The Nature of Justification


in Action and Value in Criminal Law

Published in print December 1993 | ISBN: 9780198258063
Published online March 2012 | e-ISBN: 9780191681783 | DOI:
The Nature of Justification

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The claim that justificatory elements are like positive elements of the offence — except that the former require the absence rather than the presence of a factual element — has an enduring attraction. It comes in two basic forms — a conceptual and a ‘positivist’ variation. This chapter argues against both of these variations in favour of a so-called ideal theory of justification. The ideal theory of justification holds that despite the nominal realization of the elements of the offence, the conduct is not really wrong, not a violation of the jus or the Law in the ideal sense of Recht, droit, diritto, derecho, and the analogous forms in other languages. A justified act conforms to the Right or the Law in a sense deeper than that captured in a legislative definition of an offence. A statutory definition should be understood as an approximation, by rule, of a principled understanding of wrongful conduct. It states the normal case of wrongdoing, but fails to account accurately for wrongdoing in the extraordinary cases that arise under conflict and under the pressure of circumstances. To deal with these extraordinary situations, we must appeal to claims of justification, such as self-defence and necessity. Under ordinary circumstances, taking the property of another without consent should be treated as theft. Under circumstances of necessity, this conventional definition breaks down; it must yield to an understanding, based on principle, that in an emergency, taking property as the lesser evil is not wrongful behaviour.

Keywords: justification; ideal theory; statutory declaration; justified act; offence

Chapter.  5831 words. 

Subjects: Criminal Law

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