Joshua Kleinfeld (Northwestern University - Northwestern University school of law) has posted A Theory of Criminal Victimization (Stanford Law Review, Vol. 65, 2013, Forthcoming) on SSRN. Here is the abstract:
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Criminal punishment is systematically harsher, given a fixed crime, where victims are vulnerable or innocent, and systematically less harsh where victims are powerful or culpable. We make a distinction between one gangster attacking another and a gangster attacking a bystander (though the assaults might be formally identical), or between selling drugs to an adult and selling them to a child (though the penal code might treat the two as the same). Yet this pattern in blame and punishment has been overlooked. Criminal scholarship and moral philosophy have offered no theory by which to explain it. And, lacking a theory, the pattern itself has been missed or misunderstood empirically.
This Article sets forth the concept of “victimization” — the idea that the moral status of a wrongful act turns in part on the degree to which the wrong’s victim is vulnerable or innocent and the wrongdoer preys upon that vulnerability or innocence. It shows the concept to be implicit in both the doctrine and practice of criminal law. And it argues normatively that victimization is at the same time essential to criminal justice and peculiarly prone to illiberal distortions, and should therefore be at once preserved and constrained.
A concluding section reflects methodologically on the paper’s approach to moral philosophy in law — an approach in which the law is not just a tool with which to implement the conclusions of an extralegal philosophical inquiry, but an object of study with a certain immanent moral content already in place, which philosophy can help bring to light and expose to question.
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The central methodological idea behind this Article is that our existing social practices imply or reflect certain normative commitments—that values are immanent in social practice and institutions—and that one important philosophical project in the law is to bring those immanent normative commitments to light. The idea is also that, by bringing those immanent commitments to light, we expose them to a distinctive form of critique. We effectively look in the mirror and ask, “Do I like what I see? Are these commitments ones I can reflectively endorse? And if so, am I living up to them? Am I realizing them in the right way?” This is social critique from the inside, and the intellectual tradition associated with it, though it has been called by various
names, is the tradition of normative social theory.
This Article has been an entry in the project of normative social theory. To say that a moral concept like victimization is implicit in criminal law already, to make it one’s object to render that commitment explicit, has a distinctly Hegelian flavor. It is a way of going about philosophy and law that is, I submit, faithful to and respectful of law. Rather than philosophy dropping in on law like an imperious and alien visitor, delivering pronouncements and then flying off again, the Hegelian, social-theoretic approach takes law not just as an instrument with which to implement the conclusions of an extralegal philosophical inquiry, nor merely the site from which to launch such an inquiry, but as an object of study with a certain moral content already in place, which philosophy can bring to light and expose to question. Indeed, it is not as though the concept of victimization has long been known to moral philosophy and only just discovered in criminal law. The opposite is the case. Law was philosophy’s teacher here.
