6 - Alternative Lesser Evils

Summary

In an important paper, Larry Alexander invites theorists to consider the criminal liability of a defendant who commits a crime, and thereby avoids producing a great evil, when a third option was available to him that would have been better yet than the option he took. This paper accepts the invitation. It argues that appealing efforts to resolve such cases, including Alexander's own, are inadequate, and offers an alternative. The alternative proposal involves construing the lesser evils defense as aimed not at shielding from liability those who act in a morally permissible way, as is often suggested, but, instead, as aimed at shielding the government from engaging in behavior driven by contradictory normative commitments. When the defense is understood in this way, it is suggested, it becomes clear that defendants who chose the lesser alternative to a great evil are still owed a defense from criminal liability.