In a characteristically iconoclastic essay, “Does the State Have a Monopoly to Punish Crime?”, Douglas Husak argues that the state’s moral right to punish crime is all but self-evident while its supposed monopoly on punishment is a fiction. Husak draws this bracing conclusion from a modest, quasi-Lockean premise – that persons and other entities have a right to impose stigmatizing deprivations on those who wrong them. This premise evokes John Locke’s far stronger claim that everyone enjoys a natural right to (...) inflict potentially severe sanctions on any wrongdoer. The quasi-Lockean premise also evokes the familiar idea that all criminal wrongdoing is an attack on the broader community, and that law-breakers consequently owe a debt to society that they can repay through punishment. In this essay, I argue that the inferences Husak draws from the quasi-Lockean premise are unsound, but for reasons that reveal important lessons about the state’s right to punish crime and about the limits of what we can extract from the venerable idea that a central victim of criminal wrongdoing is the community as a whole. In Part II, I argue that the quasi-Lockean premise does not ground the state’s right to punish the kind of wrongs traditionally thought central to the criminal law, namely, wrongs perpetrated on individual human victims. In Part III, I answer Husak’s implicit challenge to describe a kind of stigmatizing deprivation – a kind of punishment – that the state alone has a right to inflict. I suggest that no entity but the state may inflict sanctions that constitute prima facie invasions of moral rights. (shrink)

This paper discusses what kinds of conflicts arise when a crime has been committed, and with whom—and in which of their possible roles—the offender should be seen as having such conflicts. The possible roles of the victim are in focus, as is the constitutive role of the act of criminalizing a certain kind of behavior. It is argued that while in the tort conflict the victim should be seen as a party qua him- or herself in a ‘fuller’ sense (and (...) with full freedom on how to handle the conflict, including dropping it), in the criminal law conflict it is community, the ‘we’, that should be looked upon as the party to the conflict with the offender. The victim should not be seen as excluded from the criminal law conflict, though: to the contrary, he or she is a member of community and has an important role to play. This role, however, needs to be strictly defined in a way that gives the victim the function of a certain kind of representative for ‘us’, the community. This role should not allow the victim much room to influence how the criminal law conflict is handled. The model I am suggesting presupposes—I think, at least—that criminal law conflict and tort conflict should be handled together at the same trial. (shrink)

This is a review of the challenging book in which Larry Alexander and Kimberly Ferzan propose sweeping revisions to the structure of substantive criminal law.

According to the received view crimes like torture, rape, enslavement or enforced prostitution are domestic crimes if they are committed as isolated or sporadic events, but become crimes against humanity when they are committed as part of a ‘widespread or systematic attack’ against a civilian population. Only in the latter case can these crimes be prosecuted by the international community. One of the most influential accounts of this idea is Larry May’s International Harm Principle, which states that crimes against humanity (...) are those that somehow ‘harm humanity.’ I argue that this principle is unable to provide an adequate account of crimes against humanity. Moreover, I argue that the principle fails to account for the idea that crimes against humanity are necessarily group based. I conclude by suggesting that the problem with May’s account is that it relies on a harm-based conception of crime which is very popular, but ultimately mistaken. I submit that in order to develop an adequate theory of crimes against humanity we need to abandon the harm-based model and replace it with an alternative conception of crime and criminal law, one based on the notion of accountability. (shrink)

It is widely held that the proper role of criminal punishment is to ensure in a cost-efficient manner that criminal laws will be obeyed. As James Buchanan puts it,the reason we have courts is not that we want people to be convicted of crimes but that we want people not to commit them. The whole procedure of the law is one, essentially, of threatening people with unpleasant consequences if they do things which are regarded as objectionable.According to the deterrence theory (...) of punishment, which I will here accept without argument in order to tease out some of its implications, legislators must be aware of opportunities to maximize the threat value of criminal prohibitions. By maximizing deterrence, we minimize the cost of crime. On the other hand, creating these threats, and carrying them out, is also costly. So we also wish to minimize the cost of avoiding crime. An efficient deterrent, therefore, will be one which minimizes the sum of the costs of crime and crime avoidance, where ‘cost’ is to be broadly construed. (shrink)

Punishment and restitution are usually viewed as separate paradigms of criminal justice. However, in this dissertation I suggest that a practice of legal punishment can be justified in the context of a criminal justice system based exclusively on the criminal's obligation to make restitution for the losses he has wrongfully inflicted on others. My strategy is to show first that those who commit crimes bring about a significant loss for the members of their community in addition to harming the immediate (...) victims of their crimes, and second, that a practice of legal punishment constitutes a means by which criminals can make restitution to the members of the community for this loss. I suggest, then, that the members of the community are morally justified in instituting a practice of legal punishment in order to exact restitution for the loss they suffer as a result of criminal violations. ;The dissertation provides a reasonably systematic development of a restitutive theory of punishment. I begin by critically examining the major approaches that have been taken to the justification of punishment in order to provide some preliminary justification for taking a particular approach to this issue. I then outline a conception of justice that forms the basis of the theory of punishment I suggest. The central chapter contains an analysis of the different types of losses that result from criminal violations and a moral argument that justifies requiring criminals to make restitution for all of these losses. I also argue that given certain conditions, legal punishment constitutes a legitimate means by which the members of the community can exact restitution for the loss they have suffered. In the remainder of the dissertation I show that a restitutive theory of punishment both captures and illuminates much of the retributivist position, and I work out several of the specific implications of this analysis for the way in which a practice of legal punishment ought to be articulated. (shrink)

Richard Dagger (in this issue) provides perhaps the most persuasive version of a ‘fair play’ theory of criminal punishment, grounded in an attractive liberal republican political theory. But, I argue, his version of the theory still faces serious objections: that its explanation of why some central mala in se are properly criminalised is still distorting, despite his appeal to the burdens of ‘general compliance’; and that it cannot adequately explain (as it should explain) the differential seriousness and wrongfulness of different (...) kinds of crime. (shrink)

The intentional punishment of the innocent is ordinarily claimed to be a special problem for utilitarian theories of punishment. The unintentional punishment of the innocent is a problem for any theory of punishment which holds that the guilty should be punished. This paper examines the criteria that are relevant to a determination of the appropriate probability of punishment mistakes for a society, and argues that this is the kind of moral problem for which utilitarian judgments, as opposed to considerations of (...) justice, are most appropriate. To illustrate some of the trade-offs involved, the paper employs some hypothetical data. (shrink)

There is a tendency among those who identify themselves as subjectivists on the issue of defining criminal intent to dismiss or minimize the role of actual non-trivial harm in the determination of criminal liability and punishment. That is to say, they are those who argue that an individual’s subjective intent is a sufficient indication of potential dangerousness and culpability to justify punishment. In this essay, the author presents a view, based on Adam Smith’s recognition of the “irregularity of the sentiments,” (...) that actual physical harm matters; that it reflects the negative component of the two great motivators, pleasure and pain; and that it can release the worst sort of emotional reactivity: retribution. The infliction of a non-trivial first order harm can invoke a deeply felt aesthetic reaction which, in turn, reflects our natural (and cognitively “irregular”) human sentiments. Trying to dispense with harm as a feature in our understanding of criminality seems prima facie absurd. Awareness of the sentiment, as Smith understood, helps temper the worst parts of our nature: that which hopes to crush the people and ideas we find threatening. Ironically, the existence of and need for harm as a necessary condition of criminality heightens our awareness of the limitations of reason in dealing with victims of crime. We are not simply cognitive creatures. (shrink)

Iconoclasts? Who, Us? A Reply to Dolinko Content Type Journal Article Category Original Paper Pages 1-7 DOI 10.1007/s11572-012-9143-3 Authors Larry Alexander, San Diego, CA, USA Kimberly Kessler Ferzan, Camden, NJ, USA Journal Criminal Law and Philosophy Online ISSN 1871-9805 Print ISSN 1871-9791.