Malcolm Thorburn

Justifications, Powers, and Authority

Justification defenses have been the subject of a protracted debate in criminal law theory for the past thirty years. Both sides in this debate have assumed that the question at issue is whether the actors conduct is morally justified; they differ only in their views on this question. Whereas Paul Robinson has insisted that conduct is morally justified when it prevents greater harm than it causes, George Fletcher and John Gardner have insisted that the actors reasons for action also play a crucial role. This article contends that both sides in the justifications debate have been asking the wrong question. An examination of actual justification defenses throughout the common law world makes clear that they are primarily concerned with the special permission conferred upon the actor by an authorized individual (e.g., a justice of the peace confers the authority to conduct a search on a police officer). In some cases, the authority deciding to permit the conduct is the very person who carries it out (as when a police officer decides that it is permissible to make a warrantless arrest or when a parent decides that it is permissible to use physical force against her child). Given the role that justifications clearly play in criminal law doctrine, it is appropriate to shift our attention from an evaluation of the conduct itself to a review of the authoritys decision to permit it. A courts job, when evaluating justifications, is akin to the judicial review of an administrative decision. We should ask whether the decision was made reasonably and on the proper grounds, and not whether the outcome of their deliberation was correct, all things considered. Through this study of justification defenses, we begin to see that private authority in criminal law (such as parents over their children) and public authority (such as the decisions of a justice of the peace) share a common normative structure. This article concludes with a number of new questions of political legitimacy raised by this analysis.