IDEAS home Printed from
MyIDEAS: Log in (now much improved!) to save this paper

Why Does The Criminal Law Care What The Lay Persons Thinks Is Just? Coercive Versus Normative Crime Control

Listed author(s):
  • Paul Robinson

    (University of Pennsylvania Law School)

Registered author(s):

    THE criminal law codification movement of the 1960s and 70s was guided by instrumentalist principles designed to reduce crime, rather than by retributivist notions of giving offenders deserved punishment. The Model Penal Code, which served as a model for nearly all of the period's code reforms, was explicit on the point: The Code's "dominant theme is the prevention of offenses" and its "major goal is to forbid and prevent conduct that threatens substantial harm." Yet, as Part I of this Article will show, even from such a staunchly instrumentalist code came a criminal law that defers to laypersons' shared intuitions of justice on issues touching essentially all criminal cases. Why should this be so? Lay intuitions of justice hardly produce a distribution of criminal liability that maximizes the traditional crime control mechanisms of deterrence, incapacitation, and rehabilitation. In fact, as Part I will make clear, reliance upon lay intuitions of justice commonly undermines the operation of these mechanisms. Why, then, should modern American code drafters follow an unspoken principle of heeding lay intuitions of justice?One explanation might be that the drafters have an unexposed retributivist streak. Perhaps they have retained the natural impulse of most laypersons to think of criminal liability in terms of desert. If this were the case, the drafters' focus on instrumentalist arguments in explaining and justifying their code provisions would seem less than forthright.There is, however, another explanation, in which the drafters' concern for lay intuitions of justice is justified by an instrumentalist rather than retributivist rationale: The drafters may have believed that effective crime control requires a criminal code that is seen as adhering to the community's shared perceptions of just desert. While the Model Penal Code drafters offer no defense of this position--indeed, the principle itself is unarticulated by the drafters, even as they seem to follow it--Parts III and IV will offer arguments in its support. In those parts, I will argue that the perception of a criminal code as doing justice is necessary for the code's moral credibility, which in turn is necessary for the effective crime control that the drafters seek. It is necessary because the extent of criminal law's moral authority determines the extent of its ability to shape community norms and to influence people's conduct through normative forces.

    If you experience problems downloading a file, check if you have the proper application to view it first. In case of further problems read the IDEAS help page. Note that these files are not on the IDEAS site. Please be patient as the files may be large.

    File URL:
    Download Restriction: no

    Paper provided by University of Pennsylvania Law School in its series Scholarship at Penn Law with number upenn_wps-1050.

    in new window

    Date of creation:
    Handle: RePEc:bep:upennl:upenn_wps-1050
    Contact details of provider: Web page:

    No references listed on IDEAS
    You can help add them by filling out this form.

    This item is not listed on Wikipedia, on a reading list or among the top items on IDEAS.

    When requesting a correction, please mention this item's handle: RePEc:bep:upennl:upenn_wps-1050. See general information about how to correct material in RePEc.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: (Christopher F. Baum)

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    If references are entirely missing, you can add them using this form.

    If the full references list an item that is present in RePEc, but the system did not link to it, you can help with this form.

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your profile, as there may be some citations waiting for confirmation.

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    This information is provided to you by IDEAS at the Research Division of the Federal Reserve Bank of St. Louis using RePEc data.