Justifying the Distinction Between Justifications and Power (Justifications vs. Power)

Miriam Gur-Arye*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

5 Scopus citations

Abstract

The paper suggests that there are two different ways in which a legal system restricts an individual's rights. It can either grant a power that revokes the legal protection of the right or it can acknowledge the infringement of a legal right and yet justify such an infringement by means of a criminal law justification. The distinction proposed by the paper has both expressive and practical implications and is useful in solving dilemmas arising in emergencies when constitutional constraints make it impossible to grant the power to revoke legal protection of a basic right. In some of these situations a criminal law justification might support infringement of such a right. This claim is demonstrated 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.

Original languageAmerican English
Pages (from-to)293-313
Number of pages21
JournalCriminal Law and Philosophy
Volume5
Issue number3
DOIs
StatePublished - Oct 2011

Keywords

  • Criminal law
  • Justifications
  • Power
  • Shooting down of a hijacked airplane

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