Present criminal law theory reflects a disagreement over the underlying theory of the justificatory principle, and thus the proper legal formulation of such defenses. At the core of the debate about the principle is the following question. Are justification defenses given because the actor's deed avoids a greater harm, or because she acted for the right reason? The deeds theory of justification justifies conduct that avoids a greater harm, because the conduct is conduct that we would be happy to tolerate under similar circumstances in the future: that is, because the actor has done the right deed. The reasons theory looks not at the deed but at the reason for the deed. The reasons theory gives a defense when a person acts for the right reason, generally trying to avoid a greater harm. The issue between the two theories concerns the focus of justification. Is the focus of justification the nature of the deed or the actor's reason for acting? The debate to date relies in large part upon legal and philosophical arguments. But frequently a third source of authority is brought into play. Each side buttresses its arguments with claims that its theory better tracks the community intuitions, a common claim in criminal law arguments. In this article Robinson and Darley test those claims about the community's intuitions, using experimental social science research techniques designed for such inquiries. They conclude, among other things, that lay intuitions are consistent with the deeds theory of justification and inconsistent with the reasons theory. The study also addresses a variety of other issues related to the operation of justification defenses. In a final section, the authors, discuss the implication of their findings for the formulation and grading of offenses, the formulation of defenses, and the reform of acquittal verdict forms.
North Carolina Law Review
Robinson, Paul H. and Darley, John M., "Testing Competing Theories of Justification" (1998). All Faculty Scholarship. 1350.