A Response to Professor Kleinfeld's 'Reconstructivism: The Place of Criminal Law in Ethical Life'

10 Pages Posted: 27 Apr 2016

See all articles by Vincent Chiao

Vincent Chiao

University of Toronto - Faculty of Law

Date Written: April 8, 2016

Abstract

This short paper is a response to Josh Kleinfeld's recent defense of a reconstructivist theory of the criminal law. I argue that reconstructivism cannot explain why the expressive nullification of crime is "the" central role for criminal justice institutions, nor why it is so important that this role take the specific form of criminal punishment. Second, I argue that Kleinfeld vacillates between two different claims – that the criminal law is constitutive of a society's way of life and the quite different claim that the criminal law is a means of protecting it. Third, I raise some concerns about the relation of reconstructivism to the historical and contemporary literature. Finally, I suggest that reconstructivism serves to effectively insulate a society's potentially oppressive use of the criminal law from criticism.

Keywords: punishment, criminal law, Hegel, Weber

Suggested Citation

Chiao, Vincent, A Response to Professor Kleinfeld's 'Reconstructivism: The Place of Criminal Law in Ethical Life' (April 8, 2016). Harvard Law Review Forum, Vol. 129, p. 258, April 2016. Available at SSRN: https://ssrn.com/abstract=2768560

Vincent Chiao (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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