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RetributivismEssays on Theory and Policy$
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Mark D. White

Print publication date: 2011

Print ISBN-13: 9780199752232

Published to Oxford Scholarship Online: May 2011

DOI: 10.1093/acprof:oso/9780199752232.001.0001

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The Choice of Evils and the Collisions of Theory

The Choice of Evils and the Collisions of Theory

(p.192) 10 The Choice of Evils and the Collisions of Theory

Marc O. DeGirolami

Oxford University Press

This chapter explores the relationship of retributivism to “choice of evils” defense: If an actor must either break the law or allow something terrible to happen, the actor who breaks the law may be justified if the evil he chose outweighs the evil that he prevented. Legal scholars generally consider this to be a clear example of a purely consequentialist calculation. In nearly every jurisdiction, however, an actor who acted with purpose or knowledge in causing the necessity is barred from the defense; this bar has also been rejected as illegitimate by many scholars. The chapter suggests that the connection between retributivism and the choice of evils defense has been overlooked because scholars have focused on this defense as purely consequentialist while marginalizing its retributivist features. More broadly, the chapter argues for a pluralistic understanding of criminal doctrines such as the necessity defense, rather than seeking conceptual purity of theoretical explanation.

Keywords:   retributivism, punishment, justice, choice of evils, necessity defense, consequentialism, pluralism, affirmative, defense

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