Excusing Necessity and Terror What Criminal Law C

Authors: Alan Brudner

Publish Date: 2008/11/25

Volume: 3, Issue: 2, Pages: 147-166

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Abstract

This essay proposes a theory of excuse that without blending it into exculpation avoids the condonation of crime The question it takes up is given that neither compulsion by circumstances nor by human threats removes the legal reason for punishing how can its exonerating force be rendered compatible with the state’s general duty to punish the guilty The chapter criticizes various proposals for reconciling excuse with the duty to punish the guilty including the moral involuntariness theory the concession to frailty theory and the conformity to moral expectation theory It then proposes a solution moral blamelessness exonerates because it simulates the conditions for legal exculpation Just as the exculpated actor acknowledges the legal norm of mutual respect for agents so does the excused actor acknowledge the public reason of the selfsufficient political community of which the legal norm is a part The author argues that this theory would excuse the altruistic no less than the selfpreferring murderer

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