Wednesday, December 29, 2010
Kenneth W. Simons (Boston University - School of Law) has posted Understanding the Topography of Moral and Criminal Law Norms (PHILOSOPHICAL FOUNDATIONS OF CRIMINAL LAW, R.A. Duff, Stuart P. Green, eds., Oxford University Press, 2011) on SSRN. Here is the abstract:
The world is not flat. Neither is the topography of criminal wrongdoing and culpability, or of actus reus and mens rea. This complex terrain should not surprise or frighten us. It is a complexity built upon the varied, and in some instances incommensurable, moral norms that lie beneath criminal law doctrine.
This essay, a contribution to a forthcoming volume on the philosophical foundations of the criminal law, suggests the following conclusions. Criminal law norms can be more general or more particular. How particular should they be? The answer depends, in significant part, on the underlying landscape of the moral norms that criminal law instantiates, and on the political principles through which those moral norms are refracted. On three plausible accounts of moral justification — foundational pluralism, reliance on concrete moral intuitions, and variable relevance particularism — moral norms are relatively particularistic. At the same time, such accounts entail that the moral map contains localized areas of incommensurability. Finally, criminal law norms can be purely descriptive, or instead partially evaluative. But the difference that this distinction makes should not be overstated. A partially evaluative criterion does empower the fact-finder to play a more significant role in appraising the moral wrongfulness and the moral culpability of the defendant’s actions than does a purely descriptive criterion, but either type of criterion ultimately serves a normative function.
Modern criminal law scholars and reformers have made enormous progress in simplifying and rationalizing criminal statutes. But we should not assume that if criminal law norms are complex and messy, those norms cannot be cogently justified. In the moral domain, Bernard Williams cautioned against wholesale rejection of “thick” ethical concepts. In the related domain of legal punishment, we should heed his caution.