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Published online by Cambridge University Press: 24 April 2015
I believe that a person accused of wrongdoing should have an opportunity to respond to the charge. This chance is particularly urgent when the accusation, if proved, subjects the accused to punishment. Response to an accusation is expected both by the accuser and the accused. The scope of response to an accusation should include the accused's ability to argue that he or she is not guilty: not blame-worthy; not deserving of sanction.
Response to an accusation may take several forms. The accused might, for example, deny the validity of the charged wrong. That is, he or she might argue that the articulated statement of the wrong, the rule allegedly breached, was not within the authority of the charging party to promulgate; or claim that the creation of the rule by the charging authority was procedurally defective and the rule invalid on that basis regardless of substance. Or, the accused might agree to the substantive and procedural legitimacy of the rule, but deny that he or she did the acts which the charge alleges. Then again, the accused might concede the general legitimacy of the articulated standard of wrongdoing and his or her violation of that standard, the protection of which the person would ordinarily want, but the accused might offer a special case story of exculpation.
The third response, an admission to the doing of a proscribed act followed by an explanation which seeks vindication, is the subject examined here as it operates in the system of criminal law. I call this response the justification story. Legal practice controls the opportunities of one accused of criminal wrongdoing to respond to an accusation with a justification story. I will use two notions, “law as integrity” and “deviationist doctrine,” as ways to ask how the law interprets the justification story in the legal practice of criminal law.
1. “Metaphysics will walk again only when it surrenders pretensions to proof, and as humbly as the Apostles' Creed, begins its words with: I believe!” Bouwsma, O.K., Philosophical Essays 83 (1965)Google Scholar. “With the obligation to explain comes a reciprocal obligation to listen, and thus the possibility that at least a common language will emerge from this discord.” Burt, , Constitutional Law and the Teaching of the Parables, 93 Yale L.J. 455, 486–87 (1984)CrossRefGoogle Scholar.
2. 317 S.W.2d 943 (Tex. Crim. App. 1958).
3. That there are two questions here cannot be overemphasized. The appellate court was asked only to consider the question of law. Did Butterfleld have a right to tell his story and to have the jury told they might find him not guilty? Whether or not the jury should find for or against Butterfleld is a distinct and separate question. This paper talks only of the right to speak and command consideration.
4. Dworkin, R., Law'S Empire (1986)Google Scholar [hereinafter cited as Law's Empire]. There have been many reviews of Law's Empire. See, e.g., Addis, The Empire Strikes Back (Book Review), 40 U. Fla. L. Rev. 585 (1988); Levenbook, , The Sustained Dworkin (Book Review), 53 U. Chi. L. Rev. 1108 (1986)CrossRefGoogle Scholar; Soper, , Dworkin's Domain (Book Review), 100 Harv. L. Rev. 1166 (1987)CrossRefGoogle Scholar; Steinhardt, , Believers Inside the Tent: Ronald Dworkin's Evangelism and Law's Empire (Book Review), 56 Geo. Wash. L. Rev. 431 (1988)Google Scholar.
5. Law's Empire, supra note 4, at 4.
6. Id. at 97.
7. Id. at vii, 53, 231.
8. Id. at 177, 230-31.
9. Id.
10. Id. at 183.
11. Id. at 165.
12. Id. at 166.
13. Id. at 229.
14. Id. at 230.
15. Id. at 231.
16. Id. at 413.
17. Unger, , The Critical Legal Studies Movement, 96 Harv. L. Rev. 561 (1983)CrossRefGoogle Scholar [hereinafter cited as Critical Legal Studies]. Another version of Unger's article appears as Unger, R., The Critical Legal Studies Movement (1986)Google Scholar. There are not any substantial variations in the two printings. References here will be made to the Harvard Law Review version since it is more likely to be easily available for the reader's investigations. There have been several reviews of the book version of Critical Legal Studies See, e.g., Blum, , The Myth of Legal Objectivity (Book Review), 7 Calif. Lawyer 51 (07 1987)Google Scholar; Collins, , Book Review, 54 U. Chi. L. Rev. 1117 (1987)Google Scholar; Rodes, , Critical Legal Studies (Book Review), 39 J. Legal Educ. 141 (1989)Google Scholar.
18. Critical Legal Studies, supra note 17, at 579.
19. Id. at 577.
20. Id.
21. Id.
22. Id. at 578.
23. Id.
24. Id. at 577.
25. Id. at 580.
26. Id. at 615.
27. Id. at 580.
28. Id.
29. Id. at 583.
30. Id. at 647.
31. Id.
32. Id. at 647-48.
33. Id. at 648.
34. Id. at 587.
35. Law's Empire, supra note 4, at 239.
36. Dworkin creates a distinction between principles that are in competition and principles that are in contradiction. When principles are in competition, “any moral vision would be defective if it wholly disowned either impulse.” Id. at 269.
In Dworkin's critique of critical legal studies thinkers, he argues that they ignore the distinction between competing and contradictory principles. However, Dworkin is hard-pressed to describe criteria for the distinction. He does suggest why others may not see the distinction by hinting at their motives; “they may want to show law in its worst rather than its best light, to show avenues closed that are in fact open, to move toward a new mystification in service of undisclosed political goals.” Id. at 275.
37. Id. at 93.
38. 489 A.2d 606 (N.H. 1985).
39. Id. at 607-08.
40. Id. at 607 (quoting N.H. Rev. Stat. Ann. § 627:3 1986).
41. Id. at 607.
42. Id.
43. Id.
44. Id.
45. Id. at 608.
46. Id.
47. Id.
48. Id.
49. 603 F.2d 1347 (9th Cir. 1979).
50. Id. at 1352.
51. Id. at 1351-52, referring to LaFave, W. and Scott, A., Handbook on Criminal Law (1972) § 50 at 387Google Scholar.
52. Id. at 1351.
53. Id. at 1351-52.
54. Id. at 1352.
55. Id.
56. Id.
57. See Symposium: The 25th Anniversary of the Model Penal Code, 19 Rutgers L.J. 519 (1988)Google Scholar.
58. Model Penal Code § 3.02 (Official Draft and Revised Comments 1985) [hereinafter cited as MPC].
59. Id. Comment at 9.
60. Id. at 11.
61. Id. at 12.
62. Id.
63. Id. at 13.
64. Id. at 14.
65. Fletcher, G., Rethinking Criminal Law (1978)Google Scholar [hereinafter cited as Rethinking Criminal Law]. Professor Fletcher is at the center of much recent scholarship on justification. He has tried to maintain a distinction between the doctrines of excuse and justification. Doctrines of excuse concede a wrongful act, but seek to excuse the actor; doctrines of justification seem to concede that a rule was violated but hope to justify the act and actor by special circumstances. Several effects might turn on the distinction. See Rethinking Criminal Law 759-61 (third party may aid justified but not excused actor) and 763-64 (person may defend against excusable but not justified actor). See also Eser, , Justification and Excuse, 24 Am. J. Comp. L. 621 (1976)CrossRefGoogle Scholar.
Professor Fletcher also dealt with justification doctrine in several articles prior to the publication of Rethinking Criminal Law and continues to use justification doctrine as a vehicle for exploring the criminal law. See also Fletcher, , The Individualization of Excusing Conditions, 47 S. Cal. L. Rev. 1269 (1974)Google Scholar; Fletcher, , The Right Deed for the Wrong Reason: A Reply to Mr. Robinson, 23 Ucla L. Rev. 293 (1975)Google Scholar; Fletcher, , Should Intolerable Prison Conditions Generate a Justification or an Excuse for Escape?, 26 UCLA L. Rev. 1355 (1979)Google Scholar; Fletcher, , The Right to Life, 13 Ga. L. Rev. 1371 (1979)Google ScholarPubMed; and Fletcher, , The Right and the Reasonable, 98 Harv. L. Rev. 949 (1985)CrossRefGoogle Scholar.
Of course, even Professor Fletcher's Rethinking has been rethought. See Dressler, , New Thoughts About the Concept of Justification in the Criminal Law: A Critique of Fletcher's Thinking and Rethinking, 32 UCLA L. Rev. 61 (1984)Google Scholar.
66. Rethinking Criminal Law, supra note 65, at 790.
67. Id. at 790.
68. Id.
69. Id. at 791. But see Zupancic, , Criminal Responsibility Under Mistake of Law: The Real Reasons, 13 Am. J. Crim. 37 (1985)Google Scholar.
70. Rethinking Criminal Law, supra note 65, at 791.
71. Id. at 792.
72. Id.
73. Id.
74. Id. at 792-93.
75. Id. at 793.
76. Id.
77. Id.
78. Id. Professor Fletcher does not muddy the “fairly clear” cases by wondering about the particular traffic regulations at issue or the unintended result of the violation. Would it matter that the regulation violated focused on the need for a license, proper speed, or intoxication of the driver? And, what if there were a fatal accident? Similarly, what of a little explosion that saves a lot of tundra?
79. MPC § 3.02(1)(b).
80. MPC § 3.02(1)(c).
81. Rethinking Criminal Law, supra note 65, at 794.
82. Id.
83. Id. at 794-95.
84. Id. at 795.
85. Low, P., Criminal Law 171 (1984)Google Scholar.
86. Id. at 172. Professor Low's articulation of the elements is, of course, just one of many. See also Dressler, J., Understanding Criminal Law 250 (1987)Google Scholar (a relatively modern example articulating the elements) and Arnolds, and Garland, , The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J. Crim. L. & Criminology 289, 294 (1974)CrossRefGoogle Scholar (a relatively classic example articulating the elements).
87. See e.g. Nebraska Jury Instructions 2d Criminal 7.0 (1989); Note, Necessity: The Right to Present a Recognized Defense, 21 New Eng. L. Rev. 779, 815 (1986)Google Scholar.
88. Robinson, , Criminal Law Defenses: A Systematic Analysis, 82 Colum. L. Rev. 199, 242–43 (1982)CrossRefGoogle Scholar.
89. Law's Empire, supra note 4, at 93.
90. Critical Legal Studies, supra note 17, at 583.
91. See discussion supra at notes 9 and 29.
92. “The Tao is (like) the emptiness of a vessel; and in our employment of it we must be on our guard against all fullness. How deep and unfathomable it is, as if it were the Honored Ancestor of all things!” Lao-Tse, Tao Te Ching, Ch. IV, translated in Legge, J., The Texts of Taoism 49, 50 (Dover, ed. 1962)Google Scholar.
93. “If all existing things were to become smoke the nostrils would distinguish them.” Kirk, G.S., Heraclitus The Cosmic Fragments 232 (1954)Google Scholar.
94. The two value principles are, of course, not the ideals and understandings of any particular people. They are word mirrors that are reflective of reality. As such, they stand on the same grounds as due process, fairness and justice.
95. See generally, Kelman, M., A Guide to Critical Legal Studies 62–63 (1987)Google Scholar; Kennedy, , “The Structure of Blackstone's Commentaries,” 28 Buffalo L. Rev. 205, 211–13 (1979)Google Scholar; Michelman, Justification (and Justifiability) of Law in a Contradictory World, XXVIII Nomos 71, 73-82 (1986); West, , Jurisprudence and Gender, 55 U. Chi. L. Rev. 1, 51–53 (1988)CrossRefGoogle Scholar.
96. “As things now stand, everything is up for grabs.” Leff, , Unspeakable Ethics, Unnatural Law, 1979 Duke L.J. 1229, 1249 (1979)Google Scholar. The power of the story to threaten every rule has been eloquently presented by Professor Norval Morris and by his use of the stories by or about Eric Blair (George Orwell). See Morris, , The Veraswami Story, 52 U. Chi. L. Rev. 948 (1985)CrossRefGoogle Scholar.
97. Rethinking Criminal Law, supra note 65, at 792.
98. Id. at 793-94.
99. Id. at 795.
100. Id. at 796.
101. Revelation 1:3.
102. Kadish, M. & Kadish, S., Discretion to Disobey (1973)Google Scholar.
103. Id. at 69-72, 99.
104. Id. at 212-13.
105. Id. at 185-96, 210-11, 217.
106. Id. at 1-5, 37, 88-91.
107. Id. at 69.
108. Id. at 68.
109. Id.
110. Law's Empire, supra note 4, at 112.
111. Critical Legal Studies, supra note 17, at 587.
112. Law's Empire, supra note 4, at 178-84.
113. Id. at 178.
114. Id. at 179-80.
115. Id. at 180-82.
116. Id. at 183.
117. Dworkin would call the principles of element-specific rules that justify in every case, and the principle of the justification story that may justify in every case, competing rather than contradictory principles. The distinction is that competing principles are not incoherent in the way contradictory principles are. Rather, a satisfactory moral vision takes account of all competing principles even if the visionary must declare some past political or judicial decisions as mistakes. Id. at 268-71.
118. Balkin, , Taking Ideology Seriously: Ronald Dworkin and the CLS Critique, 55 U.M.K.C. L. REV. 409–15 (1987)Google Scholar. Cf. Law's Empire, supra note 4, at 178-84.
119. Critical Legal Studies, supra note 17, at 615.
120. A classic discussion of jury nullification may be found in Scheflin, , Jury Nullification: The Right to Say No, 45 S. Cal. L. Rev. 168 (1972)Google Scholar.
121. Arnolds and Garland, supra note 86, at 297-98.
122. Fuller, L., The Morality of Law 184 (Yale rev. ed. 1969)Google Scholar.
123. Id. at 186. While the element-specific articulation of a “necessity defense” opens communication a bit, the justification story threatens every wall. Yet, there is not a shortage of writers hoping to free some particular channel. There are many articles urging that the writer's particular articulation of the “necessity defense” should be applicable to some recurring set of facts. See generally Gardner, , The Defense of Necessity and the Right to Escape from Prison—A Step Towards Incarceration Free from Sexual Assault, 49 S. Cal. L. Rev. 110 (1975)Google Scholar; Aldridge, and Stark, , Nuclear War, Citizen Intervention, and the Necessity Defense, 26 Santa Clara L. Rev. 299 (1986)Google Scholar; Note, Deprogrammers, and the Necessity Defense, 80 Mich. L. Rev. 271 (1981)CrossRefGoogle Scholar; Note, The State Made Me Do It: The Applicability of the Necessity Defense to Civil Disobedience, 39 Stan. L. Rev. 1173 (1987)CrossRefGoogle Scholar; Comment, The Necessity Defense in Abortion Clinic Trespass Cases, 32 St. Louis U.L.J. 523 (1987)Google Scholar.
124. State v. Fee, 489 A.2d 606, 607-08 (N.H. 1985).
125. United States v. Coupez, 603 F.2d 1347, 1352 (9th Cir. 1979).
126. Cover, , Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4, 53–60 (1982)Google Scholar.
127. Id. at 4.
128. Id. at 11-19.
129. Law's Empire, supra note 4, at 400-01.
130. Cover, supra note 126, at 53.
131. Id. (emphasis in original).
132. Id. at 54.
133. 388 U.S. 307 (1967).
134. Cover, supra note 126, at 55.
135. Id. at 60. See also Zupancic, , Criminal Responsibility Under Mistake of Law: The Real Reason, 13 Am. J. Crim. L. 37 (1985)Google Scholar.
136. Dan-Cohen, , Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625 (1984)CrossRefGoogle Scholar.
137. Id. at 635.
138. Id. at 671-72.
139. Id. at 638, 672.
140. Singer, , On Classism and Dissonance in the Criminal Law: A Reply to Professor Meir Dan-Cohen, 77 J. Crim. L. & Criminology 69 (1986)CrossRefGoogle Scholar.
141. Id. at 96.
142. Dan-Cohen, supra note 136, at 673.
143. Singer, supra note 140, at 100.
144. Law's Empire, supra note 4, at 229.
145. White, J.B., When Words Lose Their Meaning 284 (1984)CrossRefGoogle Scholar.
146. Id.
147. Id. at 264.
148. Id. at 265.
149. Id. at 266.
150. Id. at 265.
151. Law's Empire, supra note 4, at 413.
152. Id.
153. United States v. Coupez, 603 F.2d 1347, 1352 (9th Cir. 1979).
154. MPC § 3.02(1)(c).
155. Rethinking Criminal Law, supra note 65, at 792-93.
156. Law's Empire, supra note 4, at 191.
157. Michelman, , Foreword: Traces of Self-Government, 100 Harv. L. Rev. 4 (1986)Google Scholar.
158. 475 U.S. 503 (1986).
159. Michelman, supra note 157, at 7.
160. Id. at 4, 13.
161. Id. at 15.
162. Id. at 17.
163. Id. at 36-55.
164. Id. at 47.
165. Id. at 17.
166. Id. at 76.
167. Id. at 66-73.
168. Id. at 73.
169. Id. at 75.
170. Id.
171. Id. at 76.
172. Id. at 76-77.
173. Id. at 74.
174. Law's Empire, supra note 4, at 190-216.
175. Id. at 195-216.
176. Id. at 199, 213.
177. Id.
178. Id. at 215.
179. Id. at 413.
180. Id. at 213-14.
181. Id. at 200.
182. Id. at 213.
183. Wasserstrom, , The Empire's New Clothes, 75 Geo. L.J. 199, 265 (1986)Google Scholar.
184. State v. Fee, 489 A.2d 606, 607 (N.H. 1985).
185. Id.
186. Id. at 608; United States v. Coupez, 603 F.2d 1347, 1352 (9th Cir. 1979).
187. United States v. Coupez, 603 F.2d 1347, 1352.
188. Scales, , The Emergence of Feminist Jurisprudence: An Essay, 95 Yale L.J. 1373, 1377 (1986)CrossRefGoogle Scholar.
189. Id.
190. Id. at 1378.
191. Id.
192. Id. at 1378-79.
193. Davis, , Critical Jurisprudence: An Essay on the Legal Theory of Robert Burt's Taking Care of Strangers, 1981 Wis. L. Rev. 419 (1981)Google Scholar.
194. Id. at 421, n.5.
195. Id. at 423.
196. Burt, R., Taking Care of Strangers: The Rule of Law in Doctor-Patient Relations (1979)Google Scholar.
197. Davis, supra note 193, at 424.
198. Id. at 424-25.
199. Id. at 421, n.5.
200. Id. at 426.
201. Id. at 426-27.
202. Id. at 427-44.
203. Id. 449-53.
204. Scales, supra note 188, at 1388.
205. Id.
206. Id. at 1384.
207. Davis, supra note 193, at 450.
208. Law's Empire, supra note 4, at 412.
209. Id. at 78-83.
210. Id. at 81.
211. See Balkin, supra note 118, supra note 4, at 406.
212. Law's Empire, supra note 4, at 235.
213. Id. at 258-71.
214. Davis, supra note 193, at 439.
215. Scales, supra note 188, at 1388.
216. Law's Empire, supra note 4, at 410.
217. Blake, W., Didactic and Symbolical Works, “A Memorable Fancy” in The Complete Poetry of William Blake 661 (Modern Library ed. 1941)Google Scholar.
218. Ancient traditions are not always clearly remembered or continuously practiced. For example, the United States Supreme Court in Nix v. Whiteside, 475 U.S. 157 (1986), refers to the right to testify in one's own defense as of relatively recent origin. It seems more likely that the right was relatively recently remembered. See generally Burt, supra note 1.
219. Some have been told that the world is on the back of a giant turtle. “And what does the turtle stand on?” they asked.
220. Evans, R., Jung on Elementary Psychology 56-57, 96–97 (1976)Google Scholar. In a discussion with Richard Evans, Dr. Jung says: “My whole scheme of typology is merely a sort of orientation.” Id. at 97. Nothing more is intended here.
221. “[D]emocratic discourse is incompatible with the privileging of some forms of discourse at the expense of silencing others.” Sherwin, , A Matter of Voice and Plot: Belief and Suspicion in Legal Storytelling, 87 Mich. L. Rev. 543, 599 (1988)CrossRefGoogle Scholar. But see Carter, , Evolutionism, Creationism, and Treating Religion as a Hobby, 1987 Duke L.J. 977 (1987)Google Scholar; Fish, , Liberalism Doesn't Exist, 1987 Duke L.J. 997 (1987)Google Scholar.
222. See, Lehman, , How to Interpret a Difficult Statute, 1979 Wis. L. Rev. 489, 506 n.35 (1979)Google Scholar.