Review Essay: Excuse Theory Through a Liberal Lens

Jeremy Horder, Excusing Crime Oxford: Oxford University Press, 2004, xx + 295 pp. One good way to size up a new book is to imagine the author's intended audience and purpose. In his introduction to Excusing Crime, (1) Jeremy Horder, Reader in Criminal Law and Tutor in Law at Worcester College, Oxford, saves his reader the trouble of such imagining by telling us that the "arguments offered" in the volume "are firmly within the tradition of so-called 'analytic', or--more correctly--'applied ethical' thinking about law, and they are in that respect aimed at judges in the higher courts, and at other law reforming bodies, as well as at law students." [5] Horder's project is to build a complex taxonomy of criminal law excuse practices and to use that account of "why things are as they are" to argue, on the basis of his version of liberal theory, against "the restricted range" of excuses in the United Kingdom and elsewhere. [1] As someone who teaches and writes about criminal law in a United States law school, reading Excusing Crime was a little like listening in on a fascinating conversation at a nearby table in a crowded restaurant. The law students Horder has in mind are undergraduates for whom philosophical analysis of the sort he undertakes is less foreign than it would be for the great run of students at American law schools. (2) His interlocutors--those with whom he imagines himself in conversation--mostly are British academics, including John Gardner, Timothy Macklem, Alan Norrie, and Andrew Ashworth. The book does contain references from time to time to American criminal law theorists, including Michael Moore, Joshua Dressier, Heidi Hurd, and George Fletcher, but the overwhelming center of gravity is plainly on the other side of the Atlantic. So too, the great bulk of legal authority under study consists of U.K. cases and statutes and, occasionally, law reform commission proposals. There are, at best, passing references to U.S. cases, and only a few targeted discussions of the Model Penal Code. Horder's basic framing of his taxonomic project is also characteristic of English rather than American thinking. Excuses, he tells us, excuse wrongful conduct "by shedding favourable moral light on what D did through a focus on the reasons that D committed that wrongdoing, where those reasons played a morally 'active' role in D's conduct (meaning that what D did or what happened to D can be subject to critical moral evaluation)." [9] This emphasis on the "morally active" reasons for an actor's conduct, which is central to Horder's notion of excusing, may incline some readers to think about the normative judgments inherent in justification defenses, and Horder's taxonomy acknowledges that some excuses--those characterized by strong "actively justificatory" elements (3)--may come very close to being justification claims. [49] In addition, the requirement that excuses must be grounded in "morally active" reasons serves to exclude claims of non-responsibility that many U.S. theorists regard as legitimate excuses, including insanity and infancy defenses, precisely because these non-responsibility claims involve reasons for action with respect to which the actor is "morally passive." [9] To be sure, Horder's complex analytic system includes some qualifying excuses--those which are "capacity based"--that come very close to being claims of non-responsibility, but his insistence on including a normative element ultimately distinguishes these excuses from pure claims of non-responsibility. (4) Criminal law scholars in the United States generally do not line up the pieces in this fashion. On the one hand, they often think about justification defenses and excuses as more discontinuous than Horder does. On the other hand, though there is no absolute uniformity on this point, most American criminal law theorists regard non-responsibility claims such as insanity and infancy to be complete excuses. As to the first point, U. …