Philosophical Analysis and the Criminal Law

Abstract

Philosophical analysis can be viewed as the attempt to clarify concepts by distinguishing their constitutive elements. This clarification seeks to identify the set of necessary and sufficient conditions for a given entity to be an instance of the concept being analyzed. As Anthony C. Grayling has eloquently put it: “philosophical analysis is best understood by analogy with analysis in chemistry, as being a process of investigation into the structure, functioning, and connections of a particular matter under scrutiny.” The slogan has it that in this sense of ‘analytic’, Anglo-American philosophy is analytic and that continental philosophy is non-analytic. But it is not the case that all Anglo-American philosophers do analysis, or that all continental philosophers shun it. Though perhaps infelicitous, the label ‘analytic philosophy’ has stuck, and it is not the goal of this paper to discuss the appropriateness of the label. I wish to show some advantages that the application of rigorous conceptual analysis holds for the understanding of the criminal law and for the drafting of penal codes. Analysis is useful for the discovery of the basic structure of a given concept (or set of concepts), and it is also useful in revealing problems with a given way in which a concept (or set of concepts) might have been structured. In drafting a penal code, philosophical analysis, in the sense just sketched above, should be of utmost importance. Although within philosophy it is commonly held that “continental philosophy” is not analytic, continental criminal law is more analytic than its Anglo-American counterpart. Continental criminal law