Basic Concepts of Criminal Law

By George P. Fletcher | Go to book overview

8
Self-Defense versus Necessity

As we noted in the analysis of intentional and negligent criminality, claims of justification and excuse pervade the criminal law. The definition of intentional wrongdoing enables us to see the criteria of justification and excuse in bold relief, for these issue are considered on their footing, as "defenses" to crime. This conclusion of chapter 7 provides a bridge to the topic we now consider: claims of self-defense and necessity, both as claims of excuse and of justification.

These two ideas--self-defense and necessity--are leitmotifs for charting the history of criminal responsibility in its various stages of development. Both ideas emerge relatively early as excusing conditions and, in the course of history, generate claims of justification that function either as the supplement or as the replacement of their original excusing functions.


8.1 Se Defendendo and Necessity as Excuses

Excuses express compassion. The assumption is that there are situations in life in which people have no choice but to engage in harmful and unjust actions. Their back is to the wall. They must steal or kill in order to survive. They or their children are starving and therefore they must grab the nearest loaf of bread. They are stranded at sea. They must dislodge someone else from the only available plank in order to survive. But these actions are unjust for they entail attacks on innocent

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Basic Concepts of Criminal Law
Table of contents

Table of contents

  • Title Page iii
  • Acknowledgments vii
  • Contents ix
  • Introduction 3
  • 1 - Substance Versus Procedure 7
  • Notes 23
  • 2 - Punishment Versus Treatment 25
  • Notes 40
  • 3 - Subject Versus Object 43
  • Notes 56
  • 4 - Human Causes Versus Natural Events 59
  • Notes 72
  • 5 - The Crime Versus the Offender 74
  • 6 - Offenses Versus Defenses 93
  • Notes 108
  • 7 - Intention Versus Negligence 111
  • 8 - Self-Defense Versus Necessity 130
  • Notes 145
  • 9 - Relevant Versus Irrelevant Mistakes 148
  • Notes 167
  • 10 - Attempts Versus Completed Offenses 171
  • Notes 184
  • 11 - Perpetration Versus Complicity 188
  • Notes 203
  • 12 - Justice Versus Legality 206
  • Notes 213
  • Index 215
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