Justifications, powers, and authority.

• Author: Thorburn, Malcolm

ESSAY CONTENTS INTRODUCTION THE JUSTIFICATIONS DEBATE SO FAR I. A. Introducing Justifications 1. Methodological Preliminaries: The Concern with Structure 2. Three Structural Features of Justification Defenses B. The Two Accounts 1. Robinson's Challenge 2. Fletcher and Gardner's Response C. The Beginnings of a New Account: The Power To Decide II. JUSTIFICATIONS AND THE POWER TO DECIDE A. Legal Powers, Decision Rules, and Conduct Rules B. Three Types of Decision Makers, Three Types of Justifications 1. Private Fiduciaries 2. Public Officials 3. Ordinary Citizens with Public Powers C. Summary III. JUSTIFYING JUSTIFICATIONS A. Reorienting the Normative Debate 1. Different Structure, Different Norms 2. Consent and Individual Autonomy 3. Prohibitions and Justifications, Ideal and Nonideal Theory B. Justifications and the Control of Discretion 1. Private Fiduciaries 2. Public Officials and the Judicial Review of Administrative Action 3. Ordinary Citizens with Public Powers CONCLUSION INTRODUCTION

Sometimes, we are legally permitted to do what the criminal law generally prohibits: police officers are entitled to restrain suspects to effect a lawful arrest; parents may use force on their children to discipline them; a ship's crew is allowed to jettison passengers' property to save the ship in a storm; and ordinary citizens are permitted to use deadly force to protect themselves when their lives are threatened. In all these cases and many more, we say that the actor is entitled to do what is generally prohibited because his conduct is legally justified, that is, he has a valid justification defense.

Over the past thirty years, justification defenses have been the subject of a protracted debate in criminal law theory. Much of that debate has been based on an evaluation of the conduct itself according to rival moral theories: utilitarians (such as Paul Robinson) suppose that conduct should be legally justified so long as it prevents more harm than it causes, while those who focus on the structure of practical reasoning (such as George Fletcher and John Gardner) suppose that conduct should be legally justified whenever the reasons in favor of acting outweigh those against and the act was done for the right reason. But the law does not recognize conduct as justified simply on the basis of its merits according to either of these moral theories. There is also another factor-the actor's legal role-that forms a distinct and important consideration: for example, a police officer is entitled to make arrests in contexts where a private citizen is not; a corrections official may punish an offender in situations where others may not; and a parent may use disciplinary force on his child when a stranger may not. In all these cases and more, the law recognizes that, by virtue of their roles, these persons are legally justified in taking action that many others would be criminally prohibited from pursuing.

This revelation about the importance of the actor's role might lead us to conclude that conduct is legally justified simply on the basis of these two variables: the moral merits of the conduct itself and the actor's legal role. But things are still more complicated than that. Even those who play the appropriate legal role (corrections officials, police officers, and so on) are justified in acting only after the appropriate decision maker has approved the conduct-that is, has decided that the conduct was justified. For example, a corrections official cannot take it upon herself to administer punishment until a court has decided (through a proper trial and sentencing hearing) that the offender should be punished in a certain way. If the corrections official decided to impose punishment before the court had imposed sentence, the law would treat her as an unjustified vigilante. This is so even though it is the job of a corrections official to impose punishment and even if the "punishment" she would administer on her own is precisely what a court ultimately deems to be appropriate. Similarly, under ordinary conditions, police officers may search private homes for evidence only after a justice of the peace has decided (by granting a search warrant) that the search is legally justified. Even though it is part of a police officer's job to undertake searches, and even though a warrant would have been granted had the police applied for one, the law does not generally recognize a warrantless police search as justified. Neither the merits of the conduct as such nor the legal role of the actor is enough on its own; rather, for conduct to be legally justified, the appropriate decision maker must have made an authoritative decision that it is so.

This analysis suggests that there is a division of labor between those who have the legal power (1) to decide what conduct is, and is not, legally justified in the circumstances and those who carry out that conduct. And indeed, this division of labor is at work in a wide variety of contexts. We find that most bureaucratic hierarchies are structured largely in terms of this distinction. For example, high ranking police officials have a good deal of power to decide what conduct is legally justified (for example, when it is appropriate to use force in a hostage-taking situation, or how to conduct a major drug bust), but they engage in very little of that conduct themselves. By contrast, junior police officers have much less power to decide what conduct is legally justified, but they actually carry out most of the conduct that senior officers have approved. In the private sector, we also find this bureaucratic hierarchy at work. For example, the captain of a ship usually decides when jettisoning passengers' property to save the ship would be justified, but crewmembers then actually carry out this task. This division of labor is also often present elsewhere in the private sector, even in the absence of any formal bureaucratic hierarchy. For example, parents have the power to decide whether or not an operation on their child would be justified, but then a team of medical professionals actually carries out the operation.

Sometimes, however, the division of labor between the person who decides what conduct is justified and the person who carries out the justified conduct is only notional, for sometimes those two persons are actually one and the same: for example, when a police officer makes a warrantless arrest, she both decides whether the use of force is justified under the circumstances and then carries out the arrest. Similarly, when a parent uses force to discipline her child, that parent both decides what disciplinary force is appropriate under the circumstances and then carries it out. And perhaps most importantly, when a citizen uses force in self-defense, she both determines whether or not the force is justified and then actually uses that force to defend herself.

The important point to focus on, however, is not whether there is an actual or merely notional division of labor between those who have the power to decide what conduct is justified and those carrying it out; rather, the critical point is that all justifications involve the exercise of a legal power--an authoritative decision by the appropriate person that a certain course of action is justified under the circumstances. Further, we find that the law accords some decision makers a good deal more discretion in the exercise of their decision-making power than others. In the case of self-defense, for example, the law gives the decision maker quite detailed criteria to apply to the facts at hand: she must decide not only whether it is necessary, under the circumstances, for her to use force to defend herself, but if so, what force would be proportionate to the nature of the threat she faces. In other cases, the decision maker has considerably wider discretion. For example, when senior police officers authorize a "sting" operation, they must decide what sorts of otherwise criminal activity their officers may engage in, a decision likely to involve balancing broad considerations of public safety against the societal harms inherent in allowing police officers to engage in serious criminal activity. In other words, although the scope of discretion may vary widely from one justification to another, the fact is that all such decisions require at least some case-by-case discretion about when it is justified to do what the criminal law generally prohibits.

There are two important normative conclusions I mean to draw from this analysis of the conceptual structure of justification defenses. First, I will suggest that the way in which courts should evaluate claims of justification ought to reflect their proper institutional role. Since all justifications involve discretionary decision making, I argue, courts should always approach the evaluation of any justification claim, not by evaluating the underlying conduct de novo; rather, they should engage in a more limited review of the prior exercise of discretion. For example, where a court is asked to evaluate a warrantless arrest, it should not be considering de novo whether it would have acted similarly. Rather, the question is whether the police officer exercised his decision-making authority--his discretion--reasonably. More generally, so long as the decision maker (be she a justice of the peace, a police officer, a parent, or even an ordinary citizen) was within her jurisdiction in making that decision and so long as she reached her conclusions in the proper way, her decision should stand.

The second normative conclusion I mean to draw from the foregoing analysis is that we should consider the political legitimacy of claims of justification from a different point of view. Most writers largely ignore the problems of institutional division of labor at work in criminal law and focus their attentions almost exclusively on the merits of that conduct and perhaps on the legal role of the actor. But I...