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42 Tex. Tech L. Rev. 321 (2009-2010)
Is There Really a Difference between Justification and Excuse, or Did We Academics Make it up

handle is hein.journals/text42 and id is 325 raw text is: IS THERE REALLY A DIFFERENCE BETWEEN JUSTIFICATION AND EXCUSE, OR DID WE ACADEMICS MAKE IT UP? Linda A. Malone* [T]hose who engage in philosophical debate first kick up the dust and then complain that they cannot see.1 In 1986, Don Horowitz of Duke Law School published an article entitled Justification and Excuse in the Program of the Criminal Law in Law and Contemporary Problems.2 Professor Horowitz's article was, in part, a response to an article in the same issue by Kent Greenawalt of Columbia Law School on distinguishing justifications from excuses.3 I found Professor Horowitz's explanation of the difference between justifications and excuses to be very compelling and convincing. Unfortunately, his predictions for the direction of justifications and excuses in the criminal law are fundamentally off the mark today. That led me to wonder: Is it possible to engage in an academically correct analysis, which nevertheless leads to incorrect predictions when it comes to justifications versus excuses, with the shifting social paradigms of the importance of culpability versus harm? Professor Horowitz critiques Greenawalt's approach as suffering from premature evaluation. Greenawalt characterizes warranted action as central to justification and nonresponsibility as central to excuse.6 According to Horowitz, this characterization moves duress and necessity into the borderland between justification and excuse and away from being classified as excuses because both defenses can be characterized as warranted conduct or actions by a nonresponsible actor.7 If nonresponsiblity is equated with lack of choice, then insanity can also be * Marshall-Wythe Professor of Law, William and Mary Law School. This Article is based upon the author's participation in the 2009 Criminal Law Symposium: Excuses and the Criminal Law, held at Texas Tech University School of Law on April 3, 2009. The author would like to thank her friend and colleague Professor Don Horowitz, who always seems to be at both the ground level and the frontier of every issue in our shared fields of scholarship, for his input into this Article. 1. Donald L. Horowitz, Justification and Excuse in the Program of the Criminal Law, 49 LAW & CONTEMP. PROBS. 109, 109 (Summer 1986). 2. Id. 3. Kent Greenawalt, Distinguishing Justfications from Excuses, 49 LAW & CONTEMP. PROBS. 89, 90 (Summer 1986). 4. See Horowitz, supra note 1, at 116-20. 5. Id. at 109. 6. Id. 7. See id.