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What is Philosophy of Criminal Law?

John Deigh and David Dolinko: The Oxford Handbook of Philosophy of Criminal Law (2011)

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Notes

  1. Michael Moore, Placing Blame: A General Theory of Criminal Law 33 (1997).

  2. See, e.g., John Gardner, Crime: In Proportion and in Perspective, in Fundamentals of Sentencing Theory: Essays in Honour of Andrew von Hirsch 31 (Andrew Ashworth & Martin Wasik eds., 1998).

  3. The discussion here is, by necessity, quick, dirty, and impressionistic. For a more detailed discussion, see R.A. Duff, Answering for Crime: Responsibility and Liability in the Criminal Law 123–135 (2009); A.P. Simester, Enforcing Morality, in The Routledge Companion to Philosophy of Law 481 (Andrei Marmor ed., 2012).

  4. For a discussion, see Bernard Harcourt, The Collapse of the Harm Principle, 90 J. of Crim. Law and Criminology 109 (1999).

  5. For a discussion of a gruesome case that combines both the right to die and the right to sexual autonomy in one place, see Youngjae Lee, Valuing Autonomy, 75 Ford. L. Rev. 2973 (2007).

  6. For a discussion of criminalization that is framed in this way, see, for example, Sandra Marshall and R.A. Duff, Criminalization and Sharing Wrongs, 11 Canadian Journal of Jurisprudence 7 (1998).

  7. For good starting points, see R.A. Duff, Crime, Prohibition, and Punishment, 19 J. Applied Phil. 97 (2002); Douglas Husak, Malum Prohibitum and Retributivism, in Defining Crimes: Essays on the Special Part of the Criminal Law 65 (R.A. Duff & Stuart P. Green eds., 2005).

  8. See, e.g., R.A. Duff, Perversions and Subversions of Criminal Law, in The Boundaries of the Criminal Law 88 (R.A. Duff et al., eds., 2010).

  9. One important exception is Douglas Husak whose sustained focus on these topics has been invaluable. See Douglas Husak, Overcriminalization: The Limits of the Criminal Law (2008).

  10. Julie Suk, Procedural Path Dependence: Discrimination and the Civil-Criminal Divide, 85 Wash. U. L. Rev. 1315 (2008).

  11. One exception is Andrew Ashworth’s discussion of what he calls “preparatory or preinchoate offenses,” which belongs to the third topic, in his essay on attempt liability (p. 127).

  12. For a (literal) diagnosis, see Stephen Morse, Brain Overclaim Syndrome and Criminal Responsibility: A Diagnostic Note, 3 Ohio St. J. Crim. L. 397 (2006).

  13. Youngjae Lee, The Purposes of Punishment Test, 23 Fed. Sent. Rep. 58, 59 (2010).

  14. See, e.g., Larry Alexander & Kimberly Kessler Ferzan, Crime and Culpability: A Theory of Criminal Law 69–85 (2009); Michael S. Moore & Heidi M. Hurd, Punishing the Awkward, the Stupid, the Weak, and the Selfish: The Culpability of Negligence, 5 Crim. L. & Phil. 147 (2011).

  15. Alexander & Ferzan, supra note 14.

  16. Douglas N. Husak, Philosophy of Criminal Law (1987); Douglas Husak, Does Criminal Liability Require an Act?, in Philosophy and the Criminal Law: Principle and Critique 60 (R.A. Duff ed., 1998).

  17. Along these lines, consider the following sentence from the UK Law Commission, which Kutz approvingly quotes: “An accessory’s legal fault is complete as soon as his act of assistance is done, and acts thereafter by the principal… cannot therefore add to or detract from that fault” (p. 158).

  18. For a more detailed discussion of the distinction between offenses and defenses, see Duff, supra note 3, at 195–228; John Gardner, Fletcher on Offences and Defences, 39 Tulsa L. Rev. 817 (2004).

  19. Youngjae Lee, The Defense of Necessity and Powers of the Government, 3 Crim. L. & Phil. 133 (2009); James Q. Whitman, “Between Self-Defense and Vengeance/Between Social Compact and Monopoly of Violence,” 39 Tulsa L. Rev. 801 (2004); George Fletcher, Domination in the Theory of Justification and Excuse, 57 U. Pitt. L. Rev. 553 (1996).

  20. Kimberly Kessler Ferzan, Self-Defense and the State, 5 Ohio St. J. Crim. L. 449 (2008).

  21. Another very useful overview of self-defense with a broader focus is Larry Alexander, Self-Defense, in The Routledge Companion to Philosophy of Law 222 (Andrei Marmor ed., 2012).

  22. Some would take issue with Steiker’s reading of Kant as relying on “an ability to imagine the effects of one’s actions on people entirely different from oneself” (p. 460). This is not a place to get into a debate over Kantian ethics, and I hesitate to make strong claims about a figure whose thoughts are as rich and complex as Kant’s. But my understanding of Kant is that categorical imperative has little to do with putting oneself in someone else’s shoes and trying to see and feel things from someone else’s perspective, but rather has to do with consistency in action. See Onora O’Neill, Consistency in Action, in Constructions of Reason: Explorations of Kant’s Practical Philosophy 81 (1989).

  23. It is true, as Cass Sunstein and Adrian Vermeule argued, if the death penalty can prevent deaths, that gives the state a reason to kill an offender in order to save lives of potential future victims. See Cass R. Sunstein & Adrian Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life–Life Tradeoffs, 58 Stan. L. Rev. 703 (2005). But this is why, in order to defeat arguments of this kind, we need to speak in terms of basic terms of interaction between citizens and the state, instead of relying on arguments focusing only on the number of lives lost due to one’s action or inaction and on the permissibility of such action or inaction. See Youngjae Lee, Deontology, Political Morality, and the State, 8 Ohio St. J. Crim. L. 385 (2011).

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    Youngjae Lee

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Lee, Y. What is Philosophy of Criminal Law?. Criminal Law, Philosophy 8, 671–685 (2014). https://doi.org/10.1007/s11572-013-9222-0

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