What is criminal law about?

AuthorBinder, Guyora
PositionResponse to article by Jens David Ohlin in this issue, p. 1155


In "The Changing Market for Criminal Casebooks," Jens David Ohlin offers an appreciative, but nevertheless critical review of established criminal law casebooks. (1) He then introduces his own offering by describing "a vision for a new casebook" that will better serve the needs and wants of contemporary students. (2)

Ohlin begins with the arresting claim that criminal law professors are passionate about their subject because they are fascinated by human depravity. (3) Then, throughout his essay, he stresses efficient, consumer-focused delivery of doctrinal instruction as the defining task of a successful casebook. (4)

Moreover, he argues, casebooks should devote less attention to academic theories and articles, to normative questions about what the law should be, or even to interpretive questions about what the law is. (5) Prevailing rules should be quickly summarized by the editor, so that students can focus on learning the skill of applying these rules to challenging fact situations. (6)

While Ohlin raises important issues of pedagogical method, his own announced pedagogical method would translate criminal law into technical training in pragmatic lawyerly skills. As a result, he offers readers something less than a "vision" of what criminal law is about, why it is worth learning, and what a criminal law casebook should teach. In this Response, we address these unanswered questions, identifying those issues of justice and politics that we believe make criminal law interesting and important. Further, we argue that even if doctrinal instruction is the goal, achieving it requires consideration of political philosophy, legal and intellectual history, and empirical research. Moreover, we argue that the indeterminacy of doctrine on some fundamental questions means that criminal lawyers often cannot avoid invoking normative theory in fashioning legal arguments. The discretion accorded many actors in the criminal justice system means that fundamental questions of justice are also highly practical questions. Finally, we argue that the high stakes of criminal law and its contingency on democratic politics make criminal law teaching as much a matter of civic education as of technical education.


    Ohlin's opening claim is that criminal law "takes as its point of departure the indignities that human beings visit upon each other.... a parade of horribles, an indictment of humanity's descent into moral weakness." (7) It thereby captivates us in ways that torts and contracts cannot, and he suggests that because of the human proclivity toward indulgence in this depravity, professors in the field are "obsess[ed]" and "addicted" to this "intensity and despair." (8) Of course, we concede that crime is dramatic and criminal law cases can be colorful. But surely criminal law also calls its teachers for deeper reasons.

    Punishment is the strongest manifestation of government power, and the need to justify, check, and channel that power is an intellectual challenge for professors and students alike. The conventional answers to that problem are supplied by utilitarian and deontological moral thought, but the problem of punishment, and the issues raised in criminal law, are political as well as moral. (9) While American criminal law, as a historical matter, owes more to utilitarian legal thought than to deontological moral philosophy, any body of criminal law is both retributive and preventive in function. Criminal law regulates violence by asserting a public monopoly on vengeance. It mobilizes collective blame and deploys it to take sides in violent social conflicts. It may not be able to prevent every act of victimization, but by vindicating victims, it prevents them from suffering the indignity of an offender victimizing them with impunity. In this way criminal law serves as a guarantor of each individual's civic equality. By identifying the state as the ultimate protector of each individual's security and dignity, criminal law gives each individual a stake in the law's authority. As the other first-year subjects are important for defining legal entitlements and relationships, criminal law is uniquely important in legitimizing the rule of law itself.

    As an arbiter of social conflict and a guarantor of civic status, criminal law is necessarily also a potentially powerful weapon of subordination. Thus, students interested in inequality in American society need to realize that while racial discrimination or government abuse are not unavoidably inherent in a criminal justice system, the risk of them is ever-present. Because crime and punishment distribute status, criminal law is inevitably an important arena of political contestation. Indeed, this is why crime narrative is such a compelling tradition in American culture. The moral dramas of crime and criminal law command our attention because they implicate us. When we watch rampant violence and implacable justice on the flickering screen, whether on the television in the safety of our suburban rec rooms or in miniaturized form on our devices, we are reassured that others in American society face substantial risks of victimization or prosecution that we are spared. Because crime and law enforcement are such important markers of status in American society, Americans can enjoy privilege--real or imagined--by consuming crime drama.


    Ohlin's review of three leading casebooks hints at these larger stakes. All three books offer distinct and coherent points of view on the subject of criminal law. All present state punishment of crime as an important moral and political problem.

    Kadish, Schulhofer, Steiker and Barkow's venerable and still-popular book draws attention to the fundamental question of how we justify punishment and to the contrast between retributivist and utilitarian answers to this question. (10) It offers excerpts from Immanuel Kant and Jeremy Bentham at the outset and then invites students to apply these theories to each issue in criminal law. (11) It also distinguishes justification and excuse as reasons to absolve from punishment. (12) Finally, it draws attention to the problem of moral luck, the puzzle as to why we sometimes condition punishment on actually causing harm; and it explores different standards of causal responsibility. (13) Ohlin acknowledges the book's great influence and its theoretical interest, but he claims that students complain about all this "philosophy" and "crave" more doctrine. (14)

    In thus opposing doctrine and philosophy, Ohlin slights the central role that the "philosophical" (15) concepts Kadish and his coauthors emphasize--retribution, prevention, justification, excuse, and causation--actually play within doctrine.

    Kadish was a student of Herbert Wechsler and modeled his book on Wechsler's teaching materials. (16) Wechsler had a thoroughly utilitarian view of criminal law and worked within a tradition of utilitarian codifiers, including Bentham, the English Criminal Law Commission of the 1830s, Thomas Macaulay's colonial Indian Penal Code of 1860, and James F. Stephen's A Digest of the Criminal Law and proposed code for England, adopted as the Criminal Code of Canada. (17) Radish's casebook appeared in (1962), the year the Model Penal Code was promulgated. It set the pattern of criminal law casebooks for the last fifty years in focusing on the issues and illustrative cases addressed in the drafting of the Model Penal Code. Kadish also had strongly utilitarian views of his own on some questions: he believed that criminal punishment should be confined to potentially harmful conduct but that punishment should be conditioned on knowing imposition of risk, rather than actual results. (18)

    The Model Penal Code incorporated a distinctively utilitarian conception of a criminal offense, first developed by Bentham, as consisting of an objective element comprising conduct, circumstances rendering such conduct dangerous to legal interests, and harmful consequences to those interests; and a mental element consisting of either the purpose or the expectation of creating such harm. (19) John Austin added a more refined taxonomy of expectations that became the Model Penal Code's distinctions among knowledge, recklessness, and negligence. (20) The Model Penal Code's basic analytic technology, requiring assignment of a particular culpable mental state to each conduct, circumstance, or result element, is ultimately derived from these "philosophical" ideas.

    The Code would also incorporate utilitarian and other values into law as gap-fillers. Thus article 1.02 of the Code announces the purposes of forbidding and deterring "conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests." (21) It adds the purposes of incapacitating the dangerous and rehabilitating offenders, and it recognizes retributive considerations, such as conditioning punishment on fault and proportionality, as limits on these purposes. Finally, it provides that when any code provision "is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this Section." (22) Statutes modeled on the Model Penal Code contain similar provisions. New York Penal Law section 1.05 identifies the Law's "general purposes" as deterrence, rehabilitation, and incapacitation, as well as the retributive purposes of proportionate punishment and providing "an appropriate public response to particular offenses, including consideration of the consequences of the offense for the victim ... and the community." (23) Section 5.00 provides that the New York code should be interpreted broadly "to promote justice and effect the objects of the law." (24)

    In short, theories of punishment, however philosophical, are not idealized abstractions: they are binding legal norms that students need to know how to invoke and apply...

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