INSTRUMENTALISM AND NECESSITY

Abstract

The analysis of criminal law which divides its defences into justifications and excuses has gained currency in Anglo-American jurisprudence recently, thanks largely to its exposition by Professor Fletcher.2 A certain amount has been written which builds upon the distinction,3 and indeed Fletcher's exposition makes clear that he sees the two categories as differing both in their derivation and, in certain respects, in their consequences. But an equally interesting facet of his treatment, read as a whole, is his concern that the distinction will not always endure into the public perception of criminal justice, and that this may pose serious problems. Justifications are in principle founded upon utilitarian considerations: that under certain circumstances the conduct required by the general law will entail less good, or greater evil, than the alternative conduct in question. The idea is that we should prefer to see the promotion of utility by the alternative conduct; and the law's acceptance of justifications as defences to criminal liability has a legislative effect in the way of contraction of the relevant norm to this end. But there may be at least two major limitations upon this normative adjustment to the profile of greatest utility. First, it may be thought that there are (Kantian) limits to the pursuit of utility: for example, that it could not be justified to take one human life to save even a number of others. Secondly, it may seem unacceptable even to contemplate the replacement of the norms of a democracy by the acceptance of refractory conduct as justified. Fletcher's own reactions to these difficulties are interesting. So far as the first is concerned, he observes that, by contrast with justifications, excuses are founded not upon a utilitarian calculus to the effect that we should prefer the refractory conduct to the observance of the norm, but upon the consideration that under the particular circumstances the refractory conduct does not mark the actor as appropriately to be punished. So it may be possible to excuse conduct which exceeds the Kantian limitation on justification, such as homicide. The same might equally be true as regards the democratic limitation too, but here Fletcher has a