Excuse, justification and collapse

Abstract

ABSTRACT For any putative excuse, why not recast it as a justification rendering one’s wrongful conduct ultimately permissible? This paper confronts the worry that many, perhaps all, excuses might collapse into justifications – either in morality or criminal law. It is an especially pressing problem for normative expectations views, on which excuses speak to a lower standard than justifications. I argue that the prospects for decisively blocking collapse within morality look bleak – at least if we adhere to an important constraint of the present project. I want to see if we can block collapse without appealing to a substantive theory of moral wrongness or taking on robust theoretical commitments about interpersonal morality. This is especially important for criminal law purposes, though I concede that blocking collapse in morality likely requires substantive commitments. Accordingly, I develop a more ecumenical way to block collapse within the criminal law, although not morality. The key is to attend to differences in how the legislature can legitimately assign weight to reasons in determining which actions it deems to be wrong vs. how individuals can fairly be expected to assign weight to reasons, which is key to assessing culpability. Institutional considerations impact the former but not the latter.