Rethinking Criminal Law

By George P. Fletcher | Go to book overview

Preface

Criminal law is a species of political and moral philosophy. Its central question is justifying the use of the state's coercive power against free and autonomous persons. The link with moral philosophy derives from one answer to the problem of justifying the use of state power. If the rationale or a limiting condition of criminal punishment is personal desert, then legal theory invariably interweaves with philosophical claims about wrongdoing, culpability, justifying circumstances and excuses.

A number of factors have inhibited the refinement of Anglo- American criminal law and its underlying theory. First, for over a century the prevailing philosophy of criminal law has been the utilitarian theory of sanctions inspired by the work of Beccaria, Bentham, Holmes, Stephen and, in our time, Herbert Wechsler and the Model Penal Code. Though the utilitarians have sharpened our sensitivity to the social costs and benefits of punishment, this emphasis on goals has distracted our attention from the problem of justice to the individual accused. The question whether a sanction is in the social interest has overshadowed the more basic inquiry whether the punishment of the accused is morally justified.

The emphasis in much recent thought is on the use of the criminal law to identify and confine potentially dangerous offenders. This is the explicit rationale in the Model Penal Code for assessing liability in cases of criminal attempts. The good of the whole is furthered by isolating a dangerous person in prison. And this is all that is thought necessary to justify the suffering of the individual confined.

The shift in emphasis from guilt to dangerousness betokens a movement to merge the criminal law with the administrative pro-

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