"Justifications and Rights-Displacements"

Abstract

In two articles published ten years apart in 2011 and 2021, Gur-Arye argues that when considering an agent’s explanation for doing something that looks, prima facie, like a criminal offence, we should distinguish between a plea of justification, and an assertion that one acted within one’s power. The former explains an agent’s reasons for having committed a pro tanto offence (ie actus reus + mens rea). The latter is a denial that the agent committed any pro tanto offence at all. In this piece, I build on Gur-Arye’s argument, suggesting that her claim about powers can be extended to all instances in which rights are displaced, and arguing that in its expanded form, its practical significance goes well beyond what Gur-Arye identifies. In fact, it points to important and underappreciated points about the structure and classification of defensive claims in the criminal law.