especially dubious when conduct is partially rather than wholly justied or excused.
Because a partial justication only precludes some but not all of the wrongfulness of
 Beyond the Justication/Excuse Dichotomy 151

an offence, at least some of its wrongfulness remains to be excused. In other words,

some blame is warranted when a justication is partial, so an excuse (partial or
whole) still is needed to negate or override any residue of blame that remains by that
part of the wrongful act that is unjustied. If we do not approach these topics by
posing the fundamental question and making the exhaustive assumption, we are
more likely to embrace the possibility that a given plea such as provocation may
coherently combine elements of both justication and excuse.
Duff himself adds at least one category to the warranted to supplement the
traditional justication/excuse dichotomy. Like a number of other theorists, he
proposes to classify some of what have traditionally been called excuses as
exemptions (Duff 2007: 266). According to this train of thought, insanity and
infancy are pleas that deny responsibility, whereas paradigm examples of excuse
(such as cases in which a defendant chooses the greater evil under duress) afrm
responsibility but deny liability. Duff s position seems unassailable if we grant his
central distinction between responsibility (as answerability) and defences (which
concede responsibility but contest liability). Insanity and infancy do differ from
familiar excuses in important respects. Arguably, however, he does not go far
enough. More than a single category of exemptions is needed, since insanity does
not function exactly like infancy, and neither functions like the most obvious case.
A cat or a dog is the most straightforward example of a true exemption; (non-
human) animals lack the capacity for responsibility on any conception. They are
non-autonomous and unable to guide their behaviour by reason, and cannot be
expected to answer an allegation of criminal wrongdoing.6
Juveniles and mentally abnormal offenders are different from animalsand,
I submit, from each other. The former are more easily assimilated to the latter if we
restrict our focus to a mentally abnormal defendant who is suffering from some
serious, all-embracing disorder or deciency, such that he was in general, across all
aspects of his life, incapable of functioning as a rational agentof operating within
the realm of reasons (Duff 2007: 286). But what about the many individuals who
suffer from lesser degrees of mental abnormality? They may be capable of guiding
their behaviour by reason in some circumstances but not in others. In all but
extreme situations, the exculpatory force of mental abnormality is relative to the
offence the defendant has committed.
It is less clear, however, that such distinctions should be drawn for infants; they
are exempted from responsibility for any and all offences. Admittedly, contempo-
rary systems of criminal justice do tend to impose liability on adolescents depending
partly on the seriousness of the crime they commit. The willingness to do so,
however, seems wholly unprincipled; the fact that one adolescent kills while
another shoplifts does not mark an underlying distinction in their capacities that
is relevant to their criminal responsibility. Instead, this tendency seems to reect a
bow to public sentiments that perpetrators of some kinds of offence are so
dangerous that they should not be allowed to escape punishment, whether or not

6
But see the debate about whales in <http://www.nytimes.com/2010/02/26/us/26whale.html?
emc=eta1>. Thanks to Gideon Yaffe for calling this article to my attention.
152 Responsibility
they satisfy criteria of criminal responsibility. As a matter of principle, it is hard to
see why the responsibility of juveniles should vary depending on the seriousness of
the crimes they commit. Their exemption is total; it should not be sensitive to the
type of crime they perpetrate. Treating the mentally ill as similarly exempted
distorts this important difference. At the very least, criminal theorists should
distinguish complete from selective exemptions.
Nor should we suppose that all justications share a similar internal logic. Even
though a particular defence shows conduct to be permissibleor nearly permissi-
bleit does not follow that it must conform to the same general principles that
govern other ways of rendering conduct not wrongful all-things-considered. As
Alan Brudner expresses the point, almost no general statements about legal justi-
cation are true (Brudner 2009: 189). Some justications involve circumstances
that outweigh a wrong; others negate or obliterate the wrong altogether. When a
wrong is outweighed, it is plausible to suppose that it leaves a residue for which the
justied defendant remains responsible and has a duty to rectify. The stranded
hiker who saves his life by breaking into an unoccupied cabin in the mountains
during a blizzard involves a familiar situation in which a presumptive wrong is
outweighed. Presumably the existence of the residue explains why this hiker is
obligated to compensate the owner of the cabin for the loss he has caused. But no
compensation is needed when a presumptive wrong is negated or obliterated
altogether. The defences of consent and self-defence typically function in this
way. It would be bizarre to think that a person whose presumptive wrong is negated
by the consent of the victim owes compensation for a residue that remains after his
wrong has been justied. Self-defence is similar in this respect. An innocent person
who kills his culpable aggressor need not compensate him for the injuries inicted
upon him in self-defence.
In addition, some justications create permissions that a defendant may or may
not exercise, while others involve duties he is required to perform. The defence of
property is an example of the former. A defendant is permitted to use some amount
of force to prevent others from walking across his yard, but he may elect to tolerate
the trespass rather than resort to the degree of force he is allowed to use to protect
his land. If he decides to use force to prevent the trespass, he may be subject to
moral criticism even though he acts within the scope of his property rights.
Conduct that is justied because it is merely permissible may protect the agent
from criminal liability, but it need not insulate him from all moral complaint.
Other justications, by contrast, are the source of duties. Many cases of necessity
provide examples. A defendant who decides not to infringe a statute to prevent a
signicantly greater evil may be blamed for his failure. Only an extremist who
refuses to violate the law at all costs would deny a request to exceed the speed limit
to rush a seriously wounded infant to the hospital.
The fact that not all justications are normatively equivalentthat some leave
residues while others do not, that some involve permissions while others create
dutiesgoes a long way toward showing that theorists should be careful before
drawing inferences about third-party assistance or interference from premises about
justication. It seems plausible to think that Jones should be permitted to assist
 Beyond the Justication/Excuse Dichotomy 153

Smith in the performance of his duties. But why is assistance warranted when
Smiths presumptive wrongdoing is merely permitted? Whether Jones is permitted
to assist Smith depends on a variety of factors other than the judgement that the
latters act is justied. In particular, whether someone is permitted to engage in an
act of presumptive wrongdoing depends on the set of alternatives open to him, and
different alternatives may be available to Smith than those that are available to
Jones. Suppose Smith, our stranded hiker, is permitted to break into a cabin to nd
food. It hardly follows that Jones, his companion, would be permitted to assist
Smiths effort if Jones happens to possess enough food for both. Joness preferable
option, of course, is to share his rations rather than to help Smith commit criminal
damage. Recognition of additional categories of defence helps us to avoid fallacies
that are easily committed if we uncritically suppose that all exculpatory pleas
denominated as justication have a common structure and are governed by similar
general principles. In short, we need to draw important distinctions within the type
of justication defencesor create new categories altogether.
Although I cannot pursue the issue in depth here, we should be equally reluctant
to assume that excuses are of a common kind. Even if we put exemptions to the side,
not all of the defences that absolve agents from blame for unjustied conduct share
an identical structure and conform to the same normative generalizations. Accord-
ing to Jeremy Horders exhaustive treatment, distinct excuses can be placed on a
ladder involving no less than four separate rungs (Horder 2004: 103). All
excuses, he contends, cast such a favourable moral light on Ds conduct that it
seems entirely wrong to convict, at least for the full offence (Horder 2004: 89). If
the concept of excuse is understood this broadlyas I agree it shouldit is
mysterious why the law has been loath to countenance greater numbers of excusing
conditions. To my mind, a great many pleas cast a more favourable light on
wrongdoing. For example, laudable motives often show agents to be less blame-
worthy for their wrongful acts than offenders who act from self-interest (Husak
1989). Horder himself contends that the criminal law should be more receptive to
excuses based on diminished capacity, due diligence, or demands of conscience.
Doubtless the presupposition that all excuses function similarlythat they neces-
sarily involve a disability, for instancehas inhibited the recognition of these (and
other) excusing conditions (Robinson 1982: 221).
So much for complete defences. In addition, I suspect that the exhaustive
assumption may have retarded theoretical work on mitigation. As I propose to
understand it, a theory of mitigation describes the circumstances in which defen-
dants deserve a reduction in the severity of their sentence relative to those who
commit the same crime (with a similar criminal history) in the absence of that
circumstance. In the real world, it is likely that far greater numbers of defendants
who have perpetrated criminal offences are entitled to mitigation than an outright
acquittal. If so, the dearth of scholarship on this topic is puzzling (Husak 1998a).
One possible explanation for this lacuna is the presupposition that partial defences
must exhibit the same structure as complete defences, and complete defences must
be classiable as either justications or excuses. If we begin with these presupposi-
tions, it becomes difcult to understand how some familiar pleas could possibly
154 Responsibility
mitigate. Consider, for example, the but everybody does that! plea (Husak 1996).
This allegation is frequently made when defendants commit given crimes like tax
evasion. Typically, the plea fails on empirical grounds; the defendant probably is
mistaken that all (or nearly all) persons would commit the same offence if placed in
similar circumstances. Suppose, however, the defendant is correct; the vast majority
of persons would have done as he did. Although his plea may not entitle him to an
acquittal, is it wholly immaterial to the severity of the sentence he deserves? The
imposition of criminal liability is designed to stigmatize, and it is hard to see how a
given instance of conduct can be worthy of much condemnation if the average
person would have behaved similarly. Still, the fact that many other persons would
have committed the same crime in the same circumstances seems to function
neither as a justication nor as an excuse. Does this plea show the act to be less
wrongful, or that the person who performs it is less blameworthy? Neither option is
unproblematic. Yet it does not follow that this plea must lack exculpatory force in a
theory of mitigation. The exhaustive assumption that no other defence types are
available may have inhibited recognition of pleas that deserve serious consideration
in a theory of mitigation.
Myriad possibilities become open to us once we move beyond the traditional
justication/excuse dichotomy and recognize that substantive defences need not be
assigned to one of two simple categories. Duff s persuasive treatment of putative
justication demonstrates how theorists are easily misled when they begin by asking
the fundamental question and make the exhaustive assumption in endeavouring to
answer it. Although the presupposition that all substantive defences are either
justications or excuses is not entirely unmotivated, it contributes to distortion
and fallacy in criminal law theory. As in so many other areas in the philosophy of
criminal law, Duff s insights enable him to offer a fresh perspective on topics that
have bafed many of his predecessors. His invitation to supplement the justica-
tion/excuse dichotomy with additional categories of defence suggests new direc-
tions of research that should keep penal theorists busy for years to come.

References
Alexander, Larry and Ferzan, Kim with Stephen Morse (2009). Crime and Culpability.
Cambridge: Cambridge University Press, 2009.
Austin, J. L. (19561957). A Plea for Excuses. Proceedings of the Aristotelian Society LVII:
130.
Bergelson, Vera (2009). Is There Really a Difference Between Justication and Excuse (or
Did We Academics Make It Up)?. Texas Tech Law Review, 42: 307.
Berman, Mitchell N. and Farrell, Ian P. (forthcoming). Provocation as Partial Justication
and Partial Excuse.
Brudner, Alan (2009). Punishment and Freedom. New York: Oxford University Press.
Buell, Samuel W. (2008), The Upside of Overbreadth. New York University Law Review,
83: 1491.
 Beyond the Justication/Excuse Dichotomy 155
Dressler, Joshua (2006). Battered Women and Sleeping Abusers: Some Reections. Ohio
State Journal of Criminal Law, 3: 457.
Duff, R. A. (2007). Answering for Crime. Oxford: Hart Publishing.
Gardner, John (2001). Obligations and Outcomes in the Law of Tort, in P. Cane and
J. Gardner (eds), Relating to Responsibility: Essays for Tony Honore on his 80th Birthday.
Oxford: Hart Publishing.
Horder, Jeremy (2004). Excusing Crime. Oxford: Oxford University Press.
Husak, Douglas (1989). Motive and Criminal Liability. Criminal Justice Ethics, 8: 3.
(1996). The But Everybody Does That! Defence. Public Affairs Quarterly, 10: 307.
(1998a). Partial Defences. Canadian Journal of Law and Jurisprudence, XI: 167.
(1998b). Reasonable Risk Creation and Overinclusive Legislation. Buffalo Criminal
Law Review, 1: 599.
(2005). On the Supposed Priority of Justication to Excuse. Law and Philosophy, 24:
557.
(2008). Overcriminalization. New York: Oxford University Press.
(forthcoming). The De Minimis Defence to Criminal Liability, in R. A. Duff and
S. Green (eds), Philosophical Foundations of Criminal Law (forthcoming, 2011).
Robinson, Paul (1982). Criminal Law Defences: A Systematic Analysis. Columbia Law
Review, 82: 199.
Ferzan, Kimberly, Kessler, and Garvey, Stephen (eds) (2009). Criminal Law
Conversations. Oxford: Oxford University Press.
Segev, Reem (2010). Sub-Optimal Justications and Justicatory Defences. Criminal Law
and Philosophy, 4: 57.
Symposium (1996). Self Defence and Relations of Domination: Moral and Legal
Perspectives on Battered Women Who Kill. University of Pittsburgh Law Review, 57:
461.
Westen, Peter (2006). An Attitudinal Theory of Excuse. Law and Philosophy, 25: 289.