A Canon of the Criminal Law

37 Pages Posted: 14 Jul 2000

Date Written: May 2000

Abstract

This paper cautiously assays the notion of a "canon" of writings in criminal law and procedure in the Anglo-American tradition. Identifying "canonical" writings from Blackstone to Bentham to Foucault, from classic Victorian case law to Wechslerian legal process, from modern empiricist scholars to skeptical post-modernism, it posits a core, if not unifying concern: How to reconcile the deserved with the useful. As we calibrate proper punishments for crimes and persons, and devise the best procedures for implementing those definitions, we must avoid any easy pluralism and face perennial questions: How do we generate consistent rules on the basis of inconsistent premises? What manifestations of character merit moral condemnation? How do we avoid degrading character into a mere sum of acts? Why should it matter whether a criminal causes harm? Because if he has caused harm he deserves punishment or because if he caused harm then punishing him will prevent future harm? And so most generally, the great writings have worried over a fundamental agony of liberalism--that a jurisprudence aimed at enhancing both desert and utility can make certain adjustments but can hardly achieve grand philosophical resolution.

JEL Classification: K14

Suggested Citation

Weisberg, Robert, A Canon of the Criminal Law (May 2000). Stanford Law School, Public Law Working Paper No. 10, Available at SSRN: https://ssrn.com/abstract=231952 or http://dx.doi.org/10.2139/ssrn.231952

Robert Weisberg (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
650-723-0612 (Phone)
650-723-4330 (Fax)

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