Markus D Dubber
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199559152
- eISBN:
- 9780191725265
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199559152.003.0005
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
This chapter focuses on how we should conceive of the inquiry into the foundations of criminal law, whether legal, philosophical, historical, genealogical, or political. It argues that we cannot hope ...
More
This chapter focuses on how we should conceive of the inquiry into the foundations of criminal law, whether legal, philosophical, historical, genealogical, or political. It argues that we cannot hope to develop a foundational account of the criminal law without an account of what, if anything, legitimizes the state power that underlies the criminal law — an inquiry that has mostly escaped the attention of American thinkers both at the time the nation was founded and in the years since. The chapter is organized as follows. Section 1 considers various ways of conceiving of an inquiry into the foundations of criminal law. Section 2 explores the distinction between modes of foundational inquiry by considering the significance of the Rechtsgut principle in German criminal law science, on one hand, and in the jurisprudence of the German Constitutional Court, on the other. Section 3 presents preliminary remarks on an inquiry into the foundations of American criminal law.Less
This chapter focuses on how we should conceive of the inquiry into the foundations of criminal law, whether legal, philosophical, historical, genealogical, or political. It argues that we cannot hope to develop a foundational account of the criminal law without an account of what, if anything, legitimizes the state power that underlies the criminal law — an inquiry that has mostly escaped the attention of American thinkers both at the time the nation was founded and in the years since. The chapter is organized as follows. Section 1 considers various ways of conceiving of an inquiry into the foundations of criminal law. Section 2 explores the distinction between modes of foundational inquiry by considering the significance of the Rechtsgut principle in German criminal law science, on one hand, and in the jurisprudence of the German Constitutional Court, on the other. Section 3 presents preliminary remarks on an inquiry into the foundations of American criminal law.
Paul H. Robinson
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199917723
- eISBN:
- 9780199332854
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199917723.003.0006
- Subject:
- Law, Criminal Law and Criminology, Philosophy of Law
This chapter discusses how current American criminal law often quietly defers to lay judgments of justice. It first considers three sorts of rules common in modern criminal codes that reflect a ...
More
This chapter discusses how current American criminal law often quietly defers to lay judgments of justice. It first considers three sorts of rules common in modern criminal codes that reflect a deference to lay judgments of justice: recognizing excuse defenses; failing to take account of factors relevant to coercive crime-control principles; and creating a false impression that resulting harm is significant by including result elements in offense definitions. It then discusses the vagueness of the standards used in doctrinal formulations and how it reinforces the deference to lay judgments. One plausible explanation for the deference to lay intuitions of justice is that the drafters understood, although they did not make it explicit, that a criminal code could not openly conflict with the community's shared intuitions of justice without losing moral credibility with the community it governs, and that such a loss of credibility would undermine the criminal law's crime-control power.Less
This chapter discusses how current American criminal law often quietly defers to lay judgments of justice. It first considers three sorts of rules common in modern criminal codes that reflect a deference to lay judgments of justice: recognizing excuse defenses; failing to take account of factors relevant to coercive crime-control principles; and creating a false impression that resulting harm is significant by including result elements in offense definitions. It then discusses the vagueness of the standards used in doctrinal formulations and how it reinforces the deference to lay judgments. One plausible explanation for the deference to lay intuitions of justice is that the drafters understood, although they did not make it explicit, that a criminal code could not openly conflict with the community's shared intuitions of justice without losing moral credibility with the community it governs, and that such a loss of credibility would undermine the criminal law's crime-control power.
