Title

Objective Versus Subjective Justification: A Case Study in Function and Form in Constructing a System of Criminal Law Theory

Document Type

Article

Comments

Forthcoming in Criminal Law Conversations (Robinson, Ferzan & Garvey, eds., 2009).

Abstract

This short essay, part of the Criminal Law Conversations project, argues for an objective formulation of justification defenses, in which an actor’s conduct is justified if it adheres to the objective rule of conduct that we want people to follow in the future. That is, it argues that justification defenses serve an essential function in announcing the rules of conduct ex ante to state the authorized exceptions to the law’s prohibitions. The essay is critical of a subjective formulation of justification defenses, in which an actor is said to be “justified” if she reasonably believes she is justified even if her conduct is not something we would want others to do in the future. The objective formulation is preferable both because it serves better to define ex ante the criminal law’s rule of conduct, including the exceptions to its prohibitions, and because it produces the correct liability results with regard to the unknowingly justified actor and those who resist and assist him.

Other authors’ comments on this essay and the author’s reply to those comments can be found at http://www.law.upenn.edu/phr/conversations/status/

Available for download at http://ssrn.com/abstract=1141982

Date of Authorship for this Version

June 2008

Keywords

Justification defenses, objective rule of conduct, ex ante, subjective formulation of justification, subjectivity, objectivity