Criminal Justice

Criminal Justice: Nomos XXVII

J. Roland Pennock
John W. Chapman
Copyright Date: 1985
Published by: NYU Press
Pages: 386
https://www.jstor.org/stable/j.ctt9qfv7z
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  • Book Info
    Criminal Justice
    Book Description:

    This, the twenty-seventh volume in the annual series of publications by the American Society for Political and Legal Philosophy, features a number of distinguised contributors addressing the topic of criminal justice. Part I considers "The Moral and Metaphysical Sources of the Criminal Law," with contributions by Michael S. Moore, Lawrence Rosen, and Martin Shapiro. The four chapters in Part II all relate, more or less directly, to the issue of retribution, with papers by Hugo Adam Bedau, Michael Davis, Jeffrie G. Murphy, and R. B. Brandt. In the following part, Dennis F. Thompson, Christopher D. Stone, and Susan Wolf deal with the special problem of criminal responsibility in government - one of great importance in modern society. The fourth and final part, echoing the topic of NOMOS XXIV, Ethics, Economics, and the Law, addresses the economic theory of crime. The section includes contributions by Alvin K. Klevorick, Richard A. Posner, Jules L. Coleman, and Stephen J. Schulhofer. A valuable bibiography on criminal justice by Andrew C. Blanar concludes this volume of NOMOS.

    eISBN: 978-0-8147-6887-7
    Subjects: Sociology

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. CONTRIBUTORS
    (pp. ix-x)
  4. PREFACE
    (pp. xi-xiv)
    J.W.C. and J.R.P.
  5. INTRODUCTION
    (pp. 1-8)
    J. ROLAND PENNOCK

    Books on “justice” usually have relatively little to say about “criminal justice.” Indeed, this topic is completely absent from John Rawls’sA Theory of Justice. NOMOS VI,Justice, discussed criminal justice only tangentially, in one chapter. Justice, in the unqualified form, generally, perhaps especially today, suggests distributive justice, or social justice, while criminal justice, almost by definition, is the special concern of lawyers, although of course philosophers have had much to say about the justification of criminal law as a whole and the justification of criminalizing certain acts and of what constitutes appropriate punishment for them. Our Society has devoted...

  6. PART I: THE MORAL AND METAPHYSICAL SOURCES OF THE CRIMINAL LAW
    • 1 THE MORAL AND METAPHYSICAL SOURCES OF THE CRIMINAL LAW
      (pp. 11-51)
      MICHAEL S. MOORE

      My topic calls for clarification: what is meant by “criminal law” and by “source?” The criminal law that is the subject of this paper is, first of all,substantivecriminal law, not criminal procedure. Secondly, within substantive criminal law, I will discuss only what for decades now has been known as the “general part,”¹ that set of legal doctrines and principles that have relevance to all crimes and which do not concern themselves with the elements of particular crimes. The requirements ofactus reus, mens rea,and the principle of legality are examples of the doctrines and principles of the...

    • 2 INTENTIONALITY AND THE CONCEPT OF THE PERSON
      (pp. 52-77)
      LAWRENCE ROSEN

      Social scientists have long accepted as the starting point of their task the analysis of the ways in which the people of a given culture interpret one another’s actions and orient their own endeavors accordingly. Such interpretations and their assessment may be given as a matter of common sense in everyday affairs or left to the special consideration of professionals to whom the task of making sense of something on behalf of all may be incorporated into the overall scheme of an acceptable social order. But whatever its particular components—from the most obvious recognition of another’s acts to the...

    • 3 THE DECONSTRUCTION AND RECONSTRUCTION OF INTENT
      (pp. 78-86)
      MARTIN SHAPIRO

      We are presented in the previous chapters with two expositions of the bases of criminal law, one by a lawyer anthropologist, the other by a lawyer philosopher. The anthropologist says that the criminal law must operate from some basic concept of the person, which it draws from the notions of personhood prevalent in a culture, and that Western criminal law is based on a concept of the autonomous individual that entered Western high culture during the medieval period. The philosopher agrees that Western criminal law is based on conceptions of the autonomously acting, means-ends calculating person. Through a survey of...

  7. PART II: CONCERNING RETRIBUTIVE THEORY
    • 4 CLASSIFICATION-BASED SENTENCING: SOME CONCEPTUAL AND ETHICAL PROBLEMS
      (pp. 89-118)
      HUGO ADAM BEDAU

      For centuries, philosophers have debated principles of punishment generated from two dominant considerations, either the backward-looking concerns of retributive justice or the forward-looking concerns of general welfare. Meanwhile, officials charged with the day-to-day development and administration of criminal justice have had to rely on actual schemes to mete out sentences to convicted offenders, typically based on some unarticulated and eclectic combination of retributive and utilitarian considerations. Legislatures designing and revising a jurisdiction’s penal code, prosecutors recommending sentences for convicted offenders, trial judges handing down sentences case by case, administrative officials acting on applications for parole, commutation, and release from punishment,...

    • 5 HOW TO MAKE THE PUNISHMENT FIT THE CRIME
      (pp. 119-155)
      MICHAEL DAVIS

      Though the retributive theory of punishment has recently enjoyed a startling revival,¹ there seems to remain one decisive objection to it. The objection has been stated: “The retributivist’s difficulty is that he wants the crime itself to indicate the amount of punishment, which it cannot do unless we first assume a scale of crimes and penalties. But on what principles is the scale to be constructed, and how are new offences to be fitted into it? These difficulties admit of no solution unless we agree to examine the consequences to be expected from penalties of different degrees of severity: i.e.,...

    • 6 RETRIBUTIVISM AND THE STATE’S INTEREST IN PUNISHMENT
      (pp. 156-164)
      JEFFRIE G. MURPHY

      The purpose of this brief discussion piece is not to state and defend any thesis but is rather simply to raise a puzzle for the retributive theory of punishment—a puzzle that has received insufficient attention in the literature on the philosophy of punishment.

      Most philosophical discussions about the retributive theory of punishment (including most of my own) have focused on the question of whether the goals aimed at by retributive punishment (e.g., an apportioning of suffering to moral desert) are—contrary to some utilitarian bad press—proper moral goals, goals that describe a morally acceptable or even a morally...

    • 7 A MOTIVATIONAL THEORY OF EXCUSES IN THE CRIMINAL LAW
      (pp. 165-198)
      R.B. BRANDT

      The central contention of the following paper is that criminal liability requires amotivational faultin the agent. More fully, persons who have unjustifiably broken valid law should be exempt from punishment unless their behavior is a result of some defect of standing motivation (one might say “character” instead)—“should be” in the sense that the exemption is required by any reasonably adequate general theory of criminal justice.

      I shall suppose that we need four concepts in the criminal law. First, the law prohibits certain types of action (call an instance of one, “actus reus”) such as arson, larceny, rape,...

  8. PART III: CRIMINAL RESPONSIBILITY IN GOVERNMENT
    • 8 CRIMINAL RESPONSIBILITY IN GOVERNMENT
      (pp. 201-240)
      DENNIS F. THOMPSON

      The criminal law serves better to punish the crimes of citizens than the crimes of government against citizens. One reason no doubt is practical: governments manage the means of punishment. But a more fundamental reason is theoretical: governmental crime does not appear to satisfy the conditions that justify the use of the criminal sanction. In origin and rationale, the criminal law is directed against offenses committed by individuals acting as ordinary citizens. Governmental crime often lacks either an individual criminal or a citizen criminal, or both. Such crime may in this way be structural and official. It is structural when...

    • 9 A COMMENT ON “CRIMINAL RESPONSIBILITY IN GOVERNMENT”
      (pp. 241-266)
      CHRISTOPHER D. STONE

      Some amount of misconduct in government is inevitable. To deal with it, we have devices ranging from political housecleaning—abetted by the “disinfectant glare of publicity”—to civil damage suits, impeachment, and actions inquo warranto. The issue Dennis Thompson raises is, what is the place, in this panoply of control techniques, for the law of crimes? Under what circumstances, if any, is it appropriate to turn criminal investigations and sanctions inward against the government’s own officers? And under what circumstances, if any, is it appropriate to prosecute a governmental entity? Thompson suggests that these questions have been generally slighted...

    • 10 THE LEGAL AND MORAL RESPONSIBILITY OF ORGANIZATIONS
      (pp. 267-286)
      SUSAN WOLF

      Organizations in our society do many things that we, as members of the society, have both the reason and the right to try to stop. This is true of both public and private organizations, and not only of organizations as wholes but of individuals acting as bearers of specific organizational roles. The question thus arises, How ought we put a stop to these things, and, more particularly, how ought we use the legal system to put a stop to them? The question, though primarily pragmatic, has moral dimensions as well. That is, we want first to know what legal methods...

  9. PART IV: THE ECONOMIC THEORY OF CRIMINAL LAW
    • 11 ON THE ECONOMIC THEORY OF CRIME
      (pp. 289-309)
      ALVIN K. KLEVORICK

      At the end of his interesting and important article, “Crime and Punishment: An Economic Approach,” published in 1968, Gary Becker characterized his efforts at developing an “economic” framework for analyzing illegal behavior “as a resurrection, modernization, and thereby I hope improvement” on the pioneering efforts of Cesare Beccaria and Jeremy Bentham during the eighteenth and nineteenth centuries.¹ Becker hoped, at least implicitly, to give new life and direction to cost-benefit analysis of public policy toward crime. In this effort he surely succeeded, as the fifteen years since his seminal article appeared have seen the development of a substantial literature on...

    • 12 COMMENT ON “ON THE ECONOMIC THEORY OF CRIME”
      (pp. 310-312)
      RICHARD A. POSNER

      The question Professor Klevorick poses at the outset of his paper is why the economic analysis of crime,¹ unlike the economic analysis of torts, has not entered into the mainstream of lawyers’ thinking. The question is a somewhat surprising one for an economist to put, as it is a question about the sociology of legal education and practice rather than about economic analysis. But Professor Klevorick’s answer is more surprising. It is that the economic analysis of crime is incomplete; it presupposes a political theory that (by implication) is not yet in place. This is a surprising answer, because most...

    • 13 CRIME, KICKERS, AND TRANSACTION STRUCTURES
      (pp. 313-328)
      JULES L. COLEMAN

      These remarks are occasioned by Alvin Klevorick’s very thoughtful chapter “On the Economic Theory of Crime” in this volume.¹ The economic approach to law, Klevorick notes, has had a far wider and deeper impact on areas of the private law—especially torts, contracts, and property—than it has on the criminal law. The reason: economic analysis simply fails (or has failed so far) to elucidate central features of the criminal law. In some ways, Klevorick’s chapter attempts to identify the weak link in the chain of economic reasoning about crime. Klevorick does not stop at identifying what he takes to...

    • 14 IS THERE AN ECONOMIC THEORY OF CRIME?
      (pp. 329-344)
      STEPHEN J. SCHULHOFER

      Professor Klevorick’s interesting and instructive chapter directs our attention to two important questions. First, is the vast economic literature on criminal justice matters grounded in a coherent economic theory of crime? Second, does its value depend on its being so grounded? Klevorick concludes that an economic theory of crime is inherently incomplete. Such a theory must draw upon political concepts that in the nature of things cannot be derived from an economic source.¹ Klevorick goes on to suggest that economists should enlarge their models to allow for a noneconomic concept of the social loss from crime.

      Klevorick’s suggestion may save...

  10. BIBLIOGRAPHY
    (pp. 345-366)
    ANDREW C. BLANAR
  11. INDEX
    (pp. 367-372)
  12. Back Matter
    (pp. 373-373)