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Kyron Huigens, The Jurisprudence of Punishment, 48 Wm. & Mary L. Rev. 1793 (2007),
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THE JURISPRUDENCE OF PUNISHMENT
KYRON HUIGENS*
INTRODUCTION
* Professor of Law, Benjamin N. Cardozo School of Law. I wish to thank Scott Shapiro
and Benjamin Zipursky for their comments on earlier drafts. The mistakes that remain are
my own.
1793
1794 WILLIAM AND MARY LAW REVIEW [Vol. 48:1793
1. See, e.g., Bruce Ledewitz, Mr. Carroll'sMental State or What Is Meant by Intent, 38
AM. CRIM. L. REv. 71, 82 (2001) ("What we are seeking to punish in criminal law is sin, which
sometimes is referred to by the less religious sounding term, 'moral desert."' (footnote
omitted)).
1796 WILLIAM AND MARY LAW REVIEW (Vol. 48:1793
ment" because the victim himself would not have been so likely
as a real felon to commit such a crime in the future; in all other
respects it would be perfectly deterrent and therefore felicific.'
5. See, e.g., IDAHO CODE ANN. § 18-207(1) (1996); KAN. STAT. ANN. § 22-3220 (1995);
MONT. CODE ANN. § 46-14-101(1) (2005); see also Clark v. Arizona, 126 S. Ct. 2709, 2731-32
(2006) (holding that Arizona does not violate due process in restricting consideration of
defense evidence of mental illness and incapacity).
2007] THE JURISPRUDENCE OF PUNISHMENT 1799
6. See Kyron Huigens, Dignity and Desert in Punishment Theory, 27 HARV. J.L. & PUB.
PoL'y 33, 34 n.6 (2003).
7. See Andrew R. Strauss, Note, Losing Sight of the Utilitarian Forest for the
Retributivist Trees: An Analysis of the Role of Public Opinion in a UtilitarianModel of
Punishment, 23 CARDozo L. REV. 1549, 1560-61 (2002).
1800 WILLIAM AND MARY LAW REVIEW [Vol. 48:1793
14. JOHN FINNIs, NATuRAL LAW AND NATuRAL RIGHTS 262-63 (1980).
15. Id. at 263.
16. Id. at 262.
17. Id. at 7.
18. Id. at 12.
19. Id.
1804 WILLIAM AND MARY LAW REVIEW [Vol. 48:1793
integrity if it puts the law in its best moral light; and the law is
placed in its best moral light when it demonstrates equal concern
and respect for persons.2"
Dworkin has not given us an account of criminal fault,29 but
Jeremy Horder's recent book on the excuses (a British term that
translates into absence of fault in American terms)3 ° offers an
explicitly Dworkinian view. Horder proposes three novel defenses,
"suggesting three ways in which the law should be developed to
become distinctively liberal in its excusatory outlook."3 1 According
to Horder, those defendants who are "short-comer[s]" fail at least
sometimes because of their mental or emotional make-up.3 2 One of
his defenses, for example, would allow a defendant "to combine
evidence of lost self-control following something rather less than the
gravest of provocations, with evidence of a mental deficiency falling
short of insanity or of some other serious mental disorder."3 3
Horder describes a key feature of his distinctively liberal
approach to criminal fault when he writes that "[f] act-finders should
be provided with a more general, formal means of expressing an
opinion about the moral appropriateness of conviction." 4 He
describes his proposed defenses as serving the Dworkinian legal
values of equal concern and respect,3 5 and argues that the defenses
contribute to reciprocity between society and the individual-
another value in Dworkinian political morality. This reciprocity,
Horder argues, entails an opportunity for the defendant to raise
moral arguments against criminal liability:
These defenses are proposals for liberal law reform, but Horder's
description of them is a philosophical account of criminal fault in
Dworkinian terms.
This description of the absence of fault in terms of morally
defensible acts is substantively indistinguishable from Finnis's
description of criminal fault as a feature of morally condemnable
acts. Both descriptions, significantly, are integrated into a larger
conception of legal validity. The implication is that a judgment of
punishment is legally valid only if punishment is morally deserved.
48.
The contention that an injury can amount to a crime only when inflicted by
intention is no provincial or transient notion. It is as universal and persistent
in mature systems of law as belief in freedom of the human will and a
consequent ability and duty of the normal individual to choose between good and
evil.
Morissette v. United States, 342 U.S. 246, 250 (1952).
49. See Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 69-70 (1910).
50. See HART, supra note 41, at 247.
51. See id. at 115-17.
52. JOSEPH RAZ, Authority, Law, and Morality, in ETHIcs IN THE PUBLIC DOMAIN: ESSAYS
IN THE MORALITY OF LAW AND POLITIcS 194, 195 (1994) [hereinafter ETHICS IN THE PUBLIC
1810 WILLIAM AND MARY LAW REVIEW [Vol. 48:1793
It must also have a legal pedigree; that is, one must be able to trace
the rule of recognition back to a legal institutional source.53
The exclusion of moral principles from the sources of a rule of
recognition is a product of a particular conception of authority, a
"service" conception, that strongly distinguishes legal norms from
other norms. 4 The service provided by law is the exclusion of
reasons that might mislead one into ill-considered action. This
conception of authority is analogous to Raz's conception of the role
of rules in practical reasoning.5 We have reasons for action, and
practical rationality consists largely in our acting on the balance of
reasons. However, we also have second-order reasons-reasons
about reasons-that sometimes dictate that we not act on the
balance of reasons.5" Rules are second order, exclusionary reasons
of this kind. A rational rule points us toward action according to the
balance of reasons in a range of similar situations of choice. If we
follow a rule consistently, we will inevitably find ourselves acting
against the balance of first-order reasons on some occasions. But
this is still rational, because the rule has enabled us to act in
accordance with the balance of reasons in the vast majority of cases.
The rule, moreover, has enabled us to do this both consistently and
without further hazardous and costly deliberation.
Authority is like rules in this respect. The justification of
authority lies in the fact that an individual has a better chance of
acting consistently according to right reasons if he follows the
directives of authority.5 7 The directives of an authority might be
based on reasons that apply to individuals making their own
decisions. After the reduction of ordinary reasons into a rule,
however, the rule must preempt the reasons on which an individual
might have acted. This is part of the nature of authority as Raz
describes it, using an arbitration as his example:
DOMAIN].
53. See JOSEPH RAZ, The Relevance of Coherence, in ETHICS IN THE PUBLIC DOMAIN, supra
note 52, at 261, 280 n.28.
54. RAZ, supra note 52, at 198-99.
55. Id.; see JOSEPH RAZ, PRACTICAL REASON AND NORMS 63-64 (Princeton Univ. Press
1990) (1975).
56. RAZ, supra note 55, at 39-40.
57. RAZ, supra note 52, at 198-99.
20071 THE JURISPRUDENCE OF PUNISHMENT 1811
Two features [of the arbitrator's authority] stand out. First, the
arbitrator's decision is for the disputants a reason for action.
They ought to do as he says because he says so. But this reason
is related to the other reasons which apply to the case. It is not
just another reason to be added to the others, a reason to stand
alongside the others when one reckons which way is better
supported by reason. The arbitrator's decision is meant to be
based on the other reasons, to sum them up and to reflect their
outcome.58
Raz continues:
64. See, e.g., 18 U.S.C. § 1111(a) (1994) ("Murder is the unlawful killing of a human being
with malice aforethought.").
65. See, e.g., Bernard E. Gegan, More Cases of Depraved Mind Murder: The Problem of
Mens Rea, 64 ST. JOHN'S L. REV. 429, 437 (1990) (summarizing the history of depraved-mind
murder).
66. See, e.g., MODEL PENAL CODE § 210.6(3)(h) (1962).
67. See, e.g., id. § 210.2(1)(b).
68. RAZ, supra note 63, at 318.
69. FLETCHER, supra note 8, at 511.
70. ROBINSON, supra note 11, at 9.
71. PACKER, supranote 9, at 16.
72. GROSS, supra note 10, at 414-15.
1814 WILLIAM AND MARY LAW REVIEW [Vol. 48:1793
not only virtuous conduct but also enkratic-merely prudent, rule-abiding---conduct. Kyron
Huigens, On Aristotelian CriminalLaw: A Reply to Duff, 18 NOTRE DAME J.L. ETHICS & PUB.
POLY 465, 493 (2004).
76. FINNIS, supra note 14, at 262-63.
77. Id. at 18.
1816 WILLIAM AND MARY LAW REVIEW [Vol. 48:1793
78. Id. at 334-35 (footnote omitted). It should be noted, however, that the passage is
significantly ambiguous. One can read Finnis to say that a principle of morality makes a legal
rule valid, without recourse to a rule of recognition; or that a rule of recognition must require
a principle of morality. As I read it, the "strictly legal analysis" that involves a rule of
recognition is not the same as "legal reasoning," in which case a rule of recognition would be
an alternative to "the wider perspective or practical reasoning." However, it might be that the
"strictly legal analysis" that involves a rule of recognition is the same as the "legal reasoning"
that is a subset of "the wider perspective of practical reasoning," making a rule of recognition
a part of that wider perspective. The latter reading seems more natural from the text alone,
but because it would make Finnis an inclusive legal positivist, it seems unlikely in the end.
79. See RAZ, supra note 52, at 198-99.
80. See MICHAEL S. MOORE, PLACING BLAME: A GENERAL THEORY OF THE CRIMINAL LAW
161-62 (1997) (explaining abductive reasoning); Kyron Huigens, The Dead End of Deterrence
and Beyond, 41 WM. & MARY L. REV. 943, 1024-25 (2000) (using abductive reasoning to
describe criminal wrongdoing in virtue-ethics terms).
2007] THE JURISPRUDENCE OF PUNISHMENT 1817
easily imagine the case of a sympathetic defendant who did not face
either an imminent threat of death or circumstances that reason-
ably explain his highly emotional resort to violence-leaving him in
a gap between two defenses. It would not be surprising to find a jury
faced with such a case reinterpreting "imminence" or "threat" in
order to expand self-defense; or shifting the focus of its provocation
instructions from an objective evaluation of the defendant's
emotional distress to a more subjective one. Similarly, a jury might
interpret its instructions on accomplice liability so as to contract the
liability of a minor participant, or read its instructions on attempt
so as to reduce the exposure of an otherwise appealing attempter
who does not renounce completely, or in time, or who abandons his
attempt in response to a threat of detection. All of this activity falls
well short of nullification.' It is, instead, a normal feature of the
adjudication of criminal fault.
Criminal law does not merely tolerate the specification of its
prohibitions in adjudication; it relies on specification to inject a
necessary measure of moral particularism into its processes.
Specification serves the criminal law's concern with granularity.
Granularity can be defined as the relative level of under- and over-
inclusiveness in our rules of criminal liability, relative to a back-
ground of moral desert; or defined, alternatively, as the degree of
congruence between our legal judgments of desert and our moral
judgments of desert. Granularity affects the moral and political
authority of criminal law, and is a function of two conflicting ends
of the law: moral particularity and formality. The pursuit of legal
formality bolsters respect for criminal law by reducing arbitrariness
and unpredictability in the legal system; but this pursuit entails
both the creation of interstices associated with rules, and also a loss
in sensitivity to context. The pursuit of moral particularity, on the
other hand, accommodates a public that has little tolerance for
counterintuitive legal judgments. But of course it requires a
relaxation of formality and detracts from our pursuit of traditional
rule of law values such as notice of the prohibition and legislation
ex ante. Granularity is addressed at several points in criminal
law-including resort to objective fault criteria in the drafting of
88. See Darryl K. Brown, Jury Nullification Within the Rule of Law, 81 MINN. L. REV.
1149, 1169-71 (1997)
1820 WILLIAM AND MARY LAW REVIEW [Vol. 48:1793
offenses89 and the tradition (nearly lost, but now reviving) of judicial
discretion in sentencing--but the jury's specification of the
prohibition in adjudication is the most important phase in this
effort, if only because it bears most immediately on the central
question of the guilt or innocence of individuals. Specification of the
prohibition in the adjudication of fault is essential to the regulation
of granularity, and thus to the criminal law's moral and political
authority.9
The specification of a criminal prohibition determines criminal
fault-legal desert for legal punishment. Desert for punishment is
notoriously difficult to define, but specification plainly aims at it.
Think about what we do know about desert for punishment. It is
some quality of the prohibited act over and above the nominal
violation of the prohibition's terms; beyond, but related to, the
prohibited act or result. The nearly universal resort to moral fault
for the theoretical description of this quality indicates that desert
for legal punishment is informal and particularistic. This particu-
laristic evaluation has something to do with the defendant's
practical reasoning-as evinced by the nearly universal resort to
intentional states of mind in order to describe criminal fault
doctrinally. And yet desert for punishment notoriously cannot be
captured by intentional states alone; it involves a broader evalua-
tion of practical reasonin92--as evinced in the resistance of
nonintentional fault criteria to mid-twentieth-century efforts to
eradicate them from modern criminal codes. The specification
account of criminal fault describes each of these aspects of desert
for legal punishment, in its description of the criminal prohibition's
transformation, for adjudicative purposes, into a particularistic,
relatively informal evaluation of the quality of the defendant's
practical reasoning, emphasizing particularly his deliberations on
ends.
The same features of the specification account of criminal fault
make it a distinctively aretaic account. Virtue ethics notoriously
89. See Kyron Huigens, Homicide in Aretaic Terms, 6 BuFF. CRIM. L. REV. 97, 121-25
(2002).
90. See Kyron Huigens, Solving the Williams Puzzle, 105 COLUM. L. REV. 1048, 1069
(2005).
91. See id. at 1063-65.
92. See supra notes 86-87 and accompanying text.
2007] THE JURISPRUDENCE OF PUNISHMENT 1821
with its instructions. The jury cannot adduce moral reasons and
make a finding on fault that contradicts or alters its instructions. If
this were done, if the instructions were treated as just another
reason supporting the finding on fault, then the law of the instruc-
tions would lack peremptory force. Without that peremptory force,
this law would not be authoritative, and could not be described as
law. For all we know so far, the law of the instructions might consist
of or incorporate moral reasons-and in fact, a legislature's appeal
to moral reasons at that point would not detract from law's author-
ity. But given that the law of the instructions is law, peremptorily
binding the jury when it makes its finding on fault, a finding on
fault does not consist of or incorporate moral reasons; the law of the
instructions on which it is based excludes them.
A jury's decision on criminal fault under the service account does
not identify "conditions and principles of practical right-mindedness,
of good and proper order among men and in individual conduct," as
Finnis says.1" 3 A finding on criminal fault is not an opportunity "for
the fact-finder to decide the fate of the offender on a ... range of
moral criteria," as Horder's Dworkinian account would have it. 10 4 It
does not necessarily require that a jury "reflect in its judgments on
human conduct distinctions which ... underly [sic] morality," as Hart
describes it.' Instead, the service account describes the determina-
tion of fault exclusively in terms of the particular criminal prohibi-
tion at issue, without reference to morality."°
107. See T.H. Irwin, Reason and Responsibility in Aristotle, in ESSAYS ON ARISTOTLE'S
ETHICS 117, 128-29, 142-44 (Amelie Oksenberg Rorty ed., 1980).
20071 THE JURISPRUDENCE OF PUNISHMENT 1827
108. See RAZ, PRACTIcAL REASON AND NORMS, supra note 55, at 16-18.
1828 WILLIAM AND MARY LAW REVIEW [Vol. 48:1793
CONCLUSION