The Elusive Object of Punishment

Posted: 11 Dec 2017 Last revised: 16 Jun 2019

See all articles by Gabriel Mendlow

Gabriel Mendlow

University of Michigan Law School; University of Michigan at Ann Arbor - Department of Philosophy

Date Written: June 4, 2019

Abstract

All observers of our legal system recognize that criminal statutes can be complex and obscure. But statutory obscurity often takes a particular form that most observers have overlooked: uncertainty about the identity of the wrong a statute aims to punish. It is not uncommon for parties to disagree about the identity of the underlying wrong even as they agree on the statute's elements. Hidden in plain sight, these unexamined disagreements underlie or exacerbate an assortment of familiar disputes—about venue, vagueness, and mens rea; about DUI and statutory rape; about hate crimes, child pornography, and counterterrorism laws; about proportionality in punishment; and about the proper ambit of the criminal law. Each of these disputes may hinge on deeper disagreements about the identity of the wrong a statute aims to punish, and these deeper disagreements can be surprisingly hard to resolve, fueled as they are by the complex inner structure of our penal laws and the discretionary mechanisms of their administration.

Keywords: criminal law, punishment, mens rea, statutory interpretation, terrorism

Suggested Citation

Mendlow, Gabriel, The Elusive Object of Punishment (June 4, 2019). Legal Theory, Vol. 25, June 2019, pp. 105-131, DOI: 10.1017/S1352325219000077. Available at SSRN: https://ssrn.com/abstract=3083083 or http://dx.doi.org/10.2139/ssrn.3083083

Gabriel Mendlow (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

University of Michigan at Ann Arbor - Department of Philosophy ( email )

Ann Arbor, MI
United States

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