Why Standing to Blame May Be Lost but Authority to Hold Accountable Retained: Criminal Law as a Regulative Public Institution

Abstract

Moral and legal philosophy are too entangled: moral philosophy is prone to model interpersonal moral relationships on a juridical image, and legal philosophy often proceeds as if the criminal law is an institutional reflection of juridically imagined interpersonal moral relationships. This article challenges this alignment and in so doing argues that the function of the criminal law lies not fundamentally in moral blame, but in regulation of harmful conduct. The upshot is that, in contrast to interpersonal relationships, the criminal law cannot lose its standing to blame through institutional analogues of hypocrisy, complicity, and meddling. Rather, certain forms of structural and severe historical and contemporary injustice point to the question of the overall legitimacy of state authority.

Getting Proportionality in Perspective: Philosophy, History, and Institutions

“…The point of criminal justice, on this view, is not exclusively or even primarily backward-looking: to blame and punish those who are morally responsible for past wrongdoing or to censure public wrongs. Its point is, rather, importantly forward-looking: to hold responsible and to account, as a way of regulating behaviour, reducing harm, and upholding approved legal standards protecting the public against harms and wrongs (Lacey 2004;Lacey and Pickard 2021).…”