Contrived Defenses and Deterrent Threats: Two Facets of One Problem

What relation do the various parts of a plan bear to the overall aim of the plan? In this essay we consider this question in the context of two very different problems in the criminal law. The first, known in the German criminal law literature as the Actio Libera in Causa, involves defendants who contrive to commit crimes under conditions that would normally afford them a justification or excuse. The question is whether such defendants should be allowed to claim the defense when the defense is itself either contrived or anticipated in advance. The second is what we call the question of deterrent threats: is it permissible to threaten to do more than it is actually permissible to do, in order to deter the wrongdoing of another? Furthermore, if it is permissible to issue such a threat, does it then become permissible to follow through on it when the threat fails to deter, thus rendering permissible an action that would otherwise be impermissible? These two problems—the problem of contrived defenses and the problem of deterrent threats—appear to be mirror images of one other. The first involves a morally permissible act embedded in an immoral course of conduct, while the second involves a morally impermissible act embedded in a moral course of conduct. The question we raise is whether the larger plan or course of conduct should help to determine the character of the individual acts that constitute that plan, and whether there is a consistent approach to plans and their component parts that provides plausible answers to legal questions of both sorts.