1. Research for this paper was funded by a grant from the Connaught Programme in Legal Theory and Public Policy at the University of Toronto. I am grateful to the Programme for its support and to Alan Brudner,George Fletcher and Ernie Weinrib for helpful comments.

2. Aristotle, Nichomachean Ethics,(Ross trans.1925),at1110a.Google Scholar

3. Hobbes, T. Leviathan MacPherson, C.B. ed.Hobbes, 1968),at 345.Google Scholar

4. Where justifications focus on the propriety of the act, excuses concern the particular actor and whether or not it is appropriate that he be blamed or punished for his wrongful violation of the law. Thus, justified conduct, unlike conduct which is excused, is the sort of conduct that society is at least prepared to tolerate and may even encourage. For a good discussion of justifications and excuses (as well as other types of defenses in criminal law),seeRobinson, p. “Criminal Law Defences: Systematic Analysis” (1982),82 Columbia L.R. 199.The distinction between justifications and excuses, and its importance, has been accepted and much discussed by the Supreme Court of Canada. See Perka et al. v. The Queen (1984),14C.C.C. 385(S.C.C).CrossRefGoogle Scholar

5. Bentham’s general theory of punishment, and his specific account of excuses, is to be found in his Introduction to the Principles of Morals and Legislation, Ch. XIII, reprinted in Feinberg and Gross (eds.) Philosophy of Law (second edition, 1980), at 545–58.

6. Kant, I. The Metaphysical Elements of Justice (Ladd trans. 1965),at 41”42,Google Scholar

7. Ibid.,at 41. This argument looks very similar to that of Hobbes, supra, note 3, at 346: “ . . .a manwould reason thus, / / / doe it not, I die presently; if I doe it, I die afterwards; therefore by doing it, there is time of life gained” (emphasis in original). However, it is worth emphasizing that the essential thrust of Kant’s argument differs significantly from that of Hobbes as well as Bentham. Where the latter two theorists emphasize that conduct motivated by necessity is pointless because it is undeterable, Kant’s argument is that because the legal order is achieved in an essentially coerciveway, and is to be contrasted in this respect with the autonomy that comes by way of free, moral action, then the law qua tawcannot operate on someone in necessitous circumstances because such a person cannot be coerced by lawat all. For some excellent discussion of Kant’s argument, and of the defenceof necessity more generally, see A. Brudner,“A Theory of Necessity”, (1987) 7 Oxford Journal of Legal Studies 339.

8. Hart.“Legal Responsibility and Excuses”inhis Punishment and Responsibility 1968,at43.Evidencefor Hart’s reply is to be found in the fact that strict liability offenses are commonly justified by the claim that they are the only means to effective deterrence of certain kinds of behaviour. See Hart’s discussion in “Prolegomenon to the Principles of Punishment” in Id., at 20.Google ScholarPubMed

9. Fletcher, G. Rethinking Criminal Law (1978),at 841–17,Google Scholar

10. Packer, H. The Limits of the Criminal Sanction (1986),at 110.Google Scholar

11. See Kant,supra,note 6, at 100. “Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society... The law concerning punishment is a categorical imperative, and woe to him who rummages around in the winding paths of a theory of happiness looking for some advantage to be gained by releasing the criminal from punishment or by reducing the amount of it. . .”

12. Hart.“Legal Responsibility”supranote 8, at 44.Google Scholar

13. Id.,at46.

14. To these two disadvantages, Hart adds a third: that an individual would lose the satisfaction of being able to knowingly violate what he thinks is a bad or repressive law. See Id., at 47

15. Id.,at 44-45.

16. Of course, under a negligence regime, one is entitled to make“reasonable” mistakes. But then such an entitlement does not operate as an excuse, but rather as a denial that one has committed a tortious wrong.Equally, when necessity is invoked in tort, it does not operate as an excuse for wrongdoing, butas a claim that there is no wrongdoing, or no tort, at all. See Mouse–s Case (1608), 77 E.R. 1341.

17. See, for example, the references,supra, note 4, and further references cited therein.

18. Fletcher,supra, note 9, at 799.

19. Id., at 800. For a comparable account of excuses within the context of a utilitarian theory,seeBrandt, R. “A Motivational Theory of Excuses in the Criminal Law” in Criminal Justice(Pennock and Chapman, eds.1985).Google Scholar

20. Ibid.

21. See. for example, the discussion of seeParker, G. An Introduction to Criminal Law (1983),at160;Google Scholar andHall, J. General Principles of Criminal Law (1960),at93.Google Scholar

22. One might object, however, that he should be found guilty of attempted bigamy. And, indeed, the Houseof Lords seems to be prepared to support such a conviction. See Regina v. Shivpuri 11986] 2 All E.R. 334 (H.L.).However, I have argued that the House of of Lords is mistaken in holding to this view in my paper “Agency and Contingency: The Case of Criminal Attempts“ forthcoming in theUniversity of Toronto Law Journal (1988).

23. Fletcher, G. “The Individualization of Excusing Conditions” (1974).47.Southern California L.R..1269.at 1280.Also,Google Scholar seeFletcher, supra,note 9, at 807-–10.Google Scholar

24. Fletcher, “Excusing Conditions”supra,note 23, at 1283n.Google Scholar

23. The defence of contributory negligence also operates as a claim that a tort has not been committed by alleging that the plaintiff is the author of his own misfortune.

26. This example is borrowed fromFletcher, G.P. “The Right and the Reasonable,” (1985),98Harvard L.R. 949, at 972.Google Scholar

27. S. 34( 1) of the Canadian Criminal Code, R.S.C. 1970, c. C-34, as am. begins: “Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by force...”(emphasis added).

28. Assault would be one such example.

29. This explains in part why Sidgwick, H. has so much difficulty in accounting for the difference betweentort and crime.See his.The Elements of Politics (1929), at109–20.Peter Nicholson has argued that Hegel can account for a difference between tort and crime precisely because he avoids a quantitative distinction.Google Scholar See his “Hegel on Crime” (1982),3History of Political Thought 103,at 119.Google Scholar

30. Aristotle’s account of the forms of justice is in Book V,supra,note 2, at 1129a–l 138b.

31. The argument presented in this and the following two paragraphs owes much to the recent unpublished work of E.J. Weinrib. Of special significance are his two essays, “The Intelligibility of the Rule ofLaw”,in Hutchinson and Monahan (eds.), The Rule of Law: Ideal or Ideology? (1986), and “Legal Formalism“,forthcoming in Yale L. J. (1988).

32. Kant,supra,note 6, at 34.

33. Kant’s own demonstrations appear most vividly in his premier work on morality, Fundamental Principlesof the Metaphysic of Morals (Abbott trans. 1949), at 39-41. Onora Nell has devoted an entire book to showing that the formality of Kant’s theory does not undermine its fertility. See her Acting on Principle: An Essay on Kantian Ethics (1975).

34. Regina v. Shymkowich[1954] S.C.R. 606.

35. In The Philosophy of Right (Knox trans. 1967), at paras. 84 and 85, Hegel rightly concludes that suchadispute should be settled civilly, not criminally:Each person may look upon the thing as his property on the strengths of the particular ground on which he bases his title. It is in this way that one man’s right may clash with another’s. This clash which arises when a thing has been claimed on some single ground, and which comprises the sphere of civil suits at law, entails the recognition of Tightness as the universal and decisive factor, so that it is common ground that the thing in dispute shouldbelong to the party who has the right to it. The suit is concerned only with the subsumption of the thing under the property of one or the other of the parties – a straightforward negative judgment, where,in the predicate ‘mine’, only the particular is negated, (emphasis added)

36. Again, cf. Hegel, Id., at para. 95: The initial act of coercion asan exercise of force by the free agent, an exercise of force which infringes the existence offreedom in its concrete sense, infringes the right as right, is crime—a negatively infinite judgment in its full sense, whereby not only the particular (i.e. the subsumption under any will of a single thing) is negated, but also the universality and infinite in thepredicate ‘mine’ (i.e. my capacity for rights)... This is the sphere of criminal law. (emphasisadded)

37. Id.,at para. 220:Instead of the injured party, the injured universal now comes on the scene, and this has its proper actuality in the court of law. It takes over the pursuit and the avenging of crime . . . and is transformed into the genuine reconciliation of right with itself, i.e. into punishment.

38. Thus, of the four categories of mens rea identified in the Model Penal Code, only actions done “purposely”,“knowingly” or “recklessly”, and not those done “negligently”, are sufficient for a criminal law prosecution.This seems to accord with the views of the Law Reform Commission of Canada. See its TheGeneral Part —Liability and Defences(1982), at 25.

39. For this argument in detail, see Weinrib, “Liberty, Community and Corrective Justice”, (1988) 1 Canadian Journal of Law and Jurisprudence 3-17. That the objective standard of reasonableness was the appropriate standard for a negligence action was decidedin Vaughan v. Menlove(1837), 132 E.R. 490. The content of the objective standard was spelled out indetail by Judge Learned Hand, in U.S. v. CarrollTowing Co(1947), 159 F.2d 169 (2nd Cir. Ct.). For an argument that shows how this standard and its content are to be linked to the concept of Right, see Weinrib, “Toward a Moral Theory of Negligence Law” (1983), 2 J. of Law and Philosophy, 37.

40. Cf. Weinrib. “intelligibility”, supra, note 31, at 64, where Weinrib uses the word‘form’ instead of category,and the word ‘content’ instead of instance:Form and content are thus correlative and interpenetrating. If any content were formless, it would lack the very determination which would render it a something rather than nothing in particular, a content rather than an indetermediate existent. If a form, on the other hand, were without content, it would not be a form o/anything and therefore not a form at all. . . [F]orm is to be regarded as the content itself under the aspect of its intelligibility.

41. Fletcher, “Excusing Conditions”supra,note 23. at 1283nGoogle Scholar

42. Packer,supra,note 10. at 118, makes a similar argument: “The law that exacts more of an individual than its framers could give under the same circumstances is simply hypocritical”.

43. Reasonableness becomes particularly important as a standard in the excuse of mistake. However, it is only relevant if the mistake is being offered as an excuse, as in theDan v. Allan debacle, supra, text at note 26.Here the subject matter of the mistake is a justification, in particular the justification of self—defence. Thus,the mistake goes to something outside the definition of the offence.However, reasonableness is not required if the mistake is not offered as an excuse but goes instead to a constituent element of the offence. The paradigmatic case is the taking of another’s umbrella thinking it is one’s own. Here, as inShymkowich, supra, note 32 the accused’s claim is really that his conduct amounts only to a mistake over the boundaries of title, not to the denial of title itself. Without therequisite mens rea, therefore, it is inappropirate for the state to take action against him. Thus, itis sufficient that his mistake actually negate mens rea, that is, that it be honest. It need not alsobe reasonable

44. Fletcher,supra, note 26 at 951.

45. Ernest Weinnb has made this point against Fletcher. See his “Law As A Kantian Idea of Reason”. (1987). 87 Columbia L. R. 472, at 475–76.