that curtailing a justification implicitly recognizes a new area of criminal liability, namely, the set of cases that would be justified if the statute were strictly applied. My hunch is that German as well as American courts could accept this slight reduction in the scope of statutory justification. Yet the difference between disregarding a little bit of a statutory justification and disregarding the entire justification is merely a matter of degree.
Admittedly, the position of the German courts is bolstered by their having a vivid sense of extrastatutory law--the Right. The GDR justification violates the Right and is therefore disregarded. Common law courts would not use this language, but one would like to think that they might reach the same result by holding a statutory justification unconstitutional. Yet it should be noted that disregarding a justification violates the interests of the criminally accused, and therefore it is not clear who would be in a position to assert a constitutional right to disregard the justification.
We end this chapter with a recognition that working out the distinction between offense and defense remains a complicated task. For some purposes, such as allocating the burden of persuasion, it might seem better to overcome the distinction altogether and treat all issues bearing on guilt under a single common denominator. This is the view implicit in the "comprehensive" rules of liability that have emerged in Continental jurisprudence. For other purposes, such as the necessity of "justificatory intent," the distinction between the offense and claims of justification (defense) proves to be critical. Also, as we have seen, jurisprudential problems arise in denying recognition to defenses that would be taboo, if the denial of recognition were understood as creating a new offense or expanding an existing one. The distinction remains implicit in these numerous areas, even though Continental jurists no longer explicitly recognize the concept of "defense." That the distinction exists and that it has an impact on legal argument all over the world is beyond dispute.