Negating Wrongfulness and Blameworthiness The most fundamental rationale
of the distinction is that a justification negates the wrongfulness of the act, whereas
an excuse negates the blameworthiness of the agent. This clearly coincides with the
second and third tiers of the tripartite structure of a crime (see again Sect.7.4.2).
The dichotomy of justifications and excuses enables a nuanced communication
regarding the reason why the defendant should not be held criminally liable.
Whereas the acceptance of a justification denies that what the defendant did was
wrongful in the eyes of the legal order, the acceptance of an excuse makes clear that
what he did was wrong but that he cannot be personally blamed for his conduct.
Criminal law recognizes a wide range of justifications and excuses that can be
put forward by the defendant. In this paragraph, we only briefly discuss the
justification of self-defense and the excuse of insanity.
7.7.1 Self-defense
The paradigmatic justification is self-defense, also called necessary defense. Illus-
trative is the following legal definition of self-defense in Section 32 of the German
Criminal Code:
(1) He who commits an act which is required as necessary defense, does not act unlawfully.
(2) Necessary defense is the defense which is required in order to fend off an imminent
unlawful assault from oneself or another.Imminent and Unlawful Attack Despite differences in development, most legal
systems distinguish similar criteria for self-defense. The first requirement is that
there is an imminent and unlawful attack.
The requirement of imminence means that the defendant cannot wait any longer
for the official authorities to protect his interest. The difficulty lies in determining
the limits of this temporal element. On one hand, self-defense may only be
performed at its earliest when danger is already close (no preemptive strike). On
the other hand, it may be performed only as long as the attack continues; otherwise,
it would be retaliation.
The requirement that the attack was unlawful expresses that self-defense is really
a fight of right against wrong. It serves to exclude from the defense, for example,
situations wherein the perpetrator is being arrested by the police.
The defense must of course pertain to a legitimate interest, such as a person’s
life, liberty, body, and property. It is important to note that the legal interests of a
third party may also be defended. Necessary defense is therefore perhaps a better
label for this justification thanself-defense.
140 J. Keiler et al.