Placing Blame: A Theory of the Criminal Law

The book aims to give a comprehensive theory of the substantive criminal law. It first develops a theory of what a comprehensive theory of any area of law, such as criminal law, should look like. Explanatory, evaluative and descriptive theories are distinguished, and the partly normative nature of 'descriptive' theories is defended. Boundary conditions for what counts as an area of law are also developed and applied to criminal law. The book then proceeds in three parts. Part I defines and defends a retributive theory of punishment, a theory according to which the sole function of the criminal law is to punish those who deserve to suffer for their culpable wrongdoing. The other two parts of the book detail the implications of this view of the end of punishment, for the kinds of doctrines and institutions the criminal law both does and should have. Part II develops these implications for what is called the 'general part' of the criminal law. This part contains the doctrines, principles, and policies that apply to all crimes and that give each of them a common basic structure. The retributive point of punishment requires that there be a theory of when persons are morally responsible and thus deserving of punishment. The theory of responsibility that constitutes the general part of the criminal law, abstractly stated, is developed, first, by answering general questions about the role of various desert determiners, particularly emphasizing the role of causation and intention in the ascription of fault. The theory of responsibility is further developed by attention to the nature of the various desert-determiners: voluntary action, causation, intention, belief, absence of excuse, and basic moral agency and personhood. These are seen as the major determiners of moral desert. Part III develops the implications of retributive punishment for what is called the 'special part' of the criminal law. This is the part dealing with what a criminal code both does and should prohibit. The theory here developed is what often called a non-perfectionist, legal moralist theory of criminal legislation. The basic idea is that the criminal law has no business attempting to punish or coerce moral virtue but that, prima facie, it has every business in enforcing moral obligation. This theory of the proper reach of criminal legislation is, it is argued, an implication of the retributive point of punishment. Breach of moral obligation constitutes moral wrongdoing while lapses of virtue do not, which is why retributive punishment is fit for the one but not for the other. Depending on one's moral views about the extent of our moral obligations, this alone can lead to a quite restricted view of the proper subjects of criminal prohibition. If we have no obligations about how we practice sexual intimacy, for example, then the legal moralist theory rejects these as proper subjects of criminal prohibitions. The book argues that the legal moralist theory should recommend even more restrictions on the proper subjects of criminal legislation in light of other considerations, such as epistemic doubt, the intrinsic goodness of liberty, the hidden costs of criminalization for certain behaviours that are unwitnessed, private, and victimless. The result is a theory of criminal legislation that is quite liberal in the restraints it urges on the content of the criminal law, even if quite illiberal in the form of the argument for those restraints.