Douglas N. Husak
This chapter begins with some remarks about what it would mean for the criminal law to contain an act requirement, and then moves on to how this question, suitably clarified, might be approached. Given the views about what the question means and how one should approach it, it contends that the criminal law does not contain an act requirement but something easily confused with it. The discussion concludes by speculating about why so many distinguished penal theorists mistakenly believe that criminal law contains an act requirement. Perhaps the main practical function of the act requirement is to bar punishment in those relatively unusual cases of strict criminal liability.
Stephen P. Garvey
This chapter examines alternatives to punishment itself, not other forms of punishment. Those who say that people should end state punishment and replace it with something else are penal abolitionists. They conclude, for one reason or another, that punishment is not justified, and perhaps cannot be, no matter what form it takes and no matter what the offense for which it is imposed. Penal abolitionists must answer at least two questions: First, why is punishment never justified? Second, what, if anything, should replace it? The chapter explores negative abolitionism, positive abolitionism, and restorative justice.
Criminal attempt is one of a small group of inchoate offenses that have an established place in most systems of criminal law. Full study of the law of attempts would lead into the depths of the philosophy of action and the controversies in moral philosophy about the role of “moral luck.” This chapter begins by considering the “criminal-law context” of attempts, placing them within the category of inchoate offenses that it then situates within a wider group of nonconsummate offenses. From there, the discussion moves toward the three major elements of the crime of attempt: the fault element, the minimum conduct requirement, and the relevance of impossibility.
Mitchell N. Berman
This chapter presents an opinionated summary of the state of the literature. The first section clears ground by introducing distinctions, vocabulary, and simple hypotheticals, and also provides a rudimentary account of the methodology for evaluating competing blackmail theories. The second section summarizes and criticizes many of the most notable contributions to the blackmail literature: those that seek to explain and justify blackmail's criminalization, as well as a few contrarian theories which maintain that blackmail's criminalization cannot be justified. The next two sections introduce the “evidentiary theory of blackmail.” The fifth section explores some reasons to believe that the puzzle warrants the substantial intellectual attention it has received, partly by sketching out some implications the evidentiary theory bears beyond the case of blackmail.
This chapter examines the issue of death in relation to capital punishment in homicide cases. It argues that there are indeed good reasons to adopt a death-penalty system for homicide according to the most plausible version of retributive thinking. The chapter also explains that the death penalty can save the lives of potential victims, can spare some people from becoming murderers, and can save the lives of patients in vital need of organs. It furthermore compares the deterrent effect of the death penalty and long terms in prison.
This chapter notes that the law has a bafflingly large number of legal tests for causation. There is no universally accepted theory in the general part of the law of crimes. There are thousands of separate usages of “cause” in the thousands of liability rules of criminal law; and there are nine variations of cause-in-fact tests, seven varieties of proximate cause tests, and three proposals supposing that a unified test should supplant any of the sixty-three possible combinations of the bifurcated tests. Despite disagreement about the proper test of causation to be given to juries, such juries often seem unperplexed at making findings of causation in particular cases. This may be because causation may be known better by common intuition in particular instances than by the abstract tests legal theorists have devised to “guide” such intuitions.
Previous accounts of ‘causation’ in the law are flawed by their failure to appreciate that causal language is used to express different information about the world. Because causal terms have been used to communicate answers to different questions, any philosophical search for a free-standing account of causation is doomed. Lawyers require precision of terminology, so they should explicitly choose just one interrogation to underlie causal usage in law. It is argued that this interrogation should be chosen to serve the wide projects of the law. In these projects the law is interested to identify when a specified factor was ‘involved’ in the existence of a particular phenomenon, where the notion of ‘involvement’ identifies a contrast between the actual world and some specified hypothetical world from which we exclude (at least) that specified factor: this contrast being that, while in the former world the phenomenon exists, in the latter it does not. (Such contrasts of necessity can be generated in three ways, all of importance to the law.)
L. W. Sumner
Since many acts may be harmful, and since society has many other means for controlling or responding to conduct, criminal law should be used only when the harm caused or threatened is serious, and when the other, less coercive or less intrusive means do not work or are inappropriate. This chapter uses Canadian free speech law and jurisprudence as a reference point, since the Canadian courts have been particularly obliging in raising and responding to the principal philosophical issues concerning the criminal regulation of expression. It concludes that the case for criminal regulation is weakest where the harms in question are widespread and diffuse and the causal link with speech remote and speculative. The case is stronger, however, for legislation such as the hate incitement law that is more narrowly aimed at speech which constitutes instigation to an unlawful act, especially to a hate crime.
This chapter holds that the criminal law should necessarily be concerned with culpability. Two of its other working assumptions are: that criminal law should be primarily concerned with retributive desert; and that retributive desert is strongly connected to culpability. Culpable acts are culpable in that they manifest insufficient concern for the interests of others. They manifest insufficient concern when the actor wills an action that he believes unleashes a risk of harm to others' morally protected interests, and he does so for reasons which do not justify the risk he believes he has unleashed. The chapter also discusses the risk and reasons analysis; culpability and the traditional account of recklessness; negligence and strict liability; and inchoate crimes.
This chapter surveys the landscape of deontological or categorical objections to the practice of capital punishment. The sketch of the various possible approaches fills the vacuum left by the frequent ceding of the moral field by nonreligious opponents of capital punishment. The central requirements of retributivism are that punishment be deserved and proportional to an offender's wrongdoing. Although Kant assumed that death is always a deserved and proportional punishment for the crime of murder, this assumption is vulnerable to attack both at the level of individual culpability and at the level of systemic distribution of death sentences. The discussion also takes up deontological challenges to capital punishment that seem a bit further from retributivism's core commitments to desert and proportionality.