Volume 78, Number 5

November 2003

The Uplifted Knife: Morality, Justification, and the Choice-of-Evils Doctrine

Adav Noti

The general justification defense, also known as the choice-of-evils doctrine, permits a criminal defendant to seek acquittal on the grounds that his crimes were necessary to prevent greater harm from occurring. In this Note, Adav Noti examines the moral theories that have been advanced to support this defense and argues that only one such theory, which he labels the “uplifted knife,” is truly congruent with the justification defense itself The uplifted knife theory stands for the proposition that it is immoral for the state to punish a defendant whose actions during an emergency situation could not have been impacted by the threat of legal sanctions. The Note shows that applying the uplifted knife theory to otherwise difficult justification cases would improve the courts’ ability to determine which defendants were actually deserving of acquittal. Thus, the Note proposes amendments to the justification statutes that would bring the statutory text more in line with its moral underpinnings.