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Green on Alexander, Ferzan, & Morse on Criminal Law Theory

By Lawrence Solum

Stuart P. Green (Rutgers Law School-Newark) has posted Review Essay: Golden Rule Ethics and the Death of the Criminal Law's Special Part (Criminal Justice Ethics, Forthcoming, CRIME AND CULPABILITY: A THEORY OF CRIMINAL LAW, Larry Alexander, Kimberly Kessler Ferzan, Stephen Morse, eds., Cambridge University Press, 358 pp., 2009) on SSRN. Here is the abstract:

This brief review of Crime and Culpability: A Theory of Criminal Law, by Larry Alexander and Kimberly Kessler Ferzan, with Stephen Morse, focuses on the authors? proposal that the Special Part of the criminal law, the part that identifies and defines specific offenses, be radically stripped down in a manner that is reminiscent of the Golden Rule of Ethics, which, they say, offers a ?clear? and ?concise? guide to living ethically. Rather than a long list of specific prohibited forms of conduct (?don?t murder,? ?don?t rape,? ?don?t commit theft,? and the like), they argue, the criminal law should rely on a single ?general rule,? to the effect that ?[i]t is criminal for an actor to take an unjustified risk of causing harm to a legally protected interest or to take an unjustified risk that his conduct constitutes prohibited behavior.?

Contrary to the authors? contention, the proper formulation, meaning, and function of Golden Rule of Ethics are anything but ?clear.? There are substantial controversies about both the Rule's substance (its proper formulation, its meaning, and whether it leads to the right result), and its procedure (e.g. about whether the rule is meant to be relied on by ordinary people on a case-by-case basis in their daily lives; applied only when there exists no more specific rule on point, or where specific rules conflict; or used, primarily by theorists, as a general justifying principle that explains or justifies more specific ethical rules). Relying on a single, general rule of conduct in the criminal law sphere would create similar interpretive and practical uncertainties and difficulties. Rather than doing away with centuries of common law and legislative developments, and essentially starting over, we should instead endeavor to refine the criminal codes we already have so that they are more carefully formulated and more respectful of the harm principle.

Full post as published by Legal Theory Blog on January 25, 2010 (boomark / email).