§ 17.02 UNDERLYING THEORIES OF "JUSTIFICATION"

• Jurisdiction: United States

§ 17.02. Underlying Theories of "Justification"⁵

[A] Searching for an Explanatory Theory

As explained in the last chapter,⁶ justified conduct is conduct that under ordinary circumstances is criminal, but which under the special circumstances encompassed by the justification defense is not wrongful and is even, perhaps, affirmatively desirable.⁷ A justified act is one that "the law does not condemn, or even welcomes."⁸

The question for consideration in this section is: What makes ordinarily bad conduct justifiable? Why is it, for example, that D is justified in killing V to protect herself from V's unlawful lethal assault or from V's intrusion into her home, but that she is not justified in killing V to protect her dog or her television from theft? Are the justification defenses of self-defense, defense-of-habitation, and defense-of-property, for example, no more than a conglomeration of rules unrelated to one another, or is there a single moral theory that unifies the various justification defenses—some principle that explains why something bad (socially harmful) becomes good or, at least, tolerable?

It would be convenient if there were a single, unifying principle of justification, but there is none. What follows is a brief summary of various justification principles. These principles can and should be considered when evaluating the wisdom of recognizing particular "justificatory" claims.

[B] "Public Benefit" Theory

At early common law, justification defenses had a strong public-benefit cast to them. Generally speaking, conduct was not justified unless it was performed in the public's interest, and in most cases was limited to the actions of public officers.

For example, Blackstone identified three sets of circumstances in which homicides were justifiable:⁹ (1) when a public officer was commanded to take a life (e.g., when the warden executed a convicted felon); (2) when a public officer, although not commanded to do so, took a life in order to advance the public welfare (e.g., when an officer killed a felon resisting arrest); and (3) when a private party took a life in order to prevent the commission of a forcible, atrocious felony.¹⁰

A homicide in these circumstances is considered justifiable because society benefits from the actor's conduct. But there is more to this justification principle: The benefit to society is not incidental to some self-interested goal of the actor; it is the underlying motivation for the actor's conduct. Although strands of the public-benefit concept remain today, it is no longer the dominant theory of justification.

[C] "Moral Forfeiture" Theory

The public-benefit justification principle discussed in the preceding subsection attaches to conduct that benefits society. Some theories of justification, however, are more limited in...