The Constitution of Criminal Law: Justifications, Policing and the State's Fiduciary Duties

Abstract

This article considers the implications of the "German Airliner Case" for criminal law theory. In that case, the German constitutional court struck down as unconstitutional a law empowering state officials to order the shooting down of a hijacked plane on the grounds that the state could not order the killing of innocent civilians. Some have argued that despite this ruling, individual officials should still be entitled to claim a criminal law justification defence if they choose to shoot down a plane in such circumstances. I argue that the nature of justification defences necessarily ties them to the powers of the state to engage in such activity. And therefore if the law empowering officials to order the shooting is unconstitutional then it remains criminal and unjustifiable for an official to take matters into her own hands. Finally, I argue that both the constitutional decision and its criminal law implications are salutary.