Law and Philosophy 32 (6):729-765 (2013)
The United States Supreme Court has repeatedly insisted that what distinguishes a criminal punishment from a civil penalty is the presence of a punitive legislative intent. Legislative intent has this role, in part, because court and commentators alike conceive of the criminal law as the body of law that administers punishment; and punishment, in turn, is conceived of in intention-sensitive terms. I argue that this understanding of the distinction between civil penalties and criminal punishments depends on a highly controversial proposition in moral theory – namely, that an agent’s intentions bear directly on what it is permissible for that agent to do, a view most closely associated with the doctrine of double effect. Therefore, legal theorists who are skeptical of granting intention this kind of significance owe us an alternative account of the distinctiveness of the criminal law. I sketch the broad outlines of just such an alternative account – one that focuses on the objective impact of legislation on a class of protected interests, regardless of the state’s motivations in enacting the legislation. In other words, even if the concept of punishment is unavoidably intention-sensitive, it does not follow that the boundaries of the criminal law are likewise intention-sensitive, because the boundaries of the criminal law may be drawn without reference to the concept of punishment. I conclude by illustrating the application of this view to a pair of well-known cases, and noting some of its ramifications
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Law as Punishment/Law as Regulation.Austin Sarat, Lawrence Douglas & Martha Merrill Umphrey (eds.) - 2011 - Stanford Law Books.
The Ends of Harm: The Moral Foundations of Criminal Law.Victor Tadros - 2011 - Oxford University Press.
Justifying Punishment: A Response to Douglas Husak. [REVIEW]Kimberley Brownlee - 2008 - Criminal Law and Philosophy 2 (2):123-129.
The Oxford Handbook of the Philosophy of the Criminal Law.John Deigh & David Dolinko (eds.) - 2011 - Oxford University Press.
The Philosophical Foundations of Extraterritorial Punishment.Alejandro Chehtman - 2010 - Oxford University Press.
Fair Play, Political Obligation, and Punishment.Zachary Hoskins - 2011 - Criminal Law and Philosophy 5 (1):53-71.
Victor's Justice: The Next Best Moral Theory of Criminal Punishment? [REVIEW]François Tanguay-Renaud - 2013 - Law and Philosophy 32 (1):129-157.
Criminal Justice in a Democracy: Towards a Relational Conception of Criminal Law and Punishment. [REVIEW]René Foqué - 2008 - Criminal Law and Philosophy 2 (3):207-227.
Why Criminal Law: A Question of Content? [REVIEW]Douglas Husak - 2008 - Criminal Law and Philosophy 2 (2):99-122.
Action and Value in Criminal Law.Stephen Shute, John Gardner & Jeremy Horder (eds.) - 1993 - Oxford University Press.
The Priority of Politics and Procedure Over Perfectionism in Penal Law, or, Blackmail in Perspective.Donald A. Dripps - 2009 - Criminal Law and Philosophy 3 (3):247-260.
Digging Up, Dismantling, and Redesigning the Criminal Law.Kimberley Brownlee - 2013 - Criminal Law and Philosophy 7 (1):169-178.
Added to index2012-12-01
Total downloads12 ( #374,536 of 2,163,903 )
Recent downloads (6 months)1 ( #348,100 of 2,163,903 )
How can I increase my downloads?