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.
Society has conflicting feelings about persons who commit crimes under duress. People are likely to view them as both victims and villains, and feel compassion for the coerced actor. However, this chapter points out that there is something odd about the defense: the coerced actor is asking to be acquitted although he suffers from no mental disorder, knew precisely what he was doing, and chose to avoid harm to herself or others close to her by causing considerable harm to an innocent stranger. Why would the law exculpate a person for such a self-interested act? The chapter surveys existing duress law, considering this question as well as other issues relating to the outer edges of duress law. It considers involuntary act and mens rea; justification and excuse; homicide; and necessity versus duress.
Marcia W. Baron
This chapter focuses on philosophical questions in criminal law that have a significant gender component rather than on gender issues more generally, looking at three areas: self-defense, provocation defense, and rape. The second section notes that one who commits what would otherwise be a murder is guilty only of manslaughter if he or she kills in a “sudden heat of passion” as the result of adequate provocation. The third section argues that the law of self-defense is flawed if it cannot treat cases such as Judith Norman's as self-defensive killings. The fourth section suggests that the law of rape and sexual assault more generally would do well to eliminate the force requirement altogether and to take nonconsent, rather than consent, to be the presumption, except in ongoing relationships involving sex and not marred by the use of force to secure sexual compliance.
Mark C. Murphy
Both Thomas Hobbes and John Austin identify civil law with commands issued by a sovereign; thus it is common to think of Austin’s theory of law as closely continuous with Hobbes’s view. Yet this “command of the sovereign” formulation masks deep differences between Hobbes and Austin, not only in their understandings of command and sovereign but also in the commitments that gave rise to their offering theories of law formulated in these terms. Nor is it correct to think that innovations in Hobbes’s conception of law paved the way for Austin’s more full-blown legal positivism: Hobbes’s jurisprudence is, in fundamentals, closely akin to Thomas Aquinas’s natural law jurisprudence. The idea that Hobbes and Austin are jurisprudential allies ought to be abandoned.
Walter Sinnott-Armstrong and Ken Levy
Many infamous cases create the impression that political assassins can get off just by pleading insanity. That impression, however, is inaccurate, because many insanity pleas are not successful. Still, successful insanity defenses are often controversial. On the one hand, when a defendant is known to have intentionally caused a death, it strikes many as unjust to find that person not guilty. On the other hand, it strikes many as unfair to find someone guilty of committing an offense for which he was not morally responsible. This chapter examines whether insanity is medical or legal; the M'Naghten Rule; irresistible impulse and loss of control; the model penal code; insanity as irrationality; and arguments for and against an insanity defense.
Several models of interdisciplinarity exist in law, justice, and criminology. In law, knowledge integration is by hybridization with other disciplines (e.g., law and sociology); each contextualizes the framework of rules and procedures. Interdisciplinarity challenges law’s effective practice and complicates its penchant for logical simplicity. Criminology’s engagement with interdisciplinarity is grounded in multidisciplinary explanations of crime, integrative attempts to produce comprehensive analytical explanatory frameworks, and attempts to transcend the limits of organized disciplinary knowledge production. Criminology’s thirty-year dalliance with interdisciplinarity raises questions of whether disciplines embody interdisciplinarity, and what precisely should be integrated: concepts, propositions, or theories that address different levels of analysis (e.g., micro-meso-macro). Questions are raised about how integration should occur, in what sequence, and with what effects on causality. Many of these issues are illustrated in Robert Agnew’s Toward a Unified Criminology. Transdisciplinary approaches question what counts as knowledge and focus on multiple “knowledge formations.”
Stacie P. Kershner and Leslie E. Wolf
Law has played a critical role in the great public health achievements of the past century, including vaccination, seat belt use, water fluoridation, and tobacco control. Law continues to be an important tool in this century’s efforts to improve the public’s health, including efforts to prevent chronic illnesses related to obesity. Public health law specifies what must be done or what cannot be done, or law may authorize an array of options regarding what actions are permissible to improve the public’s health. Public health ethics can provide a structure for determining which of the permissible actions authorized by law should be taken. This chapter explores public health law, including its sources and its limits, as well as the relationship between public health law and ethics.
Kimberly Kessler Ferzan
This chapter notes that justifications appear to entail accepting responsibility but denying the conduct was wrongful or impermissible, whereas excuses admit the conduct was wrongful but deny the defendant was responsible. The distinction enables one to categorize different sorts of defenses, which arguably could have different legal implications. An absence of an element defense is not a true defense, but, rather, constitutes a denial of one or more of the elements of the crime (alibi). In contrast, justifications and excuses follow an admission or finding that the defendant has committed the underlying offense, but offer an argument for why the defendant should nevertheless not receive criminal punishment. The discussion considers three different views of justification: objective, subjective, and dual. Unlike justifications, excuses are generally understood as assessing the actor's blameworthiness. Whereas justifications most naturally speak to consequentialist concerns, excuses are more at home within retributive theory.
Aquinas's account of law as an ordering of reason for the common good of a community depends on the mereology that covered his theory of parthood relations, including the relations of parts to parts and parts to wholes. Aquinas argued that ‘all who are included in a community stand in relation to that community as parts to a whole’, and ‘every individual person is compared to the whole community as part to whole’. Aquinas held that the perfection of wholes through the proper ordering of their parts does not entail the elimination of diversity, but in many cases requires diversity. Aquinas argued that there are two ways of ordering parts within a whole. Firstly, the parts are ordered with respect to one another, and secondly, the parts are ordered toward an end. The ordering of a whole's parts to one another is always for the sake of the ordering of the whole to its extrinsic end. Aquinas argued that the good toward which the law directs a community is called the ‘common good’ of that community. The common good or common end toward which members of a community are ordered can be the sort of end that the agents bring into existence through their own actions such as justice within a community, or the sort of end that can exist apart from the actions of the agents.
Brian H. Bix
This article offers an overview of the major areas and approaches where American theorists have offered significant contributions to legal philosophy. The first section discusses American legal realism; the second section looks briefly at the legal process school; the third section gives brief overviews of law and economics and the other post-realist critical theories; the fourth section summarizes the approach of Lon Fuller; the fifth section examines the legal theory of Ronald Dworkin; and the fifth section summarizes some significant American contributors to schools of thought that originated in Europe, as well as American contributions to the analysis of legal concepts and doctrinal areas.
The application of rational actor theory to the law has been dominated by the law and economics movement. Law and economics began as a methodology for approaching legal questions; this combiation suggested using the tools provided by economic theory to solve problems in manifestly economic fields like antitrust and taxation. But it quickly moved beyond methodology to acquire both a normative and a descriptive thesis of its own. Law and economics thus regards law as a vehicle for maximizing utility, and it maintains that much of law can be explained as serving that function already. This article suggests reasons why laws that maximize social utility are not necessarily the best legal rules for individuals that seek to maximize their personal utility. In particular, it suggests that ideally rational individuals would be unlikely to select the principle of utility maximization as the basis for choosing ideal legal rules.