THE MISGUIDED CONCEPT OF PARTIAL JUSTIFICATION

Abstract

Despite the fundamentally binary character of justification (an act is either right or not, permissible or impermissible), an upsurge in recent Anglo-American scholarship offers some highly sophisticated and widely diverging conceptions of “partial justification” in criminal law. In the present article we identify eight distinct conceptions of partial justification. We find, however, that each of them is predicated on a different conceptual fallacy. Any sound concept of partial justification in criminal law ought to meet the dual challenge of utility and consistency: it should usefully convey a message that advances the conduct-guiding function of criminal law and retain some consistency with the key attributes of complete justification, particularly its allowing function and the implications of its typically universal nature. We maintain that none of the conceptions offered to date meets this challenge. The different meanings attached to partial justification do not further the guiding function of criminal law beyond what is achieved by the scalar concept of wrongfulness; indeed, they undermine the guiding utility of criminal law by obscuring the distinction between the permissible and the impermissible, thereby also diminishing the expressivity of the criminal conviction. Furthermore, extending partial universality to the proposed notions of partial justification implausibly marks retaliating victims and intervening third parties, who react to allegedly partially justified conduct, as partly blameworthy, whereas present legal doctrine rightly affords them a full defense.