288	A PROPOSED CODE

II. From an Idealized Code to a Practical One: Implementing Our Theory in “the Real World”

No doubt, our idealized code will seem bizarre to many people. Gone are references to rape, murder, and intention. In their place are risk impositions and legally protected interests. One might object that although our “Golden Rule culpability formulation” works in theory, it can never work practically.

This section looks at how one might implement our idealized code in the current legal system. Before turning to the practicalities of implementing our code – a process that will not be without its difficulties – we discuss the current state of the criminal law. We argue that the status quo is far from acceptable, and it should not be entitled to deference simply because it is the status quo. We also argue that our current criminal codes, although they appear to be rule based, ultimately rely on standards. Thus, it is no argument in favor of the status quo and against our code that ours is standards based.

After surveying the current state of criminal law, we turn to the question of whether a ruleor standards-based system is preferable. Here, we discuss the value of having rules, and how values that law is meant to serve are better served by rules than by standards. However, we then discuss a significant problem with rules – the existence of an ineliminable gap between the reasons for promulgating a rule and the reasons that a citizen has to obey it. For a retributivist, this problem is particularly worrisome because any actor who falls within this gap is an innocent (nonculpable) actor who does not deserve punishment – even if he has violated the rule.

Because this gap exists and cannot be eliminated, we argue that in almost all cases, the criminal law should opt for standards. However, we note that in some cases, the pressure for rules may be overwhelming. We thus discuss the form in which these rules should be enacted and how violations should be punished.

We then turn to a range of other considerations. We argue that our standards-based system is consistent with the principle of legality. We address enforcement concerns, particularly as related to plea bargaining and to our simultaneously wide and narrow conception of a criminal act. And we conclude with a brief discussion of procedural, evidentiary, plea-bargaining, and sentencing considerations.