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5 - Does Duress Justify or Excuse?

The Significance of Larry Alexander’s Ambivalence

from Part I - Puzzles in Criminal Law

Published online by Cambridge University Press:  02 November 2018

Heidi M. Hurd
Affiliation:
University of Illinois
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Summary

A majority of commentators regard duress as an excuse rather than a justification. Yet that is problematic on its face. Actions under duress share no family resemblance with complete excuses like insanity, involuntary intoxication, infancy, and mistake – all of which involve subjective cognitive and/or volitional deficits that are distinctive to individuals; all of which operate by negating society’s reactive emotions of resentment for conduct that is condemnable; and all of which provide complete excuses, regardless of how horrific an actor’s conduct. Actions under duress resemble complete justifications like the lesser evils defense and self-defense – all of which (i) involve competent moral agents who, while under the pressure of hard choices, intentionally and nonmistakenly harm others in order to benefit themselves or their own; (ii) obtain only when offenses are objectively proportional in some way to the harms with which actors are threatened; and (iii) are universalizable to all persons facing such choices.
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Chapter
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Moral Puzzles and Legal Perplexities
Essays on the Influence of Larry Alexander
, pp. 76 - 97
Publisher: Cambridge University Press
Print publication year: 2018

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