Current Law’s Deference to Lay Judgments of Justice

Document Type

Book Chapter

Publication Date



This chapter discusses how current American criminal law often quietly defers to lay judgments of justice. It first considers three sorts of rules common in modern criminal codes that reflect a deference to lay judgments of justice: recognizing excuse defenses; failing to take account of factors relevant to coercive crime-control principles; and creating a false impression that resulting harm is significant by including result elements in offense definitions. It then discusses the vagueness of the standards used in doctrinal formulations and how it reinforces the deference to lay judgments. One plausible explanation for the deference to lay intuitions of justice is that the drafters understood, although they did not make it explicit, that a criminal code could not openly conflict with the community's shared intuitions of justice without losing moral credibility with the community it governs, and that such a loss of credibility would undermine the criminal law's crime-control power.


American criminal law, lay judgments, justice, Model Penal Code, criminal law

Publication Title

Intuitions of Justice and the Utility of Desert