Choice of Evils -- Two Serious Problems: 1) Is the Choice of Intangibles Covered by the Justification? 2) The Uncertainty Caused by the Lack of Objective Guidelines Regarding Proportionality

Abstract

The way the choice of evils is framed in the MPC is a great step forward for the criminal law theory. Nevertheless, it generates certain problems in connection with the main requirement mentioned above, proportionality. First, the absolute majority of the scholarship has not addressed the fact that the balance of interests may include intangible interests and not only tangible ones. Second, the lack of objective guidelines to determine what is the proportionate balance in any given case causes a great deal of legal uncertainty for the citizenry, since they cannot foresee how their actions may be balanced.