Philosophy Of Criminal Law Research Articles

Review: The Philosophy of Criminal Law: Selected Essays, by Douglas Husak

Review: <i>The Philosophy of Criminal Law: Selected Essays</i>, by Douglas Husak

Offences and Defences: Selected Essays in the Philosophy of Criminal Law by John Gardner Oxford: Oxford University Press, 2007. Pages xiv + 288, Paper ISBN 978-0-19-923936-8. Page references in parentheses are to this work. For full details of the essays included see John Gardner's website: users.ox.ac.uk/~lawf0081/.

This volume contains eleven previously published essays on criminal law together with a new “Reply to Critics” by the Professor of Jurisprudence at Oxford, John Gardner. The principal themes of the essays, covering offences, defences, and punishment, are summarized in this review, which also highlights areas of controversy and various lines of criticism.

Understanding Criminal Law through the Lens of Reason

This is a review essay of Gardner, John. 2007, Offences and Defences: Selected Essays in the Philosophy of Criminal Law, Oxford: Oxford University Press, 288 pp.

Justice and Police: Regulatory Offenses and the Criminal Law

This contribution stems from a workshop on foundational issues in the philosophy of criminal law. This may raise expectations for a discussion of the core business of what is called substantive criminal law: the structure of crime, the concept of intention, complicity and participation, attempt and preparation;acts and omissions; or causation. However, most punitive sanctions—especially fines—concern regulatory offenses that are structured to a much lesser extent by such moral notions as culpability and wrongfulness, while the applicable burden of proof does not even come close to the presumption of innocence in the case of criminal offenses. This raises the questions of how the difference between regulatory and criminal offenses is to be understood and of the extent to which regulatory offenses (should) fall within the scope of the criminal law. The answers to these questions will be derived from an exploration of the historicity of crimes and regulatory offenses, and their relationship to the (modern) state. I will start off with tracing the emergence of contraventions and crimina in the course of the early and late Middle Ages and the subsequent advent of a domain of "police" at the threshold of modernity next to the already existing domain of "justice." After this the strict separation of the domains of "police" (covering Polizeidelikten) and "justice" (covering Verbrechen and Vergehen) in nineteenth-century Germany will be discussed as well as the relationship of both domains to different conceptions of the Rechtsstaat and the État de droit. The main argument will be that understanding the difference between criminal and regulatory offenses in essentialist terms, such as the medieval malum in se and malum prohibitum, does not make sense. Building on a nonessentialist difference I will suggest that differential procedural constraints should be based on pragmatic arguments, which, however, do not equate with utilitarian arguments. In line with philosophical pragmatism the separation of means and end that characterizes utilitarianism is rejected and replaced by a pragmatic approach grounded in the normative position of a constitutional democracy in the sense of an État de droit or a substantive conception of the Rechtsstaat. This implies that the aim of punishing regulatory offenses is to sustain an effective domain of "police" under the rule of law, meaning that the punishment of regulatory offenses will have to be regulated by the same principles that inform the "fair trial." This will allow the state to impose punitive sanctions to prevent and retaliate violations of specific legal norms, while enabling citizens to contest the incriminated violation as well as the lawfulness of the violated legal rule.

Gardner on the Philosophy of Criminal Law

Offences and Defences is an outstanding collection of eleven of John Gardner's previously published papers in the philosophy of criminal law. I briefly examine his views on five central issues: his claims about basic responsibility and whether it should be construed as relational; his positions on agent neutrality; his arguments about whether moral and criminal wrongs are typically strict; his thoughts about the structure of defences, and, finally, what his account of rape reveals about the content of the harm principle.

Philosophy, Feinberg, Codification, and Consent: A Progress Report on English Experiences of Criminal Law Reform

Stuart Green’s letter soliciting contributions to this Symposium Issue began by observing that “[a]mong moral and legal philosophers, Feinberg’s work has enjoyed enormous influence. In the legal academy, however, his work is less well known than it should be.” Professor Green is commenting on the American situation. From an English perspective, I would add only a slight gloss. Joel Feinberg’s writings on the philosophy of criminal law, particularly but not exclusively his magnum opus on the moral limits, are reasonably well known to English criminal law students and teachers, at least to those who make use of the more up-market, theoretically informed textbooks and periodicals. But although Feinberg is frequently quoted and cited in the introductory sections of English textbooks, his ideas and arguments are seldom used, that is, put to work in detailed doctrinal analysis or practical problem-solving. His

Liberal Neutrality, Autonomy, and Drug Prohibitions

Philosophy & Public AffairsVolume 29, Issue 1 p. 43-80 Liberal Neutrality, Autonomy, and Drug Prohibitions DOUGLAS N. HUSAK, DOUGLAS N. HUSAK DOUGLAS N. HUSK is Professor of Philosophy and Law at Rutgers University. He has written extensively on drug policy and the philosophy of criminal law, and is a previous contributor to Philosophy & Public Affairs.Search for more papers by this author DOUGLAS N. HUSAK, DOUGLAS N. HUSAK DOUGLAS N. HUSK is Professor of Philosophy and Law at Rutgers University. He has written extensively on drug policy and the philosophy of criminal law, and is a previous contributor to Philosophy & Public Affairs.Search for more papers by this author First published: 11 January 2005 https://doi.org/10.1111/j.1088-4963.2000.00043.xCitations: 11 I would like to thank Professor Ruth Chang, members of the Columbia Law School Legal Theory Workshop, and the Editors of Philosophy & Public Affairs for a number of very helpful suggestions. Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Citing Literature Volume29, Issue1January 2000Pages 43-80 RelatedInformation

Philosophy of Criminal Law.

This study offers both a penetrating examination and assessment of the theory and principles that underlie contemporary Anglo-American substantive criminal law, and a critique of what the author perceives as basic inadequacies in the accepted orthodox theory of criminal law. Noted legal theorist Douglas N. Husak analyzes the reasoning behind the general principles of modern criminal law theory and demonstrates the relationship between criminal law theory and its contemporary practice. Husak's central argument is that the interpretation and application of the general principles of criminal liability presuppose a moral and political philosophy. He contends that most of the major criminal theorists in Anglo-American legal history (Austin, Holmes, Stephen, Hall, Williams, and others) have supposed that criminal theory can be empirical, scientific, and objective and have emphasized such concepts as action, harm, and causation, which seem amenable to empirical analyses, at the expense of moral and political philosophy. The author argues that revising criminal theory to include moral and political philosophy will make a greater contribution to justice in the principles and practice of criminal law.

Models of responsibility in criminal theory: Comment on Baker

Professor Brenda Baker's recent critique of the Canadian Law Reform Commission's treatment of general standards for criminal liability adds to a growing body of critical theory concerning such standards and their relation to criminal justice. From within the perspective of this same critical movement, I assess the strengths and weaknesses of Professor Baker's efforts and of similar lines of argument in the work of Professor George Fletcher. I find two significant flaws in their shared approach. The first is confusion as to the proper level for analysis of liability standards and, hence, for criticism of the "orthodox" view. This leads Professors Baker and Fletcher to concentrate on issues of culpability rather than responsibility (and to conflate these issues). The second flaw is an error in comprehension of the faults of the orthodox view and, hence, in recognition of the fundamental character of views opposed to that orthodoxy. This leads both theorists to overemphasize a suspect and unilluminating distinction between normative and descriptive approaches to liability problems. The rest of the article is devoted to an overview of my own approach to problems of liability and a general critique of the orthodox view in light of that approach. I argue that the fundamental issue is the relation of liability standards to a conception of agent responsibility. The primary fault of orthodoxy lies, then, in the cognitivist model of responsibility on which it relies. Against this, I propose use of a capacities model of responsibility as the basis for standards of liability. These two models are outlined and compared in final sections. Brenda Baker's critique of the Canadian Law Reform Commission recommendations for criminal liability is a welcome addition to a growing body of Anglo-American critical theory addressing the relation of liability standards to criminal justice. While this critical movement arguably has its roots in H. L. A. Hart's seminal analyses of criminal liability, it has enjoyed greater focus and vigor in the more recent work of theorists such as George Fletcher and Douglas Husak. Professor H. L. A. Hart, Punishment and Responsibility (New York: Oxford University Press, 1968); George Fletcher, Rethinking Criminal Law (Boston: Little Brown, 1978);' Douglas Husak, Philosophy of Criminal Law (Totowa, NJ: Rowman & Littlefield, 1987). Law and Philosophy 7 (1989) 295-320.

Conflicts in Penal Theory and Practice

In a formal sense no conflict in penal theory exists in this country since none has been explicitly developed. In this respect the United States lags far behind the European countries and several of the South American Republics.8 Our lack of interest in penal theory is in part accounted for by the relative youth of this country. Theories of criminal law had been developed in Europe by the eleventh century. Beccaria had written his classic before the American Revolution. The relatively recent growth of America, however, does not altogether explain our inability to have developed the implications of the principles enumerated in 1870 by the American Prison Society. One of the important factors accounting for the failure is that of personnel. The lawyers and jurists in this country have been occupied with developing the civil law to meet the needs of our extended frontiers and expanding industrial communities. But very few have been interested in the problems of crime and penal treatment. It is literally true that we have not one single text on the philosophy of criminal law nor a comprehensive work on penal theory. The confusion of the several criminal codes both in substance and form reflects the lack of clarity in our thinking as well as our lack of interest in criminal law.