Criminal Law and Philosophy 14 (3):431-446 (2020)

Authors
Alec Walen
Rutgers University - New Brunswick
Abstract
Antony Duff’s The Realm of Criminal Law offers an appealing moral reconstruction of the criminal law. I agree that the criminal law should be understood to predicate punishment upon sufficient proof that the defendant has committed a public wrong for which she is being held to account and censured. But the criminal law is not only about censoring people for public wrongs; it must serve other purposes as well, such as preventing people from committing serious crimes and more generally from violating reasonable regulations. These purposes, and perhaps retributive justice, require the criminal law also to mete out harsh treatment, but only insofar as such treatments are proportional to the culpable wrong committed. The problem for the criminal law is that many mala prohibita crimes consist of a minor wrong but also call for a relatively severe punishment. To accommodate that mismatch, it is necessary to complement the criminal law, as Duff and I conceive of it, with what I call “penal law.” Penal law relies on forfeiture to explain why hard treatment is permissible. The forfeiture must be fair, and it comes with its own proportionality limits. But those limits are not as strict as the limits implicit in the criminal law. It allows for penalties that are harsher than the punishments that could justifiably be meted out for many mala prohibita offenses. One and the same act can count as a crime and a penal infraction, and one and the same criminal justice system can and should handle both crimes and the penal infractions. It is, I think, only in that way that we can accommodate both the need to prevent public wrongdoing and the distinct importance of holding people accountable for the commission of public wrongs.
Keywords No keywords specified (fix it)
Categories No categories specified
(categorize this paper)
ISBN(s)
DOI 10.1007/s11572-019-09515-7
Options
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

PhilArchive copy


Upload a copy of this paper     Check publisher's policy     Papers currently archived: 64,046
External links

Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
Through your library

References found in this work BETA

No references found.

Add more references

Citations of this work BETA

No citations found.

Add more citations

Similar books and articles

Punishment, Communication and Community.Antony Duff - 2003 - In Derek Matravers & Jonathan E. Pike (eds.), Debates in Contemporary Political Philosophy: An Anthology. Routledge, in Association with the Open University.
The Intrusion of Mercy.R. A. Duff - 2007 - Ohio State Journal of Criminal Law 4:361-87.
Public Wrongs and the Criminal Law.Ambrose Y. K. Lee - 2015 - Criminal Law and Philosophy 9 (1):155-170.
Public and Private Wrongs.R. A. Duff & Sandra Marshall - 2010 - In James Chalmers, Fiona Leverick & Lindsay Farmer (eds.), Essays in Criminal Law in Honour of Sir Gerald Gordon. Edinburgh: Edinburhg University Press. pp. 70-85.
Towards a Theory of Criminal Law?R. A. Duff - 2010 - Aristotelian Society Supplementary Volume 84 (1):1-28.
Avances Del Pensamiento Penal y Procesal Penal.Eberhard Struensee - 2005 - Centro de Ciencias Penales y Política Criminal.
Wrongs, Crimes, and Criminalization.Douglas Husak - 2019 - Criminal Law and Philosophy 13 (3):393-407.
Penal Coercion in Contexts of Social Injustice.Roberto Gargarella - 2011 - Criminal Law and Philosophy 5 (1):21-38.
Yaffe on Attempts.Larry Alexander - 2013 - Legal Theory 19 (2):124-135.
Philosophical Foundations of Criminal Law.R. A. Duff & Stuart Green (eds.) - 2011 - Oxford University Press UK.

Analytics

Added to PP index
2019-10-23

Total views
7 ( #1,043,322 of 2,454,503 )

Recent downloads (6 months)
1 ( #449,188 of 2,454,503 )

How can I increase my downloads?

Downloads

My notes