Criminal Law in the Age of the Administrative State

Abstract

The talk will begin at 12:30pm in the Ericson Seminar Room (room 265)What the criminal law is for, Chiao suggests, is sustaining social cooperation with public institutions. Consequently, we only have reason to support the use of the criminal law insofar as its use is consistent with our reasons for valuing the social order established by those institutions. By starting with the political morality of public institutions rather than the interpersonal morality of private relationships, this account shows how the criminal law is continuous with the modern administrative and welfare state, and why it is answerable to the same political virtues.If you are a person with a disability and require accommodation, please email crim.events@utoronto.ca and we will do our best to make appropriate arrangements.

Fairness, accountability and transparency: notes on algorithmic decision-making in criminal justice

“… 29 I do not think, however, that this is necessarily to make criminal law less democratic. See Chiao (2018), Chapter 3. …”

Approaching or Re-thinking the Realm of Criminal Law?

“…But when I try to enter into Duff's imaginative project and engage in my own process of rational reconstruction, I have to report that I do not find it convincing to interpret the regulatory crime in a 'moralised' way. More convincing to my mind is the sort of view of criminal law emerging from Norrie's (2014), Farmer's (2016; forthcoming), or Chiao's (2019) work, in which the distinctiveness of criminal law as a set of public co-ordinating norms in countries like England and Wales today has been shaped over time by the interplay of ideas, interests, and institutions (see Lacey 2016). Hence the contours, modus operandi, and role of criminal law today is strongly associated with the developing structure and imperatives of governance in, as Chiao puts it, the modern administrative state.…”

“…The analogy with codes of professional ethics, in other words, points us towards the political and the regulatory rather than the moral foundations of criminal law. Indeed, Duff in some ways accepts as much in his conclusion that the restricted understanding of the public implicit in liberal republicanism militates away from the sort of expansive legal moralism adopted by Moore (1997, p. 100); and in some important but undeveloped concessions to Chiao's (2016Chiao's ( , 2019 and Thorburn's (2011Thorburn's ( , 2017. In short, I agree with Duff that, as in professional ethics, so in criminal law; but I draw precisely the opposite conclusion from the analogy.…”

“…In my view, Duff's conception of criminal law as a distinctive social institution embodying a distinctive form of civic life-with its tantalising yet undeveloped Wittgensteinian resonance (see, e.g., pp. 87, 160-161)-could have been enriched by a much closer engagement with, say, Farmer's account of the changing priorities and understandings of criminalisation during the course of modern English/Scottish history (Farmer 2016;forthcoming); or with Chiao's (2019) or Thorburn's (2011) accounts of the role of the modern criminal in sustaining co-operation with public institutions or in underpinning governance within a particular constitutional order. Note, too, that the proposition that ideas and ideals have institutional and other conditions of existence is perfectly consistent with the enterprise of normative reconstruction: it simply invites a constructive and open dialogue between such theory and what we know about the world.…”

Non‐paradigmatic punishments

“…Hoskins has drawn attention to a political turn in recent work in philosophy of punishment which locates questions about the justification of punishment within the broader context of political theory, and in particular the justification of the coercive power of the state (Hoskins, 2017;citing;Brudner, 2009;Chiao, 2016;Dagger, 2011aDagger, , 2011bMatravers, 2011;Sigler, 2011;Thorburn, 2011;and;Husak, 2008;Ristroph, 2015Ristroph, , 2016; see also ;Tadros, 2011Tadros, , 2016Chiao, 2018;Wellman, 2017). Work in this vein typically concentrates on paradigmatic instances of punishment, seeing the state as the agent of punishment and -either explicitly or implicitly -the citizen as its subject.…”