Criminal Law and Philosophy 11 (1):97-110 (2017)

Re'em Segev
Hebrew University of Jerusalem
Criminal prohibitions typically forbid harming people. Justificatory defenses, such as lesser evil, justifying necessity and justifying self-defense, provide exceptions to such prohibitions if certain conditions are met. One common condition is that the agent is not responsible for the conflict. The questions whether justificatory defenses should include such a condition, and if so what should be its content, are controversial. I argue that responsibility for a conflict counts against protecting the responsible person at the expense of a non-responsible or a less-responsible person, but that this consideration is not necessarily decisive but rather might be outweighed by another consideration, for example, in favor of preventing the more serious harm. I conclude that responsibility for the conditions of justificatory defenses raises a unique question whose proper resolution should be based on the interaction of several general considerations.
Keywords Responsibility  Justification  Defenses  Lesser evil  Self-defense
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DOI 10.1007/s11572-014-9361-y
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