David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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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|
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H. L. A. Hart (1994). The Concept of Law. Oxford University Press.
Jeremy Horder (2004). Excusing Crime. OUP Oxford.
Douglas Husak (2004). The Criminal Law as Last Resort. Oxford Journal of Legal Studies 24 (2):207-235.
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Citations of this work BETA
Roger A. Shiner (2014). Corporations and the Presumption of Innocence. Criminal Law and Philosophy 8 (2):485-503.
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