Comments on Kadish's 'Moral Excess'

Abstract

In his essay titled Moral Excess in the Criminal Law, Professor Kadish relates two prototypes of wrongly decided cases that reflect an affinity for judging law a failure, and then raises a general jurisprudential inquiry into the need for an additional excuse doctrine based on non-controversial limits on practical reasoning; all of which, he argues, demonstrate moral excess. For him, these cases and the more general inquiry teach a timeless lesson about the values of cooperation and human fallibility. Each situation, he concludes, illustrates our tendency to expect more from the law than it is capable of delivering, at least at this time in history. A central, unintended message of his piece is the undoubted humanity of a gifted observer, at least prepared to question, although in the end to defend, settled doctrine. In this essay, I will briefly summarize the three cases - instances of excess - on which Professor Kadish and I agree, then rehearse the jurisprudential issue over which we part ways - namely, whether our criminal law ought to take cognizance of bad luck. Because Professor Kadish answers this question in the negative, and provides his answer by denying the need for a new excuse or partial excuse doctrine, he does not consider a different question: Whether courts should consider rotten social backgrounds in the sentencing phase? In the final part, I will present a brief argument in favor of reintroducing substantial, guided judicial discretion in sentencing.