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Criminal Theory and Critical Theory: Husak in the Age of Abolition

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Abstract

Political theorists imagine a world without government (“a state of nature”) in order to assess the legitimacy of existing states. Some thinkers, such as philosophical anarchists, conclude that in fact no state can be justified. Should theorists of criminal law similarly imagine away the very thing they seek to theorize? Doug Husak has claimed that “the object of criminal theory is to offer suggestions to improve the content of the criminal law … not to abolish it.” But this Essay argues that abolitionist-leaning scholarship reflects several welcome developments in criminal theory: a concern with the state; attention to empirical data and the distinction between normative claims and descriptive ones; recognition of enforcement as an essential element of criminal law; and above all, a demand that criminal law prove itself—a refusal to grant to criminal law a presumption of legitimacy. These theoretical orientations did not appear for the first time in abolitionist scholarship. In fact, all are calling cards of Husak’s own work, and cause to celebrate it.

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Notes

  1. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974): p. 7.

  2. See Benjamin Constant, “The Liberty of the Ancients Compared with that of the Moderns,” in Constant, Political Writings (Cambridge: Cambridge Univ. Press, 1988) (1819).

  3. Many identify Hobbes’s depiction of individuals in a state of nature, and their supposed choice to contract with one another and form a sovereign, as the key inflection point.

  4. See Douglas N. Husak, Philosophy of Criminal Law (Totowa, NJ: Rowman & Littlefield, 1987): p. 244 (“Liberalism, as here understood, represents the moral and political tradition with which I believe it is most promising to fuse revised criminal theory.”). Husak’s 1987 book bears almost the same name as Husak’s 2010 collection of essays, The Philosophy of Criminal Law: Selected Essays. Throughout this essay, I have attempted to avoid confusion by referring to the latter book as Selected Essays, and to this 1987 volume as Philosophy of Criminal Law. George Fletcher has suggested that criminal law theory may be exclusively modern: “[T]he major debates in the philosophical reflection on the criminal law have a distinctively modern ring to them. Established authorities have been punishing criminals from the beginning of organized society, but it is not until the late eighteenth century that we find serious engagement and disagreement about the purposes of inflicting this harm on those who have transgressed the norms of the community.” George Fletcher, “The Nature and Function of Criminal Theory,” 88 Cal. L. Rev. 687, 689 (2000). Fletcher’s dates are at least a little off, since Thomas Hobbes discussed the purposes and legitimacy of criminal punishment in Leviathan in the mid-seventeenth century.

  5. Douglas N. Husak, “Introduction: Reflections on Criminal Law Theory,” in The Philosophy of Criminal Law: Selected Essays (Oxford and New York: Oxford University Press, 2010): p. 7 [hereinafter Husak, Selected Essays]. But contrast that claim with Husak’s work on questions such as “Why criminal law?” and “Is criminal law important?” See Douglas N. Husak, “Why Criminal Law: A Question of Content?,” 2 Crim. L. & Phil. 99, 115 (2008) (noting failure of U.S. criminal law to limit punishments in line with desert, and asking “how much worse the deviation from the ideal would need to be in order for the entire system of criminal justice to lose its legitimacy”); Douglas N. Husak, “Is the Criminal Law Important?,” 1 Ohio St. J. Crim. L. 261, 261 (2003) (“Is the criminal law important? I am skeptical.”).

  6. Husak, “Introduction,” Selected Essays, supra n.5. Ten years later, I am not sure whether Husak still thinks of abolition as an impermissible aim of criminal law theory. He has recently made clear that he does not endorse that goal, but his very effort to respond to abolitionist arguments suggests a recognition that they are, for better or worse, part of the terrain of criminal theory now. See Douglas N. Husak, “The Price of Criminal Law Skepticism: Ten Functions of the Criminal Law,” 23 New Crim. L. Rev. 27 (2020).

  7. See, e.g., Dorothy Roberts, “Foreword: Abolition Constitutionalism,” 133 Harv. L. Rev. 1 (2019).

  8. Husak, “The Price of Criminal Law Skepticism,” supra n.6.

  9. E.g., Husak, Philosophy of Criminal Law, supra n.4, passim.

  10. Although I think Husak usually relies on a legalistic conception of criminality, he does embrace an extra-legal conception of desert. But to deserve punishment is not necessarily to be criminal. See Douglas N. Husak, “What’s Legal About Legal Moralism?,” 54 San Diego L. Rev. 381, 390-91 (2017). Admittedly, there are some strands of Husak’s work that seem more in keeping with an extra-legal and even specifically moralistic conception of criminality. See infra section 3.

  11. Douglas N. Husak, “Retribution in Criminal Theory,” 37 San Diego L. Rev. 960 (2000).

  12. “[N]othing is as useful to sound practice as a good theory. I hope to show that the poverty of Anglo-American criminal theory is among the most significant contributors to substantive injustice.” Husak, Philosophy of Criminal Law, supra n.4, at 6-7.

  13. Khalil Gibran Muhammad, The Condemnation of Blackness (Cambridge: Harvard University Press, 2010); Jonathan Simon, “‘The Criminal Is to Go Free’: The Legacy of Eugenic Thought in Contemporary Judicial Realism About American Criminal Justice,” 100 B.U. L. Rev. 787 (2020).

  14. See Alice Ristroph, “The Second Amendment in a Carceral State,” 116 Nw. U. L. Rev. 203 (2021); Alice Ristroph, “Farewell to the Felonry,” 53 Harv. C.R.-C.L. L. Rev. 563 (2018); Alice Ristroph, “Criminal Law as Public Ordering,” 70 U. Toronto L.J. 64 (2020). An extra-legal conception of criminality allows not only the criminalization of persons by race, but also the persistent trope of the “law-abiding” citizen who nonetheless breaks criminal laws. This figure appears in critiques of allegedly unjust laws and seems usually to be white. Douglas N. Husak, “Guns and Drugs: Case Studies on the Principled Limits of the Criminal Sanction,” 23 L. & Phil. 437 (2004); Sarah Seo, Policing the Open Road (Cambridge: Harvard University Press, 2019).

  15. For an ancient defense of inequality in the interests of social stability, see Plato, The Republic. I don’t want to take unnecessary swipes at the ancients, whose many insights about politics merit more attention than they presently receive. But I think it fair to say that a concern with human equality did not command the ancients as much as it commands thinkers from Hobbes afterward.

  16. See Husak, Philosophy of Criminal Law, supra n.4, at 5; id. at 244 (“[C]riminal theory has no viable alternative but to incorporate a substantive moral and political philosophy.”); Husak, “The Price of Criminal Law Skepticism,” supra n.6, at 50 (“Criminal law is an instance of state authority, and necessarily requires a political as well as a moral theory to rationalize it.”).

  17. See, e.g., Husak, “Guns and Drugs,” supra n.14, at 438 (“Too often, moral and criminal theory are separated from applied ethics and criminal law.”). To be sure, Husak did sometimes identify specific concepts dear to criminal theorists, such as desert, as independent of law. See “What’s Legal About Legal Moralism”, supra n. 10, at 387-88 (arguing that “legality is not a principle of desert”); see also n.59 below and accompanying text.

  18. See, e.g., Husak, “The Price of Criminal Law Skepticism,” supra n.6, at 31.

  19. See Husak, “Is the Criminal Law Important?,” supra n.5, at 262 (“I believe that the criminal law itself is not important. … The factors that govern whether or not persons will be punished are not much affected by the content of the statutes we teach and write about.”).

  20. See Douglas N. Husak, Overcriminalization (Oxford and New York: Oxford University Press, 2008); Husak, “Why Punish the Deserving?,” in Selected Essays, supra n.5.

  21. Husak, “Why Punish the Deserving,” supra n.20, at 397. Contrast Husak to Nozick, who analogized punishment to God’s infliction of pain. Nozick quoted C.S. Lewis for the proposition that retribution was God’s way to “plant[] the flag of truth within the fortress of a rebel soul.” Nozick, Philosophical Explanations (Cambridge: Harvard University Press, 1981): p. 718 n.80. Query whether planting flags of truth within rebel souls is consistent with the minimalist state that Nozick purported to embrace in Anarchy, State, and Utopia.

  22. Separate from the point here that criminal law is an imperfect mechanism to change behavior, Husak’s work often emphasizes empirical evidence about what humans are really like. For example, an effort to understand how real persons negotiate sexual intimacy led to his controversial work on consent standards in sexual assault law. See Husak, “Rapes Without Rapists: Consent and Reasonable Mistake,” in Selected Essays, supra n.5, at 233. In a very different vein, he argued that psychological research on various forms of cognitive bias called into question criminal theorists’ heavy reliance on intuitions. See Douglas N. Husak, “What Moral Philosophers Might Learn from Criminal Theorists,” 36 Rutgers L.J. 191, 192-194 (2004).

  23. Husak, “Guns and Drugs,” supra n.14, at 469.

  24. All of these considerations arise in Husak’s work, some receiving more attention than others. Particularly useful, in my view, are his discussions of a right not to be punished and his articulation of a framework to evaluate infringements of that right. Overcriminalization, supra n.20, at 92-103, 122-159.

  25. Douglas N. Husak, “Holistic Retributivism,” 88 Calif. L. Rev. 991, 1000 (2000); see also Husak, “Why Punish the Deserving,” supra n.20, at 401.

  26. Husak, “Retribution in Criminal Theory,” supra n.11, at 960.

  27. Id. at 962. This led Husak to reject what I have called elsewhere subject-matter exceptionalism, or the view that criminal law may be defined and distinguished by the unique category of conduct that it regulates. “The range and diversity of criminal offenses proved resistant to the formation of grand generalizations about substance. The principles that indeed pertain without exception to all offenses have the appearance of platitudes.” Husak, Philosophy of Criminal Law, supra n.4, at 21.

  28. “The tension and interplay between descriptive and prescriptive functions is perhaps the most fascinating and important aspect of criminal theory.” Husak, Philosophy of Criminal Law, supra n.4, at 24. See also id. at 25 (“Regardless of whether the theorist emphasizes description or prescription, he must employ some criterion for deciding when a recalcitrant part of the substantive law should be accommodated by a change in general principle, or when it should be condemned as unjust. In short, he needs to know when it is appropriate to describe and when to prescribe.”); Douglas N. Husak, “Crimes Outside the Core,” 39 Tulsa L. Rev. 755, 759 (2004).

  29. This view is often associated with Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1969).

  30. Husak, Introduction, Philosophy of Criminal Law, supra n.4, at 1, 6; see also Overcriminalization, supra n. 20, at vii (expressing skepticism about the relevance of many jurisprudential debates, including “the endless refinements of various modes of positivism”).

  31. For an illustration, see Kimberly Ferzan, “Of Weevils and Witches: What Can We Learn from the Ghosts of Responsibility Past?,” 101 Va. L. Rev. 947 (2015). In the span of a few lines, Ferzan claims first that as a criminal law theorist she studies “moral truths” that are independent of actual legal practices such as plea bargaining, id. at 948, but then she distinguishes criminal law theory from general jurisprudence with the claim that criminal law theory addresses actual legal practices. Id. at 949. “Criminal law theorists care about the law”—but apparently, not enough to clarify when or how much actual practice counts as law.

  32. E.g., Sanford Kadish, “Why Substantive Criminal Law—A Dialogue,” 29 Clev. St. L. Rev. 1 (1980).

  33. I develop the claims of this paragraph in greater detail in Alice Ristroph, “The Thin Blue Line from Crime to Punishment,” 108 J. Crim. L. & Criminology 305 (2018).

  34. Antony Duff and Doug Husak are among the exceptions who have given at least some attention to investigative and/or adjudicative procedure. See id. at 312-313 (discussing Duff); 322-324 (discussing Husak).

  35. Regulatory Reform Act: Hearing on H.R. 2327 Before the Subcomm. on Admin. Law & Governmental Relations of the H. Comm. on the Judiciary, 98th Cong. 312 (1983) (statement of Rep. John Dingell).

  36. See Husak, Overcriminalization, supra n.20, at 13; id. at 21; see also Husak, “The Price of Criminal Law Skepticism,” supra n.6, at 44-46. In the Skepticism article, Husak portrays stops and frisks, and more generally “the direct use of coercive force” by police solely as benefits of criminal law, without contemplating the possibility that these practices may suffer as many “drawbacks” as punishment, or more. For further discussion of this point, see n.57 below and accompanying text.

  37. Technically, the suspicion must be legally adequate—“objectively reasonable”—but as many commentators and some courts have recognized, once an officer does suspect a given person, his suspicions will nearly always be found legally reasonable.

  38. Ristroph, “Thin Blue Line,” supra n.30, at 309.

  39. “Whether or not the criminal law is justified depends not only on what conduct is proscribed, but also on how these proscriptions are applied and enforced at various stages of the criminal process.” Husak, “Why Criminal Law,” supra n.5, at 115.

  40. “Holistic Retributivism,” supra n.25.

  41. See Husak, Philosophy of Criminal Law, supra n.4, ch. 1.

  42. Husak, Philosophy of Criminal Law, supra n.4, at 72.

  43. See Husak, “Does Criminal Liability Require an Act?,” in Selected Essays, supra n.5.

  44. Husak, Philosophy of Criminal Law, supra n.4, at 79.

  45. Id. at 80.

  46. Id. at 81 (emphasis in original).

  47. For example, Husak purports to reject definitions of crime that assume the normative legitimacy of existing statutory offenses.

  48. Husak, “Introduction: Reflections On Criminal Theory,” in Selected Essays, supra n.5, at 7.

  49. The r is meant to avoid confusion with the typical shorthand for Critical Legal Studies (CLS). To be sure, Husak’s complaints about criminal law skeptics echo some of the responses to Critical Legal Studies by more orthodox legal theorists. In its heyday Critical Legal Studies made little impact on criminal theory, as others have noted. Robert Weisberg, “Criminal Law, Criminology, and the Small World of Legal Scholars,” 63 U. Colo. L. Rev. 521 (1992). Could the CrLS we see now just be an effort to catch up? Not exactly, in my view. While some skepticism about criminal law does draw upon insights promulgated by critical legal scholars, by and large criminal law skepticism, and especially abolitionist scholarship, reflects a great deal of confidence in other forms of law. In other words, critical legal studies articulated skepticism about law across all fields of law, whereas many of the works I’d associate with criminal law skepticism are optimistic about the possibility of replacing criminal law with other forms of law.

  50. Husak, “The Price of Criminal Law Skepticism,” supra n.6, at 30.

  51. Id.

  52. See id. at 32-33 nn.11-16; id. at 44 n.47 (referring to The Marshall Project’s list of references, most in the popular press, as evidence of support for police abolition among criminal law skeptics); see also Douglas N. Husak, “Criminal Law at the Margins,” 14 Crim. L. & Phil. 381, 391 (2019) (referencing “the general skepticism about criminal justice that has become so fashionable”).

  53. Husak, “The Price of Criminal Law Skepticism,” supra n.6, at 32–33.

  54. See, e.g., Roberts, “Abolition Constitutionalism,” supra n.7. This particular article appeared only a few months before Husak’s skepticism paper, perhaps too late to be addressed by Husak, but Roberts has been writing about criminal law abolition for years. See also Amna Akbar, “Toward a Radical Imagination of Law,” 93 N.Y.U. L. Rev. 405 (2018).

  55. “I collect ten important functions of the criminal law that would at best be jeopardized and at worst would be sacrificed altogether if the criminal justice system were radically transformed. I doubt that most of those legal philosophers who embrace skepticism about the criminal law fully appreciate what they are in danger of losing.” Husak, “The Price of Criminal Law Skepticism,” supra n.6, at 34.

  56. Id. at 36; but see Roberts, “Abolition Constitutionalism,” supra n.7, at 37-38.

  57. Husak, “The Price of Criminal Law Skepticism,” supra n.6, at 44-45; but see Roberts, “Abolition Constitutionalism,” supra n.7, at 115-116. In other work Husak has contemplated the costs of policing, but in his critique of CrLS he treats policing as an unqualified good.

  58. I note with due humility that I have argued for proportionality doctrine grounded not in a justificatory theory of criminal law but rather in “penological skepticism.” Alice Ristroph, “Proportionality as a Principle of Limited Government,” 55 Duke L.J. 263, 317-319 (2005). Sadly, this article did not attract Husak’s attention.

  59. E.g., Husak, “Crimes Outside the Core,” supra n.28, at 774.

  60. Though Husak sets up some targets that are very difficult to resist. For example, Husak warns that without criminal law, we would lose the ability to designate certain wrongs as public. He then cites “the recent outcry about the ongoing revelations of acts of sexual harassment by powerful men in entertainment and business” as a worry about a public wrong. Husak, “The Price of Criminal Law Skepticism,” supra n.6, at 50. But most of the acts of harassment identified in the #MeToo movement have never been classified as criminal in American law. Moreover, notwithstanding nondisclosure agreements, the outcry over such acts seems so far to have been a more effective public condemnation than any legal penalty, civil or criminal, had been to date. See, e.g., Catharine A. MacKinnon, “#MeToo Has Done What the Law Could Not,” N.Y. Times (Feb. 5, 2018), at A19. There may be no worse example than #MeToo to raise in defense of a claim that criminal law is necessary to identify and condemn public wrongs.

  61. On the phrase “the criminal law,” with the definite article, see Alice Ristroph, “The Definitive Article,” 68 U. Toronto L.J. 140 (2018).

  62. Husak, of course, is one such theorist. Husak, Selected Essays, supra n.5, at 1; Husak, “Retribution in Criminal Theory,” supra n.11, at 966 (“The hundreds of thousands of laws that subject violators to punishment are so diverse that they resist any unifying theory.”); Husak, “Crimes Outside the Core,” supra n.28, at 758 (“No coherent normative theory—regardless of how simple or polycentric it may be—can hope to make sense of more than a fraction of the criminal law that actually exists.”).

  63. See supra Section 1; see also Alice Ristroph, “The Curriculum of the Carceral State,” 120 Colum. L. Rev. 1696 (2020) (proposing an account of criminal law to replace the current curricular canon).

  64. I thank Carol Steiker for noting this parallel inquiry.

  65. I do not suggest that all abolitionist arguments are utopian. Some are explicit that problems now addressed through criminal law, such as interpersonal violence or unjustified risk-creation, will persist. But they seek other responses to such problems.

  66. Whether one embraces abolition is likely to depend on one’s optimism, or lack thereof, about the alternatives. “Abolitionists have been far more persuasive in critiquing supposed justifications of criminal law and punishment than in defending a viable alternative to them.” Douglas N. Husak, “Reservations About Overcriminalization,” 14 New Crim. L. Rev. 97, 107 (2011).

  67. “There is little doubt that moral and political values are required in any demonstration that the liberal concern for the individual is preferable to the utilitarian concern for the collective. …[T]he liberal is not morally neutral in his favoritism toward the individual as the basic political unit.” Husak, Philosophy of Criminal Law, supra n.4, at 241.

  68. See Husak, “Why Criminal Law,” supra n.5, at 114-115 (“Although I am tempted to believe that no punishment can be justified in an individual case unless it satisfies each of the criteria in our best theory of criminalization, I need not defend this extreme position to make my point. My claim is simply that the degree of deviation we should tolerate when we try to justify criminal law and punishment from the perspective of the individual is far less than we should be willing to accept when we try to justify criminal law and punishment from the perspective of society.”).

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Ristroph, A. Criminal Theory and Critical Theory: Husak in the Age of Abolition. Law and Philos 41, 263–282 (2022). https://doi.org/10.1007/s10982-021-09437-3

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