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One widely-stated goal of criminal law theory is to create the set of rules that best implements our collective sense of justice. To reach this goal, the theorist continuously adjusts his theory so that it generates rules that better reflect our fundamental notions of justice. These rules, moreover, must function as workable doctrine, which in the context of criminal law means precise statutory provisions. It is this process of theoretical refinement and translation that is the topic of this article. Can good theory generate results that approximate our collective sense of justice? Can the theoretical refinements be translated into workable statutory provisions? What limits the success of the translation? As a case study, this article offers a theory to resolve one of the more troublesome areas of criminal law: cases where an actor is in some way responsible for bringing about the conditions of his own defense, such as by provoking another's use of unlawful force against him or by causing his own intoxication. As Part I illustrates, current law governing such instances is inadequate. It is inconsistent, frequently irrational, and is a poor approximation of our collective sense of justice. Part II offers some basic theoretical principles to govern cases of causing the conditions of one's own defense. These principles are consistent with well-accepted principles of liability and exculpation, and they generate results that accord well with our notions of justice. Nevertheless, dramatic improvement in the law can be realized only if the theory can be implemented through workable doctrine, as expressed in statutes. The statutes proposed here, in fact, face troublesome questions about complexity and difficulties of proof. Part III examines the extent of these problems and offers possible solutions. The most promising solutions, however, have their own problems of constitutional infirmity. Ultimately, then, the confines of the American criminal justice system limit the translation of good theory into workable doctrine.


justice, criminal law, criminal liability, defense

Publication Title

Virginia Law Review

Publication Citation

71 Va. L. Rev. 1 (1985)