Published at 28 Cardozo L. Rev. 2481(2007).


The goal of this article is to rethink the relationship between the concepts of justification and wrongdoing, which play vital roles in the theory of criminal law. Reading George P. Fletcher’s new book, The Grammar of Criminal Law, in the context of his earlier scholarship has led me to one major disagreement with Fletcher as well as with the traditional criminal law doctrine: for Fletcher and many others, wrongdoing and justification mutually exclude each other; for me, they do not.

Consider a hypothetical: a group of people are captured by criminals. The criminals are about to kill everyone but then they have a change of heart and offer their victims a deal: if Jack rapes Jill, the criminals will let everyone go. If not, no one’s life will be spared. Realizing that this is the only way to save several lives, including Jill’s own, Jack reluctantly agrees. Jill, on the other hand, vehemently protests that she would rather die than be violated. When Jack attempts to overpower her, Jill fights back and seriously injures Jack. At that moment, the police arrive and take everyone into custody. It appears that both Jack and Jill have valid defenses of justification – Jack can successfully claim necessity, and Jill can successfully claim self-defense. But is it fair to say that the two are equally right or that neither of them has committed any wrongdoing?

Focusing on the problem of incompatible justifications, I suggest that we should revise our understanding of justifications in general. Specifically, I argue that, in certain circumstances, justifiable conduct may be wrongful; that in a conflict between two incompatible justifications, one side may be more right than the other; and that justifications should be viewed not as a homogenous group in which each defense has equal importance but as a hierarchical structure in which the place afforded to a defense is determined by its rationale and effect on the rights of others.

The top priority belongs to justifications that do not violate rights of others and, in addition, compel others to behave in a cooperative way (the public duty defenses). The intermediate priority belongs to justifications that neither violate rights of others nor create in others a duty to cooperate (the “special relationship” and autonomy defenses). Finally, the lowest priority belongs to the defense of necessity, which, by design, may involve violation of rights of innocent, unoffending individuals.


Criminal Law | Criminal Procedure

Date of this Version

April 2007