INDIVIDUALIZATION OF EXCUSING CONDITIONS

• NCJ Number: 14910
• Journal: Southern California Law Review Volume: 47 Issue: 4 Dated: (AUGUST 1974) Pages: 1269-1309
• Author(s): G P FLETCHER
• Date Published: 1974
• Length: 41 pages
• Corporate Author: University of Southern California
• Sale Source: Not Available Through National Institute of Justice/NCJRS Document Loan Program
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THIS ARTICLE FOCUSES IN DETAIL ON THE COMMON LAW'S ABUSE AND TRANSFORMATION OF FOUR EXCUSING CONDITIONS - DURESS, NECESSITY, INSANITY, AND MISTAKE OF LAW.

Abstract

THE CONCEPTS OF EXCUSING CONDITIONS AND INVOLUNTARINESS IN RELATION TO THE VIOLATION OF CRIMINAL LAW ARE DISCUSSED. SPECIAL ATTENTION IS GIVEN TO THE VARIATIONS OF THE CONDITION OF NECESSITY - THE HARM THREATENED, THE HARM DONE BY THE ACTOR IN ELIMINATING THE THREAT, WHETHER THE ACTOR ACTS IN HIS OWN INTEREST OR IN THE INTEREST OF OTHERS, AND WHETHER THE DANGER EMANATES FROM THE OBJECT DAMAGED OR FROM ANOTHER SOURCE. AN EXAMINATION OF THE COMPARATIVE HISTORY OF NECESSITY IN GERMAN AND ANGLO-AMERICAN JURISDICTIONS CONSIDERS THE DIFFERENCE BETWEEN JUSTIFYING AND EXCUSING CRIMINAL CONDUCT. THE AUTHOR ALSO REVIEWS THE COMMON LAW'S AVERSION TO EXCUSING CONDITIONS AND SUGGESTS THAT THIS FEATURE OF THE COMMON LAW DERIVES FROM MISLEADING ASSUMPTIONS ABOUT THE INDISPENSABILITY OF RULES IN FORMULATING LEGAL JUDGEMENTS. HE CONCLUDES THAT INDIVIDUALIZING EXCUSES COMPLEMENTS RATHER THAN DETRACES FROM THE RULE OF LAW.