PROBLEMS IN CRIMINAL LAW THEORY
The purpose of the seminar is to examine in depth what is addressed in passing in first-year Criminal Law, namely, the essential nature of criminal responsibility.
We shall explore a selection of important but perplexing problems of substantive criminal law, including: theories of just deserts; justifications for mercy; the role of “act” and “mind” in the framing of criminal offenses; the meaning and relationship between justification and excuse; the relationship between “elements” of criminal offenses and “defenses;” the place of harm in the definition and grading of offenses; the puzzles of impossibility attempts; the relevance of determinism to criminal law; the meaning of free will in the context of defenses such as necessity and insanity; the theory underlying certain crimes (e.g., blackmail); the basis for certain defenses (e.g., the partial defense of provocation); certain feminist challenges to doctrines of criminal law; certain paradoxes in current death penalty doctrine; and the differential meaning of the principle of legality with respect to courts and legislatures.
The readings week will consist largely of essays from the current literature of criminal law theory. Students will write ungraded reaction papers (of one to two pages) on each week’s reading and share responsibility for directing discussion.