¹ In what follows, we discuss the more elaborate and original attempts to conceptualize partial justification, but these are by no means the only examples of the use of the term. More often than not, the existence of a notion of partial justification is simply stated or assumed rather than defended or clarified. See, most strikingly, Staihar, Jim, A New Systematic Explanation of the Types and Mitigating Effects of Exculpatory Defenses, 12 New Crim. L. Rev. 205 (2009)Google Scholar, at 222 (assuming the availability of partial justification without explaining or illustrating this point, in what is otherwise a lengthy and highly illustrated taxonomy of criminal law defenses).

² That is not to say that wrongdoing is not graded. We discuss the confusion between the practice of offence grading and the notion of partial justification below, under conception 2.

³ Alternatively, the proponents of partial justification could have devised or defended alternative concepts of full justification to accord with their various proposed notions of partial justification. Thus a sound concept of partial justification in criminal law may be devised either (partially) to coincide with the characteristics of full justification as commonly understood, or against the backdrop of a novel or unique conceptualization of full justification. Neither course is taken by the commentators on partial justification, who either explicitly endorse the common interpretation and implications of justification (neglecting to test their applicability to partial justification) or fail to discuss them altogether in their account of partial justification.

⁴ Although lack of capacity is more aptly classified as an exemption rather than excuse.

⁵ Most notably in H.L.A. Hart, Punishment and Responsibility (1968), at 152.

⁶ See George P. Fletcher, Rethinking Criminal Law (1978), at 799–802 (“The only way to work out a theory of excuses is to insist that the excuse represents a limited, temporal, distortion of the actor's character.”).

⁷ On the variety of excusing conditions, see Austin, J.L., A Plea for Excuses, 57 Proc. Aristotelian Soc’y 1 (1956)Google Scholar, at 2. Much has been written on the subject of conceptualizing excuses. For a survey, see Baron, Marcia, Excuses, Excuses, 1 Crim. L. & Phil. 21 (2007)Google Scholar.

⁸ The benchmark of proportionality is used here for the purpose of simplicity. But society may deem, for whatever moral reasons, that some deviation from proportionality in self-defense is permissible or even right. In this case, the demarcation between justification and excuse shifts to the line between allowed and disallowed disproportionality.

⁹ The distinction, as we draw it, is a common one and can be found, e.g., in Robinson, Paul H., A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability, 23 UCLA L. Rev. 266 (1975)Google Scholar, at 274–275; Fletcher, supra note 6, at 759–875; and John Cyril Smith, Justification and Excuse in the Criminal Law (1989), at 8–12. This manner of drawing the distinction is also predominant in the articles discussed below.

¹⁰ See Fletcher, supra note 6, at 759; Dressler, Joshua, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 Crim. L. & Criminology 421 (1982)CrossRefGoogle Scholar, at 437; Husak, Douglas N., Justifications and the Criminal Liability of Accessories, 80 Crim. L. & Criminology 491 (1989)CrossRefGoogle Scholar, at 496–497. For an alternative way of stating the same idea, see Paul H. Robinson, Criminal Law Defenses (1984), at 101 (“Acts are justified; actions are excused.”).

¹¹ For the application of this well-known distinction in the context of justifications and excuses, see Fletcher, supra note 6, at 810–813; Husak, supra note 10, at 508; Paul H. Robinson, Structure and Function in Criminal Law (1997), at 226–229; Gardner, John, The Gist of Excuses, 1 Buff. Crim. L. Rev. 575 (1998)CrossRefGoogle Scholar, at 597; Berman, Mitchell N., Justification and Excuse, Law and Morality, 53 Duke L.J. 1 (2003), at 32–37Google Scholar.

¹² George Fletcher shows that the universal implication is grounded in various criminal codes. See Fletcher, supra note 6, at 760–761. For support of the universal implication, see also Eser, Albin, Justification and Excuse, 24 Am. J. Comp. L. 621 (1976)CrossRefGoogle Scholar, at 622; Robinson, Structure, supra note 11, at 105–106; Finkelstein, Clair O., Self-Defense as a Rational Excuse, 57 U. Pitt. L. Rev. 621 (1996)Google Scholar, at 644. Although universality is a typical attribute of justification, it is not a necessary attribute of every justified act. Particularly, it does not apply where justification is afforded not because of a favorable balance of evils but to uphold an important interest, such as fulfilling a personal duty conferred on the agent but not privileging third parties to come to his aid. See Greenawalt, Kent, The Perplexing Borders of Justification and Excuse, 84 Colum. L. Rev. 1897 (1984)CrossRefGoogle Scholar, at 1918–1925; Husak, supra note 10, at 517–518; Berman, supra note 11, at 62–64. As shown below, although universality is a typical feature of complete justification, it does not apply at all to what has been termed partial justification.

¹³ For a compelling analysis according to which an objective understanding of justification may lead to a paradox, leaving both parties to a conflict justified and unjustified at the same time, see Christopher, Russell, Mistake of Fact in the Theory of Justification: Do Two Rights Make Two Wrongs?, 85 Crim. L. & Criminology 295 (1994)CrossRefGoogle Scholar. If the standard for examining the availability of justification is subjective, then intervention by third parties is decided according to the third parties’ states of mind, i.e., based on their belief as to the justification of the conduct subject to their interference. If they interfere with conduct they believe to be unjustified, they may be justified in so doing. See Duff, R.A., Rethinking Justifications, 39 Tulsa L. Rev. 829 (2004), at 830Google Scholar.

¹⁴ In contrast, Gur Arye maintains that the universal attribute of justification should extend to excuse; Gur Arye's concept of justification is consistent with the common view of that term, as reflected in the text. See Arye, Miriam Gur, Should a Criminal Code Distinguish between Justification and Excuse?, 5 Can. J.L. & Juris. 215 (1992)CrossRefGoogle Scholar.

¹⁵ However, accepting Gur Arye's contention that the attributes of justification should extend to excuses renders some of our arguments against partial justification applicable to partial excuse.

¹⁶ See, most famously, Suzanne Uniacke, Permissible Killing: The Self-Defence Justification of Homicide (1994), at 13–14.

¹⁷ Thus, under utilitarianism, “utility is the ultimate source of moral obligations, utility may be invoked to decide between them when their demands are incompatible.” Mill, John Stuart, Utilitarianism, in Utilitarianism, Liberty, Representative Government 1 (Lindsay, A. ed., 1910)Google Scholar, at 24. The same would hold for rule utilitarianism, under which an act is either in accord with the rule or it is not.

¹⁸ Traditional utilitarianism may set the standard quite high, being concerned with best, not merely favorable options.

¹⁹ Thomas Nagel, Mortal Questions (1979), at 67. Absolute deontology may, however, leave space for excusing or pardoning the agent who could not live up to the deontological standard. This possibility is discussed in Haksar, Vinit, Necessary Evil: Justification, Excuse or Pardon?, 5 Crim. L. & Phil. 333 (2011)Google Scholar, at 337–341.

²⁰ Austin, supra note 7, at 2.

²¹ Greenawalt, Kent, Distinguishing Justifications from Excuses, 49 Law & Contemp. Probs. 89 (1986)CrossRefGoogle Scholar, at 105.

²² Or, in other words, this account replaces the notion of the act being right with the alternative notion of the agent having a right to do it. See Dressler, Joshua, Why Keep the Provocation Defense? Some Reflections on a Difficult Subject, 86 Minn. L. Rev. 959 (2002)Google Scholar, at 971 (“Either a person has a right to act in a certain way or he does not”).

²³ Thus Greenawalt's account of partial justification, as discussed below under conceptions 1 and 2, cannot be defended on the ground of his conceptualization of the justified as permissible rather than good or right.

²⁴ John Gardner, Offences and Defences (2007), at 255.

²⁵ Herbert Morris, On Guilt and Innocence (1976), at 55.

²⁶ Alexander, Larry, Self-Defense, Justification and Excuse, 22 Phil. & Pub. Aff. 53 (1993)Google Scholar, at 60–64.

²⁷ Austin, supra note 7.

²⁸ See also the discussion supra note 1.

²⁹ Greenawalt, Distinguishing, supra note 21, at 92–93.

³⁰ Id. at 92.

³¹ For a critical discussion of criminal law's employment of different levels of individuation in order to justify different outcomes, see Kelman, Mark, Interpretive Construction in the Substantive Criminal Law, 33 Stan. L. Rev. 591 (1981)CrossRefGoogle Scholar.

³² Supra, text to note 11.

³³ We qualify this statement because in a minority of cases it is useful to join several discrete acts into one account, as when an earlier act produces an obligation to evade a later omission, or when a series of acts constitute a single offence of sexual harassment. Note that such compound offences amalgamate multiple wrongful phases and no redeeming acts (and even if they did contain redeeming acts, other objections to terming them partial justifications, as appear in the text, would apply).

³⁴ A different conceptualization of partial justification holds that it is the initial attack on the agent by the victim-to-be, and not the justified first phase of the agent's retaliation, that renders the agent's conduct partly justified. This line of reasoning is discussed in the following three sections.

³⁵ Simons, Kenneth W., The Relevance of Victim Conduct in Tort and Criminal Law, 8 Buff. Crim. L. Rev. 541 (2005)CrossRefGoogle Scholar.

³⁶ Id. at 547.

³⁷ Or, more accurately, fully allowed because at this stage no offence has been committed and therefore no justification needs be invoked.

³⁸ The analysis holds even if the law affords only one general offence of nonconsensual sexual contact, which does not differentiate between the act consented to in Simons's illustration and intercourse. There, too, the offence is aimed at the nonconsensual intercourse, and consent to some level of intimacy may constitute a mitigating factor.

³⁹ See id. at 547–548, offering such rationales for mitigation as partial excuse and a less culpable mental state.

⁴⁰ Supra, text to note 12.

⁴¹ As shown below, blame, unlike justification, is a scalar notion.

⁴² Alternatively, one may choose to discard the universality of justification, but this would mean taking away an important reason for adopting the nomenclature of justification (and therefore partial justification) to begin with. See also supra note 3.

⁴³ Greenawalt, supra note 21, at 92 [emphasis in the original].

⁴⁴ Greenawalt's illustration is akin to the theory of partial justification according to which action based on justified motives may be partially justified. We discuss the merits of this theory below, under conception 4. Here we focus on Greenawalt's general claim that action that is not as wrongful as it might otherwise have been is partially justified.

⁴⁵ Greenawalt, Distinguishing, supra note 21, at 92. This rationale preempts Douglas Husak's more robustly articulated “unifying hypothesis,” according to which partial defenses that have an analogue in a full justification are partial justifications (discussed below under conception 6).

⁴⁶ Greenawalt, Distinguishing, supra note 21, at 92.

⁴⁷ We return later to the question of rationalizing provocation, particularly in the discussion of conception 8.

⁴⁸ Note, however, that some instances of homicide are categorized as manslaughter and not murder owing to the diminished capacity of the accused. In these cases it may be said that the category of murder is ill-fitting because of a partial excuse of the doer and not because of a justification of the deed. But even in these cases, the conduct is not as wrongful as it could have been, as the accused, in addition to being partly incapacitated, could have acted more wrongfully than he did, e.g., out of worse motives. Thus we may say that according to Greenwalt, all acts of manslaughter would be considered partially justified murders.

⁴⁹ Greenawalt may respond that when he talked about partial justification, he did not mean to grade the mental element but rather the reasons and motives for action, which are not part of the definition of the offence and are generally used as a basis for some defenses. If his claim is indeed limited in this way, it falls under conception 4, discussed below.

⁵⁰ Considering how faulty this account of partial justification is, it is surprising to find it frequently adopted by commentators and repeatedly restated in the literature. Some notable examples are Bergelson, Vera, The Right to Be Hurt: Testing the Boundaries of Consent, 75 Geo. Wash. L. Rev. 165 (2007)Google Scholar, at 222 (claiming that when the victim's consent does not serve as a full defense, it may be a partial justification in the following sense: “Partial justification does not make a wrongful act right; it merely renders the act less wrongful compared to what it would have been in the absence of the mitigating circumstance.”); Morse, Stephen J., The Irreducibly Normative Nature of Provocation/Passion, 43 U. Mich. J.L. Reform 193 (2009)Google Scholar, at 202 (“If provocation/passion is a partial justification, then it is a claim that a killing in these circumstances is less wrong and more acceptable than if there were no or inadequate provocation deserving of a return.”); and see, most recently, Berman, Mitchell N. & Farrell, Ian P., Provocation Manslaughter as Partial Justification and Partial Excuse, 52 Wm. & Mary L. Rev. 1029 (2011)Google Scholar, at 1083–1084, claiming:

Our response is that a more suitable analogy than fullness or emptiness is provided by the field of thermodynamics. A liquid can be characterized as hotter or colder, but boiling means crossing a certain threshold. So does conduct; it can be more or less wrongful, but for it to be justified it must cross the threshold that would make it right or permissible. Within the framework of criminal law, referring to “partial justification” is a misguided use of terminology, similar to the colloquialism that the water in the kettle has “partially boiled.”

⁵¹ As we see in the discussion of conception 1, above.

⁵² What counts as proportional retaliation or intervention may shift downward in some instances, but this is consistent with the conduct responded to being less wrongful, not partially justified.

⁵³ Rozelle, Susan D., Controlling Passion: Adultery and the Provocation Defense, 37 Rutgers L.J. 197 (2005)Google Scholar.

⁵⁴ Id. at 233.

⁵⁵ Supra, text to note 18.

⁵⁶ Garvey, Stephen P., Passion's Puzzle, 90 Iowa L. Rev. 1677 (2005)Google Scholar.

⁵⁷ Id. at 1696.

⁵⁸ Id. at 1696.

⁵⁹ Id. at 1696–1697.

⁶⁰ Garvey, too, is critical of the “disproportionate response” theory, but his line of criticism is directed at the inability of the theory to explain the requirements of passion and reasonable loss of self-control explicit in the prevalent doctrine of provocation (id. at 1698). We may add that this theory also shifts the limits of the requirement of adequate provocation because of its insistence that adequate provocation is one that justifies the use of force by the state.

⁶¹ We assess this type of counterfactual analysis in greater depth when discussing conception 6 below.

⁶² Garvey, supra note 56, at 1694. Implicit in this discourse is the distinction between conduct rules and rules of adjudication. As shown above (text to note 11), justifications are generally categorized as the former, excuses as the latter. For Garvey, the law “continues to insist that he not express his anger with lethal violence” (rule of conduct), but would treat him as “less culpable” if he does (rule of adjudication). This places provocation in the realm of the rules of adjudication, and therefore it would be more suitable to classify provocation as an excuse rather than a justification.

⁶³ Supra, text to note 56.

⁶⁴ Garvey, too, finds this leap puzzling. He airs his concerns in footnote 57 of his article, noting that “the logic of permission is all-or-nothing.” This, however, does not prevent him from making extensive use of the term “partial justification” throughout his article. See Garvey, supra note 56, at 1693.

⁶⁵ Similarly, euthanasia is killing based on a good motive, but it is to be deemed permissible or impermissible; if it is the latter, it can and should be a lesser wrong than murder performed out of base motives. This is not to be confused with partial justification.

⁶⁶ Bennett, Christopher, Excuses, Justifications and the Normativity of Expressive Behaviour, 32 Oxford J. Legal Stud. 563 (2012)CrossRefGoogle Scholar.

⁶⁷ Id. at 566.

⁶⁸ Similarly to Bennett's, Pilsbury's preferred account of provocation is that “the defendant's motivating passion—his or her fear or anger toward the victim—was justified.” Pilsbury, Samuel H., Misunderstanding Provocation, 43 U. Mich. J.L. Reform 143 (2009)Google Scholar, at 146 (and see generally 146–148). Unlike Bennett, Pilsbury would probably not hold too strongly to the partial justification terminology, given his opening statement in the article: “I disagree that determining whether provocation is a partial excuse or a partial justification is important for criminal law” (id. at 143).

⁶⁹ As the latter hypothetical suggests, Bennett frames his understanding of justificatory defenses in broad terms, referring to normatively mitigating reasons that would affect the nature of the offence: “justification is a normative consideration . . . that lessens, or perhaps cancels, the wrongness of the agent's action.” See Bennett, supra note 66, at 565. This understanding risks losing or at least obscuring an important concept in criminal law: that of justification, strictly speaking.

⁷⁰ Id. at 569.

⁷¹ Id. at 565.

⁷² If it is nevertheless a common reaction (generally or for people of the agent's makeup), it may serve to excuse the provoked.

⁷³ See supra, text to note 12.

⁷⁴ Husak, Douglas N., Partial Defenses, 11 Can. J.L. & Jurisprudence 167 (1998)CrossRefGoogle Scholar.

⁷⁵ Id. at 172. And see the discussion of Gardner, supra, text to note 24.

⁷⁶ Husak, Partial, supra note 74, at 172.

⁷⁷ Or perhaps Black is only merciful, as he did not do any wrong that warrants justification.

⁷⁸ As discussed in the last section above.

⁷⁹ Husak, Partial, supra note 74, at 177–186. Husak notes that partial excuses and partial justifications do not exhaust the category of mitigating factors. Some mitigating factors have to do with the offence, some with the offender, and yet others with the efficiency of the process of criminal law (e.g., cooperating with the police or pleading guilty at trial) (id. at 168–169). For Husak, a factor does not count as a partial justification if it is an element of the offence, and in its absence a different offence, if any, would apply. In this respect, Husak views provocation not as a partial defense but as a full defense to the charge of murder. To Husak, partial justifications are only mitigating factors in sentencing (id. at 175–176). Husak defends his view of partial justifications in Husak, Douglas, “Broad” Culpability and the Retributivist Dream, 9 Ohio St. J. Crim. L. 449 (2012)Google Scholar, at 461–462.

⁸⁰ Husak, Partial, supra note 74, at 177.

⁸¹ Id. at 170.

⁸² Id. at 170.

⁸³ Id. at 170–171.

⁸⁴ Husak identifies this shortfall in Husak, “Broad,” supra note 79, at 462.

⁸⁵ Strafgesetzbuch [StGB] §§34–35.

⁸⁶ Husak, Partial, supra note 74, at 184–185.

⁸⁷ The precise benchmark of justification is of no particular consequence to the analysis. See supra note 8.

⁸⁸ Segev, Re’em, Sub-Optimal Justification and Justificatory Defenses, 4 Crim. L. & Phil. 57 (2010)Google Scholar, at 58. See similarly, id. at 69:

⁸⁹ Again, this is similar to the difference between heating and boiling: boiling is a point, and heating is a gradual or scalar process; “partially boiled” is not a useful term in thermodynamics and it is not consistent with theory. See supra, note 50.

⁹⁰ Occasionally Segev uses the more careful term “almost—but not strictly—justified.” We find this to be a telling sign that he is not wholeheartedly convinced of the scalar notion of justification, as opposed to wrongfulness. See, for example, Segev, supra note 88, at 58.

⁹¹ Similarly, see Morse, supra note 50, at 204 (“If the defendant's honest belief is unreasonable, he is partially justified.”).

⁹² The idea that unreasonable belief about the availability of a justification may serve an excuse grounds the position of the German Criminal Code; see Strafgesetzbuch [StGB] §35.

⁹³ Segev, supra note 88, at 64.

⁹⁴ Perhaps the best-known defense of provocation as a partial justification is McAuley, Finbarr, Anticipating the Past: The Defence of Provocation in Irish Law, 50 Mod. L. Rev. 133 (1987)CrossRefGoogle Scholar. Dressler claims that McAuley reaches his conclusion that provocation is based on partial justification and not partial excuse because of his flawed and restricted conception of excuse as applying only to cases in which the actor is denied any other option of conduct, such as insanity or automatism; see Dressler, Joshua, Provocation: Partial Justification or Partial Excuse?, 51 Mod. L. Rev. 467 (1988)CrossRefGoogle Scholar, at 470–471.

⁹⁵ Bergelson, Vera, Victims and Perpetrators: An Argument for Comparative Fault in Criminal Law, 8 Buff. Crim. L. Rev. 385 (2005)CrossRefGoogle Scholar; Simons, supra note 35; Pilsbury, supra note 68; Berman & Farrell, supra note 50. The originator of this position is Andrew Ashworth, who articulates the oft-cited opinion that “the doctrine of provocation as a qualified defence rests just as much on notions of justification as upon the excusing element of loss of self control.” Ashworth, A.J., The Doctrine of Provocation, 35 Cambridge L.J. 292 (1976)CrossRefGoogle Scholar, at 307. It seems that Ashworth's followers take his position too literally. Unlike his followers, Ashworth is quick to clarify that his use of partial justification “does not necessarily imply a connection with the legal concept of justifying force (i.e., in self defence): its closest relationship is with the moral notion that the punishment of wrongdoers is justifiable” (id. at 307).

⁹⁶ Furthermore, the connection between the victim's wrongdoing and the reduced sentence offered to his killer need not be based on the notion of justification; indeed, the fact that the victim is partially at fault may provide reasons other than partial justification to mitigate punishment. For example, the victim's fault in provoking the agent may be understood as contributive to a comparative fault calculus, meaning that the agent's sentence is mitigated in order to balance the incentives provided to both the provocateur and the killer. Harel, Alon, Efficiency and Fairness in Criminal Law: The Case for a Criminal Law Principle of Comparative Fault, 82 Calif. L. Rev. 1181 (1994)CrossRefGoogle Scholar, at 1216.

⁹⁷ Ashworth, supra note 95, at 307.

⁹⁸ Id. at 307.

⁹⁹ See, e.g., Bergelson, Victims, supra note 95, at 475.

¹⁰⁰ Dressler, Rethinking, supra note 10, at 457; Simons, supra note 35, at 557. Even if we concede that the provocateur did partially forfeit his right to life, this would mean only that the agent had some justification for his action, which does not render him partially justified (see conception 3), or that killing a provocateur is less wrongful than killing a nonprovocateur, which is different from being partially justified (see conception 2).

¹⁰¹ This means that Berman and Farrell are wrong to ascribe the dominance of the view of provocation as excuse simply to the overemphasis in legal literature on the subjective, heat-of-passion prong of the doctrine. See Berman & Farrell, supra note 50, at 1047–1049. Incidentally, elsewhere in their article, Berman and Farrell admit that their theory of accumulating partial justification and partial excuse as the combined rationale of provocation doctrine falls short of explaining the requirement for a causal relationship between the provocative act and the heat of passion. But they say that this requirement can be explained as good practical sense or good policy (id. at 1104–1105). As noted above, the same can be said of the requirement for adequate provocation.

¹⁰² Dressler, Provocation, supra note 94, at 474–475. Dressler articulates this view some years earlier, in Dressler, Rethinking, supra note 10, at 464–465; followed by Harel, supra note 96, at 1214; Garvey, supra note 56, at 1700; and Morse, supra note 50, at 194–195.

¹⁰³ Jeremy Horder, Excusing Crime (2004), at 28–29.

¹⁰⁴ Ashworth, supra note 95, at 311.

¹⁰⁵ Another alternative, less discussed in the literature, is evidentiary, viewing the objective factor as a proxy for a mental emotion or state.

¹⁰⁶ It should be remembered that provocation could have been simply a mitigating factor in sentencing and not a partial defense were it not for the generally applied mandatory (or minimum) sentence for a murder conviction (or murder in the first degree) or for the special gravity of the label “murderer.”

¹⁰⁷ See Richard Taylor, The Nature of “Partial Defences” and the Coherence of (Second Degree) Murder, [2007] Crim. L. Rev. 345, at 346–347. This analytical possibility is contingent upon the legal system demarcating the two offences, murder and manslaughter, and it therefore has no far-reaching theoretical implications.

¹⁰⁸ Ashworth, supra note 95, at 292. Taylor advocates including or articulating, within the definition of murder, the elements of that offence that defenses such as provocation may be regarded as negating. Taylor, supra note 107, at 346. Provocation doctrine would thus not be exculpatory but inculpatory and understood as a method of categorizing levels of culpability into either murder or manslaughter. For this opinion, see also Husak, Partial, supra note 74, at 175–176; Garvey, supra note 56, at 1683–1684.

¹⁰⁹ Some stage of the conduct is justified; the conduct is not as wrongful as it could have been; the conduct enjoys some justification; the conduct is based on a justified emotion; some characteristic of the conduct finds its analogue in a complete justification; the conduct is spawned from an unreasonable belief in the existence of a complete justification; the conduct enjoys a partial defense consisting of objective elements.