Published at 10 New Criminal Law Review 102 (2007)

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In this article it is argued that in two controversial homicide cases--severing conjoined twins and downing a hijacked commercial plane headed toward a heavily populated area--it is permissible to kill innocent human beings without having to establish the existence of a claim of justifcation such as self-defense or choice of evils. Even though criminal law scholars consider that unjustified conduct is always wrong, the position defended in the article is that there is a normative gap between an absence of justification and a finding of wrongdoing. This "normative gap defense," which negates wrongdoing without justifying the conduct, is the best way to deal with the troubling homicide cases described above. The normative gap defense is grounded on what is called a "reasons" theory of wrongdoing. According to this theory, the state cannot legitimately prohibit conduct when, in light of the fact that there are powerful utilitarian reasons in favor of performing the act and commanding deontological reasons against performing it, we are in a state of equipoise in which it is impossible for us to determine which course of action is "the right thing to do" (i.e., justified). Under these circumstances, the conduct should be regarded as non-wrongful even though it is unjustified.

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