but also actions that the law incorrectly deems to be justified. We believe that actors should be entitled to an excuse in any situation in which a “person of reasonable firmness” would impose the risk that the actor believed he was imposing. Within our discussion of duress, we also consider the question of whether most instances of duress are best viewed as instances of personal justification.

We next discuss mistakes. There is typically nothing special about mistakes, as the actor’s culpability is determined by his own perceptions, whether or not mistaken. However, when we turn to cases of “proxy crimes,” in which the actor’s conduct comes within the definition of the crime but does not itself create the risk that the crime was designed to prevent, we argue that the actor should have an ignorance of the law defense if he is unaware of the existence of the proxy crime itself.

Finally, we suggest that the criminal law should offer a broader account of rationality impairments. Simply put, diminished rationality diminishes culpability. Depending upon the degree of impairment, the actor is entitled to either a full excuse or, at the very least, mitigation of his punishment.

These proposals, like those for justification, work within the framework that we have already set forth in Chapter 2. Because we believe that an individual is culpable when her balance of risks and reasons deviates from what a reasonable person in the actor’s situation would do, this section serves to elucidate that reasonable-person standard. If a reasonable person would act as did the actor in the situation, then the actor is not culpable even if her action is unjustified from an agent-neutral perspective. Moreover, because our theory of culpability focuses on the actor’s choice to privilege her reasons over the risks she imposes on others, degradations of her capacity to choose may also undermine her culpability.

A. PERSONAL JUSTIFICATIONS AND HARD CHOICES

We believe that an actor should have a defense to any crime that the actor committed to avoid harm to himself, his property, or others, if a “person of reasonable firmness” in the actor’s situation would have committed the crime. We believe that these situations include much of what currently constitutes the excuse of duress and much of what currently

is deemed justified self-defense. It would include, for example, self-de- fense against innocent aggressors – the young, the insane, the mistaken or duped, and even those who themselves are excused under the excuse proposed here.57

In this section, we begin with the reasons why this excuse can and should capture many cases currently deemed to be instances of justifiable self-defense. In so doing, we confront what we take to be hybrids of justification and excuse – instances of personal justification. Next, we turn to how and why we expand the law beyond the current boundaries of duress. Finally, we address some of the implications of this standard.

1. Personal Justifications

We believe many instances of self-defense are not properly deemed to be justified. As we discussed previously, there are two reasons why we might think that an actor is justified in acting in self-defense. The first consequentialist reason is that the net consequentialist balance is positive when an innocent victim is threatened by a culpable aggressor. A second theory is one that is rights based. Even if we do not want to say that the CA’s life is worth less than an innocent’s, it may be fair to say that the aggressor has forfeited his rights or that his rights were specified such that he has no right against defensive harm when he culpably threatens another. Under either approach, it seems to us that the actor is justified in acting in an agent-neutral sense of justification.

There are other circumstances in which the actor – D – is not justified in imposing the risk in an agent-neutral sense but is nonetheless personally justified in imposing it. That is, D has an agent-relative justification. One paradigm instant would be one in which D faces a deadly attack from an aggressor who is not a CA – because the aggressor either

57T he one worker on the trolley siding, for example, would not be justified in shooting someone attempting to switch the trolley to save the five, but he could easily be excused under the excuse proposed here; that would mean in turn that the one throwing the switch would be excused under the same excuse in using force against the worker to protect himself, though he would also be justified because of the five lives he is trying to save.

Likewise, if the trolley is heading toward the one worker, one would not be justified switching it to head toward the five, but one might be excused for doing so if the solitary worker were one’s child.

has made a mistake (e.g., he erroneously believes D is a CA), is insane, is a child, or is not acting at all (he is an “innocent sword,” accidentally falling toward the actor). In these cases, the consequentialist balance does not dictate that the innocent “aggressor” should die. The risk to the aggressor is no less a negative consequence than the risk to D it is designed to avert; and there may be several innocent aggressors who outnumber D and therefore count more in the consequentialist balance, or who face defensive risks from D greater than the risks they are imposing on D. Because innocent aggressors are not culpable, there is no reason why their rights should be forfeited or dispreferred vis-à-vis those of the defender. For these reasons, an uninvolved third party, if the consequentialist balance tips in favor of the innocent aggressor, will be justified in going to the aggressor’s defense and imposing a risk on D.

In these instances, D is not justified in a social, agent-neutral sense in imposing a defensive risk on innocent aggressors – and, if necessary, on innocent shields and bystanders.58 (Shields and bystanders differ only in their morally irrelevant physical location relative to the target of the risk imposition.) On the other hand, he may nonetheless be nonculpable for doing so because the reasons he has for so acting – defending himself or his family (and perhaps others closely tied to him) against serious harm – outweigh (for him) the reasons against imposing the risk on innocent persons. He may be personally justified in imposing the risk even if he is not socially justified and cannot permissibly be aided by a fully informed third party.

Personal justifications are hybrids between agent-neutral justifications and excuses. They function like excuses in many respects: First, as we have just indicated, parties whose own or whose families’ interests are not in jeopardy, who believe that D is facing a risk imposition from a nonculpable person or person(s), and who believe that the consequentialist balance of reasons prohibits imposing a risk on the latter, may not impose risks on the innocent in order to defend D. Second, although D herself is not a culpable aggressor toward those who are innocently aggressing against D, once D begins to launch a defensive risk on the

58See Ferzan, supra note 19, at 734; McMahan, “The Ethics of Killing in War,” supra note 53, at 720; Noam J. Zohar, “Innocence and Complex Threats: Upholding the War Effort and the Condemnation of Terrorism,” 114 Ethics 734, 742–744, 748–751 (2004).

the threat to D or those in close relation to D becomes sufficiently grave, D’s personal reasons and moral reasons no longer stand in that relation. Either choice D makes is reasonable.61

In looking at these two theories, one sees that, as it is currently formulated, the excuse may conflate two different types of cases. First, as we have been discussing, there may be cases in which an actor is personally justified. Second, it may be possible for an actor not to be personally justified but still to be excused. When duress excuses because the actor’s “will is overborne,” the argument is that the actor was volitionally impaired, not that the actor was personally justified.

Moreover, we might wonder whether there is even a third type of case that should be covered by duress. As we have discussed previously, there are times when an actor performs a consequentialist-justified act but does so by violating a deontological side constraint. Sometimes one violates a deontological side constraint for personal reasons. For instance, D “uses” a victim to prevent harm to herself or to someone she loves. (Many of the quotidian duress cases are of this type: they would pass the lesser-evils justification test but for the fact that they involve appropriating another to avert the threatened harm.) But might not D have an excuse, even if she is not attached to the persons threatened? If Surgeon could save 100 people unrelated to him by cutting up 1, might we say that a person of reasonable f irmness might be swayed by the desire to prevent such harm? What if we could appropriate 1 person to save 1,000 strangers? Even if one does not believe that there is a threshold at which deontological constraints yield,62 we certainly may want to excuse an actor faced with such a terrible choice.

In any event, we need not adjudicate the underlying theory of the duress excuse. Our purpose here is to illustrate it as one way D’s prima facie culpability can be rebutted, a way that differs from the

61Douglas Portmore argues that this shows that moral reasons are not always morally overriding, much less rationally overriding. Douglas Portmore, “Are Moral Reasons Morally Overriding?” 11 Ethical Theory & Moral Prac. 369 (2008). See also Paul E. Hurley, “Does Consequentialism Make Too Many Demands, or None at All?” 116 Ethics 680 (2006) (arguing that consequentialist moral standards fail to provide agents with decisive reasons to act in accord therewith).

62See, e.g., Larry Alexander, “Deontology at the Threshold,” 37 San Diego L. Rev. 893 (2000). If an actor can be personally justified in violating a deontological constraint by the prospect of a grave loss, can he likewise be personally justified by the prospect of a large gain?