Recourse theory now plays an important role in understanding the normative structure of tort law. In this Essay, we extend recourse theory to the criminal context, arguing that retributivism provides an impoverished account of criminal law doctrine and offering criminal recourse theory as important theoretical alternative.
Criminal recourse theory is an interpretive theory. It aims to make sense of the concepts and categories that lawyers, judges, and legislators deploy when dealing with the legal dimensions of certain kinds of interpersonal interactions. English-speaking lawyers, judges, legislators, and laypersons operate with certain conceptions of what it means to commit a crime, or to commit a particular crime such as battery. They likewise have conceptions of what it means to be prosecuted for or convicted of a crime, what it means for a jury to render a verdict in a criminal case, what it means for the defendant to be ordered to serve jail time in light of having committed a crime, and so forth.
Assessing this contemporary practice in light of its historical origins, and with the tools of analytic, moral, and political philosophy, we argue that criminal law, both in general and in its particulars, is best made sense of as a law of criminal recourse. It is a law of wrongs, in that it sets standards of conduct and enjoins people from injuring others by failing to meet those standards. It is also a law of recourse, in that it empowers the polity to demand of the wrongdoer that she engage in sanction-accepting actions in order to "redress" the wrong.
On a superficial level, understanding criminal law in this way may seem inconsistent with our previously claim that tort law as a law for redressing wrongs involving injuries is distinctive because it proceeds by private lawsuits rather than by official enforcement actions. This objection fails, because of the failure to understand the nature of injury in criminal cases. Whereas civil injury is suffered by particularized individuals, criminal injuries are suffered by communities. Once this insight is in place, it follows that the nature of redress in criminal cases is the imposition of what are sometimes called "punishments." Our theory results in an enriched understand of criminal sanctions, revealing their true nature. This insight is closely connected to a related idea in expressivist theories of punishment. Criminal sanctions redress criminal injuries by requiring convicted defendants to affirm the community's judgments about wrongdoing. Thus, "expressive redress" is the key concept in understanding the fundamental nature of the criminal law.