This is a reprint of a book first published by Little, Brown in 1978. George Fletcher is working on a new edition, which will be published by Oxford in three volumes, the first of which is scheduled to appear in January of 2001. Rethinking Criminal Law is still perhaps the most influentialand often cited theoretical work on American criminal law. This reprint will keep this classic work available until the new edition can be published.
In the last two decades, the philosophy of criminal law has undergone a vibrant revival in Canada. The adoption of the Charter of Rights and Freedoms has given the Supreme Court of Canada unprecedented latitude to engage with principles of legal, moral, and political philosophy when elaborating its criminal law jurisprudence. Canadian scholars have followed suit by paying increased attention to the philosophical foundations of domestic criminal law. Because of Canada's leadership in international criminal law, both at the level of the International Criminal Court and of specific war crimes tribunals, they have also begun to turn their attention to international criminal law per se. This collection seeks to bring all these Canadian voices together for the first time, and evidence the fact that criminal law theory is no longer to be associated exclusively with the older British, German and American traditions. The topics covered include questions of philosophical methodology, the legitimate scope of domestic and international criminalization, rationales for criminal law defences in both domestic and international law, the philosophical underpinnings of specific crimes and forms of joint responsibility, as well as the theorization of criminal procedure and evidence law. ENDORSEMENTS "In continental Europe, academic commentary on the criminal law has long manifested large philosophical ambitions. Less so in common-law countries, where the dominance of jury trial and the piecemeal development of case-law, together with the famously robust attitudes of common lawyers, have militated against detailed philosophical engagement with doctrine. Over the last 20 years or so, however, new generations of philosophically-literate lawyers and legally-informed philosophers have overcome the historic resistance. Nowhere more so, it seems, than in Canada, where the common law and civilian traditions meet. In 'Rethinking Criminal Law Theory', François Tanguay-Renaud and James Stribopoulos have joined with 14 talented Canadian colleagues to showcase the tremendous breadth and depth of their contemporary national contribution to the subject. Ranging across topics as diverse as emergency, obscenity, and insanity, these essays - without exception insightful and penetrating -set a high standard for the rest of us to aspire to.'' John Gardner, University of Oxford "'Rethinking Criminal Law Theory' is an excellent collection of essays demonstrating the vigour, creativity and range of Canadian criminal justice scholarship. It covers a wide range of problems and issues both in the domestic and the international context. Core questions are examined in depth and new questions are brought to the fore. I recommend it very highly to criminal lawyers and philosophers of the criminal law." Professor Victor Tadros, University of Warwick "'Rethinking Criminal Law Theory 'is packed with outstanding contributions from criminal law theorists who are among the best not only in Canada, but in the whole English-speaking world. Broad and deep in its coverage, the collection offers fresh approaches to a wide range of cutting-edge issues in the field. It provides a resource readers will come back to repeatedly." Stuart Green, Professor of Law and Justice Nathan L Jacobs Scholar, Rutgers University
What should we do with teenagers who commit crimes? In this book, two leading scholars in law and adolescent development argue that juvenile justice should be grounded in the best available psychological science, which shows that adolescence is a distinctive state of cognitive and emotional development. Although adolescents are not children, they are also not fully responsible adults.
To understand the international legal order in the field of criminal law, we need to ask three elementary questions. What is international law? What is criminal law? And what happens to these two fields when they are joined together? Volume Two of The Grammar of Criminal Law sets out to answer these questions through a series of twelve dichotomies - such as law vs. justice, intention vs. negligence, and causation vs. background events - that invite the reader to better understand the jurisprudential foundations of international criminal law. The book will appeal to anyone interested in the future of international cooperation in a time of national retrenchment, and will be of interest to students, scholars, and policymakers around the world.
The age-old debate about what constitutes just punishment has become deadlocked. Retributivists continue to privilege desert over all else, and consequentialists continue to privilege punishment's expected positive consequences, such as deterrence or rehabilitation, over all else. In this important intervention into the debate, Leo Zaibert argues that despite some obvious differences, these traditional positions are structurally very similar, and that the deadlock between them stems from the fact they both oversimplify the problem of punishment. Proponents of these positions pay insufficient attention to the conflicts of values that punishment, even when justified, generates. Mobilizing recent developments in moral philosophy, Zaibert offers a properly pluralistic justification of punishment that is necessarily more complex than its traditional counterparts. An understanding of this complexity should promote a more cautious approach to inflicting punishment on individual wrongdoers and to developing punitive policies and institutions.
Faith in the power and righteousness of retribution has taken over the American criminal justice system. Approaching punishment and responsibility from a philosophical perspective, Erin Kelly challenges the moralism behind harsh treatment of criminal offenders and calls into question our society’s commitment to mass incarceration. The Limits of Blame takes issue with a criminal justice system that aligns legal criteria of guilt with moral criteria of blameworthiness. Many incarcerated people do not meet the criteria of blameworthiness, even when they are guilty of crimes. Kelly underscores the problems of exaggerating what criminal guilt indicates, particularly when it is tied to the illusion that we know how long and in what ways criminals should suffer. Our practice of assigning blame has gone beyond a pragmatic need for protection and a moral need to repudiate harmful acts publicly. It represents a desire for retribution that normalizes excessive punishment. Appreciating the limits of moral blame critically undermines a commonplace rationale for long and brutal punishment practices. Kelly proposes that we abandon our culture of blame and aim at reducing serious crime rather than imposing retribution. Were we to refocus our perspective to fit the relevant moral circumstances and legal criteria, we could endorse a humane, appropriately limited, and more productive approach to criminal justice.
Why do killers deserve punishment? How should the law decide? These are the questions Samuel H. Pillsbury seeks to answer in this important new book on the theory and practice of criminal responsibility. In an argument both traditional and fresh, Pillsbury holds that persons deserve punishment according to the evil they choose to do, regardless of their psychological capacities. After considering potential objections to this approach, including those based on determinism, unjust social conditions, and the alleged cruelty of retribution, he presents an extended critique of American homicide law. Using real case examples, Pillsbury offers concrete proposals for legal reform, urging that modern preoccupations with subjective aspects of wrongdoing be replaced with rules that focus more on the individual's motives.
The development of crime policy in the United States for many generations has been hampered by a drastic shortage of knowledge and data, an excess of partisanship and instinctual responses, and a one-way tendency to expand the criminal justice system. Even if a three-decade pattern of prison growth came to a full stop in the early 2000s, the current decade will be by far the most punitive in U.S. history, hitting some minority communities particularly hard. The book examines the history, scope, and effects of the revolution in America's response to crime since 1970. Henry Ruth and Kevin Reitz offer a comprehensive, long-term, pragmatic approach to increase public understanding of and find improvements in the nation's response to crime. Concentrating on meaningful areas for change in policing, sentencing, guns, drugs, and juvenile crime, they discuss such topics as new priorities for the use of incarceration; aggressive policing; the war on drugs; the need to switch the gun control debate to a focus on crime gun regulation; a new focus on offenders' transition from confinement to freedom; and the role of private enterprise. A book that rejects traditional liberal and conservative outlooks, The Challenge of Crime takes a major step in offering new approaches for the nation's responses to crime.
In the criminal justice system, people are cast into polar positions on the good-bad axis: good guys and bad guys. Prosecutors, who wield considerable power and influence in the enforcement of our laws, are almost universally cast as good guys. Seldom is there accountability when they are, in fact, not always good. Rethinking Justice: Inside America's Movement for Prosecution Reform introduces a newly minted generation of prosecutors, intent on holding the entire system accountable and changing the way we handle crime in America. Explore how a prevailing philosophy of retributive over restorative justice has contributed to mass incarceration. Discover what happens when civil servants go beyond filling prisons to address systemic injustices. Meet Portsmouth Commonwealth Attorney Stephanie Morales, whose investment in crime prevention, community building, and restorative justice could provide a model for widespread reform. Through stories and insights from district attorneys, legal scholars, and survivors of a perilously flawed system, Rethinking Justice imagines the tough-on-crime D.A. role recast as a "progressive prosecutor." Is this political paradox even possible?
