The Limits of Culpability: Why the Criminal Justice System Needs a Complementary Foundation in Fair Forfeiture
Max Planck Guest Lecture
- Date: Oct 17, 2023
- Time: 06:15 PM - 08:15 PM (Local Time Germany)
- Speaker: Prof. Alec Walen (Rutgers Law School)
- Alec Walen is a Distinguished Professor at Rutgers University who holds a cross appointment in the School of Law, the Department of Philosophy, and the Program in Criminal Justice. He recently published a book on moral rights and just war theory: The Mechanics of Claims and Permissible Killing in War (Oxford University Press, 2019). He is a co-director of the Rutgers Institute for Law and Philosophy, and an associate editor at the journal Law and Philosophy. He has published in numerous journals, including Ethics and Philosophy and Public Affairs. He is currently working on another book: Punishment, Penalty, and Prevention in a Liberal State.
- Location: Freiburg/Germany, Fürstenbergstr. 19
- Room: Seminar room (F 113) | Guests are welcome; please register
- Host: Max Planck Institute for the Study of Crime, Security and Law
- Contact: firstname.lastname@example.org
A dominant theme in criminal law theory is that censure and punishment are appropriate only insofar as they are proportional responses to culpable actions. The problem is that much of existing criminal law does not fit this model. A number of responses to this mismatch have been proposed. Perhaps the criminal law should be reformed to match the theory; perhaps we can do more to understand how even violations of mala prohibita offenses are culpable; perhaps we need to take this connection as aspirational but not strictly binding; or perhaps we should recognize that the connection between punishment and culpable actions is just a misguided ideological fixation—in truth, we are better off using a utilitarian conception of the criminal law, according to which it is just a tool to be used to deter potential criminal action and incapacitate potential criminals in whatever way best serves society. I reject all of these options and defend a different account. I argue that the criminal justice system draws on two normative frameworks. Criminal law properly conceived calls for and licenses censure and punishment, but only insofar as they are proportional responses to culpable actions. Penal law operates as a complement to criminal law. It is not responsive (at least not in the same way) to the culpability of action, and it grounds no censure. But it allows for penalties that exceed those that would be proportional to the culpability of an action (and certainly than those that fit Ordnungswidrigkeiten). It is also responsive to, in ways the criminal law is not, the benefits of incapacitating the dangerous. It can do these things because it operates on a separate basis: not retributive response to culpable action but fair forfeiture of the right not to be penalized. These two foundations can be harmonized to provide a normative account of the criminal justice system that fits the law reasonably well but still has some revisionist force.
Please register your participation with Carolin Hillemanns: email@example.com.