Abstract
The Philosophy of Criminal Law collects 17 of Doug Husak’s articles on legal theory, 16 of which have been previously published, spanning a period of over two decades. In sum, these 17 articles make a huge and lasting contribution to criminal law theory. There is much wisdom contained in them; and I find surprisingly little to disagree with, making my job as a critical reviewer quite challenging. Most of the points on which Doug and I disagree can be found in my other published work in this field, so I will have little to say about them, except where they illuminate those few points of disagreement that arise in the particular essays I discuss. Most of what I will say will be in accord with Doug’s views and will principally explore their wider implications. The 17 essays in the book cover too many and too varied topics for one review essay. Therefore, I will focus on just three of them: “Rapes Without Rapists: Consent and Reasonable Mistake” (co-authored by George C. Thomas); “Mistakes of Law and Culpability”; and “Already Punished Enough.” Although I generally agree with the upshots of Doug’s arguments in these chapters, I think the issues they raise are worth further exploration.
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Notes
Husak ( 2009 ).
Husak and Thomas (2011).
This essay has not been previously published.
Husak (1990).
See Alexander and Ferzan ( 2009: ch. 2).
See Alexander and Ferzan ( 2009: ch. 2).
Husak ( 2009: 236–39).
Husak ( 2009: 238).
See Alexander (1996), Alexander (unpublished).
The federal criminal code alone contains over 4,400 different criminal prohibitions; and the federal government is one of limited legislative powers!
See Smith (1974).
See Husak ( 2009: 266–271).
See Alexander and Ferzan ( 2009: 66–67, 309–313).
See Alexander and Ferzan ( 2009: 312).
See Alexander and Ferzan ( 2009: 295–321).
See Alexander (2002).
See, e.g., Model Penal Code (1962), § 3.04(2)(b)(ii) (“The use of deadly force is not justifiable … if … the actor knows that he can avoid the necessity of using such force with complete safety by retreating….”).
Kolber (2009a: 183–184).
See Kolber (2009a: 203–204) (“[D]epriving opera-haters of the right to listen to opera does restrict their liberties; it does not, however, constitute punishment.”).
See also Husak (2010) (“[R]etributive beliefs only require that culpable wrongdoers be given their just deserts by being made to suffer….”).
See Ezorsky (1972: xxvi) (“[A]ssessment of a criminals’s desert after an offense would require that one balance all of his moral wrongs against the suffering of his entire life.”); Berman (forthcoming), Markel (2012: 28–35), Green (2010), Markel and Flanders (2010: 907–915), Bayern (2009), Hessick (2008), Parent (1976). See also Kolber (2009b: 1588 n. 63).
Kolber argues that whether or not we accept the whole-life view of retributivism, we must take into consideration many more factors about the lives of offenders than we do now. According to Kolber, punishment consists of a change in offender’s circumstances. So an offender who is used to living a life of luxury is deprived of far more rights to property while in prison than one who comes from more modest circumstances. We cannot measure amounts of punishment without at least knowing offenders’ conditions prior to punishment. Kolber (2009b: 1566–1570).
References
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Acknowledgments
I thank Adam Kolber and Dan Markel for some helpful conversations and correspondence.
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Alexander, L. You Got What You Deserved. Criminal Law, Philosophy 7, 309–319 (2013). https://doi.org/10.1007/s11572-012-9159-8
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DOI: https://doi.org/10.1007/s11572-012-9159-8