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. (shrink)
The article is a review of A.P. Simester, ed., Appraising Strict Liability. We strongly recommend the book for the sophistication of the contributorsâ analyses, and the contribution the book makes to clarifying the normative issues at stake in strict liability legal regimes. The review focuses on the more philosophical essays in the book. The specific issues from the book identified in the review are: the rights-based character of the prohibition on conviction without moral fault; the importance of the principle of (...) proportionality; due diligence defences; the instrumental worth of strict liability in relation to quasi-criminal regulation; the faultiness of genuinely creating risks. (shrink)
Is the nature of law to be formal procedure or to embody substantive value? This work deals with the traditional conflict in legal philosophy between positivistic and anti-positivistic theories of law. It examines the conflict with respect to seven central issues in legal philosophy--law as a reason for action, law and authority, the internal point of view to law, the acceptance of law, discretion and principle, interpretation and semantics, and law and the common good. This work argues that although this (...) conflict cannot be resolved, the true nature of law is revealed--not obscured--by this perennial situation. (shrink)
This article is an extended critical review of a set of essays arguing for the deregulation of U.S. industry. The essays are by mostly lawyers and economists, not philosophers. The writers act as though non-market-based theories of distributive justice do not exist. Nonetheless, the essays are ingenious and sophisticated enough to present a considerable challenge to such theories. In criticism I discuss chiefly two broad themes — the considerations a non-market-based theory would adduce in rebuttal, and the use by the (...) writers of the existing legal framework. The book illustrates most forcefully the clash between rival philosophical visions of the Good Society. (shrink)
RADICAL THEOLOGIANS RIGHTLY SEE THAT THE EXISTENCE OF GOD IS NOT AN EMPIRICAL THESIS, BUT THEIR RESULTANT REINTERPRETATION OF MIRACLES IS UNRECOGNIZABLE TO ORTHODOX THEOLOGY. IS THIS A SYMPTOM OF A MORE PROFOUND PHILOSOPHICAL DIFFICULTY? JOHN WISDOM HAS SHOWN THAT QUESTIONS OF FACT MAY NOT NEED FURTHER EMPIRICAL ENQUIRY BUT STILL NEED SOLUTION AND STILL BE ABLE TO BE RATIONALLY PURSUED. IS THEN THE LESSON TO BE LEARNED FROM RADICAL THEORIES OF THE MIRACULOUS THAT MIRACLES CAN BE EVIDENCE IN PATTERNS? (...) I ARGUE NOT EVEN THIS IS POSSIBLE. FAITH, RELIGIOUS OR SECULAR, IS REQUIRED ALSO TO SEE A MIRACLE IN A PATTERN OR TO SEE NONE. THE BELIEVER AND NON-BELIEVER ARE PLAYING CHECKERS WITH THEIR PIECES ON DIFFERENT COLORED SQUARES. (shrink)
