Criminal Law Scholarship: Three Illusions

Abstract

The paper criticizes law scholarship for helping to construct and failing to expose analytic structures that falsely claim a higher level of rationality and coherence than current law theory deserves. It offers illustrations of three such illusions of rationality. First, it is common in law discourse for scholars and judges to cite any of standard litany of the purposes of - just deserts, deterrence, incapacitation of dangerous, rehabilitation, and sometimes other purposes - as a justification for one or another liability rule or sentencing practice. The cited gives rules an aura of rationality, but one that is, in large part, illusory. Without a principle defining interrelation of purposes, nearly any rule can be justified by some purpose of punishment. Thus, a decision maker can switch among distributive principles as needed to provide an apparent rationale for whichever rule person prefers, even if that preference is not based on rational criteria. A second example is found in a central mechanism for determining an offender's blameworthiness: use of an individualized objective standard. The widely used mechanism avoids problems acknowledged to attend a strictly objective standard. A person's situation and capacities are central to an assessment of whether a person can be fairly blamed for a violation, and individualized objective standard allows decision maker to take these into account. At same time, mechanism avoids reversion to a completely subjective standard, which might exempt many blameworthy cases from liability. In reality, however, mechanism only shifts form of problem. Codes that use individualized objective standard fail to provide a principle by which one can determine those characteristics of an offender with which objective standard ought to be individualized and those with which it ought not. Without a governing principle, issue again is left to discretion of decision makers, with no guidance as to how that discretion is to be exercised. A final illusion obscures whether system is, in fact, in business of doing justice. The criminal justice system imposes punishment and encourages moral condemnation of those found guilty of crimes. But while system cultivates its doing-justice image, it increasingly shifts to a system of essentially preventive detention, where a violator's sanction is derived more from what is needed to incapacitate him from committing future offenses than to punish him for a past offense. There are great advantages to deception, but also serious costs and inefficiencies. The paper discusses why some illusions are more objectionable than others and what existence of such illusions says about modern law scholarship.