Volume 1, Issue 1

IMG_8832Date of Publication: Spring 2012

Articles:
Dan Markel, Retributive Justice and the Demands of Democratic Citizenship

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Abstract
: This article reveals and responds to the democracy deficit in certain retributivist approaches to criminal law. Democracy deficits arise when we insufficiently respect 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.

Indeed, as an implication of that view, I argue that we are morally obligated (in a pro tanto way) to: (1) conform our conduct, in our capacities as non-officials, not only to mala in se criminal laws but also many mala prohibita laws, including many that look to us to be dumb but not illiberal; (2) render, in our capacities as non-officials, reasonable assistance to law enforcement of the previous categories of laws; and (3) 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 non-officials 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.

 

Josh Bowers, Comment, Blame by Proxy: Political Retributivism & It Problems, A Response to Dan Markel

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Introduction
: Dan Markel’s article, Retributive Justice and the Demands of Democratic Citizenship, is nothing if not ambitious. In it, Markel explores the overlaps between democratic and retributive values and concludes that even amoral conduct becomes blameworthy once it is proscribed by a liberal democracy under sufficient liberal conditions. If Markel is right, then he has solved an important puzzle: he has offered a retributive basis for the criminalization of mala prohibita acts without concurrently opening the door to the untenable claim that “criminals are justifiably punished simply because they have broken the law.” Markel’s theory is, therefore, intuitively appealing to all of us who value preservation of both the liberal social order and a system of punishment premised on desert. . . .

 

Michael T. Cahill, Comment, Politics and Punishment: Reactions to Markel’s Political Retributivism

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Introduction
: I commend the editors and advisors of this journal for making such an excellent selection for its inaugural featured author. Dan Markel is not only one of the most thoughtful and prolific of the emerging generation of criminal-law scholars, but also a diligent and supportive colleague to the other members of that cohort, including myself. Through both his own work and his thorough and insightful comments on and reactions to the work of others, he is sure to be one of the most significant and influential thinkers in this area for years to come. Moreover, the kind of work he is pursuing is in the vanguard of contemporary trends in punishment theory. He belongs to a group of current theorists who are bringing to bear not only moral theory (as has long been done), but also political theory, to help address important fundamental questions about the proper scope and attributes of criminal law. That is a significant intellectual project, and he is among those at the forefront of it. . . .

 

R.A. Duff, Comment, Political Retributivism and Legal Moralism

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Introduction
: There is much that is both right and important in Dan Markel’s very stimulating paper in this inaugural volume of the Virginia Journal of Criminal Law. I will note just four matters here (without implying that Markel would accept all the glosses I put on them). . . .

 

Dan Markel, Response, Making Punishment Safe for Democracy: A Reply to Professors Bowers, Cahill & Duff

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Introduction
: Josh Bowers, Michael Cahill, and Antony Duff have each penned subtle and thoughtful response essays to my piece appearing earlier in this issue. In this reply essay, I will offer some thoughts that I hope will adequately address their separate challenges. Toward the end of this reply, I will also spotlight a few other problems or potential weaknesses in the earlier paper, with an eye toward overcoming them or inviting others to help me see how they might be addressed in future work. . . .

 

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