Privileges and Justifications: A Discussion Paper

This paper considers the relationship between privileges and justifications in legal doctrine. In his discussion of the Minnesota Court of Appeal’s famous decision in Vincent v. Lake Erie Transportation Co, John Goldberg  (2015) argues that it is wrong to label the case as concerning  a ‘privilege’ of private necessity, partly on the ground that the necessity in question is functioning as a ‘denial or justification rather than an excuse’. On the other hand, James Edelman and Esther Dyer (2015) have recently rejected the application of the language of justification or excuse to the defence of duress in tort law, arguing instead that that the defence should be comprehended in Hohfeldian terms as a privilege or liberty. The paper considers the relationship between privileges and justifications in greater generality. I argue that, granted certain plausible philosophical assumptions, justifications and privileges are intimately related. The existence of a legal privilege provides all or part of the justification for the defendant’s wrongful act.

Dr Robert Mullins joined the TC Beirne School of Law in 2015. Prior to that he was a graduate student in philosophy and law at Oxford University. He completed his doctorate in legal philosophy at Oxford in 2016. He teaches into contract law and jurisprudence. His research interests are in legal philosophy, broadly construed.