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Criminal Law in the Age of the Administrative State

15 Oct 2018-
TL;DR: In this article, the authors argue that the legitimacy of criminal law depends in part on the democratic and egalitarian character of the institutions it supports, and in part upon its supporting those institutions by means that are themselves consistent with democratic and just principles.
Abstract: What is the criminal law for? At its most elemental, criminal law secures the possibility of a shared life under stable and just public institutions. In the age of the administrative state, criminal law performs this task by stabilizing cooperation across a wide range of contexts, from backstopping compliance with tax law to protecting the integrity of a nation’s fisheries. How should we decide when this is a legitimate use of the criminal law? The “public law” conception sketched in this book suggests that because the criminal law is a public institution, it should be evaluated by the very same values that we structure our evaluation of public institutions generally. In contrast to familiar forms of retributivism, the public law conception starts from the political morality of public institutions, rather than the interpersonal morality of private relationships. In a society with democratic and egalitarian aspirations, the legitimacy of the criminal law depends in part upon the democratic and egalitarian character of the institutions it supports, and in part upon its supporting those institutions by means that are themselves consistent with democratic and egalitarian principles. The particular account of those principles sketched in this book is democratic, egalitarian without being equalizing, and focused on a form of freedom—effective access to central capability—as its currency of evaluation. This approach provides a distinctive and illuminating framework for assessing a wide range of problems in criminal law and policy, from mass incarceration, to over-criminalization and the allocation of procedural rights.
Citations
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01 Jan 2016

930 citations

Journal ArticleDOI
TL;DR: In this article, the same concerns of fairness, accountability and transparency apply, with even greater urgency, to existing modes of decision-making in criminal justice, and they are not irresolvable.
Abstract: Over the last few years, legal scholars, policy-makers, activists and others have generated a vast and rapidly expanding literature concerning the ethical ramifications of using artificial intelligence, machine learning, big data and predictive software in criminal justice contexts. These concerns can be clustered under the headings of fairness, accountability and transparency. First, can we trust technology to be fair, especially given that the data on which the technology is based are biased in various ways? Second, whom can we blame if the technology goes wrong, as it inevitably will on occasion? Finally, does it matter if we do not know how an algorithm works or, relatedly, cannot understand how it reached its decision? I argue that, while these are serious concerns, they are not irresolvable. More importantly, the very same concerns of fairness, accountability and transparency apply, with even greater urgency, to existing modes of decision-making in criminal justice. The question, hence, is comparative: can algorithmic modes of decision-making improve upon the status quo in criminal justice? There is unlikely to be a categorical answer to this question, although there are some reasons for cautious optimism.

25 citations


Cites background from "Criminal Law in the Age of the Admi..."

  • ...27See Chiao (2018)....

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  • ...12I discuss this issue further in Chiao (2018)....

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01 Jan 2012

16 citations

Journal ArticleDOI
TL;DR: The formal labelling of citizenship deprivation as an administrative measure outside the scope of criminal justice has prevented scholars of criminal law from undertaking a thorough scrutiny of its legitimacy as discussed by the authors, which has prevented them from conducting a thorough analysis of the legitimacy of such a measure.
Abstract: Germany is joining a long list of European democracies that have modified or expressed a willingness to modify their citizenship laws to denationalize first and then prevent the return of or expel those citizens accused of having participated in terrorist activities abroad. The formal labelling of citizenship deprivation as an administrative measure outside the scope of criminal justice has prevented scholars of criminal law from undertaking a thorough scrutiny of its legitimacy. In this paper I seek to fill this gap. Specifically, after demonstrating why deprivation of citizenship is a measure of a criminal nature, I argue against its legitimacy, either as a punishment or as a risk-based measure. Instead I propose that we should understand citizenship deprivation as a paradigmatic response from an illegitimate enemy criminal law. Notwithstanding the foregoing, I claim that states that choose to denationalize terrorists should do it within the framework of a process with the highest (criminal procedural) guarantees.

7 citations

Journal ArticleDOI
13 Feb 2021
TL;DR: In this paper, the authors investigate the relation between the disagreements economists have with the law and theoretical disagreements and conclude that these disagreements can originate from a particular kind of theoretical disagreement, i.e., an interdisciplinary theoretical disagreement.
Abstract: The starting point of this essay is the question “Under what conditions is the legal practitioner justified in ignoring the economic point of view?”. This question leads to an inquiry of the relation between the disagreements economists have with the law and theoretical disagreements. The essay makes two main claims. First, the disagreements economists have with the law can originate a particular kind of theoretical disagreement – an interdisciplinary theoretical disagreement. Interdisciplinary theoretical disagreements pre- suppose the solution of a translation problem from economics into law. The translation problem is solved when a proposition of economics becomes part of the external justification of a legal norm. It makes sense to use the expression «interdisciplinary translation» because meaning is moved from one practice to another. Second, the various positions with regard to the relation between law and morality are also a problem of interdisciplinary translation – this time from morality to law. In light of this insight, the essay concludes with the hope of more interest by philosophers of law and legal theorists for the relation between law and economics.

6 citations


Cites background from "Criminal Law in the Age of the Admi..."

  • ...At the same time, the four intermediate theses all admit limited f rms of connection between law and morality: 45 For a discussion of these and other theses on the subject of connection and separability, see, for example, Barberis (2011)....

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References
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01 Jan 2016

930 citations

Book
01 Jan 1979
TL;DR: The de los delitos and de las penas book collection as discussed by the authors is available in our book collection an online access to it is set as public so you can download it instantly.
Abstract: Thank you for downloading de los delitos y de las penas. Maybe you have knowledge that, people have search hundreds times for their favorite readings like this de los delitos y de las penas, but end up in malicious downloads. Rather than reading a good book with a cup of coffee in the afternoon, instead they cope with some harmful bugs inside their computer. de los delitos y de las penas is available in our book collection an online access to it is set as public so you can download it instantly. Our digital library hosts in multiple locations, allowing you to get the most less latency time to download any of our books like this one. Merely said, the de los delitos y de las penas is universally compatible with any devices to read.

65 citations

01 Jan 2012

16 citations

01 Jan 2007

15 citations

Journal ArticleDOI
TL;DR: In this paper, the authors analyze the system of private prosecutions that prevailed in England prior to the introduction of the police and examine why this system came under strain during the Industrial Revolution, and how private clubs emerged to internalize the externalities that caused the private system to generate too little deterrence.
Abstract: Can the market provide law enforcement? This paper addresses this question by analyzing an historical case study: the system of private prosecutions that prevailed in England prior to the introduction of the police. I examine why this system came under strain during the Industrial Revolution, and how private clubs emerged to internalize the externalities that caused the private system to generate too little deterrence. The historical evidence suggests that these private order institutions were partially successful in ameliorating the problem of crime in a period when public choice considerations precluded the introduction of a professional police force.

15 citations