Framing justification: on razian protected reasons, criminal defences, and judicial framing

Abstract

Treball de Fi de Grau en Dret. Curs 2024-2025

Tutor: Josep Joan Moreso

This dissertation explores the conceptual relationship between Joseph Raz’s theory of legal norms as protected reasons and the role of justificatory defences in criminal law, with particular reference to the Spanish legal system. According to Raz, legal norms are both (1) first-order reasons to behave as the norm prescribes and (2) second-order exclusionary reasons that preclude acting on certain competing first-order reasons by excluding them. Crucially , Raz acknowledges that this exclusionary scope is not absolute and may be defeated. Justificatory defences can be understood as such defeaters: they operate as second-order reasons that restrict, and thus cancel, the exclusionary scope of criminal prohibitions. Applying a justificatory defence in a specific case– that is, determining the exclusionary scope of the criminal prohibition in that specific case – requires judges to turn to the underlying reasons that justify the existence of the criminal prohibition in the first place. Inevitably, this involves weighing first-order reasons, which stands in tension with Raz’s pre-emption thesis. The Frame Problem – particularly its Generalized Relevance formulation – provides a helpful lens for understanding this.