Thursday, July 26, 2012
R. A. Duff (University of Minnesota Law School) has posted Relational Reasons and the Criminal Law (Oxford Studies in Philosophy of Law, Vol. 2, 2012) on SSRN. Here is the abstract:
Some reasons for action are relational: I have reason to act in a particular way only in virtue of some relationship in which I stand or some role that I fill. In this paper I discuss some questions that relational reasons raise in the particular context of criminal law; this will also involve discussion of the nature of the authority that the criminal law asserts over those whom it purports to bind. I defend three claims: (a) that the normative reasons we have for obeying the criminal law are normally relational and civic; (b) that we do not typically have such reasons, or any reasons, for obeying the substantive criminal law; and (c) that the criminal law’s authority does not consist in a power to make conduct wrong, but lies primarily in its procedural dimension — the authority to call citizens to public account, to judge, to punish. That authority, and the reasons for action that flow from it, are essentially relational. In arguing for these claims, I argue against some prevalent assumptions about the nature of criminal law (that it consists in prohibitions that we are expected to obey); about the grounds of retributive punishment (that it is grounded in an impersonal demand of justice that the guilty suffer for their crimes); and about the significance of the criminal process and the criminal trial (that their purposes are essentially instrumental, to identify those who are to be punished).