An Economic Theory of Criminal Excuse: A Commentary

Abstract

This commentary examines criminal excuse, a doctrine characterized by vague, imprecise legal tests and generally considered immune from economic analysis. Consistent with mainstream act theory, the article accepts that criminal responsibility depends not on the capacity for free will or choice but on the capacity for practical reason, the ability to conform one's behavior to reflection and thought. In a significant departure from mainstream thought, however, the Article points out that actors can control their abilities of practical reasoning within broad parameters. This Article thereby makes explicit a moral judgment previously implicit in criminal legal theory: the law expects actors to achieve and maintain a reasonable capacity for practical reason and fortify this capacity so as to avoid criminal acts.

Excuse is, therefore, appropriate when the cost of rendering one's behavior legal - by correcting faulty beliefs, illicit desires or weak will - exceeds the avoided crime's injuriousness, considering the crime's likelihood of occurrence. This new approach, consistent with the Hand formula, offers a coherent - and highly workable - legal framework for the perennially hoary and confused criminal law doctrines such as heat-of-passion murder, duress, and the immaturity defenses.

Keywords: criminal excuse, law and philosophy, law and economics