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Monday, September 19, 2011

Retributive Justice and the Demands of Democratic Citizenship

As some of you may know, I've been preoccupied the last 9 months or so on a big project called Retributive Justice and the Demands of Democratic Citizenship. I've thrilled to say that I've finally uploaded a draft of it to SSRN. You can download it here. The piece represents my early efforts at thinking through some of the relationships between political obligation and decisions regarding crime and punishment. In particular, I try to argue, contra crim law gurus like Doug Husak and Michael Moore, why it is that appropriately scaled punishment may, under the right conditions, be justly imposed on offenders for crimes involving conduct that is itself morally neutral (prior to or independent of law). If I'm right about that claim, then the underlying arguments also generate a raft of unusual implications, some of which are detailed in the abstract.

Sadly, the piece is long. Still, if you plod through it, I would be very grateful for comments as my hope is to turn this (and some other) material into a book tentatively entitled Rethinking Retributive Justice. The abstract and some more background about the piece appear after the jump. 

This article reveals and responds to the democracy deficit in certain retributivist approaches to criminal law. Democracy deficits arise when we insufficiently recognize the moral authority of liberal democracies to create new moral obligations for us as individuals. Specifically, I will argue, in contrast to the claims of some leading criminal law theorists, that conduct can be legitimately and justly criminalized even if the conduct is not morally wrongful prior to or independent of law. In other words, once we understand the basis for our presumptive political obligations within liberal democracies, a more capacious approach to establishing criminal laws can be tolerated from a political retributivist perspective. 

If I'm correct, then here are some of the implications: we are morally obligated (in a pro tanto way) to (1) conform our conduct, in our capacities as nonofficials, not only to “good” mala in se criminal laws but also many mala prohibita laws, laws that I call permissibly dumb but not illiberal; (2) to render, in our capacities as nonofficials, reasonable assistance to law enforcement of the previous categories of laws; and (3) to enforce, in our capacities as officials, these categories of laws. While the implications of this "democratic fidelity" argument are extensive, there is no moral obligation to surrender one’s judgment entirely. Indeed, officials and nonofficials have no moral obligation toward laws that are illiberal or what I call "spectacularly dumb," regardless of their valid legal status. 

Like democratic criminalization choices, democratic sentencing laws must also be scrutinized. To that end, I sketch two moral frameworks that should work in conjunction with each other and with the threshold criminalization question when deciding whether to enforce, conform to, or assist enforcement efforts of criminal laws within liberal democracies.

By way of background, the paper was the invited "launch" paper of a new journal devoted to criminal justice issues at UVA's law school, the Virginia Journal of Criminal Law. I am very grateful to Darryl Brown and the student editors of that journal for making possible the chance to come to Charlottesville to begin a dialogue with some of my favorite voices in criminal law theory: Josh Bowers, Michael Cahill and Antony Duff. When the first issue comes out, it will comprise my paper, the response essays by Bowers, Cahill and Duff, as well as a reply essay by me whose final touches I'm currently procrastinating via this blog post. While this project has been difficult for me at times to work though, I confess it's been a delight to have the opportunity for this conversation in criminal law theory to unfold both in person and in print.

Posted by Administrators on September 19, 2011 at 03:43 PM in Article Spotlight, Criminal Law, Dan Markel, Legal Theory | Permalink


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