Kleinfeld on Method in Criminal Law Theory

Another post about scholarly methodology -- this time in criminal law theory.  Because I haven't had occasion to contribute to the  JOTWELL project, I thought to note here the work of a criminal law theorist whose writing I've been enormously enjoying -- Joshua Kleinfeld.

What I like most about Josh's scholarship is his methodology -- one which takes an existing phenomenon in criminal law doctrine which has been missed, ignored, or marginalized by theorists, and applies philosophical tools to explore and understand it.  I've talked admiringly a little bit before about his very interesting German/US comparative piece on evil in criminal law.  In my view, there are very few superb pieces of legal scholarship about the phenomenon of evil.  Josh's is one of them. 

His latest project is about what he describes as the role of "victimization" in criminal law -- "the idea that the moral status of a wrongful act turns in part on the degree to which the wrong's victim is vulnerable or innocent and the wrongdoer preys upon that vulnerability or innocence."  Josh reproaches the conventional retributivism of the last 30 or so years for its failure to acknowledge the relevance of victimization, though he also carefully describes important limits on the relevance of victimization for purposes of both culpability and punishment.

There is too much to Josh's paper to summarize in a blog post -- it is rich with complex insights and I recommend it very much to readers interested in criminal law theory.  But I do want to reproduce just a little bit from his conclusion.  Josh's writing represents, I think, an interesting case in what are coming to be alternative or different or (a little bit) contrarian methodologies in fields that sometimes appear to be doing roughly the same sort of thing methodologically:

The central methodological idea behind this Article is that our existing social practices and institutions imply or reflect certain normative commitments—that values are immanent in social life—and that one important philosophical project in the law is to bring those immanent normative commitments to light.  The idea is also that, by bringing those immanent commitments to light, we expose them to a distinctive form of critique.  We effectively look in the mirror and ask, “Do I like what I see?  Are these commitments ones I can reflectively endorse?  And if so, am I living up to them?  Am I realizing them in the right way?”  This is social analysis and critique from the inside, and the intellectual tradition associated with it, though it has been called by various names, is the tradition of normative social theory.  It is an Hegelian tradition; to say that a moral concept like victimization is implicit in criminal law already, to make it one’s object to render that commitment explicit, has a distinctly Hegelian flavor.  This Article is an entry in the Hegelian, social-theoretic project.

The Hegelian approach to philosophy in law is, I submit, more faithful to and respectful of law than many others.  Rather than philosophy dropping in on law like an imperious and alien visitor, delivering pronouncements and then flying off again, the Hegelian, social-theoretic approach takes law not just as an instrument with which to implement the conclusions of an extralegal philosophical inquiry, nor merely the site from which to launch such an inquiry, but as an object of study with a certain moral content already in place, which philosophy can bring to light and expose to question. 

Others with philosophical training will know much more than I do about the extent to which this project is Hegelian.  But I thought the gist of the methodological approach -- which is also very much reflected in Josh's piece on evil -- is an extremely interesting, unusual, and worthwhile contribution to scholarship in criminal law theory.