An abbreviated version of this paper was presented at a conference on “Criminal Law Reform” held at Washington D.C. in January 1990.1 am grateful to the editor Professor Richard Bronaugh and to my friend and colleague Professor David Kretzmer for their useful comments.

1. I have discussed these consequences at length in Gur-Arye, M. “Should the Criminal Law Distinguish between Necessity as a Justification and Necessity as an Excuse?” (1986) 102 L. Q. Rev. 71.Google Scholar

2. Miller, J. Handbook of Criminal Law (St. Paul Minn.: West Publishing, 1934) at 199.Google Scholar The early common law distinguished between justifiable and excusable homicide, and different legal consequences once attached to these two form of homicide. For the historical development of the common law in this context, see Turner, J.W.C. ed., Kenny’s Outline of Criminal Law, 19th ed. (Cambridge: Cambridge University Press, 1966) at 141–47;Google Scholar Perkins, R.M. “A Re-Examination of Malice Aforethought” (1933–34) 43 Yale L.J. 537 at 539–41.Google Scholar

3. Proposed Official Draft (1962).

4. Tentative Draft No. 8, 2(1958).

5. See Fletcher, G. Rethinking Criminal Law (Boston: Little, Brown and Co., 1978) at 759–875 Google Scholar [hereinafter cited as Fletcher]; Robinson, P. Criminal Law Defenses, vol. 1 (St. Paul, Minn.: West Publishing, 1984) at 83–101 Google Scholar [hereinafter cited as Robinson]; Smith, J.C. Justification and Excuse in the Criminal Law (London: Stevens, 1989)Google Scholar [hereinafter cited as Smith]; Eser, A. “Justification and Excuse” (1976) 24 Am.J. of Com.L. 621;Google Scholar Williams, G. “The Theory of Excuses” [1982] Crim. L. Rev. 732;Google Scholar Albridge, P. “The Coherence of Defences” [1983] Crim. L. Rev. 665;Google Scholar Morgan, M. “he Defence of Necessity: Justification or Excuse” (1984) 42 U. T. Fac. L. Rev. 165;Google Scholar Wells, C. “Necessity and the Common Law” (1985) 5 Ox. J. of Legal S. 475;Google Scholar Byrd, B.S. “Wrongdoing and Attribution: Implications Beyond the Justification-Excuse Distinction” (1987) 33 Wayne L. Rev. 1289;Google Scholar Chapman, B. “A Theory of Criminal Law Excuses” (1988) I Can. J. of L. and Jurisprudence 75.Google Scholar These calls have been followed by the Supreme Court of Canada in Perka v. The Queen [1985] 13 D.L.R. (4th) 1.

6. Published at (1984) 14 Mishpatim 3 (in Hebrew],

7. Law Com. No. 177(1989).

8. Law Com. No. 143(1985).

9. Ibid, at 114.

10. Report No. 31 on Recodifying Criminal Code (1987).

11. Ibid, at 34.

12. Ibid.

13. For a similar conclusion, see Colvin, E. “Exculpatory Defences in Criminal Law” (1990) 10 Ox. J. Legal S. 381;Google Scholar Greenawalt, K. “Distinguishing Justifications from Excuses” (1986) 49 L. & Contemporary Problems 89 [hereinafter cited as Greenawalt];CrossRefGoogle Scholar Greenawalt, K. “The Perplexing Borders of Justification and Excuse” (1984) 84 Columbia L. Rev. 1897;CrossRefGoogle Scholar Kremnitzer, M. “Proportionality and the Psychotic Aggressor: Another View” (1983) 18 Isr. L. Rev. 178 at 196–99;Google Scholar Hall, J. “Comment on Justification and Excuse” (1976) 24 Am. J. of Com. L. 638;Google Scholar Silving, H. Constituent Elements of Crime (Springfield, III.: Charles C. Thomas, 1967) at 381–86.Google Scholar See also Smith, who believes that “a distinction between justification and excuse is of only limited value”, supra, note 5 at 126.

14. In order to develop other defences, such as insanity and mistake, one need not necessarily rely on the distinction between justification and excuse. It is because of the unique nature of duress and necessity, the basis of which “is not merely empirical but primarily normative”, that the distinction could play an importance role in developing these defences (Dressier, J. “Exegesis of the Law of Duress: Justifying the Excuse and Searching for its Proper Limits” (1989) 62 USC. L. Rev. 1331 at 1365.Google Scholar For the unique nature of duress and necessity in this context see also Brudner, A. “A Theory of Necessity” (1987) 7 Ox. J. Legal. S. 339 at 344–50.Google Scholar

15. For the historical development of necessity at the common law, see Perka v. The Queen, supra, note 5 at 8-12.

16. (1884) 14Q.B.D. 273.

17. See Gur-Arye, M. supra, note 1 and the references there.Google Scholar See also Perka v. The Queen, supra, note 5, discussed by Wells, supra, note 5; Albridge, supra, note 5 at 666-68; Morgan, supra, note 5; Dressier, supra, note 14; Brudner, supra, note 14; Gardner, S. “Necessity’s Newest Inventions“ (1991) 11 Ox. J. Legal S. 125;Google Scholar Gardner, S. “Instrumentalism and Necessity” (1986) 6 Ox. J. Legal S. 431.Google Scholar

18. The balance of interests in this context is not simple. A sophisticated assessment of the competing interests is needed. See Morgan, supra, note 5.

19. Those who rejects the utilitarian principle argue for a right based principle as a basis for necessity as justification: “...necessity must be defended...as an overriding of rights.” Brudner, supra, note 14 at 362. See also Gardner, supra, note 17 at 130-32.

20. The section, in its English translation [taken from Eser, supra, note 5 at 622] provides: “Whoever in a present and otherwise not preventable danger to life, limb, liberty or any legal interest acts to prevent the damage to be inflicted on himself or another person, does not act unlawfully if the balance of conflicting interests, in particular the legal interests involved and the intensity of the imminent danger, shows that the defended interest is entitled to prevail over the one which is infringed. This is admissible, however, only in so far as the act is an adequate means for preventing the danger.”

21. The full version of the section, in its English translation (ibid.) is as follows:

“Whoever commits an unlawful act in order to prevent a present danger to the life, limb or liberty of himself, a relative or a close person, acts without guilt. However, this does not apply if under the circumstances, and in particular if he has brought about the danger or has a special obligation, the perpetrator should be expected to cope with the danger.”

22. The primary task of the English Code team was not to reform the law, but rather to restate the existing principles. Nonetheless, the team took into account “recommendations made by law reform bodies in recent years which have not yet been implemented by legislation.” The Law Commission No. 143, supra, note 8 at 7.

23. In its previous report the Law Commission recommends that:

“[t]here should be no general defence of necessity and, if any such general defence exists at common law, it should be abolished”.[Law Com. No. 83, para 6.4 (1974).]

It was because of the similarity between duress and necessity, pointed out by the Code team, that the Law Commission was persuaded to change its recommendation and to provide the defence of necessity. [Law Com. No. 177, vol.1, 231 (1989)].

24. Von Hirsch, A. “Lifeboat Law” (1985) 4 Crim. Just. Eth. 88 at 91.Google Scholar

25. Supra, note 16.

26. Abbot v. The Queen, [1977] A.C. 755.

27. Lynch v. Director of Public Prosecutions, [1975] 1 All E.R.

28. For a critique of Abbott, see Williams, G. Textbook of Criminal Law, 2d ed. (London: Stevens, 1983) at 628–31;Google Scholar Fletcher, supra, note 5 at 831-33.

29. In this spirit see Fletcher, supra, note 5 at 823-27; Von Hirsch, supra, note 24; Albridge, supra, note 5 at 668; Wells, supra, note 5 at 473-74; Dressier, supra, note 14 at 1370-74; Brudner, supra, note 14 at 350-55. Gardner [supra, note 18], on the other hand, takes Dudley & Stephens as an example for the approach that: “a defence tends to be denied whenever an acquittal for excuse might be wrongly viewed and acted upon as a justification” [at 127].

30. R.v.Howe, [1987] A.C. 417.

31. Law Com. No. 177, supra, note 7 at 229, para. 12.13.

32. The decision itself was controversial, see Smith, J.C. “Commentary” [1987] Crim. L. R. 481;Google Scholar Dennis, I.H. “Developments in Duress” (1987) 51 J. Cr. L. 463 at 464–74;Google Scholar Milgate, H.P. (1988) Cr. L. J. 61.Google Scholar

33. In a similar spirit see Smith, supra, note 5 at 90-92.

34. The same discrimination is found in the Model Penal Code, which distinguishes between choice ofevils, defined in section 3.02 as a justification, and duress, regarded under section 2.09 as an excuse. Duress is restricted to danger which stems from a human threat. For a critique of the Model Penal Code in this context, see Comment, “Justification: the Impact of the Model Penal Code on Statutory Reform” (1975) 75 Columbia L. Rev. 914 at 922-24 and 960-61. See also Dressier, supra, note 14 at 1374-76.

35. Law Com. No. 177, supra, note 7 at 231.

36. Report No. 31, supra, note 10 at 35.

37. The commentary to the Model Penal Code [Tentative Draft no. 8 (1958)] suggests that choice of evils, as defined in section 3.02, could justify the taking of innocent life in such instances.

38. See Fletcher, supra, note 5 at 782 at 787-88; Von Hirsch, supra, note 24 at 90; Morgan supra, note 5 at 170-72.

39. See the references ibid., and also Brudner, supra, note 14 at 355; Perka v. The Queen, supra, note 5 at 33; Wells, supra, note 5 at 473-74.

40. Both duress and necessity, defined in sections 44-45 of the draft, relate to danger to life, limb, liberty and property. Necessity, according to section 44, is even wider: it applies also to a danger to a security interest of the State. The exclusion of murder was omitted from both defences. In its report the team pointed out that such an exclusion might still be possible within the definition of murder in the specific part, which has not yet been drafted. However, its own view was that there is no place for such an exclusion since “necessitas non habet legem” [10 Mishpatim, 202 at 225 (1980)].

41. The distinction between duress and necessity, according to the Israeli draft Code is based on the source of the danger: a human threat (duress) versus circumstances (necessity).

42. See Gur-Arye, supra, note I and the references there. See also: Smith, supra, note 5 at 19-29.

43. A further implication, which relates to the role of mistake, will be discussed in Part III, infra.

44. Such a rationale is reflected in section 35 of the German Penal Code, supra, note 21. See also: Dressier, supra, note 14 at 1341 -42 and note 63 there. In Perka v. The Queen (supra, note 5 at 19-20), Dickson J. held that the impact of the accused's prior fault on the excuse ought to be more limited.

45. See Robinson, P. “A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability” (1975) 23 U.C.L.A. L. Rev. 266 at 280–83;Google Scholar Fletcher, supra, note 5 at 796-98; Logoz, P. Commentaire du Code Pénal Suisse, Partie Générate (2nd ed. 1976) at 178;Google Scholar Feller, S.Z. “Defence of Necessity and its Limitations” (1971) 6 Isr. L. Rev. 417 at 419.Google Scholar It should be mentioned that Robinson in his book [supra, note 5) has changed his stance. For his revised approach, see infra, note 50.

46. Section 43(3)(b)(iii), which defines duress of circumstances. The same exclusion with regard to duress by threats is defined in section 42(5).

47. Report No. 31, supra, note 10 at 35.

48. Section 47 of the Israeli draft Code.

49. Ibid.

50. In the same spirit, Robinson, supra, note 5 at 30-44,246-58, suggests that the better view is to maintain either the justification or the excuse defense and to impose liability for the culpability in causing the need for the defence.

51. I have elaborated on this doctrine elsewhere, see Gur-Arye, M. Actio Libera in Causa in Criminal Law (Jerusalem: Harry Sacher Institute for Legislative Research and Comparative Law, 1984).Google Scholar

52. See section 35 of the German Penal Code, supra, note 21.

53. For that reasoning, see Fletcher, supra, note 5 at 762; Robinson, P. supra, note 45 at 279;Google Scholar Robinson, supra, note 5 at 170-78; Byrd, B.S. supra, note 5 at 1332–38;Google Scholar Radbruch, G.L. “Jurisprudence in the Criminal Law” (1936) 18 J. of Comp. Leg. & Int. Law, Series III, 212 at 218.Google Scholar

54. This implication is explicit in section 32 of the German Penal Code, brought by Eser, supra, note 5 at 622. The definition of “unlawful force”, against which defensive measures are privileged, in section 3.11(1) of the Model Penal Code, appears to reflect this implication as well, see Model Penal Code, Tentative Draft No. 8, 29 (1958).

55. Fletcher, G. “The Right and the Reasonable” (1985) 98 Harv. L. Rev. 949 at 975.Google Scholar

56. Byrd, supra, note 5 at 1333.

57. In addition to the references in supra, notes 46-48, see Fletcher, G. “Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory” (1973) 8 Isr. L. Rev. 367;Google Scholar Fletcher, supra, note 5 at 761; Robinson, supra, note 5 at 164-69; Chapman, supra, note 5 at 81; Williams, supra, note 5 at 741; Kadish, S.H. “Respect for Life and Regard for Rights in the Criminal Law” (1976) 64 Cal. L. Rev. 871 at 876–77.Google Scholar

58. Dressier, J. “New Thoughts about the Concept of Justification in the Criminal Law: A Critique of Fletcher’s Thinking and Rethinking” (1984) 32 U.C.L.A. L.Rev. 61 at 87–91;Google Scholar Greenawalt, K. supra, note 13 at 1922–25;Google Scholar Colvin, supra, note 13 at 391; Gur-Arye, supra, note 1 at 80-81.

59. For the same conclusion see Kremnitzer, M. supra, note 13 mainly at 189–96.Google Scholar

60. For this rationale of private defence see Kremnitzer, ibid, at 189-96; Eser, supra, note 5, at 632; Silving, supra, note 13 at 391-94; Smith, supra, note 5 at 123, who submits that “...there is a large overlap between the law governing private defence and that governing the prevention of crime that the law cannot sensibly distinguish between them.” For other rationales, see Fletcher, supra, note 5 at 769-74; Fletcher, supra, note 57; Kadish, supra, note 57 at 882-88.

61. Even in systems which require retreat, it is not an absolute requirement: the victim of the attack is never required to leave his home or place of business. For the discussion of the various legal solutions in this context, see Kremnitzer, ibid, at 191-92 note 40; Fletcher, ibid, at 865-68; Robinson, supra, note 5 at 79-81; Ashworth, A.J. “Self-defence and the Right to Life” (1975) 34 Camb. L J. 282;Google Scholar Note, “Justification: The Impact of the Model Penal Code on Statutory Reform” (1975) 75 Columbia. L. Rev. 914 at 937-38.

62. In section 42, which defines private defence.

63. The whole version of section 42(3) is as follows:

For the purpose of this section, an act is ‘Unlawful’ although a person charged with an offence in respect of it would be acquitted on the ground only that–

(a) he was under ten years of age; or

(b) he lacked the fault required for the offence or believed that an exempting circumstance existed; or

(c) he acted in pursuance of a reasonable suspicion; or

(d) he acted under duress, whether by threat or of circumstances; or

(e) he was in a state of automatism or suffering from severe mental illness or severe mental handicap.

64. Law Reform Commission of Canada, Report No. 31, supra, note 10 at 37.

65. In the same spirit, see Greenawalt, “Distinguishing Justifications from Excuses”, supra, note 13 at 105; Colvtn, supra, note 13 at 385-86.

66. For the various moral perspectives relevant to the notion of justification, see Dressier, supra, note 58; Greenawalt, supra, note 13.

67. See the references in supra, note 61.

68. Greenawalt, “Distinguishing Justifications from Excuses”, supra, note 13 at 107.

69. Ibid.

70. In a similar spirit see Colvin, supra, note 13 at 395-97. According to Smith, supra, note 5 at 13: “When the court decides that a defence applies it is no part of its duty to approve or disapprove of what has been done.”

71. Fletcher, supra, note 5 at 683-758; Fletcher, supra, note 55 at 971 -80; Fletcher, G. “Rights and Excuses” (1984) 3(2) Crim. Just. Ethics 17.CrossRefGoogle Scholar Robinson also classifies a mistake about justification as an excuse; nonetheless he claims that “it seems appropriate to permit a legislature to excuse some unreasonable mistakes as to justification” (Robinson, supra, note 5 at 410). Chapman [supra, note 5 at 80-81] points out the importance of classifying putative self-defence as an excuse.

72. “The Right and the Reasonable”, ibid, at 972.

73. For a critique of such an approach see Greenawalt, supra, note 13, at 1915-18; discussed at length by Byrd, supra, note 5 at 1301-20.

74. In a similar spirit see Colvin, supra, note 13 at 397-99.

75. See section 41 of the English draft Code, and section 3(17)(a) of the draft Code of Canada. See also the development in England in this context discussed by Smith at 103-07.

76. See section 3 (17)(b).

77. Williams, supra, note 5 at 741; G. Williams, supra, note 28 at 504.

78. Robinson, supra, note 5 at 20-21.

79. Fletcher, G. “The Right Deed For the Wrong Reason: A Reply to Mr. Robinson” (1975) 23 U.C.L.A.L. Rev. 253.Google Scholar

80. Smith, supra, note 5 at 28-44; Comment, “Justification: The Impact of the Model Penal Code on Statutory Reform” supra, note 34 at 917-18.

81. This view is reflected by the Model Penal Code in sections 3.02 (choice of evil) and 3.04 (use of force in self-protection), and by the Israeli draft Code, in sections 43 (private defence), 44 (duress) and 45 (necessity). On the other hand, according to section 44( 1) of the English Draft Code, “[a] person does not commit an offence by using such force as, in the circumstances which exist or which he believes to exist, is immediately necessary and reasonable...” [emphasis added]. The words “circumstances which exist” mean “which actually exist whether or not the person using force is aware of the factȁ, Law. Com. No. 177, supra, note 77, at 232

82. Fletcher, supra, note 79 at 320.

83. Ibid.

84. Chapman [supra, note 5 at 84) clarifies that “criminal law wrongdoing differs from private law wrong in that crime necessarily incorporates a conscious advertence to the denial of Right”. Therefore, the standards within the criminal law “must be subjective and cognitive”.

85. Gardner, supra, note 17 at 132-35, points out the “Democracy problem” inherent in necessity as a justification. The majority in Perka v The Queen (delivered by Dickson J.) held that to recognize necessity as a justification, as opposed to necessity as an excuse, “would invite the court to second-guess the Legislature and to assess the relative merits of social policies underlying criminal prohibitions. Neither is a role which fits well with the judicial function” (at 14). Wilson J., on the other hand, submits that “courts can and do recognize” necessity as a justification (at 35). However, the justification ought to be restricted to instances of conflicting duties; i.e., “where the accused’s act constitutes the discharge of a duty recognized by law” (at 36).

86. The requirement of an imminent danger appears in the draft Codes of England [section 43], Canada [section 3(9)] and Israel [section 45]

87. Robinson, supra, note 5 at 56-58. A requirement of an imminent danger does not explicit in section 3.02 of the Model Penal Code, which defines “Choice of Evils“.

88. Ibid, at 51

89. Ibid.

90. In this spirit, see Fletcher, supra, note 5 at 795

91. Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity (Official English translation) (1987), hereinafter cited as The Report. Excerpts from The Report were published at (1989) 23 Isr. L. Rev. 146.

92. The Report, ibid, at 17.

93. Ibid, at 60-61.

94. The Israel Law Review has devoted a special issue to a written academic symposium on The Report, see supra, note 91.

95. Dershowits, A.M. “Is It Necessary to Apply ‘Physical Pressure’ to Terrorists and to Lie about It”, ibid., 192 at 198 Google Scholar

96. Robinson, P. “Letter to Editor”, ibid. 189 at 190.Google Scholar

97. Kremnitzer, M. The Landau Commission Report—“Was the Security Service Subordinated to the Law, or the Law to the ‘Needs’ of the Security Service?”, ibid. 216 at 248–64;Google Scholar Robinson, ibid, at 189-90.

98. Robinson, supra, note 5 at 57.