A Response to Professor Kleinfeld's 'Reconstructivism: The Place of Criminal Law in Ethical Life'
10 Pages Posted: 27 Apr 2016
Date Written: April 8, 2016
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
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