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Central to critical thinking and education espoused by Israel Scheffler are the

All the defenses only have an evidential burden i.e. the defendant (D) has the burden of raising the defense with evidence in order to make it a live issue but the prosecution has burden to negative the defense.

(2) Origin

All the defenses have their origins in common law and are common law defenses.

(3) Full Defense

All the defenses offer a complete defense i.e. if the defense is accepted D is acquitted.

(4) Intoxication

In the application of all the defenses, any evidence of voluntary intoxication is irrelevant since D has made himself incapable of assessing e.g. the reasonable use of force, threats etc in the defenses hence he is culpable.

II. Contrast

(1) Generality

There is no general defense of necessity but self-defense, duress by threats and duress of circumstances are general defenses.

(2) Application

Self-defense is defense to all crimes while duress by threats and duress of circumstances apply to all crimes except murder, attempted murder and some forms of treason. The defense of necessity operates on a piecemeal basis but it can never be a defense to a charge of murder.

(3) Statutory backing

Some statutes expressly provide for the defense of necessity while there is no statutory backing for the remaining defenses.

(4) Defendant’s characteristics

The defendant’s characteristics are irrelevant in self-defense and the defense of necessity but in duress by threats and duress of circumstances the jury in deciding whether a reasonable person in such a condition might have been impelled to do what D did could consider D’s age, sex, pregnancy or any recognized mental illness.

(5) Test

The test of self-defense is a subjective one in that D must be treated according to the facts D actually believed them to be regardless of whether or not it was objectively reasonable. However, the reasonableness of the belief was material to the question of whether it was actually held or not.

For duress by threats and duress of circumstances, there is both a subjective and objective element. The first limb (subjective) asks whether D was compelled to act as he did because of the circumstances he honestly believed he would die or be seriously physically injured. The second limb (objective) questions whether a person of reasonable firmness sharing D’s characteristics would have responded in the same way to the threats/circumstances. In order to apply the defense of necessity, the court needs to be satisfied that D acted reasonably and proportionately in order to avert the greater evil.

(6) Mistake

With respect to self defense, duress by threats, duress of circumstances and necessity the question is what the defendant actually believed even if he was mistaken. But the belief must nonetheless be a reasonable belief in the case of duress by threats, duress of circumstances and necessity. For self defense, the belief does not have to be a reasonable one but the more unreasonable the belief the less likely it is that it was actually held.

(7) Limitations

Self-defense can only be used as a defense for the purpose of defending D himself/herself, his/her property or another person’s while in duress by threats and duress of circumstances both must have an immediate threat/harm of death or serious physical injury and the threat/harm must be directed towards the commission of the particular offense. Moreover, the threat/harm can be directed against D, his/her immediate family or someone close.

Although the defense of necessity has not been completely rejected yet its application appears in the most trying circumstances and there must be pressure from an extraneous event.

In order to successfully plead the defense of self-defense, the force used must be in response to an immediate and particular threat, not in relation to a future time. In determining the reasonableness of force, the court will consider its proportionality, whether D demonstrated an unwillingness to use force and whether the force was used in the heat of the moment. In duress by threats, the defense will fail if D voluntarily exposed itself to the threat. While in duress by circumstances, the defense will not apply if the commission of an offense is merely the result of D’s own subjective thought processes and emotions.

Question 2

I. Introduction

Although only of academic concern, Walker LJ in Re A (Children) made it clear that these ‘defenses’ were actually either regarded as justifications or excuses in Criminal law.

II. Analysis

Self-defense and necessity is viewed in the eyes of the law as conduct which is justified. The circumstances are such that the court recognizes that it was fitting and right for the defendant (D) to act as he did thus he is not criminally liable.

Duress, by threats or circumstances, is normally viewed as providing D with an excuse for what is, on the face of it, criminal conduct. From a legal perspective, even though D has committed an offense but since D only did so because of a forceful external influence, human or non-human, D was left with no other alternative but to act as required. D’s action is not applauded yet the law understands thus such an act is excused.

The main difference between justifications and excuses is the evaluation of D’s act from a moral point of view. A justified act e.g. use of reasonable force in a lawful arrest is morally correct but robbing a bank in response to a threat of death, for example, which is prima facie against the law nonetheless D’s act is excused, taking into account the threat, allowing him to avoid criminal liability.

At the micro level, a number of finer distinctions are also seen. Firstly, an excusable act may be resisted by another but in relation to justifiable conduct the person threatened may not do so. Secondly, excused conduct causes harm to society and unlike an act which is justified parties other than the excused D remain guilty. Lastly, with regards to an excusatory act all the facts must be known but in a justified conduct D ought to be allowed to rely on facts although he was unaware of at the time of conduct.

III. Conclusion

Although from a theoretical point of view it is not right to describe these concepts as ‘defenses’ yet in practicality it makes little difference whether D is excused or justified since the end result of both is the same i.e. D is acquitted.

Question 3

I. Duress of circumstances and Necessity

Duress of circumstances is a defence of necessity in all but name. The judiciary is fearful in the abuse of the defence recognizing that defendants could simply use the defence of necessity as a veil to cover their true criminal intentions, claiming that the lesser evil was chosen and on that basis they should be exonerated.

The application of the defence of necessity has generally been restricted by the courts throughout common law jurisdictions. In fact the English courts have essentially used ‘duress of circumstances’ as a means to cover cases that would otherwise come within the scope of necessity. Though it is argued that the defense of necessity is necessary in certain exceptional cases e.g. medical cases yet asserting a defense which operates on a cases by case basis and whose exact boundaries are indefinable it beings a degree of uncertainty into the law.

Moreover, the defence of duress of circumstances is capable of dealing with exceptional and difficult cases in a way that necessity may not be and by allowing necessity to co-exist with duress of circumstances it may in fact inhibit the development of a broader defence of necessity. Thus, I propose that the defense of necessity should be subsumed under the defense of duress of circumstances.

II. Duress

Murder

The murder exception rule in the defence of duress is inconsistent both with the human instinct of self preservation and the underlying rationale for the defence which acts as a concession to human frailty. Moreover, the ability of jurors to assess adequately a defence of duress in cases of murder particularly in the light of the strict definition of the defence only makes the case stronger for removing the exception. The defense acts as an excuse not a justification so although heroic behavior is met with great merit in Criminal law yet the failure to achieve should not be met with punishment from the state.

Threat

Duress ought to be available even for threats of a lesser harm than death or serious physical injury provided that the harm threatened exceeds the harm resulting from the commission of the offense i.e. balance of harms. This is because a number of threats although not of a physical nature are still sufficient to overcome the powers of human resistance and the law should recognize that. But this reform can only be properly considered along with the question of shifting the burden of proving duress presently lying on the prosecution onto the defendant since it would become too easy for the defendant to escape liability.

concepts of rationality, objectivity, and pragmatic realism. Scheffler’s conception of rationality is normative; he views rationality as a mode of thought and action which all strive for (Sheffler, 1973) as opposed to a conception of rationality as descriptive which would suppose that rationality is a daily manifestation in our lives. Another interpretation that Scheffler provides to rationality is that it underscores both the ends of actions as well as the values embedded within them (Scheffler, 1973). Scheffler recognizes that rationality is sometimes categorized and separated into the theoretical and practical domains: theoretical rationality deals with beliefs whereas practical rationality emphasizes on actions. Scheffler favors a hybrid concept of rationality wherein both theoretical and practical aspects are considered.

In Reason and Teaching, Scheffler defined rationality as “the ability to participate in critical and open evaluation of rules and principles in any area of life” and “the free and critical quest for reasons” (Scheffler, 1973, p. 62). The fundamental characteristics of reason then are consistency and experience; these constitute rationality in the judgment of specific issues (Scheffler, 1973). The requirement of formal consistency purports that our evaluation and elaboration cannot be considered rational if there are no operative principles or criteria to guide us in forming judgment. However, these rules and principles are not implanted in the mind but are products of the evolution of human knowledge. Scheffler (1973) explained:

The fundamental point is that rationality cannot be taken simply as an abstract and general ideal. It is embodied in multiple evolving traditions, in which the basic condition holds that issues are resolved by reference to reasons, themselves defined by principles purporting to be impartial and universal. (p. 79)

Scheffler views that rationality should be considered a fundamental aim in education. As a broad concept, rationality has the tendency to “bridge the different fields of education

rather than pull them apart” (Siegel, 1996, p. 649). Rationality and all the ideas attached to it are pivotal to discussion, consideration, reflection, and deliberation. Scheffler provides the example of a dancer. Dance incorporates rationality as the student performs; dance is not merely emoting and simply flailing of arms and legs. It requires thinking, questioning, and talking by way of gestures.

Objectivity

Scheffler’s conception of rationality is tied to objectivity which is defined as the process where judgments are “put to the test of independence and impartial criteria” (Scheffler, 1967, p. 1, 3). Neiman and Siegel (1993) elucidate on the connection of rationality and objectivity in the Schefflerian context:

If my belief that p is rational, then that belief is based upon relevant evidence which is impartially and objectively weighed and assessed. Objectivity, in the sense specified, is thus a necessary condition for science and for rational deliberation and belief more generally. But rationality is equally required for objective judgment, since such judgment requires that claims and assertions be evaluated independently, on the basis of relevant evidence, and that the judgment reached be determined by the strength of that evidence. (p. 61)

Responding to the claims of the positivist school that beliefs are ultimately subjective, Scheffler argued the issue of objectivity as a way by which we can examine our belief systems and choose from other competing paradigms which is best, based on good reasons (Scheffler, 1982). Scheffler cautions against the excesses of the Cartesian method where truth is held as “miserly caution” where the scientist “gathers the facts and guards the hoard” (Scheffler, 2009, p. 131). Theoretical imagination is considered a distraction and an obstacle to pure objective science. According to Scheffler, so long as people have access to methods and opportunities to deliberate, they manifest to varying degrees, their level of objectivity. To him, objectivity “concerns the manner of justification; it requires only the responsible commitment to fair canons of control over one’s theoretical claims” (Scheffler, 1982, p. 67). In response to demands of certainty and uniformity in scientific inquiry, Scheffler (2009) provides this critique:

This doctrine is, in fact, the death of theory. Theory is not reducible to mere fact gathering, and theoretical creation is beyond the reach of any mechanical routine. Science controls theory by credibility, logic, and simplicity; it does not provide rules for the creation of theoretical ideas. Scientific objectivity demands allegiance to fair controls over theory, but fair controls cannot substitute for ideas. (p. 131).

Moreover, a crucial element of Scheffler’s conception of objectivity is the absence of certainty, a reflection to his commitment on the epistemological doctrine of fallibility (Scheffler, 1982). Accordingly, the criteria made for justification are also fallible (Siegel, 1982). The norms and criteria should be universal if only to media conflicts between belief systems of particular groups or cultures. However universal we would want these norms to be, we cannot prove the validity of how these criteria serve as justification for objectivity. Hence, justification should not be misconstrued as truth (Siegel, 1982). In the context of education, the inevitable facts of human fallibility and cumulative nature of scientific knowledge preclude absolute certainty. Scientific principles or scientific doctrines should not be considered as absolutes; rather, education must be organized in such a manner which leaves some room for “the possibility of intelligible debate over the comparative merits of rival paradigms” (Scheffler, 1982, p. 130). In this regard, educational content should not be presented as eternal truths but rather as the best truths that we have come up with for the time being. Scheffler conceptualizes rationality and objectivity in relation to a reality that exists independently. This reality partially evaluates which assertions are “based on good reasons”. In his response to Nelson Goodman, Scheffler makes an inference on truth as a human construction:

Surely we made the words by which we describe stars; that these words are discourse dependent is trivially [true….It] doesn’t imply that stars are themselves discourse dependent. (p. 200)

Scheffler’s interpretation of rationality and objectivity figures into what he considers a minimal version of realism. He approaches the entire concept of reality as an educational aim with suspicion. In lieu of reality, Scheffler argues that educators need to emphasize the constrained nature of our inquiry. In the context of educational practice, educators must acknowledge that there are theories more credible over others; our deliberation and evaluation on what these theories are should be depend on reasoned judgment and sound criteria (Scheffler, 1973). Realism presupposes an ideal of expanding our conception of reality. In this case, teachers must encourage and help children keep in touch with reality and provide them with skills in order to manage within it and learn from it. Hence, realism also emphasizes how the development of critical abilities is indispensable in the evaluation and improvement of systems of description to make them more attuned to reality. Scheffler does not subscribe to radical constructivism which proposes that students should be left alone to construe their own knowledge or belief systems without guidance. Without such guidance, students are left with inappropriate or inadequate conceptual tools to learn and manage within reality. Like many supporters of the realist school, Scheffler believes that people who know and understand independent reality will have a greater probability of living a more rewarding life and making more reasonable choices. Accepting the plurality of theoretical and practical domains is one that must be embraced, based on good reason and evidence. Opposite radical constructivism is reductionism which narrows, delimits, and relativizes human understanding so that educational practice is tailor-made to fit into oversimplified conceptual constructs and absolute ideas of right and wrong answers. The idea of scientific and technical human being is one example. To Scheffler, the ideal educator uses “Objectivity without certainty, relativity but not subjectivism, truth consistent with pluralism – these are the pragmatic emphases I admire” (Scheffler, 2009, p. 3).

Scheffler’s views on rationality and objectivity emphasize the importance of reason and observation in our pursuit of understanding and truth. However, these pursuits do not preclude the use of non-cognitive emotions or morality. Based on Scheffler’s pragmatic realist point of view, the non-cognitive aspects of our belief systems do not automatically make them succumb to reason. In fact, in Scheffler’s (2009) view:

The ideal theorist, loyal to the demands of rational character and the institutions of scientific objectivity, is not therefore passionless and prim. Theoretical inventiveness requires not caution but boldness, verve, speculative daring. Imagination is no hindrance but the very life of theory, without which there is no science. (p. 131)

In summary, Scheffler assets that a degree of objectivity is required to pursue rationality. Rationality’s function is to help us weigh, assess, and evaluate our beliefs and actions based on good reasons and evidence. Objectivity ensures that our deliberations or judgments are impartial and not biased.