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September 19, 2011

"Retributive Justice and the Demands of Democratic Citizenship"

The title of this post is the title of this new paper by Professor Dan Markel, which is now available via SSRN. Here is the abstract:

This article reveals and responds to the democracy deficit in certain retributivist approaches to criminal law.  Democracy deficits arise when we insufficiently recognize the moral authority of liberal democracies to create new moral obligations for us as individuals.  Specifically, I will argue, in contrast to the claims of some leading criminal law theorists, that conduct can be legitimately and justly criminalized even if the conduct is not morally wrongful prior to or independent of law.  In other words, once we understand the basis for our presumptive political obligations within liberal democracies, a more capacious approach to establishing criminal laws can be tolerated from a political retributivist perspective.

If I'm correct, then here are some of the implications: we are morally obligated (in a pro tanto way) to (1) conform our conduct, in our capacities as nonofficials, not only to “good” mala in se criminal laws but also many mala prohibita laws, laws that I call permissibly dumb but not illiberal; (2) to render, in our capacities as nonofficials, reasonable assistance to law enforcement of the previous categories of laws; and (3) to enforce, in our capacities as officials, these categories of laws.  While the implications of this "democratic fidelity" argument are extensive, there is no moral obligation to surrender one’s judgment entirely.  Indeed, officials and nonofficials have no moral obligation toward laws that are illiberal or what I call "spectacularly dumb," regardless of their valid legal status.

Like democratic criminalization choices, democratic sentencing laws must also be scrutinized.  To that end, I sketch two moral frameworks that should work in conjunction with each other and with the threshold criminalization question when deciding whether to enforce, conform to, or assist enforcement efforts of criminal laws within liberal democracies.

September 19, 2011 at 10:56 PM | Permalink


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As a high school grad and owner of the law, I cannot understand this lawyer gibberish. I commend Prof. Markel's growth and maturation and his recognition of how dumb some laws are, and that we can use our judgment about blameworthiness. Progress. Very good.

Problems. 1) Retribution serves no clear benefit to the owners of the law; 2) it comes from a book of a religion and violates the Establishment Clause; 3) it reflects the culture and mentality of the Iraqi tribe people that wrote that book; 4) it would lead to endless cycles of retaliatory violence and condemn us to live their limited tribal lifestyle.

Punishment is the sole tool of the law. All punishment is a procedure on the body. Even a small fine takes away the labor of the person (time, effort, expenditure of body energy and thought). An arrest, then an innocent verdict and release has involved many procedures on the body, starting with detention by the police as it begins its investigation. When wrongful, criminal procedure is an intentional tort, subject to exemplary damages.

So all criminal laws should punish a concrete harm and never seek to impose the fantasy wish fulfillment of liberals and big government advocates. The demonstrable harm must be an injury to the body, property damage or measurable economic loss. Speculative losses do not justify stealing and procedures to the body. They are wrongful uses of the criminal law.

The law must then be pilot tested in small then bigger jurisdictions to prove it safe and effective, with tolerable unintended consequences.

If any of those criteria are not met, the law is lawyer rent seeking, which is a synonum for armed robbery. All lawyer rent seeking should be criminalized as armed robbery is criminalized. A man with a gun helps you pay your taxes if you refuse, and no one gets any benefit back, except the lawyer running the government. This lawyer is using the methodologies and the justifications of the Inquisition, and using its business model of going after rich and middle class people with trumped up rule violations. The fishing people pay off the church, No Meat on Friday. A productive male blasphemes by eating meat on Friday. He must burn at the stake. In a plea bargain, he offers his assets to the church, and is spared the stake. That racket lasted 700 years, and was a really good one. It ended when French patriots beheaded or expelled 10,000 high church officials. Just as we are suffering under Inquisition 2.0, so we really need to have The Terror 2.0 in a small French Revolution 2.0, to clean up these rent seeking criminals in incapacitation, not retribution.

Then all mala prohibita without scientific proof are voided per se, their being crimes of rent seeking themselves.

Posted by: Supremacy Claus | Sep 20, 2011 9:12:56 AM

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