The Choice of Evils and the Collisions of Theory
IN RETRIBUTIVISM: ESSAYS ON THEORY AND POLICY, Mark D. White, ed., Oxford University Press, Forthcoming
26 Pages Posted: 6 Oct 2009 Last revised: 18 Oct 2009
Date Written: October 5, 2009
This essay considers the project of reduction in criminal law theory in a narrow, but paradigmatic, doctrinal context - the choice of evils or necessity defense. Many scholars take the view that the only conceivable explanation for the choice of evils defense must be uncorruptedly consequentialist. There can be no other fundamental explanation, it is said, for a defense that at bottom always must issue in a cost/benefit analysis - a weighing or comparison of the illegal evil that must be done against the evil that will thereby be avoided - than a concern for increasing, or maximizing, social welfare.
Against these views, this essay argues that some of the doctrines which adorn the choice of evils defense are worthwhile precisely because they instantiate values that are in direct and irreconcilable conflict with consequentialism. It develops this claim by considering one of these adornments - the widely adopted doctrinal rule that an actor who is criminally culpable for causing the conditions leading to a choice of evils should not be permitted to assert the defense. The essay offers a retributivist explanation for the exclusion where the actor was purposely and criminally culpable for creating the necessitous conditions and discusses how this justification is in tension with the consequentialist aims of the defense. It then considers whether, in light of this tension, a “hybrid” theory of justification - modeled on hybrid theories of punishment - might best explain the defense. But in the end it rejects that possibility. Hybrid theories, no less than their pure-bred cousins, are inclined toward precisely the types of totalistic explanations that are seemingly confounded by the culpability-in-causing exclusion. The collision of values highlighted by the problem of the choice of evils intimates a different conclusion, one that echoes the deep pluralism constitutive of criminal law itself.
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