Is Criminal Law Unlawful?

95 Pages Posted: 14 Sep 2022 Last revised: 27 Sep 2022

Date Written: September 13, 2022

Abstract

A legal theorist reading contemporary criminal justice scholarship is confronted with a troubling sense of dissonance. Foundational to modern accounts of the concept of law are rules, and the chief modality of law’s operation in ordinary peoples’ lives is said to be in enforcing those (primary) rules. Normative theories by philosophers of law typically deploy this rule- oriented character as a key virtue of legal systems, whether in Fullerian theories of the moral value of law itself in terms of their facilitation of autonomous self-application of rules, or in theories of the rule of law according to which one of the key criteria of good legal systems is that they only coerce individuals pursuant to rules.

Yet criminal justice scholars have known for decades that rule-enforcement is at best incidental to vast swathes of criminal justice. Even before the advent of “broken windows” policing, a large portion of police work was focused on coercively organizing public space, with minimal regard to the rules of substantive law. Scholars of misdemeanor adjudication—the judicial destination of the arrests that result from this mode of policing—have described a process in which the ultimate disposition of defendants is unconnected to any serious effort to determine whether some law has been violated. This lawlessness of criminal justice is exacerbated by, and itself exacerbates, America’s underlying system of race and class hierarchy. In short, instead of a system of law enforcement, American criminal justice is a key exemplar of what critical race scholars have called “structural racism,” in which individual and organizational incentives reproduce racially unjust outcomes even in the absence of individual racial malice.

Legal philosophers must reconcile their theories with reality by confronting the fact that a sector of American “law” with immense practical significance does not, in fact, constitute an application of law (for conceptual theorists) or the rule of law (for normative theorists) at all.

In this context, some lessons may be drawn from an analogous juridical context. A handful of scholars have suggested that the system of criminal justice is more administrative than legal. Moreover, advocates and scholars have long articulated severe critiques of the federal administrative state on rule of law grounds. Thus, the discourse around the administrative state can serve as a model for how legal theorists should confront the criminal justice state.

While some scholars appear to have supposed that the notion of legality simply does not apply to the administrative state, others have propounded radical challenges to that state which have reflected a willingness to sacrifice other important interests in the pursuit of legal fidelity. Results such as the recent Supreme Court decision in West Virginia v. E.P.A. have suggested that even the pursuit of existential policy goals like combatting climate change must give way to the concept of legality underneath challenges to the administrative state. If such challenges are any model to follow, then rule of law advocates and scholars must at least consider similar radical challenges to the criminal justice system, such as police abolition, to be on the table.

Keywords: criminal law, administrative law, jurisprudence, philosophy of law, rule of law, mass incarceration, critical race theory, structural racism

JEL Classification: K23, K14, K42

Suggested Citation

Gowder, Paul A., Is Criminal Law Unlawful? (September 13, 2022). Michigan State Law Review, Forthcoming, Northwestern Public Law Research Paper No. 22-27, Available at SSRN: https://ssrn.com/abstract=4218077

Paul A. Gowder (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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