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3 - Partial Responsibility and Excuse

from Part I - Puzzles in Criminal Law

Published online by Cambridge University Press:  02 November 2018

Heidi M. Hurd
Affiliation:
University of Illinois
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Summary

Anglo-American criminal law is broadly retributive in character, predicating blame and punishment on culpable or responsible wrongdoing. However, responsibility is scalar, and there is an important question of how criminal trials should handle cases of partial responsibility, especially in light of Blackstone’s belief that it is worse to overpunish than to underpunish. I examine four approaches: (1) a bivalent system with a comparatively low threshold for responsibility/excuse operative in American criminal law; (2) a trivalent system operative in some European criminal justice systems; (3) a tetravalent system, which rounds punishment downward in response to Blackstone’s asymmetry; and (4) a fully scalar analog system that aims at proportionate justice. A bivalent criminal justice system fails to deliver just deserts in significant ways. Proportionate justice is comparatively easy to understand in principle but potentially fragile in practice. Aiming at proportionate justice may minimize unjust deserts. However, if the difficulties of implementing proportionate justice are severe enough, we might prefer a discontinuous system that is more fine-grained than bivalence. Trivalent and tetravalent systems are alternatives worth exploring.
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Moral Puzzles and Legal Perplexities
Essays on the Influence of Larry Alexander
, pp. 39 - 59
Publisher: Cambridge University Press
Print publication year: 2018

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