Originally published: Oxford: Clarendon, 1997.

This book presents a comprehensive overview of what the criminal law would look like if organised around the principle that those who deserve punishment should receive punishment commensurate with, but no greater than, that which they deserve. Larry Alexander and Kimberly Kessler Ferzan argue that desert is a function of the actor's culpability, and that culpability is a function of the risks of harm to protected interests that the actor believes he is imposing and his reasons for acting in the (...) face of those risks. The authors deny that resultant harms, as well as unperceived risks, affect the actor's desert. They thus reject punishment for inadvertent negligence as well as for intentions or preparatory acts that are not risky. Alexander and Ferzan discuss the reasons for imposing risks that negate or mitigate culpability, the individuation of crimes, and omissions. (shrink)

What conception of causation is at work in the law? I argue that the law implicitly relies on a contrastive conception. In a liability case where the defendant's breach of duty must be shown to have caused the plaintiff's damages, it is not enough to consider what would have happened if the cause had not occurredthe law requires us to look to a specific replacement for the effect, which in this case is the hypothetical outcome in which the plaintiff came (...) off better. In place of I suggest the more explicit An explicitly contrastive approach can thus potentially help the lawyer phrase her causal question in a more explicit way, while shedding light on our conception of causation. (shrink)

Anglo-American criminal law traditionally demands a criminal purpose for an attempt conviction, even when the crime attempted requires only foresight or recklessness. Some legal philosophers have defended this rule by appeal to an alleged difference in the moral character or intentional structure of intended versus non-intended harms. I argue that there are reasons to be skeptical of any such differences; and that even if conceded, it is only on the basis of an unworkable view of criminal responsibility that such a (...) distinction would support a rule restricting attempts to criminal purpose. I defend instead the continuity thesis, according to which attempts are functionally continuous with endangerment offenses: both are legal efforts to regulate unreasonably dangerous conduct. The upshot of the continuity thesis is that there is little substantive difference between attempt and endangerment in principle, no matter how they are labeled in law. (shrink)

Courts and commentators have struggled for years to identify rules to explain and justify certain widely-shared intuitions about impossibility attempts, and they have proposed rules variously based upon (1) what mistakes actors make, (2) what intentions actors possess, and (3) what conduct actors perform. None of the proposals fully succeeds, however, and none is able to explain the widely-shared intuition, which underlies Sandy Kadish's inventive hypothetical regarding Mr. Law and Mr. Fact, that some attempts based upon mistakes of law are (...) just as blameworthy as attempts based upon mistakes of fact. I propose an alternative rule that, I believe, not only explains where and why people possess widely-shared intuitions regarding impossibility attempts (including regarding Mr. Law and Mr. Fact), but also explains where and why people have conflicting intuitions. I argue that widely-shared intuitions of blameworthiness and non-blameworthiness regarding impossibility attempts are a function, respectively, of whether informed citizens of the jurisdiction that enacted the statutory offense that the defendant allegedly attempted to commit widely believe or disbelieve that he would have been a threat to interests that the statute seeks to protect - a determination, in turn, that is a function of whether they widely believe or disbelieve that he would have committed the offense under counterfactual circumstances that they fear could have obtained. (shrink)

This first volume in the four-volume series The Moral Limits of the Criminal Law focuses on the "harm principle," the commonsense view that prevention of harm to persons other than the perpetrator is a legitimate purpose of criminal legislation. Feinberg presents a detailed analysis of the concept and definition of harm and applies it to a host of practical and theoretical issues, showing how the harm principle must be interpreted if it is to be a plausible guide to the lawmaker.