The Individualization of Excusing Conditions
![handle is hein.journals/scal47 and id is 1273 raw text is: THE INDIVIDUALIZATION OF
EXCUSING CONDITIONS
GEORGE P. FLETCHER*
I. THE CONCEPT OF EXCUSING
The excusing conditions of the criminal law are variations of the theme
I couldn't help myself' or I didn't mean to do it.' In this respect
the defenses known as necessity, duress, insanity and mistake of law
are but extensions of homely, routine apologies for causing harm and
violating the rules of social and family life. While we use the plea
I couldn't help myself to cover the full range of excusing circum-
stances, each of the formal excuses of the criminal law has a limited
sphere. As a general matter, these spheres are dictated by the type
of circumstances rendering the conduct excusable. If the excusing
circumstances are natural phenomena, the appropriate excuse is neces-
sity.2 Standard cases are those of the starving man who steals a loaf
@ Copyright 1974, by George P. Fletcher.
Dedicated to the students of the University of Southern California Law Center,
Class of 1974, Section A, in the hope that they will infect others with their love for
ideas.
* Professor of Law, University of California at Los Angeles. B.A. 1960, Uni-
versity of California at Berkeley; J.D. 1964, University of Chicago; M. Comp. L. 1965,
University of Chicago. Visiting Professor of Law, Harvard University, 1973-74.
1. Blackstone perceived the essence of excuses to be the want or defect of
will. 4 W. BLACKSTONE, COMMENTARmS *20. The subject of excuses has received
little attention in the contemporary literature of the common law, but it has been of
interest to philosophers. See Austin, A Plea for Excuses, in PROC. ARSTOTELIAN SOc'Y
1 (1956-57), reprinted in FREEDOM AND RESPONSIBILITY 6 (H. Morris ed. 1961);
H.L.A. Hart, Prolegomenon to the Principles of Punishment, 60 PROC. AmUsTOTLmtN
Soc'y 1, 13, 17-24 (n.s. 1959), reprinted as the first chapter in H.L.A. HAAT, PUNISH-
MENT AND REsPONsiBILrrY (1968) [hereinafter cited as HAnT].
2. This is a good rule-of-thumb, (see W. LAFAVE & A. SCOTT, CnnsNAL LAw
381 (1972)), but it admits of exceptions. The German Penal Code of 1871
§ 54 [hereinafter cited as STGB] regulates the defense of necessity (Notstand); STGB
§ 52 regulates duress (N~tigungsstand). Yet § 54 does not by its terms exclude
threats emanating from human beings; and the courts have held the provision applica-
ble to cases of human threats falling below the threshold required for self-defense
under STGB § 53. See Judgment of July 12, 1966, 1966 NEua JUISTISCHE WOCH-N-
scHRr 1823 (Bundesgerichtshof, Germany); Judgment of July 12, 1926, 60 Entschei-
1269](ViewImageLocal?handle=hein.journals/scal47&div=36&collection=journals&method=preview&ext=.png&size=3)
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The Individualization of Excusing Conditions
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