47 S. Cal. L. Rev. 1269 (1973-1974)
The Individualization of Excusing Conditions

handle is hein.journals/scal47 and id is 1273 raw text is: THE INDIVIDUALIZATION OF
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
* 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-


What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?