Justifying the Distinction between Justifications and Power

Miriam Gur-Arye, Hebrew University of Jerusalem

Abstract

In Anglo-American legal systems criminal law justifications apply to both public officials exercising legal power (as when a police officer arrests a suspect) and, in exceptional circumstances (such as self-defense) to individuals infringing interests protected by the criminal law. This paper relies on Hohfeld's distinction between "Powers" and "Claim Rights" and argues that there are two kinds of criminal law justifications. Public officials who arrest a suspect or who sentence a defendant to imprisonment exercise their power to change the legal status of the suspect's or the defendant's right to free movement. By contrast, an individual who kills an aggressor to defend herself or destroys property to save life from an imminent danger (in the case of necessity) has no power to change the status of the aggressor’s right to life or to acquire ownership over the property; the individual rather infringes the (claim) right to life or the (claim) right to ownership over property, and this infringement is justified.

The paper contrasts official power with justifications granted to individuals; it proceeds to develop the contrast between power granted to both officials and individuals, on the one hand, and criminal law justifications applied to both individuals and officials in their official capacity, on the other.

The distinction proposed in the paper between the exercise of power on the one hand and "real" criminal law justifications on the other is useful in dealing with "emergencies" when constitutional constraints make it impossible to grant an official the power to change the legal status of a basic right. In some of these situations a criminal law justification might justify the infringement of such a right. The paper demonstrates the importance of the distinction by analyzing the ruling of the German Constitutional Court concerning the shooting down of a hijacked airplane in circumstances similar to those of September 11.