Mistake of fact in the objective theory of justification: do two rights make two wrongs make two rights...?

• Author: Christopher, Russell L.

"The most difficult problems in criminal theory are generated by dissonance between reality and belief, between the objective facts and the actor's subjective impression of the facts."(1) One particularly thorny instantiation of this difficulty is whether the use of defensive force by actors who reasonably, but mistakenly, believe that they are being attacked should be justified or only excused.(2) There are two main approaches to this problem of mistaken justification. The first approach is the common law or Anglo-American approach,(3) which views the justificatory circumstances from the subjective perceptions of the actor: force is eligible for justification if an actor believes it is necessary or justified (subjective theory of justification).(4) The second approach is the civil law or Continental approach which regards the justificatory circumstances from an objective viewpoint external from the actor: force is eligible for justification if it actually is necessary objective theory of justification).(5) There are two principal versions of the Continental approach. Professor Paul Robinson champions a purely objective theory of justification, in which an actor's subjective perceptions and mental state are irrelevant.(6) Professor George Fletcher suggests a hybrid theory requiring both the actual necessity of an actor's force and an actor's subjective belief in the necessity of that force.(7) The subjective theory would justify an actor's mistaken use of force; either version of the objective theory would only excuse it.

Fletcher, lauded for resurrecting the justification-excuse distinction in modern criminal law,(8) contends that "we can use the concepts of justification and excuse only when we are willing to accept the logical consequences of applying them to particular cases of conflict."(9) However, the logical consequences of applying Fletcher's and Robinson's objective theories of justification are logical contradictions and paradoxes. Examining an altered hypothetical case of conflict propounded by Fletcher himself reveals that the objective theories are self-contradictory. Each actor's conduct in the altered hypothetical is paradoxically justified and not justified at the same time. Unless such logical contradictions are deemed acceptable,(10) the objective theory's future influence may be in jeopardy.

Fletcher has derided the Anglo-American approach to justification, which utilizes the subjective theory, as "still in Plato's cave and ... barely perceiv[ing] the shadows of criminal theory."(11) But applying the subjective theory of justification to the same hypothetical does not generate any logical contradictions or paradoxes. Thus, the objective theories of justification may be seeing some shadows of their own. Though perhaps flawed, the conceptually consistent subjective theory of justification may now be viewed as preferable to the self-contradictory objective theories.

The central difference between the two approaches is evident from one of Fletcher's hypotheticals:(12) Suppose Dan reasonably, but incorrectly, believes that Allan is wrongfully attacking him. In what he reasonably believes to be justified self-defense, Dan attacks Allan. Allan then uses defensive force against Dan. Under a subjective theory of justification, both Dan's reasonably mistaken force and Allan's force would be justified. 13 Under an objective theory of justification, however, Dan's force is "putatively"(14) justified (i.e., excused), and only Allan's force is actually justified.(15)

Fletcher argues that because the subjective theory "assimilat[es] a putative justification to an actual justification [, it] undermines the matrix of legal relationships affected by a [valid] claim of justification."(16) Under the subjective theory, a third-party intervenor's force in defense of either Dan or Allan or even both could be justified. Furthermore, if Allan realized that Dan believed he was justified, the use of force by Allan (the innocent victim) against Dan (the initial aggressor) would not be justifed.(17) By justifying only Allan's force, the objective theory avoids incompatible or conflicting justifications (between Dan and Allan), the legal anarchy of an intervenor justifiably using force against an innocent victim (Allan) or whichever actor the intervenor chooses, and the anomaly of barring an innocent victim from using justified force.

Advocates of the subjective theory counter that incompatible justifications are not a serious flaw(18) and that, in any event, incompatible justifications also occur under the objective theory.(19) Yet Fletcher's "incompatibility thesis"(20) dictates that incompatible justifications arising under an objective theory are "logically impossible."(21)

Professor Kent Greenawalt has provided, in Fletcher's terms, "the most sustained and sophisticated defense" of justifying the mistaken actor.(22) First, Greenawalt expresses skepticism that any bright-line distinction between justifications and excuses can be drawn. Second, Greenawalt proposes a number of hypotheticals illustrating that an actor may mistakenly assess the justificatory circumstances, but still act in a morally praiseworthy manner. Since such conduct is not morally wrong, it must be justified.(23) Robinson claims that Greenawalt's hypotheticals rely on reasonable mistakes of fact, which only generate putative justifications and "suggest a preference for the comparative conceptual clarity of an objective theory."(24) Professor Michael Moore taken belief and attacked Dan, Allan's conduct would not be actually justified but only putatively justified. Therefore, it is tempting to conclude that in the altered hypothetical both Dan and Allan are mistakenly or putatively justified. However, that contention is shown to be clearly wrong. This Article will demonstrate that, under the objective theories, Dan's force and Allan's force are each, paradoxically, justified and not justified at the same time. As a result, the objective theories of justification are self-contradictory.

At stake is not merely which theory of justification is logically consistent, but also the very nature of justification in criminal law. By tinkering with the requisite elements which an actor's force must satisfy in order to be justified under an objective theory, the paradox can be avoided. Yet, a subsequent hypothetical will be advanced which demonstrates that the logical contradiction cannot be circumvented satisfactorily without excising the very heart of the objective theories: Fletcher's incompatibility thesis and Robinson's correlate principle that force cannot justifiably be used against justified force.(26) Their removal will leave a radically reconfigured justification formulation and will eliminate the primary support for the theory's tenets regarding the nature of justification and criminal responsibility. Consequently, proponents of, and jurisdictions employing, an objective theory will be faced with the conundrum of maintaining their self-contradictory theory, amending it to an eviscerated form, or abandoning it in favor of a subjective theory.

Fletcher suggests that when "[c]onfronted by data not explainable by the prevailing theory, theorists must either confess the incompleteness or inadequacy of their system or revise their tools of analysis to accommodate the anomaly."(27) If so, advocates of, and jurisdictions employing, an objective theory of justification in the criminal law will now have such a choice before them.

Part I of this Article will present a variation of Fletcher's above hypothetical revealing the objective theories to be self-contradictory. Part II introduces another hypothetical through which further logical contradictions are derived under the objective theories. Part III presents, considers, and rejects arguments against the conclusion that the objective theories are self-contradictory. Part IV discusses the procedural ramifications of contradictions in the objective theories. Part V explores the consequences of the self-contradictions for the objective theories' understanding of the underlying nature of justification and criminal responsibility. Part VI sketches various amendments to the objective theories which might dislodge the paradoxes, and concludes that each amendment creates further conceptual anomalies for the objective theories. Part VII summarizes the main currents of this Article and lays down a challenge to jurisdictions employing, and advocates of, an objective theory to either satisfactorily expunge the contradictions or abandon the objective approach in favor of the subjective theory of justification.

1. Logical Contradictions Derived From Fletcher's and Robinson's Objective Theories of Justification

   Applying either Fletcher's or Robinson's objective theory to the following variation on Fletcher's hypothetical(28) (Hypothetical 1) will result in a logical contradiction.

   Suppose Dan and Allan each reasonably, but incorrectly, believe that the

   other is attacking him. In fact, neither Dan nor Allan is using force

   against anyone. Dan and Allan each decide to use what each believes is

   justified self-defense force against the other. Dan and Allan each use

   similar force against the other simultaneously. Each actor's use of force

   interferes with the other actor's use of force.

   1. Fletcher's and Robinson's Objective Theories

      Actors are putatively justified, under an objective theory, if they believe that their force is necessary or justified, but had they possessed complete knowledge of the circumstances they would not or could not have reasonably believed that their use of force was necessary or justified.(29) It is possible to argue that both Dan and Allan are putatively justified since each incorrectly believed that the other was attacking him prior to either one using force. In Fletcher's original hypothetical, in which only Dan is mistaken, no one would dispute that Dan is putatively justified, but not...