Law, College of


Date of this Version



Schopp in Pacific Law Journal (1993) 24. Copyright 1993, Pacific Law Journal. Used by permission.


The fully competent, culpable, and malevolent Spike azttacks Mother Beneficence with a tire iron in order to steal the alms she has collected for the poor. Mother Beneficence defends herself by kicking Spike in the shins, and Dudley Doright rushes to her rescue, punching Spike in the nose, knocking him to the ground, and holding him until the police arrive. Dudley acts solely for the purposes of preventing harm to Mother Beneficence and bringing Spike to justice.

Both Mother Beneficence and Dudley fulfill the offense elements for assault in that they purposely cause bodily injury to another human being. Most readers, jurors, and theorists would probably agree, however, that they are justified in their actions. The Model Penal Code (MPC) provides justification defenses of self-defense for Mother Beneficence and defense-of-others for Dudley. These defenses would not only exempt Mother Beneficence and Dudley from punishment, they would also ratify their defensive force as correct under the circumstances.

The general characterization of justification defenses as affirmative criminal defenses that ratify the defendant's conduct as acceptable under the circumstances, despite fulfilling all offense elements for some criminal offense, is widely accepted. This formulation distinguishes justification defenses from excuses which exempt the defendant from punishment due to some disability but do not mark the defendant's conduct as acceptable under the circumstances.

Although this broad framework is well-settled, important disputes remain regarding the appropriate classification of hard cases, the parameters of specific justification defenses and of the general category, the moral and conceptual foundations of these defenses, and their significance for the duties and rights of third parties. The defense of duress exemplifies some of these problems in that it is a particularly difficult defense to clearly classify as either a justification or an excuse.

This Article examines the central theoretical issues and difficult cases raised in the contemporary debate regarding justification defenses. The Article also advances a theoretical framework which accommodates these difficult cases and clarifies the parameters of this category of defense. It provides a foundation for this class of defenses in the broader structure of criminal offenses and defenses and in the moral condemnation inherent in criminal punishment. As part of the process of articulating a theory of justification defenses, the Article explores the boundaries that separate justifications from related legal categories, including excuse and mitigation. It does not attempt to develop a comprehensive theory of criminal defenses; however, it addresses these related issues only insofar as doing so advances the primary purpose of articulating the contours of justification defenses.

Included in

Legal Studies Commons