A Canon of the Criminal Law

Abstract:     
This paper cautiously assays the notion of a "canon" of writings in criminal law and procedure in the Anglo-American tradition. Identifying "canonical" writings from Blackstone to Bentham to Foucault, from classic Victorian case law to Wechslerian legal process, from modern empiricist scholars to skeptical post-modernism, it posits a core, if not unifying concern: How to reconcile the deserved with the useful. As we calibrate proper punishments for crimes and persons, and devise the best procedures for implementing those definitions, we must avoid any easy pluralism and face perennial questions: How do we generate consistent rules on the basis of inconsistent premises? What manifestations of character merit moral condemnation? How do we avoid degrading character into a mere sum of acts? Why should it matter whether a criminal causes harm? Because if he has caused harm he deserves punishment or because if he caused harm then punishing him will prevent future harm? And so most generally, the great writings have worried over a fundamental agony of liberalism--that a jurisprudence aimed at enhancing both desert and utility can make certain adjustments but can hardly achieve grand philosophical resolution.

JEL Classifications: K14

Accepted Paper Series