Felony Regulation: Historical Past
So acknowledged, nevertheless, these views do not tell us what the worth of fulfilling each function actually is. The punitive view tells us nothing about what justifies felony punishment. The curial view tells us nothing concerning the value of calling people to account in legal courts. The preventive view tells us nothing about the value of preventing crime. A basic justification of legal legislation fills this explanatory gap.
Criminal proceedings invite each to provide that account and put every underneath strain to do so. Assuming Alisha and Chika have purpose to account in a felony courtroom, proceedings during which they achieve this are of intrinsic value. One of legal regulation’s features is fulfilled even when no-one is, or should be, punished. We can now see that criminalizing \(\phi\)ing does rather more than make \(\phi\)ing a authorized wrong.
On this view, a positive case for criminalization need not await the finding that \(D\) owes one thing to the whole group. It is no less than generally enough that \(D\) owes one thing to those \(D\) has wronged, which \(D\) would fail to supply within the absence of criminal proceedings. If criminal regulation does have a specific operate, we will ask whether or not that function is distinctive of legal law. We can ask, in different words, whether it helps distinguish criminal law from the remainder of the authorized system. It has been claimed that felony law is distinctive in imposing punishment (Moore 1997, 18–30; Husak 2008, 72). One may also claim that criminal regulation alone calls defendants to account. But punishments are imposed in civil proceedings–exemplary damages are the plain case.
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Imagine Alisha stole from Bintu because she was beneath duress. Imagine Chika intentionally killed Dawn to defend herself or others. Neither of those defendants, we will assume, is justifiably punished. On the punitive view, felony legislation’s operate does not stand to be fulfilled. Alisha and Chika both have purpose to account for his or her behaviour–to elucidate what they did and why they did it.