Thursday, August 10, 2017
Our legal system is shifting from a model based on deterrence and retribution through punishment to proactive harm prevention, thus pushing the threshold of criminal liability away from causation harm, and toward creation of risk. This Article cautions against rushing to embrace that trend. First, the Article identifies two different levels at which the concept of “harm” — usually treated as a unitary concept in the literature — operates. These two levels are the ex-ante concept of harm (or “harm in the abstract”) and the ex-post concept of harm (or “harm in the concrete”). The Article argues that the ex-post concept of harm is what is relevant for purposes of justifying the emphasis on results in criminal law. Then, the Article proceeds to provide such justification through historical and comparative analysis.First, the Article traces the origins of modern criminal law to the Enlightenment revolution. After illustrating the historical reasons that led to focus on resulting harm, the Article advances several arguments to keep the focus on resulting harm as a pillar of substantive criminal law today. The Article claims that the emphasis on resulting harm provides a check against government overreach and abuse; that it offers an empirically verifiable measure of culpability while guaranteeing a minimum of proportionality; and that it constitutes the right political choice in a liberal democracy. Finally, the Article briefly expounds some systemic consequences of its approach, looking at how the proposed theory would impact several problematic areas of criminal law. In the Conclusion, the Article stresses that moving away from a model based on resulting harm and toward a model based on risk creation comes at a price, and suggests that such trade-off is worth it only in exceptional circumstances.