Duress and the Antcolony's Ethic: Reflections on the Foundations of the Defense and its Limits

Abstract

Duress is probably the most controversial defense in criminal law theory. Neither its foundation nor its nature as a justification or mere excuse nor its limits achieves any consensus among criminal law academics. In this paper a foundation of the duress defense is presented that considers that its importance lies in the fact that it allows us to appeal to considerations of justice and fairness that can explain the decision to forgo punishment in circumstances when the conduct performed by the actor cannot be considered socially beneficial or correct according to an objective (impartial) assessment of the act. The proposed account of the defense will also help us understand why duress represents instances of excuse rather than of justification. Finally, a brief discussion of the differences between the necessity and duress defenses will be provided, as well as an analysis of the proper limits of the duress defense.