David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Law and Philosophy 32 (6):729-765 (2013)
The United States Supreme Court has repeatedly insisted that what distinguishes a criminal punishment from a civil penalty is the presence of a punitive legislative intent. Legislative intent has this role, in part, because court and commentators alike conceive of the criminal law as the body of law that administers punishment; and punishment, in turn, is conceived of in intention-sensitive terms. I argue that this understanding of the distinction between civil penalties and criminal punishments depends on a highly controversial proposition in moral theory – namely, that an agent’s intentions bear directly on what it is permissible for that agent to do, a view most closely associated with the doctrine of double effect. Therefore, legal theorists who are skeptical of granting intention this kind of significance owe us an alternative account of the distinctiveness of the criminal law. I sketch the broad outlines of just such an alternative account – one that focuses on the objective impact of legislation on a class of protected interests, regardless of the state’s motivations in enacting the legislation. In other words, even if the concept of punishment is unavoidably intention-sensitive, it does not follow that the boundaries of the criminal law are likewise intention-sensitive, because the boundaries of the criminal law may be drawn without reference to the concept of punishment. I conclude by illustrating the application of this view to a pair of well-known cases, and noting some of its ramifications
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Larry Alexander (2009). Crime and Culpability: A Theory of Criminal Law. Cambridge University Press.
Austin Sarat, Lawrence Douglas & Martha Merrill Umphrey (eds.) (2011). Law as Punishment/Law as Regulation. Stanford Law Books.
Victor Tadros (2011). The Ends of Harm: The Moral Foundations of Criminal Law. Oxford University Press.
Kimberley Brownlee (2008). Justifying Punishment: A Response to Douglas Husak. [REVIEW] Criminal Law and Philosophy 2 (2):123-129.
John Deigh & David Dolinko (eds.) (2011). The Oxford Handbook of the Philosophy of the Criminal Law. Oxford University Press.
Alejandro Chehtman (2010). The Philosophical Foundations of Extraterritorial Punishment. Oxford University Press.
Zachary Hoskins (2011). ''Fair Play, Political Obligation, and Punishment''. Criminal Law and Philosophy 5 (1):53-71.
François Tanguay-Renaud (2013). Victor's Justice: The Next Best Moral Theory of Criminal Punishment? [REVIEW] Law and Philosophy 32 (1):129-157.
René Foqué (2008). Criminal Justice in a Democracy: Towards a Relational Conception of Criminal Law and Punishment. [REVIEW] Criminal Law and Philosophy 2 (3):207-227.
Douglas Husak (2008). Why Criminal Law: A Question of Content? [REVIEW] Criminal Law and Philosophy 2 (2):99-122.
Stephen Shute, John Gardner & Jeremy Horder (eds.) (1993). Action and Value in Criminal Law. Oxford University Press.
Donald A. Dripps (2009). The Priority of Politics and Procedure Over Perfectionism in Penal Law, or, Blackmail in Perspective. Criminal Law and Philosophy 3 (3):247-260.
Kimberley Brownlee (2013). Digging Up, Dismantling, and Redesigning the Criminal Law. Criminal Law and Philosophy 7 (1):169-178.
Added to index2012-12-01
Total downloads8 ( #179,168 of 1,102,047 )
Recent downloads (6 months)1 ( #306,606 of 1,102,047 )
How can I increase my downloads?