Excuse, justification and collapse

ABSTRACT

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

KEYWORDS:

• Excuse
• justification
• wrongness
• culpability
• criminal law; punishment; reasons; duress

I. Introduction

A mobster threatens to slash your face if you don’t commit perjury to exonerate a member of his crew.¹ You’re afraid. It’s a credible threat given his reputation. However, you appreciate it’s not certain he’ll make good on it. Maybe he and his compatriots will be distracted by other business. Maybe you can lay low until memories fade and the threat subsides. Maybe the authorities could protect you, though you don’t trust their ability and commitment to do so fully. Moreover, you suspect alerting the authorities might anger the mobster and increase the harm he’d inflict if he catches you. You also have children, and you fear they could come to harm if things go sideways. So you decide to give in to the threat. You are charged with perjury and plead duress. It works. You’re acquitted.

What manner of defense did you have here: justification or excuse? Perhaps it’s not so plausible to treat your defense as a justification that rendered your otherwise wrongful conduct permissible in the law’s view. We can appreciate why the legislature might reasonably deem the certainty of the evil involved in lying in solemn court proceedings to be a weightier reason against your conduct than the reasons in favour that derive from the risk of a future non-deadly threat.² Given the alternatives to perjury, including going to the authorities, the legislature might reasonably conclude that it cannot deem your conduct to be permissible, i.e., supported by the applicable reasons for action weighed objectively.

On this thinking, duress is not a justification but is better seen as an excuse. On the traditional picture, excuses accept the wrong you’ve been accused of but deny that you are fully culpable (to blame) for it.³ Here, although the legislature might reasonably think it cannot accept your conduct as permissible, it might still have sympathy for your plight. It might agree that many of us, when placed in such a demanding position through no fault of our own, would not manage to do any better. Thus, although the law cannot deem your conduct permissible, the legislature might still take your conduct not to fall below the bare minimum standard of behaviour we can tolerate in society. It might opt to give you a break ‘as a concession to human frailty’, as the common phrase has it. On this thinking, you have reduced culpability for your perjury even if the act also stands as a wrong. This would place your defense in the realm of excuses.

But dig deeper. If the legislature has sufficient sympathy for your plight to relax the normal expectation to refrain from perjury and so withhold punishment, why wouldn’t it be equally plausible for the legislature to accept that the reasons you have in favour of perjury in this case – the fear of violence, which many of us likewise would not manage to resist – actually do objectively outweigh the other reasons against perjury? That is, why not say the law accepts that your conduct, not described generally as perjury but more narrowly as lying in court in response to a credible threat that many would not manage to resist, actually is justified?

That’s the problem this paper is about: For any putative excuse, what prevents us from recharacterizing it as a narrowly circumscribed justification that in the particular case renders one’s act ultimately permissible? How do we block the skeptical worry that excuses generally might collapse into justifications?⁴ And even if we were confident that all excuses would not collapse into justifications, partial collapse might still threaten given that some particular excuses seem to speak just as naturally to wrongness as to culpability and thus would resist conclusive categorisation. Collapse could still threaten with respect to these. There are thus two parts to answering the collapse problem: First, why do we need two standards of assessment at all, one wrongness standard that only justifications (not excuses) speak to and a second sometimes lower culpability standard, which also excuses impact? What would we lose without this distinction? Second, even if we need the distinction in general, when we face a given intuitively mitigating factor, how do we decide whether it exculpates justification-like by denying all things considered wrongness or excuse-like by accepting wrongness but denying (full) culpability? How, that is, do we deal with the malleability of mitigating factors that seem to speak just as naturally to wrongness as culpability? We need guidance for sorting excuses from justifications in these difficult cases.

Some accounts of excuses nicely block collapse, especially ‘irresponsibility’ views on which excuses are a matter of agential incapacity that prevents one from being able to avoid the wrong. But such views face familiar problems – chiefly under-inclusivity. I argue (Section III.B) that an attractive way to avoid these problems for other views is offered by normative expectations accounts of excuses, which see justifications and excuses as speaking to different standards of assessment. On such accounts, excuses negate culpability because even when one violates the standard of wrongness, one might avoid (at least some of) the blame by meeting the lower culpability standard that sets the floor for what sorts of behaviour we ultimately demand.⁵ Besides direct theories of excuse, several mainstream theories of culpability appeal to normative expectations and thus would explain the culpability-reducing force of excuses in a similarly normative way. One influential view takes it that excuses reduce culpability because they are conditions showing one didn’t have a ‘fair opportunity’ to avoid the wrong, where what counts as a fair opportunity is determined partly by normative expectations.⁶ Some quality of will views take one to be culpable for an action to the extent it manifests ill will or insufficient regard for others (not merely that one possessed it), where what counts as manifested is determined in part by normative expectations.⁷ An excuse thus would be a condition showing that one’s action didn’t manifest as much insufficient regard as it otherwise would. On both theories of culpability, excusing conditions lower culpability by invoking reduced behavioural expectations applicable to the actor.

However, the collapse problem puts particular pressure on normative expectations accounts. Why couldn’t we simply take the considerations underlying excuses – like impairments to one’s motivational or cognitive abilities, or external disturbances like unfair threats or provocations – to actually function like justifications which render apparently wrongful actions at bottom permissible? This threat is especially powerful given that one influential school of thought regarding excuses – dubbed the rationalists about responsibility⁸ – would reject the category of excuses altogether and say that any putative excuse in fact must be redescribed either as a justification, negating wrongfulness, or as an exemption, denying that the person in question was actually an agent who performed a genuine action that is attributable to them.⁹ The challenge for an account of excuses – especially the normative kind I favour – is how to decisively block the threat of excuses collapsing into justifications (or exemptions).

Part of what motivates this skeptical worry is a concern for parsimony. If any excuse that purports to reduce culpability could in principle be recast as a justification negating wrongness, perhaps only a very narrow individual-specific one, then we begin to wonder why it’s necessary to insist on a more complex picture that distinguishes wrongness and justifications from culpability and excuses. Could we not do just as well with one standard, say the wrongness standard to which only justifications (not excuses) speak? Although the traditional picture of criminal law, like many views of morality, distinguish these two categories,¹⁰ the desire for simplicity in our theoretical apparatus might lead us to abandon this two-tiered picture if we cannot answer the threat of collapse. Additionally, even if the threat of full collapse is avoided, we still need guidance on how to determine whether a given mitigating factor, which may seem able to speak just as naturally to wrongness as to culpability, is best seen as exculpating in a justificatory or excusatory manner. This part of the collapse problem is motivated not by parsimony so much as a fear simply of theoretical instability and unworkability.

However, my project comes with an important constraint: the aim is to find a way to block collapse that does not privilege a particular substantive theory of moral wrongness or take on heavy-duty theoretical commitments on issues or concepts pertaining to interpersonal morality. In principle, if we had a substantive theory to tell us which actions are wrong – say, a consequentialist or deontological view – then we could use it to decide which mitigating considerations exculpate justification-like by negating wrongness as understood by this theory and which don’t. The latter, assuming they are mitigators, would end up as excuses impacting only culpability. Contrariwise, the threat of collapse is particularly strong on some moral views, particularly agent-centered deontological theories of wrongness.¹¹

Adopting a substantive theory or elaborate philosophical apparatus to block the collapse worry has drawbacks. Most importantly, its success will depend on the outcome of hotly contested issues of first-order moral philosophy. This may be no impediment for philosophers who are happy to battle it out about the correct theory of moral wrongness. But it should give legislators pause, and I think also criminal law theorists. If one’s aims are legislative, or if one is a theorist arguing for particular institutional or doctrinal arrangements, one would want one’s views to be compatible with a broad range of substantive or philosophical views. There is a dizzying array of substantive theories in the philosophical literature, and legislators and criminal law theorists may not think they stand a chance of finding a sufficient basis for choosing between them. Aware of the complexity of these issues, philosophically modest legislators and theorists might prefer an agnostic stance where possible. At least, I do. I don’t have a substantive theory of what makes actions morally wrong or culpable, but think many theories capture important insights. Given the protracted debates on these issues, I despair of being able to choose in a rigorous way which moral theory to support. Thus, when focused on criminal law, I’m wary of strategies for blocking the threat of excuses collapsing into justifications that rely on substantive moral accounts or controversial theoretical commitments.¹² At the very least, the more such commitments one’s solution requires, the more debatable, uncertain and unsuitable for legislative use it becomes.

As a result, I do not seek to block collapse by helping myself to a particular substantive theory or conception of wrongness (e.g., a given deontological theory), or other robust theoretical commitments about contested moral concepts (e.g., the epistemic perspective involved in particular moral concepts). I wish to remain as ecumenical as possible on questions of first-order moral theory. However, this limits my project. Decisively blocking collapse within morality, I suspect, will require taking on substantive moral or theoretical commitments. Instead, my main aim is the more limited task of blocking collapse for criminal law. The picture I sketch might be extended to block collapse also within morality at least on some moral views, but this will be controversial and I’m not convinced it is correct for morality.

Why care about collapse at all? First, the justification-excuse distinction may have doctrinal relevance.¹³ For example, third parties are often thought to be legally permitted to intervene with force to prevent an unjustified but excused offense, though not a justified one; likewise, it’s often taken to be permissible to aid offense conduct that is justified, but not conduct that is merely excused.¹⁴ In a jurisdiction adopting this approach, knowing how to prevent collapse would help decision-makers, especially courts of appeals, determine when third-party intervention is permitted. If collapse cannot be answered, we need other ways to assess third-party intervention.

Second, the threat of excuses collapsing into justifications imperils the orthodox picture of criminal law as structurally similar to morality. This picture sees criminal law as reflecting morality by default,¹⁵ such that criminal law encodes the moral distinction between justifications as negating wrongness and excuses as negating culpability. To maintain this traditional picture as a stable position, we need to block the threat of collapse. Third, collapse is a more pressing worry for the normative expectations view of excuses than other views, so defending it requires blocking collapse. Finally, distinguishing justifications from excuses in legal contexts has practical upshots. Illuminating the distinct contribution of excuses shows where new excuses are needed, and reveals how legislatures, by more clearly distinguishing excuses from justifications, can do better in their communicative aims than current practice.

This paper explores how to block collapse to help shore up normative-expectations views. It proceeds in two stages. The first half focuses on both morality and law, and asks whether a substantively ecumenical way to firmly separate excuses from justifications can be found that works in both domains. Section II lays some groundwork. Section III critiques efforts to block the threat of collapse in both law and morality and shows why a normative expectations view of excuses is attractive – particularly as against natural alternatives like agential incapacity views. Section IV articulates my preferred normative expectations account, which has the benefit of revealing a formal difference between justifications and excuses, plus wrongness and culpability. My account is couched in quality of will terms, though it is compatible with normative expectations views generally. The gist is that excuses reduce culpability by making it no longer fair and humane to expect the actor to be fully motivated by, or give full weight to, the applicable reasons against the wrong – particularly in light of the sympathetic weaknesses, impairments or disturbances the actor suffers from. This view has the benefit of unifying criminal law excuse categories, including incapacity and rationale-based excuses.

Nonetheless, this view (which can apply in morality or law), despite highlighting formal differences between excuses and justifications, does not decisively block the collapse worry. Instead, to firmly block collapse, normative expectations views must be supplemented. Section IV ends by showing how isolated substantive commitments or arguments may enable progress in distinguishing excuses from judications on a case-by-case basis, although this lacks the systematicity one might hope for. Moreover, by leaving the door open to protracted substantive debate, it fails to decisively dispel the spectre of collapse.

Accordingly, the second half of the paper leaves morality aside. Sections V and VI shift to considering how we might firmly yet ecumenically distinguish excuses from justifications specifically for the criminal law. The focus on criminal law enables an appeal to institutional or rule-making considerations that do not obviously apply within morality. The key to blocking collapse for criminal law, I argue, is to attend to the differences in how the legislature can legitimately assign weight to reasons in determining which actions it deems to be wrong vs. how individuals can fairly and humanely be expected to assign weight to reasons. The framework from Section IV remains important for showing how this difference pulls wrongness apart from culpability, and thus highlights how institutional considerations do more within the criminalisation inquiry than merely push for practical or consequentialist compromises to the ideal moral content of the criminal law. Section VI uses the normative expectations framework to show that institutional considerations in fact have a role to play within the retributive (desert-focused) component of determining what conduct to condemn, how strongly to condemn it and in what manner. If I’m on the right track, additional excuses are warranted, and we should more clearly distinguish excuse-based from other acquittals (at least in clear cases). My approach to blocking collapse can be employed by any normative expectations view and is not meant to help us choose between them. Instead, I aim to show that the threat of collapse is not an insurmountable problem for normative-expectations views in legal contexts.

II. Setting the stage

A. Wrongness and culpability

Some background on wrongness and culpability helps illuminate the threat of collapse. Both notions figure centrally into traditional legal moralist views on which the content of the criminal law ideally should mirror that of interpersonal morality unless there are weighty reasons to the contrary.¹⁶ This involves (a) a requirement that conduct not be criminalised unless culpably wrong, and (b) the claim that culpable wrongness provides a reason for criminalisation – along with other considerations like harm reduction and expressive benefits.¹⁷

An action is wrong iff it is decisively disfavoured (or in some other binding sense not to be done¹⁸) by the full set of reasons that bear on how to behave under the circumstances according to the best moral theory.¹⁹ Wrongness is about how strong the case in fact is against doing the action in question. Culpability (equivalently, blameworthiness) is a property of agents in respect of their actions. It concerns not the actor’s character, but what one’s action reveals about how defectively one ‘engage[d] with the reasons why [one] ought not to have done it’.²⁰ On this widespread picture, ‘D becomes culpable for φ’ing when, in her engagement with the reasons she has not to φ, she was insufficiently motivated by – cared insufficiently about – the interests of others’.²¹ Sometimes this is called the ‘engagement view’ of culpability.²² I defended a version dubbed the ‘insufficient regard theory’.²³

The standard picture of justifications and excuses proceeds in terms of wrongness and culpability. On this picture,²⁴ justifications deny the all-things-considered wrongness of a pro tanto wrong²⁵ – paradigmatically, by providing reasons that outweigh, or otherwise override or modify, the reasons against the action.²⁶ Excuses accept the all-things-considered wrongness of the conduct but deny the defendant’s culpability for it – whether fully or partially.²⁷ Both these concepts should be distinguished from the threshold notion of an exemption,²⁸ which asserts that one was not an actor who is subject to moral evaluation at all for one’s behaviour or movements. Excuses thus typically operate within the realm of agency to deny or reduce culpability for an all things considered wrongful act.

On many views, culpability entails wrongness: one can’t be culpable for an action unless it’s wrong. I set aside views on which one can be culpable simply in virtue of possessing bad attitudes not expressed in action²⁹ – in part because the criminal law (my main practical focus) will not attribute culpability without an action the law deems wrong³⁰ (whether correctly or incorrectly³¹). Furthermore, it’s common to maintain that all things considered wrongs are culpable unless excused.³²

All this is just conceptual set-up, which does not resolve questions about whether particular exculpatory considerations are to be treated as denying threshold agency (as an exemption), pro tanto wrongness, all things considered wrongness (as a justification) or culpability (as an excuse). Hence the importance of finding a way to block the threat of collapse – particularly as between the latter two categories, which are the trickiest to hold distinct.

Let me offer a caveat about awareness of reasons before proceeding. Because I accept the engagement view of culpability, I assume culpability depends on one’s engagement with the reasons that are available (epistemically or otherwise) to the actor to reason from, be motivated by or otherwise take into account on this occasion.³³ This, too, is a minimal claim. It does not resolve, nor do I take any stand on, the question – central to the debate about liability for negligence – of whether reasons (like the riskiness of one’s act) count as available to the actor to reason from when she was not actually aware of them at the time (even latently). Negligence skeptics think negligent conduct cannot be culpable because a risk of which one is not actually aware (even latently) is one that one simply cannot have taken into account in one’s practical reasoning.³⁴ By contrast, those who see negligence as culpable tend to think that if one should have been aware of a risk posed by one’s action A, this is enough for this risk (this reason not to do A) to count as available to one to reason from or be motivated by.³⁵ They think that, in the normatively relevant sense of ‘could’, the actor could indeed have taken this risk into account. I remain neutral on whether actual (at least latent) awareness of a reason is necessary for one to be able to reason from it. All I assume is that whatever reasons do count as available to reason from or be motivated by, those are the ones that culpability depends on the quality of one’s engagement with.

I make no such assumption about wrongness. I’m open to thinking wrongness could (perhaps only sometimes) depend on facts not epistemically available to the actor. This difference flows from my account in Sections IV and VI.

B. Desiderata regarding excuses

There are several things we want from an account of excuses – though of course, not all may be possible, and tradeoffs may be required. First, and most important for present purposes, our account should keep excuses separate from nearby concepts like justifications and exemptions.

Second, we want our account to explain why excused actors actually are less culpable and deserve to be subject to less blame. The account should show why the culpability-reducing force of excuses is not at the blamer’s discretion – as, say, a form of optional mercy or forgiveness. This rules out purely blamer-focused answers to our question, which see excuses as involving only, say, self-interested or policy reasons for imposing less blame on the excused. Those are reasons of the wrong kind. Our account should instead be sufficiently agent-focused as well.³⁶ This desideratum highlights a challenge for legal accounts of excuses, such as those discussed in Section V, which appeal to institutional or functional differences between excuses and justifications in legal settings – e.g., that the former give adjudicatory instructions while the latter give ex ante conduct guidance to individuals.³⁷ I’m sympathetic to such views of excuses, but their challenge is to explain why excuses make the excused agent less culpable for their wrongdoing in virtue of features of the agent or their practical reasoning. The account I offer in Sections IV and VI give one way of grounding such legal accounts (or institutional considerations more generally) in an agent-focused picture of how excuses reduce culpability without denying wrongdoing.³⁸

Third, our account should also permit partial excuses. It should explain how excuses can reduce culpability without eliminating it entirely – not least because this helps keep excuses separate from exemptions. This could also help explain why some legal excuses do not fully exculpate but reduce the seriousness of one’s offense (as when provocation reduces murder to manslaughter, perhaps³⁹).

Fourth, it would be interesting if our account provided a structurally similar picture of the full spectrum of criminal law excuses. Many distinguish rationale-based excuses (duress and provocation) involving unfair pressure to act wrongfully from incapacity excuses (insanity, automatism, reduced capacity, infancy) involving impairments that come close to but don’t quite amount to exemptions.⁴⁰ This might suggest the two categories exculpate differently. But it would be illuminating if these two categories shared a deeper structure. It might also help account for partial incapacity defenses⁴¹ in showing that incapacity doesn’t speak only to threshold eligibility for blaming judgments.

My aim here is to give an account of how excuses reduce culpability that satisfies these desiderata. But my account fails a fifth desideratum: success in both law and morality. Ultimately, I only aim to make progress on blocking collapse for criminal law.

III. Preliminary efforts to block collapse

In this and the next Section, I explore efforts to block the threat of excuses collapsing into justifications that could apply equally within law and morality. Section A sets aside two natural strategies for blocking collapse in a general way: epistemic perspective and third-party intervention. Besides being more complex and controversial than philosophically modest legislators likely can stomach, these strategies do not capture all there is to the excuse-justification distinction. Even if they could be salvaged, we want a view that explains the bulk of excuses, which arise even when such strategies are accounted for.

In Section B, I motivate the normative expectations view of excuses by showing the drawbacks of the leading non-normative alternative account, involving agential incapacity. But as we’ll see, moving to a normative view places the collapse problem front and centre.

A. General attempts to block collapse

1. Epistemic perspective

One familiar strategy for distinguishing justifications from excuses is to maintain that wrongness occupies a different epistemic perspective than culpability. The difference is easiest to see for factual matters; we’ll come to evaluative matters. Regarding wrongness, Tadros observes that an action can ‘be either permissible or wrong relative to the facts, relative to the evidence or relative to our beliefs’ about the facts.⁴² Likewise for culpability. It could be fact-relative (FR), i.e., assessed in light of the actual facts, evidence-relative (ER) if assessed based on what’s reasonable given one’s available evidence about the facts, or belief-relative (BR) if assessed based on what one honestly (even if unreasonably) believes.

This is contested territory. Some may think wrongness, which only justifications affect, and culpability, which also excuses affect, align epistemically. Perhaps both are, say, ER. If so, we’d need another way to distinguish wrongness from culpability, and thus justifications from excuses. Others think justifications and excuses diverge precisely because wrongness and culpability occupy different epistemic perspectives. The main options are:⁴³

1. Wrongness (hence justification) is FR; culpability (hence excuse) is ER.⁴⁴ Thus, reasonable mistakes of fact only excuse, not justify. Unreasonable mistakes do neither.⁴⁵

2. Wrongness is FR; culpability is BR. On this view, both reasonable and unreasonable mistakes of fact excuse.⁴⁶

3. Wrongness is ER; culpability is BR. On this view, reasonable mistakes justify; unreasonable mistakes excuse.⁴⁷

(There could also be mixed views, wherein these concepts occupy different epistemic perspectives in different contexts.⁴⁸) I’m open to thinking wrongness and culpability might differ in epistemic perspective, though I don’t take a stand on the matter. If one likes an epistemic difference account of how excuses and justifications differ, this can supplement my picture.

Nonetheless, the underlying trouble is that epistemic differences between wrongness and culpability are insufficient to account for all there is to excuses. Some excuses would apply even if the two concepts occupied the same epistemic perspective. Most obvious are the incapacity excuses – like insanity, infancy, loss of control – and some rationale-based excuses like duress. Such excuses would still operate even if the actor had perfect information.

Deciding which epistemic perspective wrongness and culpability occupy is key to accounting for cases of mistake (whether reasonable or unreasonable). Because I set aside epistemic differences between the two concepts, I also sidestep questions about the exculpatory force of mistakes.⁴⁹ My focus is on how to understand excuses even if wrongness and culpability occupy the same epistemic perspective.

In theory, similar positions regarding the epistemic perspective of wrongness and culpability could also be adopted for evaluative matters. For instance, maybe wrongness is assessed relative to the evaluative facts but culpability relative to what your evidence reasonably suggests the evaluative facts are. Or maybe wrongness is evaluative-fact-relative while culpability is relativised to evaluative beliefs.⁵⁰ Again, I set aside such views here because it is hotly contested terrain and these views likewise do not capture all there is to excuse. The issue is relevant to understanding the exculpatory force if any (whether justificatory or excusatory) of evaluative mistakes. But excuses cover more than evaluative mistakes, and there is space for excuses even assuming the actor had correct evaluative beliefs. This is what my account focuses on. For simplicity, I suggest we assume wrongness and culpability occupy the same epistemic perspective – evidence-relativity – for both factual and evaluative matters.

2. Third-Party intervention

Another general route to blocking collapse appeals to the common thought that all things considered wrongful actions are those that third parties may intervene forcefully to prevent but may not aid or abet,⁵¹ while permissible actions may be aided but not blocked by third parties. If the act is wrong, an excuse does not change that third parties may block but not aid it.

But this strategy will not do for present purpose either. There are two main problems. To start, it reintroduces the epistemic complexities just set aside. As noted, my aim is to characterise how justifications and excuses might differ even if wrongness and culpability occupy the same epistemic perspective. However, this picture in terms of third-party responses runs into trouble unless the third-party intervenor is in at least as good an epistemic position as the wrongdoer.⁵² It does not work neatly when third parties are epistemically disadvantaged compared to the actor. So issues of epistemic perspective re-emerge.

Consider reasonably mistaken self-defense: John comes home at night, hears a crash and thinks there is a burglar in the kitchen. It’s really his wife setting up a surprise party. When asked ‘who’s there’, she mumbles something that sounds ominous because she’s eating cake. John reasonably believes there is a dangerous burglar and he shoots her, reasonably believing it’s necessary in self-defense. (There’s no other exit than through the kitchen.) Now suppose Sally realises John’s reasonable mistake. Sally is in a superior epistemic position to John. It’s plausible that Sally may forcefully intervene to stop John’s shooting his wife (and shouldn’t aid John’s action). However, if wrongness is assessed relative to what’s reasonable on the actor’s evidence, John’s shooting is permissible – justified in self-defense. But on the current proposal, third parties may not intervene to block permissible actions. So the view would implausibly prohibit Sally’s intervention.

In response, one might say wrongness is fact-relative.⁵³ But this view is controversial due to cases like Jackson’s famous Dr. Jill example:⁵⁴ A doctor has three medicines to cure a painful disease. One she knows provides a partial cure. Of the other two, one will kill the patient and the other is a full cure – but the doctor has no way of finding out which is which. Here, anything but administering the partial cure seems highly reckless and indeed wrong. Though the debate rages on, the point is that we are now back in the mire of philosophical debates about epistemic perspective.⁵⁵

The second worry is that the present approach fails to capture a key desideratum. It’s important for our theory to preserve the claim that when you have an excuse, it really lowers your culpability such that you deserve less blame – i.e., it would, all else equal, be inappropriate for us to blame you fully for your wrong. The present strategy looks to third-party responses, not the reasoning of the defendant, to differentiate wrongness and justifications from culpability and excuses. So it’s unclear how the view explains why excuses impact the defendant’s practical reasoning (the weights to be given to reasons) and thus why excuses really reduce her culpability.

B. Motivating a normative view

1. Agential incapacity or irresponsibility

Another influential picture of excuses would apply even if wrongness and culpability occupy the same epistemic perspective. One of its attractions is that it offers a tidy way to block collapse. Unfortunately, the view is overly narrow.

The idea is that excuses all involve some form of agential incapacity that reduces culpability.⁵⁶ On this picture, a wrongful action is excused to the extent that one is not responsible for it, where responsibility is understood as possessing the agential capacities or control needed to be able not to do the action. This sort of picture is what underpins the oft-repeated claim that rationale-based excuses (like duress or provocation) are a matter of one’s rationality or will being overborne by emotion or other mental disturbance.⁵⁷

On the agential incapacity view, excuses thus are based on an ‘ought implies can’ intuition – more precisely, that culpability for an act requires the ability to avoid it. If one couldn’t have avoided the wrongful act due to agential breakdown, like being overwhelmed by emotion, insanity or other incapacity, then one is excused: culpability is reduced without negating the wrongness of the action.

Another version of this view takes excuses to deny that the wrong is really the agent’s action, i.e., properly attributable to her. The spin this adds is that if one could not have avoided the action due to incapacity or impairment, then we say the action is not truly one’s own – not a manifestation of one’s character or ill will. Gardner dubs this the Humean view;⁵⁸ others attribute it to Strawson and Wallace.⁵⁹

Whether formulated directly in terms of a lack of agential capacity or as denying attributability due to incapacity, this type of view faces serious limitations, as many have pointed out.⁶⁰ The basic problem is that even if some excuse cases fit the agential incapacity picture, for some excused actions it’s not plausible to say anything but that the agent was not so seriously impaired that they were unable to avoid the wrongful action. In a range of excuse cases, as we’ll see, it is clear that the agent could have avoided the relevant wrong, thus undermining the ‘ought implies can’ style exculpatory mechanism. The agential incapacity view thus appears worrisomely under-inclusive to an extent that at least motivates the search for an alternative account. And while the view could respond to such difficulties by expanding the categories of justification or exemption to capture the problem cases, this would squarely raise the collapse problem again, thereby undermining the distinct advantage of irresponsibility views.

To illustrate, take a case of insanity based on extensive delusions and detachment from reality. In the grip of a paranoid conspiracy theory, an insane actor might believe that some politician is a pedophile and feel a huge amount of ill will towards him, wishing him suffering and death. The actor might also be able (in the relevant sense) to avoid acting on this ill will, e.g., by instead alerting the authorities and letting them investigate. But the actor believes the authorities are corrupt too, so she undertakes the (as she sees it) ‘heroic’ task of killing the politician. Thus, she could have avoided the crime, but by hypothesis qualifies as insane. She is not exempt from evaluation entirely. There appears to be voluntary action here, guidance by instrumental reasoning, and fairly high levels of cognition, thus supporting the claim that the choice to do the wrong really is the actor’s (indeed, she would bristle at the contrary suggestion). Yet she is psychotic, suppose, and has substantially lost touch with reality. She doesn’t sufficiently grasp the consequences and wrongness of her act. So she merits an excuse. The agential incapacity view has trouble explaining why the excuse is merited, as significant agential control is present here. Structurally similar cases arise for minors who do have robust reasoning capacities and agential control, but still seem to merit an excuse because they’re children.

This problem is not limited to insanity or immaturity. Hyman argues convincingly that some duress cases involve a genuine voluntary choice to do the wrongful action instead of suffering the threatened harm – even if one is not overwhelmed by emotion or a loss of control that makes resisting the wrongful action impossible.⁶¹ He notes that in many cases ‘a person who gives way to duress could choose to resist, even if doing so would be dangerous’⁶² and so duress cannot excuse solely because the person threatened was ‘unable to resist’.⁶³ Indeed, Kelly makes a similar point for excuses in general, claiming that ‘excuses do not necessarily indicate either lack of ill will or an agential incapacity’, and excuses don’t reduce culpability because ‘an agent could not have exercised … self-control, but because moral action is so hard under the circumstances’.⁶⁴

For this reason, it is also too narrow to maintain that rationale-based excuses like duress or provocation require reason being overwhelmed by emotion or other mental disturbance. Some cases that merit a duress defense, for example, don’t involve a powerful emotional reaction that overwhelmed the actor’s rational assessment of reasons.⁶⁵ It’s plausible that some actors might merit an excuse despite being cool and collected – who act wrongfully not out of emotional disturbance but from a calm assessment of the circumstances.⁶⁶ It would seem arbitrary to deny a duress excuse, say, to someone whose family is credibly threatened just because the person has specialist training and can control their emotions better than most. I think we should prefer an account of excuses that at least can capture the view that excuses should apply even to calm and cool actors (who are not so seriously agentially impaired). This – together with the insanity and immaturity examples just mentioned – helps motivate the search for an alternative account of excuses that appeals to more than just emotion overwhelming reason or other breakdowns of agential capacity.

Finally, a related problem for the agential incapacity view is that it is unclear how such a view can distinguish (i) temptation to do the crime, where one faces an overwhelming or irresistible desire to do it (maybe even when most human beings could not resist, as in Ring of Gyges cases⁶⁷ where detection is impossible), which we think doesn’t excuse, from (ii) cases where compromised agential control does seem to excuse, as with duress or loss of control where one similarly feels an irresistible urge do the crime. In a descriptive sense, isn’t one’s ability to avoid the crime, one’s ability to control one’s conduct and guide it according to the applicable reasons, just as compromised in (i) as in (ii)?

2. Going normative (fair opportunity)

These concerns about the agential incapacity view put pressure on us to ‘go normative’ by maintaining that there are different normative expectations that apply in excuse vs. non-excuse cases. David Brink’s view aligns well with the agential incapacity views while adopting an expanded notion of irresponsibility that incorporates normative expectations. It largely avoids the problems of the agential incapacity view. On Brink’s view, a wrongful act is excused if done with no or reduced responsibility, where responsibility is understood as having a fair opportunity to avoid the wrongful action. One can lack a fair opportunity (have a less than full such opportunity) to avoid the wrongful action in two ways: (1) due to lack of (full) agential control (akin to the above sorts of incapacity), or (2) lack of (full) situational control.⁶⁸ An action that one does not fully have a fair opportunity to avoid is one that one isn’t fully responsible for, and reduced responsibility for a wrong reduces one’s culpability for it. This is because Brink claims culpability equals the action’s degree of wrongness multiplied by the actor’s degree of responsibility for it.⁶⁹

As a schema, this is attractive. If we do have a fair opportunity to avoid strong temptations (as in Ring of Gyges scenarios) but lack fair opportunity to avoid crimes done under duress, this explains why culpability is reduced in the latter cases but not the former. However, we need an account of what ‘fair opportunity’ means, so some of the trouble above re-emerges. Lacking a fair opportunity to avoid a wrongful action cannot be understood just in terms of the costliness of not doing the wrong. If it could, then why wouldn’t the costs of avoiding the action just become a justification rendering the action permissible once the relevant threshold of costliness has been passed? This is a deep problem we’ll keep returning to: Couldn’t any factor that purportedly affects culpability due to depriving the actor of a fair opportunity to avoid the action in principle be taken into account by the standard of wrongness, i.e., as a reason that helps render the action all things considered permissible? Why does the lack of a fair opportunity to avoid an action reduce only culpability rather than affecting its wrongness?

Without a substantive picture of wrongness vs. culpability, it is not clear why Brink’s irresponsibility/fair opportunity view amounts to a theory of culpability reduction (excuse) rather than wrongness defeat (justification). To block this worry, the present view needs some story about how to hold culpability separate from wrongness. If one has a substantive theory of moral wrongness, it might let one escape this quandary by telling us why fair opportunity does not touch wrongness, only culpability. However, my project seeks to be neutral on substantive moral commitments and I do not want to rule out any leading theories ex ante. Even if some substantive considerations help block the collapse of culpability and excuse into wrongness and justification, I am keen to be as ecumenical as possible, identifying the minimal features of wrongness and culpability needed to solve the problem. My account in Sections IV and VI attempts to do this (albeit chiefly for criminal law). Thus, the story I offer can be seen as one way to flesh out and complete Brink’s irresponsibility/fair opportunity view.

IV. The fair and humane expectations view

We’ve seen that normative views are particularly attractive. Remaining focused on both morality and law, another normative view that has been proposed⁷⁰ differs from Brink’s fair opportunity/irresponsibility view by expressly tying wrongness and culpability to different behavioural standards. This is the normative expectations view proper. The rough idea is that the wrongness standard, to which justifications but not excuses speak, is a higher standard: it characterises what we normally expect of adults who are able to function in typical relationships in civil society.⁷¹ The culpability standard, by contrast, represents a lower standard applicable to actors who, although not exempt from moral evaluation, suffer weaknesses or impairments (whether internal or external, permanent or temporary) that we find sympathetic and think it appropriate to relax our normal expectations in light of.⁷² By ‘sympathetic’ I do not mean an emotional response of feeling for or with someone, though this may be part of it; rather, the judgment that X is sympathetic can also involve a sense that X is valuable or at least not intolerably bad – something we wish not to overtly discourage. The culpability standard thus characterises what we expect at an absolute minimum so as not to merit a harsh, condemnatory blaming response.

This Section sketches what I take to be a particularly attractive version of this account: the Fair and Humane Expectations View. It proceeds in quality of will terms but is inter-translatable with other normative views (like Brink’s fair opportunity view). This view makes some progress in blocking collapse: it reveals the formal difference between wrongness and justification versus culpability and excuse, and shows what substantive question we must confront to decide when a mitigator is justificatory or excusatory. This view also secures the desideratum of unifying the main criminal law defenses by showing the deep structure they share, and it accommodates a range of views on which defenses are justifications vs. excuses (whether full or partial).

However, even this especially plausible version of the normative expectations view on its own still fails to decisively block collapse. We will see why for any putative lower standard, it’s unclear why the relevant considerations couldn’t figure into the higher wrongness standard for narrowly circumscribed cases. If one thinks insanity, infancy or loss of control excuse, why not modify the permissibility norms to build in these more nuanced, personal or context-sensitive considerations? The issue is especially pressing for rationale-based excuses like duress and provocation, as in the perjury case the paper opened with. Why not see the mobster’s credible threat of future harm as a justification that renders the offense permissible at least in these narrow circumstances? I argue that without more, even this attractive normative account doesn’t block this possibility.

To decide whether a given mitigator is excusatory or justificatory, at least while remaining neutral on controversial first-order matters of interpersonal morality, I argue in Section VI that we can make progress by looking at institutional features of the criminal law. This means giving up on providing an account of excuses in both morality and law that blocks collapse.⁷³ But before falling back on that route, this Section asks how far we can get while staying focused on both law and morality.

This Section’s discussion of the details of the normative expectations view will be crucial for the solution to the collapse problem I develop in Section VI. This is because the present view provides the machinery with which to give a properly agent-focused account of how excusing conditions genuinely reduce culpability. The approach to blocking collapse that I favour within criminal law gives a central place to institutional considerations, which one may think has little to do with culpability. What focusing on normative expectations adds is an explanation of how institutional considerations have a differential impact on culpability vs. wrongness, thus explaining how excuses function to reduce the actor’s culpability in a criminal context without similarly defeating the wrongness of an offense in the way justifications do. But before turning to criminal law, let us finish examining attempts to block collapse in both morality and law to see how far this gets us.

A. The fair and humane expectations view

I’ll call my preferred account the fair and humane expectations view. It carves out formally distinct roles for justification and excuse but does not decisively block collapse without additional considerations. The view explains excuses even if wrongness and culpability occupy the same epistemic position (say, evidence-relativity). It can accommodate epistemic differences in these notions if desired, but I set aside issues of epistemic perspective here.⁷⁴ First I explain wrongness, then offer an insufficient regard (quality of will) picture of culpability.

The account supposes that the standard of wrongness reflects the conduct we can fairly expect to be avoided by what I’ll call an ordinary reasonable agent, which involves several idealisations discussed below. However, this agent and the conduct we expect of her is not that of a perfectly ideal, optimal, moral or virtuous agent. At least the criminal law – and plausibly the bulk of moral norms – do not require optimal, affirmatively virtuous conduct. It just requires not breaching certain minimum requirements reflecting the basic standards we want to insist on. Nor is ordinary reasonableness to be understood statistically. This is not necessarily what the average or median person in society would do. It is a normative standard, pegged to what conduct we think an ordinary, basically competent and reasonable adult should be able to manage to avoid. Although the average capacities or traits of citizens may bear on what we think it fair to build into ordinary reasonableness, the two are not necessarily the same. It is possible we might deem some actions to be wrong that most citizens would not in fact manage to abstain from (as in the Ring of Gyges cases, where getting caught is by hypothesis impossible).

I understand wrongness in terms of reasons: An action is all things considered wrong when it is decisively disfavoured by the balance of the actually applicable reasons. The weights to be attached to these reasons are those that would be attached by an ordinary reasonable agent, who is characterised by certain idealising assumptions about their executive faculties – cognitive and motivational – which we’ll see can sometimes be relaxed for culpability and excuses. Some natural candidates (though there may be others⁷⁵) are:

• Ordinary cognitive competence: Ordinary reasonable actors are cognitively able to perceive and understand the relevant facts about their situation that are at least epistemically accessible to them.

• Ordinary volitional competence: Ordinary reasonable actors are able to reliably act on or execute their judgments about what is to be done.

• Ordinary emotional competence: Ordinary reasonable actors are (sufficiently) able to control their emotions to avoid acts deemed wrong.

• Disinterestedness: Ordinary reasonable actors are capable of controlling their biases sufficiently to regard everyone affected by their conduct as being of equal moral concern, and in their practical reasoning, the weights they attach to reasons will reflect this. That is, everyone’s interests will be seen as counting for the same unless there is a normatively relevant difference (such as that the others affected are actually aggressors, who have made themselves liable to defensive harm through their attack – see sub-section C).

• Fortitude: Ordinary reasonable actors are willing and able to bear, in order to do the right thing, a significant but always finite amount (which can vary depending on what is at stake) of pain and sacrifice to self or others they have a close relationship with.

The idea is that in assessing what conduct is all things considered permissible, some such assumptions are operative in assigning weight to the applicable reasons. My talk of giving weight to reasons doesn’t necessarily mean assigning numbers or making judgments in conscious deliberation. Rather the weight attached to a reason (a fact) in favour of or against an act, I take it, is a way of talking about the degree of motivation toward or against the action that is operative, in virtue of one’s consideration of this reason (or fact), in one’s action-generating processes.⁷⁶ These processes aggregate the various considerations bearing on how to behave and issue in a decision (whether conscious or not), thus producing an action (assuming one’s executive machinery doesn’t fail). The weight attached to a reason, R, for or against an act corresponds to the pressure or inclination, or attraction or repulsion, towards or away from the act in virtue of R within one’s action-generating or deliberative processes (whether these are conscious and reflective or subconscious and impulsive). Accordingly, when assessing whether and how wrong an action is, the weights to be attached to these reasons are assumed to be what would be attached (in the above motivational sense) by an ordinary reasonable agent for whom our idealising assumptions are true. Thus we get:

Wrongness: An action is wrong to the degree that it is decisively disfavored by the balance of the actually applicable reasons, where these reasons are given the weights that an ordinary reasonable agent (as characterized by the above idealizing assumptions) under the circumstances would give them.

Against this backdrop (which could be further fleshed out⁷⁷), culpability on the present view is assessed by allowing one or more of these idealising assumptions to be relaxed – partially or fully – when the actual actor suffers from a weakness, impairment or disturbance (internal or external) to their motivational faculties that we think sympathetic. As noted earlier, my use of ‘sympathetic’ is not meant to simply refer to things that evoke an emotional response of feeling for or with someone; it might also mean that the thing judged sympathetic is valuable or at least not intolerably bad.

This generates a second, lower behavioural standard. Where these assumptions are to be relaxed, this reduces the extent to which we can fairly and humanely expect the actually existing reasons (bearing on permissibility) to be given their full weight in the actor’s motivational processes (practical reasoning). This begins to show how excuses stemming from sympathetic weaknesses, impairments or disturbances to one’s motivational faculties, compared to ordinary reasonable actors, lower culpability for wrongdoing.⁷⁸ When one’s motivational faculties fall below the standard characterised in the idealising assumptions above, though in a way we find sympathetic, this can lessen (perhaps even lower to zero) the weight it is fair and humane to expect the actual actor to give to the reasons against doing the wrong in question.⁷⁹ By contrast, if no excusing condition (sympathetic departure from the idealising conditions above) is in play, then there will be no relaxation of our normally applicable expectation that the reasons against doing the wrong will be given their full weight in one’s action-generating processes to ensure one does not actually do it. In that case, one’s culpability for the wrong would directly correspond to its degree of wrongness – i.e., the degree to which it is disfavoured by the actual reasons, assessed disinterestedly and assuming the actor has adequate competence, self-control and fortitude.

The standard of culpability, therefore, in taking account of sympathetic weaknesses, impairments or disturbances to one’s motivational faculties, is a lower behavioural standard. If wrongness indicates what we can expect of ordinary reasonable actors (where the degree of wrongness corresponds to the degree of departure from this standard), the culpability standard indicates the absolute minimum we can expect of others even in challenging circumstances without our ceasing to be fair and humane towards them. Thus, we get:

Culpability: One is culpable for a wrongful action to the degree that it manifests a deficiency in one’s motivational processes or practical reasoning (the weights one attaches to reasons) relative not to how an ordinary reasonable agent would attach weights to the applicable reasons in the circumstances, but rather relative to the lower standard of how it would be fair and humane to expect the actor to give weight to these reasons, taking into account any sympathetic weaknesses or impairments (internal or external) that she may labor under.

Because these disturbances, impairments or weaknesses impact culpability in virtue of their being sympathetic, they come with two important caveats. First, you cannot yourself be seriously at fault (culpable) for creating the conditions of your own impairment or weakness and still get the full benefit of the excuse. If you do, then the conditions will not be met for our sympathy to be engaged (at least fully), such that we’re willing to relax our expectations on how much weight we expect you to attach to the relevant reasons. Second, unlike justifying considerations which one can be motivated by, one cannot be solely motivated by the fact that one has an excuse and so will not face punishment for doing a wrongful action without losing the benefit of the excuse.⁸⁰ After all, if the wrongful action is motivated solely by the prospect of avoiding liability rather than its being caused via the motivational disturbance that the excuse specifies, then our sympathy is not likely to be engaged (at least not fully). Thus, there will be no basis (or a reduced one) for relaxing the normal expectation to give at least the required weight to the reasons against the wrongful act (or proxies therefor).

B. Justifications and excuses under the fair and humane expectations account

This picture of wrongness vs. culpability gives us the following:

Justifications are considerations that directly affect the calculus of whether an action is permissible or wrong, as determined by the balance of actual reasons when weighted as an ordinary reasonable agent would. Directly affecting the wrongness calculus in this way could occur either (i) by constituting a reason for or against the action (as in a necessity case, where the justification provides outweighing reasons in favor of the pro tanto wrong) or (ii) by operating on such reasons by modifying, enabling or disabling such a reason (as in the case of self-defense, where the attack one is subject to disables otherwise existing reasons not to do the harmful act that otherwise would be wrong).

Excuses are considerations that operate on or modify the actually existing reasons that speak to wrongness and reduce the degree to which we can fairly and humanely expect the actor to give these reasons their full weight in their practical reasoning – i.e., to fully take them into account, appreciate or be fully motivated by – given the sympathetic weaknesses, impairments or disturbances (whether internal or external) that the actor suffers from.

I’ll now argue that this account is attractive because it can provide a unifying explanation of traditional criminal law excuses, showing their shared structure, while accommodating most plausible substantive views about particular excuses.

1. Incapacity excuses (automatism, immaturity, insanity, reduced capacity)

Incapacity might function as an exemption, a full excuse or a partial excuse, and this account can handle them all in the same way. Exemptions might arise from insanity (cognitive impairments that render one unable to appreciate the nature or wrongness of one’s act⁸¹), immaturity or non-insane automatism (a defect of reason due to external factors like sneezing fits, bad reactions to medication or being chased by bees).⁸² If severe enough, these conditions might make one fall below the threshold of eligibility for blame. The present account says that in these cases, it’s not fair and humane to expect the actor to be motivated at all by – give any weight to – the applicable reasons against the wrong.⁸³

In other cases involving incapacity, the defendant may remain a genuine actor who commits a real action. This is the realm of excuses proper. Even when not operating as exemptions, the excuses share a deep structure on the present account. Insanity, immaturity or automatism can make it no longer fair and humane to expect one to give full weight in one’s motivational processes to the applicable reasons for refraining from the wrongful act.⁸⁴ If Jack smashes the windows of a fancy car causing $5,000 of damage, the reasons weighed by an ordinary reasonable actor might be this:

Table

Unjustified criminal damage	Pro	Contra	Wrongness/Culpability
Ordinary reasonable assessment of reasons	0	10	10

If Jack has a full incapacity-based excuse his culpability would be reduced to zero because his incapacity, which we can assume is sympathetic, makes it no longer fair and humane to expect him to give weight to or be motivated by the reasons against the offense. His act would not manifest insufficient regard for the interests and rights of others:

Table

Fully excused criminal damage	Pro	Contra	Wrongness/Culpability
The weights we can fairly and humanely expect Jack to attach	0	0	0

Incapacity might also excuse only partially. Under the English defense of diminished responsibility, murder is reduced to manslaughter if one suffers from an ‘abnormality of mental functioning’ which ‘substantially impaired’ one’s ability to ‘understand the nature’ of one’s conduct, ‘form a rational judgment’ or ‘exercise self-control’, and this explains one’s lethal conduct.⁸⁵ This might be understood as a partial excuse. Perhaps immaturity could function similarly if the actor is young (14 or 15), but not so young as to be completely incapable of appreciating the reasons against the offense. If there are such cases, the present account can say the partial impairment, while not eliminating the expectation to be moved by the reasons against the offense, still makes it no longer fair and humane to expect one to be fully motivated by (give full weight to) them. For Jack, we get:

Table

Partially excused criminal damage	Pro	Contra	Wrongness/Culpability
The weights we can fairly and humanely expect one to attach	0	5	5

Incapacity thus can reduce culpability when measured against relaxed assumptions of cognitive and volitional competence (or perhaps self-control) – even if the conduct remains wrongful.

2. Rationale-based excuses: duress and provocation

Rationale-based excuses like duress and provocation can be handled analogously. While the story could invoke emotional disturbance (e.g., sympathetic but overwhelming fear that leads us to relax the assumption of ordinary self-control), it need not. The story could also appeal to acceptable partiality – a relaxation of the assumption of disinterestedness. One imperfection we might have sympathy for, which might affect culpability but not permissibility, is a degree of privileging oneself or one’s nearest and dearest – at least where avoiding wrongdoing requires serious sacrifices to self or loved ones. Where avoiding wrong requires large sacrifices, many citizens may not possess the level of disinterestedness that is baked into the standard of permissibility, although we still think it not beyond the pale. If so, perhaps we cannot fairly and humanely expect everyone to make the heavy sacrifices, display the disinterestedness or fortitude, needed to do the right thing in every case. In this way, when acting rightly would be really terrifying or require serious personal sacrifice, one’s culpability for doing a wrong, A, may be lower than A’s degree of wrongness measured by an ordinary reasonable assessment of the weights to be given to reasons. Our sympathy for this lack of disinterestedness or fortitude may be based on what is common among human beings (akin to ‘but everyone does that’). Or it may stem from recognising that we do not want to unduly discourage certain valuable biases, as may be involved in developing deep relationships of care with others or oneself. This might lead us to relax the assumptions of ordinary reasonableness.

To illustrate, consider theft under duress. A mobster threatens to beat up Janice’s son unless she steals expensive medical equipment from the hospital she works at for them to sell. Suppose the probability-adjusted harm of the theft is substantially greater than that involved in the threat. This precludes a necessity (lesser evils) justification, which requires roughly that the (probability-adjusted) harm to be prevented by one’s conduct is greater than what it would cause.⁸⁶ Accordingly, it’s plausible her conduct is all things considered wrong on a disinterested assessment of reasons:

Table

Unjustified wrong (Theft)	Pro	Contra	Wrongness/Culpability [ = Contra – Pro]
Ordinary reasonable assessment of reasons	20	50	30

Instead, Janice plausibly has a duress defense, which under English law is available only if a ‘sober person of reasonable firmness’ with the cognisable characteristics of the defendant (like age, gender, illness, pregnancy) would have behaved the same way.⁸⁷ If we want to think of this as a full excuse, the present account captures it thus. Because of the unfair pressure Janice is subject to regarding her son’s welfare, a plight with which we can sympathise, it is not fair and humane to expect her to be fully motivated by the reasons against the theft, i.e., give them the full weight that an ordinary reasonable actor would attach. Particularly if we decide we do not wish to discourage the emotional dispositions involved in cultivating such relationships of care, we may be able to condone how her special relationship with her child will affect her practical reasoning compared to that of an ordinary reasonable person. Thus, we get:

Table

Fully excused theft	Pro	Contra	Culpability [ = Contra – Pro, bottoming out at zero]
The weights we can fairly and humanely expect to be attached	20	18	0

Alternatively, we could say Janice has only a partial excuse. If so, while the same mechanism functions – i.e., the unfair pressure Janice faces reduces the extent to which it’s fair to expect her to give full weight to the applicable reasons – this would not completely remove her culpability:⁸⁸

Table

Partially excused theft	Pro	Contra	Culpability
The weights we can fairly and humanely expect to be attached	20	25	5

Note that emotional disturbance is not necessary to engage the sort of sympathy I suppose excusatory culpability reductions are based on – though it can. Provocation would operate analogously as a full or partial excuse, though it should be obvious how this would go. Where it applies as an excuse (and it’s been controversial⁸⁹), the unfair pressure due to the provoking actions – pressurised circumstances we can have sympathy for – would make it no longer fair and humane to expect the defendant to give full weight to the applicable reasons against the offense. The upshot is that on the present account, incapacity and rationale-based excuses can be seen to have the same underlying structure.

3. The formal difference between justifications and excuses

This account highlights the formal difference between justifications and excuses, which helps block collapse but does not do so decisively. The formal difference is that justifications impact the weight of the actually applicable reasons bearing on how to act, as assessed by an ordinary reasonable actor, while excuses reduce only the extent to which it is fair and humane to expect the actor to give full weight to the applicable reasons in their motivational processes.

If you think self-defense is a justification, but duress is not, this formal difference can explain why. Consider self-defense absent a necessity (lesser evils) justification.⁹⁰ One may do more harm in self-defense than one is threatened with – provided it’s proportionate and necessary.⁹¹ If an attacker is about to break Fran’s legs, she may kill the attacker if that is her only means of defending herself from this severe attack.⁹² Or if three assailants simultaneously attack Frank intending to kill him and his only means of self-preservation is shoot and kill all three, this too would be permitted in self-defense. To regard such self-defensive acts as justified, the key is to suppose that being the victim of an attack factors into the actually existing reasons, as weighted by an ordinary reasonable actor who is fully disinterested. This is plausible insofar as the attackers’ aggression waives their normally applicable right against being harmed and they become liable to proportionate and necessary defensive harm.⁹³ This is consistent with weighing the rights and interests of all parties equally, subject to the normatively relevant facts of each case. If self-defense is to be a justification, then the attacks must be assumed to affect the weights of the actual reasons, as weighed by the disinterested ordinary reasonable person. We might capture this as follows (assuming the reason against an innocent person’ death is 100 and breaking an innocent person’s legs is 40):

Table

Fran’s and Frank’s justified defensive killings	Pro	Contra	Wrongness/Culpability [ = Contra – Pro, bottoming out at 0]
The ordinary reasonable assessment of reasons in Fran’s case	40	5 [ =  100/20]	0
The ordinary reasonable assessment of reasons in Frank’s case	100	15 [ =  300/20]	0

By contrast, the assumption that turns duress – assuming necessity and self-defense are lacking – into an excuse is that a mere threat, unlike an attack that has been commenced, does not likewise (fully) waive the threatener’s right to be free from defensive harm, particularly if the threat is remote or can be avoided in other ways like going to the authorities. Assuming the actual, disinterestedly weighed reasons against the crime remain decisive notwithstanding the threat, the crime remains wrong. But if duress is an excuse, it would work to relax the idealising assumptions of disinterestedness and fortitude in assessing the wrongdoer’s culpability. If we ask how much the crime is disfavoured by the applicable reasons when weighed as we can fairly and reasonably expect of someone under duress, then the crime may not be so seriously disfavoured at all. If so, the culpability it entails would be less than its degree of wrongness. (Note the present account can also capture mistake cases, though this requires engaging the epistemic perspective issues set aside earlier.⁹⁴)

C. Why collapse still threatens

Nonetheless, this is just one view of how to understand what’s going on in self-defense and duress cases. The conclusion that duress is an excuse not a justification remains contentious because one could always argue that the threat in duress cases – like the mobster case – in fact would be recognised by an ordinary reasonable person, with the idealising assumptions in place, as a sufficiently weighty reason to make the offence permissible in these particular circumstances. For all I’ve said, the problem remains: Why shouldn’t the considerations I said affect culpability – sympathetic weaknesses or disturbances to one’s motivational faculties – be taken into account within wrongness, so they function like justifications (perhaps only partial ones)? I haven’t said anything that conclusively prevents us from taking the duressed defendant to have genuine, objectively applicable reasons in favour of their conduct that are sufficiently weighty to make it all things considered permissible – particularly when the conduct is narrowly described to include the specific circumstances of the case.

I don’t think the present account solves this problem, though it offers useful guidance. At the very least, the account highlights the key question we must debate in order to settle whether the defendants in duress cases are justified or excused: We have to determine how much weight should be given to the considerations involved (e.g., the evil of lying in court vs. that involved in the threat) by an ordinary reasonable person characterised by the relevant idealising assumptions.

As a last-ditch effort to block collapse also in morality without adopting a substantive theory of moral wrongness, we might pursue a case-by-case strategy. Marcia Baron offers a good example of how this might look.⁹⁵ She considers cases of ‘battered women syndrome’ in which a woman is subject to thorough-going coercion, intimidation and violence, which leads her to come to see no other feasible escape from the violence (for herself and sometimes her family) than to kill her abuser. Especially in extreme cases like Baron considers, we would certainly have sympathy for the plight of the victimised defendant. Does this confer a justification or excuse? Baron argues ‘there is an element of condescension in excusing when justifying is in order’.⁹⁶ If we say such cases involve excuse – where fear led the defendant to act against the real balance of reasons – this can seem demeaning in failing to recognise the objective horror of the situation the defendant was responding to. It would fail to recognise that she had no other objectively reasonable means of escape from extreme violence and subjugation but to kill her abuser. (Even the defendant’s going to the authorities may be off the table where the abuser credibly threatens to stop her and kill her if she tries.) This is an argument for construing the mitigators in such cases as justificatory: it would be condescending to see them merely as an excuse rather than as impacting the real, objectively weighted reasons. My aim is not to assess whether Baron is right, but to illustrate how we can make theory-neutral progress in distinguishing justifications from excuses within the present account.

Nonetheless, if engaging in substantive debates like this about how ordinary reasonable actors would weigh reasons is all we can do to determine whether a given mitigator is an excuse or justification, then collapse worries still threaten. First, it leaves us without much systematic guidance that would illuminate in general how to separate excusatory from justificatory mitigating considerations. Perhaps it won’t be forthcoming, but one would be forgiven for hoping for more general guidance than this. Second, the case-by-case approach continues to invite debate about how we are to define the ordinary reasonable person and characterise the traits they possess. In principle, any mitigator that initially seems to function excuse-like could be recast as a justification if one takes the right view of the ordinary reasonable person. Thus, the case-by-case approach risks simply moving the bump in the carpet. It is likely to shift the locus of battle to the defining characteristics of the ordinary reasonable person, which determine how this person weighs the objectively applicable reasons. Thus, the question remains: can we say something more substantively neutral but also general about how to make progress in blocking the threat of collapse, which will not simply shift substantive debates into higher-order debates about the characteristics of the ordinary reasonable person?⁹⁷ I am pessimistic about this within morality, but the prospects for an affirmative answer look brighter for the criminal law. So let’s now turn away from morality to take up this task within the criminal law context.

V. Blocking collapse in criminal law

I suspect we cannot conclusively block collapse within morality without invoking substantive commitments on matters of interpersonal morality. But I argue there is reason for optimism about blocking collapse for criminal law in a more neutral and general way. To do this, I focus on differences in the considerations that can properly influence the legislature’s task of assigning weights to the reasons that determine which actions are wrongs, but which don’t obviously bear on the weights that individuals can fairly be expected to attach to reasons in acting. This Section considers two existing instances of this approach, which help but are not the whole story. Section VI then defends my more general framework, which builds on the normative expectations view from Section IV and carries it over from morality into the institutional setting of the criminal law.⁹⁸

One instance of the present strategy, suggested by Erin Kelly, is that (both in morality and law) the rules marking out what conduct is wrong must proceed in general terms to be properly able to guide conduct.⁹⁹ The coarse-grained rules speaking to wrongness will inevitably be overbroad and impose liability on sympathetic actors where full blame seems inapt.¹⁰⁰ Excuses are needed to mitigate this regrettably necessary strictness, inflexibility and generality of the wrongness rules.

We can bolster the appeal of coarse-grained prohibitions (wrongness norms) within the criminal law with considerations of political morality. The idea that legal prohibitions should be formulated in coarse-grained terms that do not take account of all individual-specific factors is strengthened by a liberal desire to protect individual privacy and autonomy. Criminalising an action is always a grant of power to law enforcement to investigate matters reasonably suspected to be relevant to an offense. If offenses are specified in ways that involve very fine motivational or situational distinctions, this gives further bases for law enforcement to inquire into personal matters during their investigations, which can come at the cost of personal privacy. Thus, there is reason to think criminal law prohibitions should not be defined to include every individual-specific or personal factor that may seem normatively relevant (such as motives, motivational impairments or idiosyncratic difficulties or pressures). Such coarse-grained criminal prohibitions may need to be mitigated perhaps via excuses as Kelly suggests.

This picture would seem to be especially applicable to criminal law rather than morality. It may not convince in morality because one wonders why the moral reasons or norms bearing on wrongness couldn’t be as fine-grained and individual-specific as we like, taking everything personal and situational into account when determining whether an action was all things considered morally wrong. It’s unclear how to rule out the view that the moral reasons or norms bearing on wrongness might be very fine-grained indeed. Unlike for law, it’s not clear that action-guidingness or privacy protection places limits on how complex, nuanced or individual-specific the moral wrongness calculus is, which is what necessitates excuses on Kelly’s picture.

Even as applied only to law, two worries remain. I don’t reject Kelly’s proposal but suggest it is not the full story. First, if excuses arise because the wrongness norms are coarse-grained, this coarse-grainedness would also be expected to sometimes benefit defendants in allowing them to escape criminal liability (compared to what would be the case under a fine-grained set of wrongness norms). Thus, we’d expect to see not just a category of excuses to mitigate the harshness of coarse-grained wrongness rules, but also a category of aggravators to rectify the laxness of these rules. But there is little evidence of such a category.¹⁰¹

Second, this idea of coarse-grained criminal prohibitions being needed to guide action is not itself enough to block collapse. Even if it explains why two standards of assessment are desirable (i.e., one set helps obtain the benefits of simple wrongness rules while another avoids their at times undue harshness), more is needed to block collapse. If simplicity and action-guidingness is the concern, then for any particular consideration one thinks should be an excuse, it is not clear why that factor could not still be built into wrongness – as long as it’s not the case that so many nuanced or detailed considerations are factored into wrongness that the relevant norms or reasons become too complex to effectively guide action. This means the present approach doesn’t do much to differentiate justifications from excuses in particular cases. Consistent with this wrongness-is-coarse-grained view, any particular excuse could be factored into wrongness as a justification – as long as we refrain from adding too many justifications for the wrongness norms to guide conduct.¹⁰²

By contrast, my account below offers more guidance for deciding which category a particular mitigator falls into. I suggest that Kelly’s picture is just one instance of a broader phenomenon. There are other institutional considerations, in addition to those Kelly identifies, that can help differentiate wrongness and justification from culpability and excuse.

Similar points apply to a second way of distinguishing justifications and excuses in law: namely, that the former are ex ante conduct-guiding rules while the latter are ex post adjudication-rules. I have concerns about the sufficiency of this view by itself, but am happy to accept it as another instance of my broader picture. For one, the view (without being folded into a wider account like the below) does not directly explain what makes an excused actor less culpable (a desideratum from Section II), rather than an adjudicator merely having reason to treat them less harshly. This is not a knock-down objection to the view (which I am sympathetic to), but it must at least be supplemented with some explanation of how excuses as adjudicatory rules genuinely apply to the actor (not just directing the adjudicator’s responses) so as to really reduce the agent’s culpability based on features of her or her reasoning. The picture I offer below is one attractive way to do this.

Second, excuses can plausibly provide action-guidance as well as instructing adjudicators.¹⁰³ This seems especially plausible for the rationale-based excuses like duress or provocation (perhaps also some immaturity cases). For duress, if one does the crime at least in substantial part in response to the threat (out of concern for those threatened), I doubt it should be disqualifying that you also were moved at least in part by a consideration of the fact that you won’t be punished due to the excuse. You might think, for example, it’s a relief that if you do the crime to protect your children from the threat, at least the law won’t lock you up and separate you from your kids. This does not seem so unsympathetic as to disqualify you from the excuse. If so, the divide between conduct-guidance of wrongness rules and the adjudicatory nature of the culpability standard engaged by excuses isn’t so clear-cut. Thus, this approach by itself also doesn’t conclusively separate justifications from excuses, as both seemingly can provide both some conduct guidance and adjudicatory instruction.¹⁰⁴ We need more to adequately block collapse.

VI. Blocking collapse via alienation from the legislative project

To block collapse within criminal law contexts, I posit one additional difference between wrongness and culpability beyond the formal difference underlying the Fair and Humane Expectations Account from Section IV. It is a difference concerning the importance of institutional considerations that plausibly applies in the criminal law, but not obviously for morality. I present this difference within the framework of the normative expectations view from Section IV, as this allows us to see how institutional considerations including those canvassed in Section V can have a differential impact on wrongness vs. culpability. This generates an agent-centered account of how excusing conditions reduce the agent’s culpability without defeating the wrongness of their conduct in the way justifications do. Moreover, by applying the normative expectations framework from Section IV to the criminal law, we can give a principled grounding of how the institutional considerations from Section V matter to wrongness and culpability, which together help determine what criminal law responses actors deserve for their behaviour. This in turn shows how institutional considerations can form part of the retributive (desert-focused) component of the criminalisation inquiry, not just applying afterwards to demand simple consequentialist compromises to the ideal moral content of the criminal law.

A. The background picture: legislative vs. individual reasons

On my account from Section IV, the formal difference between wrongness and culpability was that wrongness is a matter of the degree to which the actually applicable reasons as weighed by an ordinary reasonable person disfavour the action, while culpability concerns how much defect the action manifests in one’s valuation of reasons weighed as can fairly and reasonably be expected given one’s sympathetic weaknesses or impairments. For criminal law purposes, I posit a further difference: there are some considerations which properly matter to the legislature in assigning weights to reasons to identify what it’s wrong to do, but which not every individual can fairly be expected to assign weight to reasons in light of. This provides a recipe for distinguishing justifications from excuses.

Why might some considerations properly matter to the legislature but not an individual? The explanation I will explore (not the only possible one) is that the legislature sets rules for general adherence, but not all considerations that matter in this project can fairly be expected to matter fully to individuals not engaged in this task. Numerous examples of such considerations might be offered, some of which we saw in Section V. They plausibly include the need to weigh everyone’s interests equally, to ensure sufficient deterrence, to avoid arbitrary-seeming distinctions, to avoid confusion and provide effective guidance about how to behave (as discussed in Section V), as well as to avoid exceptions or doctrinal nuances that will be gamed or used self-servingly. Such considerations cannot be expected to matter or be motivating to individuals as much as might be legitimate for legislators. After all, most individuals are not in the business of setting rules to govern the conduct of all in an equal and publicly justifiable way. Some of us sometimes might manage to ascend to the fully objective perspective that this general rule-setting task requires, but often we won’t be so enlightened – and I submit that that’s ok. It needn’t make us culpable.

To flesh out this idea, I assume roughly the following set-up applies. In deciding which actions to criminalise, part of the legislature’s task (at least on a legal moralist view) is to take a stand on how weighty the actually existing reasons are that determine what it is wrongful for an individual to do in particular circumstances. On the picture outlined in Section IV, these are the reasons an ordinary reasonable person (as characterised by the above idealising assumptions of cognitive competence, disinterestedness, fortitude, etc) would recognise. If the ordinary reasonable person would attach weights to reasons such that they disfavour a particular action, the legislature would be correct to regard it as a wrong. This does not yet mean it is justly criminalised, however, as criminalisation also requires culpability, and being better policy than the alternatives to criminalisation (etc). But in criminalising, the legislature inevitably takes a view on the weights the objective reasonable person would assign (which it can get right or wrong, of course).

One clarification: These are the not the weights that the legislature insists actual citizens must assign to reasons to avoid conviction; they are merely the weights that citizens must not manifest insufficient regard for in their actions. I take it that the law does not care what one’s reasons are for obeying the law.¹⁰⁵ It is no trouble in the law’s view if we act on proxies for the objectively applicable reasons, or if we abide by the law (or avoid worse wrongdoing) for non-virtuous or self-interested reasons, including to avoid punishment. All I’m suggesting the law demands is that we not act in ways that conclusively show our weighting of reasons to be defective in relation to the actually applicable reasons as weighted by the ordinary reasonable person in our circumstances (and if we do violate the law, culpability should only be attributed based on the wrong committed, which likewise should not be affected by our choosing to avoid worse wrongdoing for non-virtuous reasons). The objective weighting of reasons the legislature assigns for purposes of setting out what conduct is wrongful (and how serious a wrong it is) is not meant to be a requirement on our actual motivations, but a standard of conduct. As long as we don’t overstep the relevant legal line, then for liability purposes (if not for sentencing) the law is largely indifferent to what actually motivated us to abide by that standard or what weights we actually assigned to reasons in order to do so. It is of no moment whether we assigned the objectively correct weights to the actually applicable reasons, or to proxies therefor, or whether our motivations were virtuous or we were deterred by the threat of punishment. If we didn’t do anything that manifests a defective weighting of reasons, the law in a liberal state should have no quarrel with us.

My proposal is that in assigning weights to reasons for purposes of identifying what conduct is wrong (which is one step in the criminalisation determination), the legislature makes an additional assumption about the ordinary reasonable person besides the ones outlined in Section IV:

Legislative resonance: The ordinary reasonable actor cares appropriately about and is not significantly alienated from the legislative project of setting rules for general adherence in the relevant community.

This opens the door to the legislature attaching weight to reasons (and thus finding actions to be wrongful) also based on institutional considerations of workability, action-guidance, preventing actors from exploiting or gaming the rules, limited resources, and the concern to promote important values like autonomy and privacy. If the ordinary reasonable actor is assumed to be on board with the rule-setting project, they too would assign weight to reasons based on such institutional or legislative considerations in particular cases.

For example, if an ordinary reasonable person knows she can dispose of chemical waste safely without a permit, she might at first be inclined to assign weight to reasons in a way that makes this action come out as permissible. But if she then learns that an exception to the general permitting requirement cannot be incorporated because the system for adjudicating whether an exception is merited would be widely taken advantage of by sophisticated parties, this will resonate with her because she (by hypothesis) is on board with the project of setting general rules for all. She will recognise this as an undercutter of the reasons she at first thought counted in favour of disposing of the waste without a permit, namely that she knows she can do it safely. And so she will give that apparent reason in favour of doing the action without a permit less weight (maybe zero), such that the action then comes out as impermissible on balance.

There are many ways one might lack ordinary legislative resonance, and these might correspond to failures to meet some of the other idealising assumptions about the ordinary reasonable person – though it need not. For example, one might lack legislative resonance because one is cognitively impaired. Alternatively, it might go hand in hand with failing to be fully disinterested in how one assigns weights to reasons (i.e., gives preference to the interests of oneself or loved ones). But one can be lacking in legislative resonance even without being noticeably lacking in the other idealising assumptions about the ordinary reasonable actor. One could have the other characteristics of ordinary reasonableness but simply feel alienated from the legislative project because of doubts about the trustworthiness of state institutions generally or a sense of estrangement from the community and the formal ways we are asked to engage with fellow citizens. So being lacking in legislative resonance might go hand in hand with deficiencies in other idealising assumptions about how the ordinary reasonable person attaches weight to reasons – but it need not.

The key insight, then, is that not all considerations the legislature may appropriately take into account in assigning weight to reasons, for purposes of identifying which actions are wrong, are such that individuals can fairly and humanely be expected to be similarly moved by them – and this can be entirely sympathetic, appropriate and indicative of no fault of the actor. Some lack of legislative resonance seems ok. Some alienation from the project of legislating generally applicable rules to govern us all is acceptable and not a clear sign of disrespect or insufficient concern for others. Rather, it simply reflects a natural and normal focus on one’s own perspective and projects rather than the broader perspective of the legislature engaged in general rule-making.

This picture, if adopted, pulls wrongness apart from culpability, which furnishes one basis for distinguishing justifications from excuses. An action is wrong to the extent that the applicable reasons, weighted as the ordinary reasonable person would, decisively disfavours the action. Because ordinary legislative resonance is one idealising assumption we make about the ordinary reasonable person for criminal law purposes, the weights this person will assign to reasons can also be informed by institutional considerations, practical constraints and principles of political morality like privacy and autonomy. But these do not automatically bear on culpability, which is determined by how much one’s action manifests a departure from the weighting of reasons that one can fairly and humanely be expected to assign given the sympathetic ways one falls short of the idealising assumptions of ordinary reasonableness. One such sympathetic departure can be the failure to have ordinary legislative resonance. It is not always fair and humane to expect each individual to fully care about the legislative project of setting general rules to govern us all. As a result, some broad act types will properly be seen as wrongs by the legislature, but not every instance of the wrong will be culpable (or fully culpable) because the act type is seen as wrong only due to considerations associated with the project of setting rules for all that the individual cannot be fairly expected to fully care about.¹⁰⁶

B. A test for distinguishing justifications from excuses

This picture helps us decide, in close cases, whether a given intuitively mitigating factor operates as a justification or excuse. Suppose factor F is genuinely mitigating, but there are proper grounds on which the legislature, given its general rule-setting project, cannot build F into these rules themselves (i.e., cannot take F to impact the actual reasons bearing on what to do as the ordinary reasonable person would weight them). These grounds might be institutional considerations, a concern for workability, other principles of political morality like privacy or autonomy, and so on. However, suppose further that these grounds are not things that the individual in this case can fairly and humanely be expected to (fully) care about when assigning their own weights to reasons in determining how to act. If so, F would continue to have exculpatory force for the actor in that case even if the legislature cannot, for good legislative reasons, officially assign F exculpatory force within the project of setting the generally applicable rules for all. In such a case, we would have grounds for treating F as an excuse that reduces culpability, even while F does not negate the wrongness of the actor’s conduct (assessed within the legislative project of setting generally applicable rules). Thus, we get:

Test for criminal law excuses in close cases: Suppose there is a close case where there aren’t otherwise conclusive grounds for deciding whether a given intuitively mitigating factor, F (which uncontroversially is sympathetic and properly reduces our blaming responses somehow), should be regarded as a justification or excuse. In such a case, if (i) the legislature cannot regard F as having exculpatory force within the objectively applicable weighting of reasons bearing on what to do, and (ii) the explanation for why this is so – what makes the decisive difference – draws mainly on considerations that the legislature should take into account given its task of setting rules for general adherence (like institutional design, disinterestedness, or considerations of political morality like privacy and autonomy), but that the individual cannot fairly be expected to (fully) take into account in assigning weights to reasons, then this strengthens the case for thinking F speaks only to culpability not wrongness – that is, functions like an excuse not a justification.

This is compatible with excuses arising in other ways as well. For example, we might substantively defend, by appeal to intuition or theoretical argument, that a given mitigator is an objectively applicable one that an ordinary reasonable person would recognise in her valuation of reasons. But the present proposal offers another approach that is more neutral on substantive matters. If the explanation of why the legislature can’t recognise a given mitigator as bearing on the objectively applicable reasons is something that has to do with the general rule-setting project, which is fair game for the legislature to consider but the relevant individual can’t be expected to be (fully) moved by, that suggests we’re dealing with an excuse not a justification.

C. Applying the approach: impairment and duress revisited

This account gives a more solid basis for determining that duress belongs on the excuse side of the ledger. In addition to being able to capture the sorts of institutional considerations canvassed in Section V, I will here flesh out the account by exploring additional sorts of institutional considerations that focus on stretching or gaming the rules, increasing voluntary compliance and sending signals to expert observers about the values the criminal law aims to safeguard.

Before getting to duress, let me illustrate with impairment-based excuses. Consider a case of genuine agency in which the actor does something that seems bad (say, punches and kicks a stranger on the street), but through no fault of her own is experiencing a delusional break with reality that suffices for the insanity defense. This plausibly is mitigating. The legislature now asks whether for purposes of setting generally applicable rules, it should regard the actual reasons applicable in the precise circumstances of this case as decisively disfavouring this particular assault. The legislature would have strong grounds for continuing to regard this conduct as decisively disfavoured by the applicable reasons. In particular, it would not want those with serious cognitive (or emotional) impairments going around trying to determine for themselves whether they are impaired, as they are likely to be unreliable in this task. It’s predictable that applying such a rule would engender more miscalculations by impaired individuals, such that they more often inappropriately lash out in violent ways thinking it permitted than a contrary rule which flatly prohibits physical attacks even when one is suffering from a cognitive (or emotional) impairment. So the impairment-based mitigating factor here does not speak to wrongness as properly understood by the legislature. Nonetheless, these considerations are not ones that it is fair and humane to expect the individual actor to be moved by, not least because in impairment cases it’s unlikely they can take such complex legislative considerations into account. Hence, this mitigating factor would go only to culpability in an excusatory manner.

Now turn to the most challenging case: duress (when necessity and defense of self or others do not apply). Why shouldn’t duress justify? Recall Janice from Section IV.B.2. A mobster threatened to beat up her son unless she steals expensive medical equipment from the hospital she works at for the gang. As before, assume that when the interests of all the affected innocent parties are weighed disinterestedly, the balance of reasons decisively disfavours acceding to the threat and doing the crime. However, given Janice’s relationship with her child, it’s unlikely she will manage to be fully disinterested, and earlier we saw why we might be willing to condone this departure from the level of disinterestedness that characterises ordinary reasonable persons. We may not wish to discourage or burden the emotional dispositions involved in such relationships of love and care. Still, this line of thinking did not firmly settle whether duress is an excuse, since we might continue to debate whether an ordinary reasonable actor in Janice’s particular position would take the fact that the threatened party is the defendant’s child to be an objective basis for assigning their interests more weight than the interests of those harmed by the theft of medical equipment. Debate remains possible about whether privileging the interests of your child is consistent with the assumption of disinterestedness that characterises the ordinary reasonable person.

My proposal helps break the stalemate. There is something about the project of setting generally applicable rules for all that precludes the legislature from treating the threat against Janice’s child as justificatory. Within this project, it is key for the legislature to avoid the appearance of arbitrariness and the risks this entails for its perceived legitimacy (not least because this likely would reduce the community’s degree of voluntary compliance with criminal law).¹⁰⁷ On the one hand, it would be arbitrary for the legislature to recognise that in duress scenarios, threats to children count, but not to parents or siblings. After all, one might feel exceptionally strong attachments also for non-family-members or those one is not in a caring relationship for. However, the legislature cannot simply accept that threats against anyone the defendant claims to feel strongly about would license attaching more weight to their interests and thereby permit (justify) crimes when they are threatened. Such a wide and malleable exception to otherwise applicable criminal prohibitions would be seriously open to being gamed or stretched by actors who invoke the exception in self-interested fashion to enable to them to get the benefits of a crime without incurring the full condemnatory force of the criminal law. A wide and malleable duress carveout that makes Janice’s conduct come out not being objectively wrongful would invite more rationalisation of crime. Call this the institutional abuse worry. As a result, the legislature must either find some non-arbitrary way to narrow the class of threatened persons who objectively justify particular crimes or else decline to take duress to alter the objective balance of reasons against the crime and instead treat duress as excusatory.

Lacking a non-arbitrary alternative, the legislature has a plausible basis for not recognising mere threats to loved ones as an objectively applicable reason rendering Janice’s theft permissible. This line of reasoning, centreing on avoiding arbitrariness and preventing abuse of candidate exceptions, derives from the project of setting generally applicable rules for all. At the same time, these considerations, which the legislature is aptly moved by, are not ones that we can fairly and humanely expect Janice to be (fully) moved by.¹⁰⁸ I submit that some alienation from the general rule-setting project is sympathetic and at least minimally tolerable. It would not be fair and humane to expect Janice to take the above legislative reasoning into account when she assigns weights to reasons in this case. Her legislative resonance and disinterestedness will be compromised, and that is ok. Accordingly, her partiality to her own child does not signal a sufficiently grave form of disrespect for others that we should take it to manifest insufficient regard when she accedes to the mobster’s threat in order to protect her child.

Thus, the recipe for identifying excuses I sketched above is instantiated. The legislature properly should take into account the rule-setting considerations above for why the mitigator here – mere threats to loved ones – should not be deemed an objective reason bolstering the case for the crime (i.e., as justificatory). But these rule-setting considerations are not ones it would be fair and humane to expect the individual to assign weight to reasons in light of in this particular case. So our test is satisfied: there’s a stronger basis for seeing this mitigator as excusatory.¹⁰⁹

To this we might object: if we want to avoid the prospect of actors abusing the exception, why not treat duress as a justification but insist the actor must have good motives (not merely be trying to avoid liability) in order to get the benefit of the justification? Maybe the fully specified justification should be doing the crime in response to the threat, not to avoid liability, but because the actor is predominantly moved by a concern for the interests of those threatened.

However, the present institutional abuse worry is not just that actors will use the duress carve-out as a way to avoid liability. They will always do this. Whatever rules are set, we can assume actors generally will have some motivation to try to stay on the right side of the line. Instead, the institutional abuse worry is specifically about inducing actors to stretch the contours of the defense (specifically the concept of threats to ‘special relationships’) in order to rationalise offense conduct they wish to perform and frame it to themselves as permissible. A good motive requirement for a putative duress justification will help little with this. Even if we require that one is moved by the justifying considerations in order to get the benefit of the justification, actors who want to do the crime will still end up being tempted to aggressively interpret what is a sufficiently serious threat to a ‘special relationship’ in order to make their preferred criminal conduct seem more morally palatable to themselves. Thus, the worry about treating duress as a justification is that it will induce those who want not to break the law a way to stretch concepts in order to rationalise their desired bad behaviour.

This institutional abuse worry does not arise as strongly if duress is an excuse. Why? The difference concerns not punishment but voluntary compliance. Punishment is withheld regardless of whether duress is a justification or excuse. Instead, the point is that seeing it as an excuse impacts voluntary compliance. For actors who are assumed to have sufficient knowledge of the law, if duress is an excuse, then they’ll know the otherwise wrongful action (say, theft) remains wrongful – i.e., not to be done in the eyes of the law. And this would affect the actor’s voluntary compliance. After all, if duress is an excuse, it means that at least one internal hurdle remains for legally informed actors who generally wish not to violate the law (as well as avoid punishment). I assume it’s realistic to think the criminal law is perceived by many as somewhat legitimate, such that many of us have some motivation to avoid conduct that the law views as wrongful.¹¹⁰ That is, there is a meaningful phenomenon of legitimacy-based voluntary compliance with criminal law. We wish to see ourselves as upstanding, law-abiding citizens. If duress is merely an excuse, the normative pressure against the crime from the law remains in place because the theft would remain wrongful despite the excuse of duress. Thus, for actors concerned with voluntary compliance, there would be no way to reduce the psychological unpleasantness (cognitive dissonance) of committing a crime by stretching the conditions of the duress defense to make the theft one wants to perform seem permissible. The law would continue telling them that the theft is wrong, the duress excuse notwithstanding. But if duress were a justification, then legally informed actors who wish to comply with the law would have an available psychological route to recasting an otherwise criminal act as permissible: They could stretch the concept of a ‘sufficient threat to those one is in a special relationship with’ to rationalise the theft and convince themselves it is permissible (even if it in fact the conditions of duress are not met).

Thus, if duress is an excuse, one internal psychological hurdle to committing the theft remains in place for those who know the law and are concerned to voluntarily comply: the law is telling you the theft remains wrong. Were duress justificatory, an effective avenue would exist for rationalising the theft to make it seem consistent with one’s self-image as a law-abiding citizen. But that ability to make theft seem permissible and preserve one’s self-image as law-abiding by stretching the concept of a sufficient threat to loved ones evaporates, for legally informed actors, if duress is an excuse.

One might object that this makes the proposed difference between excuses and justifications wafer-thin.¹¹¹ It may seem to only affect the behaviour of a small group of individuals: those who would rationalise their bad behaviour but who are still sufficiently concerned to avoid legal condemnation (not just punishment) for this to keep them from stretching the contours of the law to rationalise their dubious behaviour. Two points bear noting in response. First, we don’t know ex ante who falls within this group or how large it is. If a mitigator is deemed not a justification but an excuse, such that condemnation still attaches to offenses done with this mitigator present, this imposes greater legal pressure on everyone not to perform these offenses. Who this will make a behavioural difference to may not be easy to predict (we may not know ourselves in advance). Given this uncertainty, the legislature may wish to use this lever anyway in case it makes a difference in some cases. Second, the choice to condemn offenses committed with an excuse as wrongful – even if punishment is withheld – matters not just because of the impact it has on the behaviour of would-be criminals; it matters also because of the message it sends to observers of the law: practitioners, experts, reformers, commentators and others who help shape elite opinion about the law. The choice to send a condemnatory message for an excused offense (rather than expressing no such condemnation if the offense were justified) matters not only because of the first-order effects it has on the levels of voluntary compliance with law, but also because of its second-order effects. These include sending signals about the values and rights that the criminal law protects and how vigorously it will protect them – signals which may be aimed less at primary legal subjects (i.e., would-be offenders) and more at elite observers. This in turn can have an effect on the perceived (or actual) legitimacy of the criminal law. Continuing to condemn an offense committed, say, under duress by deeming duress an excuse says something about the objectively applicable reasons the criminal law takes to apply, and thus can show what rights and values the law recognises and is committed to safeguarding – even while also acknowledging the sympathetic plight of the accused. This in turn can help preserve expert observers’ and commentators’ view of the criminal law as just but also humane. In this way, the choice to excuse rather than justify, on the present account, can matter to the perceived (or indeed actual) fairness of the criminal law, even if the behavioural effect on primary legal subjects remained relatively small.

Accordingly, there are benefits to construing duress as an excuse not a justification. Besides capturing the considerations mentioned in Section V, this section has focused on distinctive institutional benefits having to do with making it harder to stretch or game the law (thus boosting voluntary compliance) and communicating the law’s commitment to protecting the interests or rights of actual and potential victims. These are types of considerations that the legislature may properly take into account when taking a stand on the objectively applicable weights to assign to reasons as part of the general rule-setting project. But individual actors in a duress situation cannot be fairly and humanely expected to be moved by such considerations (e.g., about the risk of gaming the law or the need to communicate various messages to different audiences through legislative choices) when assigning weights to reasons themselves. Accordingly, duress can contribute to reducing individuals’ culpability on the picture I have advanced, even while leaving wrongness, on a proper legislative understanding, unaffected.

Note that I am not the first to suggest that we delineate justifications from excuses by appeal to policy considerations. Berman defends that approach, for example.¹¹² What I have endeavoured to add, however, is an account of how this sort of policy-led thinking still can have a place within the domain of criminal desert, i.e., the retributive component of the criminalisation inquiry. Specifically, I have been trying to offer an explanation of how excuses – despite being distinguishable from justification through institutional or rule-making considerations – genuinely lower an agent’s culpability for a bit of wrongdoing in a way that is distinct from how justifications exculpate by negating wrongness. While I agree with Berman that policy considerations give some purchase on the justification-excuse distinction, what I have tried to contribute is a precise account of how the relevant institutional or rule-making considerations bear differentially upon wrongness versus culpability to set up an excuse scenario. In the duress example, I showed how institutional considerations can, for purposes of the objectively applicable reasons, disable or defeat an intuitively mitigating factor F so as to maintain the wrongfulness of the putatively criminal action at issue. But because these institutional considerations can’t be fairly expected to have the same force for the individual actor in question, they cannot be expected to disable or defeat F (either at all or to the same extent) in the actor’s assessment of reasons. Hence, the case against doing the prohibited action is reduced for this actor and doing it is less culpable. Here, then, we can recognise F as an excuse. In this way, we get a picture of how institutional or policy considerations can still affect the ideal retributive content of the criminal law (i.e., by contributing to wrongness but less so to culpability), which should be settled before practical compromises are made to this ideal content. I hope to have shown that taking up Berman’s suggestion of using policy considerations to decide which exculpatory factors are justifications vs. excuses does not make us simple pragmatists about the distinction in a way that violates the second desideratum from Section II.B, which required an agent-focused account of excuses. Instead, I have shown how appealing to institutional considerations is fully compatible with an agent-focused account of excuses on which excuses genuinely make one less culpable without reducing the wrongness of what one did.

D. Have self-defense and necessity now become excuses? The limits of my account

Doesn’t what I called the institutional abuse worry apply not just to duress, but also to the contrasting cases of self-defense and necessity? Wouldn’t recognising them as justifications similarly provide an avenue for rationalising misconduct by stretching the contours of these defenses to preserve one’s self-image as a law-abiding citizen?¹¹³ The answer is yes, but I take it that core self-defense and necessity cases are more obvious instances of justification. This, at least, seems the prevailing view. The institutional abuse worry does not seem weighty enough to override the plausible, independent grounds for seeing these defenses as impacting the objectively applicable reasons. My proposed test applies where institutional or rule-setting considerations are more likely to be decisive. Clearcut self-defense and necessity cases don’t fall within the grey-zone for which my proposed test is designed.

For core self-defense cases, i.e., those where no mistake is involved, this stems from the familiar waiver picture: Where an attack has commenced, this waives the attacker’s right against being harmed in necessary and proportionate ways.¹¹⁴ A commenced attack (if not a mere threat) is a sufficiently clear and tangible occurrence that it leaves little room for debate about whether it alters the objectively applicable reasons.¹¹⁵ If we accept that the attack waives the attacker’s normal right against harm, there is no wrong in using necessary and proportionate defensive force against the attacker. So on the waiver picture, the institutional abuse worry seems unlikely to displace the sense that self-defense engages the objectively applicable reasons.

A similar point holds for necessity, at least in clearcut cases. Suppose the crime is a substantially lesser evil that is necessary to averting an uncontroversially greater one – an evil so much greater that there is little room left for reasonable debate about whether doing the crime to prevent it is objectively worth it. For example, perhaps a firebreak would save the city or killing one is necessary to save a large number of lives (perhaps 100).¹¹⁶ If we focus on such clearcut necessity (set aside borderline cases for a moment), although the institutional abuse worry persists, it seems unlikely to be enough to dislodge the sense that doing the offense under such circumstances is favoured by the objective balance of reasons.

Matters are different for duress and more borderline necessity cases. Regarding duress, whether a mere threat (not an attack) alters the objectively applicable reasons, such that duress justifies, will depend on difficult theoretical issues about whether to objectively recognise agent-relative reasons or prerogatives to give more weight to the interests of either oneself or one’s nearest and dearest than the interests of strangers. One can imagine a plausible case going either way. Since it is a closer call on the merits, the importance of not creating unduly easy routes for citizens to rationalise misconduct, as well as the importance of sending various signals to informed observers, is more likely to end up being determinative for duress.

Likewise for closer cases of necessity, like R v Dudley & Stephens (1884) 14 QBD 273, where killing one is necessary to save a small number of lives. It is more debatable whether preventing two or perhaps three innocent deaths is sufficient to render the evil of one intentional murder on balance favoured by the objectively applicable reasons. Accordingly, the institutional abuse worry is more likely to be decisive here.¹¹⁷ Thus in borderline necessity cases like Dudley & Stephens, my proposed test for excuses becomes relevant. Here the legislature may well find the institutional abuse worry (about stretching the defense) to be decisive grounds for why it cannot grant such defendants a justification. However, because there is still a compelling basis for having sympathy for defendants in cases like Dudley & Stephens, the situation seems tailor-made for an excuse (at least a partial one) on my story. In a borderline necessity case, the institutional abuse worry provides one good legislative ground (there may be others) for needing to keep the official condemnation of the defendant’s conduct in place, but we can have great sympathy for the defendants although the institutional considerations are not ones we can fairly and humanely expect the defendants to be moved by in their own assessment of reasons. Hence, we are within excuse territory.

It’s possible a similar story could be told for reasonable mistakes about the conditions of self-defense or clearcut necessity being met – though I can’t develop the argument here.¹¹⁸ The idea would be that these are mitigators that present a closer call as to whether they are justifications or excuses, and it’s conceivable that institutional design considerations might prove decisive against taking them to be justifications that remove the official condemnation of the offense conduct.¹¹⁹ If so, these cases likewise would call for an excuse on my picture.

By contrast, diplomatic immunity does not come out as an excuse on my picture.¹²⁰ True, institutional considerations are what support the recognition of this defense. But being a diplomat is not an intuitive mitigator of blame. It is not a consideration that on any plausible moral theory would weaken the case against a crime – or even furnish a sympathy-based relaxation of the otherwise applicable wrongness standard. My test does not apply to it as it is not an intuitive mitigator of blame on any plausible view. Instead, it is pure policy-based carveout to liability.

E. Absorbing other institutional factors and what we’d lose without excuses

We have seen how the present picture helps decide in close cases when an intuitive mitigating factor functions like a justification or an excuse. This picture, focusing on legislative considerations related to the rule-setting project which individuals may be somewhat alienated from, absorbs Kelly’s insight about the generality of rules noted in Section V. The benefits of coarse-grained primary rules – like clarity, guidance, moral education, privacy protection, etc. – properly matter to legislatures when setting rules for all. But not all actors can fairly be expected to assign weight to reasons in light of these rule-setting considerations. Likewise for the issue of conduct-guiding vs merely adjudicatory rules, also examined in Section V. Sometimes there are practical, institutional or values-based benefits to treating a given mitigator mainly as adjudicatory not conduct-guiding. Again, while these impact the legislature’s job, we don’t expect individuals to be fully moved by them. Thus, both generality and the benefits of mainly adjudicatory rules can instantiate my recipe for identifying excuses. In this way, the recipe I defend encompasses a broad range of institutional factors, including not just the institutional abuse worry about stretching the law which was the focus of Section VI.C + D, but also those mentioned in Section V – and potentially many others besides. The proposal for distinguishing excuses from justification thus has considerable scope and explanatory power.¹²¹

Finally, the picture also shows what we’d lose without a justification-excuse distinction. Without it, our picture of the criminal law would lose the ability to give full (and equal) recognition to the perspective of the legislative task of setting rules for all and the importantly different individual perspective, which can involve some alienation from the legislative project. Ideally, our account should capture both.

The discussion of duress shows a second set of benefits that would be lost if excuses collapsed into justifications. We would not as effectively be able to make use of legally informed actors’ desire for voluntary compliance, as well as sending messages to observers of the law about the rights and values the criminal law remains committed to. By setting up an excuse scenario, the law can continue to tell legally informed actors that a given act (like theft) remains wrong, and so exert pressure on them through their desire to remain upstanding citizens even though the law still withholds punishment. Doing so could also have beneficial second-order effects through the condemnatory messages this sends to expert observers even while displaying compassion for defendants’ sympathetic circumstances. By contrast, if all we had were justifications, we could not continue to send the same messages of wrongness to legally informed actors and observers, and all we’d be left with is the ability to tell them that the crime will not be punished because it was at bottom permissible. Not making use of the ability of excuses to nudge legally informed actors concerned with voluntary compliance in desired directions, as well as signalling the law’s affirmation of victims’ rights and interests that were set back, would be a further loss.

VII. Conclusion

In this paper, I’ve attempted to block the collapse worry at least for criminal law. I defended the Fair and Humane Expectations Account but accepted that it must be supplemented in some way to block collapse. Within the criminal law context, I explored how rulemaking considerations may properly influence the legislature in assigning weights to reasons, but which individuals may not always be expected to be fully moved by. This was because some degree of alienation from the rulemaking project – some lack of legislative resonance – seems tolerable in regular people. The resulting picture can be used to supplement theories in the normative expectations family (e.g., cashing out when an individual had a ‘fair opportunity to avoid wrongdoing’) and helps such views avoid the collapse problem in legal contexts. What’s more, I argued that appealing to institutional or rulemaking considerations to draw the justification-excuse distinction (as proposed by Berman¹²²) is also sensible on criminal culpability grounds and so is part of – not external to – the project of fixing the ideal retributive content of the criminal law. After all, I showed why even if excuses can be identified by appeal to institutional considerations, they still do genuinely reduce culpability for a wrongful action. As one way to identify excuses in the criminal law, I suggested that an excuse, but not a justification, can be seen as a mitigating factor or circumstance, F, such that (i) rulemaking considerations prevent the legislature from taking F to weaken the objectively applicable case against the prohibited action, A, and so push the legislature continue to see A as fully wrongful, but (ii) it’s not fair and humane to expect the individual to whom F applies to likewise regard these rulemaking considerations as having this effect of strengthening the case against A. Thus, the individual actor to whom F applies may give less weight to the reasons against A than these reasons objectively possess, and in virtue of which A stands as wrong, on a proper legislative view. Hence, the actor will be less culpable for doing A with F present than is suggested by A’s degree of wrongness.

The resulting view satisfies the main desiderata outlined in Section II. First, it distinguishes excuses from other notions like justification (which negates wrongness) in ways excuses do not, and exemption (which renders one inapt for normative evaluation in general), as well as other nearby notions like mercy.¹²³ Second, as I’ve been at pains to show, the view is properly agent-focused in showing what really makes excused agents less culpable in the law’s view than if they lacked an excuse. Third, as argued in Section IV, the overall picture of wrongdoing and culpability underlying my view furnishes a unified account of incapacity and rationale-based excuses in an attractive way. Lastly, the view easily accommodates partial excuses and does not necessarily reduce excuses merely to incapacity (e.g., in seeing duress as solely a matter of emotion overwhelming reason).

My picture also has practical upshots. As suggested in Section VI.D, it provides the basis for recognising an excuse in close-call cases of necessity even in murder prosecutions, as in Dudley & Stephens. Moreover, the picture suggests that we can get more out of the justification-excuse distinction than we currently do. At present, outside verdicts of not guilty by reason of insanity, we do not usually specify whether an acquittal is based on a justification or an excuse. This is a missed opportunity for enhanced guidance and reaffirmation of the rights of victims. At least when the court is sure exactly which defense was accepted (which may not be every case), it would be useful to say in the judgment why the defendant is not guilty: whether her conduct was not ultimately found to be wrong because of a justification or whether, despite her wrongdoing, she had an excuse. We may not always know which defense the jury accepted, as when the defendant raises both justifications and excuses. But when it’s clearly an excuse that succeeds, there are benefits to saying so. If nothing else, it would more clearly recognise the proper legislative reasons why the defendant’s conduct is still deemed wrongful (thereby providing better guidance and reaffirming the rights of victims) while explaining that it was only insufficient culpability that required the acquittal. If it’s straightforward to get more benefit from the excuse-justification distinction in this way, we should.

On the other hand, if my attempt to differentiate justifications from excuses fails and no other sound way to do so is found (which I’ve suggested isn’t so likely), then we may have reason to back away from the justification-excuse distinction in law. If we can’t adequately solve the collapse problem for criminal law in a sufficiently substantively neutral way, then perhaps we should simplify our conceptual scheme and adopt a more parsimonious picture of the criminal law. I’ve sought to preserve the distinction. But if it can’t be saved, the inevitable next question is whether it shouldn’t be scrapped.

Acknowledgements

I am grateful to many people for their help on this paper. Thanks especially to John Hyman for very helpful conversations about earlier drafts, as well as for identifying the puzzle the paper confronts. Many thanks to Craig Agule, Steve Bero, Andrew Cornford, Mark Dsouza, Kajsa Dinesson, Antony Duff, JP Fassnidge, Daniel Fryer, Lindsay Farmer, Chloe Kennedy, Matt King, Massimo Renzo, Andreas Vassiliou, Daniel Wodak, and audiences at University of Bergen, University of Edinburgh, the Analytic Legal Philosophy Conference 2023 and University of Surrey for their excellent criticisms and comments on prior drafts. Thanks also to two anonymous reviewers for Jurisprudence for their terrific comments. For the problems that remain in the paper, I have no excuse.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 This hypothetical is loosely based on R v Hudson and Taylor [1971] 2 QB 202.

2 Thus described, no necessity (lesser evils) defense is available either.

3 David Owens, ‘Excuse, Capacity and Convention’ forthcoming in Max Kiener (ed), Routledge Handbook of Responsibility (Routledge 2023) 299 (‘excuses … reduce or eliminate culpability for wrongdoing … without casting doubt on the wrongfulness of our conduct’); Andrew Simester, Fundamentals of Criminal Law (OUP 2021) 17–33 (explaining justification-excuse distinction; culpable wrongs are unjustified and unexcused pro tanto wrongs).

4 I’m extremely grateful to John Hyman for raising this worry in a 2022 talk and for subsequent conversations.

5 John Gardner, Offences and Defences (OUP 2007) 257–58, 266. (For more discussion, see infra note 70.) See also Erin Kelly, ‘What is an Excuse?’ in J Coates and N Tognazzini (eds), Blame: Its Nature and Norms (OUP 2012) 244–62.

6 See Brink, infra 68.

7 Simester, supra note 3 at 17, 237–38; Sarch, infra note 23; see also text at notes 20–22.

8 Owens, supra note 3 at 301.

9 This view seems prominent in Scanlon’s earlier work. T.M. Scanlon, What We Owe to Each Other (Harvard University Press 1998) 279–80, 291–92, 400–01. But his later work complicates this. T.M. Scanlon, Moral Dimensions: Permissibility, Meaning, Blame (Harvard University Press 2008) 124–25, 153. See also R.J. Wallace, Responsibility and Moral Sentiments (Harvard University Press 1994) 143–47 (discussing the rationalist view). Bruno argues that any apparently full excuse actually is a justification affecting permissibility (or else an exemption). Daniele Bruno, ‘Being Fully Excused for Wrongdoing’ (2023) 104 Pacific Philosophical Quarterly 324. He suggests partial excuses might remain distinct from justifications, id. at 19, but for all he says it’s unclear why partial excuses couldn’t be recast as partial justifications. Thus, his view reads as a form of rationalism.

10 Supra note 3.

11 Very agent-centered views on which actions are wrong to the extent they evince ill-will (disrespect) make wrongness difficult to distinguish from culpability. Cf. William Frankena, ‘The Ethics of Respect for Persons’ (1986) 14 Philosophical Topics 149–67, 151 (defending a sophisticated version of the view that ‘actions [are] morally right, if and only if, and because they embody respect for persons as such’). Culpability attaches when the act manifests ill-will or insufficient concern. Thus, culpability comes very close to wrongness on such agent-centered views.

12 More precisely, the relevant form of substantive neutrality I’m aiming at is neutrality as to first-order interpersonal morality, if not more abstract matters of political morality or institutional design, which I admittedly appeal to in trying to block collapse for criminal law purposes in Sections V-VI. (Thanks to Steve Bero for pressing me on this.)

13 J.C. Smith, Justification and Excuse in the Criminal Law (The Hamlyn Lectures) (Stevens & Sons 1989) 12–13 (illustrating how a court’s framing defensive pleas as justification, which suggests approval or toleration, rather than excuse, which doesn’t carry such connotations, can impact what outcome the court reaches).

14 Simester, supra note 3 at 39; Leo Katz, Bad Acts and Guilty Minds (University of Chicago Press 1987) 65; but see Mitch Berman, ‘Justification and Excuse, Law and Morality’ (2003) 53 Duke Law Journal 1, 62–64 (arguing it’s not a conceptual truth that permissible third-party intervention tracks justification-excuse distinction, though it may, depending on the particular jurisdiction’s policy judgments); see also infra III.A.2 for critical discussion of the converse idea that our view about third-party intervention might settle the excuse-justification distinction.

15 See infra note 16.

16 Doug Husak, Ignorance of Law (OUP 2016) 34 (endorsing ‘a presumption that the criminal law should … be based on conform to, or mirror critical morality’); R.A. Duff, ‘Towards a Modest Legal Moralism’ (2014) 8 Criminal Law & Philosophy 217, 229–30; Simester, supra note 3 at 17–33.

17 Duff, supra note 16 (distinguishing negative and positive legal moralism); Mitch Berman, ‘Proportionality, Constraint, and Culpability’ (2021) 15 Criminal Law & Philosophy 373, 375 & 378 (describing this sort of culpability-constrained pluralism as the dominant theory of criminalisation).

18 James Edwards and Andrew Simester, ‘Crime, Blameworthiness, and Outcomes’ (2019) 39 OJLS 50, 55 (discussing views of what more beyond being disfavoured by the reasons is required for moral wrongness).

19 Id. at 55 (noting that on all the main views of moral wrongness understood in terms of reasons, ‘what makes an action wrong is some property of the guiding reasons that bear on that action’); Victor Tadros, The Ends of Harm (OUP 2011) 217–18 (adopting similar account of wrongness).

20 Simester, supra note 7 at 17.

21 Id. at 238. See generally id. at 237–38.

22 Edwards and Simester, supra note 18 at 55.

23 Alex Sarch, Criminally Ignorant (OUP 2019) ch.2; Alex Sarch, ‘Reply to Commentators’ (2021) 12 Jurisprudence 291, 302–07.

24 This understanding of justifications and excuses is widespread but not universal. See Dsouza, infra note 37 at 3–9 (noting the widespread acceptance of this view, dubbed the ‘wrongness hypothesis,’ before raising doubts about it).

25 See Simester, supra note 3 at 17–33.

26 Id. at 416 (excuses ‘do not constitute reasons to φ. Justificatory reasons do’); cf. discussion of self-defense in Sec. IV.

27 Peter Westen, ‘An Attitudinal Theory of Excuse’ (2006) 25 Law & Philosophy 289, 290 (‘unlike … justification, excuses obtain even when a defendant has done something that society regards as undesirable or regrettable under the circumstances’); Simester, supra note 3 at 19 (explaining justification-excuse distinction).

28 See e.g. Antony Duff, Answering for Crime (Hart Publishing 2007) 285–86.

29 Peter Graham, ‘A Sketch of a Theory of Blameworthiness’ (2014) 88 Philosophy & Phenomenological Affairs 388, 396–99.

30 Simester, supra note 3 at 17 (‘[w]e cannot blame a person for doing the right thing’). One may possess ill will when acting legally permissibly but this not manifested in a way that is ‘visible’ to the law without violating a legal prohibition.

31 Id. at 18 (concerns about the immorality of the law don’t arise within the law but are ‘a challenge for the principle of legitimate enactment’).

32 See e.g. Stephen Darwall, Second Person Standpoint (Harvard University Press 2006) 27.

33 Throughout this paper, I treat ‘taking F into account,’ ‘reasoning from F,’ ‘giving F weight in one’s practical reasoning’ and ‘being motivated by F’ as roughly equivalent – or at least tightly connected. Being able to do all these things is part and parcel of F’s being motivationally available to the actor, though I don’t attempt to get precise about exactly which one matters here.

34 Larry Alexander and Kim Ferzan, Crime and Culpability (Cambridge University Press 2009) ch.3; cf. Husak, supra note 16 at 151–55 (defending a similar view about which reasons are available to figure in practical reasoning – not awareness of risks but awareness of wrongness).

35 For such views (involving duties to exert control over one’s beliefs and attention), see Findlay Stark, Culpable Carelessness (Cambridge University Press 2016) 243–52; Steve Garvey, ‘What’s Wrong With Involuntary Manslaughter’ (2006) 85 Texas Law Review 333.

36 See Tom Dougherty, ‘Why Does Duress Undermine Consent’ (2021) 55 Nous 317, 320.

37 See Simester, supra note 3 at 416 (‘Excuses supply rules of adjudication, not rules of guidance for conduct.’); see also Mark Dsouza, Rationale-Based Defences in Criminal Law (2017) (defending a particularly sophisticated version of this picture). See also infra Section V.

38 I’m grateful to an anonymous reviewer for pointing out that the argument of this paragraph focuses on individual blamers, and legal excuses may still depend somewhat on an institutional blamer’s discretion, e.g. about where to draw the contours of a given excuse within the jurisdiction. Nonetheless, such an institutional account (even if allows excuses to involve some discretion by policymakers) still faces the challenge of explaining why the relevant excusing condition makes the agent less culpable. It is this challenge for an institutional account that Section VI aims to help answer.

39 See infra note 89.

40 Cf. Duff, supra note 28 at 285–86; Simester, supra note 3 at 15–16, 422–23 (distinguishing irresponsibility defenses like insanity and infancy from rationale-based excuses).

41 See infra note 85.

42 Tadros, supra note 18 at 219; see generally id. at 217–20.

43 Because it’s unlikely to be recognised in criminal law contexts, I set aside views that make wrongness more subjective, or relativised to the agent’s epistemic situation, than culpability.

44 Gardner, supra note 5 at 258 (claiming when I mistakenly believe I’m being attacked when I’m not, ‘I may have ample reason to believe that I have that reason to act, but this can only furnish me with an excuse, not a justification, for so acting’); id. at 260 (‘action on the strength of reasonable beliefs’ is not ‘in the literal sense’ justified but ‘excused’).

45 This view makes negligent conduct, done in unreasonable unawareness of its risks, both wrong and culpable.

46 This view, like the next one, makes negligent conduct wrong but non-culpable (excused).

47 Andreas Vassiliou argues against Gardner’s fact-relative view of reasons and in favour of an evidence-relative view thereof. Together with my assumption of a reasons-based account of wrongness (supra notes 18–19), this would support an evidence-relative view of wrongness. Andreas Vassiliou, ‘Excuses: A “Nuclear” Reply to John Gardner’ (in draft); see also Elinor Mason, Ways to Be Blameworthy (OUP 2019) 20–37 (defending a notion of subjective obligation that plausibly involves epistemic availability, as opposed to a fact-relative objective notion).

48 Simester suggests belief-relativity is apt for the elements of an offense of physical force, but evidence-relativity applies for justifications (they require reasonable belief), since doing a pro tanto wrong like hitting or killing puts one on notice that great care is needed. Supra note 3 at 488, 491.

49 But see infra note 94.

50 This a natural reading of Husak’s view. Supra note 34 at 152–55 (discussing Carlos who doesn’t know killing is wrong).

51 For excellent discussion, see Daniel Greco, ‘Justifications and Excuses in Epistemology’ (2021) 55 Nous 517, 527.

52 Cf. Larry Alexander, ‘Self-Defense’ in A Marmor (ed), Routledge Companion to Philosophy of Law (Routledge 2012) 230 (‘Whenever, on Third Party’s view of the facts, Third Party can nonculpably defend Victim against Attacker, Victim, if he has the same view of the facts, can nonculpably defend himself’).

53 See Gardner, supra note 44.

54 Frank Jackson, ‘Decision-Theoretic Consequentialism and the Nearest and Dearest Objection’ (1991) 101 Ethics 461.

55 Note the criminal law does not consistently take wrongness to be fact-relative. For example, the English law of self-defense – a paradigmatic justification – permits ‘such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another.’ Beckford v The Queen [1988] AC 130, 145; accord Criminal Justice and Immigration Act 2008 s.76(4).

56 An extreme version of this view would say apparently excused actions are not action at all (i.e. exempt).

57 Christopher Bennett, ‘Excuses, Justifications and the Normativity of Expressive Behaviour’ (2012) 32 OJLS 563–81. He observes that on the typical model of excuses, ‘[t]he defendant’s will is said to have been “overborne” by the nature of the circumstances [and] although she acted wrongly, [an excuse like] duress represents a necessary ‘concession to human frailty’ to mark the moral difference that her situation and its attendant emotions makes.’ Id. at 564. See also Paul Robinson, ‘Criminal Law Defenses: A Systematic Analysis’ (1982) 82 Columbia Law Review 199, 221–22 (offering a similar picture of excuses).

58 Gardner, supra note 5 at 122 (on the ‘Humean’ view, ‘we should grant an excuse to somebody in respect of what he did if and only if what he did was no manifestation of his character’).

59 Kelly, supra note 5 at 247 (suggesting Strawson and Wallace held that ‘excuses point to a missing link between the act and the agent’s intentions and attitudes’).

60 See id. at 248; John Hyman, Action, Knowledge and Will (OUP 2015) 81–84; Owens supra 3; Gardner, supra note 5 at 122–23.

61 See Hyman, supra note 60 at 82 (‘A person who gives way to a threat may do so coolly and without any loss of self-control, after assessing the risks … if he refused, and the courts have not rejected a plea of duress because the act was done calmly or preceded by deliberation in this way’).

62 Id. at 81

63 Id. at 82.

64 Kelly, supra note 5 at 258; id. at 248 (discussing cases ‘where “[t]he act is clearly ascribed to the agent, and it is not morally justified or permissible,” but “[a]n excuse establishes that … she should not be blamed or … not fully”’).

65 See Hyman, supra note 60 at 81–84. A similar point is recognised in Mitch Berman and Ian Farrell, ‘Provocation as Partial Justification and Partial Excuse’ (2011) 52 William & Mary Law Review 1027, 1056, though they make the point as to provocation and take it to show reduced wrongfulness not reduced culpability.

66 See Hyman, supra note 60 at 82 (‘courts have not rejected a plea of duress because the act was done calmly or preceded by deliberation’).

67 Plato, Republic, Book 2 (2:359a–2:360d) (discussing an invisibility ring that ensures the wearer suffers no negative consequences from wrongdoing).

68 David Brink, ‘The Nature and Significance of Culpability’ (2019) 13 Criminal Law & Philosophy 347, 355.

69 Id. at 351.

70 Gardner’s normative view understands culpability and excuses in terms of the character traits expected in the social roles one occupies. See Gardner, supra note 5 at 257 (discussing a defendant who succumbs to a threat she should have resisted where the ‘fortitude exhibited is suboptimal but not below acceptable limits,’ which makes duress ‘excusatory rather than justificatory’); id. at 266 (discussing the ‘two sets of standards … that go to defining a role’). I don’t take this up because the normative relevance of social roles, especially when they conflict with generally applicable moral reasons, seems challenging to sort out. The theory I develop is meant to be more general and ecumenical in not relying on the contested concept of social roles. Erin Kelly also adopts a version of this reasonable expectations view, which my theory is influenced by – particularly the role it gives to the notion of sympathy. However, some aspects of her view fit better for legal excuses, which I discuss in Section V.

71 This is not the standard of ideal, optimal or virtuous conduct. The criminal law at the very least, and plausibly morality, does not set such a high standard in order to avoid blame and condemnation.

72 Gardner, supra note 5 at 258 (discussing ‘distortions in practical rationality that can drive a wedge between’ justification and excuse).

73 To block collapse in morality, I suspect we must take a view on substantive moral matters.

74 As noted, I remain neutral on culpability for negligence. See supra notes 34–35 and accompanying text. If you want culpability for negligence, assume culpability is evidence-relative. If you don’t like culpability for negligence, relativize it to one’s factual beliefs (whether reasonable or unreasonable).

75 In section VI, I add another assumption of legislative resonance: that one is not alienated from the rule-setting project of the state and the weights attached to reasons reflect this. I’m open to other assumptions as well, like ordinary attention management: the ability to direct one’s attention to the salient or normatively important features of one’s situation. This implicates culpability for negligence. If we assume ordinary attention management but relax this assumption in sympathetic circumstances that aren’t your fault, some negligence could be wrongful but non-culpable.

76 I take no stand on whether this kind of motivational pressure, inclination, etc, should be understood in absolute (cardinal) terms, or whether it should be comparative. There are many details to be worked out for this picture of how reasons relate to motivation, but that is another project.

77 Although not essential here, several of the idealising assumptions above – emotional control, disinterestedness and fortitude – can be understood in terms of the psychological effort needed to get one to do the right thing. See Dana Nelkin, ‘Difficulty and Degrees of Moral Praiseworthiness and Blameworthiness’ (2016) 50 Nous 356 (defending a view on which we ‘excuse people to an extent when doing the right thing would be very … difficult,’ where ‘difficulty’ might ‘requir[e] a great deal of effort’ or ‘a great sacrifice’ – though for excuses rather than justifications, I assume the former is what matters); id. at 370–71; Brian McElwee, ‘Cost and Psychological Difficulty: Two Aspects of Demandingness’ (2023) 101 Australasian Journal of Philosophy 920, 924–25 (distinguishing skill-difficulty from psychological difficulty, which is the relevant notion here). Especially when doing the right thing is difficult, as when it’s very tempting to act wrongly or scary to act rightly, it’s plausible that we are required (morally and legally) to exert the psychological effort needed to get ourselves to overcome our temptations, fears or other resistance to doing the right thing. We can understand this as a conscious or at least higher-order intervention in one’s intuitive assessment of the available reasons to deliberately inflate or increase the weight that some of these reasons are given in one’s action-generating processes. The idealising assumptions about emotional control, disinterestedness and fortitude can be understood as the claim that the ordinary reasonable person will always, plausibly (if not necessarily) through psychological effort, manage to overcome emotions, biases or other temptations that might be attracting them to act wrongly, as well as managing – again perhaps through psychological effort – to get themselves to bear the at times high costs that avoiding wrongdoing entails. Thus, expectations about psychological effort (which may not always be realistic, as in fatigue cases) might help determine what’s deemed wrong.

78 Here my view resonates with Erin Kelly’s picture, though I spell out the details differently. She ‘propose[s] … that excuses function by undermining what normally are reasonable expectations about how a person should be motivated. Excuses do not challenge our notions about how a morally motivated person would act’ or ‘our evaluations of right and wrong action.’ Kelly, supra note 5 at 256 (emphasis added). Here, her view proceeds in terms of what’s reasonably expected of the actor. I reserve ‘reasonableness’ to mark out permissibility vs. wrongness for fear of inviting the collapse worry. If it’s not really reasonable, understood in an objective sense, to expect someone with a motivational impairment to avoid a given action, then it’s not clear why we wouldn’t just regard that action as permissible. Thus, I prefer to reserve ‘reasonableness’ for wrongness and justifications, while cashing out culpability and excuses in terms of what it’s fair and humane to expect of actors given their sympathetic weaknesses, impairments or disturbances. Still, this terminology does not block collapse, as noted below. My full answer to collapse comes in Section VI. I discuss the role played by the action-guidingness of wrongness rules on Kelly’s view in V.C, which I suggest is on the right track for law if not the whole story of how to block collapse.

79 That is, such disturbances or impairments can reduce the psychological effort we’re expected to exert to get ourselves do the right thing.

80 Cf. Gardner, supra note 5 at 138 (‘To attempt to benefit from a legal excuse by being guided by it is to forfeit that excuse.’); Owens, supra note 3 at 302.

81 M’Naghten’s Case [1843] UKHL J16 (1843) (insanity involves ‘labouring under such a defect of reason … as not to know the nature and quality of the act he was doing; or … that he did not know he was doing what was wrong’); cf. Model Penal Code s.4.01 (adding to this a ‘volitional’ prong).

82 This differs from insane automatism, where the defect of reason stems from internal factors, like neurological disease.

83 Alternatively, we might say the account of excuses applies only when no exemption is in play, i.e. when we are dealing with a true actor who has done a real action.

84 Unlike rationale-based excuses, incapacities or cognitive impairments cannot be overcome simply by exerting more psychological effort.

85 Coroners and Justice Act 2009, s. 52, amending the Homicide Act 1957, s.2.

86 See e.g. Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam. 147, HL (approving Sir Stephens’ account, on which necessity requires inter alia that ‘the evil inflicted by [the misconduct] was not disproportionate to the evil avoided’); see also Model Penal Code s.3.02; Westen, supra note 27 at 301 (using justification in general this way).

87 R v Graham [1982] 1 All ER 801, 806 (Lord Lane CJ).

88 Note that because the partially excused actor actually does the wrong, their actual weighting of reasons will involve giving greater weight to the reasons Pro than to the reasons Contra. The tables here do not show what weights the actor actually attaches, i.e. are actually motivationally operative in producing their conduct. Rather, they show the minimum weight it’s fair and humane to expect one to attach under the circumstances.

89 Provocation traditionally functioned to reduce murder to manslaughter if one killed in response to sight of adultery, mutual combat or serious battery. It has faced serious criticism for being too narrow and premised on archaic values. In the UK, it was replaced by a defense of ‘loss of control’ prompted by a ‘qualifying trigger’ (Coroner’s and Justice Act 2009, s. 54) like ‘fear of serious violence’ to self or others, or a ‘justifiable sense of being seriously wronged.’ Id. s. 55(3)-(4). This suggests an emotional disturbance model, though I argued above this is too narrow. The present account doesn’t require emotional disturbance to be excused.

90 See supra note 86.

91 See e,g. New York Penal Law § 35.15.2(b) (authorizing deadly force to prevent non-lethal attacks such as kidnapping or rape); Suzanne Uniacke, ‘Proportionality and Self-Defense’ (2011) 30 Law & Philosophy 253, 259–60 (self-defense should require preventing comparable not strictly equivalent harms).

92 Alexander, supra note 52 at 233 (lethal force can be used to avert not just death but also ‘serious bodily injury’).

93 Cf. Simester, supra note 3 at 436 (offering a nuanced analysis along these lines of attackers waving right against being harmed).

94 Although I bracketed epistemic perspective issues, if we allow epistemic divergence between wrongness and culpability, then mistaken self-defense might come out as an excuse. If so, my account explains why. Take unreasonably mistaken self-defense, as when you shoot a home intruder you honestly but unreasonably believe to be a burglar when it is actually your spouse. If wrongness is fact-relative or evidence-relative, the shooting is wrong. If culpability is belief-relative, the shooting is non-culpable. Thus, the unreasonable mistake would be an excuse. If so, the present account would capture it by saying that even unreasonable ignorance is a sympathetic agential impairment which makes it no longer fair and humane to expect you to be motivated by the actual reasons not to do the wrong. The shooting would remain wrong but non-culpable – i.e. excused. I’m not endorsing this view, but the Fair and Humane Expectations view can capture it.

Likewise for reasonably mistaken self-defense. Reasonable mistakes would come out as justifications if wrongness is evidence-relative. But some, like Gardner, view reasonable mistakes as excuses. See supra note 44. This would be the case, e.g. if wrongness is fact-relative, but culpability is evidence-relative or belief-relative. If so, the reasonably mistaken shooting would be wrong but non-culpable – i.e. excused. My account can capture this by saying the reasonable mistake makes it no longer fair and humane to expect one to be motivated by the actual (fact-relative) reasons against the wrong, and thus reduces culpability.

95 Marcia Baron, Self-Defense, Reason, and the Law, chapter 2, sections 6–8 (in draft).

96 Id. section 6.

97 In earlier versions of this paper, I pursued the idea that excuses are sympathy-grounded relaxations of the wrongness rules. However, I now think this will not adequately block collapse either, as it is not clear why considerations of sympathy cannot simply be built directly into the wrongness rules as exceptions or justifications. (Thanks to Antony Duff, Chloe Kennedy, Andrew Cornford, Lindsay Farmer and Matt King for pressing me on this.)

98 Other approaches might be explored too. For example, we might want two standards for reasons of moral education. See Mason, supra note 47 at 23 (suggesting educational benefits as one rationale for the objective standard). There are plausible benefits to having a higher wrongness standard because it signals what the community thinks we must all strive for – even if some shortfalls will be tolerated provided they meet the culpability standard (the ultimate cutoff). Still, unless grounded in a picture like I offer in Section VI, this moral education point does not explain what makes an excused actor less culpable – and does not show how the mechanism by which justifications exculpate is different from excuses.

99 Kelly, supra note 5 at 250 (‘The public and pragmatic dimensions of morality generate … pressure … to handle exceptions to general principles by tempering blame rather than complicating action-guiding norms.’).

100 Id. at 250–55.

101 Thanks to John Hyman for this point.

102 A further problem, as an anonymous reviewer points out, is that privacy is threatened (through invasive investigation) just as much by excuses as justifications. Law enforcement could investigate both. So to the extent a concern for privacy motivates a coarse-grained approach to wrongness, these privacy considerations don’t help separate justifications and excuses in criminal law.

103 Dsouza accepts that adjudication rules can also guide conduct, but he thinks this guidance comes from societal norms not from within the criminal law. Dsouza, supra note 37 at 114–15. However, on my picture below, criminal law guidance from excuses remains plausible.

104 For more on whether one can be motivated by an excuse without losing the benefit of it, see Owens supra note 3 at 302 (distinguishing motivation by the lack of punishment from motivation by lack of culpability). However, my point remains that partial motivation by the excuse does not always seem so wicked as to per se disqualify one from the defense.

105 Simester, supra note 3 at 17.

106 Note that on this picture, moral wrongness is not a strict constraint on criminalisation, though it remains a defeasible one. That is, at a minimum, conduct must be morally wrong to be justifiably criminalised – unless there are sufficient countervailing reasons to criminalise non-morally wrongful conduct. Instead of insisting on moral wrongness as a strict constraint on criminalisation, I take it that to properly criminalise some bit of conduct, it must be wrong according to the weights that the legislature may properly take to be assigned to the applicable reasons by the ordinary reasonable actor. This needn’t map perfectly onto moral wrongness, since the ordinary reasonable actor is assumed to care also about institutional, practical and workability considerations. So for criminalisation, it’s necessary that the conduct be properly seen as wrong by the legislature all things considered, but not necessarily that the conduct is morally wrongful on the best theory of the moral wrongness of individual action. Still, I take it that conduct must actually be culpable for it to be properly criminalised. So the moral wrongness constraint is defeasible, while the culpability constraint – necessary to ensure retributive desert – is still a strict requirement on my picture.

107 Paul Robinson, Intuitions of Justice and the Utility of Desert (OUP 2013) 176–88 (‘the criminal law’s moral credibility is essential to effective crime control’); Tom Tyler, Why People Obey the Law (Yale University Press 1990) 161 (finding compliance with law more likely when it’s seen as legitimate).

108 This is not to say Janice can’t be expected to attach weight to some institutional or rule-making considerations – just that this isn’t one of them.

109 The recipe could also be instantiated by other institutional considerations. For example, the legislature might think it would intolerably undermine trust in the law if the legislature were to question the competence of law enforcement by taking it that duress makes otherwise criminal conduct objectively permissible (i.e. treat duress as a justification) when one should be encouraged to go to the authorities instead. Again, however, it might not be fair and humane to expect individual actors to give full weight to this institutional consideration (i.e. this institutional reason for continuing to see doing the offense in response to the threat as the wrong thing to do). Accordingly, the culpability of acting under duress would be reduced compared to the total weight of the objective case against the action as viewed from the rule-making perspective, i.e. the action’s wrongness.

110 Robinson, surpa note 107.

111 Thanks to an anonymous reviewer for pressing this concern.

112 Mitch Berman, ‘Justification and Excuse, Law and Morality’ (2003) 53 Duke Law Journal 1, 77 (urging ‘scholars to argue for their favored articulations of particular defenses (like particular offenses) in terms of good policy broadly conceived – justice, fairness, efficiency, administrability, and the like – not in terms of conceptual or logical truths’).

113 Thanks to Steve Bero and Massimo Renzo for pressing me on this.

114 Joanna Mary Firth and Jon Quong, ‘Necessity, Moral Lability and Defensive Harm’ (2012) 31 Law & Philosophy 673, 674 (2012) (waiver picture is ‘widely accepted’); Jon Quong, ‘Killing in Self-Defense’ (2009) 119 Ethics 507–37 (attacks waive one’s ‘agency’ right against being harmed if not one’s ‘humanitarian’ right against being harmed unnecessarily).

115 Firth and Quong, supra note 114 at 676 (waiver-based liability ‘to be harmed or killed is one of the most significant considerations that informs our all-things-considered judgements about when it is permissible to harm and kill others’) (emphasis added).

116 Some debate might remain. Simester argues that saving life is always a reason that is excluded from justifying an intentional killing (it can only help justify foreseen killing). Simester, supra note 3 at 445–46, 467. However, I take it this must in principle come with some threshold of lives saved above which it is no longer debatable that one may intentionally kill to save that number of lives. These would be clearcut cases of necessity.

117 Indeed, Simester worries that any necessity defense for murder – at least in the non-apocalyptic cases the criminal law usually deals with – would be too ‘elastic’ and undermine rule of law values. Simester, supra note 3 at 444.

118 Thanks to Daniel Fryer for helpful conversation on this.

119 One might doubt this. The institutional abuse worry is that treating a given mitigating factor as a justification rendering the conduct permissible would induce too many actors to stretch the contours of the defense. Where a genuine mistake is in play, however, one will not realize it. Thus, one won’t easily be able to stretch the contours of a self-defense or necessity defense in mistake cases. Nonetheless, we might resurrect the institutional abuse worry for, say, mistaken self-defense if we see the defense as giving guidance about what to do in cases of uncertainty. If you know that reasonably mistaken self-defense justifies and then you end up in a case of uncertainty about whether defensive force is needed, you might worry less about using such force because you know you are permitted to make reasonable mistakes. The legislature may – though it’s an empirical question – worry that this will induce too many actors in such cases to use force in conditions of uncertainty, because they will stretch the notion of what is a reasonable mistake to cover more cases of uncertainty than they should. Thus, it’s at least conceivable that institutional abuse considerations could prove decisive against seeing mistaken self-defense as a justification. The same would apply to mistakes about clearcut necessity.

120 Thanks to Mark Dsouza for this worry.

121 This is another reason why the way of differentiating excuses from justifications proposed here is not as wafer-thin as one initially might worry. Numerous types of institutional considerations are encompassed by the current proposal.

122 See supra note 112 and accompanying discussion.

123 Mercy and forgiveness are in an important sense at the blamer’s discretion: they are not generally something the wrongdoer has a claim to. By contrast, excused wrongdoers on my picture have a claim (or deserve) to be subject to less blame and condemnation in virtue of their reduced culpability for their wrong than if they lacked an excuse.