The Price of Criminal Law Skepticism

Abstract

A growing trend in philosophical commentary about penal justice is what I loosely call “criminal law skepticism.” The scholarship I have in mind does not simply urge caution or a more judicious use of the criminal law to address social problems. Instead, its thrust is more sweeping and radical; it presents reasons to doubt that the criminal law as presently constituted should continue to exist at all. I make no concerted effort to categorize the several varieties or motivations for this trend; their forms and underlying rationales are diverse and frequently humane. No single argument can refute them all. Instead, I respond by describing the price that might be incurred if these skeptics were to achieve their objective. I list ten valuable functions served by the criminal law as it currently exists, several of which are too seldom appreciated in philosophical commentary. No case for criminal law skepticism is complete unless efforts are made to explain how alternatives to the criminal law can achieve these functions or afford to dispense with them.