Abstract
In this short essay, I suggest a few specific ways in which criminal law exceptionalism has shaped the theory and practice of criminal law. First, criminal law exceptionalism isolates criminal theory from legal theory more generally, with the result that criminal theorists often miss insights from other legal fields. Relatedly but more broadly, criminal law exceptionalism can make sociology, psychology, history, and political theory invisible or seemingly irrelevant to criminal theory. Together, these two forms of scholarly insularity put criminal theory (or criminal theorists) into a silo in which the political, social, and historical contexts of actual criminal legal practices disappear from view. Ultimately, the siloed thinking of criminal law exceptionalism makes it difficult or impossible to contemplate a world without criminal law. Thus criminal law exceptionalism does its ideological work: it produces and reinforces the belief that criminal law is indispensable, a belief that in turn motivates policy choices and informs legal practices.
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Notes
For a more extensive discussion, see Alice Ristroph, “An Intellectual History of Mass Incarceration”, Boston College Law Review 60(7) (2019): 1949, especially pp. 1953–1954 and 2008–2010.
I have already made my case elsewhere that the claims of subject-matter and operational exceptionalism are contradicted by empirical evidence. See id.
Perhaps “essence” or “concept” would be a better term than “nature”. Some critics of legal “essentialism” raise points similar to critiques of “exceptionalism”. See, e.g., Katrina M. Wyman, “The New Essentialism in Property”, Journal of Legal Analysis 9(2) (2017): 183.
Lindsay Farmer, Making the Modern Criminal Law: Criminalization and Civil Order (Oxford: Oxford University Press, 2016), pp. 63–77. My inquiry in this brief essay continues and expands on themes developed in my review of Farmer’s impressive book, where I similarly asked about the purposes and consequences of specific ways of thinking about criminal law. See Alice Ristroph, “The Definitive Article”, University of Toronto Law Journal 68(1) (2018): 140.
And vice versa, but in this essay my focus is the influence of ideas on practices rather than the other way round.
Ristroph, n. 1 above; see also Alice Ristroph, The Curriculum of the Carceral State, Columbia Law Review 120(6) (2020): 1631. Those earlier works, like this essay, focus primarily on American thought and practices. I do not think criminal law exceptionalism is unique to the United States, but I think its influence is especially powerful there.
E.g., Josh Bowers, “Probable Cause, Constitutional Reasonableness, and the Unrecognized Point of a ‘Pointless Indignity’”, Stanford Law Review 66(5) (2014): 987, pp. 996–998.
I have in mind the contributions of Antony Duff & Sandra Marshall and Matt Matravers in this issue.
For examples and further discussion, see Alice Ristroph, Exceptionalist Jurisprudence, aka The Law of the Snowflake (draft manuscript on file with author). Family law exceptionalism has been of interest to an international community of scholars. See id. But I have not investigated whether exceptionalism in other fields is limited to the United States – whether worries about legal exceptionalism are themselves a form of American exceptionalism.
Ristroph, n. 9 above.
Id.
E.g. Kimberly Kessler Ferzan, “Of Weevils and Witches: What Can We Learn from the Ghost of Responsibility Past?”, Virginia Law Review 101(4) (2015): 947; see also Sandy Mayson, “The Concept of Criminal Law”, Criminal Law and Philosophy 15(2) (2020): 447, p. 450 (noting that “[a]ny concept of criminal law … embeds a concept of law,” but then separating the question “what ‘law’ is” from an inquiry into criminal law’s “distinguishing features as a particular kind of law”).
Farmer, n. 4 above.
Bowers, n. 7 above; Robert Weisberg, “Criminal Law, Criminology, and the Small World of Legal Scholars”, University of Colorado Law Review 63 (1992): 521, p. 522.
Ristroph, n. 6 above.
Moreover, criminal law exceptionalism has also shaped general jurisprudence, in that many efforts to answer the question “what is law?” exclude or marginalize criminal law. For examples, see Ristroph, n. 1 above, p. 1958 n. 27.
See, e.g., William Stuntz, The Collapse of American Criminal Justice (Cambridge: Harvard University Press, 2011).
See Farmer, n. 4 above; Darryl Brown, “History’s Challenge to Criminal Law Theory”, Criminal Law and Philosophy 3(3) (2009): 271.
E.g., Stephen Schulhofer, “The Mathematician, The Monk, and The Militant”, California Law Review 88(3) (2000): 705, p. 707 (“[P]olitical philosophy—the theory of the state—is for the most part unimportant for purposes of doing work in criminal law theory.”); Ferzan, n. 12 above.
See Allegra McLeod, “Prison Abolition and Grounded Justice”, UCLA Law Review 62(5) (2015): 1156, pp. 1160–61 (describing abolitionist goals and noting that in the academy, “[a]bandoning carceral punishment and punitive policing remains generally unfathomable”).
See, e.g., Ruth Wilson Gilmore, Change Everything: Racial Capitalism and the Case for Abolition (Chicago: Haymarket Books, 2020); Dorothy Roberts, “Foreword: Abolition Constitutionalism”, Harvard Law Review 133(1) (2019): 1.
E.g., Doug Husak, “The Price of Criminal Law Skepticism: Ten Functions of the Criminal Law”, New Criminal Law Review 23(1) (2020): 27, p. 34.
But the boundaries of criminal law are not always easily demarcated. For example, I would include many aspects of policing under the banner of criminal law, though police are not always enforcing specific statutes or seeking to initiate a prosecution.
Javier Wilenmann, this issue.
See Alice Ristroph, “Responsibility for the Criminal Law”, in R. A. Duff & Stuart Green (eds.), Philosophical Foundations of the Criminal Law (Oxford: Oxford University Press, 2011), 107, especially pp. 122–124.
Wilenmann, this issue.
Id. See also Christoph Burchard, this issue (arguing that ideas of individual responsibility in criminal law involve “a negation of social complexity … [that] de-contextualizes the criminal act and socially isolates the offender”).
Donald Dripps, “The Exclusivity of the Criminal Law: Toward a ‘Regulatory Model’ of, or ‘Pathological Perspective’ on, the Civil-Criminal Distinction”, Journal of Contemporary Legal Issues 7(1) (1996): 199, p. 204. “[S]evere sanctions are accompanied not by the reluctance of sad necessity, but by the self-congratulatory emotion of blame.” Id.
Id.
Duff & Marshall, this issue.
C.f. Ristroph, n. 1 above, p. 1983 (noting that “caregiving relationships, schools, churches, civic associations, social movements, speech in the public sphere, literature, art, cultural institutions, political institutions, friendships, business relationships, workplaces, and […] civil laws might be as or more important [than criminal law] in defining and communicating humans’ shared expectations of one another”).
See also Francesco Vigano, this issue.
Rocío Lorca, this issue.
Vigano, this issue.
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Ristroph, A. The Wages of Criminal Law Exceptionalism. Criminal Law, Philosophy 17, 5–15 (2023). https://doi.org/10.1007/s11572-021-09613-5
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DOI: https://doi.org/10.1007/s11572-021-09613-5