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Regarding Rationale-Based Defences: A Reply to James Edwards

James Edwards identifies four principal areas of concern about my book’s central thesis. My book structures its argument differently. I suspect that revisiting the four issues in the order in which they are tackled in the book would assuage some of Edwards’ concerns. Clarifying misunderstandings about my arguments, and drawing attention to key passages pre-empting objections, should assuage others.

Mark Dsouza

In his review of Rationale-Based Defences in Criminal Law (Oxford: Hart Publishing, 2017) published at (2018) 81 MLR 385, James Edwards identifies four principal areas of concern about my book’s central thesis. These objections, in the order he presents them, relate to:

  1. my account of exculpation in rationale-based excuses;
  2. my explanation of the justified defence of constituently human features;
  3. my explanation of other paradigmatic justifications;
  4. and the ubiquity I attribute to the ‘wrongness hypothesis’.

My book structures its argument differently. I suspect that revisiting the four issues in the order in which they are tackled in the book would assuage some of Edwards’ concerns. Clarifying misunderstandings about my arguments, and drawing attention to key passages pre-empting objections, should assuage others.

Wrongness hypothesis
I base my account of rationale-based defences on a counterproposal to what I call the ‘wrongness hypothesis’, which I argue is ubiquitous in the competing accounts. Edwards says that the wrongness hypothesis is far from ubiquitous. He suggests that plenty of excellent competing conceptions of justification and excuse do not subscribe to it, specifically mentioning the theories of Andrew Simester, John Gardner and Antony Duff. He therefore fears that my account of rationale-based defences ‘has more – and better – competitors’ than I allow. Edwards’ worry is premised on the following description of the ‘wrongness hypothesis’, which he attributes to me (Edwards 388):

[The] ‘wrongness hypothesis’ is really two hypotheses: Excuses negate blameworthiness, whereas justifications do not. Justifications negate wrongness, whereas excuses do not.

This is not how I defined the wrongness hypothesis. I understand the wrongness hypothesis as a threshold commitment to the idea that justifications must necessarily negate the objective outcome-related ‘wrongness’ of the prima facie offence committed. This usually goes with the view that excuses negate the actor’s blameworthiness for committing the prima facie offence based on factors personal to the actor. Theories that explain justification as requiring the negation of both, the objective outcome-related ‘wrongness’ of the prima facie offence committed and the actor’s blameworthiness for committing the prima facie offence, also subscribe to the wrongness hypothesis – they too treat the negation of the objective outcome-related ‘wrongness’ of the prima facie offence committed as a necessary condition for justification (Dsouza 3-6). In fact, I expressly explain how various competing accounts of rationale-based defences, including those offered by Andrew Simester, John Gardner, and Antony Duff, fall into this category. The wrongness hypothesis therefore is adopted by many more competing accounts of rationale-based defences than Edwards suggests. Furthermore, my theory of rationale-based defences competes with all of the excellent alternative accounts identified by Edwards (and more) in that, for me, the negation of the objective outcome-related ‘wrongness’ of the prima facie offence committed contributes nothing to the exculpatory pull of a justification. Pace Edwards’ reading (Edwards 385), I argue that justifications work by negating the defendant’s blameworthiness (Dsouza 85-88).

Justified defence of constituently human features
Edwards objects to my treatment of constituently human features as being outwith moral (and therefore morally-predicated criminal law) guidance and blame, arguing (Edwards 388) that

[a]s opposable thumbs have enabled humans to do both tremendous good and astonishing evil, it … make[s] perfect sense to ask whether it is morally better that we have them, and to ask whether we are morally required to engineer future generations that do not. Similarly, it seems to make perfect sense to ask whether it is morally better that we use defensive force, and to ask whether we are morally required to refrain from doing so.

In a sense he is right. But not in a sense that corresponds to the type of morality within which I locate my argument.

Like many others writing in this field, I adopt a morally distinctive account of the criminal law (Dsouza 48). I also advance an argument as to what type of morality feeds into the criminal law:

Most moral theories accept that ‘the moral good’ is in some way contingent upon the continued survival of humans. [They adopt] axiomatic value statements [that] presuppose the existence of beings that are recognisably human. It follows that the features that identify a being as human, are logically prior to any guidance that such moral theories can offer. [They] have no moral value, positive or negative. They are simply part of the background to the rules for moral guidance … [T]he moral guidance in these moral codes cannot self-consistently impinge upon the essential humanity of any human. It cannot therefore command a person to shed, or to suffer the shedding of, any of her constituently human attributes. Since the same also applies to the guidance in morally derived normative systems like the criminal law, a moral criminal law’s guidance is also similarly restricted. (Dsouza 49, omitting internal references)

I draw up a short, non-exhaustive, list of features generally accepted in the literature to be constituently human. Amongst these features is the human form (including opposable thumbs), and the ‘behaviour of acting to preserve one’s constituent features’ (Dsouza 49-53). The latter feature grounds my explanation of why we are immune from blame in respect of certain actions undertaken to defend constituently human features. Since morality cannot command the shedding of this constituently human feature, it cannot blame a person for retaining it (which is, in this context, acting in order to preserve one’s constituent features). I expressly concede that this type of morality is human-centric (Dsouza 176) – it is contingent upon the continued existence of humans, and is good only for humans, and not for other animals (Dsouza 48). Edwards may be correct to suggest that in the context of some unspecified good-for-all-things-and-all-times morality it would be sensible to ask whether it is moral for humans to have opposable thumbs. But that is simply not the sort of morality upon which I premise my argument. Since the criminal law is a human ‘construct’ it seems entirely plausible to think that it relates to a human-centric morality, and not to some other broader (or narrower) morality.

Other paradigmatic justifications – defending posited rights
In relation to defending rights conferred by positive law, my argument is predicated on the premises that (a) the freedom to defend a right is implicit in the very concept of a right; and that therefore (b) by granting me a right, the state simultaneously divests itself of the power to legitimately blame me for defending my right (Dsouza 63-67). Edwards disputes my first assertion with an example. He suggests that although his employer grants him the right to teach what he wants in class, if he chooses to teach Japanese cinema instead of English criminal law, and defends himself in the face of opposition, his employer may well be entitled to blame him for his actions. Therefore, says Edwards, if I am to make good my overall argument on the defence of posited rights, I must do more than appeal to a conceptual truth about rights (Edwards 388).

But look again. The right in Edwards’ example seems not to be a right to ‘teach whatever he wants’. The appeal of his example stems from an unstated premise that his employer expects him to teach English Criminal Law, and not another subject, although within the specified domain, he can teach what he wants. Indeed, if Edwards decided not to teach sexual offences but instead to focus on driving offences, he would be entitled to defend his academic freedom to do just that. What Edwards’ example describes, then, is a definitionally limited right. I expressly make space for such rights in my argument (Dsouza 63, 168). This conceptual possibility does not affect my argument at all.

Rationale-based excuses
My book presents a framework for rationale-based excuses only after first rejecting the wrongness hypothesis and explaining my conception of justifications. That order of argument made the scope of my task in explaining excuses clearer to the reader. I reject the wrongness hypothesis, and argue that a justification may be available even when the objective outcome-related ‘wrongness’ of the prima facie offence remains intact. The reason is that justifications negate the agent’s culpability. This thesis plainly precludes reliance on the standard account of the distinction between justifications and rationale-based excuses, viz that justifications negate the objective outcome-related ‘wrongness’ of the prima facie offence, while excuses negate only the actor’s blameworthiness for committing the prima facie offence. Instead, I trace the exculpatory power of rationale-based excuses to a different source – hypocrisy. I argue that because it would be hypocritical for us, as a society, to condemn someone’s conduct if it conformed to the standards that we as a society normatively expect from ourselves when performing the same role in the same circumstances, we have reason to excuse such conduct (Dsouza 109-114). Contrary to what Edwards suggests, my argument does not extend to justifications.

Edwards says that the hypocrisy-based conception (HBC) is neither intuitively plausible nor compatible with familiar accounts of rationale-based excuses (Edwards 386). He says that where societal morality is unduly censorious, society might routinely blame people for ‘blamelessly doing X’, and HBC would offer no ground for an excuse. Conversely, where societal morality is unduly lax, people who commit blameworthy wrongs would widely be taken to have grounds for excuse under HBC. Thus, he says, under HBC, a society that widely accepted that sexual assault is acceptable in the absence of explicit non-consent, should acquit someone who sexually assaults another and points to the absence of explicit non-consent as an excuse. But this is both counter-intuitive and incompatible with the outcome generated by standard accounts of excuse. He adds that criminal blame and societal blame may well be context specific, such that we may have reasons to blame someone criminally but not socially, and vice versa (Edwards 387).

Edwards overlooks sections of my argument that directly address these issues, and attributes to me a view of HBC that I do not hold. In suggesting that where societal morality is unduly censorious, HBC would be too harsh to someone who ‘blamelessly’ does X, Edwards appears to refer to criminal blame. I expressly consider such cases and argue that, where they arise, the agent would be justified, and therefore would not have to rely on HBC to claim any excuse (Dsouza 118). As regards instances involving unduly lax societal morality, I accept that HBC would generate a reason to excuse the defendant. So, in Edwards’ sexual assault example (setting aside for now quibbles about whether the assaulter is denying the prima facie offence or offering a rationale-based excuse), HBC would generate a reason to excuse. But I explicitly refrain from making any imperative claim that an excuse should be granted in every case in which HBC applies (Dsouza 112, 115). I explain that:

Whatever the societal normative conduct guidance in a jurisdiction, it is for the state … to identify the elements thereof that are accepted into the criminal law decision rules of that jurisdiction. Hence, even if there is … a clear societal consensus that one can be excused for cannibalising a non-threatening person because one was on the brink of starvation while adrift on the high seas, and there appeared to be no other way to survive, the state is not obliged to … excuse … It is for the state to stipulate the minutiae of the conditions subject to which the defence is made available, and it does so by way of posited law. Its decisions in this regard may be influenced by factors in addition to its general commitment to avoiding hypocrisy. These may include considerations of a political, social, or ethical nature. (Dsouza 116, omitting internal references)

On my account, HBC supplies only a pro tanto reason to excuse. A decision to refuse Edwards’ hypothetical sexual assaulter an excuse would therefore be entirely compatible with HBC. Edwards’ objections to my conception of rationale-based excuses seem to stem from his assumptions that (a) I apply HBC to all rationale-based defences; and (b) treat HBC as giving rise to conclusive reasons to excuse. Neither is part of my argument.

References

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Published 03.04.18
Response by Mark Dsouza
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