Criminal Law and Penal Law: The Wrongness Constraint and a Complementary Forfeiture Model
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Criminal Law and Penal Law: The Wrongness Constraint and a Complementary Forfeiture Model Alec Walen1
© Springer Nature B.V. 2019
Abstract Antony Duff’s The Realm of Criminal Law offers an appealing moral reconstruction of the criminal law. I agree that the criminal law should be understood to predicate punishment upon sufficient proof that the defendant has committed a public wrong for which she is being held to account and censured. But the criminal law is not only about censoring people for public wrongs; it must serve other purposes as well, such as preventing people from committing serious crimes and more generally from violating reasonable regulations. These purposes, and perhaps retributive justice, require the criminal law also to mete out harsh treatment, but only insofar as such treatments are proportional to the culpable wrong committed. The problem for the criminal law is that many mala prohibita crimes consist of a minor wrong but also call for a relatively severe punishment. To accommodate that mismatch, it is necessary to complement the criminal law, as Duff and I conceive of it, with what I call “penal law.” Penal law relies on forfeiture to explain why hard treatment is permissible. The forfeiture must be fair, and it comes with its own proportionality limits. But those limits are not as strict as the limits implicit in the criminal law. It allows for penalties that are harsher than the punishments that could justifiably be meted out for many mala prohibita offenses. One and the same act can count as a crime and a penal infraction, and one and the same criminal justice system can and should handle both crimes and the penal infractions. It is, I think, only in that way that we can accommodate both the need to prevent public wrongdoing and the distinct importance of holding people accountable for the commission of public wrongs. Keywords Criminal law · Punishment · Penalty · Wrongness constraint · Forfeiture · Duff
* Alec Walen [email protected] 1
Rutgers University, Lucy Stone Hall A349, Livingston Campus, 54 Joyce Kilmer Ave, Piscataway Township, NJ 08854, USA
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Criminal Law and Philosophy
1 Introduction What makes law criminal law? What, in particular, distinguishes it from mere regulations to which a penalty might be attached? Antony Duff argues that the relevant difference is this: “criminal law should be concerned with culpable wrongdoing: not merely with the violation of legal regulations, but with moral wrongdoing that merits condemnation or censure.” (18–19)1 I think this is deeply right. I think it is a deep mistake to treat criminal law as merely a tool that can be used whenever it would serve any of the purposes often associated with the criminal law: deterrence of unwanted behavior, incapacitation of the dangerous, rehabilitation of those with anti-social tendencies, or vindication of the rights of victims. Even if one or more of these purposes would be served, it would be morally wrong in all but the most extreme emergencies for a judge or juror to vo
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