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This book explores the relationship between discursive communication and moral agency, with the goal of unifying a variety of issues about communicative ethics, including issues about lying, promissory fidelity, and freedom of speech. It argues that keener attention to the moral significance of communication would illuminate both the justificatory foundations of the prohibition against lying as well as the moral and legal prohibition against curtailing freedom of speech. Both prohibitions serve as moral protections of the reliability of communication and thereby preserve the conditions for moral agency, moral connection, and moral progress. The book defends a qualified absolutism about lying that distinguishes the wrong of the lie from the wrong involved in deception. It also examines whether, how, and why it should matter that one's interlocutor is a moral criminal, the infamous Murderer at the Door. Finally, it tackles the question of whether promises made under duress have moral force.

This chapter proposes a theory of excuse that, without blending it into exculpation, avoids the condonation of crime. The question it takes up is: given that neither compulsion by circumstances nor by human threats removes the legal reason for punishing, how can its exonerating force be rendered compatible with the state's general duty to punish the guilty? The chapter criticizes various proposals for reconciling excuse with the duty to punish the guilty, including the moral involuntariness theory, the concession to frailty theory, the conformity to moral expectation theory, and the suspension of law's threat theory. It then proposes a solution: moral blamelessness exonerates because it simulates the conditions for legal exculpation. Just as the exculpated actor acknowledges the legal norm of mutual respect for agents, so does the excused actor acknowledge the public reason of the self-sufficient political community of which the legal norm is a part. The chapter argues that this theory would excuse the altruistic no less than the self-preferring murderer. It also offers a unifying explanation for the excusing force of entrapment, due diligence, and officially-induced error. Finally, it explains partial excuses as moral analogues of partial exculpations.

This chapter begins by offering two mutually compatible diagnoses of why the orthodox view has been perennially appealing. One is that the orthodox view makes sense as a matter of law and people tend to conflate the morality of war with the law of war. The other is that many of the considerations that people invoke to defend the permissibility of participation in an unjust war are actually excuses or excusing conditions rather than ground of permissibility. The chapter goes on to survey a variety of excusing conditions that are generally thought to apply to the action of combatants who fight in unjust wars, but argues that the mitigating force of these considerations is weaker than people generally assume and that they very seldom provide full excuses — that is, that they are seldom fully exculpating.

Chapter 3 showed that we have good reason to believe that addiction impairs responsiveness to reasons and volitional control. This chapter considers whether this sort of impairment should ever legally excuse criminal behaviour. The law has understandably resisted such an excuse for evidentiary reasons, but also because addicts are thought to be responsible for their plights. In the end these reasons may be decisive, but it is important to a sound jurisprudence to articulate what is at stake. The chapter argues that the circumstances of the addict are often very like those who are subject to coercive threats, and that therefore much addictive behaviour can be likened to duress: the addictive agent is often subject to duressful ‘pressures’ that are not literally irresistible but which it would be unreasonable to expect anyone to tolerate. This makes a strong case for mitigation if not excuse.

This introductory chapter explains why the law relating to killing in self-defence is an important topic for study. It also distinguishes self-defence from other conceptually similar defences, such as necessity and duress, arguing that the distinguishing feature of a claim of self-defence is that the accused directs defensive force towards someone who poses a direct threat to her life or physical integrity.

This chapter examines three aspects of duress. The first is the circumstances in which duress will suffice to entitle a party to set aside a contract and recover a benefit which has been conferred on the other party to the contract. The second is the entitlement of a party to recover a benefit which it has conferred on another party as a result of the application of duress, but where there is no contract between the parties. The third is the circumstances in which the application of duress will give to the party subject to the duress a claim for compensatory damages.

This chapter proposes, and illustrates, with the idea of gray zones, a more historically accurate conception of diabolical evil than the one rejected by Kant: the deliberate and successful pursuit of others’ moral corruption (as the serpent of Genesis does with Eve), rather than evil for evil's sake (Kant's view). Primo Levi described as “gray zones” the predicaments of prisoners in Nazi death camps who were selected to administer evils to other prisoners in exchange for reductions in or postponements of their own torture and who thereby faced choices between extreme suffering (or immediate and horrible death) and serious moral compromise; the deliberate creation of gray zones, this chapter argues, is a paradigm of diabolical evil. People in gray zones are forced to risk moral corruption in becoming implicated, by their own choices, in perpetrating on others’ evils that threaten to engulf themselves. Gray zones are marked by the presence of severe duress, combinations of evil and innocence, and lack of clarity of one's responsibilities, one's motivations, or what is morally justifiable, given one's options. Outsiders may be in no position to judge gray zone agents, but insiders face better and worse choices and sometimes hold each other accountable; refusing to abdicate responsibility for one's choices in a gray zone works to disrupt cycles of evil.

This chapter examines what moral obligations, if any, remain or are incurred when one promises under duress. In general, duress holds that unjustified or wrongfully exerted coercion entirely exonerates the party subjected to undue pressure from responsibility for whatever actions the duress produces. This is the dominant view, one that is powerful and attractive. The chapter explains whether and why it should matter that one's promisee is a moral criminal, the proverbial highway robber. It first draws a connection between honoring initiated promises under duress and the conditions of moral progress, taking into account issues such as those relating to third parties and contracts. It then proposes an alternative to the dominant view about promises made under duress, an alternative inspired by some remarks of Immanuel Kant and of Adam Smith. It concludes by considering some objections to the moral appropriateness of honoring promises made under duress.

The structure adopted by the United Kingdom's Law Commission for its 1989 draft Criminal Code for England and Wales in several key respects mimics rather too closely for either comfort or simplicity traditional, but no longer very useful, ways of thinking about criminal liability. This is notably so in the way it deals with the law of complicity and incomplete (inchoate) offences. Three lengthy clauses elaborately distinguish, among those who commit crimes, ‘principals’ and ‘accessories’. Then, in three equally lengthy clauses dealing with those who try, but fail, to do so, it distinguishes between ‘incitements’, ‘conspiracies’, and ‘attempts’. Another instance of the draft criminal code's poor structuring is its provisions for general defences. The currently fashionable, but muddled, concept of ‘duress of circumstances’ is associated with ‘duress of threats’ and distinguished from the ‘justifiable use of force’, but no provision is made for justifiable contraventions of the criminal law which do not involve the use of force, or for those which are done for purposes as worthy and acceptable (and accepted) as those which are provided for.

We must distinguish two questions: (a) Does a promise bind? (b) Are we justified in breaking it? Promises made under duress or induced by deception do not bind. We should distinguish two accounts of how this works: the Fault Account and the Infringement Account. The Authority Interest theory supports the Infringement Account and this provides the better explanation. It is also commonly thought that wicked promises do not bind. The Authority Interest theory suggests otherwise and on this point it is again correct, though we may be justified in breaking a wicked promise.

This chapter is concerned with the application of the grounds of restitution and principles in one particular context, namely, where a restitutionary claim is brought against public authorities. There is a public law dimension to such a claim which always requires careful consideration. Indeed, there is growing evidence that a distinct ground of restitution exists to establish a restitutionary claim in unjust enrichment against a public authority and only this ground of restitution is available for such claims. The chapter discusses constitutional considerations and establishment of unjust enrichment as reasons why public authorities should be treated differently from other defendants, the grounds of restitution (including mistake, duress, extortion by colour of office, and total failure of consideration), and recommendation of the Law Commission as to the right to restitution and the special defences.

Although compulsion is not a ground of restitution in its own right, it is a general principle which underlies a number of specific grounds of restitution, most notably duress. The essence of the principle of compulsion is that it arises where pressure has been placed on the claimant to transfer a benefit to the defendant. Compulsion operates in a similar way to mistake as an explanation of why the receipt of an enrichment by the defendant can be regarded as unjust, namely, that the effect of the pressure is treated as vitiating the claimant's intention that the defendant should receive the enrichment. This chapter discusses the principle of compulsion, the different types of enrichment, vitiation of contracts for compulsion, the grounds of restitution, illegality, duress, undue pressure, legal compulsion, and threats to secure the performance of a statutory duty.

This chapter considers evidence of so-called ‘battered woman syndrome’ (BWS) and its role in self-defence cases with respect to criminal law. If we are committed to regarding human life as special, we should not regard the deliberate taking of life in self-defence as justified unless it was absolutely necessary on the immediate occasion. This restriction effectively bars battered women who kill passive abusers from pleading self-defence, because the abuser will not at that moment have been posing an imminent danger of the kind that called for an immediate response. This chapter disagrees with the view that self-defence is an inappropriate plea for a battered woman who has killed a passive abuser. It discusses self-defence as a justification, reasonableness in self-defence, reasonableness of beliefs and the ‘imminence’ requirement, relevance of BWS evidence, and duress.

This chapter discusses obstacles which the doctrine of consideration had placed in the way of legal enforceability of agreements to vary contracts. It distinguishes between increasing pacts (A promises to work for and B for £100 and later B promises to pay A ££150 for the same work) and decreasing pacts (A owes B £100 and B promises to accept £50 in full settlement). A was said to provide no consideration as A was already bound by the original contract to do the work or to make the payment. But, as such variations could, where A was not guilty of duress in procuring them, amount to reasonable renegotiations, the courts in the ‘increasing pact’ cases held that the requirement of consideration was satisfied if B obtained a ‘practical benefit’ from A's performance; and in the ‘decreasing pact’ cases side-stepped that requirement by developing the concept of ‘promissory estoppel’.

This chapter provides an ‘anatomy’ of excuses, a close examination of the sometimes very different elements of which each is comprised. It begins by focusing on three different dimensions to excuses, without turning into an issue of critical importance the question whether they involve either motivational or judgmental elements. It then goes on to break down for the purposes of existing excusing conditions the meaning of a ‘rational defect’ in a morally salient moving force behind an action respecting which one remains morally active.

Ricardo Falla, anthropologist and priest, has dedicated his life to assisting and chronicling the lives of Mayas living under political duress in Guatemala. At considerable risk, Falla has spent over half a decade living with Mayas in the “Communities of Population in Resistance.” This chapter presents an interview of him, weaving together the morality and the practicality of what may more accurately be called a life's passion than ethnography.

Defences to criminal conduct are often an overlooked aspect of international criminal law. As this chapter explains, that weakness does not apply to the Nuremberg Military Tribunals, which generated an extensive jurisprudence concerning a variety of defences. Section 1 discusses ‘jurisdictional’ defences, such as tu quoque. Section 2 focuses on substantive defences that emphasized the defendant's lack of responsibility for a particular crime, such as superior orders and mistakes of law. Finally, Section 3 discusses the defence of military necessity, which functioned either as a failure of proof defence or as a justification, depending on the circumstances.