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23 UCLA L. Rev. 293 (1975-1976)
The Right Deed for the Wrong Reason: A Reply to Mr. Robinson

handle is hein.journals/uclalr23 and id is 313 raw text is: THE RIGHT DEED FOR THE WRONG REASON: A REPLY TO MR. ROBINSON George P. Fletcher* The last temptation is the greatest treason; To do the right deed for the wrong reason. -T.S. Eliot, Murder in the Cathedral, pt. I So far as there is a school of criminal theory in the United States, it is a school devoted to sifting and celebrating the purposes of the criminal law. Discussions in the literature are dominated by endless recitals of the deterrent, rehabilitative and retributive func- tions of criminal sanctions.' The orthodox view is that all of these purposes are relevant and that any proposed rule of criminal law must be measured by its tendency to further one or all of these goals. If the issue is punishing negligence, for example, the stan- dard mode of analysis is to ask whether punishing negligent con- duct tends to further the deterrent, rehabilitative or retributive functions of the criminal law.' If it furthers none of these ends, then it presumably follows that negligence is not a suitable ground for liability. If the issue is punishing impossible attempts, the right mode of discourse again is to trot out the aims of the criminal law and to check whether punishment would harness any of these stalwarts that haul the system of criminal justice.3 This instru- mentalist style of thought is so deeply entrenched in the United States that it is hard for our commentators and draftsmen to think * Professor of Law, University of California, Los Angeles. 1 The leading articles of this school include Wechsler & Michael, A Ra- tionale of the Law of Homicide (pts. 1-2), 37 COLUM. L. REV. 701, 1261 (1937); Hart, Aims of the Criminal Law, 23 LAW & CONTEMP. PROB. 401 (1958). Cf. MODEL PENAL CODE § 1.02 (Proposed Official Draft 1962). 2 See, e.g., G. WILLIAMS, CRIMINAL LAW: THE GENERAL PART 122-24 (2d ed. 1961); Comment, Is Criminal Negligence A Defensible Basis for Penal Liability?, 16 BUFFALO L. REv. 749 (1967). 3 MODEL PENAL CODE § 5.01, Comment (Tent. Draft No. 10, 1960); Wechsler, Jones & Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempts, Solicitation, and Conspiracy, 61 COLUM. L. REv. 571, 578-85 (1961). Cf. W. LAFAVE & A. ScoTr, HANDBOOK ON CIMINAL LAW 68-69 (1972) (supposing that the question whether the prin- ciple nullum crimen sine lege is binding on a legal system can be resolved by examining the purposes of punishment).

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