2.1. During an unjust regime

A legal positivist such as Hart, who rejects Radbruch's Formula, would regard an intolerably unjust law as legally valid as long as the criteria in the regime's rule of recognitionFootnote ¹¹ are satisfied. During an unjust regime, judges hearing cases in which individuals have valiantly disobeyed an intolerably unjust law may choose to stay true to their moral obligation not to punish individuals who do what is morally right and disobey the law. Legal positivists recognise this tension between the legal and the moral: Hart notes that Austin and Bentham believed that there would be a plain moral obligation to resist laws that reached a certain degree of iniquity, but legal positivists maintain there remains a legal obligation.Footnote ¹²

In contrast, if Radbruch's Formula is affirmed, intolerably unjust laws are legally invalid. Conceptually, Radbruch's Formula gives judges a legal justification to strike down an intolerably unjust law. In practice, judges may be reluctant to invoke Radbruch's Formula while the unjust regime prevails out of fear of repercussion. Consider Rule X and the case of an individual prosecuted for failing to report the neighbour. According to Radbruch's Formula, the individual should not be punished; the Formula offers better protection for individuals wishing to do right. Judges can serve as counter-majoritarian checks against majorities in the populace working through elected legislatures to enact intolerably unjust laws in very limited instances, particularly when creative statutory interpretation solutions to get around intolerably unjust laws are not available. While it can sometimes be difficult to assess whether injustice to an intolerable degree is present, the mere risk of overreach in some scenarios provides no good reason to reject judicial action in all cases. There may also be cases where individuals complied with Rule X. Applying Radbruch's Formula, Rule X is not legally valid. Their acts lack the justification of law; their acts amount to abetting genocide or murder.Footnote ¹³ In theory, such individuals can be punished under subsisting criminal laws for abetting the crime of murder.Footnote ¹⁴ Prosecution is unlikely in practice if the executive branch of government is ad idem with the legislative branch. During the rule of an unjust regime, Radbruch's Formula is more likely to be invoked to exonerate those who refused to comply than to prosecute those who did comply. Since it is when individuals who complied with intolerably unjust laws are prosecuted that the two conundrums arise, the two conundrums are more likely to arise in a transitional justice situation. We shall therefore focus on the transitional justice context.

Before moving on to consider this in the transitional justice context in Section 2.2, however, it bears mentioning that interpretive approachesFootnote ¹⁵ apart from Radbruch's Formula may be employed by good judges in unjust regimes in seeking to interpret such laws to achieve outcomes that serve justice. Dyzenhaus, for instance, notes that the resort to purposive approaches rather than supra-positive laws might be possible in some cases.Footnote ¹⁶ If so, a good judge in an unjust regime who engages in a creative interpretation of the law might exonerate a valiant individual who refuses to comply with an intolerably unjust law, without having to resort to Radbruch's Formula. The focus of this article, however, is on transitional justice by a tribunal in a successor regime. We are therefore concerned with cases where individuals complied with intolerably unjust ‘laws’ and had already committed heinous acts out of fear of being punished for non-compliance in the predecessor regime.

2.2. Transitional justice by a tribunal in a successor regime

According to Radbruch's Formula, Rule X was not legally valid in the predecessor regime. A tribunal effecting transitional justice in a successor regime may consider using the subsisting criminal law to punish individuals who complied with Rule X for abetment to murder or genocide. Punishment is not retroactive in substance because Rule X was not law during the predecessor regime's rule, which means that someone who reported their neighbour did not have legal justification for doing so. Thus, a then-subsisting criminal law provision, such as abetment to murder by assistance, could be resorted to in order to prosecute.

Rejecting Radbruch's Formula would mean that punishing individuals who complied must be undertaken through retroactive laws.Footnote ¹⁷ The act was properly justified by law when committed. Retroactive punishment is generally regarded as unfair, and punishment might not be pursued. As noted by HartFootnote ¹⁸ in his debate with Fuller,Footnote ¹⁹ there is a moral dilemma: the good to be served by punishment must be considered alongside the unfairness of retroactive laws.

Sometimes, subsisting criminal laws may not be appropriate or available for punishing individuals. Elements of existing offences may not be satisfied,Footnote ²⁰ or it might be argued that abetment by genocidaires should not be trivialised by treating it as abetment to murder. However, Radbruch's Formula remains conceptually important. Individuals of the state have participated in acts of intolerable injustice, which are not justified by law. Prosecution can be supported by customary international law norms today, or by the formulation of a crime against humanity (as was done in the Tokyo and Nuremberg tribunals in the 1940s),Footnote ²¹ or common law criminal law, which arguably can be resorted to as extremely heinous acts have been committed.

If punishment is pursued as a matter of transitional justice after the unjust regime has been replaced, the two conundrums arise. I shall argue that widespread endorsement of Radbruch's Formula, alongside well-known instances of historical atrocities such as those perpetrated by the Nazi regime, render the first conundrum – stemming from the individual's claim that they believed they were complying with law – of less concern because that claim becomes less tenable today. As for individuals acting under duress during an unjust regime, some individuals would be torn between their moral obligation to refrain from heinous acts and their concern that judges in the unjust regime might not apply Radbruch's Formula and might punish them for failure to comply. Adding the threat of future punishment as a matter of transitional justice might in fact incentivise them to do right. The result is that even the most pragmatic individuals, who are otherwise willing to put aside their moral sense, might resist such laws out of fear of being punished in future as a matter of transitional justice. It would help to ensure that perpetrators of heinous injustice cannot realistically use the instrument of law to carry out their objectives. Atrocities would have to be committed outside the law, through brute force, laying bare their unjustifiable nature. Individuals and the legal profession might resist intolerably unjust laws, or pockets of civil resistance might arise against the brute force of the government if atrocities are committed outside the law. While Radbruch's Formula cannot prevent unjust regimes from coming about, its supporters are not necessarily guilty of the naivety of which Hart accuses them when he observes that the positivistic slogan acquired a sinister character only in Nazi Germany, but elsewhere went with the most enlightened attitudes.Footnote ²² One counts on the resistance towards intolerably unjust laws at the very onset of such unjust regimes if Radbruch's Formula is widely endorsed, such that we would not be willing to countenance the validity of intolerably unjust laws.

I should add that Radbruch himself might have been inclined to grant a concession to individuals who complied. In considering judicial practice towards ‘statutory lawlessness’ (that is, intolerably unjust laws), Radbruch examines whether judges are culpable of homicide in sentencing individuals under such laws. While he thinks that judges should serve justice at the price of their own lives, Radbruch notes that they might plead ‘necessity’ if subsequently prosecuted, given that they ‘would have risked their own lives had they pronounced National Socialist law to be statutory lawlessness’.Footnote ²³ In view of how judges are given a concession, Radbruch might have approached individuals who complied out of fear for their own lives even more leniently. However, the objective of this article is not to find out what Radbruch's view might have been on whether individuals who complied ought to be punished. Instead, I explore the conceptual implication of intolerably unjust laws being legally invalid.

4.1. Why the defence of ignorance of the law is generally not allowed

Generally, Anglo-American systems of law endorse the notion that ignorantia legis non excusat Footnote ³⁹ in the ordinary criminal context. Allowing the defence of ignorance of the law would favour the ‘most obtuse and stolid of criminals’.Footnote ⁴⁰ Selden's concern, for example, is that it would be too easily pleaded and hard to confute. However, this concern can be addressed by placing the burden on those pleading the defence to show they actually do not know the law.Footnote ⁴¹ Indeed, some existing laws (tax laws, for example) include a requirement of wilful violation or allow a defence of reasonable mistake, which raise similar difficultiesFootnote ⁴² and are not regarded as insurmountable. The courts in South Africa have not been plagued by practical difficulties of every person pleading the defence after the defence of ignorance of law was made available.Footnote ⁴³ Importantly, it is also unlikely that many would argue that they do not know that ‘it is illegal to murder, rape, rob, burgle, steal, cheat, lie’,Footnote ⁴⁴ such claims being rather far-fetched.

Whenever one can fairly presume knowledge of the law, there is good reason to reject the defence of ignorance of the law.Footnote ⁴⁵ At a very general level, the requirements of Fuller's rule of law – such as that laws are clear and are publicised or made known – suggest that it is important that those governed (and punished) by law know its content.Footnote ⁴⁶ There is no dissonance between affirming Fuller's requirements that emphasise knowledge of the law and affirming the idea that ignorance of the law is no excuse. If the legislator fulfils Fuller's requirements by making and disseminating laws that are clear, the legislator has done what it needs to do for the rule of law. Generally, legal systems cannot be expected to go further to ensure that individuals actually know the law. Thus, at first sight, it seems fair to presume knowledge if Fuller's requirements have been fulfilled.

However, presuming knowledge in the past might have been reasonable when it was relatively easy to acquire knowledge of the law, as there were not many offences.Footnote ⁴⁷ It is problematic today; there are many more offences,Footnote ⁴⁸ particularly those that are perceived to be regulatory.Footnote ⁴⁹ Furthermore, sometimes (such as in the case of English law today) the content of criminal law is not readily known, being found in many statutory instruments as well as the common law.

That said, even if we do not presume knowledge of complex areas of the law, it is reasonable to impose a moderate duty on individuals to know the law; such a moderate duty permits a ‘general but circumscribed defence’ of ignorance of the law.Footnote ⁵⁰ However, individuals cannot know the law in detail, given its complexities and how legal training is required in order to understand the scope of laws. If there is only a moderate duty on individuals to know the law, it does not seem fair to hold them liable when they are not familiar with the details and complexities. Why, then, do we deny individuals the defence of ignorance of law in such cases,Footnote ⁵¹ particularly when they are neither blameworthy nor negligent, as they have fulfilled their moderate duty to know the law?Footnote ⁵²

The reason is that the demand to treat individuals fairly and permit the defence is outweighed by other interests: allowing the defence of ignorance of the law would encourage ignorance precisely where the lawmaker wants individuals to know the law.Footnote ⁵³ Notably, this is a consequentialist or utilitarian consideration. It is at odds with the retributivism to which many legal philosophers subscribe in relation to criminal law if punishment is in fact undeserved because of ignorance of the law.Footnote ⁵⁴

Aside from presuming knowledge of the law, whenever the law has tracked moralityFootnote ⁵⁵ – such as when the common law was a source of English criminal law and addressed what was morally wrong according to community mores or long-established ideas of right and wrongFootnote ⁵⁶ – it may not be unfair to find one liable without specific knowledge of the law. The reason is that there is moral culpability in the commission of the acts prohibited by such laws. The counter-argument to grounding liability in moral culpability, however, is that it is not appropriate or fair to punish someone for failing to behave in a manner that is morally salutary. Individuals may choose to obey the law with the motivation only to avoid legal liability: their ignorance, at least in cases where they are blameless for not knowing the law, ought to constitute an excuse.

In any case, grounding criminal liability in moral culpability applies only to laws that track morality. For this reason, some scholars distinguish between the treatment of mala prohibita and mala in se offences.Footnote ⁵⁷ For mala prohibita offences, even a ‘good’ person might make mistakes as to the content of the law. It is the violator's knowledge of illegality that makes their act morally culpable. For mala in se offences, a person can be regarded as culpable for doing what is morally wrong, as embodied in the law.Footnote ⁵⁸ A person who is ‘procedurally and epistemically faultless’ – that is, ‘not ignorant as a result of recklessness, negligence, or other forms of belief mismanagement’ – may be blameless in legal ignorance for mala in se offences but demonstrates moral ignorance, which constitutes or reveals a morally objectionable failure to care about what is morally significant.Footnote ⁵⁹ Liability for mala in se offences can thus be seen as grounded in the very moral culpability in committing the act. Committing the act, in itself, says something about the ‘moral quality of (the actor's) values, motivations, and emotions’.Footnote ⁶⁰ It should not matter that the person is unaware of the illegality of the act. In grounding criminal liability in moral culpability, the defendant is held to standards of morality that every person must be taken to know. This is disputable in cases concerning specific moral norms over which there is no moral consensus,Footnote ⁶¹ and even for mala in se offences, in relation to ‘outer limits of the law’,Footnote ⁶² it would be fair to require knowledge of illegality or some form of fault. Serious crimes, such as sexual offences, are mala in se but changes in the law may concern the ‘outer limits of the law’: even if most must know there are laws relating to sexual offences, they may be unaware of whether a particular activity is within law's ambit.Footnote ⁶³ The existence of a ‘moral core’ of ‘real crime’ does not make such decisions clearer at the outer limits.Footnote ⁶⁴

In the ordinary criminal context, if an individual abets by assisting in a race-motivated murder and pleads that they did not know their act violated the law, this plea is unlikely to be well received. This clearly involves a malum in se offence. There is strong moral consensus that the crime is egregious.Footnote ⁶⁵ If ignorance were pleaded in relation to crimes that enforce more contentious moral norms, mala prohibita offences and crimes at the ‘outer limit’ of the law in mala in se offences, questions of an appropriate ground of liability and of fairness might arise. For abetment to race-motivated murder, an individual who pleads ignorance of law has such failure of character that few would argue that it is unjust to punish that person. This crime is in fact analogous in substance to the act mandated by Rule X. There are strong reasons to reject the plea of ignorance of the law, that is, ignorance that Rule X is legally invalid, and that the act of reporting the neighbour is legally unjustified and constitutes abetment by assisting in a race-motivated murder.

However, a truly analogous situation (to Rule X) in the ordinary criminal context is more nuanced. The analogue of the Rule X case in the ordinary criminal context is the case of a person who is threatened with death if they do not assist in a race-motivated murder. A person who assists in the ordinary criminal context can be prosecuted for abetment to murder by assistance. Such a person would also try to plead the defence of duress (considered in Section 5). Suppose we find that duress is rightfully not a defence to abetment by assisting in murder in the ordinary criminal context (as will be argued in Section 5). Can such a person in the ordinary criminal context run a more complex defence of ignorance of the law? Can they argue that they are ignorant of the law in the sense that they thought that duress is a defence in a case of abetment to murder by assistance? The ignorance seems, at first blush, less abhorrent than ignorance of the law against abetment to murder by assistance. This is particularly so in view of the debate over whether the defence of duress should be available for murder. The right solution might depend on whether we think the duress defence should be available in the case of abetment to murder. If it should not, and to the extent that denial of the defence and consequent illegality of the act are based on its moral blameworthiness, this suffices to ground liability, based on moral culpability, in the ordinary criminal context. The same should apply in the Rule X context.

4.2. The special case of legitimate reliance

There remains a difference, which some might find significant, between the ordinary criminal context and the Rule X context. In the ordinary criminal context, an individual usually claims not to know a law that makes the conduct illegal. In the Rule X context, however, the individual actively relies upon an enacted law, Rule X, which turns out to be legally invalid according to Radbruch's Formula.Footnote ⁶⁶ What difference should active reliance on a purported law make to the arguments for denying the defence of ignorance of the law? There are some analogous situations in the ordinary criminal context from which we can draw relevant principles.

In the ordinary criminal context, where an individual reasonablyFootnote ⁶⁷ relies on official advice as to the law, it has been argued that an estoppel should apply against the authority in suggesting that ‘ignorance of the law is no excuse’ when it subsequently takes the view that the advice is misguided.Footnote ⁶⁸ From a deontic point of view, the estoppel honours the legitimate expectation of the individual who is seeking to be law-abiding and to comply with the law. Permitting a defence in the case of officially induced error also encourages citizens to check on the lawfulness of proposed activities.Footnote ⁶⁹ From a consequentialist point of view, it promotes legal knowledge and compliance.Footnote ⁷⁰

Aside from official guidance, individuals may also be guided by a court decision (prior to its being set aside by a higher court),Footnote ⁷¹ as it would be unfair to expect individuals to know the law if even a court was ‘ignorant’.Footnote ⁷² Individuals may also be guided by statutes before they are held to be unconstitutional.Footnote ⁷³ Court decisions and statutes are more authoritative than official advice: the court is the final authority in determining questions of law; the legislator is tasked with making law.

A final point worth emphasising is that individuals in such circumstances may reasonably rely on official advice as to the law, court decisions and statutes; thus, the authority is estopped from insisting that ignorance of the law is no excuse. An argument can be made that in rare circumstances it would be unreasonable for such reliance to be made, or that individuals should not be allowed to raise estoppel. For example, an individual who bribes an official to provide official advice favourable to the individual does not come with clean hands and should not be allowed to raise estoppel.

The Rule X context, involving a statutory enactment, is similar to the case of reliance on a statute before it is held to be unconstitutional. Despite the even stronger case for justified reliance on this over official advice, Rule X is no ordinary circumstance. After the Nazi regime and with recognition of genocide as an international crime, it is unreasonable for an individual to rely on Rule X claiming that they could not have known better. It would not be unfair to deny estoppel based on reliance on a purported law such as Rule X. Radbruch's Formula, applying to intolerable injustice, elevates the concerns of justice at the smallest possible sacrifice to legal certainty. However, where there is genuine dispute as to whether the laws are intolerably unjust,Footnote ⁷⁴ an individual who acted according to their conscience should be allowed to avoid liability on the basis that they actively relied on the law. They should not be punished by the tribunal in carrying out transitional justice. Likewise, individuals in entirely closed political regimes who are unconnected with the world and do not know about genocide being criminal, and who have been so brainwashed as to lack the capacity to realise the egregious nature of the act, lack moral blameworthiness. Such persons may be permitted a limited plea of ignorance of the law in the Rule X context.

5.1. Sanctity of life versus impairment of will

Whether duress should be a defence to murder or abetment to murder is much debated. Under English common lawFootnote ⁷⁷ duress is generally not a defence to murderFootnote ⁷⁸ because of the belief in the sanctity of life:Footnote ⁷⁹ it is not justifiable to take another life to preserve one's own as comparative lives cannot be weighed.Footnote ⁸⁰ Exceptionally, some states in the United States allow the defence of duress for a felony murder charge. An accessory to murder was allowed the defence in the United Kingdom, although the position has since changed.Footnote ⁸¹ In so far as a moral dilemma is presented to the person threatened, it has been argued that the test of proportionality – comparing the threatened harm with the moral evil the person is compelled to do – should be used to grant some form of concession to the person threatened where punishment is concerned.Footnote ⁸²

In the Rule X context, the concern for sanctity of life is the same as it is in the ordinary criminal context, but the problematic assessment of proportionality is seen starkly in the Rule X context. It can come down to comparing the size of one's household with that of one's neighbour: an individual who reports their neighbour, as required by Rule X, may do so if they hope to save their family of five but their neighbour is single; an individual who reports their neighbours, as required by Rule X, may not do so if they are single while their neighbours are a large family of five.

A dominant underlying rationale for the defence in the ordinary criminal context is that duress impairs (even if it does not overbear) one's free will, rendering punishment unjust.Footnote ⁸³ The act is voluntary in that it is volitional, but there is moral non-voluntariness.Footnote ⁸⁴ A person's choice among limited alternatives has been ‘rigged by an undeniably culpable third party’.Footnote ⁸⁵ If one's act is not voluntary in some sense, one may not deserve a conviction, or should be entitled to mitigation.Footnote ⁸⁶ However, denying the defence and refusing to consider duress in mitigation might enhance the deterrent effect when one is strongly tempted to commit a crime,Footnote ⁸⁷ though this is questionable if a reasonable person could not resist the threat.Footnote ⁸⁸

The less immediate nature of the threat in the Rule X context weighs against affording the defence. The individual compelled by law to report their neighbour does not face a threat to their life at gunpoint. The individual can contemplate alternatives such as escaping, advising the neighbour to escape, or stalling for time. Assuming the processes of law are followed through, a non-reporting individual must be discovered for failure to report their neighbour, prosecuted and convicted, before the sentence is carried out. Even if the individual fears that the processes of law would not be properly adhered to in a rogue state and therefore reports their neighbour, the act is neither instinctive nor unthinking; nor is the will similarly impaired. This weighs against the defence being available in the Rule X context.

What about the peculiar power of a heinous state to oppress through inciting fear? Montesquieu, for example, describes the paralysing fear (crainte) that a despotic government can create. This leads individuals to have an instinct for self-preservation that ‘keeps the individuals in an animal-like obedience’.Footnote ⁸⁹ It leads to a ‘permanent state of foreboding’ as opposed to being a ‘sudden response to danger’ (peur).Footnote ⁹⁰ Montesquieu's claims require investigation by social psychologists. Heroism among ordinary people who pay the price with their own lives to save their neighbours in oppressive regimes are well documented, though Montesquieu does not rule this out. Possibly, while the threat is not as immediate as it is in the ordinary criminal context, the atmosphere of fear substantially overpowers the will such that it may not be just to carry Radbruch's Formula to its logical conclusion and effect punishment on those who complied.Footnote ⁹¹ Whether there is such overwhelming fear may also depend on how advanced the despotic regime is.

Supporters of the duress defence in the ordinary criminal context argue that regarding duress as an excuse does not derogate from the commitment to the worth of human life. It merely acknowledges that acting out of self-preservation is ‘understandable’.Footnote ⁹² While it arguably ‘(mollifies) ethical weaknesses’,Footnote ⁹³ criminal law should not punish individuals for not attaining the pinnacle of ethical behaviour,Footnote ⁹⁴ or demand heroism of the threatened person,Footnote ⁹⁵ when a person of reasonable moral strength cannot fairly be expected to resist the threat.Footnote ⁹⁶ The American Law Institute's Model Penal Code, for example, asks the jury to consider whether a person of ‘reasonable firmness’ would be able to resist the threat. This seems to require ‘a moral judgment regarding the ambit of fortitude of individuals constrained by prevailing circumstances’.Footnote ⁹⁷ Yet taking reference from dominant or likely social practices without considering the moral value of such practices seems contrary to how the law often sets a standard regardless of dominant social practice.Footnote ⁹⁸ While Lord Hailsham in R v Howe has been criticised for expecting heroism of the ordinary person, and refusing to protect ‘the coward and the poltroon’,Footnote ⁹⁹ innocent victims deserve protection too from those seeking to kill them for self-preservation.Footnote ¹⁰⁰ Even if the ordinary person might not have been deterred by future punishment, deterrence is not the only reason for penal laws: the law can affirm moral values such as sanctity of life for a moral educative function.Footnote ¹⁰¹

A theory of duress is necessarily ‘moralised’ and normative even if it appears on its face to focus on psychological statesFootnote ¹⁰² or what an average person would do. Those who reject the defence treat sanctity of life as non-derogable. Those who argue for the defence on moral grounds suggest that if law is connected with morality, unjust punishment should be avoided.Footnote ¹⁰³ In the Rule X context, regarding the intolerably unjust law as legally invalid means that the act of reporting one's neighbour is legally unjustified; it is abetment to genocide or murder. Given that Radbruch's reason for treating intolerably unjust laws as legally invalid is to give justice its due place, it can be argued that it would be ironic if unjust punishment results. However, it should also be noted that a theory of duress is normative: a decision not to excuse cowardice in cases when one's will is merely impaired but not overborne sets a standard of behaviour and is not necessarily unjust as the neighbour's life is also at stake.

5.2. Consequentialist rationales for the defence of duress

The duress defence in the ordinary criminal context has been supported by consequentialist rationales. If a threatened person regards the harm with which he is threatened as the greater evil when compared with the harm that he does,Footnote ¹⁰⁴ then, adopting Hobbes's view, Austin and Bentham suggest that the person, confronted with the choice between two evils, should not be faulted for preferring self-preservation.Footnote ¹⁰⁵ Moreover, in terms of Pareto-optimality, no one would be better off in some scenarios, as all would die anyway if the person threatened does not carry out the wishes of the person issuing the threat.Footnote ¹⁰⁶ However, assessment of Pareto-optimality in the Rule X context is more complex, depending on factors such as the efficacy of the heinous state and the likelihood of other individuals reporting those of the targeted group. Even if the heinous state is highly efficacious, Pareto-optimality may not count in favour of affording the duress defence in the Rule X context, as there is a better chance of both the coerced and the innocent victim escaping enforcement of the unjust law.

Another version of the consequentialist defence in the ordinary criminal context compares the benefit of punishing the person threatened with the benefit in not punishing. The fear of the threatened harm may be substantial and imminent enough such that no deterrent value is posed by the threat of future punishment. Also, punishment does not serve the rehabilitation of such an offender.Footnote ¹⁰⁷ Deterrence of other potential offenders in the form of genocidaires has been thought to be ineffective, as some commit genocide precisely after assessing the benefits of acting. Moreover, the uncertainty of punishment by international criminal law, historically, results in failure of deterrence.Footnote ¹⁰⁸

In the Rule X context, the non-instantaneous nature of the threat, compared with the ordinary criminal context, increases the chance of a deterrent effect. Such effect should be assessed over all individuals in totality, rather than individually. There is also a moral educative effect which underlies the punishment of such crimes under international criminal law as a matter of transitional justice. Punishment sends the message that laws must be minimally just. With some individuals deterred, a despot who wishes to execute heinous acts may have to do so outside the law. The widespread endorsement of Radbruch's Formula – of the idea that intolerably unjust laws are not laws – increases the likelihood of resistance to despots working through law from the outset, not just from the legal profession or those trained in the law but from officials and individuals. Ideally, the rise of despots by harnessing law to effect their cruel acts is arrested at the outset: the widespread civilian and official endorsement of Radbruch's Formula ironically and happily renders its invocation for the sake of transitional justice unnecessary in future. The case to deny the defence of duress on consequentialist grounds is strong in the Rule X context as there are benefits peculiar to the objective of transitional justice. The benefits extend beyond deterring persons from acting out of self-preservation to conveying that laws must be just, and legal authority must respect dignity. Generally refusing to treat civilians as helpless might empower them to stand up to the onset of rogue regimes and prevent their advancement. The defence of duress should not be allowed.

5.3. Does it make sense to reject the defence of duress in the light of other aspects of criminal law?

Is rejecting the duress defence in the ordinary criminal context consistent in principle with other aspects of criminal law? I argue that it is.

In so far as a person acting under duress makes a rational and intentional choice to preserve their life, it is arguably consistent in principle to reject the defence given that ‘malice aforethought’ has been rejected as a requirement of mens rea.Footnote ¹⁰⁹

Allowing the defence in other cases without at least a partial defence to murderFootnote ¹¹⁰ is explicable as sanctity of life cannot be derogated from for the sake of self-preservation where the victim is innocent. Short of this, the law permits one person to use another as a means.Footnote ¹¹¹

There is also principled consistency despite how sanctity of life is regarded under other defences, such as self-defence. While the instinct of self-preservation is strong and natural in cases of duress and self-defence,Footnote ¹¹² a relevant distinguishing factor from self-defence is the innocence of the person whose life is being violated. Moreover, if the doctrine of double effect is used to analyse duress in such a scenario, death is intended; one's being let off is a separate act that follows upon one's act of causing death intentionally.Footnote ¹¹³ In cases of self-defence, the force used has to be proportionate before one can rely upon the defence, and there is no intention to cause death – only a side effect of death. If denying the duress defence for murder in the ordinary criminal context stems from respect for sanctity of life, which cannot be derogated from for the sake of self-preservation, the pressing need in the Rule X context to ensure that despots cannot use civilians en masse to effect their purposes against other innocent individuals is all the more important.

5.4. De facto recognition of an alternative authority

The defence of duress in the ordinary criminal context presents a jurisprudential puzzle. Austin views law as orders backed by threats of sanction. Absolving the person threatened suggests that individuals can avoid legal consequences by coming under what is de facto an alternative authority that uses coercive force. This problem was put into sharp focus in cases of duress by terrorists from the Irish Republican Army (IRA). Allowing the duress defence makes it seem as if the IRA's coercive order can confer immunity on the defendant.Footnote ¹¹⁴ What would have been an unlawful act carried out by terrorists (the IRA) can be transformed into a ‘lawful’ act by the murderer who acts under duress, as the murderer is not punished if the duress defence is allowed. The deterrent effect of criminal law is rendered nugatory where it is most needed. The coercive power of the state exercised through law is overwhelmed by another power.Footnote ¹¹⁵ In cases in which terrorists and others use ordinary individuals to achieve criminal ends, criminal liability has been viewed as notionally important. Duress should be countenanced, if at all, only in mitigation.Footnote ¹¹⁶

In the Rule X context, the source of coercion is a state acting through a purported law, rather than terrorists. This presents no jurisprudential puzzle from the legal positivist's perspective. Particularly for Austin, Rule X is straightforwardly law. From a non-positivistic perspective, resistance towards the rogue state, rather than compliance with its orders, is at least as important as it is for the terrorist scenario. Criminal liability may be helpful to incentivise resistance.

It has been suggested, in the ordinary criminal context, that the duress defence should be allowed when a person acts under duress from terrorists and similar, as criminal law should not be blind to the relatively lower degree of moral blameworthiness of those acting under duress. We should not be concerned about terrorists using ordinary individuals to carry out acts of violenceFootnote ¹¹⁷ as that is rare. Moreover, the law still responds – by punishing those who exerted the duress,Footnote ¹¹⁸ and defendants who exposed themselves voluntarily to such threats can be denied the defence.Footnote ¹¹⁹

In contrast, though, in the Rule X context, state perpetrators intentionally get individuals on board through ‘legal’ coercion as it enables such regimes to gain traction. It is more compelling as a general rule not to allow the defence of duress.

Should it make any difference that the ‘highest’ power in the territory is putting individuals under duress? This is unlike the situation of terrorists putting individuals under duress, when terrorists operate under another legal power. Hale examines the non-availability of the duress defence for murder in peacetime separately from times of war, public insurrection or rebellion, when a different approach may be warranted, as a person is ‘under so great a power, that he cannot resist or avoid’.Footnote ¹²⁰ Surely Hale cannot be thinking of the impossibility of seeking official protection in extraordinary times?Footnote ¹²¹ He upholds sanctity of life in peacetime. Even then, a person under the threat of instant death would not have had recourse to official protection. Thus, Hale's bifurcated approach based on peacetime or extraordinary times is unsound, unless it is based on Montesquieu's crainte, discussed earlier. The defence of duress should not be allowed.