Does Duress Justify or Excuse? The Significance of Larry Alexander's Ambivalence

Moral Puzzles and Legal Perplexities: Essays on the Influence of Larry Alexander (H. Hurd and M. Moore, eds., 2019)

U of Michigan Public Law Research Paper

20 Pages Posted: 23 May 2019

See all articles by Peter K. Westen

Peter K. Westen

University of Michigan Law School

Date Written: April 23, 2019

Abstract

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 are 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 non-mistakenly 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. Why, then, do commentators characterize duress as an excuse? Many do so, I believe, because they assume that threats that are natural in origin provide the baseline for determining the harms that actors may inflict on innocent and non-threatening persons. Because they take natural threats as the baseline for justification in such cases, and because MPC section 2.09 provides a defense for coercive threats that go beyond that baseline, commentators feel they must regard section 2.09 as an excuse. I have argued that commentators are mistaken. A coercive threat of an unlawful harm is a graver evil for a threatened person than an otherwise identical evil that is natural in origin; and the offense that a person is coerced into inflicting may not be as grave an evil by him as the evil of his coercer. The combination justifies coerced actors in committing offenses that would be unjustified if the threatened and inflicted harms differed in their respective origins.

Keywords: duress, justification, excuse, responsibility

Suggested Citation

Westen, Peter K., Does Duress Justify or Excuse? The Significance of Larry Alexander's Ambivalence (April 23, 2019). Moral Puzzles and Legal Perplexities: Essays on the Influence of Larry Alexander (H. Hurd and M. Moore, eds., 2019), U of Michigan Public Law Research Paper, Available at SSRN: https://ssrn.com/abstract=3376807

Peter K. Westen (Contact Author)

University of Michigan Law School ( email )

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