Philosophy of Law

The series Criminalization is a set of volumes arising from an interdisciplinary investigation into criminalization, focussing on the principles and goals that should guide decisions about what kinds of conduct are to be criminalized, and the forms that criminalization should take. Developing a normative theory of criminalization, the six volumes in this series aim to tackle the key questions at the heart of issue: By reference to what principles and goals should legislations decide what to criminalize? How should criminal wrongs be classified and differentiated? And how should law enforcement officials apply the law's specification of offences? This book is the first book in this series examining the scope and boundaries of the criminal law. Investigations into the scope of the criminal law have often focused on the harm principle, the principle that conduct can be justifiably criminalized only if it is harmful, or other master principles that might determine the proper scope of the criminal law. These chapters aim to make significant advances in the development of a broader range of ideas that might inform criminalization decisions. A range of issues are discussed, including the significance for criminalization of ideas of moral wrongdoing and of using a person as a means, the distinction between criminal law and other forms of legal regulation, the role of new technology in our understanding of the evolving scope of the criminal law, and the role of criminal justice officials in decision-making about criminalization. The chapters draw on legal and philosophical sources, and also on history, sociology, and social psychology in their investigations.

It is generally assumed that we are justified in punishing criminals because they have committed a morally wrongful act. Determining when criminal liability should be imposed calls for a moral assessment of the conduct in question, with criminal liability tracking as closely as possible the contours of morality. Versions of this view are frequently argued for in philosophical accounts of crime and punishment, and seem to be presumed by lawyers and policy makers working in the criminal justice system. Challenging such assumptions, this book considers the dominant justifications of punishment and subjects them to a piercing moral critique. It argues that none overcome the objection that people who are convicted of a serious crime and sent to prison have their basic human rights violated. The institution of criminal punishment is shown to be a regrettable necessity not deserving of the moral enthusiasm it enjoys among many politicians and the popular press. From a moral point of view, punishment is entitled at best to grudging toleration. In the course of developing the argument, the book introduces the principal issues of criminal law theory with the aim of presenting a morally enlightened perspective on crimes and why we punish them. Enforcement of the law by police, prosecutors, and courts is a matter of concern for political morality, and the principal practices of the criminal justice system are subjected to moral scrutiny. The book offers a provocative introduction to thinking about the philosophy of crime and punishment.

This book reflects the belief that a careful study of the Law of Attempts should be both interesting in itself, as well as being a productive route into a number of larger and deeper issues in criminal law theory and in the philosophy of action. By identifying the legal doctrines which courts and legislatures have developed or adopted, the book goes on to ask whether and how they can be rationalized or rendered persuasive. Such an approach involves paying detailed attention to cases. The book is unusual in that it grapples with English, Scots, and US law, showing great breadth of research as well as philosophical sophistication.

This book charts the changes in crime control and criminal justice that have occurred in Britain and America. It then explains these transformations by showing how the social organization of late modern society has prompted a series of political and cultural adaptations that alter how governments and citizens think and act in relation to crime. The book presents an analysis of contemporary crime control, revealing its underlying logics and rationalities, and identifying the social relations and cultural sensibilities that have produced this new culture of control. In developing a ‘history of the present’ in the field of crime control, the book presents an intertwined history of the welfare state and the criminal justice state, a theory of social and penal change, and an account of how social order is constructed. Drawing on research in the UK and the USA, it shows how the social, economic, and cultural forces of the late 20th century have reshaped criminological thought, public policy, and the cultural meaning of crime and criminals. The shifting policies of crime and punishment, welfare and security — and the changing class, race and gender relations that underpin them — are viewed as aspects of the problem of governing late modern society and creating social order in a rapidly changing world.

Victor Tadros sets out to defend the ‘duty view’ of punishment. On this view, the permission to punish offenders is grounded in the duties that they incur in virtue of their wrongdoing. The most important duties that ground the justification of punishment are the duty to recognise that the offender has done wrong and the duty to protect others against wrongdoing. In the light of these duties the state has a permission to punish offenders to ensure that they recognise that what they have done is wrong, but also to protect others from crime. Hence, the book offers a defence not only of a communicative view of punishment but also of general deterrence as central to the justification of punishment. This view is developed in the light of a non-consequentialist moral theory: a theory which endorses constraints on the pursuit of the good. It is shown that it is normally wrong to harm a person as a means to pursue a greater good. However, there are exceptions to this principle in cases where the person harmed has an enforceable duty to pursue the good. The implications of this idea are explored both in the context of self-defence, and then in the context of punishment. The book offers the most systematic exploration of the relationship between self-defence and punishment to date and makes significant progress in defending a plausible set of non-consequentialist moral principles. It also critically explores other theories of punishment, including retributivism and purely communicative theories, identifying unexamined deficiencies in these theories.

Though much of this book is devoted to impugning all the standard rationales for capital punishment, the chief purpose of the volume is to advance an alternative justification for such punishment in a very limited range of cases. Pursuing both a project of critical debunking and a project of partial vindication, the book presents a rationale for the death penalty that is free-standing rather than an aspect or offshoot of a general theory of punishment. Its purgative rationale has not heretofore been propounded in any contemporary philosophical and practical debates over the death penalty. While the volume contributes to many areas of normative ethics, it contributes above all to the philosophy of criminal law with a fresh rationale for the use of the death penalty and with probing assessments of all the major theories of punishment that have been broached by jurists and philosophers for centuries.

This book collects together a selection of John Gardner's best-known and most provocative writings on the theory of criminal law. Gardner tackles persistent and troublesome questions about the philosophical foundations of the criminal law. Which wrongs are suitable to be crimes and why? What are the conditions of criminal responsibility, and how do they relate to the conditions of moral responsibility? What does it take to be complicit in another's wrongdoing? Should crimes ever be excused, and if so, on what basis? How, if at all, should the criminal law adapt to conditions of social and cultural diversity? The issues raised in these essays have a significance extending beyond the law. What does it mean to be a responsible agent and why does it matter? Is my moral character only or mostly my own business? Is there a difference between being reasonable and being rational? These and many other moral problems lurk in the background of the criminal law, and the pieces in this book bring them into the foreground. Theoretical writings on the criminal law have often been dominated by a preoccupation with the justification of criminal punishment. This work is different. Although it discusses the legitimacy of criminal punishment, it proceeds on the footing that the criminal law does many important things apart from punishing people. In particular, Gardner argues that the criminal law provides an important forum for people to explain themselves. Such a forum would be important, argues Gardner, even if criminal punishment were to be abolished.

The challenges facing criminal law are many. There are crises of over-criminalization and over-imprisonment; penal policy has become so politicized that it is difficult to find any clear consensus on what aims the criminal law can properly serve; governments seeking to protect their citizens in the face of a range of perceived threats have pushed the outer limits of criminal law and blurred its boundaries. To think clearly about the future of criminal law, and its role in a liberal society, foundational questions about its proper scope, structure, and operations must be re-examined. What kinds of conduct should be criminalized? What are the principles of criminal responsibility? How should offences and defences be defined? The criminal process and the criminal trial need to be studied closely, and the purposes and modes of punishment should be scrutinized. Such a re-examination must draw on the resources of various disciplines — notably law, political and moral philosophy, criminology and history; it must examine both the inner logic of criminal law and its place in a larger legal and political structure; it must attend to the growing field of international criminal law, it must consider how the criminal law can respond to the challenges of a changing world. Topics covered in this book include the question of criminalization and the proper scope of the criminal law; the grounds of criminal responsibility; the ways in which offences and defences should be defined; the criminal process and its values; criminal punishment; and the relationship between international criminal law and domestic criminal law.

The dominant approach to evaluating the law of evidence takes the standpoint of a detached observer and focuses on how the trial system should be structured to guard against the production of wrong verdicts. This book offers a different account from the perspective of the person responsible for making findings of fact. From that angle, complex and intertwining ethical and epistemic considerations come into view. After setting the stage with an introduction to general aspects of fact-finding and an analysis of the epistemology of trial deliberation, the two approaches are applied to three core areas of evidence law: the standards of proof, the rules on hearsay, and ‘similar facts’ (or, as it is also called, ‘previous misconduct’ or ‘other crimes, wrongs, or acts’). The author argues that it is only by exploring the nature and content of deliberative responsibility that the role and purpose of much of the law can be fully understood. In many cases, values other than truth have to be respected, not simply as side-constraints on, but as values which are internal to legal fact-finding. A party does not merely have a right to have the substantive law correctly applied to true findings of fact; she has, more broadly, a right to a just verdict, where justice incorporates an ethical evaluation of the reasoning process which led to the verdict and is conceived as a relational concept that stresses the virtue of emphatic care. There is an important sense in which the court must not only find the truth to do justice, it must do justice in finding the truth.

The book aims to give a comprehensive theory of the substantive criminal law. It first develops a theory of what a comprehensive theory of any area of law, such as criminal law, should look like. Explanatory, evaluative and descriptive theories are distinguished, and the partly normative nature of ‘descriptive’ theories is defended. Boundary conditions for what counts as an area of law are also developed and applied to criminal law. The book then proceeds in three parts. Part I defines and defends a retributive theory of punishment, a theory according to which the sole function of the criminal law is to punish those who deserve to suffer for their culpable wrongdoing. The other two parts of the book detail the implications of this view of the end of punishment, for the kinds of doctrines and institutions the criminal law both does and should have. Part II develops these implications for what is called the ‘general part’ of the criminal law. This part contains the doctrines, principles, and policies that apply to all crimes and that give each of them a common basic structure. The retributive point of punishment requires that there be a theory of when persons are morally responsible and thus deserving of punishment. The theory of responsibility that constitutes the general part of the criminal law, abstractly stated, is developed, first, by answering general questions about the role of various desert determiners, particularly emphasizing the role of causation and intention in the ascription of fault. The theory of responsibility is further developed by attention to the nature of the various desert-determiners: voluntary action, causation, intention, belief, absence of excuse, and basic moral agency and personhood. These are seen as the major determiners of moral desert. Part III develops the implications of retributive punishment for what is called the ‘special part’ of the criminal law. This is the part dealing with what a criminal code both does and should prohibit. The theory here developed is what often called a non-perfectionist, legal moralist theory of criminal legislation. The basic idea is that the criminal law has no business attempting to punish or coerce moral virtue but that, prima facie, it has every business in enforcing moral obligation. This theory of the proper reach of criminal legislation is, it is argued, an implication of the retributive point of punishment. Breach of moral obligation constitutes moral wrongdoing while lapses of virtue do not, which is why retributive punishment is fit for the one but not for the other. Depending on one’s moral views about the extent of our moral obligations, this alone can lead to a quite restricted view of the proper subjects of criminal prohibition. If we have no obligations about how we practice sexual intimacy, for example, then the legal moralist theory rejects these as proper subjects of criminal prohibitions. The book argues that the legal moralist theory should recommend even more restrictions on the proper subjects of criminal legislation in light of other considerations, such as epistemic doubt, the intrinsic goodness of liberty, the hidden costs of criminalization for certain behaviours that are unwitnessed, private, and victimless. The result is a theory of criminal legislation that is quite liberal in the restraints it urges on the content of the criminal law, even if quite illiberal in the form of the argument for those restraints.