Criminalization and the Role of Theory
A. P. Simester and A. T. H. Smith*
Criminal law scholarship tends too often to be conducted exclusively as either traditional blackletter law, as high moral philosophy, or (thirdly) as an exercise in socio-legal or law-in-context theorizing. Yet it is a mistake to think that arguments about the criminal law can be propounded exclusively within any one of these domains, for even the most specific problems can generate especially difficult theoretical questions. Those who seek to formulate and influence the formulation of criminal law will encounter such questions, whether they are attempting to determine the scope of a particular actus reus, such as blackmail, or the general criteria of attempts liability. Their responses, like the essays in this volume, must frequently seek the assistance of philosophy.
Perhaps one of the causes of that severance in approaches is the possibility of different types of legal analysis. 'No conviction without blame', say many of our authors. We agree. Yet what sort of claim are we recognizing? The alternative understandings of that proposition correspond to differing theoretical standpoints from which one may approach the analysis of criminal law -- whether as descriptive, explanatory, or evaluative inquiries. A legal commentator might choose to give a description of the rules which make up the criminal law ('in fact, there is no conviction without blame'), and to a varying extent this is one of the central functions of textbooks; to state what the law is. Such an ambition is not to be belittled. A well-crafted descriptive account that draws together divergent legal strands may make a major contribution to an increased understanding and a more predictable administra____________________