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date: 15 December 2019

(p. v) Introduction

(p. v) Introduction

Over the last sixty years scholarly work in legal philosophy has grown tremendously, generating a wealth of new ideas and spreading widely into new areas of research. Not only have there been major developments in the field's core area, jurisprudence, but different branches of law have also become burgeoning centers of significant philosophical study. The criminal law, being the branch with the longest tradition of writings on philosophical problems, has also been foremost, among the different branches, in producing a rich contemporary literature on both its traditional problems and new ones that have emerged as the work in this area has grown. Research on these problems has attracted the interest of philosophers, legal theorists, criminologists, and other students of the criminal law. Its originality and influence has created demand for an authoritative handbook that covers the different topics under which the problems fall. We have put together the volume before you to meet this demand.

The volume contains seventeen original essays by leading thinkers in the philosophy of the criminal law. These essays represent the state of current research on the major topics in the field that arise from issues in the substantive criminal law. We have not included essays dealing with topics generated by the law of criminal procedure. While a philosophical literature on the latter topics, particularly the criminal law's standard of proof, has begun to emerge, the range of such topics is still too narrow to warrant including a separate section of essays on them in a handbook. Thus, to preserve the coherence of the volume, we decided to restrict its essays to philosophical topics in substantive criminal law. In this way, since all of these topics are interrelated, we expected that each of the essays would be enriched and deepened by its connections to many of the others. We have not been disappointed.

The oldest of these topics is punishment. Indeed, until midway through the last century, work on philosophical topics in the criminal law was largely confined to the study of questions about the justification of punishment. That study boasts a long history that traces back to Plato's Protagoras and Laws. In the modern period, one can find some discussion of these questions in Hobbes's Leviathan and Locke's Second Treatise of Government, but sustained discussion of them did not begin until the second half of the eighteenth century with the work of Beccaria and Bentham. This discussion has continued and evolved into contemporary debates over the place of retribution, deterrence, and reform in a just penal system. The literature these debates comprise is now vast.

Unlike the study of punishment, the study of other topics in the criminal law was largely ignored by modern philosophers and left instead to writers who applied the traditional methods of legal scholarship: exposition of common law, (p. vi) interpretation of statutes, harmonization of apparently conflicting elements in some branch of law, and the like. Things began to change, however, with the appearance, in the years following World War II, of H. L. A. Hart's essays on responsibility. Increasingly, philosophers took up Hart's questions about attributions of responsibility to criminal offenders and initiated studies of other related aspects of the criminal law. At the same time, scholars in the legal academy who specialized in criminal law began to incorporate these philosophical writings into their own works, to deal with the same questions philosophers were examining, and to adopt some of the philosophers’ methods. George Fletcher's landmark book Rethinking Criminal Law, published in 1978, is a prime example of this latter development.

A third wave of philosophical writing concerning the criminal law began with the appearance in 1957 of the Wolfenden Report, which contained the recommendations of the Committee on Homosexual Offences and Prostitution for reforming British law governing sexual conduct. In making these recommendations, the Committee revived John Stuart Mill's argument in On Liberty and applied it to the criminal law's restrictions on individual liberty in the area of sexual relations. This application of Mill's argument sparked severe criticism from Lord Devlin, and Devlin's criticism in turn elicited a strong response from Hart in defense of the Report's appeal to Mill. The controversy between Devlin and Hart has led to extensive and searching discussion by moral philosophers, scholars of the criminal law, and legal and political theorists, among others, of the criminal law's scope and limits and the relevance of customary morality to the definition of criminal offenses. These issues received comprehensive and masterful treatment in Joel Feinberg's four-volume work The Moral Limits of the Criminal Law, published successively in 1984, 1985, 1986, and 1988. Unsurprisingly, though, they continue to stir debate.

Today the literature in the philosophy of the criminal law has expanded greatly. It now covers many questions beyond the three aforementioned mainstays of the field: (1) what justifies the infliction of harm, as punishment, on criminals; (2) on what basis are criminals properly held responsible for their unlawful actions; and (3) what are the proper limits to the criminal law. In addition, it deals, inter alia, with questions about prosecuting omissions (e.g., what can justify such prosecutions if an unlawful act is a necessary element of any crime?), puzzles about criminal attempts (e.g., what qualifies an attempt as criminal and why should punishment for an attempt be less than for the corresponding completed offense?), questions about accomplice liability (e.g., what constitutes complicity in another's crime and how severe should its punishment be in comparison with the punishment imposed on the principal offender?), and questions about the place, if any, of clemency and mercy in a just penal system (e.g., how can mercy be consistent with justice in the infliction of punishment?). All these questions and more are discussed in the essays collected in this volume.

The first three deal with questions concerning the justifiability of “the state's outlawing certain acts as criminal offenses. Gerald Dworkin, in his essay, “The Limits of the Criminal Law”, takes up the general question of what must be true of an act to justify the state's outlawing it as a criminal offense. Wayne Sumner's essay “Criminalizing Expression: Hate Speech and Obscenity”, examines the same (p. vii) question as it applies specifically to certain acts of speech and against the background of the right to free speech that is granted by the Canadian Charter of Rights and Freedoms. The third of the initial essays, by Mitchell Berman, tackles the puzzling nature of blackmail. Why is it criminal, given that neither the act the blackmailer threatens to do (giving certain photos or documents that reveal information about the victim to others) nor the offer the blackmailer makes to the victim (to sell those photos or documents to him or her) is by itself a crime? In investigating this puzzle, Berman both explains its source and offers a solution.

The next three essays deal with issues concerning the general requirement in the criminal law of conduct as a necessary element of an offense. Douglas Husak, in his essay, “The Alleged Act Requirement in Criminal law”, disputes the very existence of such a requirement. Andrew Ashworth, in in his essay “Attempts”, considers the problems inherent in specifying what acts count as criminal attempts and what the rationale is for making such acts offenses when they are in themselves harmless. And Christopher Kutz's essay, “Complicity”, examines the conditions of accomplice liability, how the criminal law conceives of assistance or encouragement someone gives another in the commission of a crime as itself a crime, what intentions the person giving assistance or encouragement must have to be liable as an accomplice, and under what conditions an accomplice's guilt is as great or even greater than that of the offender he assists or encourages.

Because the acts of someone who assists or encourages another in the commission of a crime do not directly cause whatever harms the crime results in, accomplice liability raises questions about the necessity of a causal connection between the assistance or encouragement and such harm and the criteria of causation the criminal law uses to establish this connection. Kutz deals with these questions in arguing for the greater importance to determining liability of the accomplice's intentions. General questions about the criteria of causation in the criminal law and how they compare to similar questions in tort law are then thoroughly discussed in the volume's seventh essay, Michael Moore's “Causation in the Criminal Law”.

The next six essays cover different topics related to criminal responsibility. John Deigh's essay, “Responsibility” surveys the different theories of criminal responsibility against the background of the question whether universal determinism, if true, would vitiate such responsibility. Larry Alexander, in his essay “Culpability”, expounds and argues for a theory of criminal responsibility that restricts the factors determining a person's culpability for wrongdoing, as much as possible, to ones that cannot be the result of mere chance. To believe that culpability may be due to factors that result from mere chance is to endorse the idea of moral luck, and for Alexander such luck is anathema to regarding people as responsible for their actions. Kimberly Ferzan focuses in her essay, “Justification and Excuse,” on the distinction between defenses in which the defendant in a criminal trial offers reasons purporting to justify his act and defenses in which the defendant, while conceding that his act was wrong, offers reasons for excusing him from responsibility for it. The distinction has generated an important literature in criminal law theory and has been the site of several disputes among leading theorists over how to draw the distinction, which defenses qualify as justifications and (p. viii) which qualify as excuses, and what the rationale is for drawing this distinction. Ferzan gives a rich account of this literature and the nature of these disputes. Joshua Dressler's essay, “Duress,” examines many of the questions Ferzan considers as they apply to the defense of duress. His overall conclusion is that the defense is best understood as an excuse rather than a justification. And Walter Sinnott-Armstrong and Ken Levy, in their essay, ‘Insanity Defenses’, review the controversies that surround the plea of insanity as an exculpatory defense. The last of these six essays is Marcia Baron's “Gender Issues in the Criminal Law” critically discusses two defenses, provocation and self-defense, whose traditional requirements raise questions about gender bias in the criminal law and how best to remedy it. In addition, Baron discusses similar questions that the crime of rape, in light of its traditional definition, raises.

The volume's final four essays concern the topic of punishment. David Dolinko, in his essay “Punishment”, comprehensively surveys the philosophical literature on this topic, clarifying the different problems about punishment discussed in this literature and explaining the different positions legal philosophers have taken in proposing solutions to them. Capital punishment is the topic of the next essay Carol Steiker's “The Death Penalty and Deontology”. After a brief review of retributivist arguments in support of permitting, if not requiring, capital punishment for certain offenses, Steiker examines and evaluates various retributivist arguments for its abolition. Finding these inconclusive at best, Steiker examines additional abolitionist arguments that, like retributivist arguments, appeal to considerations besides the death penalty's record as a deterrent to lethally violent crimes. These, too, she argues, require further development. Anthony Duff, in his essay “Mercy”, discusses the tension between doing justice and showing mercy in sentencing criminal offenders. And Steve Garvey, in his “Alternatives to Punishment”, the volume's final essay first considers proposals for supplementing or replacing the practice of punishing criminal offenders with that of preventive detention of such offenders or others recognized as dangerous to others. Then, in the final section of his essay, Garvey takes up the controversial program of restorative justice, whose advocates have promoted it as a better alternative to punishment.

We have deliberately refrained from setting for our contributors the precise parameters of their essays. Rather, it seemed to us best to allow each to adopt the format he or she felt most comfortable with, and we have accordingly given each wide latitude in deciding the kind of essay to include in the volume. As a result, there is a good deal of variation in the formats of these essays. Some discuss the particular answers their authors give to the issues they raise, while others present overviews of the range of approaches one finds in the literature. Some address broad topics; others focus on narrower issues. All of them, we believe, will stimulate interest in, and reflection on, the intriguing conceptual and normative problems that abound in the field of criminal law.

John Deigh

David Dolinko

Austin, Texas and Los Angeles, California

May 2010