Philosophy of Criminal Law: Selected Essays (review)

There are several different ways to think about how philosophy might intersect with substantive criminal law (or with any other area of substantive law, for that matter). One way is prescriptive and proceeds from the abstract to the particular: begin with your preferred philosophical theory about duties, obligations, rights, and wrongs – consequentialism, perhaps, or Kantianism – and reason from that theory to conclusions about what the substantive criminal law ought to look like. By way of illustration, you might apply your favourite philosophical theory to a particular criminal law doctrine – for example, the nature of consent or the defence of necessity – and draw conclusions about whether the doctrine is coherent and justified. On this approach, philosophy is applied to criminal law in order to provide guidance about the sort of normative principles the substantive criminal law ought, ideally, to embody.

Alternatively, one might proceed from the particular to the abstract, beginning with the assumption that the substantive criminal law is more or less coherent as it is and reasoning backwards to see which philosophical theory, if any, concerning duties, obligations, rights, and wrongs is reflected in it. On this approach, the goal would not be to propose changes to the substantive criminal law, although such proposals might emerge along the way. Rather, the goal would be to identify the philosophical commitments of the criminal law by paying careful attention to what the substantive criminal law actually says. This approach is broadly descriptive in nature.

Douglas Husak’s important work in criminal law theory combines elements of these two approaches in interesting and illuminating ways. Although he has his preferred philosophical theories (he is a deontologist and subscribes to a modified version of retributivism about punishment), his starting point is typically the result of reflections on actual criminal law doctrine and practice. So, in that sense, his methodology reflects the descriptive approach sketched above. On the other hand, Husak also believes that the goal of philosophy of criminal law is primarily prescriptive in nature. As he puts it, ‘[T]he object of the philosophy of criminal law (or of criminal theory), as I construe it, is to defend proposals to improve the content of the substantive criminal law’ (1). Collections of essays rarely speak with a single voice, and often lack a unifying theme or argument. There is, however, a clear thread that ties together the papers collected in The Philosophy of Criminal Law, and that is an emphasis on both descriptive and prescriptive aspects of criminal law theory, an emphasis that is reflected in each essay in this impressive collection.

Husak is perhaps best known for his work on the limits of criminalization and the legalization of drugs. Neither issue figures prominently here. This is not an oversight. As Husak notes, although the collection primarily reflects recent work with which he is largely in agreement, it does not cover ground that is already covered in Drugs and Rights (Cambridge UP, 1992), Legalize This! (Verso, 2002), The Legalization of Drugs (Cambridge UP, 2005), or Overcriminalization (Oxford UP, 2008). Readers hoping to learn more about Husak’s views on why drugs ought to be legalized or about how he understands the moral limits of the criminal law sanction will have to look elsewhere.

What Husak has given us is a collection of papers discussing the basic components of criminal liability: the doctrines of actus reus and mens rea, criminal defences, and punishment. The collection is, appropriately enough, divided into four parts: ‘Criminal Liability,’‘Degrees of Culpability,’‘Defenses,’ and ‘Punishment and Its Justification.’ It also contains a very helpful introduction, ‘Reflections on Criminal Law Theory.’ In what follows I’ll briefly discuss four of Husak’s essays that to my mind raise some fundamental issues in criminal law theory.

The first essay in the collection, ‘Does Criminal Liability Require an Act?’ is a classic. In it, Husak argues that the standard interpretation of the actus reus requirement – namely, that there can be no criminal liability without a voluntary act – does not accurately reflect actual...