Analytic Jurisprudence, Philosophical Topics in Criminal Law, Action Theory, Law and Economics
Criminal Law I; Concepts of Criminal Law; Law and Economics
Find me on campus Room: 12 AB 05
The Voluntary Act Requirement (“VAR”) is the fundamental predicate for imposing legal punishment. Punishing solely on the basis of evil thoughts or a villainous character is impermissible. The VAR also embodies the notion that we must not punish someone for conduct over which she lacked sufficient control. But why not punish someone for conduct that was not within her control? One answer is retributivist—it would be unjust to do so because that defendant could not have been morally responsible for, and therefore could not deserve punishment for, what she did. Agent causalism is a contentious view about how criminal defendants voluntarily act according to which the defendants themselves cause their free, morally responsible actions, as opposed to events or states of affairs involving them, their brains, their circumstances, and so forth. This article argues that for retributivist justifications of the VAR to be plausible, agent causalism must be true. Agent causalism might be false, and if it is, then retributivism could not play any role in justifying our fundamental legal precondition for ever imposing any criminal liability upon anyone. This article does not argue that agent causalism is false, however. It elaborates and renders plausible an agent causalist position, and it shows how that position could handle types of cases that notoriously pose challenges to the VAR—cases involving complex unconscious conduct, cases involving crimes of omission, and cases involving habitual conduct.
In a series of articles and a book, Louis Kaplow and Steven Shavell (KS) articulated and defended the normative approach of standard law-and-economics. KS also argued that legal analysts should think in welfare-economic terms exclusively when advising on normative social issues of tremendous import. This thesis generated controversy within the legal academic community because it implied that numerous analysts were not doing an important part of their jobs the way that they should be doing it. One of KS’s main arguments featured a very plausible version of the Pareto principle. KS claimed that their Pareto argument demonstrated that any method of policy evaluation that gives any weight to principles independently of their effect on how well-off individuals become sometimes commits the evaluator to making everyone worse off. This Article argues that KS misstated what their Pareto argument demonstrated. It also argues that KS’s Pareto argument provides no independent reason to endorse any part of welfare economics and thus no independent reason to adhere exclusively to welfare-economic thinking. Additionally, the Article clarifies much of what is at stake in deciding whether to adopt an exclusively welfare-economic approach to normative legal scholarship. Finally, the Article suggests that KS’s central thesis is incorrect—there is an important place at the table for forms of normative analysis that diverge from a purely welfare-economic approach.
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Last Modified: Monday 20 November 2017 14:43:52 by lo0007
Expiry Date: Wednesday 22 November 2017 13:34:45
Assembly date: Fri Feb 23 00:51:36 GMT 2018
Content ID: 165679