David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Criminal Law and Philosophy 3 (2):167-186 (2009)
How are we to understand criminal law reform? The idea seems simpleâthe criminal law on the books is wrong: it should be changed. But 'wrongâ how? By what norms 'wrongâ? As soon as one tries to answer those questions, the issue becomes more complex. One kind of answer is that the criminal law is substantively wrong: that is, we assume valid norms of background political morality, and we argue that doctrinally the criminal law on the books does not embody those norms. Another kind of answer is that the criminal law as it stands presupposes certain empirical facts, and yet those facts do not hold. Traditionally, criminal law reform has been informed by both these answers. Analytical theorists examine doctrine for its conceptual structure, and social scientists examine the actual workings of the criminal justice system. This tidy picture is, however, challenged by social constructivist accounts of the criminal law. They challenge the stability and conceptual purity of doctrine, and they challenge the objectivity of social science. On the basis of these challenges, they undermine the ambitions of traditional criminal law reform, and argue that the only reforms to the criminal law that matter are politicized onesâthat criminal law reform is pointless unless it serves the interests of the marginalized and the dispossessed. It seems undeniable that in some sense our perceptions of crime in our society are indeed moulded by social forces, and that crime does not exist independently of the social structures and processes that help to define and control it. But why should those insights have the implications for our understanding of criminal law reform that they are alleged to have? How could it follow from those insights that criminal law reform either becomes radicalized or valueless? The aim of this paper is to show that what can legitimately be taken from the emphasis on the social constructedness of crime does not require wholesale abandonment of the traditional picture of criminal law reform, even though it may require some modifications of that picture.
|Keywords||Criminal law reform Analytical legal philosophy Critical criminology Criminalization Criminal law doctrine Social construction of crime Crime and power|
|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
H. L. A. Hart (1994). The Concept of Law. Oxford University Press.
Jeremy Horder (2004). Excusing Crime. Oup Oxford.
Douglas Husak (2002). Limitations on Criminalization and the General Part of Criminal Law,”. In Stephen Shute & A. P. Simester (eds.), Criminal Law Theory: Doctrines of the General Part. Oxford University Press. 13--46.
Douglas Husak (2004). The Criminal Law as Last Resort. Oxford Journal of Legal Studies 24 (2):207-235.
Citations of this work BETA
Roger A. Shiner (2014). Corporations and the Presumption of Innocence. Criminal Law and Philosophy 8 (2):485-503.
Similar books and articles
Douglas Husak (2008). Why Criminal Law: A Question of Content? [REVIEW] Criminal Law and Philosophy 2 (2):99-122.
Kimberley Brownlee (2013). Digging Up, Dismantling, and Redesigning the Criminal Law. Criminal Law and Philosophy 7 (1):169-178.
R. A. Duff (2010). Towards a Theory of Criminal Law? Aristotelian Society Supplementary Volume 84 (1):1-28.
François Tanguay-Renaud & James Stribopoulos (eds.) (2012). Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law. Hart Publishing.
Larry Alexander (2009). Crime and Culpability: A Theory of Criminal Law. Cambridge University Press.
Antony Duff & Stuart P. Green (eds.) (2011). Philosophical Foundations of Criminal Law. Oxford University Press.
Michael S. Moore (1993). Act and Crime: The Philosophy of Action and its Implications for Criminal Law. Oxford University Press.
Larry May & Zachary Hoskins (eds.) (2010). International Criminal Law and Philosophy. Cambridge University Press.
David Dolinko (2012). Review of “Crime and Culpability: A Theory of Criminal Law”. [REVIEW] Criminal Law and Philosophy 6 (1):93-102.
Dwight Newman (2012). Theorizing Duress and Necessity in International Criminal Law. In François Tanguay-Renaud & James Stribopoulos (eds.), Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law. Hart Publishing.
Andrew Ashworth & Lucia Zedner (2008). Defending the Criminal Law: Reflections on the Changing Character of Crime, Procedure, and Sanctions. Criminal Law and Philosophy 2 (1):21-51.
Malcolm Thorburn (2012). Two Conceptions of Equality Before the (Criminal) Law. In François Tanguay-Renaud & James Stribopoulos (eds.), Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law. Hart Publishing.
John Gardner (2007). Offences and Defences: Selected Essays in the Philosophy of Criminal Law. Oxford University Press.
François Tanguay-Renaud (2012). Individual Emergencies and the Rule of Criminal Law. In François Tanguay-Renaud & James Stribopoulos (eds.), Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law. Hart Publishing.
Benjamin L. Berger (2012). Mental Disorder and the Instability of Blame in Criminal Law. In François Tanguay-Renaud & James Stribopoulos (eds.), Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law. Hart Publishing.
Added to index2010-09-13
Total downloads26 ( #79,646 of 1,692,743 )
Recent downloads (6 months)6 ( #38,408 of 1,692,743 )
How can I increase my downloads?