Objectivist vs. Subjectivist Views of Criminality: A Study in the Role of Social Science in Criminal Law Theory

Abstract:     
The article identifies a pattern of doctrinal shift from common law criminal law to modern criminal codes and uses social science methodology to determine whether the shift is one that reflects changing community views of what ought to constitute criminality. The study finds that the objectivist-subjectivist distinction that it defines does indeed capture a distinction important to lay perceptions of criminality, but that lay perceptions have not shifted from the objectivist view of common law to the subjectivist view of modern codes, as the law and many commentators suggest. Rather, the study results suggest that lay persons agree with the subjectivist view of modern codes in defining the minimum requirements of criminality, but prefer the common law's objectivist view of grading the punishment deserved for a violation. We argue that there is practical value in having the criminal law track shared community intuitions of the proper rules for assigning liability and punishment. For that reason, the study results support the often criticized subjectivist view of modern codes in setting the minimum requirements of liability, but disapprove of the modern code shift away from the common law's objectivist view of grading. Beyond its conclusion's implications for future criminal code reform, the study suggests that social science research, properly done and carefully focused, can help resolve criminal law theory debates that rest in whole or in part on claims of what people see as just punishment.

JEL Classifications: K14

Accepted Paper Series