The Concept of Criminal Law
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The Concept of Criminal Law Sandra G. Mayson1
© Springer Nature B.V. 2020
Abstract What distinguishes “criminal law” from all other law? This question should be central to both criminal law theory and criminal justice reform. Clarity about the distinctive feature(s) of criminal law is especially important in the current moment, as the nation awakens to the damage that the carceral state has wrought and reformers debate the value and the future of criminal law institutions. Foundational though it is, however, the question has received limited attention. There is no clear consensus among contemporary scholars or reformers about what makes the criminal law unique. This Essay argues that Antony Duff’s The Realm of Criminal Law offers an answer—and that the answer is correct. Duff rightly diagnoses criminal law as unique by virtue of the fact that it censures particular acts in the polity’s name. It is a mechanism of collective condemnation. The Essay advocates recognition of this concept of criminal law and draws out implications for both criminal law theory and criminal law reform. Keywords Duff · Criminalization · Overcriminalization · Realm of criminal law · Symposium · Reform · Criminal justice reform · Criminal law theory · Conceptual analysis · Condemnation
1 Introduction Prison abolition. Reparations. Human caging. These words have leapt from radical corners into mainstream discourse1 and legal scholarship,2 and it is about time. A century and a half after the South enacted vagrancy laws to re-enslave black 1
E.g. Ta Nehisi-Coates, The Case for Reparations, The Atlantic (June 2014); P.R. Lockhart, The 2020 Democratic Primary Debate over Reparations, Explained, Vox.com (June 19, 2019); Rachel Kushner, Is Prison Necessary? Ruth Wilson Gilmore Might Change Your Mind, The N.Y. Times Magazine (Apr. 17, 2019); Michael Zuckerman, Alec Karakatsanis’08 Puts ‘Human Caging’ and ‘Wealth-Based Detention’ in America on Trial, Harvard Law Today (Aug. 23, 2017). 2 E.g. Harvard Law Review, Vol. 132 Issue 6 (2019) (dedicated to prison abolition). * Sandra G. Mayson [email protected] 1
University of Georgia School of Law, 225 Herty Drive, Athens, GA 30602, USA
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Criminal Law and Philosophy
men,3 America is finally grappling with the racial legacy of our criminal justice system. This belated awakening is driving a schism in criminal justice reform circles. Efforts to reduce the reach of the criminal legal system have found broad support along the length of the political spectrum. Increasingly, though, reformers who identify as abolitionists reject incremental measures that seek to remedy the worst excesses of the system without disrupting its basic operations.4 They understand the problem as one not of excess but of fundamental structure.5 The scale of the system is only a symptom. True reform requires dramatic, totalizing change: Abolish prisons.6 Abolish the police.7 Abolish criminal law itself.8 Reject textbook theories of justice and attend to the lived experience of those directly affected
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