The New Normativity: The Abuse Excuse and the Resurgence of Judgment in the Criminal Law

Abstract

There is growing interest within the academy in reviving the normative in criminal law scholarship. Enter a recent book, Moral Judgment, by the distinguished criminologist James Q. Wilson. Professor Wilson's work prompts the question: What is meant by the term 'judgment? Considering three different models-judgment as community, judgment as character, and judgment as critique-this review argues that Professor Wilson's idea of judgment both departs from the new normativity in existing scholarship and shows how easily 'judgment may stand in for partial aims. Professor Wilson argues that the abuse excuse is the product of modern social movements that make some defendants, like battered women, more attractive victims than others. For these defendants, Wilson argues, the law seeks to explain rather than judge their behavior. Unfortunately, when one comes to look at the particular defenses that Wilson embraces as proper 'judgments and rejects as poor explanations, Wilson's theory begins to raise serious questions. For example, although Wilson is particularly critical of battered women's claims, he leaves out important parallels to excuses typically raised by men under the rubric of a well-known and long-standing defense-provocation. This selectivity, the review argues, not only betrays Wilson's judgment as the embrace of tradition for tradition's sake, but also tells us something important about the abuse excuse. It tells us that the danger to our criminal justice system does not lie in a particular set of modern excuses, nor modern social movements like feminism, but in a failed theory of excuse.