Tues. 3/30: introduction and §I (pp. 1897-1915)
Thurs. 4/1: §§II-III (pp. 1915-1927)
The topics announced in Greenawalt’s title are two important forms of “defense” in criminal law. (See note 1, p. 1897, for some comments about others.) He does three things in his discussion of them:
• he considers three possible accounts of the difference between justifications and excuses,
• he looks at some problematic cases for each of these ways of making the distinction, and
• he argues that the law should not attempt to incorporate a systematic distinction between the two concepts.
Although the third of these is of some interest for some of the issues about the nature of law that we considered in the first half of the course, it is the first two that are most important now, and it is those that we will concentrate on. That means that, while it will be easiest to follow the parts of the paper that will be our focus if you read the whole things, there are some parts (e.g., subsections B and C of the introduction, I.C, and III.D) that we may not touch on in class.
Topics for Tues. 3/30 (introduction and §I, pp. 1897-1915)
Subsection A of the introduction is especially important. In the space of a few paragraphs, Greenawalt introduces basic clear cases of justification and excuse and notes some features of them that will be developed in the various ways of making the distinction that he considers.
In subsection I.A, Greenawalt considers two sorts of cases at the borderline between justifications and excuses. In regard to the first, note especially the relevance of what he calls “perfectionist” ethics to judgments about such cases.
Greenawalt’s aim in discussing duress in subsection I.B is primarily to bolster his argument against a systematic distinction between justifications and excuses; but, in the course of doing that, he provides a succinct account this defense.
Topics for Thurs. 4/1 (§§II-III, pp. 1915-1927)
Although the second and third ways of making the distinction work in typical cases (look back at subsection A of the introduction), Greenawalt argues that there are some cases where they get the distinction wrong. You may not agree with him, so be sure to think what you would say about his examples.
The approach to the distinction that Greenawalt considers in section II seems to be the one he finds least persuasive. But the distinction between the “objective” and the “subjective” that it employs is important elsewhere in the law, so it’s worth thinking it through if only to get a sense of the significance of these terms.
The concept of a right is central to the final approach Greenawalt considers (in §III), and you should think how the various rights he discusses might fit into Hohfeld’s scheme.