Tadros - Criminal Responsibility - Reality and Appearance in Justification Defences

10
Reality and Appearance in Justification

Defences
10.1 Introduction
When a prohibition is created, it is to be hoped that it will not be breached. But

hopes are often dashed. When individuals breach the criminal law, they some-
times think that they have done so for a good reason. And sometimes they are
right. For criminal prohibitions are often not perfect. A perfect prohibition would
be a prohibition which there would never be good reason to breach. Perfect pro-
hibitions are quite rare, though the prohibition against torture, or against rape,
might be examples. Most prohibitions, on the other hand, can sometimes be
breached with good reason. Where a prohibition is breached for good reason, the
criminal law ought to provide the defendant with a justification defence.
A very basic reason why there should be justification defences has to do with the
communicative function of the criminal law that was discussed in Chapter 3. The
imposition of criminal responsibility communicates not just that a prohibition
has been breached, but that something morally wrong has been done by the
defendant. But where the defendant acts for good reason, this is not the case. At
least this would be true as long as good reasons are generated by morality, whether
or not one accepts it. There are those that would reject this view, claiming that an
agent has good reason to do only that which furthers some end that he already
accepts. However, as we shall see, there seems little reason to debar us from using
the phrase good reason to refer to features of a situation that ought to motivate
the defendant whatever he currently wants. For the moment, before defending the
claim, let us stipulate that there is a good reason for D to a where aing would
further some moral end, whether or not D accepts that moral ends should be
furthered.
We have established something very general about justification defences: they
operate where the defendant has acted for good reason. In this, they are to be
distinguished from excuses. Excuses operate where the defendant has not acted for
This position is sometimes called internalism. An extensive literature has been generated about
this question, much of it spawned by B Williams Internal and External Reasons in Moral Luck
(Cambridge: CUP, 1981).
Criminal Responsibility. Victor Tadros.

Oxford University Press 2005. Published 2005 by Oxford University Press.
266 Part II: Doctrines of Criminal Responsibility
good reason. Where the defendant has not acted for good reason, it may nonetheless
be the case that the interests of the criminal law are not served by conviction. In
Chapter 9 we have already seen that there are circumstances in which there is good
reason for the defendant not to have done what he did, but criminal responsibility
is inappropriately attributed. There it was argued that a defendant who forms an
unreasonable belief that there is no risk involved in his action might still not prop-
erly be considered reckless if his belief was the result of mere lack of knowledge,
irrationality or stupidity. Something further must be shown. As we shall see in
Chapters 11, 12 and 13, similar things might be said about excuses. Where the
defendant uses an excuse, he has acted against the dictates of good reason. Such
action is properly discouraged. But the criminal law is not the appropriate method
of discouragement. Civil responsibility may appropriately be attributed in such
cases. Criminal responsibility is not.
Whilst it may be of little practical importance whether the defendant has a jus-
tification or an excuse, it is important to understand that distinction. For it is cen-
tral to the moral architecture of the criminal law. Given that the criminal law
must not only come to the right conclusions, but explain that it came to those
conclusions in the right way, the distinction is important if it is morally signifi-
cant. In expressing that the defendant was entitled to a justification, properly
understood, the criminal law expresses that no criticism may be made of the
defendant in breaching the criminal law. That no criticism is to be made of the
defendant follows from the fact that he acted for good (enough) reason. This is to
be distinguished from an excuse, where the criminal law expresses that some criti-
cism may be made of the defendant, but not the kind that warrants the attribution
of criminal responsibility (or not for the offence for which the defendant has per-
formed the actus reus).
But the distinction between justification and excuse is also important for a fur-
ther reason. A failure to appreciate the moral architecture of criminal responsibil-
ity is likely to lead to poor decision-making. Even where it is of no significance
whether the defendant was entitled to a justification or an excuse, the distinction
is important at the theoretical level to guide decision makers in properly separat-
ing out the kinds of claim that may be open to defendants. At the level of the
moral architecture of the criminal law, we should not be too concerned that the-
ory has practical implications, although, once we establish the appropriate theory,
it may well be that practical implications follow. What follows, then, is an attempt
to defend a theory of justification defences.
See also K Greenawalt The Perplexing Borders of Justification and Excuse (1984) 84, Columbia
Law Review 1897 at 1898.
For some good reasons to think of justifications operating where the defendant is merely permit-
ted to breach the criminal law rather than being deserving of praise for the breach, see D Husak
Justifications and the Criminal Liability of Accessories (1989) 80, Journal of Criminal Law and
Criminology 491 and J Dressler New Thoughts About the Concept of Justification in the Criminal
Law: A Critique of Fletchers Thinking and Rethinking (1984) 32, UCLA Law Review 61.
Reality and Appearance in Justification Defences 267
In doing so, I shall address three central questions which are involved in
establishing whether the defendant breached the criminal law for good reason.
Firstly, what role ought the existence of a prohibition to play in the practical rea-
soning of a defendant who sees some reason in favour of breaching the criminal
law? Secondly, where there are good reasons for the defendant to breach the crim-
inal law, but those reasons do not motivate the defendant in his breach of the
criminal law, is he to be regarded as justified for that breach? Thirdly, where the
defendant has formed a reasonable but mistaken belief about the features of a situ-
ation, in what circumstances can he still be justified in breaching the criminal law?
In answer to the first question, I will argue that we ought to distinguish justi-
fication proper from cases in which the prohibition has been cancelled. In answer
to the second question, I will argue that, where there are good reasons for the
defendant to breach the criminal law, but he does not, in breaching it, act for those
reasons, he is not to be regarded as justified. And in answer to the third question,
I will argue that a defendant who has formed a reasonable but mistaken belief
about the circumstances such that, were his belief true, he would have been
morally justified in acting thus, is nevertheless to be treated as justified rather than
excused in the criminal law (and in morality more generally).
10.2 Reasons and Prohibitions
Where the defendant argues that he is entitled to a justification defence, he has

breached a prohibition. Central to understanding justification defences will be an
appreciation of the nature of criminal prohibitions. What, in general, justifies the
breach of a prohibition? In Chapter 4 I began to consider the nature of criminal
offences. I argued that a criminal offence is properly composed of a positive
description of the conduct which the defendant ought to be convicted for per-
forming. This, I claimed, is to be distinguished from defences by the fact that
defences provide mere negative descriptions, absences which are not properly
descriptive of the defendants conduct when they are not present.
I argued for this model against a model which proposed that the effect of prohibi-
tion on the practical reasoning of the defendant is central to understanding the
nature of criminal offences. But that is not to say that normative impact of prohibi-
tion is not significant when we consider the nature of criminal offences. Here
I will argue that it is at least sometimes the case that the existence of a prohibition
can create an extra reason for action over and above the reason generated by the
moral nature of the conduct prohibited.
It is sometimes argued that when a prohibition is created, there are two kinds of
reason against breaching it. The first reason is generated by the content of the
See, for example, P Soper The Ethics of Deference: Learning from Laws Morals (Cambridge: CUP,
2002) 11316.
norm. Were it not for criminal law prohibiting assault, there would be a reason
not to assault. That reason is generated by the one who would be assaulted, who
has an interest in being free from physical harm, and especially physical harm
intentionally inflicted by another. To this reason, the existence of a prohibition
generates a further reason: that the criminal law prohibits a certain form of con-
duct is a reason not to perform that conduct. Let us call the former a content rea-
son and the second a prohibition reason.
Now, it might be argued that the fact that assault is a criminal offence does not
create any new reason not to assault. The offence of assault, it might be argued,
simply declares that in perpetrating an assault one commits a public wrong. This
might plausibly be true as far as mala in se crimes are concerned. Certainly, as far as
very serious offences are concerned, it is difficult to see the normative weight of
prohibition adding very much to the content reasons against performing such
actions.
If that were the case, justifying an assault merely requires one to have performed
an assault in circumstances where there was sufficient moral reason to outweigh
the content reasons against assaulting. However, by thinking about justification
defences we can see some problems with the claim that criminal offences do not
create prohibition reasons against action. Where the defendant performs a serious
offence such as murder or rape the existence of a prohibition will not add much, if
any, weight to the reasons against acting. It is plausible to see the criminal law as
merely declaring that murder and rape are the kinds of wrong that we ought to be
interested in publicly.
However, as far as more trivial wrongs are concerned, the criminal law does more
than declare conduct as publicly wrongful. It prohibits, such that it makes what
was once morally permissible wrongful, or such that it makes what was once triv-
ially wrong seriously wrong. Consider the perpetration of a minor assault in
response to provocation. It may be that, were it not for the law, slapping in response
to relatively serious provocation would be justified: it would be a proper response to
the fact that one is provoked. But the prohibition against assault entitles citizens to
expect that they will not be assaulted. And this expectation makes the assault the
kind of violation of our social norms that it would not have been were it not for the
existence of the prohibition. So in this case it may be that the assault is unjustified
even though it would have been justified had it not been for the prohibition against
assault. Legal norms fix our social expectations, and through that alter what counts
as justified wrongdoing and unjustified wrongdoing.
In the case of assault, the content reason and the prohibition reason push in the
same direction. There may, however, be instances in which these reasons push in
different directions. It may be that there is a content reason against aing, but a
See R A Duff Rule-Violations and Wrongdoings in S Shute and A P Simester Criminal Law
Theory: Doctrines of the General Part (Oxford: OUP, 2002). Nothing that follows is intended to be
critical of Duff s position regarding declarations.
prohibition reason in favour of aing. For example, consider unjust tax laws that
require too much payment from the lower middle classes. In this case, there may
be a prohibition reason against failing to pay the tax, but a content reason against
payment. It may be that, in this case, the content reason clearly outweighs the
prohibition reason, and the lower middle classes would be justified in refusing to
pay. But in doing so, the reason against aing must outweigh the prohibition rea-
son that requires payment. That will presumably only be the case if the tax law is
sufficiently unjust.
It might be thought that this interpretation is quite misleading. For it might be
thought that the existence of the prohibition reason in favour of aing depends
upon the existence of a content reason in favour of aing on the grounds that the
prohibition that requires payment would be justified only if there was a content
reason in favour of payment. And in this case there is no such content reason. This
is the thought that there can be no reason in favour of obeying an unjust law.
But there are a number of different ways in which prohibition and content
reasons might come apart. Social regulation is possible only on the condition that
there is reasonable cooperation in the face of democratically created laws. Where
there is an opportunity for a change of the law through the democratic process, there
is at least some reason to enforce the law, even if that reason is ultimately defeated by
the content reasons against enforcement.
A simpler case is one in which the prohibition is, in general, appropriate, but in
this particular instance a morally worthwhile action is prohibited. For example, as
noted earlier, there is generally good reason not to assault another person. From
this derives the general principle that one ought not to try to assault another per-
son either. Now consider a self-defence class in which one of the participants is
invited to try to assault the instructor. In this case, not only is there a reason in
favour of trying to assault the instructor, there is no reason against doing so, assum-
ing that there is minimal risk to the instructor involved in the trying. This fact is
an example of what is known as holism in the theory of reasons. Whether there is a
reason against performing a particular action, such as trying to assault, depends
upon the context in which that action occurs. In this case, there may be a pro-
hibition reason against attempted assault (though as we shall see, there may not
be), but no content reason against attempted assault.
This fact about reasons helps to explain why perfect prohibitions are very
unusual. It may be quite proper to prohibit aing where in the majority of contexts
there is sufficient reason against aing. But there may be circumstances in which
there is no reason against aing, and indeed reasons in favour of aing. Now, it may
be thought that, where this is the case, the prohibition against aing should include
exceptions for circumstances in which there is no reason against aing. Unfortunately,
See particularly J Dancy The Particularists Progress in B Hooker and M Little Moral
Particularism (Oxford: OUP, 2000) for an illuminating discussion. It may be that there are limits to
holism. See F Jackson, P Pettit and M Smith Ethical Particularism and Patterns in the same volume.
because of the infinite number of different contexts that might occur this is quite
impossible. For the state would be quite unable to foresee all of those different
contexts let alone to legislate for them. Furthermore, any attempt to do so would
overcomplicate criminal prohibitions, making the criminal law less accessible and
easy to understand. From this we can see a tension inherent in criminal prohibi-
tion: it becomes difficult for the state both to be sensitive to the broad, and con-
text dependent, moral considerations that might be at play in fulfilling its
communicative function whilst retaining a proper measure of simplicity that is
required by the rule of law.
But more importantly than this, properly constructed prohibitions reflect sub-
stantial wrongs, wrongs that need to be justified, or if not justified, excused. The
idea of a perfect prohibition fails to recognise an important fact about moral rea-
soning: to say that one was justified in performing a criminal wrong, one does
thereby cancel the wrong. It is not as though justifications merely reflect excep-
tions that are divided between offence and defence definitions for the reason of
bureaucratic convenience. Rather, that one has fulfilled the offence conditions
(assuming that those conditions are properly constructed) may still play a role in
the proper communicative function of the criminal law. The criminal law recog-
nises that a wrong has been done, that the conduct generally to be expected of cit-
izens has been transgressed, and that is something to be regretted, albeit that it is
not to be regretted that the action was performed overall. The division between
offence and defence, properly understood, reflects an underlying feature of moral-
ity, it is not merely arbitrary.
In many circumstances, then, where a criminal prohibition is justly enacted,
there are two reasons against the breach of that prohibition: content and prohibi-
tion reasons. Let us begin with straightforward cases of that kind. Where both a
content reason and a prohibition reason are in play, how ought they to play a part
in the practical reasoning of the defendant in deciding whether to breach that pro-
hibition? The answer to that question is central to the nature of justification
defences. For, as I noted earlier, where justification defences operate, the criminal
law recognises that the defendant breached a criminal prohibition for good reason.
But how can this be where there are two reasons against the defendant performing
the action in question?
Firstly, and most obviously, where there are reasons against performing an action,
it may be morally permissible, or even required, to perform that action where there
are sufficient reasons in favour of performing the action. The simplest way in which
For an account of related problems in the rule of law, see J Gardner Rationality and the Rule of
Law in Offences Against the Person (1994) 53, Cambridge Law Journal 502.
What it is proper to feel in such circumstances may be quite complex. See, particularly,
M Stocker Plural and Conflicting Values (Oxford: OUP, 1990) ch. 4.
See also K Campbell Offences and Defences in I Dennis (ed.) Criminal Law and Criminal
Justice (London: Sweet and Maxwell, 1987) and J Gardner Justifications and Reasons in
A P Simester and A T H Smith Harm and Culpability (Oxford: OUP, 1996).
this might happen is where the defendant weighs up the pros and cons of acting in
a particular way. The prohibition reason and content reason generate two cons
against breaching the prohibition. But those reasons may, in some circumstances at
least, be balanced against considerations in favour of such a breach. On this model,
a breach of a prohibition will be justified if and only if there are sufficient reasons in
favour of performing the action to counterbalance the reasons against.
It is to be noted that I have used the word counterbalance here, as opposed to
outweigh or defeat. We are interested in whether there was sufficient reason to
breach the prohibition, not whether there was sufficient reason to make it unrea-
sonable to comply with the prohibition. There may be circumstances in which
there are sufficient reasons in favour of breaching a prohibition and sufficient rea-
sons not to breach the prohibition. In such a situation, if the defendant breaches
the prohibition he will be justified. But that does not mean that there is a moral
requirement to breach the prohibition. This feature of practical reasoning is often
given insufficient attention by the courts. In some jurisdictions a requirement has
been imposed for the availability of a justification defence that there was no way in
which the defendant could rightly act whilst complying with the demands of the
criminal law. Consider, for example, the harsh decision of Moss v Howdle, in
which the accused was convicted of driving above the speed limit. His passenger
appeared to be suffering from a heart attack and he drove as quickly as he could to
the petrol station. It was held that the defence of necessity was unavailable to him
as he had another acceptable option which did not breach the criminal law:
namely pulling to the side of the road and calling for help. Such requirements mis-
takenly assume that, where there is sufficient reason to perform an action which
does not breach the criminal law for a particular purpose, there cannot be suffi-
cient reason to breach the criminal law to achieve that purpose.
But as long as the reason in favour of performing the action is sufficient to
counterbalance the reasons against, both the prohibition reason and the content
reason, the action is justified. If, but for the existence of the prohibition, there
would be as much reason to perform the action which breaches the prohibition as
performing another action which does not, the defendant must perform the latter
action. For the existence of the prohibition reason is added to the content reason
to outweigh the reasons for performing the action which breaches the prohibition.
However, circumstances may be such that, but for the existence of the prohibition
reason, there is more reason to perform the action which breaches the
prohibition than the action which does not. In that case, it may be that the
existence of the prohibition reason is sufficient to make either the breaching
action or non-breaching action permissible.
Now, this last argument, and indeed this whole picture of justification defences,
might be called into question by the claim that criminal prohibition reasons are not
1997 JC 123. For further discussion of this case, see V Tadros The Structure of Defences in
Scots Criminal Law (2003) 7, Edinburgh Law Review 60.
only strong reasons, they are mandatory reasons. A mandatory reason does not only
weigh in favour of performing a certain action, it requires such a performance. On
this picture, reasons in favour of a breach of a prohibition cannot counterbalance
prohibition reasons, for, by their nature, prohibition reasons automatically defeat
all reasons that are opposed to them. The operation of justification defences cannot
be understood on the model of prohibition reasons being counterbalanced, then,
but only on the model of prohibition reasons being cancelled.
The model of prohibitions being cancelled operates better with regard to some
cases than others, but I think that it is better still not to call those cases justifica-
tions at all. The cases I have in mind are cases in which the context, for some rea-
son or another, dictates that the prohibition does not apply. Consider, for
example, a surgeon performing a legitimate operation on a patient who, due to
being unconscious, has not consented. One way to understand such a case is that a
prohibition against assault has been breached, but for the reason that the prohibi-
tion and content reasons against assault are, in such a case, counterbalanced by
reasons in favour: the health of the patient.
But that doesnt seem the right way to understand the case. Whilst prohibition
reasons apply in some contexts, in others they do not, and it is not beyond the wit
of the criminal law to recognise this. Where they do not apply, although the cen-
tral conditions of the wrong properly constituted have been fulfilled, in this case
there is no wrong. This is a further example of the holism of reasons that I dis-
cussed earlier in the chapter: whether breaching a prohibition is a wrong, consti-
tuting a reason for not doing so, depends upon the context. In some contexts
prohibitions generate reasons, in others they do not. Hence, in deciding whether
to perform the operation, it is quite proper for the surgeon merely to balance the
reasons against performing the operation (the risk of harm, the damage to the
individual without his consent and so on) against the reasons for performing it (it
will restore the patient to long-term health, which is something that he would
want for himself were he conscious, it is something that the family legitimately
want and so on). The surgeon need not heed any prohibition reason against for
there are no such prohibition reasons that apply in this case.
It is unusual, however, that prohibition reasons are cancelled by the circum-
stances. Normally, where there is a reason in favour of breaching a prohibition,
that reason will not justify breaching the prohibition unless it counterbalances
both reasons against. To see how this explanation helps us to understand justifica-
tion defences, we ought to consider cases in which the content reason against
breaching a criminal prohibition is quite weak. Consider a defendant who parks
on double yellow lines in order to get some medicine for a minor ailment from the
chemist before it shuts. The defence of necessity will not be available to such a
defendant even though the content reason not to park on double yellow lines (that
it will disrupt the traffic) is quite weak and the reason in favour reasonably strong.
See J Gardner Justifications and Reasons.

It is the fact that the reason in favour of breaching the prohibition cannot
counterbalance the prohibition reason against performing the action, when
stacked alongside the content reason, that makes the defence of necessity unavail-
able in such a case. Given these two reasons against, the defendant can no longer
say that he acted for good reason all things considered. And this fact ensures that
the imposition of criminal sanctions does not breach the requirement that the
criminal law communicates that the defendant has engaged in moral wrongdoing.
Moral wrongdoing may derive from the failure properly to recognise a prohibition
reason as well as failure properly to recognise a content reason against performing
the act in question.
The idea of justification, then, builds upon the idea that prohibitions often gen-
erate reasons. The reasons generated by prohibitions must, along with content rea-
sons, be counterbalanced in order for a justification defence to be made available.
There are cases, such as surgeons performing operations, which are best thought of
as cases where the prohibition does not apply. But those actions are not best
thought of as part of the logic of justification defences. Rather in those cases, where
the prohibition does not apply, there is no offence that requires justification.
Now that I have constructed an account of justifications based on reasons it is
natural to ask how reasons can be generated. As I noted in Chapter 4, the litera-
ture has generated three different positions on this issue, which can be sum-
marised by three questions. Are we to build our accounts of justification upon facts
about the situation? Are we to build them upon the beliefs that the agent had at
the time of acting? Or are they built upon the coincidence of beliefs and facts? To
anticipate the argument a little, in the following two sections I will argue that we
must build reasons upon the coincidence of beliefs and facts. In Section 3 I will
show that as appearances are facts, this does not rule out making justification
defences available where appearance and reality come apart. Hence, cases of rea-
sonable but mistaken belief can generate justifications. In Section 2 I will show
that justification defences ought not to be available where there are circumstances
which, had the defendant known of them, might have generated a justification. In
doing so I will argue for a more extreme version of what is known as the reasons
theory: that not only must the defendant be aware of the reason generating cir-
cumstances, but the existence of those circumstances must have motivated his
breach of the criminal law. If I am right in arguing for that, the claim that justifica-
tion can be based upon facts that the defendant was not even aware of immedi-
ately evaporates. For in that case it is quite impossible that the reason generating
circumstances have motivated the actions of the defendant.
10.3 Justifiable but Unjustified Actions
Suppose that there are circumstances such that there are good reasons for D to
perform a particular action a, which breaches the criminal law. Both the prohibition
and content reasons against performing that action are counterbalanced by reasons
to breach the prohibition. D is aware of the circumstances that generate reasons to
breach the prohibition. He as. Is this sufficient for D to be justified in aing? John
Gardner suggests that this is not sufficient. He suggests that there is the further
requirement that D must act for at least one of those reasons. He claims that:
It is quite pointless to cite, by way of justification, an undefeated reason for which one did
not act, even though it would have been alright for one to act upon it if one had been
minded to do so. Once one has attempted to make justificatory capital out of such a guid-
ing but non-explanatory reason, one must still go on to identify some other undefeated rea-
son which one did act upon in order to clinch the justification. For one must always act for
some undefeated reason.
This is a component of what is commonly referred to as the reasons theory. The
traditional reasons theory would provide a justification to a defendant who is
properly motivated, whether from knowledge or reasonable belief. In the latter
case, it matters not, according to the reasons theory, that his reasonable belief was
mistaken. He is still justified. Gardner would treat such a case as one of excuse
(and indeed the paradigm of excuse). I will deal with this claim in the next section.
In this section I will defend Gardners position that the defendant must have been
motivated by good reasons to breach the criminal law. It is not sufficient that the
defendant is merely aware that those reasons exist if he is not motivated by them.
Before proceeding, we ought to clarify the extent of the claim that is being made
here. One possibility is that justification depends upon the defendant being able to
show that he acted virtuously. And he will have acted virtuously only if he acted
upon the reasons that the virtuous would act. Suppose that V is caught in a house
fire. D rushes in to save V. But he does so not because he is concerned about Vs life
but rather because he knows that S, who V is in love with, is watching and S, D
thinks, will be very impressed by his seemingly noble act. In this case, D is not truly
virtuous. For virtue involves not only acting in the right way, but with the right feel-
ings, the correct motivations and so on. Now, suppose that, in order to rescue V, D
needs to ram the door. The only way to do this is to break into Ts truck and drive it
into the door. D does this, damaging Ts truck. Is D justified in damaging Ts truck?
We are now thrust upon a difficulty that is familiar to criminal lawyers between
motive and intention that was considered in Chapter 8. Here, saving V was a good
reason to damage the truck, and that was the reason that motivated D. There was
good reason to save V, but that did not motivate D in saving V. But here we are
looking for whether D was justified in damaging the truck, not whether D was
justified in saving V. Hence, we must conclude that D was justified in damaging
the truck, even though we do not think of him as truly virtuous in saving V.
We are interested in whether D acted for the right reason in breaching the
Justifications and Reasons 113. George Fletcher, in Rethinking Criminal Law (Oxford: OUP,
2000) at 5626, suggests only the weaker requirement, that the defendant must at least know of the
relevant circumstances.
prohibition, not whether he believed that it was the right reason for good reason.
D has decided that saving V was a good reason to damage Ts truck and he acted
on it. And he was quite correct. In investigating whether D was truly virtuous, we
are inclined also to ask why D thought that there was good reason to rescue V. But
the criminal law need not conduct an investigation of that kind in deciding
whether D was justified in damaging Ts truck. It is sufficient that saving V justi-
fied damaging Ts truck and that was the reason for which D acted.
We might have different inclinations if the reason that D had for damaging Ts
truck was not to save V, but rather to harm T. Suppose that D2 is in circumstances
similar to D. However, D2 hates T, who stole S when she was his girlfriend. Seeing
V in the building, he sees this as a good opportunity to get back at T. He rams the
door with the truck, damaging it. In order to make it seem as though he did this to
rescue V, he runs into the house and pulls her out. Is D justified in damaging Ts
truck? According to Gardner, D is not justified. D can only refer to circumstances
which, had they motivated him, would have justified his action of damaging the
truck. However, as those circumstances did not motivate him, he is not justified in
damaging the truck.
Obviously such a claim could only apply to defences, not to offences. As far as
offences are concerned, it is obviously not material that the defendant complied
with a prohibition, but for poor reasons. Mere compliance with the criminal law is
sufficient and it is straightforward that there is no role for the criminal law in
investigating the reasons for actions of those who comply. But this does not tell us
much about substantive defences. Where a substantive defence operates the
defendant has not complied with a criminal prohibition. In that case, the question
of whether the law should investigate the motivations of the defendant or not
remains open.
It is worth noting that, if Gardner is right about this requirement (that the
defendant must not only have recognised the circumstances that might justify his
conduct, but was also motivated by those circumstances to use a justification
This is a further reason why the criminal law is not interested in true virtue but rather in vice.
For further discussion of that issue see Chapter 2.
Antony Duff suggested to me that it may be objected that, in this example, D2 is motivated by
rescuing V. That he can rescue V provides part of the reason for his ramming the door. D2, it might be
claimed, is motivated to ram the door because he can avoid criminal liability in these circumstances.
But he can avoid criminal liability only by rescuing V. Hence, he is motivated by rescuing V. I dont
see it that way. That criminal responsibility may be avoided is not a motivating reason for which he
rams the door, it only cancels what would otherwise be a reason that would motivate him against
acting thus.
It is due to a failure sufficiently to attend to this that leads Suzanne Uniacke to the requirement
that the defendant was properly motivated as far as the law, rather than morality, is concerned.
See Permissible Killing: The Self-defence Justification of Homicide (Cambridge: CUP, 1994) 19.
Similarly, Robert Schopp fails to see that, where justification defences are concerned, prohibitions are
still in place, leading him problematically to equate such cases with defendants who do not breach
prohibitions for poor motives. See Justification Defences and Just Convictions (Cambridge: CUP,
1998) 2931.
defence), then what Paul Robinson describes as the deeds theory must be wrong.
The deeds theory takes what is sometimes described as an objective stance at the
actions of the defendant. In fact, as we shall see, it is not so much objective as util-
itarian in outlook. Robinson summarises his claim as follows:
The rationale for justification is properly whether or not the conduct was something that
we are content to have the actor perform under the justifying circumstances and to have
others perform under similar circumstances in the future. The test for justification ought
to be whether, on balance, the conduct in fact avoided a net societal harm (in the broadest
sense of harm). An actors reasons may be relevant to the actors ultimate liability but, if so,
they are properly taken into account by other criminal law doctrines: a mistaken reason-
able belief that the conduct was justified may exculpate under an excuse defence; a mis-
taken belief that the conduct was not justified may inculpate as an impossible attempt.
This theory is clearly opposed to Gardners twist on the reasons theory. As we shall
see, there is a question about whether harm is the appropriate concept to decide
these cases. However, leaving that argument aside for the moment, the fact that no
harm was done is not sufficient for Gardner. It is not even sufficient that the defendant
realised all of the circumstances that would tend to suggest that no harm would be
done by his action. The relevant norm, in this case one about harm, must motivate
him in his action. That D was motivated to harm T in the earlier example is enough
to inculpate D. In order to exculpate he must be motivated by the harm that he
would avoid. If that were true, it would be clear that if he is unaware of the net
reduction in harm resulting from his action, he cannot be justified.
Robinsons thesis implicitly builds upon a utilitarian understanding of the role
of the criminal law. The criminal law, on this account, ought only to be imposed if
harm has been done. If the actions of the agent result in a net reduction of harm,
there is no role for the criminal law to play. And, more particularly, it ought not to
discourage agents from acting where the consequence is a net reduction of harm.
As there is such a net reduction in D2s case, we ought to provide D2 with a justi-
fication whether or not he was motivated in the way that we would have liked.
Let us see how far we can develop an argument along these lines. It is at the point
of breakdown that we will see that Gardner is correct about this aspect of justification
defences. However, despite this, the consequentialist argument will have implications
about whether the defendant should be convicted of an offence in Ds case, implica-
tions that have, I think, gone unnoticed so far in the literature on defences.
As we have seen, Robinson builds his argument on a theory of harms. The
criminal law should not punish D for a complete offence when Ds action was not
Structure and Function in Criminal Law (Oxford: OUP, 1997) 101. A number of more or less
practical arguments, arguments about simplicity, are presented by Robinson that cannot be con-
sidered here. They do not seem to me sufficient to decide the issue.
Robinsons argument is dismissed in a more perfunctory manner by Douglas Husak on the
grounds that utilitarianism has been discredited in moral philosophy. See Justifications and the
Criminal Liability of Accessories 5057. But there are more sophisticated consequentialist arguments
that Robinson might call to his aid. We will see why these are also ultimately unsuccessful here.
harmful. It is inchoate crime, according to Robinson, that should deal with this
problem. Such a construction has utilitarian overtones. Now consider the more
straightforward case where the defendant acts in circumstances that he is aware of
the reasons that might justify his action, but he does not act for those reasons. His
motivation is faulty. In such a case, it might be said, utilitarianism would push
strongly for an acquittal, much more strongly than in the cases that Robinson
considers, where the defendant does not know of the relevant circumstances.
The point can be illuminated by considering the nature of deterrence. The
argument goes as follows. According to a utilitarian at least, we would not want to
deter D2 from damaging the truck, if this would also mean that D2 would save V.
V burning to death is a greater harm than damage to Ts truck. By depriving D2 of
a defence, the state would deter D2 from saving V, and consequently D2 ought to
be provided with a defence on utilitarian grounds. If this argument were correct, it
would suggest that wherever a defendant is aware of circumstances that would
justify breaching a criminal prohibition he ought to have a justification defence
available to him. For in all such cases, the poorly motivated defendant should still
be encouraged to breach the criminal law for utilitarian reasons.
It is to be noted that this argument is not available to justify Robinsons thesis
concerning defendants who are not aware of the justifying circumstances. For
although we might want to permit a defendant to breach the criminal law, where
that breach would have good consequences which he was unaware of, it would be
impossible to permit such a defendant without also permitting defendants to
breach the criminal law where those good consequences would not result. Hence,
the deterrence argument only applies in cases where the defendant is aware of the
resulting good consequences, and consequently aware of the protection that he
will be provided by the law. The law is capable of permitting such a defendant to
breach the criminal law without permitting breaches of the criminal law where
those circumstances are not in place.
So far the argument has been constructed according to resultant harms.
However, it has long been recognised that resultant harm is not the only thing that
can constitute a reason for acting. The nature of the action, as well as its con-
sequences, is morally significant in determining what should be done. It is not
only the results of ones actions that determine moral assessment of those actions.
The nature of the action is important as well. As we saw in Chapter 7, acting to
cause harm is plausibly morally worse than ones omissions resulting in a similar
harm. And as we saw in Chapter 8, intentionally harming someone is morally
worse than causing harm with mere foresight (particularly if the harm is relatively
trivial). These distinctions build upon the general proposition that the intrinsic
properties of actions are important in moral assessment as well as the harm
caused.
See B Williams A Critique of Utilitarianism in J J C Smart and B Williams Utilitarianism: For

and Against (Cambridge: CUP, 1973).
This distinction can be nicely illuminated by comparing D2 with the person,

D3, who really does damage the truck to rescue V. In the case of D2 and D3 the
results are just the same. In both cases, Ts truck is damaged and V is rescued.
Furthermore, in both cases, V would not have been rescued had it not been for the
damage done to Ts truck. Finally, in both cases the defendant knew this. However,
the difference between the two cases is that in D3s case the truck was damaged to
rescue V and this is not true of D2. When D3 is damaging Ts truck it would be cor-
rect to say about him that he is rescuing V. That would not be the correct thing to
say about D2. What the defendant is doing is determined by the reasons for his
action. And the intrinsic nature of what the defendant is doing plays a role in moral
assessment. Rescuing V by damaging Ts truck is not morally wrong. Damaging
Ts truck for its own sake is morally wrong even if it leads to the rescue of V. In
providing D2 with a defence, the law would at least be permitting the wrongful
damage of Ts truck. And that is at least a reason against providing a justification
defence in such cases.
Now, the sophisticated consequentialist will argue that the intrinsic value of
action can be accommodated within consequentialism. In deciding whether to
provide D2 with a defence, we need to consider the consequence of a wrongful
action being committed (damage to Ts truck for its own sake) against the conse-
quence of a wrongful result (V being burned to death). On the one hand, there is
an intrinsically wrongful action, on the other, a bad consequence. And the conse-
quentialist might admit that it is sometimes the case that the intrinsic wrongful-
ness of an action makes it a worse consequence than the wrongfulness of a result.
That may not be the case as far as D2 is concerned, but there might be cases like
this where the resulting harm is less significant and the intrinsic wrongfulness
of the action worse. However, it need not be the case that there are such differences
between cases. It may be that the resulting consequences both constitute wrongful
actions.
We can see this clearly if we consider cases of coercion. Suppose that X credibly
threatens D4 that he will commit a serious assault on J unless D assaults H.
D4 does not care at all about J, but wants to assault H, who he does not like. D
knows that he will save J from being seriously assaulted by X, but that is not his
reason for assaulting H. We would expect Robinson to come down in favour of
the defendant in such a case, where Gardner would come down against: D4 didnt
assault H to save J from being assaulted. That he was not motivated by the reason
that made his act justifiable would not provide him with a justification according
to Gardners theory.
Now we can see how the consequentialist can accommodate the intrinsic
wrongfulness of certain actions into their understanding of justification defences.
In this case, it might be argued, the state ought to provide D4 with a defence.
For, it will be argued, it is surely better that H is assaulted intentionally than J is
We have already seen a consequentialist argument of this kind in Chapter 7.

seriously assaulted intentionally. The consequences, in this case, are of an intentional

serious assault to be weighed against an intentional assault. And if the state does
not provide D4 with a defence it has failed properly to balance the interests of J in
not being seriously assaulted against the interests of H in not being assaulted. If
the state has to choose, it must choose an assault against H when that is to be com-
pared with a serious assault against J, and it will only choose this if it does not
deter D4 from assaulting H by providing D4 with a justification defence.
But in response we can move the anti-consequentialists objection to a further
level. Consider the difference between D4s case and the case of the defendant,
D5, who assaults H in order to save J. The difference between the two cases is that
in providing D5 with a justification defence to assault H, the state has not war-
ranted an intrinsically wrongful assault. However, that is not true of the state in
the case of D4. In the case of D4, by denying the defendant a justification defence,
the state doesnt warrant X in either threatening to assault J, or in assaulting J. In
providing D4 with a justification, the state has warranted D4 in wrongfully
assaulting H. In response to the argument that the state has failed to respect the
interests of J by not providing D4 with a justification defence, it can be argued
that citizens have an interest not only in being free from being wrongfully
assaulted, but also in being free from having those wrongfully motivated assaults
warranted by the state. That distinguishes D4s case from D5s, suggesting that
there is a good reason not to provide D4 with a justification defence even if D5
ought to be provided with such a defence. In D5s case, providing the defendant
with a defence only warrants a morally permissible assault: an assault committed
to save J.
The consequentialist cannot easily repeat the earlier manoeuvre against the
anti-consequentialist at this higher level. To make the cases equivalent, the conse-
quentialist would have to find an example where, in preventing D from assaulting
H, the state would also allow another state to warrant an illegitimate assault upon
someone. If such an argument could be found, the same technique that conse-
quentialists used to accommodate the existence of the intrinsic wrongfulness of
certain actions might apply here. It is questionable whether we should accept the
consequentialist argument even in this, still more sophisticated, form in the area
of international relations, for example. But we need not consider whether that ver-
sion of consequentialism in political theory would be acceptable here.
Now, even if the consequentialist recognises the importance of the intrinsic
value of certain actions, he will object that surely there are cases in which the state
ought not to deter even an intrinsically wrongful action where the consequences
of doing so are very severe. For example, in the case of D2, surely the states inter-
est in protecting V from being killed counterbalances the states interest in pro-
tecting T from having his truck illegitimately damaged by D2. And indeed that is
right. In recognising that actions have value or disvalue intrinsically, we need not
go as far as to suggest that we should never take into account the consequences of
our actions. As Bernard Williams suggests, an anti-consequentialist need not go as
far as Kant in thinking that wrongful action cannot be performed, or in this case
permitted, whatever the consequences.
However, the question is not whether there are actions of this kind that the state
ought not to deter. Providing a justification defence to the defendant does not
merely fail to deter the agent, it marks his action out as something that the state
warrants as reasonable. Just as we must take seriously the role of the criminal law in
communicating the moral wrongfulness of actions in convicting defendants for
them, we should take seriously the role of the criminal law in communicating its
attitude towards the defendants action where it permits breaches of the criminal
law. The language of justification is inappropriate in cases like these. If, for deter-
rence reasons, the criminal law ought not to convict D2 of a criminal offence, that
does not require that it ought to use the language of justification to do so. The lan-
guage of justification ought to be reserved for those defendants who have behaved
in accordance with right reasons. That D2 cannot claim.
To conclude, in deciding whether a defendant who performs a justifiable act for
the wrong reason should be punished for a criminal offence, it is important to con-
sider the disvalue not only of the consequences, but also the intrinsic disvalue of the
action performed, and the intrinsic disvalue in having the state fail to punish an
intrinsically wrongful act that breaches the criminal law. It may be that there are cases
where the state would not wish to deter those wrongful actions despite this double set
of reasons against doing so. If that is the case, however, the language of justification
should not be used. Such cases may possibly be categorised as excuses which, as we
shall see, are reserved for wrongful actions that the state does not have a proper inter-
est in convicting the defendant for. But they are not justified. As those deterrence rea-
sons do not apply in cases where the defendant is unaware of the circumstances that
might otherwise make the action justifiable, there can be no reason to provide even an
excuse in the cases that Robinson is concerned with, let alone a justification.
10.4 Reasons for Belief and Reasons for Action

in Justification
In the previous section, we have seen that justification depends upon motivation.
The action of a defendant who breaches the criminal law for the wrong reasons is
not justified even if he acts knowing all of the considerations which make his act
justifiable. Criminal law can quite properly distinguish between what is justifiable
and what is justified. It is insufficient for a defendant to claim that his act was
justifiable. He must show that it was justified to claim a justification defence.
There might be cases where improper motivation does provide the defendant with
a defence of some kind, but that defence is not best thought a justification.
A Critique of Utilitarianism 90.

Acting for an appropriate reason is a necessary condition of claiming to be

justified. The question to be addressed in this section is what else, over and above
being properly motivated, is required for the defendant to be justified in breaching
the criminal law. One further condition that is imposed by a number of writers,
including George Fletcher and Gardner, is that, over and above being properly
motivated, the facts must warrant a justification as well. To take a classic example,
suppose that D is walking down a dark alley. Out of nowhere comes V, who is
wrapped up warm in her black balaclava. Thinking that V is a mugger, D strikes V
(in a way which, were she a mugger, would be justified). V is in fact an innocent
jogger. If the defendant has a mistaken belief about the circumstances in which he
acts where, were his beliefs true, he would have a justification, is the defendant to
be justified? Fletcher and Gardner answer that question in the negative. Even a
reasonable belief about the facts, they argue, can only found an excuse, never a
justification.
One question to be asked at the outset is what is the target of justification in
such cases. For example, in the case of the mugger, are we being asked whether the
law can justify attacking V? Or are we being asked whether the law can justify
attacking a jogger who was minding his own business? Or are we being asked
whether the law can justify breaching a prohibition of the criminal law? Or some
combination of these? Whether the term justification is properly used may well
depend upon what we are attempting to justify. And as the same set of circum-
stances can generate different appropriate descriptions, it may be that some of
those descriptions can ground justifications where others do not. So we may say
that D was justified in breaching the criminal law and attacking V where he was
not justified in attacking a jogger who was minding her own business. I will return
to this question at the end of this section, but it is worth noting at the outset that
the appropriate way of describing an event depends upon the institutional setting.
In asking what is to be justified in the context of defences in criminal law, the
answer is that the defendant must justify perpetrating the offence with which he
has been, or would be, charged.
It is also worth reiterating a claim that I defended in Chapter 4. In addressing
the question of whether such defendants are justified or excused, it is common to
base ones arguments upon some further features about the law. For example, it is
often thought that third parties are permitted to assist those who are justified but
not those who are excused. As there is no good reason to help those who have mis-
taken beliefs about the justifying circumstances (unless, of course, both Fletcher
and Gardner are mistaken and also that the assister has made the same mistake as
the principal) those with mistaken beliefs cannot be justified. Or it is sometimes
Rethinking Criminal Law (Oxford: OUP, 2000) ch. 10.

Justifications and Reasons. In the past I have agreed with Fletcher and Gardner, for example, in
The Characters of Excuse (2001) 21, Oxford Journal of Legal Studies 495 and The Structure of
Defences in Scots Criminal Law [2003] 7 Edinburgh Law Review 60, but I have since learned the
error of my ways.
claimed that two agents who are assaulting each other cannot both be justified.
Justifications, it is thought, cannot conflict. As two joggers might both reasonably
believe that the other is a mugger, this requirement would seem to rule out reason-
able beliefs from the realm of justification. Finally, it is sometimes claimed that
where the defendant is justified, the agent against whom force is to be used is not
justified in resisting.
From these further features, it is argued that mistaken reasonable beliefs cannot
ground justifications, only excuses. For, given the argument of the previous
section, where the reasonable beliefs of two agents differ, there will always be the
possibility that there will be a conflict of putative justifications. And, the argu-
ment goes, such disagreements must be resolvable. They will only be resolvable if
those putative justifications are not real justifications, but only excuses. However,
how we decide further questions about conflicts arising from mistake seems to me
to depend upon the nature of justification and not the other way around. Features
about assisters or conflicts are to be decided on the basis of the primary question
about the nature of justification. It is that question that I will address here. My
claim will be that reasonable but mistaken beliefs can ground justifications, not
only excuses.
How are we to develop a theory of justification that is independent of these
further features about defences? As justifications are concerned with what there is
reason to do, a natural way to develop the theory is upon reasons. The theory
developed by Gardner and Fletcher might be defended in the following way:
justification depends upon reasons, and reasons depend upon facts, therefore
justification depends upon facts. As we shall see, some version of this thesis is
indeed true, but it does not have the implications defended by Fletcher and
Gardner.
Now, in order to sustain the thesis, Gardner distinguishes between two differ-
ent kinds of reason. The first he calls guiding reasons: guiding reasons are the rea-
sons that ought to guide the defendant about what to believe or how to act. The
second he calls explanatory reasons: explanatory reasons explain the action that
the defendant in fact performed. Justification, according to Gardner, calls for the
fusion of guiding and explanatory reasons. The reason which explains the defen-
dants action must also be the reason that ought to have guided him. Hence, as I
noted in the previous section, Gardner requires not simply that the defendant
knew of the circumstances relevant to justify his action but also that those reasons
in fact motivated him. For reasons outlined in Chapter 1, in place of guiding
reasons I shall use the more familiar normative reasons. In place of explanatory
reasons, I shall use the term motivating reasons.
As I implied in the introduction, the way I shall use normative reasons refers to
the reasons that there are to act or believe. A defendant having a normative reason
does not depend, as Bernard Williams thought it does, upon the defendant having
Also defended by Kent Greenawalt in The Perplexing Borders of Justification and Excuse.
some motivation to act in accordance with that reason. Williams thought that D
has a normative reason to a only if aing would be something that D would be
inclined to do were he being fully rational and were he fully informed. I can see no
reason for this further requirement. Why should we think that the status of aing in
the court of reason is denied by rational or epistemic failures on the part of D, but
not other ethical failures, such as motivational or emotional failures? I can see no
reason for making this distinction. If D does not see the reason to a because he is
irrational or lacks knowledge, that does not imply that he lacks the reason to a.
But if he does not see the reason to a because he is vicious, cruel or indifferent, that
does not imply that he lacks the reason for a. Normative reasons, then, are reasons
that apply to the defendant whether or not he is motivated, or inclined to be moti-
vated, by those reasons.
A natural way for Fletcher and Gardner to defend their position is to claim that
normative reasons, unlike motivating reasons, are generated by facts, not by
beliefs. It is certainly true, on the side of normative reasons, that they are gener-
ated by facts. Suppose that I save a baby from drowning in a puddle. The norma-
tive reason to save the baby from drowning is that otherwise she will die, not that I
believed that otherwise she would die. The difficulty with this defence, however, is
that it is not clear that motivating reasons are not also generated by facts. What
motivated me in saving the baby is that otherwise she would die. We may refer to
the belief that I had that otherwise the baby would die, and indeed this is natural
when I make a mistake as to the facts, but the primary way in which we should
understand me being motivated is by a fact, not by a belief. In deciding what to do
I investigate the facts, I do not investigate my beliefs. When there is a reason to
save the baby from drowning and I save the baby from drowning, I am motivated
by a normative reason in favour of saving the baby. There is no disjunction in such
a case between a normative and a motivating reason. These are not two species of
reason.
What are we to say when the agent has acted in a way that he would not have
had he known all of the facts? It is certainly true that we explain the actions of the
agent by referring to a belief. In answering the question why D assaulted the
jogger, it is natural to say that he thought it was a mugger. Given that normative
reasons are generated by facts, and it is a fact that V was a jogger, and not a fact that
V was a mugger, are we immediately to conclude that there is no normative reason
for D to assault V? In this case, it might appear that normative and motivating
reasons must come apart: there is a motivating reason but no normative reason.
The motivating reason, in this case, was that D was being mugged by V. But that
cannot amount to a normative reason as D was not in fact being mugged. We can
use the belief of D here to explain the action of D: that D believed that he was
being mugged clearly helps us to explain the action, but Ds belief was not the
Internal and External Reasons.

This is persuasively argued for in J Dancy Practical Reality (Oxford: OUP, 2000) ch. 5.
reason which motivated him: he was motivated to protect himself from being
mugged.
The difficulty with this view about justification is that it restricts to an
unwarranted degree the range of facts that can constitute normative reasons for
action. In order to see this, we need properly to understand the relationship
between appearance and reality. Suppose that I have symptoms of meningitis. I go
to the doctor believing I have meningitis. There are different ways of constructing
my motivation here. I am motivated to protect myself from being struck down by
meningitis. But I am also motivated by the appearance that I have meningitis.
Suppose that I do not have meningitis. Are we to say that I was not justified in
going to the doctor because of that fact? The answer must be negative. The
appearance that I have meningitis is enough to justify my action. It would be odd
to say about me in such a situation that I only have an excuse for going to the doc-
tor, not a justification, because going to the doctor would only be justified by my
in fact having meningitis.
It is worth noting that I am still motivated by a fact about the world in this case:
the fact that it appears that I have meningitis. That appearance does not always
correspond to the reality does not deny the status of the former as a fact about the
world. It may be objected to this that appearance is to be distinguished from fact,
and that talking of the fact of appearance collapses into talk of belief. But that is
not the case. The fact of appearance is to be distinguished from belief by virtue of
the fact that appearance is appearance to any believer, not just this defendant.
A defendant may believe that it appears that there is a mugger where in fact it does
not appear that there is a mugger. Consider the racist defendant who believes that
most black people are muggers. He may take the fact that V is black as constitut-
ing part of the appearance of being a mugger when in fact it does not. The reverse
is also true. Belief and appearance come apart by virtue of the fact that the latter
refers to a state of the world (albeit one that is dependent upon there being per-
ceiving subjects) whereas the former refers to a state of mind. In the language of
the law, appearance is objective whereas belief is subjective. That something
appears to be the case is a fact about the world, not a fact about the psychology of
an agent.
In cases where it appears that the world is thus and so, but the world is not thus
and so, how are we to evaluate whether there is a normative reason to act? I think
that the answer to that question is complex. In one sense there is a reason to act: the
reason constituted by the appearance that I have meningitis. In another sense
there is good reason not to act: in fact I have flu. According to some philosophers,
this conclusion is contrary to our intuitions. Consider the following passage from
Bernard Williams:
The agent believes that this stuff is gin, when it is in fact petrol. He wants a gin and tonic.
Has he reason, or a reason, to mix this stuff with tonic and drink it? There are two ways
here (as suggested already by the two alternatives for formulating the sub-Humean model).
On the one hand, it is just very odd to say that he has a reason to drink this stuff, and
natural to say that he has no reason to drink it, although he thinks that he has. On the
other hand, if he does drink it, we not only have an explanation of his doing so (a reason
why he did it), but we have such an explanation which is of the reason-for-action form.
Williams suggests the dual model whereby there is a motivating reason for the
agent to drink what was in the glass but no normative reason to do so. However,
that is not the case. There is a normative reason here as well: it appears that this is
gin, and in answering the question of whether there is good reason to drink what
appears to be gin, in most ordinary circumstances at least the answer must be pos-
itive. Of course, under another description, the agent has drunk petrol. And there
was no reason for him to drink petrol. But the fact that there was no reason to
drink petrol does not suggest that there was no reason to drink this stuff even
though this stuff was petrol.
It should be noted that this solves what would otherwise be a difficulty when it
comes to justifying belief. As has been noted, there is a difference between justified
belief and knowledge. Justified belief that p may not amount to knowledge that p
simply because p does not obtain. This ordinary and everyday fact appears to be
difficult to account for if we think that there is no reason for the agent to drink the
gin in Williams example. A justified belief is a belief that there is good reason to
hold. But, as the difference between knowledge and belief makes clear, this does
not depend upon ones beliefs being true.
Williams may suppose that there is good reason for the agent to believe that the
stuff in front of him is gin, but no reason to drink it. But that seems difficult to
maintain. Why should the good reason to believe that the stuff in front of him is
gin evaporate once the belief becomes action? For if there is good reason to believe
that the stuff in front of the agent is gin, there is good reason to believe that the
stuff in front of him is desirable to drink (assuming, as Williams appears to, that if
the substance were gin, there would be good reason to drink it). And it is difficult
to see how to drive a wedge between having good reason to believe that the stuff is
desirable to drink and having good reason to drink it. Hence, it appears that aban-
doning the conclusion that the agent has good reason to drink the drink in front
of him involves abandoning the conclusion that justified belief and knowledge
can ever come apart in relation to whether the object of belief obtains. And there
seems little good reason to abandon that. Furthermore, all will agree that it is rea-
sonable for him to drink the drink in front of him, and it seems difficult to distin-
guish between what is reasonable to do and what there is good reason to do. For
what could make an action reasonable in this context other than good reasons?
Three further arguments will help to bolster this account of justifications.
Firstly, this account of justification, unlike that of Fletcher and Gardner, can help
us to make sense of the relationship between justification and risk. The relationship
Internal and External Reasons in Moral Luck (Cambridge: CUP, 1981).

See also M Smith The Moral Problem (Oxford: Blackwell, 1994) ch. 4 for a further flawed analy-
sis of the same problem.
between justification and risk will take some explaining. Our sense that the taking
of a risk is justified is often robust against the outcome of the taking of that risk. If
things do not turn out as the risk taker hopes, that does not establish that the tak-
ing of the risk was unjustified. This idea creates a problem for Fletcher and
Gardner. We can see the problem clearly by considering an example developed by
Kent Greenawalt.
Employing the most advanced techniques for predicting wind patterns, Roger decides that
a fire in a national forest that threatens human lives can be halted only by carefully burning
out a section of the forest that is in the path of the fire. That section is burned on Rogers
orders; shortly thereafter the wind shifts in a wholly unexpected way that halts the forest
fire before it reaches the burned section.
It is natural to say about this example that Roger was justified in taking a risk. But on
the accounts of Fletcher and Gardner, it is difficult to see how this can be so. In fact,
it is difficult to see how one could ever be justified in taking a risk where things do
not turn out as one hoped. If even reasonably held beliefs cannot ground a justifica-
tion defence where the facts turn out unexpectedly to be different from those that D
believes them to be, where are we to stop in our analysis of what the facts are? For it is
always the case, where one takes a risk and things turn out badly, that there is some
further fact about the world that one could have known that would make that risk
not worth taking. This is even true if determinism is false: there are facts about what
will happen in the future as well as facts about the world as it is now.
Gardner has considered the position of reasons generated by risks. His argu-
ment is constructed around the following example, which is much like the one
I raised earlier:
Its going to rain this evening, I explain to my disappointed friends as I cancel my barbe-
cue. Against all odds, the rain doesnt show up. My cancelling the barbecue was a depress-
ing waste of a good party.
Gardner suggests that there was no reason to cancel the party. He calls himself an
actualist about reasons: reasons, he argues, correspond to the actual value of
doing something rather than the probable value of doing that thing. But now we
discover that risks can generate reasons after all. These reasons are generated by
adopting rules regarding risks. Gardner argues as follows:
Even actualists naturally find many subsidiary roles for probabilistic variables in practical
reasoning. For example, relying on rules of thumb that mention probabilities may enable
one to maximize ones conformity with certain reasons over time. Where that is so, the
rules themselves serve as (further) reasons for acting in accordance with them. That it is
going to rain this evening is no reason for cancelling the barbecue this evening, since actually
The Perplexing Borders of Justification and Excuse 1908. Greenawalts argument is developed
along similar lines to that in this paragraph.
The Mysterious Case of the Reasonable Person (2001) 51, University of Toronto Law Review
273. Many thanks to Jeremy Horder for alerting me to this passage.
it isnt going to rain. But that one should, as a rule, avoid taking serious risks of depressingly
bad parties could be a perfectly valid reason for cancelling the barbecue under the
conditions described, even for an actualist like me.
This explanation is odd. There is no reason to think that it is a rule concerning risks
that is generating the reason here rather than the risk itself. Suppose that I had not
adopted such a rule of thumb. I frequently take risks that I ought not to take. In
this instance, however, I think that the risk is too great and cancel the party. Why
would we want to distinguish between me and the person who governs his life by
rules regarding risks? There appears to be no further role for the rule to play in
generating the reason. The validity of the rule concerning risks is dependent upon
the reasons not to act where there is a risk of bad consequences coming about, not
the other way round.
But even if Gardner were correct about the role of rules in this context, it would
do nothing to help defend his view of justifications. For to be justified, Gardner
claims, one must act on an undefeated reason. But why would we want to rule out
reasons generated by rules in this regard? If the rule generates the reason to cancel
the party, surely that suggests that cancelling the party was justified. Gardner
thinks that his view of justifications can be defended by drawing a wedge between
reasons to believe and reasons to act. We have already seen why that is not plaus-
ible. But even if it were, surely reasons generated by rules of the kind that Gardner
alludes to are normative reasons to act.
However, a further line of argument may present itself to help Gardner to
distinguish cases of unrealised risks from other cases of mistaken belief. For rea-
sons that will become clear, I will call this the complex theory. That theory is
argued for as follows. It is at least sometimes the case that facts about the future are
less readily available to us than facts about the world as it is now. Hence, we tend
to say that it appears that it might rain rather than it appears that it will (although
that may not be true when the storm clouds are gathering forebodingly above our
heads). It might be argued that risks play a justificatory role precisely because
the realisation of those risks is not generally available to us in the way that facts
about the world are. So, the risk that it will rain can justify because whether it
will rain is not something generally available to us in the way that the jogger being
a mugger is generally available to us. Of course the latter fact is not readily
available to the defendant in the particular cases under consideration (otherwise
his belief that the jogger is a mugger would not be reasonable). But there are
closely related worlds in which that fact would be readily available to the defen-
dant, what we might call general availability. The point about risks, it might be
argued, is that their realisation is not generally available to us in this way:
according to this account, there is a risk that something will happen where
the outcome is not only unavailable in this case but unavailable more generally.
I do not think that this is in fact true of risks, but will not rest my argument on the nature of risk.
This complex theory would allow risks to play their natural role in justification
whilst denying that justificatory role to appearances more generally.
However, whilst it is plausible to tease apart these cases in this way, there seems
little reason to divide up the theory of justification in this way. Why would we
wish to provide a justification to D where he acts in circumstances where there was
a fact about the circumstances that was unavailable to D, not only in this world
but in closely related worlds as well, where we provide him only an excuse where
there was a fact about the circumstances that was unavailable to D, but which
would have been available to him in closely related worlds? It is true that Gardners
dual view can survive examples based on risk in this way, but only on pains of dis-
tinguishing between cases in an arbitrary way.
Consider two cases where it appears to A(1 or 2) that it is going to rain, but it
turns out sunny, and A(1 or 2) acts on that belief by cancelling the party. In both
cases A(1 or 2) reasonably relies solely on his barometer. In the first case the
barometer, despite being accurate in the vast majority of cases, is faulty with
regard to this particular set of circumstances. This is a fact which, in closely related
worlds, would have been available to A1, but was not available to him in this
world. In the second case the barometer works fine, but there is a small margin for
error in these circumstances. That the reading was erroneous in this case is a fact
which, in closely related worlds, would still not have been available to A2.
The complex theory would distinguish between A1 and A2: although both A1
and A2 are justified in believing that it is going to rain, only A2, it is claimed, is
justified in cancelling the party. That distinction is arbitrary. It is true that A1
relies on a faulty barometer whereas A2 relies on a working barometer. But why
should that make all the difference when it comes to translating the justification
for the belief that the action is justified into the justification for the performance
of the action?
Furthermore, the complex theory invites us to evaluate the conditions under
which a world is sufficiently similar to ours to warrant justification. And that evalu-
ation will prove sufficiently difficult to make it unlikely that the distinction
between justification and excuse rests on it. Consider whether the prohibition of a
certain drug, drugulike, is justified. Drugulike is addictive and has some other
negative side effects, but has little apparent benefit. Suppose that three hundred
years hence, through some technique of science that is currently beyond our ima-
gination, it is discovered that drugulike vaccinates us against a fatal virus which is
unknown to us, but which we are all at risk of catching. Is the prohibition of
drugulike justified?
According to the complex theory, that would depend upon whether the world
in which drugulike is recognised as beneficial is sufficiently close to ours to
make recognition of those benefits reasonably available to us. For the present, we
can claim only that we appear to be justified in prohibiting drugulike. Whether
Something like this line of argument was presented to me by Antony Duff.

we are justified depends upon how things turn out: whether new facts that are
discovered about the world are sufficiently available to us to make our world rea-
sonably close to the world as we will come to know it three hundred years hence.
Under the reasons theory that I defend, on the other hand, prohibition of drugu-
like is justified, although once the beneficial effects of drugulike are discovered,
that prohibition will no longer be justified. As can be seen, the reasons theory has
the advantage of simplicity.
The remaining two arguments for the reasons view can be stated more briefly.
The second argument is that the theory coheres quite neatly with the way in
which we give advice. Sometimes we advise others on the basis of facts, some-
times on the basis of appearances, and often these two bases for advice are naturally
interchangeable. For example, we might say: take the chicken out of the oven
when it is done, or take the chicken out of the oven when it appears done. In using
the second formulation, as opposed to the first, we are merely adverting to the fact
that it is not necessary to investigate with incredible care that this is the case. This
is precisely the kind of advice that the criminal law wishes to provide when it tells
citizens that only reasonable beliefs will ground justifications. In using the word
reasonable the law sets out a limited demand on defendants when it comes to
checking that their beliefs are true.
It is hard to make sense of this kind of advice if we adopt the theory advocated
by Fletcher and Gardner. Let us return to Greenawalts example concerning the
fire in the forest. Suppose that Roger asks Fletcher and Gardner for advice
concerning the burning of the section of the forest: would I be justified in burn-
ing that section of the forest? he asks. Given their theory of justifications, they
would appear to be required to respond: We dont know. It depends which way
the wind blows!
The third argument is that the reasons theory coheres quite naturally with the
fact that the criminal law permits us to act upon reasonable beliefs where it does
not allow us to act on unreasonable beliefs. The latter might sometimes amount to
an excuse, but never to a justification. That is because in the latter case, the defendant
cannot claim that there was a normative reason for his action, even a normative
reason based upon appearances. Note the difference between two claims that a
defendant might make where he believes the jogger to be a mugger. On the one
hand, he might claim that it appeared that the jogger was a mugger. On the other
hand, he might claim that it appeared to him that the jogger was a mugger. In one
case he is citing a reason, that corresponds to a fact. In the other case he is explain-
ing his action, but not necessarily justifying it: there might be the further claim
that he should not have seen the situation as he did, undermining the apparent
justification. Note that in the latter case, he is not adverting to a fact about the
world but only a belief and, as noted earlier, a belief itself cannot amount to a nor-
mative reason, only a fact.
See also D Husak Justifications and the Criminal Liability of Accessories.

Now we must return to a question outlined at the beginning of this section. For
one response that Fletcher and Gardner might give to this account of justifications
has to do with the appropriate description of the action. They might concede that
there is a description of the events under which it is appropriate to use the
language of justification. But that description is not the description that the law
ought to be concerned with. Hence, the claim might go, although the defendant is
justified in striking the person in front of him, he is not justified in striking an
innocent jogger. And it is with the latter description that the law is most appropri-
ately concerned.
However, surely the description of the events that is appropriate in these cir-
cumstances is the description that is significant in the criminal law context. The
defendant has been charged with a criminal offence, and is asked to defend him-
self against that charge. In arguing that he was justified in doing what he did, the
defendant is arguing that he was justified in acting in the way that the criminal law
describes. In the case of the defendant who assaults a jogger, the fact that this was a
jogger is not an important part of the prohibition against which he is defending
himself. The defendant is not being asked to justify assaulting an innocent jogger,
he is being asked to justify assaulting another. And in providing his defence he is
entitled to say that he was justified in assaulting another because that person
appeared to be a mugger. That is not to say, of course, that he was justified in
assaulting an innocent jogger, for what could justify that?
Now, suppose that the defendants mistake is of the kind that is associated with
the wrong with which he has been charged. Consider, for example, a defendant
who has assaulted a person who is in fact a police officer in circumstances in which
he did not appear to be a police officer but rather a mugger. He is charged with
assaulting a police officer, which is an offence which is distinct from the offence of
mere assault. In that case, he does not need a justification for assaulting a police
officer, for he has not even performed the wrong of assaulting a police officer. This
is recognised in criminal law by the separation of aspects of the offence from
aspects of the defence. When the defendant denies that he knew (or possibly
ought to have known) that the person he assaulted was a police officer, in this case,
he is not justifying or excusing assaulting a police officer, he is denying that he has
fulfilled the conditions of the wrong of assaulting a police officer. We can see
from this example that reasonable mistakes may play one of two roles in the crim-
inal law. Either they show that the defendant lacked mens rea for the offence that
he has perpetrated, or they show that the defendant was justified in fulfilling
breaching a criminal prohibition. Reasonable mistakes do not ground excuses.
Albeit within the unusual evidential framework of criminal courts which place the burden of
proof on the prosecution.
Sanford Kadish fails to recognise this important aspect of the structure of criminal responsibility
when he argues that mens rea terms are in fact really forms of excuse. See Excusing Crime (1987) 75,
California Law Review 257.
10.5 Conclusions
I have defended three claims in this chapter. Firstly, in justification claims, the reasons
generated by prohibitions continue to operate. Justifications operate when both
content reasons and prohibition reasons are counterbalanced by reasons in favour
of breaching a prohibition. Secondly, where the defendant performs an act which
is justifiable, a justification defence is only available if the defendant acts for
appropriate reasons. A defence might properly be available in some cases where
the defendant was aware of the facts that make his action justifiable even if he is
not motivated by those facts. However, even in such cases, that defence ought not
to be considered a justification, perhaps an excuse. Thirdly, justification defences
are available to a defendant who forms reasonable beliefs about the circumstances
and acts in an appropriate way on the basis of those beliefs. If the facts turn out to
be different than expected, that does not turn a justification into an excuse.
Now we can consider some of the further issues that I adverted to towards the
beginning of Section 10.4. Firstly, it is clear, from this theory, that it is quite possi-
ble for conflicts of justification to exist. This might occur where both defendants
have mistaken beliefs about the other. Two joggers, each of whom reasonably believes
the other to be a mugger, might both be justified in using force against the other.
Secondly, and relatedly, the fact that D has a justification defence in using force
against D2 does not establish that D2 does not have a justification for resisting the
force that D is using. In fact, such cases are simply further examples of conflict of
justification. Two defendants who are struggling to get the last place on a lifeboat
might both have reason to use force to resist the attempts of the other to get onto
the lifeboat. We might prefer both to be altruistic in such a position, but it would
be unreasonable for the law to require altruism in such a case. This is part of the
general claim that the criminal law demands that the defendant behave reason-
ably, not rightly in providing justifications, an idea generally implied by the anti-
perfectionism of the criminal law defended in Chapter 3.
Thirdly, there is no clear relationship between the fact that D has a justification
defence and the rights of third parties to assist D. Where D reasonably believes
that a jogger is a mugger, in order for D2 to be justified in assisting D, D2 must
also reasonably believe that the jogger is a mugger. If D2 does not have the requi-
site belief, or holds it unreasonably, the justification defence for assaulting the
jogger is not available to D2.
It is worth noting that accepting the reasons theory also invites the acceptance
of a single categorisation of justification defences, an issue that I introduced in
Chapter 4. It is true that different reactions are required of defendants who defend
themselves against real muggers and defendants who defend themselves against
joggers who merely appear to be muggers, particularly if the false appearance can-
not be attributed to a failing of the jogger. In the latter case an apology is required.
The defendant ought to say that, in the light of what was really the case, he wishes
that things had not turned out thus. Furthermore, we might think of this case as
the central case of justification. Cases where action is justified on the basis of
appearance rather than reality are parasitic on these central cases. Appearances can
justify only because of their relationship to reality. A defendant will be justified by
how things appeared only if he would have been justified had things been as they
appeared. Nevertheless, these cases are still within the class of justification. As I
argue throughout this book, there is room within each defence category (exemp-
tion, justification and excuse) for different kinds of claim. It will be important for
the criminal law to distinguish between different claims within each category. But
that does not make categorisation redundant.
Given this theory of justification, what room is there for excuses to play? What
appears to some to be the central category of excuses, where the defendant makes
reasonable mistakes about reality, has been incorporated into justifications. If
there are excuses, those excuses will apply to defendants who act unreasonably.
But given the demand of the criminal law that defendants behave reasonably,
what role can excuses play? This is the question that I will explore in the next three
chapters.

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10

Reality and Appearance in Justification

When a prohibition is created, it is to be hoped that it will not be breached. But

Criminal Responsibility. Victor Tadros.

10.2 Reasons and Prohibitions

Where the defendant argues that he is entitled to a justification defence, he has

See J Gardner Justifications and Reasons.

10.3 Justifiable but Unjustified Actions

See B Williams A Critique of Utilitarianism in J J C Smart and B Williams Utilitarianism: For

This distinction can be nicely illuminated by comparing D2 with the person,

We have already seen a consequentialist argument of this kind in Chapter 7.

seriously assaulted intentionally. The consequences, in this case, are of an intentional

10.4 Reasons for Belief and Reasons for Action

A Critique of Utilitarianism 90.

Acting for an appropriate reason is a necessary condition of claiming to be

Rethinking Criminal Law (Oxford: OUP, 2000) ch. 10.

Internal and External Reasons.

Internal and External Reasons in Moral Luck (Cambridge: CUP, 1981).

Something like this line of argument was presented to me by Antony Duff.

See also D Husak Justifications and the Criminal Liability of Accessories.

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