16. objective versus subjective justification - SSRN

OUP ♦ UNCORRECTED PROOF

16. objective versus subjective justification Understanding Trademark Law: A Case Study in Function and Form in Constructing a A Beginner’s Guide System of Criminal Law Theory

paul h. robinson * It is not likely to be controversial to suggest that the goal of criminal law theory ought to be to construct the theoretical system that can provide the best foundation for criminal liability and punishment rules. Central to this enterprise is identifying those distinctions that are most important and useful to serve criminal law’s purposes. Of course, the distinctions that are “most important and useful” will depend upon the system’s distributive principles. A system that seeks to distribute liability and punishment according to desert obviously would rely upon a different set of distinctions than one designed to distribute liability according to dangerousness, or according to efficient general deterrence, and so on.1 The following analysis of the distinctions on which the criminal law ought to rely assumes, among other things, that the criminal justice system cares about whether the actor’s conduct causes a harm or evil, about the blameworthiness of the actor, and about legality virtues such as giving fair notice. Although some academics may disagree with one or all of these assumptions, the assumptions do nonetheless represent the overwhelming view of current American criminal justice systems. The larger point here is that form ought to follow function. There is no universal conceptualization for criminal law that everyone everyOceana’s Legal Almanac Series: where must accept, but the system of criminal law theory that one constructs Law for the Layperson necessarily depends on what one seeks to achieve in the real-world operation of one’s criminal justice system. In the context of general defenses, the most important and useful distinction may be that between justification and excuse. In both instances a defendant is acquitted even though his conduct violates a prohibitory norm. However, the theory underlying the acquittal is quite different in the two instances. The gist of the justification acquittal is that the defendant did the right thing, and that we would be happy to have others do the same thing in the same situation in the

by Linda A. Tancs

Oceana®

* Colin S. Diver Professor of Law, University of Pennsylvania. This core text is drawn largely from Paul H. Robison, Structrue and Y Function NEW O R K in Criminal Law ch. 5C (1997); Paul H. Robinson, Competing Theories of Justification: Deeds vs. Reasons, in Harm and Culpability 45–70 (A.T.H. Smith and A. Simester eds., 1996). 1. See generally Paul H. Robinson, Distributive Principles of Criminal Law: Who Should Be Punished How Much? (2008).

Tancs-Frontmatter.indd i

Robinson-Chap-16.indd 343

1/29/2009 6:34:36 PM

4/27/2009 9:49:09 AM


criminal law conversations

future. In contrast, the gist of the excuse acquittal carries the opposite implication for our view of the defendant’s conduct. We excuse the actor because of his blamelessness, but condemn his act, and would not want others to do the same thing in the same situation in the future. Enter the problematic case of the actor who reasonably believes that her conduct is justified but is incorrect in that belief—she burned the cornfield to save the town from the oncoming forest fire when in fact the fire was a controlled burn by the forest service, or, more commonly, she kills another in what she believes is necessary self-defense when in fact the person she kills was not threatening her or not threatening her with the kind of harm sufficient to justify lethal force. Those who advocate a “reasons” theory of justification and correspondingly a subjective formulation of justification defenses—one is “justified” if one reasonably “believes” that justifying circumstances exist—will want to treat this mistake-as-to-a-justification case as a case of “justification.” In other words, they are happy to minimize or deny the significance of the distinction between actual objective justification and a mistaken belief in justification. They believe that mistake-as-to-a-justification cases are most usefully grouped with the objective justification cases, with these two kinds of justification cases standing in contrast to excuse defenses.2 Those who advocate a “deeds” theory of justification and correspondingly an objective formulation of justification defenses—one is “justified” only if one’s conduct does actually avoid a greater harm or evil—will want to treat this mistake-as-to-a-justification case as an excuse. (Logic and law require, of course, that the mistake be reasonable to fully excuse.) In other words, they think it important to maintain and indeed highlight the distinction between actual objective justification andOceana’s a mistakenLegal belief in justification. They think the mistake-asAlmanac Series: to-a-justification cases areLaw mostfor usefully grouped with other excuse defenses, the Layperson with all of these excuses standing in contrast to objective justification defenses. Are there meaningful differences between each of these three kinds of cases and, if so, is dividing line A or B more important?

Understanding Trademark Law: A Beginner’s Guide

by Linda A. Tancs

A Objective Justification (the right deed)

B Subjective (Mistaken) Justification (the right reason) ®

Oceana

(Other) Excuses (general mistake and disability defenses)

NEW YORK 2. I will refer to a “subjective” versus an “objective” approach to formulating justification defenses, but they could as easily be referred to as a “reasons” versus a “deeds” approach, respectively, or a “defendant” perspective versus an “omniscient” perspective.

344 Tancs-Frontmatter.indd i


1/29/2009 6:34:36 PM

4/27/2009 9:49:09 AM


objective versus subjective justification

The objective “deeds” approach distinguishes all three cases and sees distinction A as being far more important than B. The subjective “reasons” approach denies the existence of distinction A, or at least denies that there is anything meaningful in it, and argues instead for using only distinction B. The analysis below hopes to show that the objective deeds approach is a dramatically more useful and clarifying conceptualization than the subjective reasons approach.


i. the fundamental importance of the distinction between actual, objective justification and subjective, mistaken justification As already noted, there is an obvious and important difference between cases of objective justification—the actor’s conduct in fact avoids a greater harm or evil— and cases of subjective, mistaken justification—the actor’s conduct in fact brings about a net harm or evil, although the actor is blameless in doing so (because his mistake is reasonable). This is distinction A above, which the deeds theory highlights and the reasons theory ignores.

by Linda A. Tancs

A. Effectively Announcing Rules of Conduct Ex Ante The distinction has a variety of important practical implications of which a system of criminal law theory must take account. Perhaps most fundamentally, the distinction between these two kinds of cases is important in performing the two primary, and sometimes conflicting, functions of criminal law: setting the rules of acceptable conduct ex ante and adjudicating violations of those rules ex post. Although either a deeds or reasons approach will properly exculpate the blameless actor, thereby serving the latter function,Series: only the objective formulaOceana’s Legal Almanac tion of justification defensesLaw under deeds approach can effectively serve the forthe the Layperson former function. Imagine a swarm of police after a car chase beating a Black motorist for his refusal to follow police directions for surrender. Further assume the beating is objectively unjustified, as unnecessary and excessive, but that the officers are not sufficiently blameworthy to deserve criminal punishment, perhaps because of their poor training to deal with the adrenaline and fear from such a confrontation with an arrestee they think is on PCP. An acquittal under a subjective formulation, holding the conduct “justified,” serves to affirmatively confuse the conduct rules rather than to clarify and reinforce them. Both citizens and other police may take such a “justified” finding as approving of the beating that seems so excessive. In contrast, an acquittal ® under an objective formulation, holding the actor “excused,” would not be seen as approving the conduct but rather condemning it—just the message system needs to send to reinforce N E W Ythe OR K its conduct rules for other officers in the future. To deny the importance of distinction A above as the subjective formulation does—that is, to mix together cases of actual objective justification and mistaken

Oceana



1/29/2009 6:34:36 PM

4/27/2009 9:49:09 AM



belief in justification—is to undermine the law’s ability to effectively communicate ex ante the rules of conduct. Such an approach fails to effectively tell people what they can and cannot do when the same situation as the case at hand arises in the future.


B. Providing a Workable Definition of the Trigger for Defensive Force A different kind of problem for the subjective formulation of justification defenses is found in the practical need for criminal law to define when defensive force may lawfully be used. There is no disagreement here as to the desired rules: A person ought not to be able to lawfully defend against objectively justified aggressive force, but one should be able to lawfully defend against an attacker who only mistakenly believes he is justified (even if the attacker’s belief is reasonable). An analogous point may be made with respect to assisting aggression. A person should be able to lawfully assist an actor who is objectively justified, but not lawfully assist an actor who only mistakenly believes he is justified. The difficulty here is that the subjective formulation of justification defenses—one is “justified” if one reasonably “believes” one is justified—makes it difficult to define the force that one may lawfully resist or assist. Because the subjective formulation has tainted the term “justified” to include not only conduct that is actually, objectively justified (and therefore cannot be lawfully resisted) but also conduct that the actor only mistakenly believes is justified (and therefore can lawfully be resisted), the legal rule cannot simply say “one can defend against unjustified conduct, but one cannot defend against justified conduct.” The subjective formulation must find some other means by which to distinguish objective justification from mistaken justification. This is distinction A above, which the subjective approach has otherwise sought to deny. In contrast, the objective approach use thatSeries: simple rule: “One can defend Oceana’s Legal can Almanac against unjustified conduct, butfor cannot against justified conduct.” A reaLaw the defend Layperson sonable mistake as to a justification is excused under a separate excuse provision. In part because of this advantage, this is the approach taken by the National Commission for Reform of the Federal Criminal Laws and adopted by some states that codified their criminal laws after the National Commission’s 1971 Report.3 The subjective formulation has a serious problem here. In order to define the triggering conditions for defensive force, it must distinguish between objective justification and subjective mistaken justification, but having defined “justification” subjectively, it has worked hard to affirmatively obscure the distinction. Thus, it must improvise some other mechanism, ® which has given rise to what is probably the most obscure and troublesome provision in the Model Penal NEW YORK

by Linda A. Tancs

Oceana

3. See, e.g., N.D.Cent. Code §§ 12.1-05-03–12.1-05-12; Final Report of the National Commission on Reform of the Federal Criminal Law §§ 603–08 (1971).



1/29/2009 6:34:36 PM

4/27/2009 9:49:09 AM



Code (MPC), § 3.11(1). The MPC’s defensive force justifications allow one to use force to defend against “unlawful force,”4 which is defined in § 3.11(1) to mean:


force, including confinement, which is employed without the consent of the person against whom it is directed and the employment of which constitutes an offense or actionable tort or would constitute such offense or tort except for a defense (such as the absence of intent, negligence, or mental capacity; duress; youth; or diplomatic status) not amounting to a privilege to use the force. . . . Come again? To translate, what the provision is trying to do is this: Because it no longer can use the term “justified” to refer exclusively to the situation of actual justification, it must find some substitute term to perform that role. It borrows from tort law the concept of “privilege,” so it can then provide that one cannot defend against force “amounting to a privilege.” But this is not much of a solution, for what the drafters borrow from tort law still is defined nowhere in the MPC. Further, one can imagine the difficulties that will come from a rule that tells people that they can use force to resist “justified” conduct. Finally, the subjective formulation has tainted the concept of “excuse” as much as it has the concept of “justification,” and that, too, comes back to haunt them. They want to tell people that they can use force to defend against an excused actor but, having muddied the justification-excuse distinction, the MPC cannot simply state the rule in that simple form, “one can use force to defend against an excused attack.” Without access to a clean justification-excuse distinction, the drafters are left to give examples of the kinds of defenses they have in mind—“mental incapacity; duress; youth”—and to hope that the user will have the conceptual clarity to extrapolate from these examples of excuse defenses when needed to include excuse defenses listed (aSeries: conceptual clarity that they, Oceana’s Legal not Almanac the drafters, apparently did Law not have). for the Layperson It is, of course, this same self-made problem that has thrown some academics into agonizing over “the perplexing borders of justification and excuse.”5 If one would like a clean border between justification and excuse, which seems important for the reasons discussed above, it would seem a bad strategy to begin your program by assuming a conceptualization of justification that makes it difficult to distinguish objective justification from mistaken justification.

by Linda A. Tancs

C. Summary To conclude, given how essential distinction A is to the effective operation of criminal law’s liability rules, the objective formulation of justification is prefer® able because it highlights the distinction rather than denies it, as the subjective NEW YORK

Oceana

4. See, e.g., Model Penal Code § 3.04(1), § 3.06(1)(a). 5. Kent Greenawalt, The Perplexing Borders of Justification and Excuse, 84 Colum. L. Rev. 144 (1984).



1/29/2009 6:34:36 PM

4/27/2009 9:49:09 AM



formulation does. The significance of the three different kinds of cases might be summarized this way:

Understanding Trademark Law: A Beginner’s Guide (Other) Objective Subjective Justification (the right deed)

Excuses (general mistake and disability defenses)

(Mistaken) Justification (the right reason)

1. Defense basis

Conduct causes no net harm

Conduct does cause a net harm, but the actor is blameless

2. Criminal law function served

ex ante setting of rules of conduct

ex post adjudication of rule violation

3. Do we want to tell others they can do the same thing in the same situation in the future?

by Linda A. Tancs yes

no

4. Can one lawfully defend against?

no

yes

5. Can one lawfully assist?

yes

no

justified

excused

6. Labeling under objective formulation

Oceana’s Legal Almanac Series: “privileged” Law for the Laypersonjustified

7. Labeling under subjective formulation

excused

(MPC §3.11(1))

ii. the liability errors generated by the subjective formulation What has been said above focuses on matters of labeling clarity in liability rules and effectiveness in announcing ex ante the rules of conduct. What some people will see as a more direct criticism of the subjective approach is found in the erroneous liability results that such an approach generates. ® In cases of mistake as to a justification, the subjective approach may well invite error. The complexity andNopacity E W YofOthe R KMPC’s attempt to make the defensive force provisions work using § 3.11(1) illustrates the point. Any code that takes the subjective approach will have the same difficulties. But at least the MPC is trying to get to the proper liability result.

Oceana



1/29/2009 6:34:36 PM

4/27/2009 9:49:09 AM



The same cannot be said for the liability results in the reverse sort of cases— where the actor believes that her conduct is not justified but in fact it is objectively justified. The actor burns a neighbor’s cornfields as a lark, only to find out later that it provided a needed firebreak that saved the town from an oncoming forest fire. Should the actor be fully liable for property destruction, or is the case conceptually analogous to an impossible attempt, thus calling only for attempt liability? What supports a finding of liability here is not a resulting harm or evil—in this instance there is a net good—but rather the actor’s demonstrated willingness to break the law, the precise point of punishing impossible attempts. Attempt liability is not only a good fit conceptually but also matches people’s intuitions. The empirical evidence on the community’s intuitions regarding the unknowingly justified actor is clear. He is not punished at the full liability level, as if the absence of the net resulting harm were irrelevant, but rather is punished at a reduced level that matches that typically given for attempt liability.6 The subjective approach to justification defenses generates the wrong result in these cases. Because the actor does not “believe” his conduct is justified, the existence of the objective justifying circumstances and the absence of a net harm are treated as irrelevant and full liability is imposed. The objective approach, in contrast, gives a justification defense for the burning—the act is justified because it avoids a greater harm—but imposes liability under the standard attempt offense for the actor’s manifest intention to commit the offense.7 Indeed, that’s not the end of the liability problems for the subjective formulation. Imagine that the owner of the cornfield cares more for his property than for the town and, even though he knows of the approaching forest fire, he would like to use force to resist the burning. The subjective formulation, by taking away the justified status of the burning, gives the owner that Series: right—to resist the burning Oceana’s Legal Almanac that will save the town. Similarly, a bystander who knows the true situation and Law for the Layperson who seeks to help in the burning and to resist the owner’s interference with it, cannot lawfully do so—the owner’s interference is not “unlawful” force and thus will not trigger a right to use defensive force. The point here is that, to properly control the right of resistance and assistance in situations of justification, the law must look not to the subjective state of


by Linda A. Tancs

6. Paul H. Robinson and John M. Darley, Testing Competing Theories of Justification, 76 N.C. L. Rev. 1095, 1124, esp. tbl.3 (1998). 7. E.g., Model Penal Code § 5.01(1)(a) and (b). Of course, if one believes that resulting ® harm is insignificant and that all attempts should be punished the same as the substantive offense, then this is not a liability error be RofKconcern—an example of the differN Ethat Wwill YO ences that might flow from a disagreement with the basic assumptions described at the beginning of this core text. Even for these academics, however, the subjective formulation’s liability results still suffer the other problems noted in the text immediately following.

Oceana



1/29/2009 6:34:36 PM

4/27/2009 9:49:09 AM



mind of the original actor but to whether the original conduct is objectively justified. Because the subjective formulation of justification defenses focuses on the original actor’s state of mind, it generates the wrong results in each instance— results that undermine society’s interest in having the firebreak burned and that are inconsistent with the community’s intuitions of justice. The objective formulation, in contrast, recognizes the justified nature of the original conduct and thereby prohibits interference with it and authorizes assistance of it. The field’s owner cannot lawfully interfere with the burning, and the bystander can lawfully assist in the burning and resist interference by the owner, the correct results on all counts—results that advance society’s interests in having the firebreak burned and that are consistent with the community’s intuitions of justice. The discussion above might be summarized as shown in the following table.


by Linda A. Tancs 1. Liability for actor who makes a reasonable mistake as to justification?

Under an Objective Formulation

Under a Subjective Formulation

no liability, defense under a separate excuse for mistaken justification

no liability, “justified”

conduct justified, but unjustified, full liability liable for attempt –inconsistent with –consistent with community intuitions intuitionsSeries: –wrong result to advance Oceana’s community Legal Almanac – right result to advance societal interests Law for the Layperson societal interests

2. Liability for actor whose conduct is unknowingly justified?

3. Liability for actor who, knowing of justifying circumstances, interferes with unknowingly justified act?

liability (unjustified in resisting justified conduct) –consistent with community intuitions –right result to advance societal interests

no liability (justified in resisting unjustified conduct) –inconsistent with community intuitions –wrong result to advance societal interests

4. Liability for actor who, knowing of justifying circumstances, assists unknowingly justified act or interferes with resistance to it?

no liability (justified in resisting ® unjustified conduct) –consistent with NEW YORK community intuitions –right result to advance societal interests

liability (unjustified in resisting justified conduct) –inconsistent with community intuitions –wrong result to advance societal interests

Oceana



1/29/2009 6:34:36 PM

4/27/2009 9:49:09 AM



iii. objections to the objective formulation


Against these advantages of the objective formulation of justification, what do the proponents of the subjective formulation have to offer? There is a small literature on this, of course, but the responses seem to commonly come down to one of three lines of argument. A. Announcing Conduct Rules Through the Defendant’s Mistaken Perspective Some people may dispute the claim that an objective formulation is needed to properly announce and reinforce the system’s rules of conduct for future use. After all, they suggest, the subjective formation can advertise the proper rule of conduct, but it does so by looking at the situation from the defendant’s perspective. The law judges the propriety of the conduct but under the circumstances as the defendant believed them to be. The problem with this approach is that it does not take account of how the ex ante communication process actually works. Consider that in most cases of justification, the justifying circumstances actually exist and the actor knows of them—shooting an attacker in self-defense. Thus, even under a subjective formulation, the public naturally comes to associate the term “justified” with actually, objectively justified. When a mistaken justification case arises, as with the excessive beating of the Black motorist, it is natural enough that people take a finding of “justified” to have the same meaning as they have observed it to mean in the past—that the conduct is being judged objectively justified. There is no mechanism under the subjective formulation by which they are specially signaled that this case is different from the previous cases where “justified” conduct was objectively justified. Further, even if most cases were instances of mistaken justification, it is unreOceana’s Legal Almanac Series: alistic to think that the public willfor takethe their conduct-rule lesson from what is in Law Layperson the defendant’s head rather than from the objective facts. As with the video tape of the beating of the Black motorist, it is easier to know the objective facts and more difficult to know the more complex story by which we may decide to exculpate based on the mistaken belief in justification. Only those with special familiarity with the trial are likely to understand the more obscure subjective mistake claims. Objective facts are billboards; mental states are long speeches. Effective communication of the rules of conduct is most common and most effective through the former, and less likely through the latter. Part of the subjectivist’s confusion may arise from a mistaken belief that a future actor will use the cases of mistake as to ® a justification to guide her conduct—she needs to know which mistakes will be excused and which won’t. But NEW YO K future actor. It fails to see that this approach misconceives the perspective ofRthe the future actor will always think the circumstances actually are as she believes them to be. She does not know at the time that she is mistaken. From her perspective, it is only the objective rules of conduct that govern her actions.

by Linda A. Tancs

Oceana



1/29/2009 6:34:36 PM

4/27/2009 9:49:09 AM



The rules governing mistake-as-to-a-justification may be relevant to others but not to her.


B. The Need to Announce a Defense for a Reasonable Mistake as to a Justification It might be argued that people at least need to know that a mistake as to a justification excuse exists because, if it does not, then they may refuse to act in the face of justifying circumstances for fear that they might, for unknown reasons, be mistaken. True enough. However, this argument does not support a subjective formulation of justification defenses. First, it has no application where the actor has an independent motivation to act, as is common in justification situations. If the alternative to a person acting is her getting injured, she won’t spend much time worrying about the availability of a mistake defense. More importantly, even if the future actor has no independent motivation to act—such as the person deciding whether to set the firebreak to save a town of strangers—the actor can be as effectively assured of a reasonable mistake defense by the existence of an independent excuse defense for a reasonable mistake as to a justification. There is nothing in formulating justification defenses subjectively that advances this goal. Indeed, one could argue that the availability of such a mistake defense might be better advertised by an independent defense provision titled “defense for a mistake as to a justification” than by the subjective formulation of justification defenses. In any case, neither this line of argument nor the one above does anything to address the problem of the erroneous liability results, discussed previously in Section II.

by Linda A. Tancs

C. The Unfairness ofOceana’s Labeling asLegal Only “Excused” Actor Who Reasonably Almanacan Series: Believes She Is Justified Law for the Layperson Another worry that seems to motivate those supporting a subjective formulation goes something like this: The reasonably mistaken actor has done the right thing from his point of view and is blameless, so it would be unfair to categorize him as only “excused” and not “justified.” But of course all cases of a reasonablemistake excuse, whether concerning mistake as to a justification or mistake as to a prohibition, involve people who think they are acting lawfully because of their mistaken view of the circumstances. When a person votes in the mistaken belief that it is lawful for her to do so because an election official told her so, she is in the same moral position as a person who burns the firebreak mistakenly believing her conduct is justified by a coming forest fi ®re that does not in fact exist. They both made a reasonable mistake in believing that their conduct was lawful. If we N Eexcused, W YOR are happy to hold the illegal voter asKshe would be under Model Penal Code § 2.04(3)(b)(iv), on what grounds does the field burner have grounds to complain about being only “excused”?

Oceana



1/29/2009 6:34:36 PM

4/27/2009 9:49:09 AM



The complaint (of the unfairness of being given only an “excuse,” not a “justification”) works only if one begins with the assumption that the term “justified” has a prior fixed meaning that includes “acting for the right reason.” But this produces an obvious circularity problem. We must formulate justifications subjectively because the concept of justification is subjective. Not all moral philosophers take this view, but it seems to be only philosophers who do. Some apparently assume that the term “justified” has an independent and fixed meaning that criminal law is obliged to follow—a view that may reflect a larger view that criminal law theory, and thereby the criminal justice system’s legal rules based upon that theory, must adhere to a previously existing meaning of terms (as found in the philosophical literature, for example). If one sees criminal law theory as an intellectual game without important real-world consequences, this is an easy mistake to make. What lawyers know, and some philosophers forget, is that the formulation of criminal law rules can have dramatic real-world consequences. A better view is that criminal law theory ought to be constructed to produce the best real-world results and nothing else. In this connection, Parts I and II have suggested two serious kinds of problems that arise from formulating justifications subjectively, which can be avoided by formulating them objectively. The only persuasive response can be to show that the cited problems do not exist or to show that they are outweighed by equally or more damaging problems that would follow from an objective formulation. In either case, the currency of debate must be making criminal law more effective in performing its functions, not aesthetic consistency with some other literature. In the context of justification defenses, the arguments in Parts I and II suggest that effective performance of criminal law’s functions means purging the concept of justification of any meaning regardingSeries: the particular defendant’s Oceana’s Legal Almanac moral status and having it Law speakfor instead only to the desirability of the actor’s the Layperson conduct. Justification defenses should be used to approve the conduct that people see, in the situation as they see it, as appropriate for another actor to repeat in the same situation in the future. In other words, every adjudication ought to provide an opportunity to broadcast and clarify the relevant conduct rule, rather than to create a worrisome risk of muddling it. With the ex ante educative function thus performed by the justification defenses, the excuse defenses can be applied to judge ex post the moral status of the actor at hand.


by Linda A. Tancs

Oceana® NEW YORK



1/29/2009 6:34:36 PM

4/27/2009 9:49:09 AM



cases of necessity, because both fail to take into account the means by which otherwise justifiable objectives are sought and actually produced. Criminal-law scholars should therefore consider whether, and if so how, to narrow the scope of the necessity defense to exclude certain impermissible means, such as purposeful battery. Common moral intuitions do not have the last word on this matter, of course, but they are an important source of information and deserve a place in this debate, as Robinson and John Darley have persuasively argued.4


4. See, e.g., Paul H. Robinson and John M. Darley, Testing Competing Theories of Justification, 76 N.C. L. Rev. 1095, 1105–07 (1998).

reply paul h. robinson

by Linda A. Tancs

As a preliminary matter, consider John Mikhail’s comment, in which he agrees with the general approach to justification proposed but objects to one aspect: what he says is its “assumption that objective justification should be equated, simply and without further qualification, with conduct that actually avoids the greater harm.” He criticizes the Model Penal Code for taking the same approach. Unfortunately, his comment is based on a false premise. As my treatise and other writings make clear, it is not my view that the balance of interests in justification defenses is limited to a comparison of the tangible harms. Indeed, it is commonly intangible interests that make the difference.1 In the standard selfdefense case, for example, the competing tangible harms are a life for a life. It is the intangible interestOceana’s of society’sLegal abhorrence of aggression Almanac Series:that tips the balance in favor of allowing force against Mikhail does the same disservice Law the foraggressor. the Layperson to the Model Penal Code. The drafters have no intention of limiting the balance of interests to tangible harms, even under the broad balancing of §3.02.2 That is why the provision uses the phrase “harm or evil” (indeed, the section is titled “Lesser Evils”) and why the commentary speaks of “weighing conflicting values”—and why I was careful to use the phrase “harm or evil” in the first paragraph of my core text. Mikhail may be forgiven his error, however, because it is a

Oceana®

1. See, e.g., Paul H. Robinson, Criminal Law 408, 422–3, 428, 443 (1997). And some would argue that some intangible N interests E W YareO so R Kimportant that they can never be outweighed. 2. See Model Penal Code § 3.02 comment (1985). For example, see comment 4 at 17, discussing the “weighing of conflicts values” and disagreements over “which values are absolute or relative.”



1/29/2009 6:34:36 PM

4/27/2009 9:49:09 AM



common one, even among serious criminal law theorists, including here both Mitch Berman (his last paragraph) and Peter Westen (his third paragraph).3 Turning to the main points of attack on the objective theory of justification, consider the comments in terms of the two arguments the core text makes in support of that theory. First, it argues that the distinction between actual, objective justification and subjective, mistaken justification is an important one. This is so because ignoring the distinction, as the subjective theory of justification does, makes it more difficult both (1) to announce clear ex ante rules of conduct and (2) to define the conditions triggering a right to use defensive force. Shlomit Wallerstein appears to agree that the actual-mistaken distinction is an important one and that mistaken actors ought to be excused, not justified. Westen also agrees, but rightly points out that the resulting benefits can be realized only if the system adopts special verdicts that advertise the distinction in case adjudications. I have urged such special verdicts.4 Berman disagrees that the objective theory makes easier the law’s ex ante function of announcing rules of conduct. He makes the standard Type 1 error discussed in Section III.A: He fails to appreciate that future actors will not know of their errors at the time they act, and thus will use the objective, actual justification rules as their guide, not rules relating to mistaken actors. As to the problem of an effective triggering condition for defensive force, he appears to concede that the Model Penal Code’s subjective approach has a problem, but argues that it can be improved and offers a rewrite. But remember that this rule must serve as a rule of conduct for laypersons facing threats and as such should be neither complex nor intricate. His rewrite is as ineffective in performing this function as Model Penal Code language. What is required here is the simple, almost intuitive rule that only the objective theory provides: “one can defend against unjustified conduct.” Oceana’s Legal Almanac Series: Second, the core text argues thatthe the objective theory of justification ought to Law for Layperson be preferred over the subjective theory because the former gives correct liability assessments—attempt liability for the unknowingly justified actor, no defense for knowingly resisting an unknowingly justified actor, and no liability for knowingly assisting an unknowingly justified actor—while the latter gives incorrect results. Its results are “correct” because they are consistent with community intuitions and provide the correct incentives to advance societal interests. Westen agrees that the objective theory results are preferable. His complaint is that I don’t give enough credit to moral philosophy, where some have long supported these results, such as Plato. Wallerstein, who supports the “mixed” theory of George Fletcher, in which justification ® requires that both objective and


by Linda A. Tancs

Oceana

NEW YORK

3. See Berman comment at para. 359; Westen comment at para. 354. 4. See, e.g., Paul H. Robinson and Michael T. Cahill, Law Without Justice 210–12 (2006); Paul H. Robinson, Structure and Function in Criminal Law 204–07 (1997).



1/29/2009 6:34:36 PM

4/27/2009 9:49:09 AM



subjective requirements be satisfied, prefers contrary results but offers no explanation for why they ought to be preferable. She would have the law authorize the farmer to prevent the firebreak that the farmer knows is needed to save the townspeople, a result contrary to common sense, if not more. Berman concedes that the objective theory has the right results with regard to assisting and resisting the unknowingly justified actor, but argues that the subjective theory also could come to these results. The core text, he complains, “misdescribes the outcomes a subjective formulation directs.”5 This seems something less than fair, however, given that the core text describes the results that people have always assumed the subjective Model Penal Code provides. It turns out that what Berman is really suggesting is that one could construct a special rule to alter the Model Penal Code’s results to match those of the objective theory. In contrast, with regard to liability for the unknowingly justified actor, Berman would create no special rule and defends the Model Penal Code’s full liability. However, he offers no explanation for why people’s intuitions and society’s interests should be sacrificed. Indeed, even under the deontological analysis that he seems to prefer, the unknowingly justified actor is in a morally analogous position to the impossible attempter. Neither actor has injured society (indeed, the unknowingly justified actor has benefitted from it), but both mistakenly believe that they have. On what grounds can one justify punishing the unknowingly justified actor more? Note also the peculiarity of Berman’s position here: The unknowingly justified actor is not justified, while the person assisting him is justified. So much for Berman’s earlier claim that his theory would do better in announcing an ex ante rule of conduct. What rule of conduct is one to draw from these conflicting dispositions about theOceana’s permissibility of the burning?Series: Legal Almanac A broad view of the debate suggests thatLayperson the best critics can do is to argue that Law for the the subjective theory of justification is not quite as bad as claimed or that, with some special rules, its problems can be minimized or fixed. But why bother? What is missing in the attacks is an argument for why the subjective theory should be preferred despite its problems. In the end, I suspect that support for the subjective theory lies in the standard Type 3 error discussed in Section III.C: that people commonly start with a premise that justification must be subjectively defined because it has been so in some previously existing literature, then set themselves to defend that unreasoned premise.


by Linda A. Tancs

Oceana® NEW YORK

5. Berman comment at 358.



1/29/2009 6:34:36 PM

4/27/2009 9:49:09 AM