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6. Why Only the State may Inflict Criminal Sanctions: The Case Against Privately Inflicted Sanctions
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15. Provocation: Explaining and Justifying the Defense in Partial Excuse, Loss of Self-Control Terms
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I. The Fundamental Importance of the Distinction Between Actual, Objective Justification and Subjective, Mistaken Justification I. The Fundamental Importance of the Distinction Between Actual, Objective Justification and Subjective, Mistaken Justification
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A. Effectively Announcing Rules of Conduct Ex Ante A. Effectively Announcing Rules of Conduct Ex Ante
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B. Providing a Workable Definition of the Trigger for Defensive Force B. Providing a Workable Definition of the Trigger for Defensive Force
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C. Summary C. Summary
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II. The Liability Errors Generated by the Subjective Formulation II. The Liability Errors Generated by the Subjective Formulation
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III. Objections to the Objective Formulation III. Objections to the Objective Formulation
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A. Announcing Conduct Rules through the Defendant’s Mistaken Perspective A. Announcing Conduct Rules through the Defendant’s Mistaken Perspective
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B. The Need to Announce a Defense for a Reasonable Mistake as to a Justification B. The Need to Announce a Defense for a Reasonable Mistake as to a Justification
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C. The Unfairness of Labeling as only “Excused” an Actor who Reasonably Believes She is Justified C. The Unfairness of Labeling as only “Excused” an Actor who Reasonably Believes She is Justified
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Comments Comments
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A Platonic Justification for ‘Unknowing Justification’ A Platonic Justification for ‘Unknowing Justification’
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The Third, Combined, Theory for Justifications The Third, Combined, Theory for Justifications
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In Defense of Subjective Justifications In Defense of Subjective Justifications
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Constraining the Necessity Defense Constraining the Necessity Defense
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16. Objective Versus Subjective Justification: A Case Study in Function and Form in Constructing a System of Criminal Law Theory
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Published:November 2011
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Abstract
This chapter deals with objective versus subjective justification, with particular emphasis on the importance of function and form in developing a system of criminal law theory. It first examines the distinctions on which the criminal law ought to rely, based on the assumption that the criminal justice system cares about whether the actor's conduct causes a harm or evil, about the blameworthiness of the actor, and about legality virtues such as giving fair notice. It also discusses the difference between cases of objective justification and cases of subjective, mistaken justification. The chapter includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as “unknowing justification” and the necessity defense.
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