Frontmatter

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CONTENTS

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pp. vii-viii

Contributors

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p. ix

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Preface

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pp. xi-xiii

In his book The Political Tradition of the West, Frederik Watkins, a former president of the American Society for Political and Legal Philosophy, called attention to the fact that Western civilization, as contrasted with the great ethical civilizations of the East, is essentially legal civilization. Neither...

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Introduction

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pp. 1-7

Books on "justice" usually have relatively little to say about "criminal justice." Indeed, the topic is completely absent from John Rawls's A Theory of Justice. NOMOS VI, Justice, discussed criminal justice only tangentially, in one chapter. Justice, in the unqualified form, generally, perhaps especially today, suggests...

PART I: THE MORAL AND METAPHYSICAL SOURCES OF THE CRIMINAL LAW

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1. The Moral and Metaphysical Sources of the Criminal Law

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pp. 11-51

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, substantive criminal law, not criminal procedure. Secondly, within substantive criminal law, I will discuss only what for decades now has been known as...

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2. Intentionality and the Concept of the Person

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pp. 52-77

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...

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3. The Deconstruction and Reconstruction of Intent

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pp. 78-86

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...

PART II: CONCERNING RETRIBUTIVE THEORY

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4. Classification-Based Sentencing: Some Conceptual and Ethical Problems

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pp. 89-118

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...

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5. How to Make the Punishment Fit the Crime

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pp. 119-155

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...

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6. Retributivism and the State's Interest in Punishment

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pp. 156-164

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...

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7. A Motivational Theory of Excuses in the Criminal Law

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pp. 165-198

The central contention of the following paper is that criminal liability requires a motivational fault in 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...

PART III: CRIMINAL RESPONSIBILITY IN GOVERNMENT

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8. Criminal Responsibility in Government

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pp. 201-240

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...

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9. A Comment on “Criminal Responsibility in Government”

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pp. 241-266

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 action in quo warranto. The issue Dennis Thompson raises is, what is the place, in this...

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10. The Legal and Moral Responsibility of Organizations

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pp. 267-286

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...

PART IV: THE ECONOMIC THEORY OF CRIMINAL LAW

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11. On the Economic Theory of Crime

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pp. 289-309

At the end of his interesting and important article, "Crime and Punishment: An Economic Approach," published in 1986, 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...

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12. Comment on “On the Economic Theory of Crime”

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pp. 310-312

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...

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13. Crime, Kickers, and Transaction Structures

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pp. 313-328

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...

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14. Is There an Economic Theory of Crime?

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pp. 329-344

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...

Bibliography

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pp. 345-366

Index

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pp. 367-372