Competing Theories of Justification: Deeds v. Reasons
Paul H. Robinson*
Every jurisdiction recognizes that special circumstances can justify conduct that otherwise would be an offence. Unlawful aggression by another can trigger a right to use force in self-defence or in defence of another or of property. Aggressive force is authorized for a police officer making an arrest. Even bus drivers have a right to use some force to maintain order and safety on their vehicles. Beyond the use of force, a person can be justified in taking food from another's forest cabin to avoid dying of starvation or in tying up to another's private dock to avoid the danger of a storm.
In each of these instances, a societal interest1 is injured or endangered -- the elements of an offence are satisfied. Yet, in each instance, whether it is defensive or aggressive force, a trespass, or some other normally criminal conduct, a defence is given under the common theory of all justification defences: although the conduct ordinarily constitutes an offence, when the justifying circumstances exist we are content to have the justified conduct performed. The existence of the justifying circumstances means that, while the harm prohibited by the offence does occur, it is outweighed by the avoidance of a greater harm or by the advancement of a greater good. In other words, there is no net societal harm.
This characteristic of justification defences is made explicit in the Model Penal Code's general justification defence, which gives a defence if 'the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offence charged.'2 English law has no such general defence, but each justification defence reflects the principle.____________________