What distinguishes “criminal law” from all other law? This question should be central to both criminal law theory and criminal justice reform. Clarity about the distinctive feature(s) of criminal law is especially important in the current moment, as the nation awakens to the damage that the carceral state has wrought and reformers debate the value and the future of criminal law institutions. Foundational though it is, however, the question has received limited attention. There is no clear consensus among contemporary scholars or reformers about what makes the criminal law unique. This Essay argues that Antony Duff’s The Realm of Criminal Law offers an answer—and that the answer is correct. Duff rightly diagnoses criminal law as unique by virtue of the fact that it censures particular acts in the polity’s name. It is a mechanism of collective condemnation. The Essay advocates recognition of this concept of criminal law and draws out implications for both criminal law theory and criminal law reform.
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E.g. Ta Nehisi-Coates, The Case for Reparations, The Atlantic (June 2014); P.R. Lockhart, The 2020 Democratic Primary Debate over Reparations, Explained, Vox.com (June 19, 2019); Rachel Kushner, Is Prison Necessary? Ruth Wilson Gilmore Might Change Your Mind, The N.Y. Times Magazine (Apr. 17, 2019); Michael Zuckerman, Alec Karakatsanis’08 Puts ‘Human Caging’ and ‘Wealth-Based Detention’ in America on Trial, Harvard Law Today (Aug. 23, 2017).
E.g. Harvard Law Review, Vol. 132 Issue 6 (2019) (dedicated to prison abolition).
See generally Douglas Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II (2008).
Penal abolitionism is a broad movement that encompasses diverse groups and strains of thought. See generally Michael J. Coyle and Judah Schept, Penal Abolition Praxis, 26 Critical Criminology 319 (2018). Due to space constraints, I use the terms “abolitionist” and “abolitionism” quite reductively throughout this Essay.
See, e.g., Paul Butler, The System Is Working the Way It Is Supposed to: The Limits of Criminal Justice Reform, 104 Geo. L. J. 1419 (2016); Benjamin Levin, The Consensus Myth in Criminal Justice Reform, 117 Mich. L. Rev. 259, 262 (2018); Alec Karakatsanis, The Punishment Bureaucracy: How to Think About “Criminal Justice Reform”, 128 Yale L.J. Forum 848, 852 (2019).
See, e.g., Angela Y. Davis, Are Prisons Obsolete? (2003).
See, e.g., Meghan G. McDowell and Luis A. Fernandez, ‘Disband, Disempower, and Disarm’: Amplifying the Theory and Practice of Police Abolition, 26 Critical Criminology 373 (2018).
See, e.g., Abolitionist Principles and Campaign Strategies for Prosecutor Organizing, Community Justice Exchange, https://www.communityjusticeexchange.org/abolitionist-principles.
See, e.g., Allegra M. McLeod, Envisioning Abolition Democracy: Developments in the Law, 132 Harv. L. Rev. 1613 (2019).
R. A. Duff, The Realm of Criminal Law (2018) [hereinafter “Duff”].
Duff might deny that he answers the question at all. See infra Part 2.2.
Perhaps this Essay should be titled “The Nature of Criminal Law” and dispense with the intermediary notion of a concept. See Michael S. Moore, A Natural Law Theory of Interpretation, 58 S. Cal. L. Rev. 277 (1985) (describing and defending a realist theory of meaning); Michael S. Moore, The Various Relations between Law and Morality in Contemporary Legal Philosophy, 25 Ratio Juris 435, 438–440 (2012) (differentiating between effort to draw “analytically” versus “metaphysically” necessary connections between law and morality). Given space constraints and my own ambivalence, I leave the question open.
Duff, supra note 10, at 11.
Id. at 50–51.
Cf. Vincent Chiao, What is the Criminal Law For?, 35 L. & Phil. 137, 159 (2016) (expressing skepticism about the importance of “received legal categories”).
See supra note 12.
See, e.g., Jeremy Waldron, The Rule of Law, in Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/rule-of-law (last visited Sept. 24, 2019).
Michael S. Moore, Placing Blame: A Theory of the Criminal Law 19–23 (1997).
See Duff, supra note 10, at 12. Moore further differentiates between “natural” and “functional” kinds. Moore, supra, at 19–23.
See Duff, supra note 10, at 12 (noting that the identification of such features will inevitably be “selective, and normatively informed”).
E.g., Duff, supra note 10, at 6 (“Chapter 1 develops a conception of criminal law as a distinctive kind of legal institution…. This account is not meant to provide an analysis of ‘the concept of criminal law’—of, for instance, the necessary and sufficient conditions for anything to count as a system of criminal law….”).
E.g. id. at 6, 13.
Id. at 11 (“The analytical exercise [of determining what criminal law is] is an exercise in conceptual analysis.”); 12–13 (“It will be a conceptual analysis insofar as I will be claiming that anything that we are to count as a system of criminal law must display at least some of the features that I will highlight….”).
Or at least a concept of criminal law in contemporary Western democracies. Duff avoids any suggestion that he—or anyone—could “tell us what counts as criminal law at all times and all places.” Id. at 11.
Id. at 18 (asserting that “a criminal conviction is essentially censorious”).
Id. at 34.
Id. at 260.
Id. at 19; see also id. at 37 (“[W]hat distinguishes punishments from taxes or ‘penalties’ is their typically reprobative nature.”).
Id. at 19.
Id. at 20 (emphasis added).
Id. at 232. This is a strange claim. Many other fields of law—not least constitutional law—help to sustain the polity’s civil order. Duff presumably means that the criminal law helps to sustain the polity’s civil order in a unique way.
It echoes Durkheim’s views, among others. See Emile Durkheim, Crime and Punishment, in Durkheim and the Law 69 (Steven Lukes and Andrew Scull eds. 1983) (opining that punishment functions “to maintain inviolate the cohesion of society by sustaining the common consciousness… to give voice to the unanimous aversion that the crime does not fail to evoke….”).
Joshua Dressler, Understanding Criminal Law 2 (7th ed. 2015).
Henry M. Hart, Jr., The Aims of the Criminal Law, 23 L. & Contemp. Probs. 401, 404 (1958).
E.g. Larry Alexander & Kimberly Kessler Ferzan, Crime and Culpability: A Theory of Criminal Law 18 (2009) (“The criminal law prevents harm by inculcating and reinforcing norms about how to treat others and operates in accordance with norms about deserved and appropriate punishment for the violation of those norms.”); Andrew Ashworth & Lucia Zedner, Preventive Justice 14 (2014) (identifying “censure” as one of “key elements” of punishment, and implicitly as the only unique element); H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law 11, 13, 17 (2d ed. 2008) (identifying a culpability requirement—“the restrictive principle of Distribution”—as the thing that distinguishes punishment from preventive restraint, and thus criminal from non-criminal law); Douglas Husak, Ignorance of Law: A Philosophical Inquiry 26 (2016) (defining punishment as a state response that “deliberately expresses condemnation or stigma and imposes a deprivation or hardship on the offender”); Joshua Kleinfeld, Reconstructivism: The Place of Criminal Law in Ethical Life, 129 Harv. L. Rev. 1485, 1565 (2016) (arguing that criminal law is distinctive as “an instrument of normative reconstruction” that operates through “condemnatory punishment”); Moore, supra note 19, at 33 (arguing that criminal law is a functional kind, the distinctive function of which is to “attain retributive justice”); Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law 3 (2011) (“The right to punish offenders… is grounded in the duties that they incur as a result of their wrongdoing.”); Gideon Yaffe, Attempts: In the Philosophy of Action and the Criminal Law 32 (2010) (“To punish for conduct is to express the judgment that the conduct is an appropriate object of disapproval and condemnation: this is censure.”); Joel Feinberg, The Expressive Function of Punishment, 49 The Monist 397, 400 (1965) (identifying the expression of blame as the distinguishing feature of punishment); Andrew von Hirsch, Censure and Proportionality, in A Reader on Punishment 118 (R.A. Duff & David Garland eds., 1994) (asserting that difference between a tax and a punitive fine is that “the fine conveys disapproval or censure, whereas the tax does not”).
Carol S. Steiker, Foreword: Punishment and Procedure: Punishment Theory and the Criminal-Civil Procedural Divide, 85 Geo. L.J. 775, 799 (1997); 800–05 (describing evolution of scholarship on question of what defines “punishment”).
Duff, supra note 10, at 19.
Id. at 21 (“I would be very happy if the claim that the criminal law is essentially concerned with wrongdoing was uncontroversial.”).
E.g. id. at 6–13, 28; James Edwards, Theories of Criminal Law, https://plato.stanford.edu/entries/criminal-law (describing features of criminal law that make it “distinctive” without discussing which are necessary or sufficient to constitute criminal law); Antony Duff, Theories of Criminal Law, 2013, https://plato.stanford.edu/archives/sum2018/entries/criminal-law (“It would be unproductive to ask whether all these are strictly necessary features of criminal law….”).
See, e.g., Chiao, supra note 16, at 159 (“[T]he public law conception adopts an unapologetically revisionist attitude toward received legal categories generally, and the civil-criminal (or criminal-regulatory) distinction in particular.”); see also id. at 158–159 (conceding that “the public law conception represents criminal justice institutions as functionally continuous with many other forms of coercive state power”); Vincent Chiao, Two Conceptions of Criminal Law, in The New Philosophy of Criminal Law 25 (Chad Flanders & Zachary Hoskins, eds., 2016) (“[F]rom a public law perspective, what is unique about the criminal law is simply the severity of its sanctions.”). But see Chiao, supra note 16, at 137 (“It is in the nature of the kind of thing it is that punishment—and hence the criminal law—serves to expressively vindicate rights and condemn wrongs.”).
Criminal Law and its Processes: Cases and Materials (Sanford H. Kadish, Stephen J. Schulhofer, & Rachel E. Barkow, eds., 10th ed. 2017).
Philosophical Foundations of Criminal Law 5 (R.A. Duff & Stuart P. Green, eds., 2011).
Cf. Dan Markel, Retributive Damages: A Theory of Punitive Damages As Intermediate Sanction, 94 Cornell L. Rev. 239 (2009) (advocating retributive framework to guide and rationalize punitive damages).
See supra Part 2.1.
Accord Chiao, supra note 41, at 25 (“[W]hat makes the use of such [criminal] sanctions so difficult to justify is not its [sic] condemnatory message per se but rather the degree of coercion with which those messages are conveyed.”). Cf. Mitchell N. Berman, Punishment and Justification, 118 Ethics 258 (2008) (exploring what it means to say that punishment stands in need of justification).
Thanks to Victor Tadros for suggesting the example.
See generally, e.g., Maite Ezcurdia, The Concept-Conception Distinction, 9 Phil. Issues 187 (1998). Cf. Chiao, supra note 41 (describing “two conceptions of criminal law”).
In my subjective opinion.
Again, there is a question as to whether we need a “concept” of criminal law or should just proceed on a direct-reference theory of meaning, as Michael Moore does. See supra note 12.
I assert this in simple terms although it is surely not so simple. “Must” could refer to either a practical or normative requirement. As a practical matter, a system of collective condemnation primarily directed at blameless acts would face resistance. As a normative matter, a system that primarily condemned blameless acts would be incoherent and dishonest. I am assuming that “coherence” and “honesty” are normative criteria for any system of law.
Duff, supra note 10, at 21.
Id. at 117.
Or at least on the “censure” element of punishment, if its constitutive elements of “censure” and “sanction” can be severed. See Yaffe, supra note 36, at 32.
As well as The Realm, see generally R.A. Duff, Punishment, Communication, and Community (2001).
Duff, supra note 10, at 223–225.
Accord, e.g. Dressler, supra note 34, at 2 (“‘The essence of punishment… lies in the criminal conviction itself,’ rather than in the specific hardship imposed as a result of the conviction.”); see also Lindsay Farmer, Making the Modern Criminal Law: A Response, 10 Jurisprudence 110, 113 (2019) (“The argument for seeing the aims of criminal law and punishment as distinct should primarily be understood as a conceptual distinction aimed at opening up space for broader reflection on the aims of the criminal law.”).
Merriam-Webster’s Collegiate Dictionary 563 (11th ed. 2005).
E.g. Duff, supra note 10, at 230.
Moore, supra note 19, at 32.
Farmer, supra note 57, at 111.
See, e.g., Hart, supra note 35.
See, e.g., Alexander & Ferzan, supra note 36, at 18; Chiao, supra note 16, at 138 (“The criminal law supports the possibility of the rule of law—a collective life under stable public institutions—by providing crucial support to shared attitudes of reciprocity.”).
Duff, supra note 10, at 265; accord Chiao, supra note 16, at 138 (“In condemning wrongs and vindicating rights, the criminal law arguably fulfills a wide variety of functions.”).
Accord Duff, supra note 10, at 202–203 (canvassing other scholars’ arguments about the “primary purpose” of criminal law and offering his own).
See Farmer, supra note 57, at 112.
Duff, supra note 10, at 152 (recognizing this).
Thanks to Alec Walen for pushing this point.
This is Michael Moore’s suggested vocabulary from the symposium.
See, e.g., Darin Clearwater, ‘If the Cloak Doesn’t Fit, You Must Acquit’: Retributivist Models of Preventive Detention and the Problem of Coextensiveness, 11 Crim. L. & Phil. 49 (2017); Sandra G. Mayson, Collateral Consequences and the Preventive State, 91 Notre Dame L. Rev. 301, 317–333 (2015); Paul H. Robinson, Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice, 114 Harv. L. Rev. 1429, 1444 (2001).
See, e.g., Moore, supra note 19, at 83–187.
See, e.g., Duff, supra note 10, at 265; Douglas Husak, Lifting the Cloak: Preventive Detention as Punishment, 48 San Diego L. Rev. 1173 (2011).
See generally Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law (2011).
In terminology invoked by Antony Duff and Stuart Green, perhaps criminal law theory should be both “simple” and “neat” with respect to the question of what makes criminal law a distinctive kind of law, but both “complex” and “messy” with respect to questions about its purpose(s), justification(s), and procedures. Duff & Green, Introduction, in supra note 43, at 8–10.
Cf. Chiao, supra note 16, at 160 (raising the question of whether we need coercive institutions); McLeod, supra note 9 (urging a shift toward restorative and therapeutic practices as a response to harm).
Chiao, supra note 16, at 145–147, 159–161 (questioning “whether we should continue to prefer a guilt-conditioned scheme of coercive rule-enforcement to less destructive means of promoting pro-social cooperative attitudes”).
Determinism poses a deep challenge to any form of moral judgment. If we are fully determined creatures, choice is an illusion and both praise and blame are groundless. The metaphysical objection finds support in each new field of inquiry to take the baton in the progress of human knowledge, most recently neuroscience and statistics. See, e.g., Stephen J. Morse, Brain Overclaim Redux, 31 Law & Ineq. 509 (2013). The merits of this view are beyond the scope of this Essay.
Our history of racial oppression and wealth inequality has produced a situation in which many of the communities most affected by crime and criminal law enforcement—poor communities of color—feel little connection to the institutional apparatus of the criminal law. See Monica C. Bell, Police Reform and the Dismantling of Legal Estrangement, 126 Yale L.J. 2054, 2072 (2017) (“Most discussions of African American distrust of the police only skirt the edges of a deeper well of estrangement between poor communities of color and the law—and, in turn, society.”). But see Jocelyn Simonson, The Place of “The People” in Criminal Procedure, 119 Colum. L. Rev. 249 (2019) (exploring means to promote “an inclusive system of criminal adjudication responsive to the multidimensional demands of the popular will,” including historically excluded groups).
That might be because crime is partly a function of disadvantage, because law enforcement tends to target the powerless regardless of crime rates, or both. See, e.g., Sandra G. Mayson, Bias In, Bias Out, 128 Yale L.J. 2218, 2251–2259 (2019).
In the aggregate, the disparate impact of our current system has functionally produced official condemnation of poor communities of color. See generally Khalil Gibran Muhammad, The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America (2010).
As noted above, this stance has much in common with Durkheim and, more recently, Joshua Kleinfeld. See Durkheim, supra note 33; Kleinfeld, supra note 36.
Duff, supra note 10, at 144, 203, 332.
Accord Durkheim, supra note 33.
Duff, supra note 10, at 201–211.
Herbert Morris, Persons and Punishment, 52 The Monist 475 (1968); cf. Marcus Kirk Dubber, The Right to Be Punished: Autonomy and Its Demise in Modern Penal Thought, 16 Law & Hist. Rev. 113 (1998).
See, e.g., Stephen J. Morse, Culpability and Control, 142 U. Pa. L. Rev. 1587, 1589 (1994) (noting that “the criminal law might treat persons as part of the biophysical flotsam and jetsam of the universe and respond solely on the basis of the type and degree of dangerousness people threaten, without regard to moral responsibility”); Mayson, supra note 70, at 322–323 (exploring the distinction between law that affirms individual agency and predictive restraint that is “indifferent to agency altogether”).
Duff, supra note 13, at 211, 213, 215, 274.
E.g. id. at 39 (“[I]f we are to make normative sense of a system of criminal punishment, we must understand it in more fully relational terms….”).
Chiao, supra note 76.
C.S. Lewis, The Humanitarian Theory of Punishment, Res Judicatae 225 (1954) (originally printed in 20th Century: An Australian Quarterly Review (1949)).
Id. at 228–229; cf. Toyosaburo Korematsu v. United States, 323 U.S. 214 (1944), abrogated by Trump v. Hawaii, 138 S. Ct. 2392 (2018) (upholding preventive Japanese internment against constitutional challenge).
Hart, supra note 35, at 23.
Cf. Hadar Aviram, Progressive Punitivism: Notes on the Use of Punitive Social Control to Advance Social Justice Ends Buff. L.Rev. (forthcoming), https://ssrn.com/abstract=3404276 (commenting on views of self-identified progressives who advocate for and against punitivism selectively).
See generally Douglas Husak, Overcriminalization: The Limits of the Criminal Law (2008).
See generally Stephanos Bibas, The Machinery of Criminal Justice (2012); Simonson, supra note 78.
See, e.g., James B. Jacobs, The Eternal Criminal Record (2015); Mayson, supra note 70.
Cf. Robert Weisberg, Barrock Lecture: Reality-Challenged Philosophies of Punishment, 95 Marq. L. Rev. 1203, 1208 (2012) (arguing “that both deontological and utilitarian philosophies of punishment will founder in irrelevance unless they accept some intellectual responsibility for engaging the stubborn facts of a system of imprisonment they often justify or enable”).
Outside the rarefied air of criminal law theory conferences, it is often assumed that (1) criminal law must be our primary method of crime control and (2) crime control is the primary purpose of criminal law. Both assumptions are dubious, to say the least. For an argument that grassroots police-reform movements have helped to raise first-order questions about how the state should provide security, see Jocelyn Simonson, Police Reform Through a Power Lens (work in progress; manuscript on file with author). Assuming that criminal law will continue to play some role in the state’s crime control efforts, there are of course further questions about how criminal law institutions can most effectively promote public safety. See generally Rachel Elise Barkow, Prisoners of Politics: Breaking the Cycle of Mass Incarceration (2019) (urging more reliance on expert institutions to develop rational, evidence-based crime control policy).
Duff offers one compelling vision. For another vision of criminal process that maintains an emphasis on collective moral judgment within a framework of accountability and healing, see generally Danielle Sered, Until We Reckon: Violence, Mass Incarceration, and a Road to Repair (2019); see also Donald Braman, Punishment and Accountability: Understanding and Reforming Sanctions in America, 53 UCLA L.Rev. 1143 (2006) (investigating a “popular preference for ‘accountability-reinforcing sanctions’" and exploring the role of accountability in punishment).
Duff himself, of course, has given this question considerable attention. In addition to The Realm, see generally Duff, supra note 55; see also Simonson, supra note 78.
This conflict is one manifestation of the metaphysical tension at the heart of criminal law. We believe in individual agency but also recognize that human action is highly determined. Convictions reflect blame for crimes committed; yet disparate conviction rates among disadvantaged groups demonstrate that convictions flow, in significant part, from undeserved circumstances. Cf. Weisberg, supra note 98, at 1240 (“Is it possible to defend an ethos of individual responsibility when it is instantiated in a practice that has led to the mass production of ruined lives?”); Jeffrie G. Murphy, Marxism and Retribution, in Punishment: A Philosophy and Public Affairs Reader 3 (A. John Simmons et al. eds., 1995).
Some theorists have started down this path. See Vincent Chiao, Mass Incarceration and the Theory of Punishment, 11 Crim. L. & Phil. 431, 450 (2017) (arguing for the necessity of “[a] normative theory of criminal justice that takes seriously the aggregate costs and benefits of those institutions, as well as how those costs and benefits are distributed across a population.”); see also Chiao, supra note 16, at 154; Hamish Stewart, The Wrong of Mass Punishment, 12 Crim. L. & Phil. 45, 46 (2018) (arguing that “a policy of relentless prosecution and punishment is unjust in a free society” and characterizing this as “a retributive argument against mass punishment”).
Duff, supra note 13, at 40–50.
I would like to express the deepest gratitude to Antony Duff, Doug Husak and Alec Walen for inviting me to participate in this symposium, and for their endless generosity to new scholars. Many thanks as well to the other participants for very helpful comments, to the Rutgers Philosophy Department for hosting us, to Maron Deering and Jocelyn Simonson for their patience and insight, and to Casey Sack and George Thomas for excellent editorial assistance.
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Mayson, S.G. The Concept of Criminal Law. Criminal Law, Philosophy 14, 447–464 (2020). https://doi.org/10.1007/s11572-020-09530-z
- Realm of criminal law
- Criminal justice reform
- Criminal law theory
- Conceptual analysis