updated and corrections / mise à jour et corrections : 10 July / juillet 2000; 25 February 2006; 14 November 2017
©François Lareau, 1999, Ottawa, Canada
The Tripartite Theory of the Offence1
par François Lareau
theory of the offence of German origin but having a worldwide
was introduced in North America in the many writings2
of professor George P. Fletcher, Cardozo Professor of
Colombia Law School. This theory expresses a general
of an offence made out of three elements. The notions
justifications and excuses play a primordial role for two of these
The theoretical distinction between a justification and an excuse
by Fletcher dates back to 1906.3
have adopted the tripartite structure5
the offence. We will give in this article a broad outline of
The Three Elements
theory of the offence, or general concept of the offence,6
means, first, that an offence consists of three7
elements or requisite conditions for human conduct to be
and, second, that these elements must be comprised in a
of synthesis and logic. These two propositions are
elements of this theory are: first,9
realization, satisfaction or fulfillment of the prohibitory norm10
of the offence by a human act or omission; second,
third, blame.12 A
the second element, wrongfulness. An excuse excludes the
could define a punishable offence as a human action13
that realizes the prohibitory norm of the offence (first
that is wrongful, i.e. contrary to law in the sense of Right
and is blameworthy (third element). Here is how Fletcher
Naucke, respectively, describe this way of understanding the
... a set of three ordered questions bearing on criminal liability: (1) Did the suspect's act violate a valid norm of the criminal law? (2) Is the violation of the norm unlawful (unjustified)? (3) Is the actor personally accountable for the unlawful violation; that is, is the unlawful violation unexcused? A negative answer to any of these three questions terminates the inquiry into liability.14
... the Straftatsystem provides a structure for analyzing the basic constituents of criminal liability: whether the relevant prohibitory norm has been violated, whether justificatory circumstances are present, and whether culpability or accountability is negated by pertinent excusing conditions.15
The progressive nature of the three elements
As we have
a crucial point of this theory is the progressive nature of
of the elements. Before considering the second element, the
element must have been established in the conduct under
examining the third, the first two must have been established.
First element : conformity between the behaviour of the
the wording of the statute describing the offence
analyze each of the three elements. The first element
a human action that realizes, satisfies or fulfills the
of an offence specified by the statute. There must be
between the behaviour of the accused and the wording of the
the offence.17 This
flows for the principle of legality,
nullum crimen, nulla poena sine
penal codes, the the prohibitory norm of the offence is described
legislator in the Special Part19
the code. The prohibitory norm of the offence includes both
the common law lawyer would call the actus reus or the
element of the offence, that is to say a state of affairs
or consequences) and the descriptive mens rea or mental
of the offence (for example, intention or recklessness).20
norm of one the definitions of the offence of assault in the
commits an assault when ... without the consent of another person,
force intentionally to that other person, directly or indirectly.22
Our Criminal Code does not always specify the descriptive
rea applicable to the offence that an accused is charged
In such cases, courts have established for the applicable
rea, supplementary rules, that is to say, generally,
or willful blindness.23
Second Element : wrongfulness
is the second element in this tripartite structure of the
Sometimes the theoreticians use the expression
Wrongfulness is the "objective conclusion"24
that the act realizes the elements of the definition of the
that it is wrongful or contrary to Right.25
Fletcher writes that "a justification is interposed to challenge
of conduct satisfying the definition of the offense"26
and "concerns the rightness, or at least the legal
of an act that nominally violates the law".27
A justification28 thus
wrongfulness or unlawfulness that comes from the realization or
flowing from the prohibitory norm (definition of the
formula that best explains the relation between the first two
is the "rule- exception formula":29
action that realizes the prohibitory norm of an offence is
except if there is a justification. One can not conclude
act is unlawful, wrongful or contrary to Right if the accused had
recognized in law (in the sense of Right). Wrongfulness is
autonomous element of the concept of an offence, besides the
norm of the statute". 30
pointed out the importance of the progressive nature of synthesis
elements of this theory. Wrongfulness can only be considered
first element has been proven. It is unnecessary to consider
to a charge of assault if the evidence has not disclosed the
of the prohibitory norm of the offence because, then, there is
wrongful, nothing to justify. A wronful act or an act
Right in the synthesis of the offence, is thus one that satisfies
norm of the offence and is not justified by a justification.31
that "[Translation] In the notion of wrongfulness is... included
value of the legal order on the act"32
and that "Wrongfulness answers the question as to what conditions,
contradicts the legal order...".33
that "Justification is commonly associated with
but he rightly adds that this criteria looses its relevancy when
structure of the justification is analysed.35
An important consequence flows from the concept of justification,
states "Claims of justification lend themselves to
and he explains this consequence as follows:
They [claims of justification] extend to anyone aware of the circumstances that justify the nominal violation of the law. If the threatened victim may justifiably defend himself against unlawful aggression, then others in a position to do so may justifiably intervene on his behalf. This feature of universality follows from the justification's rendering the violation right and proper.37
can thus help another person she or he knows is justified and be
or herself justified.
Third Element: the Existence of Blame
two elements are proved, there must also be blame for the
act to be punishable. This third element, blame, is
by an excuse. Fletcher explains this element of blame that
"attribution" as follows:
[attribution] ...refer[s] to the judgment that a particular individual may fairly be held accountable for his wrongdoing in violation of a legislative prohibition. The notion of excusing is the precise reciprocal of attribution; it is the judgment that the individual cannot be fairly held accountable.38
Jescheck affirms that "[Translation] in the reproach of fault is ... included the judgment value of the legal order on the author"39 and that this third element "[Translation] "answers the question as to whether the accused can be personally rendered responsible for the unlawful act". 40 Hassemer explains that the excuse concept is "commonly associated with individualized/subjective factors".41
another distinction between justifications and excuses as follows:
An excuse is personal: "Excuses ... are personal and limited to the specific individual caught in the maelstrom of circumstances. This limitation derives from the required element of involuntariness in excused conduct".43 Contrary to justification, a third party can not assist a person who benefits from an excuse and so "borrow" that excuse for his own defense.Excuses derive from norms directed not to the public, but rather to legal officials, judges, and juries, who assess the accountability of those who unjustifiably violate the law.42
us two possible explanations for excuses.44
Each one of them finds its rationale in a philosophy of
The first explanation derives from the theory of retribution: :
A retributive theory of punishment insists that the actor deserves punishment only if he is personally accountable for violating the law. The assumption is that no one is accountable for unavoidable acts, and excuses argue that the actor could not have avoided committed the criminal act. This standard of "avoidability" should be interpreted normatively. The question always is whether it would be fair under the circumstances to expect the actor to resist the pressures of the situation and abstain from the criminal act.45
can also be explained by the utilitarian concept of punishment :
Only the act that realizes the prohibitory norm and that is contrary to Right can be the subject of blame:As a measure causing pain, punishment should never be imposed when it is pointless. The purpose of punishment is to deter socially undesirable behavior. Punishment is pointless with regard to classes of actors, such as the insane, who are not deterrable. Therefore, nondeterrables should be excused from punishment for their criminal acts.46
Excuses make sense only in the context of precluding blame and thus presuppose the possibility of blame ....
... There would be no more point in blaming or excusing a justified act than there would be in blaming or excusing a beneficial act. The justification sanctifies the act and renders excuses irrelevant.47
The doctrine often cites an article by professor Greenawalt to disagree with the distinction between justifications and excuses.48 Before taking a categorical position against the distinction, one should also read the important writings that have criticized professor's Greenawalt article.49
sketched out in this short article, the broad lines of the
of the offence: the three elements of the theory and its
to readers that they use this theory to discuss and to analyze
problems of criminal law.
it would be interesting to see up to what point case-law and the
(text writers) have accepted this theory.50
1. This article is a translation of my article "La théorie tripartite de l'infraction" found at http://www.achilles.net/~flareau/infraction.htm. That article is in part a recast of a portion of my thesis for the master of law degree (LL.M.), Légitime défense et théorie, Ottawa University, 1992.
2. See at this web site, my bibliography on justifications and excuses and the writings of professor Fletcher mentioned there.
3. See Winfried Hassemer, "Justification and Excuse in Criminal Law: Theses and Comments",  Brigham Young University Law Review 573-609 and Albin Eser, "Justification and Excuse", (1976) 24 American Journal of Comparative Law 621-637.
4. George P. Fletcher, Rethinking Criminal Law, Boston: Little, Brown, 1978 , p. 467, mentions Germany, Japan, Italy and the Latino-American countries. We could add Austria, Spain and Greece. The German Penal Code regulates most of the justifications and all of the excuses.
5. Fletcher, ibid., p. 552, uses the expression "three-tiered structure".
6. On this topic, see in particular: Fletcher, ibid.; Eser, supra, note 3; Wolfgang Naucke, "An Insider's Perspective on the Significance of the German Criminal Theory's General System for Analyzing Criminal Acts",  Brigham Young University Law Review 305-321; Hans-Heinrich Jescheck, "Droit pénal - Procédure pénale", translation and adaptation by Alfred Rieg, in Michel Fromont and Alfred Rieg, eds., Introduction au droit allemand, Tome II, Droit public - Droit pénal, Paris: Cujas, 1984, pp. 266-279 and, by Jescheck also, "The Doctrine of mens rea in German criminal law - its historical background and present state", (1975) 8 Comparative and International Law Journal of Southern Africa 112-120.
7. Certain German authors, e.g. Albin Eser, in "Justification and Excuse: A Key Issue in the Concept of Crime", Albin Eser et al., eds., Justification and Excuse: Comparative Perspectives, vol. 1, Dobbs Ferry (New York): Transnational Juris Publications, 1987, pp. 17-65, at pp. 61-65 add a fourth element that opposes making an act punishable. For Eser, this fourth element would be the "Special Public Policy Prerequisites", for example, a requirement of prescription that may be negated by the time that has elapsed. This condition exists in Canadian law; the cases of R. v. Mack,  2 S.C.R. 903 and R. v. Scott,  3 S.C.R. 979 state that a judge must decide upon a stay of proceedings for an abuse of process due to police provocation "after a finding of guilt had been made on all the requisite elements of the offence by the trier of the fact" (Cory J., for the majority of the Court in Scott, at p.1003). If the judge decides that he must stay the proceedings, he must then refuse to register a guilty finding. On this subject, see Bruce P. Archibald, "The Constitutionalization of the General Part", (1988) 67 Canadian Bar Review 403-454, at pp. 411-412.
8. That is to say in order for the accused to be found guilty of the offence in a verdict.
9. The German word for the first condition is "Tatbestandsmässigkeit". In French, the words "typicité" or "la réalisation des faits ou éléments constitutifs" could be used.
10. The expression "definition of the offence" is also used. However, it is to be avoided because this element is but a part of the general definition of the offence.
11. The word "unlawfulness" is also employed; the German word is "Rechtswidrigkeit"; in French, the word "illécéité" is employed. We mean by "wrongfulness" what is contrary to Right or Law (the word "Right" is not commonly used; the English language does not have the distinction found in the French language between "droit" and "law". We prefer the expression "wrongfulness" to "unlawfulness" because "unlawfulness" is mainly used in English to mean contrary to statutory law. For in depth studies of this concept in the French language, see Jean Darbellay, Théorie générale de l'illicéité, en droit civil et en droit pénal, Fribourg (Suisse), Éditions Universitaires, 1955, 190 p. and Luis Jimenez De Asua, "L'antijuridicité",  22 Revue internationale de droit pénal 273-318.
12. Other English words that could be used are: "attribution", "guilt", "accountability" or "normative mens rea"; in French, the words "faute", "reproche de faute","imputabilité", "culpabilité", "mens rea normative", or "blâme juridique" are also used. In German, the word is "Schuld". We prefer the expression "blame" because we already find that word in Canadian law.
13. This word is used in its wide meaning which includes omissions. We could have used the words "conduct" or "act or omission".
14. George P. Fletcher, "Justification: 1. Theory", in Sanford H. Kadish, ed., Encyclopedia of Crime and Justice, vol. 3, New York: Free Press, 1983, 941-946 at p. 942.
15. Naucke, supra., note 6, p. 307. Naucke translates the word "Straftatsystem" by "the 'general system for structuring criminal analysis'" at p. 306.
16. Naucke, ibid., explains that it is more precise to describe the Stratatsystem as an effort of synthesis than analysis "since the key function is to bring together the various constituents of liability and the wider values that shape our thought about criminal norms, justifications, and excuses in a structured methodology for resolving particular cases". However, Naucke agrees that it is easier for the American lawyer to understand the Stratatsystem as a system of analysis, because "... Americans tend to use the term 'analysis' indiscriminately to cover both the 'breaking down' (analytic) and the 'gathering together' (synthetic) aspects of the process of reasoning used in deciding cases".
17. Naucke, ibid., p. 311, translates the word "Tatbestandsmässigkeit" (the German word for the first element) as "the state or condition of fulfilling the defined elements of a criminal offense". Professor Jean Gauthier of the University of Lausanne in a letter adressed to François Lareau on May 28, 1991 wrote: "La 'Tatbestandsmässigkeit' désigne le fait qui réalise les éléments constitutifs d'une infraction définie par la loi pénale" which translated reads: "'Tatbestandsmässigkeit' indicates the occurrence that realizes the prohibitory norm defined by the penal statute" (unless otherwise indicated, all translations are by François Lareau). Paul Logoz, in Commentaire du Code Pénal Suisse, Partie Générale, 2e éd. mise à jour avec la collaboration de Yves Sandoz, Neuchâtel: Delachaux & Niestlé, 1976, p. 59, writes about this element as "un comportement humain spécifié par la loi" which translated reads: "a human behaviour specified by the statute".
18. In Canada, this principle is recognized at subsection 6(1) (Presumption of innocence) and at section 9 (Criminal offences to be under law of Caanada) of the Criminal Code and also at article 11 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11.
19. The General Part of modern penal codes generally includes a provision on the descriptive mens rea applicable to the offences of the Special Part; for example, subsection 18(1) of the General Part of the Code pénal suisse [Swiss Penal Code] in Les Codes pénaux européens, Nouvelle Collection du Comité de législation étrangère et de droit international, volume 4, Paris: Centre français de droit comparé, 1971, p. 1923, reads: "Sauf disposition expresse et contraire de la loi, est seul punissable celui qui commet intentionnellement un crime ou un délit" and which translated reads: "Unless, contrarily and expressly provided for in the Act, only an offence or delict committed intentionnallty is punishable".
20. Thus, if a person intentionnally kills another person and the prohibitory norm of an offence in the Special Part specify: "Anyone who intentionally kills another person shall be punished by ...", that person has realized the prohibitory norm of the offence. It is unnecessary in a modern penal code to specify in each provision of the Special Part creating an offence that the person "commits" or "is guilty of" an offence just like it is unnecessary to put the abbreviation "tel." before each number in a telephone book!
21. Section 266 of the Criminal Code of Canada.
22. Paragraph 265(1)(a) of the Criminal Code of Canada.
23. See: R. v. MacCannel, (1980) 54 C.C.C. (2d) 188 (Court of Appeal of Ontario), pp. 192-193; R. v. Buzzanga and Durocher, (1979), 49 C.C.C. (2d) 369 (Court of Appeal of Ontario), p. 381; R. v. City of Sault Ste-Marie,  2 .S.C.R. 1299, pp. 1309-1310; R. v. Vaillancourt,  2 S.C.R 636 at pp. 652-653; R. v. Théroux,  2 S.C.R. 5; however, against the generalization, see in particular: R. v. Creighton,  3 S.C.R. 3 and Bruce P. Archibald, "Fault, Penalty and Proportionality: Connecting Sentencing to Subjective and Objective Standards of Criminal Liability (with Ruminations on Restorative Justice)", (1997) 40 Criminal Law Quarterly 263-286, in particular pp. 276-277.
24. See Eser, "Justification and Excuse", supra., note 3, p. 626.
25. Fletcher, Rethinking Criminal Law, op. cit., note 4, pp. 576-577 is more qualified: "Justified conduct in violation of the definition is not wrongful, but neither is it perfectly legal, as is conduct that falls outside the scope of the definition. This type of harmful conduct might, for example, support tort liability for the harm done."
26. Fletcher, id., p. 563.
27. George P. Fletcher, "The Right and The Reasonable",  Harvard Law Review 949, p. 954. Fletcher, Rethinking Criminal Law, id., p. 564, upholds: "One is permitted to kill or injure another in self-defense, but never required to do so». For Douglas N. Husak, "Justification and the Criminal Liability of Accessories", (1989) 80 Journal of Criminal Law & Criminology 491-520, p. 504, a justification "is better identified with the permissible than with the commendable". For an outline of the terminology used to describe the notion of a justification, see Joshua Dressler, "New Thoughts About The Concept Of Justification In The Criminal Law: A Critique of Fletcher's Thinking and Rethinking", (1984) 32 University of California Los Angeles Law Review 61-99, p. 68.
28. On the justification concept, see Hassemer, supra, note 3 ; B. Sharon Byrd, "Wrongdoing and Attribution: Implications Beyond the Justification-Excuse Distinction", (1987) 33 Wayne Law Review 1289-1342; Eser, "Justification and Excuse", supra, note 3; and Theodor Lenckner, "The Principle of Interest Balancing as a Basis of Justification",  Brigham Young University Law Review 645-668.
29. Emilio S. Binavince, "The Doctrine of Mens Rea in Germany", in Proceedings of the Fourth International Symposium on Comparative Law held in Ottawa (Canada) September 5 to 7, 1966 under the patronage of The Canadian and Foreign Law Research Centre, The Faculty of Law of the University of Ottawa, The Canadian Association of Comparative Law, Ottawa: Éditions de l'Université d'Ottawa/University of Ottawa Press, 1967, (series; Collection des travaux de la Faculté de droit de l'Université d'Ottawa), pp. 143-163. Mr. Binavince is a former professor of criminal law at the University of Ottawa.
30. Jescheck, supra, note 6, p. 267.
31. Fletcher, Rethinking Criminal Law, supra., note 4, p. 515, defines a "wrongful act" as "one that satisfies the definition of the offense and that is unjustified". The first two elements are sometimes gathered together in the doctrine under the English expression of "wrongdoing" or in French, under the words "injuste" or "l'illicite".
32. Jescheck, supra., note 6, p. 267, which reads in French: "Dans la notion d'illicéité se trouve ... inclus le jugement de valeur de l'ordre juridique sur l'acte". On the concept of the "legal order", see F. Von Liszt, Droit pénal allemand, t. 1, Introduction - Partie générale, translation by R. Lobstein, Paris: Giard & Briere, 1911, p. 96.
33. Jescheck, ibid., p. 271, translation of : "L'illicéité répond à la question de savoir à quelles conditions un acte contredit l'ordre juridique...."
34. Hassemer, supra, note 3, p. 591.
35. Ibid., pp. 591-593
36. Fletcher, Rethinking Criminal Law, supra., note 4, pp. 761-762; contra Husak, supra., note 27. J.P. Bishop, Commentaries on the Criminal Law, 7th ed., vol. 1, Boston, Little, Brown, 1882, p. 526, was already affirming in the previous century the existence of a general legal doctrine on the right to help others in self-defense: "The doctrine here is, that whatever one may do for himself he may do for another".
37. George P. Fletcher, "Excuse: Theory", in Sanford H. Kadish, ed., Encyclopedia of Crime and Justice, vol. 2, New York: Free Press, 1983, pp. 724-729, at p. 727.
38. Fletcher, Rethinking Criminal Law, supra, note 4, p. 578. Jescheck, supra, note 6, p. 271, explains the object of blame as follows: "L'objet du reproche de faute est la défectuosité de la formation de la volonté, qui a conduit à la décision juridiquement désapprouvée" which translated reads: "The object of the reproach of fault is the faultiness in the formation of the will that led to the decision that is legally disapproved". The object of blame is thus the reproachable exercise of the will, for example, there can be no reproach of fault or blame when the exercise of the will that led to the wrongful act was that of a young child, a person suffering from mental disorder or a person acting under duress.
39. Jescheck, ibid., p. 267, translation of : "dans le reproche de faute se trouve ... inclus le jugement de valeur de l'ordre juridique sur l'auteur". Jescheck, ibid., explains the sentence as follows: "[Translation] "The punishment represents the public disapproval of the act by the community legally composed; it is a wrong that the agent has deserved for having breach the law ... From this characteristic of deserved punishment flows also the element of fault [blame]", translation of "La peine représente une désapprobation publique de l'acte par la communauté juridique; elle est un mal que l'auteur a mérité pour avoir enfreint le droit ... Du caractère mérité de la peine découle en outre l'élément de faute [blâme]".
40. Ibid., p. 271, translation of: "répond à la question de savoir si l'auteur peut être rendu personnellement responsable de l'acte illicite". As to the meaning of blame or attribution, Élie Daskalakis, Réflexions sur la responsabilité pénale, Paris, P.U.F., 1975, p. 33, seems to give us a very acceptable opinion for certain excuses to intentional offences: "[Translation] Blame means the defavorable judgment against the accused because that person could have not materialize her or his antisocial will [by the unlawful act]. That person should not have manifested that will because the average person [in the same circumstances] could have avoided this manifestation"; translation of "L'imputabilité ... a pour contenu le jugement défavorable à l'égard de l'auteur, consistant en ce que l'auteur aurait pu ne pas matérialiser sa volonté antisociale [par l'action illicite]. Il n'aurait pas dû manifester cette volonté, puisque l'homme moyen [dans les mêmes circonstances] aurait pu éviter cette manifestation".
41. Hassemer, supra., note 3 , p. 591. Hassemer criticizes this opinion at pp. 591-593.
42. Fletcher, "Excuse: Theory", supra., note 37, p. 728.
43. Ibid., p. 727.
44. Ibid., pp. 726-727. For explanations and theories about excuses, see also: Perka v. La Reine,  2 S.C.R. 232 at pp. 248-250 (Dickson J., for the majority judgment of the Court) and Joshua Dressler, "Foreword - Justifications and Excuses: A Brief Review of the Concepts and the Literature", (1987) 33 Wayne Law Review 1155-1167, pp. 1165-1167.
45. Fletcher, "Excuse: Theory", supra, note 37, p. 726; for mistake or ignorance of law as excuses, see Fletcher's commentary, ibid.
46. Ibid., p. 727.
47. Seer Fletcher, "The Right and the Reasonable", supra, note 27, p. 960.
48. Kent Greennawalt, "The Perplexing Borders of Justification and Excuse", (1984) 84 Columbia Law Review 1897-1927; also published in Michael Louis Corrado, ed., Justification and Excuse in the Criminal Law: A Collection of Essays, New York, Garland Pub., 1994, pp. 341-376, (series; Garland Reference Library of Social Science, vol. 831; and Garland Studies in Applied Ehics, vol. 1), ISBN: 0815308256.
49. Alan Brudner, "A Theory of Necessity", (1987) 7 Oxford Journal of Legal Studies 339-368; Byrd, supra, note 28; George P. Fletcher, "Criminal Theory as an International Discipline" in Albin Eser et al., eds., Justification and Excuse: Comparative Perspectives, vol. 2, supra, note 7, pp. 1595-1621, at pp. 1613-1616 and the same article as it appears "in a slightly different version" in (Winter/Spring 1985) 4 Criminal Justice Ethics 60- 77, at pp. 70-71; George P. Fletcher, "The Psychotic Aggressor - A Generation Later", (1993) 27 Israel Law Review 227-246, at pp. 236-237 and 241-246; Hassemer, supra, note 3; Terry L. Price, "Faultless Mistake of Fact: Justification or Excuse?", (Summer/Fall 1993) 12(2) Criminal Justice Ethics 14-28; and Paul H. Robinson, "Rules of Conduct and Principles of Adjudication", (1990) 57 University of Chicago Law Review 729-771, at pp. 745 and 749-752.
50. That work was partially done in my thesis, supra, note 1; however, the work needs to be updated and widened.
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